author: EDWARDS, Circuit Judge. McCREE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Johnnie HOLLAND, Defendant-Appellant.
    No. 74-1655.
    United States Court of Appeals, Sixth Circuit.
    Argued and Submitted Oct. 16, 1974.
    Decided Feb. 18, 1975.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2401.
    Robert J. Dugan, Mohney, Goodrich & Titta, Grand Rapids, Mich. (Court-appointed — CJA), for defendant-appellant.
    Frank Spies, U. S. Atty., Robert C. Greene, Asst. U. S. Atty., Grand Rapids, Mich., for plaintiff-appellee.
    Before EDWARDS and McCREE, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   EDWARDS, Circuit Judge.

This case involves the entry by police into an American home against the wishes of the occupant and without a judicially issued search warrant. The reason given for the entry is the claim of “hot pursuit” of an armed bank robber. The prosecution insists that circumstances of this case come within the “hot pursuit” exception in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). The defendant contends that the pursuit was not that warm and that the intervention of a neutral magistrate’s judgment was essential to lawful entry of the home concerned. Although the record involved here does not involve a police chase with eyeball contact, we believe the detailed facts known to the police and the time sequences concerned warrant our affirmance of the judgment of conviction of the United States District Court for the Western District of Michigan.

There is no doubt about appellant Holland’s guilt. The jury had before it eyewitness identification of Holland as the armed man who robbed the First Federal Savings and Loan at Niles, Michigan, at approximately 4 o’clock in the afternoon of January 28, 1974. In addition, however, the jury heard testimony concerning Holland’s confession after Miranda warnings, saw the revolver which the police had seized and which was introduced as an exhibit, and likewise heard testimony concerning the money which had been taken from the bank, most of which was recovered from the house under a search warrant issued after Holland and an associate had been arrested and the gun had been found. Since some of the facts detailed in the sentence immediately preceding were admitted because of the District Judge’s denial of a motion to suppress evidence made before trial started, if the search was in violation of the Constitution, disposition of this case of necessity would require vacation of judgment and new trial under circumstances where much of the evidence of guilt would be inadmissible. The United States Supreme Court has, however, on many occasions upheld the right of American citizens to be free from arbitrary police intrusions into the sanctity of their homes, even if it might mean that a guilty person might go free. See Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948). See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This court has followed these decisions faithfully. United States v. Griffin, 502 F.2d 959 (6th Cir. 1974); United States v. Stoner, 487 F.2d 651 (6th Cir. 1973); United States v. Nelson, 459 F.2d 884 (6th Cir. 1972).

Our affirmance of this conviction is predicated upon what we deem to be prompt, effective, and constitutionally permissible police work by a number of police officers in a small Western Michigan city numbering 17,000 persons. The critical observations and deductions, however, were supplied by one man. On that day Frank Bickel proved to be the small-town detective who could.

The robbery occurred at 3:55 p. m. when a young black male, subsequently described as 6 ft., 2-4 inches tall, clean shaven, with a short Afro haircut, and wearing a % length tan coat appeared at the bank, drew a gun, and demanded and received money from one of the tellers. In the course of packing the money into a bag he was carrying, he removed a bag of Fritos which he had been eating and left it on the counter. The police received the alarm at 4:08 p. m. and arrived at the bank shortly thereafter.

Plainclothes detective Bickel arrived at the bank between 4:10 and 4:20, received a description of the bandit from the first officers to arrive, and proceeded to circle the area alone in his car. We deem his testimony at the suppression hearing as to the trail he picked up and his following of it to be critical to this case:

Q What did you observe, if anything?
A I found tracks leading from the direction of the bank, approximately a block away from the bank, leading in a southern direction from the bank, going from the bank.
Q Now when you say you saw tracks, were these tracks in the snow or in the dirt, or what?
A Well, there was snow.
Q Tracks in the snow?
A Yes.
* * * * * *
Q Was there anything significant about the tracks?
A Well, the only thing was they were pretty decent size strides. Somebody was running was what it was.
Q How can you tell that all the tracks you were looking at were made by the same foot or feet?
A Well, it had a rare, kind of a rare heel on it. Most heels either go straight up and down or slant a little toward the front. This heel cut back in. It had a pretty sharp cut back.
Q Why did you think that was significant?
A Well, it was a different type of heel to me.
Q Was there a lot of snow on the ground or was it just a light covering of snow?
A There was approximately two inches, two, two and a half inches.
Q Two and a half inches of covering?
A Yes, I would say two and a half to three.
Q Well, where exactly did you see the footprints, on the sidewalk or on the street or on a lawn?
A Well, it was right along the edge of the roadway is where it was.
Q On the edge of the roadway?
A And then it cut across the lawn, across the—
Q Okay. Were you by yourself when you were trailing these footprints?
A No, Sergeant Toner was — or, Captain Toner was there.
* * * * * *
Q Okay. Where did you and Captain Toner trail the footprints to, where did they lead?
A They led up to a house at 1644 Maple Street, which is two blocks away from the bank.
Bickel’s testimony as to his observations at 1644 Maple Street continued:
Q When you say that the footprints led you to 1644 Maple, you mean you trailed them right up to the front door?
A No, they went to—
Q Where did they lead to?
A There had been a car sitting there because it was more or less melting that day, and you could see the snow where it melted and ran off of the car, you know, how you park a car. And it appeared they got into the car there, into a car.
Q It appeared that somebody got into a car there?
A That same track that went across the lawn, yes.
THE COURT: You say it appeared to lead to the car?
A Yes, it led to the car, right.
Q Were there other footprints in the snow in that neighborhood?
A. Yes. They were — I would say on the other side of the car, I would say on the right side of the car there probably was, leading in and out of the house, you know, people—

Bickel identified his time of arrival at the Maple Street residence as approximately 4:20 p. m. and went on to describe a conversation with a woman (later identified as Eva Kirtdoll) who came out of the house to inquire about what was going on:

Q What did you tell her?
A I told her we had some trouble down at the bank, down at the corner at the bank. And evidently she knew what I meant. She didn’t say no more. I asked her if a car had just left there, and she said yes, there had been a car that just pulled out, it was
her son, and he had picked up his children.
Q Okay. And that is all she told you?
A. Yes.
Q And then did you do anything further at that residence?
A No. We left.
Q You left the residence?
A Yes.
Q And where did you go after that?
A We went to Ferry Street. I am not sure of the address.
Q Would it have been 844 Ferry — • 814, excuse me?
A 814, yes.
Q Why did you go there?
A We went there because that is where she said her son had lived. A Billy Kirtdoll, I guess it was.

