author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America Plaintiff-Appellee, v. Scott CAMIL, Alton C. Foss, Frank Hall, John W. Kniffin, Stanley K. Michelson, William J. Patterson and Donald R. Purdue, Defendants-Appellants.
    No. 73-2973.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.

      Larry G. Turner, Gainesville, Fla., Doris Peterson, Nancy Stearns, Morton Stavis, Center for Constitutional Rights, New York City, Cameron Cunningham, Brady S. Coleman, Austin, Tex., for defendants-appellants.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Robert A. Dierker, Sp. Atty., Robert W. Merkle, Washington, D. C., for plaintiff-appellee.
    Before GODBOLD, SIMPSON and INGRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

Each of the seven appellants was convicted of criminal contempt of court, in violation of Title 18 U.S.C. § 401(1) and summarily punished pursuant to Rule 42(a), F.R.Crim.P., for contempt committed in the actual presence of the court in the course of an unruly outbreak in the courtroom. Imposition of sentence was suspended with unsupervised probation to continue for the duration of the trial of the criminal charges. The allegedly contemptuous behavior occurred during a pretrial hearing in the case of United States v. John K. Briggs, et al. See Note 3 supra. When the trial ended with a jury verdict of acquittal as to all defendants, the probation imposed was by its terms thereupon concluded. Nevertheless, this appeal was taken from the contempt convictions of six defendants and one spectator.

I.

The controversy on appeal centers largely around the question of the mootness vel non of the appeals from the contempt convictions. Relying principally upon St. Pierre v. United States, 1943, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199, the government argues that completion of the probationary sentence together with the acquittal verdict in the underlying criminal case moots the challenge to the contempt convictions. In St. Pierre the Court held that completion of a six month sentence for contempt prior to argument on the merits of the appeal from the contempt conviction rendered the appeal moot, saying “the case is moot because, after petitioner’s service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate”. The appellants counter that St. Pierre must be considered in light of the interpretation placed on it by Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917. We agree. While Sibron did not overrule St. Pierre, the Court there cautioned that St. Pierre “must be read in [the] light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 57, 88 S.Ct. at 1900, 20 L.Ed.2d at 931-932.

Our task of ascertaining whether any such “collateral consequences” may result from the contempt convictions below is simplified by the recent decision of this Court in United States v. Schrimsher. In re Butts, Attorney at Law, 5 Cir. 1974, 493 F.2d 842, which is for practical purposes on all fours with the case at bar. There the appeal was by Butts, an attorney, from a finding of contempt and sentence to be confined during the noon recess of a ease on trial. The incident arose during the cross-examination of a prosecution witness by Butts, defense when Butts exhibited a color photograph to the witness. The judge asked Butts to mark the photograph as an exhibit and when Butts indicated that he did not want to do so the judge interrupted and demanded that the photograph be marked. Butts’ offer to comply was done in a manner considered argumentative by the judge who retired the jury and resumed the argument with Butts, finally ordering the marshal to put Butts in jail and to keep him there until 1:30 P.M., about an hour later. Though Butts did not specifically ask for a stay of execution, he expressed his desire and intent to prosecute an appeal from the court’s order. The judge on his part insisted that Butts was going to jail to be held there until 1:30 P.M. and there was thus no way that Butts could have secured review prior to the expiration of his sentence. We therefore held the mootness doctrine inapplicable.

Judge Rives writing for this Court pointed out the possible collateral consequences to Butts in the following language :

“Another qualification to the St. Pierre doctrine of mootness lends additional support to our rejection of the government’s mootness argument. In Sibron, the Court stated that St. Pierre ‘must be read in light of later cases to mean that a. criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.’ 392 U.S. at 57 [88 S.Ct. 1889], Butts’ conviction for contempt presumably could be used for impeachment and sentencing purposes in any future criminal proceeding. This conviction would be especially damaging if Butts were ever again accused of being in contempt of court. Conviction for contempt of court could also have serious adverse career consequences for Butts. His conviction could provide a basis for disciplinary action by a bar association. Opportunities for appointment to the bench or to other high office might be foreclosed as a result of this blot upon his record. The conviction might damage Butts’ reputation in the legal community, and this in turn might affect his ability to attract clients and to represent them effectively, especially in open court. In light of these possible collateral consequences, Butts’ appeal is not ‘abstract, feigned, or hypothetical’ so as to justify dismissal for mootness. See Sibron, supra, 392 U.S. at 57 [88 S.Ct. 1889].” (Footnotes omitted).

Similar possible adverse consequences to the appellants may be envisioned. One of the appellants is enrolled as a law student at the University of Florida, and the appellants’ brief points out the likelihood that the contempt conviction may endanger his admission to the Florida Bar as well as his right to practice in other states. The possible future use of the contempt conviction for impeachment and sentencing purposes in any future criminal proceedings is applicable to each of the appellants.

We hold therefore that this appeal is not barred by mootness.

II.

The transcript of the proceedings below discloses to some extent the apparent basis for the contempt convictions, although the trial judge failed to certify as required by Rule 42(a), that he saw or heard the conduct constituting the contempt. His order of contempt did not recite the facts as the Rule directs. The record basis for the contempt adjudications may be summarized as follows. During a pretrial hearing before the trial judge in United States v. Briggs, et al., see Note 3 supra, a trial involving each of the appellants other than Frank Hall, a disturbance in the rear of the courtroom came to the attention of the judge, who inquired from the bench as to the identity of the noisemaker. Two Deputy Marshals responded by identifying a spectator named Klim. Mr. Klim was brought before the judge and held in contempt and fined $25.00 despite his denial that he was the source of any interruption. Another spectator informed the judge that Klim could not have done it and identified still another spectator, the appellant Frank Hall, as the culprit. One of the defendants present at the hearing acting as his own counsel then accused the marshals of lying to the court in the identification of Klim, and another of the defendants spoke up with a like accusation. An argument ensued between the defendants and the deputy marshals, with all of the defendants present eventually asserting their belief in the marshals’ lack of veracity. About this time Hall volunteered that he knew the deputy marshals had misidentified Klim because he was himself the creator of the original disturbance. The judge called a recess and retired to his chambers with counsel, directing that Hall, Klim and the defendants including Patterson, who was acting as his own counsel, be held in custody of the marshal pending the court’s further order. The pros and cons of the incident and appropriate punishment for the putative contemnors were discussed with counsel in chambers. It was necessary for the court to ascertain the names of those adjudged in contempt for the record. After an interval court and counsel returned to the courtroom whereupon the court vacated the contempt citation with respect to Klim and adjudged Hall and each of the six defendants present, Camil, Foss, Kniffin, Miehelson, Patterson, and Purdue guilty of contempt of court and placed each on unsupervised probation for the duration of the upcoming trial.

As indicated above, no certificate in compliance with Rule 42(a), F. R.Crim.P., was made by the trial judge although he stated that he was proceeding against the contemnors pursuant to Rule 42(a). We are left to speculate as to the scope of his observation. We have had occasion to hold, Widger v. United States, 5 Cir. 1957, 244 F.2d 103, 106-107, that the requirements of Rule 42(a) must be strictly complied with and that:

“By its terms, a criminal contempt may ‘be punished summarily’ only ‘if the judge certifies’ that he witnessed the alleged contemptuous conduct and that it was committed in his actual presence. The rule further provides that the order must ‘recite the facts'. This record contains no certificate at all by the judge and the order does not recite any fact but merely the conclusions of the Court.
“This rule providing for punishment of contempts summarily must be given a 'narrow construction’ providing, as it does, for punishment without affording the accused ‘the normal safeguards surrounding criminal prosecutions’ ; it being plain from the history of contempt procedures that the courts and congress have demonstrated a definite ‘plan to limit the contempt power to “the least possible power adequate to the end proposed” ’. It is, threfore, essential that courts proceeding summarily ‘must be meticulously careful to observe * * * procedural * * * safeguards’. While it appears from the record as a whole that the contemptuous conduct was in the presence of the Court, no certificate was signed by the Judge as required by the rule, and the remaining portions of the record can be considered only as assisting the Court in construing the terms of the certificate.”

Our holding in Widger precludes consideration of this appeal in its present posture on the merits.

The decided eases offer us optional courses of action at this point, in view of the absence of the certificate under Rule 42(a). First, we can take the action this Court recently followed in United States v. Anthony Frederick Vano, et al. * * * In Re: Herbert Shafer, etc., 1974, 496 F.2d 1195 [No. 73-3098, preliminary order, April 18, 1974, final order, July 3, 1974] where limited remand was ordered to afford the trial court an opportunity to issue and forward the necessary certificate within 30 days from the date of our order. In that case the certificate was timely filed and we later affirmed per curiam without opinion under Rule 21.

