author: WEIS, Circuit Judge.

text:
    Joseph W. WASHINGTON, Petitioner-Appellee, v. Vincent J. REGAN, Superintendent of Leesburg State Prison, Respondent-Appellant.
    No. 74-1598.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 9, 1975.
    Decided Feb. 10, 1975.

      William F. Hyland, Atty. Gen. of N. J., Trenton, N. J., Lowell Espey, Deputy Atty. Gen., Div. of Criminal Justice, East Orange, N. J., for respondent-appellant.
    Norman L. Zlotnick, Perskie and Callinan, P. A., Wildwood, N. J., for petitioner-appellee.
    Before ALDISERT, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

This is a habeas corpus case in which the United States District Court ordered that a state prisoner’s sentence be vacated and that on resentencing in the state court the trial judge give the reasons for his action. At the time a prison term was originally imposed, the defendant was classified as a multiple offender under New Jersey law, but after discovering that such a designation was erroneous, the state court resentenced the defendant to the same period of incarceration. Because we find on the record here that the state court procedure did not violate due process, there was no basis for federal intervention, and we vacate the order of the district court.

On June 17, 1968, the defendant Washington was convicted in the New Jersey Superior Court on counts of resisting arrest as well as possession and control of narcotics under N.J.S.A. § 24:18-4. On December 2, 1968, he was sentenced to a prison term for those offenses.

On October 14, 1969, the defendant was again convicted of a narcotics offense which occurred on August 28, 1968 —after the jury verdict in the first trial but before he was sentenced in that proceeding. As a result of the second conviction, an “accusation” was issued against Washington, citing him as a multiple offender under the New Jersey Narcotics Offenders Act, N.J.S.A. § 24:18 — 47(e)(2). He was found guilty of that “accusation” on January 8, 1970, and on January 23, 1970, received a five to ten year sentence (five years being the mandatory minimum which could be imposed under that multiple offender statute). The state trial judge commented at the time of sentencing:

“However, for the second violation of the narcotics statute, I have no discretion about the first five years because that is a mandatory minimum for a second violation . . . ”

After further discussion of defendant’s conduct, the judge said:

“I’m satisfied that substantial punishment should be meted out in this case. It may be substantial or more than the defendant anticipates, but I think it’s very fair and very reasonable under the circumstances.”

Approximately one month later, on February 25, 1970, the New Jersey Superior Court decided State v. Johnson, 109 N.J.Super. 69, 262 A.2d 238 (App.Div.1970). That case held that, under the New Jersey Narcotics Offenders Act, a defendant could not be sentenced as a second offender when the second offense occurred before the date of his first conviction.

On learning of the Johnson decision, the sentencing court, sua sponte, ordered a hearing for resentencing of defendant Washington which was duly held on March 23, 1970. After the defendant and his counsel were heard, the court commented:

“Mr. Washington, I have spent a lot of time on this matter only because I was trying to seek some justification to satisfy my conscience that I ought to reduce or change the sentence completely . . . My attitude is that' the consideration to be given now is not different than what it was in January. As Mr. Epstein [defendant’s counsel] mentioned, the statute permits me to sentence you now, not as a multiple offender, to a period of not less than two years and not in excess of fifteen years, plus a $2,000 fine. However, again reviewing the [presentence] report, I see no reason why I should change that sentence. What is there today that is different than what it was in January, Mr. Washington?”

Defendant then claimed progress toward rehabilitation, and his counsel pointed out that, legally, Washington was no longer a multiple offender. The judge replied that he was not proceeding upon the multiple offender accusation and, after some further discussion, imposed a five to ten year sentence, the same as that originally adjudged.

On appeal to the New Jersey Superior Court, Appellate Division, the resentencing was affirmed, the court stating:

“Even considering the defendant technically not to be a second offender for purposes of the added punishment permitted by the statute in the case of a second offender, the judge had the right within his sentencing discretion nevertheless to consider the whole background of the defendant including prior convictions.” 113 N.J.Super. 184, 273 A.2d 378, 379 (App.Div.1971).

Certification was denied by the New Jersey Supreme Court, 58 N.J. 332, 277 A.2d 389 (1971).

The defendant then filed for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the District of New Jersey, which vacated the sentence and directed the state court to “resentence [the defendant] setting forth the reasons for the sentence it chooses to impose.” While conceding that the state judge had broad discretion in sentencing, the district court held that:

“ . . it is reasonable to require, on the particular facts of this case, that the sentencing judge articulate a basis for the sentence imposed.
* * sfc * * *
“ . . . It is, however, incumbent upon the trial judge to state why the petitioner received the same sentence he received when characterized as a multiple offender, if in fact, there is a basis for doing so.”

We find no violation of the Constitution or laws of the United States in the action of the state court as is required for habeas corpus relief under 28 U.S.C. § 2254 and, accordingly, do not agree with the district court’s order.

Petitioner alleges a violation of due process and relies mainly upon North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and the cases which have interpreted it. But we think a careful reading of the case law fails to support the petitioner’s view.

The factual situation in Pearce is significantly different from that sub judice. In Pearce there was an increased sentence after a successful appeal and subsequent retrial. The prime concern of the Pearce majority was the fear that appellate review of the original conviction might be discouraged by the threat of increased punishment after a reversal. However, not every possibility of a harsher sentence was within the ambit of the Pearce doctrine. As the Supreme Court said in Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974):

“The lesson that emerges from Pearce, Colten, [Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584] and Chaffin [Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714], is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of ‘vindictiveness.’ ”

In the case under consideration there was no increase in sentence and no retrial. In fact, the resentencing occurred only because of an appellate decision in another unrelated case. The background, therefore, is devoid of either actual or potential vindictiveness.

The safeguard of requiring a trial judge to explain his reasons for the term imposed at a resentencing is limited by Pearce to situations in which a more severe punishment results. We cannot read that case to require, in a due process context, that the trial judge is re-, quired to articulate his reasons for imposing the same sentence as that previously assessed.

While there has been spirited debate on the proposition that a judge should enunciate his reasons for imposing sentence in every case, see Frankel, Criminal Sentences (1973); ABA Standards' Relating to Appellate Review of Sentences § 2.3(c), Approved Draft (1968), no federal court has yet held it to be a constitutional imperative.

Furthermore, as the recitation of facts indicates, the trial judge did not perfunctorily impose the same sentence but did so only after again studying the presentence report and giving the defendant the opportunity to present any new facts which might justify a reduction.

The record of the state court proceedings does not disclose any error entitling petitioner to federal habeas corpus relief, and, accordingly, the judgment of the district court will be vacated.

      . Under New Jersey practice, an accusation is similar to an information used in the federal system. See R.R. 3:7 et seq.

      . There is some question in our minds that the Johnson rule applied to the petitioner here. However, since that is a matter of state law, not germane to the point at issue, we do not pass upon it.

      . This is consistent with United States v. Metz, 470 F.2d 1140 (3d Cir. 1972), where we held that the trial judge in imposing sentence may properly consider other indictments with which the defendant has been charged, but for which he has not yet been tried.

      . New Jersey does have appellate review of sentences, and after the opinion of the district court was handed down in this case, the New Jersey Supreme Court amended its rules to require trial judges to state their reasons whenever a custodial sentence is imposed.

      . We have reviewed the petitioner’s other contentions — that the reading of the indictment to the jury and the admission of testimony regarding a sale of narcotics denied him a fair trial. We agree with the district court’s finding that these matters did not constitute grounds for the grant of a writ of habeas corpus.


source: Caselaw Access Project

author: BARRETT, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Barbara CROCKER, aka Barbara Stafford, Defendant-Appellant.
    No. 74-1372.
    United States Court of Appeals, Tenth Circuit.
    Submitted Jan. 23, 1975.
    Decided Feb. 18, 1975.

      John E. Green, Asst. U. S. Atty., Oklahoma City, Okl. (William E. Burkett, U. S. Atty., Oklahoma City, Okl.), for plaintiff-appellee.
    Mark H. Price, Oklahoma City, Okl., for defendant-appellant.
    Before HILL, SETH and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Barbara Crocker, a/k/a Barbara Stafford (hereinafter referred to as Crocker, or appellant), appeals from a jury verdict of guilty and sentence. She was convicted of charges under 18 U.S.C.A. § 371 and § 472, to-wit: That on or about November 12-13, 1973, Crocker did conspire with Jackie Wayne Blankenship and Kelly Mack Lambeth, with intent to defraud, wilfully, unlawfully and knowingly, the United States, by concealing and possessing falsely made, forged, and counterfeit $10.00 Federal Reserve Notes, and that she did utter and pass one of said notes in Oklahoma City, Oklahoma, on November 12, 1973.