At the Kirtdoll house conversation with Billy Kirtdoll (as shown below) triggered Bickel’s recollection of an earlier observation which he had made but had not then related to the bank alarm:

Q Did you question Billy Kirtdoll?
A As I walked up, they asked him where he had been, I believe, and where he had just come from.
Q And what did he say?
A His reply was that he had just come from his mother’s house on Maple Street with his children, I believe he said.
Q Did he say anything else?
A And I asked him who was the other fellow that he had — because — -I have got to back up, because earlier I saw this car. I didn’t know who it was at the time I was going to the bank. I saw a ear, a green car with two colored subjects in it.
Q One of them being Billy?
A I would not say.
Q You didn’t know who the people in the car were?
A No.
Q But did you ask Billy if he had been with someone else when he drove from his mother’s house to his house?
A When Toner and Winquist asked him this, his answer was that he picked up his children at his mother’s house, and he let it drop at that.
Q And then you asked him if he had been with somebody else, or did you ask him that?
A I said, “Who was that other fellow you had with you?”
Q And what did he say?
A He said, “That was you that saw me at 16th and Oak, wasn’t it?” I said, “Yes.”
Q What else did he say, if anything?
A He then said he had — I am not sure what relation it is — Henry Gross with him.
Q He said that was a relation of his?
A Some relation, yes, and I don’t remember what it was.

Bickel also testified that he knew Henry Gross and knew that Gross had a prison record. The examination continued as follows:

Q Okay. Now, after Billy Kirtdoll told you that Henry Gross had been in his car, what did you do at that point?
A We went to Henry Gross’s house.
Q Okay. And did you know where Henry Gross lived?
A Yes, I did.
Q Having known him for eight years?
A Yes.
Q And if I could back track a minute, did Billy Kirtdoll tell you why he had been with Henry Gross or how Henry Gross happened to be in Billy Kirtdoll’s car?
A No. He just said he picked him up at his mother’s house and took him home on 5th Street.
Q And Billy Kirtdoll did not mention anyone else besides Henry Gross?
A No.
Q Did you go to Henry Gross’s house again with Captain Winquist and—
A Yes.
Q Was it Captain Toner?
A Captain Toner, yes.
Q Was there anyone else with you?
A There was other officers around, but we were the main ones that was at the door.

Bickel estimated that they arrived at Gross’ home at 1016 North Fifth Street about 20 to 30 minutes after he had left the bank, and that, by the time of their arrival there were eight police officers in total on the scene. Under Captain Winquist’s orders the officers surrounded the house. Bickel went to the front door and asked a girl who came to the door and identified herself as Henry’s sister, if Henry Gross was there and received a denial. Bickel’s testimony continued:

Q Did you tell her why you were there?
A And then Winquist walked up. Like I say, he was there at that time, and started to — -he told her, I believe, that there was — you will have to ask him — a bank robbery had taken place and we had reason to believe that he was there, because he had been dropped off. Now that is where he took over and he started in talking.
THE COURT: Winquist started in talking?
THE WITNESS: Yes.
Q And did Winquist ask to come in the house?
A Yes.
Q What did Henry’s sister say?
A She still refused to let us in, because she said she didn’t think that we should come in the house. She didn’t want us in the. house.
Q Did she deny that Henry was there?
A Yes, she said that he was not there.

Bickel testified that they were able to see several children playing in the living-room with a TV set going, and the examination continued:

Q Then Henry’s sister said, no, Henry wasn’t there, and, no, you couldn’t come in; what happened after that?
A I heard something, a noise that appeared to be something falling down, like wood or something.
Q Where did you hear this noise?
A It appeared to be coming from the upstairs of that house.
Q Did you know that Henry’s house — well, excuse me. Did you know that Henry lived in that house with his sisters and nephews and nieces, mother?
A I knew him to have lived there. I think he had been away from there, though. I am not sure. I thought he was away to prison.
Q You knew the house had several inhabitants, is that correct?
A Yes.
THE COURT: Had several what?
MR. DUGAN: Inhabitants. In other words, members of the family.
Q It was a large family?
A Yes, I believe it is.
Q And you heard a noise on the second floor?
A Yes, right.
Q Like wood dropping?
A It sounded like that, yes.
Q What did you think the significance of that was?
A Well, at the time that I heard it, I thought that somebody had tripped over something. This is what it sounded like.
Q What did you do then after hearing noise upstairs?
A By this time, as I say, I was just listening at that point, and Winquist was talking. He said, “Well, we are going to have to come in and search for Henry,” is what he told this sister, I believe it is.
Q And what was her response?
A She said — well, I don’t know what she said. I can’t say what she said. I don’t remember.
Q Okay. And what did you do, go in?

A We went in and searched, yes. Several officers entered the house. Bickel and Captain Toner went upstairs where they found Henry Gross sitting on a couch and they arrested and handcuffed him.

Subsequent to the arrest, Bickel testified to observing two pairs of “wet shoes,” one of them having the heels which “I had described earlier stuck out in my mind.” He also testified that Henry Gross put on the other pair. Bickel testified that they then observed an attic door which was closed on the outside by bent nails which had been turned over, that he “bent them open” and opening the attic door found a man, who ultimately proved to be appellant Holland, lying on the attic floor. Holland likewise was arrested and searched. One of the officers found bullets on his person and the gun was found where he had been lying.

Bickel was present when Captain Winquist advised both Gross and Holland of their Miranda rights subsequent to which they were taken to the station. There Captain Toner and Bickel talked to Holland. “I read him the Miranda warning card again at the station in the I.D. room. And at that point he said that he had robbed the bank and he had the money stashed in a church, I believe.”

Under cross-examination Bickel agreed that these events had occurred without a warrant for arrest or a warrant for search.

There was other testimony at the suppression hearing, confirming Bickel’s deduction that the bank bandit had entered Billy Kirtdoll’s car. Captain Paul Winquist, who at the time was acting Chief of the Niles Police Department, also testified concerning the employment of a police dog and his policeman handler in tracing the bank robber. He testified that at his orders the handler and the dog came to the bank, that the Fritos bag left by the bank robber was used to give the dog the scent, that the dog followed the scent across the floor of the bank, out the door, over to 17th Street, and along 17th Street to the driveway at 1644 Maple, arriving only shortly after Bickel. Captain Winquist testified concerning the dog’s actions at the driveway: “He came up to the driveway and would kind of circle around there like he lost the scent, you know, it stopped there.”

Captain Winquist also testified that after the arrest of Henry Gross and appellant Holland, he went to the Prosecuting Attorney’s office and sought a warrant for the search of the Gross home to seek to locate the proceeds of the bank robbery and that such a search did result in recovery of those proceeds.