Our second alternative is to follow the procedure used by the Schrimsher. In re Butts, supra, panel and simply reverse and render on the basis of the initial failure of the trial judge to make the requisite Rule 42(a) certificate. Judge Rives’ explanation in the Schrimsher opinion of the reasons for the action taken was in part:

“From the sentence imposed by the judge in this case, it is clear that he was primarily concerned with the preservation of order in the courtroom during the trial in which Butts was participating. Since that trial is long since concluded, we think a proper disposition of this case is to reverse the order of contempt and to dismiss the proceedings against Butts.”

This language applies with precision to the situation in the instant appeal. That the primary purpose of the trial judge below was to preserve order, to stake out limits between proper and improper conduct on the part of defendants and spectators in the trial about to be commenced, is, we think, fully demonstrated by the nature of the punishment imposed for contempt: Suspended sentences with unsupervised probation expiring at the end of the trial. That purpose has been served. The period of probation has been satisfactorily terminated. We can conceive of no more futile charade than our permitting the court' below to make a Rule 42(a) certificate so as to enable us to review the merits of the contempt convictions on appeal.

Reversed and rendered.

      . Title 18 U.S.C. § 401(1) provides, in pertinent part, that:
      A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as — (1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice; . . .

      . F.R.Crim.P. 42(a) provides:
      Summary Disposition. A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.

      . The upcoming trial was that of the group originally referred to as the “Gainesville Eight”, later as the “Gainesville Seven”, charged with conspiracy to violate Title 18 U.S.C. § 2101 in connection with the Republican National Convention at Miami, Florida, in August 1972. One, Scott Camil, was also charged with substantive violations of Title 18 U.S.C. § 231(a)(1) and Title 26 U.S.C. §§ 5861 and 5871. As noted in the text infra, that trial resulted in an acquittal of all defendants as to all charges.

      . To like effect, see our cases of Taylor v. United States, 5 Cir. 1969, 410 F.2d 392, and Murrell v. United States, 5 Cir. 1958, 253 F.2d 267, where fines summarily assessed for contempt were fully paid and the appeals thereafter attempted were held to be mooted.

      . See also Murray v. Wainwright, 5 Cir. 1971, 450 F.2d 465, 467-468, where we held following Sibron that the government has the burden of showing “that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction [s].” 450 F.2d 468, Note 2.

      . Judge Cameron, writing for this Court, cited in support of this holding Cammer v. United States, 1956, 350 U.S. 399, 404-405, 76 S.Ct. 456, 458, 100 L.Ed. 474, and two 9th Circuit cases: Yates v. United States, 9 Cir.1955, 227 F.2d 848, 850, and Hallinan v. United States, 9 Cir. 1950, 182 F.2d 880, 882.

      . Fifth Circuit Local Rule 21. See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966.

      . This was also the procedure followed by the Second Circuit in Pietsch v. President of the United States, 2 Cir. 1970, 434 F.2d 861, opinion by Mr. Associate Justice Tom Clark, sitting with that Circuit by designation. Mr. Pietsch’s contempt sentence ’ was completely executed at the time the Court of Appeals considered the appeal therefrom, the trial judge having originally fixed Pietsch’s punishment at 10 days in prison, but later the same day having “commuted” it to time already served. The fact that the sentence was served in its entirety, so that there was really nothing to remand, appears to have been an implicit factor influencing the court to reverse, rather than to remand, in the face of a defective Rule 42(a) certificate. Pietsch’s contemptuous conduct was similar in nature to that involved in the instant ease: he created an unseemly disturbance to proceedings in open court by unruly and boisterous behavior, insisting incorrectly that he was due for a hearing on a written demand he had sent to the trial judge demanding issuance of an injunction against the war in Vietnam.


source: Caselaw Access Project

author: KRAFT, District Judge:

license: Public Domain

text:
    RYDER TRUCK LINES, INC., Petitioner, v. Peter J. BRENNAN, Secretary of Labor, Respondent.
    No. 73-3341.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.
    Rehearing Denied Sept. 13, 1974.

      J. P. Jones, Allan P. Clark, Jacksonville, Fla., for petitioner.
    William S. McLaughlin, Executive Sec., Occupational Safety & Rev. Comm., Washington, D. C., Norman H. Winston, Associate Regional Sol., U. S. Dept. Of Labor, Birmingham, Ala., Baruch A. Fellner, Counsel for Regional Litigation, U. S. Dept, of Labor, Stephen F. Eilperin, Karen K. Siegel, Attys., Dept, of Justice, Washington, D. C., for respondent.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   KRAFT, District Judge:

The employer, Ryder Truck Lines, Inc. (Ryder), has petitioned, pursuant to § 11(a) of the Occupational Safety & Health Act of 1970 (Act), 29 U.S.C. § 651 et seq., for review of a final order of the Occupational Safety & Health Review Commission (Commission), issued on August 16, 1973. The order determined that Ryder had committed a violation of 29 C.F.R. 1910.132(a) for which no penalty was applicable. Petition will be denied.

Ryder is an interstate common carrier, which operates 85 truck terminals and has more than 1000 employees. One of its terminals, in Birmingham, Alabama, is the site of the charged violation. Of the 260 employees at the Birmingham terminal, approximately 117 perform duties on the loading docks each week. As many as 40 workmen are employed there during the day shift. This terminal consists of a one-story building with offices in the front or east side. Behind the offices is a rectangular freight platform surrounded on three sides by 88 doors, each 9 feet wide and about 2 feet apart, and a continuous loading dock.

Basically the dock workers’ job consists of transferring freight from one motor truck to another or from a designated dock area to a truck or vice versa. The freight handled by the workers is far from uniform; the size, shape, weight and packaging of the pieces varies widely. Motors, machinery and occasionally pipe are handled, in addition to packaged goods. The only weight restriction imposed by Ryder is that its men and equipment be able to move the shipment. Individual workmen, too, lift, carry and deposit whatever loads they can handle, at times as much as one hundred pounds apiece. Four wheeled pushcarts and tow motors (gasoline powered forklifts) are also utilized to facilitate freight transfer. The pushcarts are used to move the smaller packages, which are loaded and unloaded by hand, to trucks or to stacks approximately 7 feet high. The tow motors are employed to transfer palletized freight and/or freight which is too heavy to lift manually.

Pursuant to an. employee’s complaint an OSHA compliance officer inspected the Birmingham terminal on December 13, 1971. The inspection consisted of observation of the workers and their attire as they performed their normal tasks and an examination of Ryder’s injury record, especially noting the foot and toe injuries.

The footwear worn by the workers on the dock ran the gamut from substantial workshoes to loafers, slippers and other footwear of soft, pliable materials. The injury log revealed that there had been as many as ten reported foot and toe injuries to dock workers in the five years preceding the inspection.

As a result of the detailed inspection, the Secretary of Labor, on December 23, 1971, cited the petitioner for a non-serious violation of § 5(a)(2) of the Act, because “foot protection was not universally used on the loading and unloading docks where foot hazardous material is frequently handled”.

Ryder was not fined, but was ordered to abate, which imposed no financial burden. Ryder timely employed and exhausted the remedies available, without success, and this petition for review followed. We are persuaded that there is substantial evidence in the record to support the Commission’s conclusion that the Act was violated, 29 U.S.C. § 660(a) and that Ryder’s other contentions lack merit and so deny the petition.

The substantial evidence standard must be applied in any judicial review of decisions of an administrative agency under this Act. 29 U.S.C. § 660(a). The Supreme Court, in Universal Camera Corp. v. Labor Bd., 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), has defined “substantial evidence”, as follows:

“ ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ . . . Accordingly, it ‘must do more than create a suspicion of the existence of the fact to be established . . . ’ ”

The record here reveals that: the work area, necessarily somewhat limited and cramped by the width of the loading docks or platforms, was a place of heavy traffic, with burdened workers, pushcarts and tow motors moving constantly in intricate patterns to and from their respective destinations; the duty of the dock workers was manually to lift, carry, load, unload, pile, deposit and transfer freight, some of which weighed as much as 100 pounds; the workers customarily wore footwear other than protective workshoes; Ryder was aware that many of its dock workers did not wear protective workshoes, but wore whatever their fancies dictated; the medical records of Ryder disclose that there had been at least 10 reported foot and toe injuries to dock workers in the five year period preceding the citation.

The applicable regulation requires protective equipment,

“Wherever it is necessary by reason of hazards of process or envionment . encountered in a manner capable of causing injury or impairment of the function of any part of the body through absorption, inhalation or physical contact.” 29 C.F.R. 1910.132 (a).

The legislative history of the statute reveals that its declared purpose is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. § 651(b). It is noteworthy that the Act does not establish as a sine qua non any specific number of accidents or any injury rate. Hence, Ryder’s reliance on “only 10 injuries in five years” is misplaced. Moreover, the Act specifically encompasses non-serious violations, i. e., violations which do not create a substantial probability of serious physical harm. 29 U.S.C. § 666(g)(j). Avoidance of minor injuries, as well as of major ones, was intended to be within the purview of this liberal Act.