Crocker testified substantially as follows both in support of her Motion to Suppress her statements of confession, and at trial: She met Blankenship and Lambeth in a bar at Dallas, Texas, on November 11, 1973; she had known Blankenship slightly prior thereto; the three consumed considerable beer before driving to Oklahoma City, where they checked into a motel in the early morning of November 12th; that afternoon Crocker learned for the first time that Blankenship and Lambeth possessed counterfeit money, which they displayed to her; that when she was asked to drive to a restaurant to bring food back to the motel rooms after noon, that she told her male companions she would have nothing to do with the counterfeit money and that Lambeth then gave her “legitimate” money; that thereafter the three went to several bars; that at the After Five Club she asked Lambeth for money to buy cigarettes; that he gave her a $10.00 bill which she believed to be genuine and not counterfeit because Lambeth had previously told her he would not give her counterfeit money; that the change she received from the $10.00 bill after purchasing the cigarettes was given to Lambeth; that she was pretty intoxicated when she arrived at the club; that the three were arrested by two Oklahoma City detectives about 12:30 p. m. and taken to the county jail about 3:30 a. m.; that she was first questioned about 7:00 a. m. on November 13th, when she was taken from her cell to a meeting room where she met two Secret Service agents; that she did not feel well because of the drinking and lack of sleep for a couple of days; that without coffee or breakfast she was interrogated by Secret Service Agent Clark and another agent after Clark read her “my rights” which she thereafter acknowledged by her signature after personally reading the Miranda warnings document; that immediately thereafter she told Clark “that I wanted an attorney”; that even though she had requested an attorney, Clark asked her some personal questions about her parents, her children, etc., and that he stated that he and the other agent would like to help her out of the trouble she was in; that Clark then inquired of her about her acquaintance with Blankenship and Lambeth and whether she had seen anyone pass any counterfeit money; that she did not respond to these questions; and that Clark then advised her to get some sleep and stated that someone would question her in the afternoon.

Crocker testified that when she signed the Miranda form she was “half asleep”, not feeling well, and that neither agent said anything to her about providing her with an attorney. She further related that she was returned to her cell about 8:00 a. m. and that about 3:30 that afternoon, Agent Clark and a couple of other Secret Service agents, including a Mr. Skiles, took her to the Federal Building; that Agent Skiles read her “my” rights before any questioning was undertaken; that after some one-half hour of interrogation she was fingerprinted and photographed; that about 5:00 p. m. she was returned to a conference room where Agent Skiles first presented her a written Miranda “rights” document which she read and signed, and that at that time she also signed the statement of confession prepared by Skiles after she “skimmed” through it; that although she asked for an attorney during the morning session she did not again request counsel; that although the two waiver forms which she signed (both of which were admitted in evidence without objection) state that “If you want a lawyer, a lawyer will be appointed for you”, and both of which contain her written statement that “I do not want a lawyer”, that she nevertheless “didn’t know that the statement said T didn’t want a lawyer’ ”; that she did not reiterate her request for an attorney after the morning statement to Agent Clark and that it was not until she appeared before Judge Eubanks on the morning of November 14th, that she was told an attorney would be appointed to represent her; that she is 36 years of age, has an 11th grade education, and can read and write the English language; that none of the officers made any promises or threats to get her to talk to them, and that they treated her courteously; that she was convicted in Texas in 1965 of the felony of forging a prescription and money orders and sentenced to serve three years.

When questioned by the Court, she stated that although both of the “warning” documents which she signed state that she is entitled to a lawyer and that one will be appointed for her, and that she did not want a lawyer, that she “didn’t read that part” even though she acknowledged it was read to her and that it stated unequivocally that “I do not want a lawyer at this time.”

Both at the hearing on the motion to suppress and at trial, Special Agent Clark testified that at about 8:00 a. m. on the morning of November 13, 1973, he spoke with Crocker after he and Agent Don Snyder had produced their credentials and identified themselves; that he provided her with a standard warning and waiver of rights document which she read, and that he also read one completely to her; that the document is in two parts, the first containing each of the Miranda rights and warnings, and the second consisting of a waiver of those rights; that after she read the form and after he read it aloud to her Agent Clark inquired of her whether she had any questions concerning it; that she stated that she did not; that she then signed the waiver; that at no time during the interrogation, which lasted about 30 minutes, did Crocker ask for an attorney, and that had she done so, he would simply have obtained personal data, i. e., name, age, residence, occupation, education, parents, etc.; that he did question Crocker about the counterfeit money but that she made no admissions or statements relative thereto; that it is possible, although beyond his recollection, that Crocker made some remark about an attorney, but that she did not state that she wished to have an attorney present; and that Crocker did have a fatigued appearance.

When Clark was asked whether it is possible that Crocker could have asked for an attorney during the interview, he acknowledged that it was possible, but that he had no such recollection. He stated that the procedure followed by the Service when one asks for counsel is to terminate the questioning. He stated that Crocker definitely did not request that an attorney be present. The testimony of Agent Clark was fully corroborated by Agent Don Snyder. He testified, when questioned by the Court, that Crocker made no reference about an attorney, and that if it had been made the procedure of the Service is to terminate questioning.

Agent Skiles testified that about 4:30 p. m. on November 13th, he interrogated Crocker after first orally advising her of her rights and then handing her a printed copy of the Miranda rights document which she read and which he read aloud to her from another copy; that he then inquired of Crocker if she had any questions; that she had none; that she did not request an attorney; that she then signed the waiver of rights form and thereafter signed the confession statement in his presence and that of Agent Clark. While there is no discrepancy about the fact that Agent Skiles first orally advised Crocker of her rights prior to any interrogation, there is a conflict in the testimony of Skiles and Clark as to the time when Crocker executed the written waiver. Skiles recalls that she executed it at about 5:00 p. m. Clark recalls that she executed it concurrent with her execution of the confession statement about 8:00 p. m., even though the time on the document appears as of 5:00 p. m. We attach no particular significance to this difference in recollection. There is no showing that it prejudiced Crocker’s rights. The different recollections were presented and argued to the jury, insofar as they may have related to credibility.

The agents testified that Crocker was not taken before a magistrate on November 13th because none was available and further, upon inquiry, they learned that none of the judges were available. Agent Clark testified that the waiver document executed by Crocker in the morning could not be located by him when the evening interview was commenced, and that this necessitated the need for the additional warning-waiver form. Thereafter, however, Agent Clark did locate the form executed that morning.

The suppression motion was directed both to the oral statement made by Crocker during the morning interview and the written statement executed following the afternoon interview.

In ruling on the motion to suppress, the Trial Court held that Crocker voluntarily gave the oral statement after being fully informed of and then voluntarily waiving her rights, and that even though she testified that she did not realize what she was signing, this testimony was not credible. The Court stated that it was following the guidelines of 18 U.S.C.A. § 3501 and that Sullins v. United States, 389 F.2d 985 (10th Cir. 1968), was superseded by § 3501, supra. The Court made a factual determination that Crocker did not request the assistance of counsel after being fully advised of her Miranda rights.

The Court placed much weight on the fact that, in the face of Crocker’s contention that she requested counsel, she nevertheless voluntarily and without force, threat or intimidation knowingly signed two written statements that she did not want a lawyer. The Court stated that Crocker’s incriminating statement would be admitted in evidence in accordance with the facts found and the provisions of 18 U.S.C.A. § 3501, but that the jury shall hear all relevant evidence and argument on the same issue of voluntariness and that the Court would instruct the jury to give such weight to the confession as it deserves under all of the circumstances.

On the issue of delay in presentment for initial appearance, the Court found that even though the confessions were made more than six hours following Crocker’s arrest, there was no available magistrate or other officer on November 13th, for appearance purposes and that, in any event, her statements were voluntarily given.

' At trial proper, Government witnesses in addition to Secret Service Agents, Clark, Snyder and Skiles (who testified substantially to the same effect as they had at the hearing on the Motion to Suppress), included the owner and certain employees of the After Five Club who testified that Crocker, Blankenship and Lambeth passed four counterfeit $10.00 bills at the Club during the late evening hours of November 12th and the early morning hours of November 13th, while drinking beer; and that with specific reference to Crocker she was at all times in the presence of Blankenship and Lambeth.

Hilger, the assistant manager and bartender, testified that Crocker presented him with a counterfeit $10.00 bill and requested change for cigarettes which he gave her; that he received the four $10.00 counterfeit bills within a period of some eight minutes from the three, and that the bills appeared new but crumpled badly; that he examined them and discovered that two of the bills contained the same serial number; that he then phoned the owner, Pye, who arrived soon thereafter accompanied by two Oklahoma City detectives who examined the bills and took possession of them after Hilger had initialed at least two of them.

Pye testified that three additional $10.00 counterfeit bills which he had received from his manager, Larry Cook, had been passed earlier in the evening by two men and one woman at his Mark III Club in Oklahoma City.

Mrs. Pye testified that she recalled observing two men and a woman at the Mark III Club about 11:00 p. m. that evening. She recognized one, Blankenship, and recalled that one $10.00 bill was passed to her for payment of beers which she served the three persons.

Detectives Hoover and O'Shea testified that they examined the four $10.00 bills at the After Five Club and that each contained the same serial number; and that after Hilger and other employees of the club informed them of the facts and circumstances relating to the bills, they placed Crocker and her two male companions under arrest. They were taken to the city jail where a preliminary search for weapons was undertaken, followed by an inventory search. At that time 278 counterfeit $10.00 bills were found on the person of Blankenship. Several were found on the person of Lambeth. None were found on the person of Crocker.

The written statement executed by Crocker, admitted in evidence without objection, includes, inter-alia, her acknowledgment that before she was questioned she voluntarily signed a Warning and Consent to Speak document, waiving her Constitutional rights and authorizing Agent Skiles to interrogate her about counterfeit $10.00 bills; that she did not learn that Blankenship and Lambeth had the counterfeit bills until after they awoke in the motel in Oklahoma City on November 13th; that when she was asked to purchase some fried chicken and beer at a nearby restaurant she insisted that Lambeth not give her any of the counterfeit $10.00 bills to pass; that he gave her that which she believed to be a genuine $10.00 bill; that after eating they visited some eight or ten bars in the Oklahoma City area and that they had a beer apiece in each bar; “that on two occasions Kelly Lambeth gave me a counterfeit $10.00 bill and I asked for change to purchase either cigarettes or change to nlav the iuke box. I knew these two bills were counterfeit when they were given to me bv Kelly Lambeth.” (Underlining supplied).