Still another police officer named Phillips testified that he had been present at the arrest of appellant Holland and standing beside Holland had shown his flashlight into the attic where Holland had been lying and had seen a gun described as a shiny, snub-nosed .38 in plain view. He seized this gun and it was subsequently introduced into evidence.

On these facts the District Judge who heard the motion to suppress evidence denied it, relying upon Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and saying as follows concerning appellant’s charge that the search was in violation of the Fourth Amendment:

The Hayden case is authority for the proposition that it was not. Certainly there was no break in the chain of immediate pursuit of a serious crime, armed robbery of a bank, and the sequence of events, the totality of the circumstances furnished the kind of exigent circumstances, and this is — I catalogue this case as an exigent circumstance, hot pursuit case. And the combination of the exigent circumstances, the intelligence acquired, and the ad hoc decision of the officers under the circumstances, combined to bring it within the Warden v. Hayden decision.

While this case is not without difficulty in constitutional terms, we believe that the District Judge properly denied the motion to suppress under the authority of Warden v. Hayden, supra. We recognize that the time interval between the armed robbery and police arrival at the house where Gross and Holland were arrested was probably somewhat greater than the time interval involved in the Hayden case. But the fact that there were three houses involved in this chain of circumstances and, hence, a somewhat longer pursuit, neither breaks the chain nor alters the concept of hot pursuit. The fact that the trail of running footsteps, followed by Detective Bickel, led to and ended at a driveway from which a car had recently departed, and that the scent followed by the police dog ended at the same place gave these officers ample reason to believe that the bandit had entered a car there. That car being identified to them by Eva Kirtdoll as one driven by her son, they proceeded immediately to where he and it were found, and there became aware from Detective Bickel’s prior observation (confirmed by Kirtdoll) that another man had been in the Kirtdoll car with Billy shortly after the bank robbery. On being told that that man was Henry Gross, the officers doubtless decided to proceed to his home with the purpose of arresting him.

This decision leads to appellant’s principal attack upon the hot pursuit theory. It is illustrated by the cross-examination of Bickel which follows:

Q At the time you got to the top of the stairs and arrested and frisked Henry Gross — excuse me for being repetitive, but at that time was he an under six-foot male with a long afro who had a mustache?
A Yes. Yes, I would say.

In the quiet atmosphere of a judicial chamber, it is easy to decide that there were discrepancies between the description of the bandit which the police had been furnished and the person of Henry Gross whom they then intended to arrest. He was, however, young, black and thin, and had been wearing a % length coat, all of which characteristics corresponded with the description conveyed by hearsay to Detective Bickel. He was not, however, as tall or as clean shaven as the description indicated and he had a longer Afro than was described. The coat he had been wearing was brown rather than tan. And, in fact, the description given the police proved to fit Holland better than it did Gross. But as Detective Bickel testified (and we take judicial notice of the same fact) physical descriptions of perpetrators of violent crimes often prove to be somewhat inaccurate.

Even if we were convinced (as obviously we are not) that Bickel should have realized that the discrepancies in the description ruled Gross out as the actual bank robber, we would still find this search permissible. The police had clear and convincing grounds (probable cause and more!) for believing that the bank robber (whatever his name might be) had entered Billy Kirtdoll’s car and been transported to Henry Gross’ house just a few moments ahead of their arrival. They also had probable cause to believe that the car and at least the adults in it were involved in the get-away plans of the robber and, hence, were accessories to the crime.

On reaching the second floor, the wet shoes with the distinctive heels (which proved not to belong to Gross) provided probable cause for search for and arrest of Holland, the other felon. The limited searches which followed the two lawful arrests were well within the Chimel doctrine. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Finally, the appellant contends that the police on arrival at the Gross home and being refused admittance should have maintained surveillance and dispatched some part of their force for an arrest or search warrant. Under the circumstances of this case, we do not agree that this procedure was mandated by the Federal Constitution. The police had positive knowledge that a violent crime had been committed, and clear and convincing information that an armed bandit had been brought to the Gross home. They had reason to feel that the noise heard upstairs tended to confirm the robber’s presence, even though Gross’ sister denied his presence. The police forces available were relatively small and there is no indication that the officers could have taken cover in safety against the possibility that the perpetrators of the crime might decide to shoot their way out. Alternatively, they had reason not to want the bandit or bandits to have time to plan a last ditch defense against the police entrance which they now knew was inevitable.

The essential facts of Warden v. Hayden, supra, were described by the Supreme Court as follows:

About 8 a. m. on March 17, 1962, an armed robber entered the business premises of the Diamond Cab Company in Baltimore, Maryland. He took some $363 and ran. Two cab drivers in the vicinity, attracted by shouts of “Holdup,” followed the man to 2111 Cocoa Lane. One driver notified the company dispatcher by radio that the man was a Negro about 5'8" tall, wearing a light cap and dark jacket, and that he had entered the house on Cocoa Lane. The dispatcher relayed the information to police who were proceeding to the scene of the robbery. Within minutes, police arrived at the house in a number of patrol cars. An officer knocked and announced their presence. Mrs. Hayden answered, and the officers told her they believed that a robber had entered the house, and asked to search the house. She offered no objection.
The officers spread out through the first and second floors and the cellar in search of the robber. Hayden was found in an upstairs bedroom feigning sleep. He was arrested when the officers on the first floor and in the cellar reported that no other man was in the house. Meanwhile an officer was attracted to an adjoining bathroom by the noise of running water, and discovered a shotgun and a pistol in a flush tank; another officer who, according to the District Court, “was searching the cellar for a man or the money” found in a washing machine a jacket and trousers of the type the fleeing man was said to have worn. A clip of ammunition for the pistol and a cap were found under the mattress of Hayden’s bed, and ammunition for the shotgun was found in a bureau drawer in Hayden’s room. All these items of evidence were introduced against respondent at this trial. Warden v. Hayden, 387 U.S. 294, 297-98, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782 (1967). (Footnote omitted.)

While the Supreme Court noted that Mrs. Hayden “offered no objection” to the entrance of the police, neither did she give consent. And the Supreme Court did not treat the case as one based upon consent to search. On the contrary, the rationale of the decision (relating to the large city of Baltimore, Maryland) was based upon the need for speedy apprehension of the robber and the securing of his weapon, as shown in the holding quoted below:

We agree with the Court of Appeals that neither the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, “the exigencies of the situation made that course imperative.” McDonald v. United States, 335 U.S. 451, 456, [69 S.Ct. 191, 193, 93 L.Ed. 153.] The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape. Warden v. Hayden, supra at 298-99, 87 S.Ct. at 1645.