Ryder places great reliance on Hodgson v. Grayson Lumber Company, Inc., OCHRC Docket No. 793, 2 CCH 15,208 (ALJ September 12, 1972), insisting that that factual context is “strikingly similar” to the case sub judice and, though not controlling, ought to be persuasive. We reject this contention for several reasons. In the instant case, manual lifting and moving of freight is the sole job of the dock workers; in Grayson, it was ancillary to the primary function of the workers. The limited quarters were lacking in Grayson. In Grayson, there was no evidence adduced evincing a cognizance on the part of the employer of the absence of proper footwear, and, finally, there had not been one reported foot or toe injury in 20 years.

Ryder also claims that 29 C.F.R. § 1910.132(a) is constitutionally void for vagueness, because it sets up no ascertainable standard of conduct consonant with due process of law. Although the regulation may not be a model of perfect precision, we do not believe that its imprecision renders it constitutionally infirm.

In considering the claimed vagueness of the regulation, we are mindful of two critical factors: first, this regulation involves remedial civil legislation in contradistinction to criminal legislation; secondly, the rights guaranteed by the First Amendment are not remotely related to this case. Hence, we must consider the statute “not only in terms of the statute ‘on its face’ but also in light of the conduct to which it is applied.” United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 600, 9 L.Ed.2d 561 (1963). The regulation appears to have been drafted with as much exactitude as possible in light of the myriad conceivable situations which could arise and which would be capable of causing injury. Moreover, we think inherent in that standard is an external and objective test, namely, whether or not a reasonable person would recognize a hazard of foot injuries to dockmen, in a somewhat confined space, from falling freight and the rapid movement of heavy mechanical and motorized equipment, which would warrant protective footwear. So long as the mandate affords a reasonable warning of the proscribed conduct in light of common understanding and practices, it will pass constitutional muster. United States v. Petrillo, 332 U.S. 1, 4, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). In addition, the Commission when considering the case did apply the “reasonable man” test. Although that standard is one of the most nebulously defined concepts in the law, it has been, and in all probability will remain, one of the rudimentary precepts of our law. We find uneonvincing Ryder’s argument that it did not and could not know what was required by the Act, in light of the history of foot and toe injuries compiled in its logs and the safety shoe program it had initiated m sponte. That was precisely the remedial action ordered by the Commission. It may well be that some hazards are unpreventable, particularly if an employee’s conduct is willfully reckless or so unusual that the employer could not reasonably prevent the existence of the hazard which his behavior creates. See National Realty & Constr. Co. v. Occupational Safety & Health Review Comm’r, 160 U.S.App.D.C. 133, 489 F.2d 1257 (1973). This is not such a case.

Petition denied.

      . Section 5(a)(2) of the Act, 29 U.S.C. 654(a)(2), requires each employer affecting commerce to “comply with occupational safety and health standards promulgated under this chapter.” 29 C.F.R. 1910.132, the relevant safety standard, appears as the first section of a subpart entitled “Personal Protective Equipment”, and provides, in pertinent part,
      “(a) Application. Protective equipment, including personal protective equipment for eyes, face,' head and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards or proesses or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment of the function of any part of the body through absorption, inhalation or physical contact.
      (b) Employee-oumed equipment. Where employees provide their own equipment, the employer shall be responsible to assure its adequacy, including proper maintenance, and sanitation of such equipment.
      (c) Design. All personal protective equipment shall be of safe design and construction for the work to be performed.”
      The Secretary also cited Ryder for four other non-serious violations (App. 1-2, 5). None of these violations is presently before the Court.

      . Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, with reference to the situation and knowledge of the parties under all the attendant circumstances. Parrot v. Wells Fargo & Co., 82 U.S. 524, 15 Wall. 524, 21 L.Ed. 206 (1872).


author: BELL, Circuit Judge:

text:
    Harry Vincent BROWN, Plaintiff-Appellee-Cross Appellant, v. ITT RAYONIER, INC., Defendant Appellant-Cross Appellee.
    No. 73-2862.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      Walter C. Hartridge, Edwin D. Robb, Jr., Savannah, Ga., for defendant-appellant.
    Arthur C. Farrar, Douglas, Ga., Arthur Roth, Miami, Fla., Curtis Farrar, Douglas, Ga., for plaintiff-appellee.
    Before ALDRICH, Senior Circuit Judge , and BELL and GEE, Circuit Judges.

       Senior United Státes Circuit Judge of the First Circuit, sitting by designation.

   BELL, Circuit Judge:

From an $80,000 judgment, entered upon the court’s findings that plaintiffappellee was a Jones Act seaman at the time of his injury, and that he was injured by virtue of both his employer’s negligence and the unseaworthiness of the employer’s vessel, the employer appeals. The only issues raised by appellant-employer are whether appellee was a crew member of a vessel, and thus a seaman for the purposes of the Jones Act, and whether he was entitled to the warranty of seaworthiness. A cross-appeal challenges the sufficiency of the evidence to support the court’s finding of appellee’s contributory negligence, and a consequent 20 per cent reduction in the award. We affirm, although not as to all grounds advanced by the district court.

Appellee Brown was a college student who worked for appellant during vacations. At the time of his injury he was employed for several weeks at Christmas. His primary duties were to take samples of wood pulp within the plant and to conduct certain tests. On one occasion he was assigned to accompany another employee, Lott, on a three and one-half hour, 45-mile trip on the Altamaha River, in a 17-foot outboard motorboat. The purpose was to collect water samples in accordance with the plant’s effluent control program. Lott, who had made the trip seven or eight times over a period of four months, operated the boat while appellee took samples at designated points, added appropriate reagents, and stored them for subsequent laboratory testing. In addition to operating the boat, Lott was responsible for supervising appellee’s sampling procedures.

While travelling at 30 miles per hour or better, the boat struck a stump on the river bank. The evidence suggests that Lott was distracted by a friend on the bank, to whom both he and appellee had waved, or by appellee’s questions concerning testing procedures, or by both. Appellee sustained broken bones, a concussion resulting in permanent double vision, and burns on his legs caused by the chemicals he was adding to the water samples.

The Altamaha trip was made once every week. No particular employees were assigned permanently to the trip, although normally the operator would be one of the plant’s three environmental control technicians, and the sampler would be one of its two pulp testers. Company records indicate that appellee had made the trip on two occasions during preceding vacations. In any case, well under one per cent of his total time as an employee had been spent on the water and in the boat.

I.

As posed by the parties, the first issue before us is whether appellee was a “seaman” as the term is used in the Jones Act, 46 U.S.C.A. § 688. More accurately, the issue is whether appellee was a member of a vessel’s crew within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.A. § 901 et seq. The LHWCA is important by virtue of its exclusivity provision, 33 U.S.C.A. § 905 (1970). That section provides that the LHWCA is a covered employee’s exclusive remedy against his employer, and LHWCA employees therefore may not recover from their employer for Jones Act negligence. However the term “employee”, as used in the LHWCA, does not include a “master or member of a crew of any vessel . . . . ” 33 U.S.C.A. § 902(3) (1970). Since the Jones Act term “seaman” was originally construed so broadly as to include all maritime workers, International Stevedoring Co. v. Haverty, 1926, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157, the LHWCA in effect amended the Jones Act such that the term became synonymous with the LHWCA term “member of a crew”. See Swanson v. Marra Bros., 1946, 328 U.S. 1, 7, 66 S.Ct. 869, 872, 90 L.Ed. 1045, 1049; Noble Drilling Corp. v. Smith, 5 Cir., 1969, 412 F.2d 952, 954-956. Thus if appellee was a crew member of the motorboat he may proceed against his employer under the Jones Act and the judgment of the court below is due to be affirmed.

As will become apparent in the course of this opinion, the issue at hand has much troubled this circuit and other courts. Neither “seaman” in the Jones Act, nor “member of a crew” in the LHWCA is defined by those statutes, and judicial efforts to fashion a definition have not produced a bright clear line of demarcation. Indeed, the myriad circumstances in which men go upon the water confront courts not with discrete classes of maritime employees, but rather with a spectrum ranging from the blue-water seaman to the land-based longshoreman. Nonetheless, the statute commands that a line be drawn. Further, its location can have enormous importance to individual workers — -the Jones Act is exceedingly favorable when an injury may have been caused by an employer’s negligence, but the LHWCA is the only route to significant recovery in many other circumstances.

The legislature of course is not precluded from dividing spectra into discrete classes, even if the result is that small distinctions make such great differences that the line appears arbitrary. See Village of Belle Terre v. Boraas, 1974, - U.S. -, -, 94 S.Ct. 1536-1540, 39 L.Ed.2d 797, 804, n. 5, quoting from Louisville Gas Co. v. Coleman, 1928, 277 U.S. 32, 41, 48 S.Ct. 423, 426, 72 L.Ed. 770, 775 (Mr. Justice Holmes dissenting). However, when the legislative line is, as here, commanded but not defined, it must be developed case-by-case. This methodology inevitably accents the importance of the line’s location in particular instances, and also invokes the judicial responsibility to reach principled results. Not surprisingly, the effect has been that no single, easily-administered distinction has developed. Such is the framework in which we must consider this case.