She testified at trial, just as she had previously at the hearing on the Motion to Suppress, that she did not read this language in the statement and that she “skimmed” through it before signing it.

On appeal Crocker alleges trial court error in that: (1) the burden of proof was incorrectly placed upon her rather than on the Government in relation to the pre-trial hearing on her motion to suppress a statement of confession given by her; (2) it incorrectly applied the guidelines set forth in 18 U.S.C.A. § 3501 rather than those set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (3) it admitted Crocker’s confession in evidence without requiring the Government to sustain its admissibility under the “heavy burden” required of the Government by Miranda, supra; and (4) the evidence is insufficient to sustain the conviction.

I.

Crocker contends that the Trial Court erred in placing the burden of proof on her rather than on the Government at the pre-trial hearing on her Motion to Suppress the written statement she signed in the presence of Agents Skiles and Clark. In support thereof she relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), for the proposition that the burden of proving compliance with the procedures set forth therein is with the Government and that it is a heavy burden, quoting this language:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel . This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we re-assert those standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

384 U.S. at 475, 86 S.Ct. at 1628.

Crocker also cites Bond v. United States, 397 F.2d 162 (10th Cir. 1968), cert. denied 393 U.S. 1035, 89 S.Ct. 652, 21 L.Ed.2d 579 (1969), in further support of her contention. We do not so interpret Miranda or Bond. In the instant case the argument, in the context presented, is without merit in that appellant complains that she was required by the Court “to assume the burden of proof and of going forward with the evidence.” (Appellant’s B., p. 20). It is fundamental that on a motion to suppress there must be “a foundation in fact for the legal result.” Rogers v. Richmond, 365 U.S. 534, 546, 81 S.Ct. 735, 742, 5 L.Ed.2d 760 (1961). Logic dictates that a pre-trial Motion to Suppress filed by an accused does in fact cast the burden upon the movant to present facts necessary to sustain his position. Wilson v. United States, 218 F.2d 754 (10th Cir. 1955). Bond v. United States, supra, is, in fact, no comfort to appellant:

During the trial the defendant moved for a hearing outside the presence of the jury to determine the admissibility of certain evidence including his admissions. The motion was denied on the ground that the matters had been covered by an evidentiary hearing held before the trial on a defense motion under Rule 41(e), F.R.Crim.P., to suppress. The record shows that at the Rule 41(e) hearing the government produced some of the same witnesses as appeared at the trial, that the defense put on no evidence, that after the hearing the court made specific findings of fact, which are sustained by the evidence, and denied the motion . . . the trial judge did not abuse his discretion in denying a second hearing. (Emphasis supplied). 397 F.2d 162 at 165.

While the defendant must first present evidence in support of his motion to suppress which satisfies his burden of challenging the legality of the confession, we have recognized that the Government must then carry the countervailing burden of proving a waiver of the constitutional privilege against self-incrimination. Bond v. United States, supra; Nolan v. United States, 423 F.2d 1031, 1045 (10th Cir. 1969), cert. denied 400 U.S. 848, 91 S.Ct. 47, 27 L.Ed.2d 85 (1970); Sullins v. United States, supra. The Government fully met the burden in the case at bar.

Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), put at rest the contention that prosecutors have a particularly heavy burden of proof to meet in a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) pre-trial hearing on the issue of the voluntariness of a confession. The Court there stated that the duty to determine voluntariness had not been framed in terms of burden of proof either before or after Jackson. While observing that Jackson contained- reference to the relationship between the involuntariness of a confession and its reliability, the Court stated that the case turned on the proposition that coerced confessions, whether true or false, are forbidden because the method used to extract them offends constitutional principles. Lego held that when the burden has been cast on the Government to establish the voluntariness of a confession, the measure or quantum is that of preponderance but not beyond a reasonable doubt.

II.

Crocker argues that the trial court erred in applying the guidelines of 18 U.S.C.A. § 3501 rather than the mandates of Miranda v. Arizona, supra, in its pre-trial determination of the voluntariness of her written confession and its admissibility at trial for consideration by the jury.

Appellant contends that § 3501 allows greater discretion in the trial court in determining the issue of voluntariness and thus the admissibility of a confession than the principles of Miranda which are constitutionally mandated to satisfy the commands of the Fifth Amendment. The Government counters that Crocker’s confession met both the commands of Miranda and § 3501.

18 U.S.C.A. § 3501 (Public Law 90-351) is referred to as the “Post Miranda Act.” The legislative history relates that it is intended to offset the “harmful” effects of certain court decisions relating to the admissibility of confessions, including the Miranda decision (U.S.Code Cong, and Admin.News, 1968, Vol. II, 90th Congress, 2nd Session, p. 2127).

The basic premise of Miranda is that custodial interrogation is inherently coercive. The Miranda procedures require that an interrogating officer accord an “in custody” suspect the following warnings: (a) that he has a constitutional right to remain silent; (b) that anything he does say can and will be used against him in court; (c) that he has a right to confer with counsel prior to answering any questions and to have counsel present during the questioning itself; and (d) that if he is indigent he has the right to have appointed counsel present. Miranda further provides that the defendant, after being so advised, may waive his rights if he does so knowingly and intelligently, but that he may nevertheless rescind the waiver at any time prior to or during the interrogation by stating that he wishes to remain silent altogether, or that he wishes to do so until an attorney is present. 384 U.S. at 473, 474, 86 S.Ct. 1602.

Section 3501, supra, provides that the presence or absence of any of the Miranda factors, together with consideration of the time between arrest and initial commitment proceedings, must be considered by the trial court prior to trial— with the same considerations to be thereafter independently considered and determined by the jury at trial — in deciding the issue of voluntariness of the confession. Should the judge determine, as here, that the confession was voluntarily given under the totality of all of the facts and circumstances, the confession is admitted in evidence and the Court at trial then submits to the jury, as here, the same question of voluntariness for independent jury determination.

We have held that voluntariness is the sole constitutional requisite governing the admission of a confession in evidence. United States v. McCormick, 468 F.2d 68 (10th Cir. 1972), cert. denied 410 U.S. 927, 93 S.Ct. 1361, 35 L.Ed.2d 588 (1973); United States v. Davis, 456 F.2d 1192 (10th Cir. 1972). We favorably referred in Davis to the provisions of 18 U.S.C.A. § 3501, equating those provisions with the “balancing test” announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In United States v. Davis, supra, we noted that the United States Supreme Court had not ruled on the constitutionality of 18 U.S.C.A. § 3501 supra. We there observed that in Lego v. Twomey, Warden, supra, Mr. Justice White, writing for the majority, while holding that the statute was inapplicable to the state proceeding there under review, did nevertheless deem § 3501 “relevant to note.”

Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), a 5-4 decision, held that a statement inadmissible against a defendant in the government’s case in chief because of lack of the procedural safeguards set forth in Miranda may, if its trustworthiness satisfied legal standards, be used for impeachment purposes to attack the credibility of the defendant’s trial testimony. The dissenters insisted that Miranda settled the proposition by holding that the privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner.

We believe that Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), although not involving the provisions of § 3501, supra, did, in effect, adopt and uphold the constitutionality of the provisions thereof. Tucker, supra, involved a pre-trial suppression hearing of an incriminating custodial interrogation which (just as in the instant case) did not involve threats, abuse or coercion by the police officers. The police interrogation was there in fact' undertaken following each of the Miranda warnings except the advisement that the accused had the right to the appointment of counsel if he was indigent. The Court observed that the Miranda “suggested” safeguards were not intended to “create a constitutional strait jacket” notwithstanding the language in Miranda that statements made in violation of its principles must not be used to prove the prosecution’s case at trial. The Court stated that without post-Miranda precedent of its own to guide it, the totality of the facts and circumstances evidenced that “There is plainly no reason to believe that Henderson’s testimony is untrustworthy simply because respondent was not advised of his right to appointed counsel.” 417 U.S. at 449, 94 S.Ct. at 2366.

The majority deemed it significant to point out that it was not dealing with the offer of the defendant’s own statement in evidence, but rather the testimony of witness Henderson whom the police discovered only as a result' of the defendant’s statement; still the Court recognized that Henderson’s trial testimony had a devastating effect inasmuch as it completely contradicted Tucker’s alibi defense, i. e., that at the time of the rape he was away from the scene in the company of Henderson, and further implicated Tucker by reason of remarks allegedly made to Henderson by Tucker directly related to the crime. We observe that if each of the Miranda warnings are constitutionally mandated under any and all circumstances, certainly the Court would have been hard pressed in permitting the admission of Henderson’s testimony under the “fruit of the poisonous tree” doctrine first articulated in Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920), and thereafter more fully developed in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Mr. Justice Douglas, in his Tucker, supra, dissent, stated:

The testimony of the witness in this case (Henderson) was no less a fruit of unconstitutional police action than the photographs in Silverthorne or the narcotics in Wong Sun . . . His testimony must be excluded to comply with Miranda’s mandate that “no evidence obtained as a result of interrogation [not preceded by adequate warnings] can be used against” an accused.
417 U.S. at 464, 94 S.Ct. at 2374.