We believe that the two sentences immediately above are directly applicable to the facts of our instant appeal. The facts we have detailed represented “exigent circumstances” which invoked the “hot pursuit” exception to the Fourth Amendment warrant requirement. We believe the District Judge was correct in holding that this case was within the ambit of the Warden v. Hayden holding.

Some brief comment is warranted by Judge McCree’s dissent. As indicated above, we feel the facts herein fell within the Hayden “hot pursuit” rationale; but the case is close enough to allow for some reasonable concern about that conclusion. We observe, however, that we regard this case as very near the outer perimeter of the Hayden doctrine, albeit still within it.

The dissent does, however, contain inaccurate assertions or implications as to distinctions between this case and the Hayden case. Hayden was not a stranger to- the house there searched as the dissent implies. Hayden lived there. Also, the Supreme Court did not find that police entry into the Hayden house was “with the consent of the owner of the home.” Further, the search for Gross and Holland in the instant case was obviously (as in Hayden) founded upon probable cause to believe that the two men sought were feloniously involved in the bank robbery. Finally, the search without warrant following the arrests was incident to the lawful arrests. (See Chimel, supra).

The judgment of the District Court is affirmed.

McCREE, Circuit Judge

(dissenting).

I respectfully dissent. Although I agree with the observation that the performance of the police officers constituted good police work, I do not agree that the search, in the absence of a warrant, was permissible under the Fourth Amendment as interpreted in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). That case has come to stand for the principle that the immediate uninterrupted pursuit of a fleeing felon from the scene of a crime to a dwelling house furnishes the exigent circumstances excusing compliance with the constitutional requirement of obtaining a warrant before searching the home. In that case, two drivers of radio equipped taxi cabs followed a fleeing and armed felon from the scene of the robbery of their office to a private household, and kept him under surveillance until he entered. The police, who had been summoned during the pursuit, arrived at the home within minutes of the call. Based upon their certainty, confirmed by eyewitness information that the felon was inside and that he was armed and dangerous, and acting upon their reasonable belief that delay would endanger their lives and the lives of possible occupants of the home, the police entered, apparently with the consent of the owner of the home, in order to search. In upholding the validity of the search without a warrant and discounting the element of consent, the Supreme Court stated:

The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.

387 U.S. at 298-99, 87 S.Ct. at 1646.

In this appeal, however, no one pursued the felon and kept him under uninterrupted surveillance at close range from the scene of the bank robbery; no one told the police that the felon had entered the Gross home; and the person who answered the door at the home informed the police that Gross was not home and refused permission to enter. Moreover, if, as the police testified, they suspected that Gross was the bank robber, a belief that the occupants of the Gross home were in danger would not be reasonable. Accordingly, although the suspicions of the police officers about the flight of the felon into the Gross home turned out to be correct, they were not in hot pursuit. They were not engaged in an immediate and close chase of a felon from the scene of the crime to the place where he attempted to hide. Moreover, if the police were seeking Henry Gross, who was an occupant of the home and not a stranger to it, their safety and that of the Gross family would have been better protected had the police, who were present in sufficient numbers, surrounded the house and sought a warrant instead of forcing entry over the protest of Gross’ sister and endangering the numerous small children observed in the living room.

Moreover, the determination that exigent circumstances excusing compliance with the warrant requirement of the Fourth Amendment exist does not establish probable cause or obviate the requirement that it be demonstrated. The Supreme Court, in its consideration of the search in Warden v. Hayden, did not address the question whether probable cause to search existed perhaps because the proofs were so convincing that it assumed that probable cause was afforded. In this appeal, the court does not consider whether there was probable cause to search even though appellant argues that the search was invalid for that reason. At best, the question of the existence of probable cause is close because the description of the robber’s height that was furnished by eyewitnesses differed significantly from Gross’ height which was known to the police officers who were investigating the case, and the other descriptive details did not correspond with particularity to other police information about Gross. The very fact that eyewitness descriptions based on observations made under stress are often inaccurate argues for the dispassionate consideration by a magistrate of an application for a search warrant when there is no emergency.

The majority opinion in this case extends the concept of hot pursuit beyond the facts and rationale of Warden v. Hayden. I fear it would justify the search of a home without a warrant at any time after contact with a fleeing felon is lost if the police succeed in picking up the scent and return to the trail. This result would extend the holding of Warden v. Hayden impermissibly and would severely undercut the protection afforded by the Fourth Amendment. I would reverse and remand for a new trial at which evidence seized in the house would be suppressed.

      . Kirtdoll’s presence at his own home and his failure to indicate any use of force by the bank robber in procuring transportation, of course, negated any idea that the car had been commandeered.

      . The government has not raised the question of Holland’s standing to question the legality of the search. That issue may still be open.


source: Caselaw Access Project

author: WINTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Milford BURKLEY, Appellant.
    No. 74-1010.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 6, 1974.
    Decided Feb. 18, 1975.

      Charles Bruce Baird, Vienna, Va. (Donald S. Lilly, Fairfax, Va., on brief), for appellant.
    J. Frederick Sinclair, Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., and Stephen R. Pickard, Asst. U. S. Atty., on brief), for appellee.

      Before WINTER and RUSSELL, Circuit Judges, and NORTHROP, District Judge.

       Chief Judge, United States District Court for the District of Maryland, sitting by designation.

   WINTER, Circuit Judge:

Milford Burkley was found guilty of two charges of willfully and knowingly making a false statement to an agency of the United States, in violation of 18 U.S.C. § 1001. The false statements concerned the value of property owned by him which he recited in two affidavits, filed with the Clerk of the District Court for the Eastern District of Virginia, to secure bonds for the release of certain persons incarcerated while awaiting trial. Burkley was sentenced to concurrent terms of two years on each charge with service of eighteen months suspended upon payment of a fine of $5,000. On appeal, he attacks both the validity of his convictions and his sentences.

I.

We think Burkley’s convictions valid and affirm them. However, we vacate his sentences and remit him for resentencing, because we think that he was denied effective assistance of counsel at that stage of the criminal proceedings.

Burkley obtained the Orange County, Virginia, property described in the affidavits as collateral for a debt when he advanced $3,300 to a certain Deadwyler, a bookmaker sorely in need of funds to pay off bets on a number that was “hit.” The evidence conflicted as to whether Burkley had agreed to resell the property to Deadwyler if the loan were repaid and whether Burkley gave other consideration — specifically, cash and payment of Deadwyler’s other debts — for a conveyance of the property. In any event, the conveyance transferring record title recited a consideration of $35,000. For ad valorem property tax purposes, however, the property was assessed for $3,200. The affidavits, made two and one-half years after Burkley acquired the property, recited that Burkley had purchased the property for $35,000 and that “the actual market value of said real estate at the present time is $85,-000.00.”