II

The basic test used in this circuit for determining crew member status is that stated in Offshore Co. v. Robison, 5 Cir., 1959, 266 F.2d 769, at 779:

“there is an evidentiary basis for a Jones Act case to go to the jury: (1) if there is evidence that the injured workman was assigned permanently to a vessel (including special purpose structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on the vessel; and (2) if the capacity in which he was employed or the duties which he performed contributed to the function of the vessel or to the accomplishment of its mission, or to the operation or welfare of the vessel in terms of its maintenance during its movement or during anchorage for its future trips.”

See Dugas v. Pelican Construction Co., 5 Cir., 1973, 481 F.2d 773; Ross v. Mobil Oil Corp., 5 Cir., 1973, 474 F.2d 989; Keener v. Transworld Drilling Co., 5 Cir., 1972, 468 F.2d 729; Labit v. Carey Salt Co., 5 Cir., 1970, 421 F.2d 1333; Thomas v. Peterson Marine Service, Inc., 5 Cir., 1969, 411 F.2d 592; Rotolo v. Halliburton Co., 5 Cir., 1963, 317 F.2d 9; Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523

Appellant relies on this test and appellee’s lack of permanent connection with the motorboat. While the “test” is more frequently an analytical starting point than a self-executing formula, we agree that in this case the connection does not have the permanency that it requires. See, e. g., Dugas v. Pelican Construction Co., supra; Cox v. Otis Engineering Co., 5 Cir., 1973, 474 F.2d 613; Ross v. Mobil Oil Corp., supra; Labit v. Carey Salt Co., supra; Thomas v. Peterson Marine Service, Inc., supra; Rotolo v. Halliburton Co., supra.

Nonetheless, we have some hesitancy about denying appellee seaman’s status on the basis of a wooden application of the permanency criterion. This is because the test has been developed and applied in circumstances somewhat different from those before us. McKie, Robison, and their progeny, to the extent they denied seaman’s status, generally concerned land-based workers providing land-based services to docked vessels. For example, Ross v. Mobil Oil Corp., supra, denied seaman’s status to a shore-based welder aboard a vessel to facilitate loading by cutting header supports. Thibodeaux v. McDermott & Co., 5 Cir., 1960, 276 F.2d 42, reached the same result on similar facts. See also Rotolo v. Halliburton Co., supra (shore-based repairman temporarily aboard docked vessel); Labit v. Carey Salt Co., supra (conveyor belt operator who occasionally positioned barges for loading); Thomas v. Peterson Marine Service, Inc., supra (worker removing excess coconut oil from ship’s hold).

In the present case we confront a somewhat different situation, one in which the injured worker was aboard the vessel while it was in transit, and in which he was aboard strictly for the purpose of aiding in its navigation. Albeit his duties aboard would be brief, and his principal duties with his employer were on shore, he was at the time of his injury performing tasks that could only be performed while the vessel was under weigh and which, unlike services performed by shore-based workers upon docked vessels, were directly a part of the vessel’s navigational mission. That this distinction has substance becomes obvious when we hypothesize one who is employed for the sole purpose of performing seaman’s duties for a single short voyage. The temporary nature of the employment would surely not affect the employee’s seaman’s status during his period of service aboard the ship.

In this regard, we think it significant that while Keener v. Transworld Drilling Co., supra, held that temporary work as a seaman was insufficient to establish seaman’s status for an injury occurring off the vessel, the case specifically left open the possibility that during performance of the temporary assignment the worker was a Jones Act seaman. Id. at 731. Similarly, in Long Island R. Co. v. Lowe, 2 Cir., 1944, 145 F.2d 516, the court rested its decision on an employee’s duties on the day of his accident, even though his seaman-like assignment that day was not permanent. In short, we think that something other than the mere fact of a temporary relationship is involved in most cases which profess to deny seaman’s status because of an absence of a permanent connection with the vessel.

Nonetheless, we conclude that the Robison-McKie test is properly applied here to deny status as a crewman. In part we base our conclusion on Dugas v. Pelican Construction Co., supra, and Cox v. Otis Engineering Co., supra. While these opinions do not address themselves to the issue raised before us, they do deny crew member status to drill barge employees who apparently performed work directly involved in the drilling mission. In each instance, the basis of the decision was the temporary, albeit operational, relationship with the vessel.

Further, while this is not an LHWCA case, and we are not required to determine whether appellee is entitled to an LHWCA award, we recognize that our decision on appellee’s Jones Act claim contributes to the continuing process of defining the boundary between Jones Act and LHWCA coverage. See p. 236 supra. We think that this consideration militates against appellee’s Jones Act recovery. In the first place, to the extent we must class appellee as either a seaman or a harbor worker, we think him much more akin to workers who clearly fall in the latter category. After all, it is merely incidental to appellee’s shore-based employment that he has gone upon the water. As we view it, he is the “casual worker on the water” who, under South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 260, 60 S.Ct. 544, 84 L.Ed. 732, 738, is more appropriately classed with shore-based workers than with seamen. Indeed, we think that as one who possibly could have been denied his state compensation protection for having strayed upon navigable waters, appellee is the type of land-based worker which Congress had in mind when enacting the LHWCA.

Second, were we to treat appellee as a crewman during his three and one-half hour trip on the water, we would produce the irrational result that he was protected by workmen’s compensation principles throughout his employment, save for a brief period one afternoon when he was subject to the entirely different principles of the Jones Act. We do not think that such differences in the character and circumstances of employee protection should be governed by something as unimportant as an employee’s precise location and duties at a given moment in the course of a single, integrated working day under one employer.

III.

There remains for decision the question whether the maritime character of his work entitled appellee to the warranty of a seaworthy vessel. We emphasize at the outset that this is an issue which could not arise had this accident taken place after the effective date of the 1972 LHWCA amendments. However, these events occurred at a time when the law clearly provided that certain persons could recover for the unseaworthiness of vessels on which they served even if they were covered by the LHWCA. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Further, prior to the 1972 Amendments an employee could recover for a breach of the warranty of seaworthiness by a vessel owned by his employer, despite the LHWCA’s exclusivity provision. Jackson v. Lykes Bros. S.S. Co., 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488; Reed v. Steamship Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448. We are thus confronted with the possibility that while appellee is not a Jones Act seaman, he may nonetheless qualify for relief under the general maritime law. Well aware that such a holding produces exactly the irrational disparities which we sought to avoid in deciding the Jones Act issue, see p. 239 supra, we are constrained by the authorities applicable to this preamendments case to rule that in fact appellee is entitled to his unseaworthiness judgment.

In reaching this conclusion, we have of course not focused on the Jones Act question of whether Brown was a crew member within the LHWCA. Rather, we have focused on whether he was performing either a seaman’s job or one formerly performed by seamen. See Seas Shipping Co. v. Sieracki, supra at 96-97, 66 S.Ct. at 878-879, 90 L.Ed. at 1107; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 412-413, 74 S.Ct. 202, 206-207, 98 L.Ed. 143, 152-153. In this regard,"' we are persuaded by the facts that appellee was aboard a vessel which was actually under weigh in navigable waters in the course of performing its mission, and that his duties were directly involved in the mission. See Dugas v. Pelican Construction Co., supra at 778 (extending the warranty of seaworthiness to a roustabout who, although temporarily aboard a drill barge, was engaged in the drilling process). Further, we are aware of the Supreme Court’s statement in Jackson v. Lykes Bros. S.S. Co., supra, 386 U.S. at 734, 87 S.Ct. at 1422, 18 L.Ed.2d at 491, n. 4, that, “Subsequent decisions in line with the general concepts put forth by this Court have read Sieracki expansively, and a wide range of maritime employees have been granted the benefits of the seaworthiness doctrine.”

IV.

Appellee has challenged the sufficiency of the evidence relied upon by the district court to find that his negligence contributed 20 per cent towards causing the accident. While the issue is close, we conclude that the trial court’s finding is adequately supported by evidence that appellee participated with Lott in waving to a friend on the bank, thereby possibly distracting Lott from his operator’s duties, and by evidence that he made inquiries of Lott without regard to whether Lott could safely respond at that particular time.

The judgment of the court below is

Affirmed.

      . However, prior to 1972, the LHWCA exclusivity clause did not, under Supreme Court decisions, preclude employer liability to certain covered workers for injuries resulting from the unseaworthiness of an employer’s vessel. See below at p. 239.

      . This statement of the law is an elaboration and refinement of the test stated earlier in McKie v. Diamond Marine Co., 5 Cir., 1953, 204 F.2d 132, at 136:
      “that the ship be in navigation; that there be a more or less permanent connection with the ship; and that the worker be aboard primarily to aid in navigation.”
      The McKie formulation is restated in Cox v. Otis Engineering Co., 5 Cir., 1973, 474 F.2d 613; Barrios v. Louisiana Construction Materials Co., 5 Cir., 1972, 465 F.2d 1157; Williams v. Avondale Shipyards, Inc., 5 Cir., 1971, 452 F.2d 955; and Bodden v. Coordinated Caribbean Transport, Inc., 5 Cir., 1966, 369 F.2d 273.