We thus hold that the trial court did not err in applying the guidelines of § 3501, supra, in determining the issue of the voluntariness of Crocker’s confession. We further hold that the record before us evidences full compliance with the Miranda mandates. There was no trial court error in the admission of the confession.

III.

Crocker was not taken before a magistrate or judge for purpose of appearance set forth under Rule 5(a), F.R. Crim.P. within a period of six hours as required under McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). The Congress, in the enactment of 18 U.S.C.A. § 3501(c) provided that non-compliance with the six hour rule does not automatically render inadmissible a confession obtained more than six hours after arrest. In the case at bar, the six hour rule comes into play in relation to the written confession executed by Crocker and witnessed by Agents Skiles and Clark, well beyond the six hour period following her arrest. This Court has held and now re-affirms the rule that such delay is simply a factor the trial judge must consider in determining voluntariness of a confession. We agree with the trial court’s finding that the delay in the case at bar did not render Crocker’s statement involuntary and that the Secret Service agents were diligent in their efforts to present Crock-er before a magistrate or judge on November 13th, but that their efforts were not successful until the morning of November 14th. We have held that Section 3501(c), supra, is in keeping with the “balancing test” announced in Barker v. Wingo, supra. United States v. McCormick, supra.

IV.

Crocker challenges the sufficiency of the evidence to sustain the conviction. She argues that in order to be guilty of the crime of conspiracy as charged, the Government must prove her guilty of the substantive crime of possessing and passing counterfeit money with the intent to defraud, pass, utter, publish, sell or keep in her possession or conceal, falsely made, counterfeited, forged or altered obligations of the United States. We agree. In order to sustain the position she urges upon us, Crocker rehashes her contention that her incriminating statement was erroneously admitted and that there is no direct evidence that the $10.00 bill she passed at the After Five Club was known by her to be counterfeit.

An appellate court must, following a conviction, view the evidence in the light most favorable to the Government to decide if there is substantial proof, direct or circumstantial, together with reasonable inferences to be drawn therefrom, from which a jury might find the appellant guilty beyond a reasonable doubt. United States v. Downen, 496 F.2d 314 (10th Cir. 1974); United States v. Yates, 470 F.2d 968 (10th Cir. 1972).

The essence of the crime of conspiracy is an agreement to violate the law. United States v. Butler, 494 F.2d 1246 (10th Cir. 1974); Carter v. United States, 333 F.2d 354 (10th Cir. 1964). And while the agreement need not take any particular form, there must be a meeting of the minds in the common design, purpose, or objects of the conspiracy. United States v. Butler, supra. The evaluation of evidence in a conspiracy trial is difficult because of the secretive nature of the crime and the reliance upon circumstantial evidence, together with the reasonable inferences to be drawn therefrom. United States v. Butler, supra; Leeper v. United States, 446 F.2d 281 (10th Cir. 1971), cert. denied 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972).

A detailed review of the evidence supporting the jury conviction is not necessary. We deem these brief recitals to be relevant: (1) Crocker knew of the fact that the $10.00 bills possessed by Blankenship and Lambeth were counterfeit before the offense charged was committed; (2) Crocker was present on the evening of November 13th at several bars in Oklahoma City when Blankenship and/or Lambeth passed a number of counterfeit $10.00 bills and obtained change after each of the three ordered only one beer at each bar before departing the premises; (3) Crocker passed one of the counterfeit $10.00 bills given to her by Lambeth for cigarette change to assistant manager Hilger at the After Five Club; and (4) Crocker’s statement contained a confession that she knew that the $10.00 bills being passed that evening by the three were counterfeit. These recitals evidence overt acts to further the conspiracy shown. To be sure, Crocker either denied or explained away her participation at trial. This, however, simply created an issue of credibility. It is fundamental that the credibility of witnesses is the exclusive function for determination by the jury as the trier of fact. United States v. Spoonhunter, 476 F.2d 1050 (10th Cir. 1973); United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971); Bailey v. United States, 410 F.2d 1209 (10th Cir. 1969), cert. denied 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed.2d 232 (1969).

Our analysis of the record leads to the conclusion that the evidence of appellant’s guilt is so strong and persuasive that none of the contentions she has advanced merit or justify a different verdict. If any errors occurred, they were harmless. A defendant is not entitled to a perfect trial, but rather a fair trial. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953). Crocker received a fair trial.

We affirm.

      . § 3501. Admissibility of confessions.
      (a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession, as defined in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances.
      (b) The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession.

        The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.

      (c) In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer.
      (d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention.
      (e) As used in this section, the term “confession" means any confession of guilt of any criminal offense or any self-incriminating statement made or given orally or in writing. (Emphasis supplied).


author: MOORE, Circuit Judge:

text:
    HUDSON VALLEY ASBESTOS CORPORATION, Plaintiff-Appellant, v. TOUGHER HEATING & PLUMBING CO., INC., et al., Defendants-Appellees.
    No. 79, Docket 73-2370.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 31, 1974.
    Decided Jan. 21, 1975.
    Certiorari Denied June 9, 1975.
    See 95 S.Ct. 2416.

      Lambert L. Ginsberg, Troy, N. Y. (Pattison, Herzog, Sampson & Nichols, P. C., Troy, N. Y., of counsel), for plaintiff-appellant.
    Joseph W. Burns, New York City (Burns, Van Kirk, Greene & Kafer, Martin J. Neville, New York City, of counsel), for defendants-appellees.
    Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.
   MOORE, Circuit Judge:

Hudson Valley Asbestos Corporation (Hudson Valley) brought this private antitrust treble damage action alleging violations of Sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2) and sections 3 and 7 of the Clayton Act (15 U.S.C. §§ 14, 18). The principal defendants were Tougher Heating & Plumbing Co., Inc. (Tougher), E. W. Tompkins Co., Inc. (Tompkins), Robert Tougher and Harry E. Tompkins, Sr., the respective presidents of these companies, and Tri-City Insulation Company, Inc. The case was tried before the United States District Court for the Northern District of New York, which rendered an opinion and judgment in favor of the defendants. Thereupon Hudson Valley appealed. We affirm.

In 1922 Marshall Pursel formed Hudson Valley in Albany, New York, as an insulation contracting business. Although the insulation aspect of the company became far less important as the firm expanded into other areas, accounting for an annual average of approximately 5% of net sales by 1960, Hudson Valley continued to engage in insulation contracting until September 30, 1961.

Tougher and Tompkins are two plumbing and heating contractors also located in the Albany area. In the course of their business Tougher and Tompkins, as prime contractors, would submit bids to perform the plumbing and heating work on a certain job. Their bids would be based on the bids submitted to them by various subcontractors, including insulation subcontractors such as Hudson Valley. If Tougher or Tompkins was awarded the prime contract, it would in turn either award the insulation subcontract to the lowest bidder or give another company an opportunity to match the lowest bid. Between 1957 and 1961 Tougher and Tompkins together accounted for over 40% of the dollar volume of Hudson Valley’s insulation contracts.

In May 1961 Robert Tougher and Harry E. Tompkins, Sr. first discussed the possibility of forming their own insulation subcontracting company. They were dissatisfied with the subcontractors with whom they had been dealing and wanted to obtain fair and reasonable prices for insulation work. A month later they each invested $5,000 and founded defendant Tri-City, which was incorporated on June 29, 1961 and commenced doing business on July 31. Shortly thereafter, in August 1961, Henry Kuhl, who had single-handedly managed Hudson Valley’s insulation business for many years, sought employment at Tri-City and signed an employment contract for about 40% greater salary than he had received at Hudson Valley plus an incentive bonus of 10% of profits. Pursel made the decision to terminate the insulation business almost immediately, and voluntarily returned two already existing insulation subcontracts to Tougher.

The gravamen of the plaintiff’s complaint is that antitrust violations committed in connection with the formation and operation of Tri-City drove Hudson Valley out of the insulation business by eliminating Tougher and Tompkins as potential customers. However, the district court explicitly found that Hudson Valley voluntarily terminated its insulation contracting business and that there was no causal connection between the alleged antitrust violations and this business decision. Particularly in light of the departure of plaintiff’s long-time manager and the rather precipitous termination soon thereafter, we are unable to say that this finding was erroneous.

Failure to prove that it was injured “by reason of” the defendants’ alleged antitrust violations is of course sufficient to defeat Hudson Valley’s claims. Clayton Act § 4, 15 U.S.C. § 15 (1970); see Billy Baxter, Inc. v. Coca Cola Co., 431 F.2d 183, 187 (2d Cir. 1970), cert. denied, 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 826 (1971). Nevertheless, we shall briefly review the antitrust allegations, which we find to be without merit in any event.

Hudson Valley alleges that the defendants violated section 1 of the Sherman Act by engaging in both price fixing and a concerted refusal to deal with insulation subcontractors other than Tri-City. Either allegation, if true, would constitute a per se violation of Section 1. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) (price fixing); Klor’s Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959) (concerted refusal to deal). .