At the trial the government presented proof, which was legally sufficient in our view, to permit the district court, sitting nonjury, to find beyond a reasonable doubt that the market value of the property was not as great as $85,000. Burkley’s defense was that “to him” the property did have a market value of $85,000, because, in fact, he would have been unwilling to sell it for less than $100,000. Testifying in his own defense, he claimed the deputy clerk of court had told him that he must present an affidavit as to the value of the property he offered as security, that she told him how to get an affidavit, and that he told her “it was worth $100,000 to me, I said, because I am a builder, I do plumbing work, and I am in this big now. . . . ” In response to questions by the district judge, Burkley testified that he made his affidavit in the office of a certain Mr. Raby, who was his attorney at the trial but not on this appeal, and that Mr. Raby’s secretary, Mrs. Speller, typed the affidavit. Burkley said that he told Mrs. Speller that the property was worth $85,000 “to me,” although the qualifying phrase was not included in the affidavit. The transcript shows the following colloquy:

THE COURT: You say his notary or secretary wrote that up?
THE WITNESS: Yes sir, I think she typed that up.
THE COURT: You told her it was worth $85,000?
THE WITNESS: I said to me it is worth that.
THE COURT: I see.
THE WITNESS: To me, and it is still worth that, your Honor. I haven’t taken that back. It is worth that right now to me. (Emphasis supplied.)

The parties stipulated that Mrs. Speller prepared the affidavits, and she was not called as a defense witness, even though her office was across the street from the district court. After the record was ■ closed, Raby offered to call her when the district judge evinced interest in what she might have said, but the district judge declined to permit the record to be reopened.

II.

We see no merit in Burkley’s attack on the validity of his conviction. The evidence need not be recited in greater detail. It is enough to say that, construed most favorably to the government, the evidence was legally sufficient to permit the district court to conclude beyond a reasonable doubt that Burkley knew the market value of the property was less than $85,000 and that he willfully and knowingly represented to the contrary to the district court in the bail transaction. Such a representation to the judicial branch of government is a violation of 18 U.S.C. § 1001. United States v. Bramblett, 348 U.S. 503, 509, 75 S.Ct. 504, 99 L.Ed. 594 (1955); Morgan v. United States, 114 U.S.App.D.C. 13, 309 F.2d 234, 237 (1962), cert. denied, 373 U.S. 917, 83 S.Ct. 1306, 10 L.Ed.2d 416 (1963).

Nor do we think that Burkley was afforded ineffective representation at his trial. This argument proceeds from the premise that because Raby, who represented him at trial, was the lawyer in whose office the affidavit was prepared, there was an inherent conflict of interest in Raby’s position as counsel at trial. But the short answer is that at trial Burkley made no claim that he had sought advice from Raby about the meaning of “market value” or what value to ascribe to the property. It is true that after conviction he made such a claim, but at trial, Raby, in his opening statement, told the district court that Burkley’s defense would be that Burkley thought, when making the affidavits, that he had been asked “what would the property value be to you” (emphasis added), and that Burkley thought that he said “to me it was valued $85,000.” (Emphasis added.) Burkley testified in his own defense. His testimony, which we have set forth, was consistent with the defense Raby had represented would be advanced. More importantly, Burkley, in answering many questions, freely enlarged his answers beyond the scope of the inquiries put to him, but, nevertheless, he did not even suggest during the trial that he had sought and acted on advice from Raby with regard to the value of the land stated in the affidavit. We do not perceive, therefore, that in representing Burkley at trial Raby could have been acting in conflift with his client’s particular defense or overall interests.

We do not think that Raby’s failure to call his secretary as a defense witness is any evidence that Raby was ineffective as counsel at trial. Even now Burkley makes no representation that Mrs. Speller would corroborate his version of the information he claims he gave her to enable her to prepare the affidavit. The decision not to call her appears to have been deliberate trial strategy based upon either her inability to recollect what Burkley had said, or the likelihood that her testimony would refute his assertions.

III.

After he was found guilty, Burkley’s sentencing was postponed until a presentence report was prepared. The report, when prepared, was obviously not exhibited to counsel prior to the formal sentencing proceedings.

When the clerk called the case for sentencing, Raby began his opening comments in support of mitigation of sentence. He had hardly begun when the district judge interrupted him to say that his client had admitted the offense to the probation officer making the presentence investigation and had said “that you [Raby] told him to make it $85,000.” In ensuing discussion, Burkley repeated his accusation in open court, and there was extensive colloquy between him and the district judge about the accusation, the offenses of which Burkley was convicted, his prior conviction and arrest record, other charges currently pending against him, his right of appeal, and a stay of the sentence imposed on him. In addition to his abortive opening statement, Raby said only that he did not previously know of Burkley’s accusation, that the accusation was untrue, and that he could not represent Burkley on appeal. The district judge indicated that he believed Raby’s denial. Raby never resumed his attempt to argue in mitigation of punishment for Burkley.

It is manifest that the sentencing from Raby’s opening phrases to conclusion was largely an adversary proceeding between Raby and Burkley, although Raby’s formal and proper role was to be Burkley’s attorney and to afford him all proper assistance of counsel. Because sentencing is a critical stage of a criminal prosecution, Burkley had a right to effective assistance of counsel throughout. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297, 1300 (1973); Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627, 630 (1955). Of course Burkley, in effect, deprived himself of counsel by his own accusation against Raby, thus preventing Raby from further effective representation of Burkley, but we cannot say that this was a waiver of the right to counsel by federal waiver standards. We are therefore constrained to conclude that Burkley was sentenced in the absence of effective assistance of counsel and that his sentence must be vacated and reimposed in a proceeding in which any facts in mitigation of punishment may be freely and fully developed. Since the United States District Court for the Eastern District of Virginia is a multijudge court, we suggest that reimposition of sentence take place before a district judge other than the one before whom the Burkley-Raby conflict arose.

Conviction affirmed; sentence vacated and remanded.


author: CUMMINGS, Circuit Judge.

text:
    Al HARLIB et al., Plaintiffs, Evelyn Diamond et al., Intervening Plaintiffs-Appellants, v. James T. LYNN, Secretary of the Department of Housing and Urban Development, et al., Defendants-Appellees.
    No. 73-2079.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 15, 1974.
    Decided Feb. 12, 1975.