      . Exceptions are Dugas v. Pelican Construction Co., supra and Cox v. Otis Engineering Co., supra, discussed below at page 238 n. 6.

      . As made dear in the Robison test, an employee is aiding in a vessel’s navigation even if his duties relate to its mission rather than its actual operation. Noble Drilling Corp. v. Smith, supra at 956.

      . Cox concerned a wireline operator assigned to a vessel for two days; Dugas concerned a roustabout engaged in transferring drill pipe from the barge’s pipe racks to the drill platform.

      . It is precisely this observation which underlies the decision in Wheeler Shipyard v. Lowe, E.D.N.Y., 1935, 13 F.Supp. 863, aff’d, 2 Cir., 1936, 82 F.2d 1022, a case factually very similar to the one before us. There the courts affirmed the finding of a deputy commissioner that the deceased was not a crewman and could thus recover under the LHWCA.

      . In Southern P. Co. v. Jensen, 1917, 244 U. S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, the Court ruled that state compensation programs could not reach local workers injured on navigable waters. There followed two attempts to delegate authority to the states to provide compensation for such injuries. These efforts were struck down as unconstitutional in Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834, and Washington v. Dawson & Co. 1924, 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646. Congress then enacted the LHWCA, providing a federal compensation remedy. For Supreme Court reviews of this legislative history, see Calbeck v. Travelers Ins. Co., 1962, 370 U.S. 114, 82 S.Ct. 1196, 8 L.Ed.2d 368, and Nogueira v. New York, N. H. & H. R. Co., 1930, 281 U.S. 128, 50 S.Ct. 303, 74 L.Ed. 754.

      . Since appellant has not challenged the lower court’s findings that the vessel was unseaworthy (by virtue of being inadequately manned and having a poorly-trained operator), and that appellee’s injuries were proximately caused thereby, we need not consider these basic requirements for appellee’s judgment.

      . Section 18 of the 1972 amendments, codified at 33 U.S.C.A. § 905(b) (1974 Supp.), eliminated, for covered workers, shipowner liability under the warranty of seaworthiness (restricting such liability to that for shipowner negligence), and strengthened the exclusivity provision by protecting employers against indemnity liability to shipowners. Cf. Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.


author: CLARK, Circuit Judge:

text:
    Sharon WILLITS, Plaintiff-Appellant, v. W. L. RICHARDSON and A. J. O’Donnell, Defendants-Appellees.
    No. 73-3163.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      George D. Gold, Miami, Fla., for plaintiff-appellant.
    Mervyn L. Ames, Asst. U.' S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Crombie J. D. Garrett, Ann Belanger, Attys., Tax Division, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.
   CLARK, Circuit Judge:

Sharon Willits sought injunctive relief from a jeopardy seizure of virtually all of her property by the Internal Revenue Service (IRS) pursuant to a quick termination proceeding under 26 U.S.C. § 6851. At the conclusion of an evidentiary hearing on her motion for a preliminary injunction, the district court found the cause to be barred by 26 U.S.C. § 7421(a), which prohibits judicial restraint of tax assessment or collections. The trial court erred procedurally in dismissing the action at this preliminary stage. It also erred substantively in determining the proof adduced failed to show that the seizure procedures utilized by'the IRS, although in the guise of a tax, were intended to harass and punish Mrs. Willits for her association with a suspected dealer in narcotics; and in holding that she had failed to show a basis for equitable relief. We reverse.

The following were the facts as found by the district court:

[0]n May 24, 1973, Officers Mosher and Ahearn of the City of Miami Police Department, while driving in an unmarked vehicle, began pursuing the plaintiff, Sharon Willits, who was driving a 1972 Cadillac in the vicinity of the 79th Street Causeway in Miami. Upon becoming aware that she was being followed by an unmarked car, the plaintiff pulled over to the side of the street momentarily and the unmarked car pulled in behind her. No one emerged from the unmarked car and the plaintiff pulled away from the side of the curb and the unmarked car containing officers Ahearn and Mosh-er continued following the plaintiff. The plaintiff then pulled over a second time when the unmarked car pulled up beside her and she noticed police badges being waived at her by the occupants of the unmarked car. Officer Ahearn then emerged from the unmarked car and approached the plaintiff. Officer Ahearn was not in uniform and was dressed in very casual clothes. He had a full beard and long frizzled hair which was tied in a ponytail in back. Officer Mosher also emerged from the car and was dressed in a manner similar to that of Officer Ahearn.
Upon identifying himself as a police officer, Officer Ahearn asked the plaintiff for identification, including her driver’s license. Officer Ahearn asked the plaintiff if the address shown on the license was correct and the plaintiff responded that she could not or would not disclose her correct residential address. The address appearing on the driver’s license appeared to be in Broward County and the plaintiff was arrested in Dade County. Registration of the automobile which the plaintiff was driving showed that the car was registered in the name of an individual other than the plaintiff and the plaintiff explained that she was using the ear with his permission. A check was made on the registration through the police radio and the officers found that the address on the registration did not exist. It was later found that there had been a typographical error in making out the registration and the car was released to the registered owner.
Approximately six weeks prior to May 24, 1973, Officer Ahearn had stopped a vehicle containing the plaintiff and a Mr. Rick Cravero. The plaintiff was also driving that vehicle when it was stopped and her license was checked by Officer Ahearn. Mr. Cravero had been under surveillance by the City of Miami Police Department for approximately five months in that he was suspected of dealing in narcotics. Neither the plaintiff nor Mr. Cravero were arrested by Officer Ahearn on that occasion. Inasmuch as the plaintiff was unable to give Officer Ahearn a specific address for her residence, she was arrested for speeding and was taken by Officers Ahearn and Mosher to the police station some seventy blocks distant. The time of this arrest*was approximately 7:30 p. m. on May 24, 1973. The plaintiff was not taken to the traffic section of the police department but was taken to the narcotics section. Officers Ahearn and Mosher were not assigned to traffic detail but were assigned at the time of this arrest to the narcotics section and took the plaintiff to their office. Upon arriving at their office, the plaintiff was requested to open her purse and at that time a pistol was observed. The plaintiff did not display a permit for carrying this weapon and she was thereafter placed under arrest by Officer Ahearn for carrying a concealed weapon and was advised of her constitutional rights at this time. A more thorough search was then made of her purse and certain tablets were discovered. These tablets were not placed in evidence although there was testimony from one witness that the tablets were subjected to chemical analysis and were found to be barbiturates. Plaintiff claimed at the time that these barbiturates had been purchased pursuant to a prescription she had received from a doctor. No additional evidence on that point was submitted by plaintiff. The search of plaintiff’s purse also revealed an envelope containing some slips of paper and approximately $4,400.00 in cash and a gold coin and another small piece of jewelry. Plaintiff was wearing some diamond rings and these were also surrendered to the police by the plaintiff at the request of the police. The plaintiff was then taken to another section of the police station and was charged with possession of narcotic drugs, unlawfully carrying a concealed weapon and speeding. She was released later that night on $2,000.00 bond which was posted by a friend.
On the morning of May 25, 1973, Officer Ahearn advised Mr. John Zahurak of the United States Internal Revenue Service that Mrs. Willits had been arrested and advised him of the charge of possession of narcotics placed against her. Mr. Zahurak on that day went over to the City of Miami Police Department and viewed the police report prepared on the arrest of the plaintiff and the description of the materials taken from her purse. Mr. Zahurak was also advised by representatives of the City of Miami Police Department that the plaintiff was an associate of several persons who were suspected of dealing in narcotics. Mr. Zahurak was advised by Officer Ahearn that the sum of $4,400.00 had been taken from Mrs. Willits’ purse and that the sum was in a white envelope which contained a slip of paper with some names and figures on it. He further advised Mr. Zahurak that Mrs. Willits had told him that she was not employed. Mr. Zahurak testified that he then checked to seek whether Mrs. Willits had filed an income tax return for the years 1969, 1970, 1971 and 1972, and the information he received was that no return had been filed by Mrs. Willits for those years. Although the police report indicated that only a few pills contained in two vials had been found in Mrs. Willits’ purse, Mr. Zahurak computed that Mrs. Willits had earned commission income of $60,000.00 on sales of $240,000.00 worth of cocaine during 1973 and recommended to his superiors that Mrs. Willits’ taxable period for the period from January 1, 1973, through May 23, 1973, be terminated and that a tax be demanded and if necessary assessed against Mrs. Willits for that period in the amount of $25,549.00. Also on May 25, 1973, Officer Zahurak caused an administrative summons to be issued to the City of Miami Police Department for the property which had been taken from Mrs. Willits’ purse and person.
On May 25, 1973, at approximately 3:20 p. m., a notice was sent to Mrs. Willits by certified mail from the District Director of Internal Revenue Service in Jacksonville, Florida, advising her that her taxable period from January 1, 1973 through May 23, 1973, had been terminated and that there was a tax due and payable from her for that period of $25,549.00. Mrs. Willits was further advised in that letter that any unpaid portion of the tax would be assessed against her and that administrative or judicial action to collect the assessment would be taken immediately. On May 25, 1973, an assessment in the amount of $25,549.00 for Federal income taxes for the terminated period was made against Mrs. Willits. On May 30, 1973, Revenue Officer Vincent Bernola served a notice of levy and a notice of seizure upon the City of Miami Police Department seeking the property of the plaintiff, Sharon Willits, in their possession.
The plaintiff, Sharon Willits, was divorced from her husband, Kenneth E. Willits, in June 1972. Pursuant to the terms of that divorce, Sharon Willits received $67.50 alimony per week and child support .for her two children of $67.50 per week. The plaintiff received the alimony for five months and thereafter received a settlement of $400.00 and no further alimony. The child support has continued. Pursuant to the divorce, plaintiff also received the residence in which she had lived while married which was sold in the Spring of 1973 for $2,000.-00 cash with the purchaser assuming the mortgage. Plaintiff had no other funds or substantial property at the time of her divorce. During 1973 and for an unspecified period in 1972 the plaintiff has been supported either by .Mr. Rick Cravero or by winnings from gambling and all money and property which she has received during that period derived from one of these two sources — she testified that the jewelry and money in suit were provided by Cravero. No evidence was introduced which would tend to show that she will not continue to be supported by Mr. Cravero.