With respect to the price-fixing claim, the district court found no evidence that any such scheme existed. Although Tri-City was formed out of apparent dissatisfaction with the high level of the bids Tougher and Tompkins were receiving from insulation contractors, there is no indication that they conspired to set the level of Tri-City’s bids. Indeed, Kuhl was apparently given a free hand to determine the figure Tri-City would submit on any particular job. His instructions were only to submit a fair price, which would reflect his costs plus some allowance for profit.

The contention that Tougher and Tompkins together refused to deal with insulation subcontractors other than TriCity is also not supported by the evidence. Hudson Valley relies on statistics showing that between 1961 and 1965 TriCity received all but one of the insulation subcontracts awarded by Tougher and Tompkins in Albany, Schenectady, and Rensselaer Counties. At the same time, however, the three other insulation subcontractors in this area had refused to submit bids to Tougher and Tompkins, and when J. F. Swick Insulation Co., a new entrant in 1966, in competition with Tri-City, did submit a bid to Tougher, Swick received the award. Thereafter, the other insulation contracting companies also began to submit successful bids to Tougher and Tompkins. In addition, within the eleven-county geographic market for insulation subcontracting that the district court found to be appropriate, companies other than Tri-City were awarded subcontracts despite the fact that Tri-City had submitted competing bids.

Although Hudson Valley’s allegations under section 2 of the Sherman Act are not framed with the utmost clarity, their thrust is that Tougher and Tompkins unlawfully conspired to monopolize. Unfortunately, the market at which the alleged conspiracy was supposedly directed is not precisely defined. The district court found that plumbing and heating contracting and insulation contracting respectively constituted distinct submarkets. Whether the plaintiff views both of these submarkets as the target of the conspiracy is not clear. In any event, it is plain that the district court’s finding that there was no section 2 violation was proper. With respect to the plumbing and heating contracting submarket, there were sixteen companies located in the three counties around Albany alone, and the district court found that competition was vigorous both before and after the formation of Tri-City. In the insulation contracting submarket there were, in addition to Tri-City, three companies located in Albany — Armstrong Cork, R. A. Keasbey, and JohnsManville. All were strong nationally-based concerns. Thus, it is patently obvious that the defendants had no power to control either market. Although specific intent to monopolize, and not monopoly power, is the essential element when a conspiracy to monopolize is involved, United States v. Consolidated Laundries Corp., 291 F.2d 563, 573 (2d Cir. 1961), the absence of any likelihood of success is certainly some evidence on the question of whether such specific intent existed. And here the futility of any effort to monopolize either submarket as shown by the evidence referred to above, coupled with the repeated denials of the defendants, amply supports the finding of the district court.

Hudson Valley’s contention under Clayton Act § 3 is that the defendants agreed that Tri-City would supply all the insulation subcontracting needs of Tougher and Tompkins. This requirements contract, Hudson Valley argues, violated section 3 by foreclosing a substantial share of the market to competitors of Tri-City. See, e.g., Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580 (1961).

No such contract existed in writing, and in light of the evidence already discussed with respect to the alleged concerted refusal to deal, it is apparent that there was not even. an informal understanding to that effect. More importantly, however, section 3 applies only to contracts “for the sale of goods, wares, merchandise, machinery, supplies, or other commodities . . .15 U.S.C. § 14. As found by the district court, “[t]he insulation contracting business consists primarily of the service of covering pipes and ducts, not supplying materials.” That insulation subcontractors may provide the insulation materials which are installed is incidental to their principal function, which is to provide services. It is, of course, well settled that section 3 does not apply to sales of services. See United States v. Jerrold Electronics Corp., 187 F.Supp. 545, 554 (E.D.Pa.1960), aff’d per curiam, 365 U.S. 567, 81 S.Ct. 755, 5 L.Ed.2d 806 (1961).

The plaintiff’s claim under Clayton Act § 7 is also outside the bounds of the statute. Hudson Valley argues that the formation of Tri-City was a joint venture which substantially lessened competition. Although section 7 does apply to joint ventures, United States v. Penn-Olin Chemical Co., 378 U.S. 158, 84 S.Ct. 1710, 12 L.Ed.2d 775 (1964), the provision expressly reaches only acquisitions, direct or indirect, by corporations. See Bender v. Hearst Corp., 152 F.Supp. 569, 578-579 (D.Conn. 1957), aff’d, 263 F.2d 360 (2d Cir. 1959). Here Tri-City was formed not by two corporations but by two individuals, Robert Tougher and Harry E. Tompkins, Sr. Hudson Valley seeks to avoid the import of this shortcoming by arguing that the venture was in fact an indirect acquisition by Tougher and Tompkins.

Section 7 may apply in some circumstances to corporations when stockholders make an acquisition on its behalf. GAF Corp. v. Circle Floor Co., 329 F.Supp. 823, 829 (S.D.N.Y.1971), aff’d, 463 F.2d 752 (2d Cir. 1972), cert. dismissed, 413 U.S. 901, 93 S.Ct. 3058, 37 L.Ed.2d 1045 (1973). But this case does not present such a situation. The money to form Tri-City was invested by Robert Tougher and Harry E. Tompkins, Sr. There is no allegation that it came from their corporations. Although these two men were the presidents and controlling shareholders of Tougher and Tompkins respectively, substantial portions of the companies were owned by others and only one other shareholder of either company became a shareholder of Tri-City. Nor is there any indication that Tougher and Tompkins either planned to control or did control the activities of Tri-City. In short, it was the investments of Robert Tougher and E. W. Tompkins Sr. which were at stake in the formation of Tri-City and under those circumstances section 7 does not apply.

Having considered the points raised by the appellant, we find no basis for disturbing the judgment of the district court. Accordingly, the judgment of the district court is hereby affirmed.

      . The district court found that the plaintiff had failed to prove that the interstate cornmerce requirements of the Sherman Act had been met, but the court nevertheless went on to consider the substance of the allegations. We disagree with the jurisdictional ruling. The reach of the Sherman Act is the full extent of Congress’ broad commerce power. E. g., Gulf Oil Corp v. Copp Paving Co., 419 U.S. 186, 95 S.Ct. 392, 42 L.Ed.2d 378 (1974); United States v. Southeastern, Underwriters Association, 322 U.S. 533, 558, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944); Rasmussen v. American Dairy Association, 472 F.2d 517, 521 (9th Cir.), cert. denied, 412 U.S. 950, 93 S.Ct. 3014, 37 L.Ed.2d 1003 (1973). Thus, a holding that certain activity is outside the reach of the Sherman Act constitutes a determination that the conduct is beyond Congress’ power to regulate. Yet the proposition that courts have placed few limits on the commerce power needs little documentation. E.g., Katzenbach v. McClung, 379 U.S. 294, 85 S.Ct. 377, 13 L.Ed.2d 290 (1964). Congress may regulate purely intrastate activity as long as the conduct has a substantial effect on interstate commerce. Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Although in this case all contracting work involved was done only in New York State, Hudson Valley, while it was still operating, Tri-City, and other insulation contractors continually purchased substantial quantities of insulation materials from suppliers located outside New York for delivery and installation at work sites. Thus, the formation of Tri-City and the demise of Hudson Valley caused at least a diversion in the flow of interstate goods. Moreover, the plaintiff’s allegations concerning a concerted refusal to deal, price fixing, and conspiracy to monopolize, had they been proved, certainly could have had a substantial effect on the interstate shipment of insulation materials. Presumably the level of competition among contractors would affect the price at which contracting services were offered, and this would in turn affect the level of construction activity and hence the demand for insulation materials. Under these circumstances we are unwilling to say that such anticompetitive conduct as is alleged by Hudson Valley is beyond congressional control.
      The district court did not expressly consider whether the jurisdictional requirements of Clayton Act §§■ 3 and 7 had been met (although by implication the court was of the view that they had not, since the Clayton Act of course cannot reach beyond what the Constitution allows). It is unclear whether the Sherman Act and the Clayton Act are coextensive in this respect. In contrast to the language contained in the Sherman Act § 1 (prohibiting conduct “in restraint of trade or commerce among the several States, or with foreign nations . . ..”), Clayton Act §§ 3 and 7 prohibit activities by persons and corporations “engaged in commerce.” The Supreme Court recently declined to decide whether this difference in language gives the Clayton Act provisions a jurisdictional reach that is more limited than that of the Sherman Act. Gulf Oil Corp. v. Copp Paving Co., supra at 186, 95 S.Ct. 392, 42 L.Ed.2d 378. Since Hudson Valley’s Clayton Act allegations fall outside of the statute for other reasons, however, see discussion infra, we need not decide the reach of the Clayton Act and, if it be narrower than that of the Sherman Act, whether the activities involved in this case would fall within it.

      . Hudson Valley contends that the district court’s designation of an eleven-county area as the proper geographic market for insulation subcontracting was improper. According to Hudson Valley a three-county area immediately around Albany is the correct geographic market.
      The definition of the relevant geographic market requires “careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies.” Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 327, 81 S.Ct. 623, 628, 5 L.Ed.2d 580 (1961). We cannot say that the district court used improper means to arrive at the appropriate market. The court relied mainly on statistics showing that a substantial proportion of Hudson Valley’s insulation contracts were outside the three-county area but within the eleven-county area ultimately adopted. There was also evidence that TriCity, after it was formed, competed in the eleven-county area. Furthermore, there was testimony that even for jobs in Albany insulation contractors outside the city were invited to submit bids.