      Seymour J. Mansfield and William P. Wilen, Legal Assistance Foundation, Chicago, 111., for plaintiff.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., Ronald R. Glancz, Atty., Dept, of Justice, Washington, D. C., Paul E. Freehling, Michael B. Fischer, Fredric B. Weinstein, Chicago, 111., for defendantsappellees.
    Before BARNES, Senior Circuit Judge, and CUMMINGS and TONE, Circuit Judges.

       Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit is sitting by designation.

   CUMMINGS, Circuit Judge.

The appellants are five of six intervening plaintiffs in the court below and will be referred to herein as the Intervenors. The intervening complaint named as defendants the Secretary of the Department of Housing and Urban Development (“HUD”), the Director of the Chicago Area Office of HUD, Belmont Avenue Associates, a partnership that is the beneficial owner of Belmont Harbor Towers, and Seay & Thomas, Inc., managing agent of Belmont Harbor Towers.

The intervening complaint purportedly is brought on behalf of all residents of Belmont Harbor Towers. It is alleged that the building consists of 277 apartments “financed and constructed under the program of insurance for mortgages on housing for low and moderate-income persons established by Section 221(d)(3) of the National Housing Act, 12 U.S.C. § 17157(d)(3).” The Intervenors assert that on May 1, 1968, Belmont Avenue Associates and its constituent partners began participation in the Section 221(d)(3) Below Market Interest Rate program by entering into a regulatory agreement with HUD. The regulatory agreement was attached to the intervening complaint. That complaint also quotes the following paragraphs from the regulatory agreement:

4(b) Owners shall make dwelling accommodations and services of the project available to occupants at charges not exceeding those established in accordance with a schedule approved in writing by the Commissioner. * * *
******
4(d) The Commissioner will at any time entertain a written request for a rent increase properly supported by substantiating evidence and within a reasonable time shall:
(1) Approve a rental schedule that is necessary to compensate for any net increase, occurring since the last approved rental schedule in taxes (other than income taxes) and operating and maintenance expenses over which the owners have no effective control, or
(2) Deny the increase stating the reasons therefor.

According to the intervenors, regulations issued under the applicable statute recite that owners of Section 221(d)(3) properties must agree to restrictions on

(1) the maximum income level of persons to whom apartments would be rented;

(2) the maximum rentals to be charged to lessees; and (3) a 6% maximum rate of return on the owners’ equity investment in the project.

It is alleged that from 1969 until November 1, 1972, a rental schedule was approved by HUD and that HUD also established maximum income levels for lessees of these apartments. The leases and their extensions recite that if a rent increase is authorized by HUD, “the Lessee agrees to pay the Lessor or his Agent the amount of rent increase allowed.”

According to the Intervenors, during 1972 a $242,000 bill for 1971 real estate taxes was issued to the owners of Belmont Harbor Towers. This was $170,000 higher than the 1970 taxes. In April 1972, the owner of this property lodged a complaint with the Assessor of Cook County, seeking a reevaluation of the anticipated 1972 tax assessment. In June of 1972, the owner filed an action in the Circuit Court of Cook County, Illinois, seeking a reduction of the 1971 real estate tax assessment.

It is alleged that in July 1972, while the tax protests were pending but after the payment on account of $93,000 of the 1971 tax bill, the owner of Belmont Harbor Towers applied to HUD for permission to increase rents. No notice of this application was given to the tenants, nor were they afforded an opportunity to present comments or objections. The requested increase was purportedly based largely on the higher real estate tax assessment, and in September 1972, rental increases of 25% were approved by HUD to become effective November 1, 1972. These increases resulted in an additional anticipated rental income of about $115,-000 for the year ending October 31, 1973.

In an amendment to their complaint, Intervenors assert that in 1973, as a result of the aforementioned tax challenges, the 1971 real estate tax bill was reduced to approximately $70,000 above the 1970 tax level. HUD then redetermined the amount of allowable rent increases, and on April 9, 1973, directed that the 25% November 1, 1972, rent increase would remain in effect only through April 30, 1973, and be reduced to 15% after May 1, 1973. Consequently, anticipated aggregate rental income for the year ending October 31, 1973, was approximately $92,000 higher than for the previous year.

The Intervenors complain that if the tenants had been notified of the application for permission to increase the rent schedules and had participated in a hearing upon such application, they could have provided information with respect to “maintenance, comparability of services, reasonableness of management fee, competitiveness in local rental market, consultation with and attitude of tenants, ability of present tenants to pay the increased rent without undue hardship, and likelihood of rent collection difficulties.” Intervenors sought to enjoin the two federal defendants from granting any application for a rent increase without giving them prior notice and an opportunity to be heard. They also requested the district court to set aside the rent increases and to see that all tenants of Belmont Harbor Towers be provided with all possible rental assistance and be granted appropriate restitution.

In four separate memorandum opinions and orders issued between March and September 1973, the district court dismissed all the claims of the Intervenors, apparently for “failure to state a claim upon which relief may be granted.” Fed.R.Civ.P. 12(b)(6).

In September 1974, HUD proposed new interim regulations providing the following procedures for tenant participation in the process whereby HUD passes upon requests by a mortgagor of Section 221(d)(3) units for an increase in the maximum permissible rental charges:

(1) The mortgagor must give notice to the tenants of intent to request approval of an increase in the maximum permissible rents 30 days before such request is filed.
(2) All materials which the mortgagor intends to submit to HUD in support of the application must be made available for inspection by the tenants 30 days before the request is filed with HUD.
(3) Tenants may submit written comments for or against the increase either with the mortgagor, who must then file such comments along with the request for an increase, or directly with HUD.
(4) After HUD has considered the application and has made a determination to approve or disapprove it, the local HUD office will furnish a written statement of reaons for HUD’s decision to the mortgagor, who must then post such statement in each structure of the affected project.

The Government has informed us that these interim regulations became effective October 14, 1974, and will apply to all applications submitted thereafter. No final agency rules have been promulgated.

Intervenors first argue that they had a right to be heard before the proposed increases became effective, which HUD wrongfully denied to them. They assert that such a right arises from two independent sources: (1) by implication from the statutes establishing the Section 221(d)(3) housing program and (2) from the due process clause of the Fifth Amendment. Six other Circuits have already dealt with similar claims. Rather than replow the ground already extensively covered in those cases, it is sufficient to refer to the extant opinions of the other Circuits in order to dispose of Intervenors’ claim that they were wrongfully denied a hearing.