Based upon these fact findings, the district court concluded that without regard to the legality of Mrs. Willits’ arrest or the legality of the initial police search and seizure of her property, she had failed to show that under the most liberal view of the law and facts the government could not ultimately prevail on its claim. The court further concluded that Mrs. Willits failed to establish that the immediate recovery of her property was necessary to prevent irreparable injury because she did not negate that Mr. Cravero would support her in the future. In addition, the court determined that Mrs. Willits had an adequate remedy at law consisting of the right to file a return for the calendar year of 1973 and seek a refund in the district court or a redetermination of her tax liability in the Tax Court. Since these conclusions established that Mrs. Willits’ action was barred by the tax anti-injunction statute, Section 7421(a), under the tests laid down in Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the court dismissed the complaint.

PROCEDURE

At the hearing on the preliminary injunction the district court inquired of counsel for both parties if it could be stipulated that the hearing then held could be converted into a final hearing on the issues at controversy in the litigation. Counsel for plaintiff declined to so stipulate, stating to the court that a witness whose testimony was considered essential to his case was unavailable at that time. There was no showing or suggestion that this witness would not in fact give testimony that was material to Mrs. Willits’ case. Thus, no issue as to the prejudice to plaintiff’s case remains. Cf. Eli Lilly & Co. v. Generix Drug Sales, Inc., 460 F.2d 1096 (5th Cir. 1972); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651 (5th Cir. 1971). The court entered no order of consolidation under Fed.R.Civ.P. 65(a)(2). See C. Wright & A. Miller, Federal Practice and Procedure, § 2950, at 486-88. Construing the evidence adduced in the court below most favorably to the plaintiff, as we must on reviewing a dismissal at a preliminary stage such as this, we cannot find the dismissal authorized.

SUBSTANCE

Indeed, the evidence adduced established such a gossamer basis for the drastic actions of the Internal Revenue Service that they cannot be sustained. The proof showed that the taxes assessed were based solely upon income which was attributed to Mrs. Willits as a commission to her from the sale of six kilos of illicitly imported cocaine. Agent Zahurak testified without dispute that the sole source for connecting Mrs. Willits at all with income from the importation or sale of any cocaine was Police Officer Ahearn. Yet, he further so testified that Ahearn did not tell him that Mrs. Willits had ever dealt with the speculative six kilos or more or less cocaine or with the sale or distribution of any other narcotic. No basis in fact nor foundation for any reasonable assumption was demonstrated in this record that Mrs. Willits was connected with the smuggling or sale of this or any other amount of cocaine or narcotics. Agent Zahurak testified that the IRS computed the amount of Mrs. Willits’ commission by supposing that she received a commission of at least 25% of an assumed sales price of 40,000 dollars per kilo for the putative six kilos of cocaine. This commission was arbitrarily selected by Agent Zahurak as a “conservative figure” of what Mrs. Willits would collect if she had participated in such a cocaine sale based upon a notation on the back of a scrap of paper that Officer Ahearn found in her purse. The notation reads:

Ceon - 3000

Ron 1500

Sit - 2000

P 500

C 400

ME 5900

The revenue agent presumed this record showed a list of persons with dollar amounts after their names and added to this supposition the further speculation that the notation related to the division of income from a typical drug sale. He furthermore assumed that “ME” referred to Mrs. Willits and, pyramiding all these guesses, concluded that her commission on the theoretical transaction would have amounted to 44%.

Agent Zahurak testified that he was assigned to the Narcotics Project Division of the Internal Revenue Service — a division he described as working exclusively with cases involving persons dealing in or using narcotics. While the overall purposes and procedures of the IRS’s Narcotics Project were not spelled out in this record, it is transparently obvious that the action taken as to Mrs. Willits does not represent an isolated instance wherein police information was utilized by the Internal Revenue Service to protect the public fisc. Rather, this record clearly establishes that a seizure pursuant to the quick termination provisions of Section 6851 — a procedure which according to the contention of the IRS has the harshest possible notice and correction consequences for the purported taxpayer — was instantly clamped upon every meaningful asset of Mrs. Willits, based upon scanty and largely inaccurate information which, at best, amounted to nothing more than a vague suspicion that she must have come by her jewelry and cash by improper means since she admitted that she gambled for a living and was being kept by a man who police believed was dealing in narcotics.

This court’s recent en banc decision in Lucia v. United States, 474 F.2d 565, 573 (5 Cir. 1973), provides a succinct standard for appellate determination of the Enochs issue in the case at bar:

Following Pizzarello v. United States, 408 F.2d 579 (2d Cir. 1969), this Court holds that a taxpayer under a jeopardy assessment is entitled to an injunction against collection of the tax if the Internal Revenue Service’s assessment is entirely excessive, arbitrary, capricious, and without factual foundation, and equity jurisdiction otherwise exists.

The proof made on the preliminary injunction established that the sole basis for the seizure of Mrs. Willits’ property was the altogether fictitious assessment which Agent Zahurak implemented on the basis of Officer Ahearn’s speculations. Furthermore, Mrs. Willits alleged, and the proof she adduced tended to show, that the seizure was sufficiently extensive to deny her all means of supporting herself and her children. The district court’s assumption that Mr. Cravero, who owed her no legal duty of support whatsoever, would continue voluntarily to furnish the necessities of life to Mrs. Willits cannot mitigate the financial ruin inflicted upon her by this seizure.

If the IRS is correct in its contention that no notice of deficiency is required in a Section 6851 termination procedure, the best formalisms of a refund suit or a petition for redetermination would take many months to process. The more probable prospect is that, regardless of the lack of merit in the original assessment, more than a year could be consumed before her property was freed. For one in Mrs. Willits’ circumstances, this does not constitute an adequate remedy at law for such an extensive seizure.

The IRS has been given broad power to take possession of the property of citizens by summary means that ignore many basic tenets of pre-seizure due process in order to prevent the loss of tax revenues. Courts cannot allow these expedients to be turned on citizens suspected of wrongdoing — not as tax collection devices but as summary punishment to. supplement or complement regular criminal procedures. The fact that they are cloaked in the garb of a tax collection and applied only by the Narcotics Project to those believed to be engaged in or associated with the narcotics trade must not bootstrap judicial approval of such use.

The plaintiff has urged us to hold that the illegality of Mrs. Willits’ arrest vitiated the subsequent tax proceedings against her; and further that quick termination proceedings under Section 6851 necessitate a deficiency notice in accordance with Section 6212(a). We expressly decline to reach either of these contentions.

We reverse the district court’s action in dismissing this cause and remand for further proceedings. Ordinarily, the prerogative to weigh nice distinctions as to whether injunctive relief should be granted belongs to the district court, see Sargent v. Genesco, Inc., 492 F.2d 750, 770 (5th Cir. 1974); however, if neither party should offer additional proof in the court below, plaintiff is clearly entitled to injunctive relief upon the record made.

Reversed and remanded.