      . At one point in its brief the plaintiff refers to the success of Tougher and Tompkins in receiving for Tri-City “a monopoly of the business controlled by their companies (Appellant’s Brief at 31). This is of course not a market at all.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Marvin TOWNSEND, Defendant-Appellant.
    No. 74-2606.
    United States Court of Appeals, Ninth Circuit.
    Jan. 20, 1975.

      Ron Minkin, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and WALLACE, Circuit Judges, and TURRENTINE, District Judge.

       Honorable Howard B. Turrentine, United States District Judge, Southern District of California, sitting by designation.

   OPINION

PER CURIAM:

Townsend appeals from his conviction for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He questions the denial of his motion to suppress the heroin, claiming his consent, while in custody, to a search of his hotel room was not freely and voluntarily given. We affirm.

Townsend argues that his consent was coerced because he was not advised of his right to refuse to consent. While he acknowledges that the Supreme Court rejected a similar contention in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), he asserts that the holding in that case should be limited to its facts (a consent given by one not in custody) and that our earlier cases, which require such an admonition prior to an in-custody consent to search, control. See Schoepflin v. United States, 391 F.2d 390, 399 (9th Cir.), cert. denied 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968); cf. Cipres v. United States, 343 F.2d 95, 97-98 (9th Cir. 1965). He also urges us to follow the holding of the Fifth Circuit that where there is evidence of coercion, an in-custody consent to search is valid only if the defendant has been advised of his right to withhold consent. See United States v. Luton, 486 F.2d 1021, 1023 (5th Cir. 1973), cert. denied 417 U.S. 920, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974); United States v. Legato, 480 F.2d 408, 413 (5th Cir.) (alternate holding), cert. denied 414 U.S. 979, 94 S.Ct. 295, 38 L.Ed.2d 223 (1973).

We have already decided this issue adversely to Townsend. United States v. Heimforth, 493 F.2d 970, 971— 972 (9th Cir. 1974); United States v. Rothman, 492 F.2d 1260, 1263-1264 (9th Cir. 1973). Whether consent was freely and voluntarily given depends upon the totality of the circumstances, even where the consent was given while in custody. Id. The fact that the defendant is in custody and lacks knowledge of his right to refuse to consent forms part of the circumstances, but it is not determinative in and of itself.

Here Townsend’s arrest was based upon an out-of-state fugitive warrant which was executed after he negotiated a heroin sale with an undercover officer. Townsend asked to be taken to his hotel to retrieve valuables. The arresting officers granted his request but only on the condition that he allow them to search his room. Townsend agreed but recanted at the door to his hotel room, claiming that the room was not his and that he had no key. The agents advised him that they would honor his withdrawal of consent, after which Townsend again changed his mind. The assistant manager was summoned with a key and he asked Townsend if he could unlock the door. Townsend nodded his assent.

Townsend correctly admits that he must show that this finding of consent is clearly erroneous. United States v. Page, 302 F.2d 81, 82-83, 85-86 (9th Cir. 1962) (en banc). He has failed to do so.

Affirmed.


author: PER CURIAM.

text:
    Jacob A. BROSH, Plaintiff-Appellant, v. GRANGE MUTUAL CASUALTY CO., Defendant-Appellee.
    No. 74-1557.
    United States Court of Appeals, Sixth Circuit.
    Feb. 17, 1975.
    Buford Short, Rose & Short, Beattyville, Richard D. Cooper, Cooper, Gullett, Combs & Combs, Hazard, for plaintiff-appellant.
    Spencer Noe, Stoll, Keenon & Park, Lexington, for defendant-appellee.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and McALLIS-TER, Senior Circuit Judge.
   PER CURIAM.

Wayne and Bascom Patrick operated a used-car dealership in Stanton, Kentucky, under the name of Patrick Brothers Used Cars. One of its cars was insured under the liability insurance policy issued by Grange Mutual Casualty Company, which had liability limits of $50,-000 per person, and $100,000 per any one accident.

On March 13, 1968, Cecil P. Tyler, while en route from Virginia to Indiana in a borrowed automobile, encountered car trouble on the Mountain Parkway some distance from Stanton, Kentucky. Mr. Tyler proceeded to Stanton and contacted Mr. Wayne Patrick, one of the partners above mentioned. Mr. Tyler wanted to obtain assistance from Patrick Brothers in getting the disabled car repaired, and securing his clothing and equipment therefrom. Because Wayne Patrick had to attend a sale that day and could not personally drive Mr. Tyler to the car, he loaned him a car from his Used Car lot for that purpose. When Mr. Patrick returned from the sale that day, he noticed that the car he had loaned to Tyler was parked in front of a restaurant owned by the Patrick brothers, and across from the Patrick Used Car lot. Assuming that Tyler had returned the car, Mr. Patrick went home. Shortly thereafter, Mr. Patrick received a telephone call from Tyler, who said he was taking the car which he had borrowed from Mr. Patrick, to Indiana. Mr. Patrick specifically denied Tyler permission to take the car to Indiana and proceeded immediately to the restaurant to reclaim custody of the car. Arriving at the restaurant, Mr. Patrick learned that Tyler had left, taking the Patrick automobile with him, and Mr. Patrick then called Ernest Crabtree, then Sheriff of the County, and informed him that Tyler had taken the automobile without authority or permission, and sought the assistance of the Sheriff to recover and return the wrongfully appropriated vehicle. The Sheriff was unsuccessful in this quest.

Thereafter, Tyler was involved in an automobile accident in Racine County, Wisconsin, which resulted in injuries to Jacob A. Brosh, plaintiff-appellant herein. Mr. Brosh notified Grange Mutual of the accident and sought settlement for his injuries. After thorough investigation of the claim, Grange Mutual denied coverage under the policy on the ground that Tyler was not operating the car with the permission of the named insured, supported by the stolen-car report filed by Mr. Patrick.

Mr. Brosh then filed suit against Tyler in the United States District Court for the Eastern District of Kentucky. Neither the owners of the automobile, Wayne and Bascom Patrick, partners doing business as Patrick Brothers Used Cars, nor their insurer, Grange Mutual, was named a party defendant therein. The Complaint alleged that the vehicle owned by Patrick Brothers Used Cars was operated in such a negligent and careless manner as to cause said vehicle to run into and over plaintiff, Jacob A. Brosh.

The Complaint alleged further that at the time of the accident, the vehicle was being operated with the permission and consent of the owner thereof, Patrick Brothers Used Cars. Tyler, the wrongful absconder of the vehicle, presented no defense to the action; and, on motion of the plaintiff, Jacob A. Brosh, default judgment was rendered and a trial held to determine the damages he had suffered. The jury returned a verdict in favor of Brosh on default judgment, and judgment was entered thereon.

At no time during the course of the above litigation did Grange Mutual undertake, furnish, or control the defense of Tyler, nor otherwise advise him in any way relative ■ to the conduct of such defense. Judgment was solely entered in the above suit against Tyler for his negligent operation of the Patrick vehicle.

When Brosh was unable to collect from Tyler, he made demand on Grange Mutual for satisfaction of the judgment up to the policy limits.

Grange Mutual refused the demand on the ground that Tyler was not an insured under the policy, and the claim was not otherwise within the coverage afforded by its policy issued to Patrick Brothers Used Cars. The instant lawsuit was then brought by Brosh to recover under the aforesaid policy. The policy provided:

“IV. PERSONS INSURED.
Each of the following is an insured under this insurance to the extent set forth below:
(1) . . .
(2) . . .
(3) with respect to the automobile hazard:
(a) Any person while using, with the permission of the named insured, any automobile to which the insurance applies under the automobile hazard, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission.....”

The permission which Mr. Patrick gave Tyler was a strictly limited permission to obtain assistance in having Tyler’s car repaired in Stanton, Kentucky, and securing Tyler’s clothing and personal effects, and removing a damaged tire. At no time did Patrick give Tyler more than this strictly limited permission to use the used car owned by the Patricks. When Mr. Patrick learned that Tyler was violating all these limited agreements and, contrary to Mr. Patrick’s express command, was driving the Patrick car out of the state into Indiana, Mr. Patrick did everything possible to prevent it, to the extent of enlisting the Sheriff’s help in preventing this unlawful use of the car. When Tyler, contrary to this agreement with Mr. Patrick, drove the car to Indiana, Mr. Patrick’s limited permission to drive the car to Stanton terminated, and the further unauthorized use of the Patrick car by Tyler was without and beyond the scope of permission to drive the car the short distance in Kentucky, and hence was outside the coverage afforded by the Grange Mutual policy; and the court properly entered findings to this effect.

We have carefully reviewed the arguments of appellant and find them to be without merit. In accordance with the foregoing, the judgment entered in favor of Grange Insurance Company and the dismissal of appellant’s complaint by Judge Bernard T. Moynahan, Jr. are hereby affirmed.


author: HASTINGS, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tommie Lee NEWTON and Willie Stokes, Defendants-Appellants.
    No. 74-1560.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 9, 1974.
    Decided Feb. 13, 1975.
    Rehearing Denied June 18, 1975.

      Robert S. Bailey, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Ann C. Tighe, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   HASTINGS, Senior Circuit Judge.

Defendants-appellants Tommie Lee Newton and Willie Stokes were tried and convicted on a single count of an indictment charging a violation of Title 21, U.S.C. § 841(a)(1). The count charged that defendants “knowingly and intentionally did possess with intent to distribute approximately 1,077 grams [2.2 pounds] of a substance containing heroin, a Schedule I Narcotic Drug Controlled Substance.” Following defendants’ knowing written waiver of trial by jury, the case was tried to the court. Ms. Newton was sentenced to three years imprisonment with three years special parole to follow. Mr. Stokes was sentenced to five years imprisonment with three years special parole to follow. Both defendants have appealed.