Intervenors cite those cases which support their contention that the statutory framework of which Section 221(d)(3) is a part implies a right to a hearing before an application for increased rental charges may be approved. We find the decisions to the contrary persuasive and hold that no right to a hearing, express or implied, can be found in the statutes. This Court also rejects Intervenors’ claim that the due process-clause of the Fifth Amendment mandates a hearing of some kind before rental rates may be raised. The statutes creating the 221(d)(3) housing program do not confer upon tenants such an. “entitlement” to low rental rates that would invoke procedural due process requirements. Of course, as to future rent increases, HUD’s new regulations will afford tenants of Section 221(d)(3) housing the bulk of the procedural rights sought here. Since the regulations are prospective only, the already authorized rent increases in dispute here need not be reprocessed thereunder. South East Chicago Commission v. Department of Housing and Urban Development, 488 F.2d 1119, 1122-1127 (7th Cir. 1973).

Intervenors also claim that they are third-party beneficiaries of Belmont Avenue Associates’ regulatory agreement with the Government and that the rent increase constitutes a breach thereof. However, the language in paragraph 4(d) of that agreement (supra, p. 53) contemplates rent increases pursuant to the procedures followed in this case and accords no notice or hearing rights to tenants. Similarly, the leases and lease extensions accord them no such rights.

Intervenors’ next principal point is that they are entitled to a judicial review of HUD’s decision to raise rents. Again we agree with the First, Second and Third Circuits that Congress did not intend any such review. Our opinion in King v. United States, 492 F.2d 1337, 1343 — 1345 (7th Cir. 1974), is not to the contrary, for it involved a different provision of the Administrative Procedure Act from that relied upon by Intervenors.

The Intervenors’ other contentions have been weighed but found lacking in substance. Therefore, the orders in question are affirmed.

      . Edna Shanken, one of the intervening plaintiffs, has withdrawn from the litigation. The original plaintiffs were AI Harlib and seven other tenants of Belmont Harbor Towers, an apartment building located at 510 West Belmont Avenue in Chicago. The plaintiffs have not appealed from the dismissal of their complaint. This appeal involves the dismissal of the intervening plaintiffs’ complaint.

      . Summons was never served on Belmont Avenue Associates in the intervening action, and it is not represented in this appeal.

      . The private defendant submits that the $92,-000 increase in rental income was necessary to compensate for increased expenses, includ¡ng taxes. We do not reach that issue.

      . The original plaintiffs included the Cook County Tax Assessor as a defendant. Intervenors do not appeal the district court’s dismissal of this party for lack of jurisdiction.

      . 24 C.F.R. §§ 401.1-401.4, 39 Fed.Reg. 32738 (1974).

      . Paulsen v. Coachlight Apartments Co., 507 F.2d 401 (6th Cir., 1974); Geneva Towers Tenants Organization v. Federated Mortgage Investors, 504 F.2d 483 (9th Cir. 1974); Marshall v. Lynn, 497 F.2d 643 (D.C.Cir.1973), certiorari denied, 419 U.S. 970, 95 S.Ct. 235, 42 L.Ed.2d 186; People’s Rights Organization v. Bethlehem Associates, 487 F.2d 1395 (3d Cir. 1973), summarily affirming 356 F.Supp. 407 (E.D.Pa.1973); Langevin v. Chenango Court Inc., 447 F.2d 296 (2d Cir. 1971); Hahn v. Gottlieb, 430 F.2d 1243 (1st Cir. 1970). See also McKinney v. Washington, 143 U.S. App.D.C. 4, 442 F.2d 726 (1970).

      . In Marshall v. Lynn, supra note 6, 497 F.2d at 645-648, a panel of the Court of Appeals for the District of Columbia recognized that the statute does not provide on its face for a hearing, but nevertheless implied a statutory right to notice to tenants of proposed rent increases and an opportunity to respond in writing before the rents are increased. Paul-sen v. Coachlight Apartments Co., supra note 6, follows Marshall; see also Thompson v. Washington, U.S.App.D.C., 497 F.2d 626 (1973).

      . Geneva Towers Tenants Organization v. Federated Mortgage Investors, supra note 6, 504 F.2d at 487, 493; People’s Rights Organization v. Bethlehem Associates, supra note 6, 356 F.Supp. at 412 (applying an analogous statute); Langevin v. Chenango Court Inc., supra note 6, 447 F.2d, at 300; Hahn v. Gottlieb, supra note 6, 430 F.2d, at 1245-1246. See also McKinney v. Washington, supra note 6, 442 F.2d, at 727.

      . Unlike the tenants in some of the prior cases, Intervenors do not contend that a full-dress adjudicatory hearing is mandatory for each 221(d)(3) rent increase application. Intervenors seek all of the procedures now provided in the new interim regulations (supra, p. 54) plus the right to make oral submissions in “certain” cases and the right to have an “impartial hearing officer” decide if the increase is warranted. In a supplemental brief the Intervenors have further complained that the notice provisions of the interim regulations are “too vague and indefinite.” Because we hold that neither the statutes nor the due process clause require even those procedures mandated in the new regulations, Intervenors’ claims to additional procedural safeguards must fail.

      . This is the position adopted by the majority in Geneva Towers Tenants Organization v. Federated Mortgage Investors, supra note 6, 504 F.2d, at 488-493. In Marshall v. Lynn, supra note 6, the question of the applicability of due process was not reached.

      . Geneva Towers Tenants Organization v. Federated Mortgage Investors, supra note 6, 504 F.2d, at 493-498 (Hufstedler, J„ dissenting). In Paulsen v. Coachlight Apartments Co., supra note 6, 507 F.2d at 403, the opinion of the Court rejects a due process claim identical to the one presented here without revealing the Court’s analysis. Judge McCree, concurring separately, noted that his reasons were the same as those put forth by Judge Hufstedler in Geneva Towers. Langevin v. Chenango Courts Inc., supra note 6, 447 F.2d at 300-302, Hahn v. Gottlieb, supra note 6, 430 F.2d at 1246-1249, and McKinney v. Washington, supra note 6, 442 F.2d, at 727, also rejected Section 221(d)(3) tenants’ claims to a due process hearing. However, each of these cases was decided before the Supreme Court’s decision in Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 which made clear the proper two-step analysis that must be applied in determining when due process requires some type of hearing. Therefore, we endorse only the result in those cases, not the analysis.
      Our holding here does not conflict with that in T. A. Moynahan Properties, Inc. v. Lancaster Village Cooperative, Inc., 496 F.2d 1114 (7th Cir. 1974). In Moynahan, plaintiffs property rights under a contract with another private party were totally abrogated when HUD exercised its power to cancel the contract. In this case no tenant’s interest in his lease was totally abrogated by HUD; rather rents were increased in accordance with the provisions of the standard lease. We are not called upon to decide if the cancellation of a Section 221(d)(3) tenant’s lease would require the protection of the due process clause. Compare the dissent to the denial of certiorari in Spady v. Mount Vernon Housing Authority, 419 U.S. 983, 95 S.Ct. 243, 42 L.Ed.2d 192.