      . In pertinent part, this section provides :
      (a) Income Tax in Jeopardy.—
      (1) In general. — If the Secretary or his delegate finds that a taxpayer designs quickly to depart from the United States or to remove his property therefrom, or to conceal himself or his property therein, or to do any other act tending to prejudice or to render wholly or partly ineffectual proceedings to collect the income tax for the current or the preceding taxable year unless such proceedings be brought without delay, the Secretary or his delegate shall declare the taxable period for such taxpayer immediately terminated, and shall cause notice of such finding and declaration to be given the taxpayer, together with a demand for immediate payment of the tax for the taxable period so declared terminated and of the tax for the preceding taxable year or so much of such tax as is unpaid, whether or not the time otherwise allowed by law for filing return and paying the tax has expired; and such taxes shall thereupon become immediately due and payable. In any proceeding in court brought to enforce payment of taxes made due and payable by virtue of the provisions of this section, the finding of the Secretary or his delegate, made as herein provided, whether made after notice to the taxpayer or not, shall be for all purposes presumptive evidence of jeopardy. * * *
      (b) Reopening of Taxable Period.— * * * A taxable period so terminated by the Secretary or his delegate may be reopened by the taxpayer (other than a nonresident alien) if he files with the Secretary or his delegate a true and accurate return of the items of gross income and of the deductions and credits allowed under this title for such taxable period, together with such other information as the Secretary or his delegate may by regulations prescribe.

      . Tax. — Except as provided in sections 6212 (a) and (c), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.

      . Zahurak was initially advised that Mrs. Willits had 2 grams of heroin and 2 grams of cocaine in her possession at the time she was arrested. Though the proof on the preliminary injunction hearing was not free from some minor contradictions, it did show that this information was totally erroneous and that at the time of her arrest and the seizure of her property, the only drugs possessed by Mrs. Willits were 4 tablets her testimony established to be medication (Desbutal) which had been prescribed for her by a doctor whose name she gave. As the district court found, the police laboratory determined these pills to be barbiturates,

      . This is an issue which is the subject of extensive litigation with thus far varying results in the several circuits that have addressed, the problem.
      The Second and Seventh Circuits have held that an assessment made under Section 6851 and Section 6201 is not a “deficiency” within the purview of Section 6211 for which Section 6212(a) mandates that notice issue. See Laing v. United States, 496 F.2d 853 (2d Cir. 1974), aff’g 364 F.Supp. 469 (D.Vt.1973), petition for cert. filed, 42 U.S.L.W. 3679 (U.S. May 31, 1974) (No. 73-1808); Chapman v. IRS, 487 F.2d 1393 (2d Cir. 1973) (decision without opinion), aff’g 32 Am.Fed.Tax R.2d 5027 (S.D.N.Y.); Irving v. Gray, 479 F.2d 20 (2d Cir. 1973) ; Williamson v. United States, 31 Am.Fed. Tax R.2d 800 (7th Cir. 1971). Concluding that a tax declared under Section 6851 is a deficiency within the ambit of Sections 6211 and 6861, the Sixth Circuit recently reached the contrary result. Rambo v. United States, 492 F.2d 1060 (6th Cir. 1974); Hall v. United States, 493 F.2d 1211 (6th Cir. 1974). This issue may have been involved, sub silentio, in Lewis v. Sandler, 498 F.2d 395 (4th Cir. 1974). Currently, a number of appeals raising the question are pending in this court as well as in the Third, Fourth and Ninth Circuits. See Boyd v. United States, (E.D.Pa.1974) (notice of deficiency not required), appeal docketed, No. 74-1565, 3d Cir., June 10, 1974; Schreck v. United States, 301 F.Supp. 1265 (D.Md.1969) (notice of deficiency required), reaff’d on recon., 375 F.Supp. 742 (D.Md.1973) [33 Am.Fed.Tax R.2d 749 Dec. 19, 1973], appeal docketed, No. 74-1566, 4th Cir., May 16, 1974; Clark v. Campbell, 341 F.Supp. 171 (N.D.Tex. 1972) (deficiency notice required), appeal docketed, No. 73-2147, 5th Cir., argued Dec. 4, 1973; Aguilar v. United States, 359 F.Supp. 269 (S.D.Tex.1973), appeal docketed, No. 73-2454, 5th Cir., argued Dec. 4, 1973; Rodger v. United States, (S.D.Fla.1974) (deficiency notice not required) [#73-705—CIV—CA Jan. 29, 1974], appeal docketed. No. 74-1723, 5th Cir., Mar. 18, 1974; Rogers v. O’Donnell, (M.D.Fla.1974) (deficiency notice required) [#72-246-ORL-CIV Mar. 5, 1974], appeal docketed, No. 74-1731, 5th Cir., Apr. 18, 1974; Lisner v. McCanless, 356 F.Supp. 398 (D.Ariz.1973) (deficiency notice required), appeal docketed, Nos. 73-2037 & 73-2038, 9th Cir., June 8, 1973; Woods v. McKeever, (D.Ariz.1973) (deficiency notice required) [32 Am.Fed.Tax R. 2d 5967 Oct. 16, 1973], appeal docketed, No. 74-1133, 9th Cir., Jan. 25, 1974; Williams v. United States, 373 F.Supp. 71 (D.Nev.1973) (deficiency notice required) [33 Am.Fed.Tax R.2d 467 Nov. 16, 1973], appeal docketed, No. 74-1192, 9th Cir., Feb. 4, 1974; Avery v. Sparley, (E.D.Wash.1973) (deficiency notice required) [Civ. #3860 Nov. 16, 1973], appeal docketed, No. 74-1625, 9th Cir., Apr. 10, 1974; Shaw v. McKeever, (D.Ariz.1974) (deficiency notice required) [33 Am.Fed.Tax R.2d 1213 Mar. 22, 1974], appeal docketed, No. 74-2416, 9th Cir. [notice of appeal filed May 17, 1974]; see also Musso v. Commissioner, 32 CCH Tax Ct.Mem. 849 (1973) (Section 6212 notice of deficiency prerequisite to Tax Court jurisdiction to redetermine taxes assessed after Section 6851 termination), appeal docketed, No. 73-3916, 5th Cir., Dec. 12, 1973.


author: TUTTLE, Circuit Judge:

text:
    SEMINOLE ASPHALT REFINING, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 73-3676.
    United States Court of Appeals, Fifth Circuit.
    July 18, 1974.

      Warner S. Currie, Walter O. Lambeth, Jr., Victor A. Cavanaugh, Atlanta, Ga., for petitioner.
    Elliott Moore, Deputy Associate Gen. Counsel, Peter Carre, Atty., N.L.R.B., Washington, D. C., Harold A. Boire, Director, Region 12, N.L.R.B., Tampa, Fla., for respondent.
    George C. Longshore, Birmingham, Ala., for intervenor United Steelworkers.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   TUTTLE, Circuit Judge:

In this appeal, Seminole Asphalt Refining, Inc. (the Company) petitions for review of the Board’s decision finding a violation of sections 8(a)(1) and (3), 29 U.S.C.A. §§ 158(a)(1) and (3), unfair labor practices, and ordering the Company to reinstate injured employees with back pay. The Board has filed a cross-petition for enforcement. We grant enforcement in part.

The Company operates a small independent refinery for the production and sale of asphalt, asphalt roofing materials, jet fuels, jet oil, and emulsion, with a total staff of fifty-four employees. The present controversy arises out of an effort by the United Steelworkers of America (the Union) during late January, early February, 1972, to organize the Company’s employees.

The Board in its conclusions adopted the major portion of the administrative law judge’s findings. The Company was found to have violated section 8(a)(1) when its supervisory personnel, on learning of the organizing effort, coerced employees through interrogation, threats, and the creation of the impression of surveillance in order to deter Union organizing. The Company does not challenge this finding.

A section 8(a)(3) and further (a)(1) violation arose when the Company laid off three employees who were the most ardent in organizing and supporting the Union. The other pro-Union employees then went on strike to protest their discharge. The Board found that since the discharges were unlawful under sections 8(a) (1) and (3), the striking employees had the status of unfair labor practice strikers. Accordingly, the Company was under a legal obligation to reinstate them to their former or substantially equivalent jobs upon their unconditional application for reinstatement. The Board considered the subsequent Union’s letter of March 24 a valid request for reinstatement of the strikers, and on the Company’s failure to respond completely, held the Company liable for back pay.

While we enforce the Board’s order to the extent discussed above, an additional problem arises concerning the Company’s claim that three striking employees were not entitled to reinstatement or back pay because they had engaged in strike misconduct. The administrative law judge had determined that employee Giddens had been implicated in the throwing of a brick at the window of one of the Company’s trucks while it was making deliveries, and that employees Cooksey and Rentz had tossed cherry bombs onto Company property in the vicinity of storage tanks containing flammable petroleum. The Board held contrary to the administrative law judge’s finding and reinstated all three employees with back pay.

The Board’s decision that employee Giddens was not implicated in strike misconduct is not supported by substantial evidence on the record as a whole. 29 U.S.C.A. § 160(f). The contrary conclusions of the administrative law judge do not modify the standard, the substantial evidence test, used to review the findings of the Board. Utilizing the substantial evidence test, the administrative law judge’s decision is rather weighed against the findings of the Board. The resolution of this issue rests directly on the inferences on credibility which the administrative law judge through her observations was peculiarly able to determine. Ascribing the proper weight to the administrative law judge’s credibility determination, Universal Camera Corp. v. NLRB, supra, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, we conclude that there is not substantial evidence to support the Board’s decision that Giddens was not involved in the throwing of the brick.