The essential issue presented for review concerns the validity of the search and seizure of the heroin in question and the court’s denial of defendants’ motion to suppress the heroin seized in the initial search of Ms. Newton’s luggage on July 29, 1973, at Chicago O’Hare Airport. Following an evidentiary hearing the trial court expressly predicated its denial upon the lack of governmental participation in the search.

The undisputed facts reveal the following relevant circumstances surrounding the warrantless search and seizure, as well as the warrantless arrest of defendants.

On Sunday, July 29, 1973, a Continental Airlines flight from Los Angeles, California, arrived at O’Hare Airport in Chicago, Illinois, about 8:00 a. m. Several pieces of luggage were misplaced and did not arrive with the rest of the luggage from the flight. Among the misplaced bags was a blue suitcase which had been checked by Ms. Newton. Shortly after 8:00 a. m. Ms. Newton went to Continental’s lost and found baggage counter to report that her luggage had been misplaced. She spoke with Ms. Shava Spector, a Continental employee, who sought to complete a lost baggage claim slip for Ms. Newton. Spector requested Newton’s claim check number, a description of the lost bag, and the name, address and telephone number of the claimant. Newton refused to provide the requested information and left the counter.

About thirty minutes later, Ms. Newton, accompanied by Willie Stokes, returned to the claim counter. After a dispute with Ms. Spector concerning a blue suitcase at the counter, which was shown not to belong to Newton, Newton handed Spector her claim check and Spector began to copy its numbers on the lost baggage claim form. Stokes took the claim check from Spector and told Newton, “Don’t tell her anything. Don’t give her any information.” After learning that the next Continental flight would arrive about 2:00 p. m. Newton and Stokes advised Spector that they would wait around for the bag. About 10:00 a. m. an unnamed male person called Continental inquiring about the same luggage but refused to leave his telephone number so that his call could be returned.

At about 10:30 a. m., Ms. Spector, being suspicious because of these circumstances, related the events to her superi- or, Mr. Lauren Anderson, supervisor of passenger service. Ms. Spector had also called the Drug Enforcement Administration (DEA) in Washington, D.C., and related the events concerning Ms. Newton’s bag. She was told that a local agent on duty in Chicago would be notified. Anderson believed that defendants’ conduct was “different,” and told Ms. Spector that he would attempt to locate the bag and open it to ascertain its contents. Anderson testified at the hearing concerning Civil Aeronautics Board Regulation No. 142 which he said allowed luggage searches at the sole discretion of airline personnel.

About 1:30 p. m. DEA Agents David Haight and Robert Fanter arrived at the airport. They were informed by Spector and Anderson of the morning’s events. Anderson told the agents he was going to meet the 2:00 p. m. flight from Los Angeles to see whether the suitcase was on the plane, and of his plan to search the luggage. They waited in a room at the terminal where the bag was brought and where they met another Continental employee, Elmer Rossini.

At that time Agent Haight told the Continental employees that the agents had no authority to conduct such a search. Haight testified that he reached this conclusion in view of the total absence of any probable cause to believe the suitcase contained contraband. Anderson had the claim check number given by Newton and matched it with the suitcase claim check. Anderson and Rossini opened the suitcase with a passkey in the presence of Agents Haight and Fanter. Anderson searched the suitcase and withdrew a brown paper bag which contained two plastic bags filled with a brown powdery substance. Anderson handed the two plastic bags to Haight. Agent Haight was prepared to conduct a field test on the brown substance with a Marquis Reagent. He field-tested the substance at that time, producing a positive reaction, indicating the presence of heroin. Anderson then replaced the brown paper bag with its brown substance in the suitcase, closed it and sent it to the baggage claim area.

At about 3:00 p. m., defendants Newton and Stokes claimed the suitcase from the public viewing area. Both were arrested by the DEA Agents as they attempted to leave the airport with the bag in their possession. They were charged with possession of heroin with intent to distribute, as hereinabove set out.

FOURTH AMENDMENT QUESTION

At the outset, we are faced with the question of whether the search of defendants’ luggage at O’Hare Airport on July 29, 1973, was in violation of defendants’ Fourth Amendment protections against unreasonable searches and seizures and required the suppression of the use of the seized matter in a subsequent criminal prosecution. The controlling subsidiary question here is whether, under the facts of this case, the subject search was a government search within the protection of the Fourth Amendment or a private search to which the amendment is not applicable.

To carry out the limitations imposed by the Fourth Amendment the Supreme Court has established the rule requiring in a federal criminal prosecution the suppression of evidence seized in violation of a defendant’s Fourth Amendment rights. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914). This exclusionary rule was made applicable to the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The exclusionary rule has given rise to much judicial controversy over the years. We shall not attempt a comprehensive review of the sharp judicial dispute, debate and disagreement it has engendered.

Illustrative of this cleavage and the changing concepts of the exclusionary rule is Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960), where a sharply divided court rejected the validity of the so-called “silver platter doctrine” of Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949). In Elkins, Mr. Justice Stewart repeated the time-honored observation that “[m]ost of what has been said in opposition to the rule was distilled in a single Cardozo sentence — ‘The criminal is to go free because the constable has blundered.’ People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 [1926].” 364 U.S. at 216-217, 80 S.Ct. at 1444. He also noted at greater length the well-known statement of Professor Wigmore which concludes: “ ‘Our way of upholding the Constitution is not to strike at the man who breaks it, but to let off somebody else who broke something else.’ 8 Wigmore, Evidence (3d ed. 1940), § 2184.” Id. at 217, 80 S.Ct. at 1444.

In United States v. Issod, 7 Cir., 508 F.2d 990 (1974), we set out certain applicable guidelines testing a motion to suppress narcotics on the ground that they had been seized in violation of defendant’s Fourth Amendment rights in a criminal prosecution for a violation of § 841(a)(1), supra. Issod involved an airline’s search in San Diego, California, where two trunks were searched without a warrant. The trunks were assigned to Milwaukee, Wisconsin, where a subsequent warrantless search was made. In California a state narcotics agent was concerned. In Milwaukee a federal narcotics agent was involved. The admissibility of the challenged evidence depended upon the validity of .both the search in California and the seizure in Wisconsin.

In Issod, Judge Tone, speaking for our court, summarized the applicable cases and concluded that an inspection by a carrier without the participation of state or federal authorities is not a government search. The crux of the holding was that the issue is to be determined by the facts surrounding the search. 508 F.2d pp. 993-994, citing cases.

The circumstantial chain of connection between the airline employees and the federal agents is convincing. The federal authorities were first notified in Washington, D. C., and they dispatched two agents from Chicago to the airport. They were expected by the airline employees, although the employees did not know at that time who the agents would be. They all remained together at the terminal room. The agents witnessed the search and Agent Haight came prepared with a Marquis Reagent to make a field test. He was handed the suspected contraband by the airlines employee as soon as it was discovered in the search. Agent Haight immediately field-tested the suspicious substance and found it to be contraband. He returned it to the airline employee who put it back in the luggage. This was not a “hands-off” participation by the federal agents.

In the first place, the airline employees did not need to search the luggage to find out to whom it belonged. They already knew. There was only one reason why they initially notified the DEA and subsequently took the federal agents into their confidence; that was to determine whether the bag contained narcotics and, if so, to turn it over to the agents for their investigative activities. That the agents came prepared to participate in the immediate investigation is without dispute. Haight candidly testified that there was no probable cause, no warrant, no consent, no exigent circumstances and no prior arrest. Under all of these circumstances we feel compelled to reach the conclusion that this was a government search requiring the application of the Fourth Amendment. It would have been so simple for the federal agents to have remained aloof from a private search by the airline employees and awaited their report.

In reaching this conclusion we attach no weight to the defendants’ argument that a private citizen’s motivation for conducting the search is of critical importance. In United States v. Billingsley, 7 Cir., 440 F.2d 823, 826, cert. denied, 403 U.S. 909, 91 S.Ct. 2219, 29 L.Ed.2d 687 (1971), in upholding a finding of a private search, we noted that the private individual involved had not “acted either at government direction or for the purpose of assisting the investigation.” That statement should not be read to imply that a mere purpose to assist the government will be sufficient in and of itself to transform an otherwise private search into a government search. Cf. Corngold v. United States, 9 Cir., 367 F.2d 1, 5 (1966), with Gold v. United States, 9 Cir., 378 F.2d 588, 590-591 (1967).

We agree with the government’s contention that defendants’ reliance on Knoll Associates, Inc. v. FTC, 7 Cir., 397 F.2d 530 (1968), is misplaced. Knoll has been effectively distinguished in Billingsley, supra, and in United States v. Harper, 7 Cir., 458 F.2d 891, 893-894 (1971), cert. denied, 406 U.S. 930, 92 S.Ct. 1772, 32 L.Ed.2d 132 (1972), relying upon NLRB v. South Bay Daily Breeze, 9 Cir., 415 F.2d 360, 363 (1969), cert. denied, 397 U.S. 915, 90 S.Ct. 919, 25 L.Ed.2d 96 (1970).