The Board did not find contrary to the administrative law judge that employees Cooksey and Rentz had committed the charged misconduct. The Board rather balanced the severity of the employer’s unfair labor practices which precipitated the strike, against Cooksey’s and Rentz’ dangerous acts. Since the Board did not reverse the administrative law judge on a question of credibility and since the Board bears the responsibility for striking the balance on this legal issue, little importance is attached to this difference of opinion. However, the Board’s determinations must fall on other grounds. Because of the potential violent and dangerous consequences inherent within these employees’ acts of misconduct, their actions cannot be condoned. For that reason, we find that the violent and dangerous nature of the acts of the employees outweighs the unfair labor practices of the Company. Firestone Tire and Rubber Co. v. NLRB, 449 F.2d 511 (5th Cir. 1971); NLRB v. Bin-Dicator Co., 356 F.2d 210, 212-213, 215-216 (6th Cir. 1966).

Enforcement of the Board’s order is granted in part and denied in part.

      . NLRB V. Burnup and Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964); NLRB v. Fansteel Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939); NLRB v. Birmingham Publishing Co., 262 F.2d 2 (5th Cir. 1958).

      . NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 88 S.Ct. 543, 19 L.Ed.2d 614 (1967); Serv-Air, Inc. v. NLRB, 395 F.2d 557 (10th Cir. 1968), cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968); NLRB v. Birmingham Publishing Co., supra, 262 F.2d 2.

      . See W. J. Ruscoe Co. v. NLRB, 406 F.2d 725 (6th Cir. 1969); Oneita Knitting Mills v. NLRB, 375 F.2d 385 (4th. Cir. 1967). Cf. NLRB v. Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953).

      . Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

      . NLRB v. Federal Pacific Electric Co., 441 F.2d 765 (5th Cir. 1971); Dryden Manufacturing Co. v. NLRB, 421 F.2d 267 (5th Cir. 1970); Nix v. NLRB, 418 F.2d 1001 (5th Cir. 1969); NLRB v. Aycock, 377 F.2d 81 (5th Cir. 1967); NLRB v. Dal-Tex Optical Co., 325 F.2d 78 (5th Cir. 1963) (per curiam).

      . See the cases cited in note 5, supra.

      . Crown Central Petroleum Corp. v. NLRB, 430 F.2d 724, 730, n. 23 (5th Cir. 1970).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WAGNER, Defendant-Appellant.
    No. 73-1684.
    United States Court of Appeals, Tenth Circuit.
    Argued March 22, 1974.
    Decided May 2, 1974.

      James L. Treece, U. S. Atty., Pepe J. Mendez, Asst. U. S. Atty., for plaintiffappellee.
    Donald L. Lozow and Gary Lozow, Epstein, Lozow & Preblud, Denver, Colo, for defendant-appellant.
    Before Mr. Justice CLARK, and HILL and SETH, Circuit Judges.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM.

The appellant, Robert Lee Wagner, stands convicted by a jury of being in receipt of a stolen motor vehicle which was moving in interstate commerce, knowing the same to have been stolen, 18 U.S.C. § 2313. He was sentenced to two years’ imprisonment, suspended, save for a sixty-day work release program. Wagner claims that the District Court erred in not suppressing (1) evidence of the visual observation of the vehicle identification number (VIN) of his car by a Government agent; (2) evidence discovered by a Government agent pursuant to an alleged consent search of Wagner’s car; (3) a statement of Wagner to a Government agent after such search; and the refusal of the court to grant a mistrial because of the Government prosecutor’s reference in his argument to the jury to the “testimony” of Wagner when in fact he had not taken the stand. We find no merit in any of the points and, therefore, affirm.

1. Special Agent William O. Leach of the Federal Bureau of Investigation had received notice that some motor vehicle titles had been stolen in Ohio. Leach asked the Colorado Department of Motor Vehicles to notify him if any of the titles showed up. On January 29, 1973, Leach was advised that a title listed to a Frank Drummond, 556 Monroe Street, in Denver, had been stolen. Leach determined, however, that address to be listed to a Mrs. L. Wagner and that, after processing, the title was to be mailed to 6748-B East Cedar Drive, Denver, Colorado. Wagner lived at this address. Leach went to the apartment complex and found a ear fitting the description on the vehicle title in a carport. Finding no one home, Leach made an exteri- or visual inspection of the car and observed through the windshield the VIN on the dashboard. It appeared to him that the rivets holding it in place had been tampered with. The next day, accompanied by a Northglenn police officer, Leach returned to Wagner’s apartment, identified himself to Wagner and asked him if he owned the car. Upon receiving an affirmative reply, Leach then questioned Wagner about the car without giving him the Miranda warning. Leach advised Wagner that he had reason to believe that the car was a stolen one and Wagner stated how he had come into possession of the car. Wagner was also told that he was not a suspect and that probably no prosecution would follow because of the prevailing policy of the United States Attorney. In addition, the police officer advised Wagner that if he changed his story, he would be given immunity from prosecution. Upon the request of Leach, Wagner gave him permission for the ear to be examined and gave Leach the keys to the ear. On searching the car, Leach pulled the back seat up and removed a shipping document which had a VIN on it. He then checked the motor block VIN and the VIN plate on the front dashboard. The numbers did not match. While Wagner sat in Leach’s car, the latter contacted the National Crime Information Center and determined that the car was stolen. Leach then returned the rear seat to Wagner’s car, locked it and gave the keys to Wagner. He then asked Wagner if he would return to the latter’s house to discuss the matter. Before opening up the discussion, Leach gave Wagner the Miranda warnings and thereafter an elaborate, detailed account of the purchase of the car was related by Wagner. The first conversation was suppressed by the District Court since no warning had preceded it. The second conversation was admitted, the court finding that the Miranda warning given Wagner before the second conversation was in no wise tainted by the previous failure to give the warning before the first conversation.

The problem as to the closing argument came about when the prosecutor was discussing the testimony of Leach concerning the statements made to him by Wagner in the second conversation. The prosecutor related that Leach testified that Wagner in his statement to Leach “did not know . . . the name of the seller [of the car]; how to contact him; the name on the title would be Drummond’s name; never recontacted the seller.” The prosecutor continued:

“We have one last document, the check. We have established that Mr. Wagner went to the bank and obtained a check for $5000 on the day in question. We have established that there is only his testimony [emphasis supplied] that he paid $8400.00. No matter how you look at it, $8400 is so far below what the market value of that 1973 Lincoln Continental was

At this point defense counsel interrupted and recited “we have a stipulation that the value of the car is $9000. Now I would object . . . ” Whereupon the court interrupted “Don’t argue.” Defense counsel repeated: “We stipulated to the value of that ear.” The court then said: “All right. That is true. The stipulation is that the value of the car was approximately $9000. All right proceed from there.” The prosecutor then told the jury: “Ladies and gentlemen, the stipulation does say $9000 and I would recommend to you to read the stipulation in full.” The court said: “Well it is not in evidence. They can’t read it, but if you want to read it to them again, you can.” The prosecutor then said: “All right Your Honor. I have nothing further at this point.” The defense then told the court that he had a motion and at the side bar he moved for the mistrial.

2. The visual observation of Leach through the windshield was not a search. The VIN was in full view and no warrant was necessary. United States v. Holgerson, 424 F.2d 1130 (10th Cir. 1970). The fruits of the observation were not placed before the jury, only the number in plain view which Leach saw through the windshield. We find United States v. Greer, 297 F.Supp. 1265 (N.D.Miss., 1965) inapposite. There the officers got permission from the wife to search the car, received the keys from her, unlocked the car and made an inside search of the car. There was no entry of the ear here.

3. Wagner claims that his second conversation with Leach after the Miranda warning was “subtly coercive police questioning:” Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We cannot agree. All of the facts here show that the consent to search and the second conversation were entirely voluntary as the trial court found. Since the evidence must be viewed in the light most favorable to the Government, United States v. Twilligear, 460 F.2d 79, 81-82 (10th Cir. 1972), we cannot say on the “totality of the circumstances” that the statement was not voluntary. United States v. Miles, 449 F.2d 1272 (10th Cir. 1971). The second statement here was not “the poisonous fruit” of the first interrogation. Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963).

4. We do not find the reference to Wagner’s “testimony” to be reversible error as an impermissible comment on the refusal of the defendant to testify. Knowles v. United States, 224 F.2d 168 (10th Cir. 1955); United States v. Noland, 416 F.2d 588 (10th Cir. 1969). The prosecutor had been talking about Leach’s testimony concerning Wagner's statements to him. The “his testimony” phrase referred to Leach, not Wagner. While we recognize the slight ambiguity, the error is at most harmless. It was merely a faulty grammatical reference made during a summation of the evidence. It certainly was not intentional. Furthermore, the Government cured the mistake in its closing remarks, and the court gave full instructions which in two instances warned the jury that there was no presumption of guilt or any inference of it to be drawn from the failure of Wagner to testify. The judgment is, therefore,

Affirmed.