The government places material reliance on Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), and its progeny. In Burdeau, the Court established one of the early exceptions to the exclusionary rule laid down in Weeks v. United States, supra. It held that when no federal officer had anything to do with the wrongful seizure of an individual’s property, or any knowledge thereof until several months thereafter, there was no invasion of the security afforded by the Fourth Amendment. 256 U.S. at 475, 41 S.Ct. 574. Further, the Court held that such materials, when turned over to the government by the private individuals who procured them, might be retained by the United States for use as evidence in the criminal prosecution of their owner. Id. at 476, 41 S.Ct. 574.

In our considered judgment, Burdeau and cases following it are distinguishable since in the case at bar under the facts hereinabove set out, there was joint participation by the private airline employees and the federal agents in the search and seizure sufficient to taint the use of the contraband seized.

Finally, as an alternative ground that the search of Ms. Newton’s luggage at the airport was governmental in nature, defendants rely upon the theory that this is so because of the extensive federal regulation of airports and airlines. In view of our disposition of this matter on other grounds we need not reach this question. The United States calls our attention to defendants’ cited cases being related to the anti-hijacking program and states that such problems are not related to the case at bar. We agree.

In light of the foregoing, we hold that the district court erred in concluding that there was a lack of governmental participation in the search and seizure at issue. The judgment of conviction of defendants Newton and Stokes is reversed.

Reversed.

      . § 841. Prohibited acts A — Unlawful acts
      (a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;. * * *

      . Newton and Stokes, together with two other individuals, were initially charged in a three-count indictment with conspiracy and substantive offenses in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following the evidentiary hearing on the motion to suppress by all defendants, the trial court denied the motion as to Newton and Stokes, but granted it as to the two other defendants. Counts one and three of the indictment were dismissed on motion by the government. Newton and Stokes thereupon proceeded to trial on the substantive count two.

      . AMENDMENT IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . In Elkins, Mr. Justice Stewart, writing for the majority, marshalled and reviewed many of the cases concerned with the exclusionary rule. Mr. Justice Frankfurter, writing for the minority, did the same in defense of the “silver platter doctrine” which he had authored in Lustig.

      . See Byars v. United States, 273 U.S. 28, 32-34, 47 S.Ct. 248, 71 L.Ed. 520 (1927); Gambino v. United States, 275 U.S. 310, 314, 316-319, 48 S.Ct. 137, 72 L.Ed. 293 (1927). It is interesting to note that Mr. Justice Brandéis, joined by Mr. Justice Holmes, dissented in Burdeau v. McDowell, supra, yet they joined in a unanimous Court in Byars and in Gambino, with Mr. Justice Brandéis authoring the latter.

      . United States v. Davis, 9 Cir., 482 F.2d 893 (1973) and United States v. Lopez, E.D.N.Y., 328 F.Supp. 1077 (1971). However, in an analogous case, United States v. Ogden, 9 Cir., 485 F.2d 536 (1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974) , the court declined to extend the protection of the Fourth Amendment to an airport search conducted outside the scope of the anti-hijacking program.


author: BREITENSTEIN, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. KING RADIO CORPORATION, Respondent, Communications Workers of America, AFL-CIO, Intervenor.
    No. 74-1421.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 24, 1975.
    Decided Feb. 12, 1975.
    Rehearing Denied March 24, 1975.

      Alan D. Longman, Atty., N. L. R. B. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, and William H. DuRoss, III, Atty., N. L. R. B., on the brief) for petitioner.
    William G. Haynes, Topeka, Kan. (Eidson, Lewis, Porter & Haynes, Topeka, Kan., on the brief) for respondent.
    Blake, Uhlig & Funk, Kansas City, Kan., and Kane & Koons, Washington, D. C., of Counsel, filed a brief for intervenor.
    Before BREITEN STEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

For the third time in six years the National Labor Relations Board asks us to enforce an award against King Radio Corporation requiring it to bargain with the Union. No contract has been made. Employer withdrew its recognition of Union and refused to bargain. Board sustained an unfair labor practice charge filed by Union and ordered Employer to bargain. We enforce the award.

Union was certified as exclusive bargaining representative of an appropriate unit of employees in August, 1966. In King Radio Corporation v. National Labor Relations Board, 10 Cir., 398 F.2d 14, we enforced a Board award holding Employer guilty of various unfair practices and requiring it to bargain with Union. Over a year later, in 1969, the controversy was back with us. In National Labor Relations Board v. King Radio Corporation, 10 Cir., 416 F.2d 569, cert. denied 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420, we enforced those portions of an award requiring back pay and bargaining.

After denial of certiorari in the last case, the General Counsel and Employer filed a joint motion for clarification of the award. On October 7, 1971, Board made a clarifying order having to do with back wages, not duty to bargain. See 193 NLRB 614.

In the 40-month period from October 9, 1968, to February 18, 1972, Employer and Union met for collective bargaining on 21 occasions. At the last mentioned session two items, wages and checkoff, prevented total agreement. Union offered for the first time to pay Employer two or three cents a card for processing dues checkoff. Employer rejected the offer. At the February 18 meeting Employer did not express a doubt as to Union’s majority status.

With regard to the February 18 meeting Board said that “at no time in the history of this bargaining relationship have the parties been so close to reaching an agreement.” During the next three months Union representative tried several times to reach Employer representative on the phone and his calls were not returned. In the period May 22 to July 27 Union representative wrote three letters to Employer representative requesting resumption of bargaining negotiations. There was no response. On August 3, Union filed an unfair labor practice charge against Employer. Eight days later Employer wrote Union that it had no obligation to continue a “fruitless marathon of bargaining,” and questioned, for the first time, the majority status of Union on the basis of increase in unit size and employee turnover.

At the time of the 1966 election, 343 employees in the unit were eligible to vote. The result was 182 for Union and 114 against. On August 9, 1972, Employer had 876 employees within the unit. In the period 1967-1972 Employer hired 4,214 workers and terminated 3,423. Twenty-two of those employed on the date of the election remained employed in August, 1972.

The Administrative Law Judge found that when Employer withdrew recognition it had sufficient grounds for belief that a majority of the unit employees no longer wanted Union representation. Board disagreed saying (1) Employer did not present objective facts showing good faith doubt of majority status; (2) the claim of doubt as to majority status was an afterthought in response to Union’s unfair practice charge; and (3) Employer’s action was another effort to avoid an agreement with Union. Board went on to hold, 208 NLRB No. 82:

“This is clear from the fact that during the critical negotiating sessions involved herein and following them up until August 11, 1972, the Respondent had never made a claim to the Union that it doubted its majority status even though the factors upon which it relied to establish the alleged doubt in this case were well known to the Respondent during all critical times herein.”

More than a year passed after Union certification without a contract. Thereafter, the presumption of representative status is rebuttable and an employer may refuse to bargain if he has a good faith, reasonable doubt of Union majority status. National Labor Relations Board v. Frick Company, 3 Cir., 423 F.2d 1327, 1330-1331. Proof of an employer’s frame of mind is not enough. He must show a rational basis in fact for doubt of majority status. National Labor Relations Board v. Rish Equipment Company, 4 Cir., 407 F.2d 1098, 1101. Employee turnover alone does not provide a reasonable basis for concluding that a Union has lost majority status. National Labor Relations Board v. Little Rock Downtowner, Inc., 8 Cir., 414 F.2d 1084, 1091.

Employer emphasizes disagreement among Board members as to the application of the law when an employer withdraws recognition. Differences of opinion have arisen over the burden placed on the General Counsel in such a situation and other related matters. We decline to be concerned with such problems and we make no attempt to reconcile Board decisions. In Brooks v. National Labor Relations Board, 348 U.S. 96, 104, 75 S.Ct. 176, 182, 99 L.Ed. 125, the Court, in discussing an employer’s refusal to bargain when he doubts a Union’s continuing majority, said: “This, too, is a matter appropriately determined by the Board’s administrative authority.”

Employer urges that bargaining had reached an impasse. Board found no merit in this contention. We rejected the claim of impasse when the controversy was here the second time, 416 F.2d at 571. We agree with Board that the February 18 meeting showed agreement on many issues and progress on those then in disagreement. Determination of an impasse is a fact question peculiarly within Board expertise. National Labor Relations Board v. J. H. Bonck Company, 5 Cir., 424 F.2d 634, 638. The record before us sustains Board’s action.

We reject Board’s argument that Employer cannot question majority status because it has not paid the back pay award. More than three years has gone by since Board clarified that award. At argument Board attorneys said that the award had not yet been computed and paid. In 1972 a Board attorney estimated that “back pay would be around $25,-000.” Employer offered to pay that amount and the offer was declined. The failure of Board to compute the award is inexcusable. Board cannot now take advantage of a situation of its own making.

The record shows no indication of employee opposition to Union. Employer’s reliance on increase in unit size and personnel turnover does not impress us. Claim of loss of majority status was not made until after Union filed an unfair practice charge based on failure to negotiate. Board was justified in finding that Employer was not bargaining in good faith.

Neither Employer, Union, nor Board can be proud of the manner in which this controversy has been handled. In 1968 we ordered enforcement of an order to bargain. In 1969 we ordered enforcement of an order requiring back pay and bargaining. It is now 1975. The parties have neither agreed nor reached an impasse, and the back pay has not been computed by Board. A prompt conclusion of the dispute is desirable,

The award is enforced. The mandate shall issue forthwith.