      . See note 9, supra. Intervenors also sought to compel HUD to reveal the contents of the supporting documents filed with the application for increase under the Freedom of Information Act, 5 U.S.C. § 552. Because Intervenors received these documents through discovery and the new regulations provide for their availability to tenants in the future, no purpose would be served in deciding this claim.

      . Consequently, neither Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir. 1973), nor Avco Delta Corporation Canada Ltd. v. United States, 484 F.2d 692 (7th Cir. 1973), certiorari denied, 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490, is in point.

      . Hahn v. Gottlieb, supra note 6, 430 F.2d at 1249-1251; Langevin v. Chenango Courts Inc., supra note 6, 447 F.2d, at 302-304; People’s Rights Organization v. Bethlehem Associates, supra note 6, 356 F.Supp. at 410-411. See also Davis Associates Inc. v. Secretary, Department of Housing and Urban Development, 498 F.2d 385 (1st Cir. 1974).


author: WILLIAM E. MILLER, Circuit Judge.

text:
    Martin A. WEINSTEIN and Alma J. Weinstein, Appellants-Defendants, v. UNITED STATES of America, Appellee-Plaintiff.
    No. 74-1904.
    United States Court of Appeals, Sixth Circuit.
    Feb. 19, 1975.

      Marvin A. Sicherman, Dettelbach & Sicherman, Cleveland, Ohio, for appellants-defendants.
    Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Joseph A. Cipollone, Asst. U. S. Atty., for appellee-plaintiff.
    ’ Before MILLER and LIVELY, Circuit Judges, and McALLISTER, Senior Circuit Judge.
   WILLIAM E. MILLER, Circuit Judge.

This is an appeal from a judgment in favor of the Small Business Administration (SBA) against guarantors of a mortgage indebtedness. Upon cross motions for summary judgment the district court found that there existed no genuine issue of material fact and that plaintiff was therefore entitled to judgment as a matter of law pursuant to Rule 56 of the Federal Rules of Civil Procedure. This appeal ensued.

The operative facts of the case, uncomplicated and uncontroverted, may be briefly stated. On April 30, 1971, Ohio Wholesale Gifts Co., Inc., an Ohio corporation, issued a promissory note to secure a loan of $25,000 from Capital National Bank of Cleveland, Ohio. The note provided that upon default the collateral could be sold by the holder without prior notice. In conjunction with the execution of the note, Martin A. Weinstein and wife, Alma J. Weinstein, signed an unconditional guaranty of payment of the indebtedness. Included in the guaranty was a waiver of notice with respect to the sale of the collateral pledged by the debtor to secure the loan.

The loan payments by Ohio Wholesale Gifts Co., Inc., subsequently became in arrears. Thereafter (on February 5, 1972) Martin A. Weinstein, acting individually and as president of the company, agreed to a sale of the collateral and executed a waiver of the notice required under Ohio Revised Code § 1319.07, which requires prior notice to the mortgagor of any sale of collateral in order for the mortgagor to be held liable for any deficiency. This waiver was not signed by Alma J. Weinstein. Neither did the document expressly acknowledge any continuing liability of the debtor or guarantor for any deficiency remaining after the sale.

On April 6, 1972, the SBA, then the holder of the note as assignee, notified the Weinsteins that the note was due, with a balance owing of $15,708.46. Payment not being made, the present action was filed seeking recovery against the guarantors for the remaining balance of the indebtedness after sale of the collateral. Appellants admitted the debt and the guaranty but by way of affirmative defense alleged that the SBA was barred from recovery of any deficiency because of its failure to comply with the notice requirements of § 1319.07. The sole issue below and on appeal is whether the defendants’ affirmative defense barred recovery for the deficiency. The district court held that it did not.

The Ohio courts have required strict compliance with the ten day notice requirement of § 1319.07 as a precondition to recovery of deficiency judgments. It has been held that even a voluntary surrender of the collateral does not dispense with the notice requirement. Cities Service Oil Co. v. Burkett, 176 Ohio St. 449, 200 N.E.2d 314 (1964).

The SBA is required to comply with state laws enacted to protect its citizens where such compliance does not interfere with a federal interest. United States v. Yazell, 382 U.S. 341, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966). The critical question in this case is whether a waiver of the notice requirement will prevent a guarantor of an indebtedness from relying upon noncompliance as a defense in an action to recover a deficiency.

In addition to the language in § 1319.-07, providing in effect that the right to notice is not subject to waiver, Section 1309.44(C) of the Ohio Revised Code speaks to the point. That statute provides in pertinent part:

To the extent that [it gives] rights to the debtor and impose[s] duties on the secured party, section 1319.07 may not be waived or varied [with exceptions not here material] . but the parties may by agreement determine the standards by which the fulfillment of these rights and duties is to be measured if such standards are not manifestly unreasonable.

It is readily seen that the statutory language of Secs. 1319.07 and 1309.44(C) does not address itself to the question whether a guarantor may waive the notice requirement. The most recent Ohio Supreme Court case interpreting these statutes is Mutual Finance Co. v. Politzer, 21 Ohio St.2d 177, 256 N.E.2d 606 (1970), a case relied upon both by the district court and by the parties on appeal.

The facts- in Politzer are similar to those in the case at bar. The three Politzer defendants were unconditional guarantors of a loan made to a company in which they were stockholders. Upon default, the collateral was repossessed by the chattel mortgagee-creditor who obtained the signatures of two of the defendants to an agreement permitting the sale of the collateral without giving the notice required by § 1319.07, and stipulating that defendants were to be responsible for any deficiency balance after the sale of the collateral. An action was subsequently brought to recover from the guarantors the deficiency remaining on the indebtedness after application of the proceeds of the sale. There, as here, the guarantors raised the affirmative defense of lack of compliance with the notice statute.

The court in Politzer stated:
We conclude therefore that a chattel mortgagee is precluded from proceeding against a guarantor of the mortgage indebtedness for a deficiency where Section 1319.07, Revised Code, precludes such chattel mortgagee from proceeding against his chattel mortgagor for such deficiency. Any protection thus given to the guarantor is merely a necessary incident of the protection that the statute is designed to give to the guarantor’s principal, the mortgagor.

As further pointed out in the opinion, Sec. 1319.07 was designed to protect chattel mortgagors to prevent deficiency judgments against them unless the mortgagee performs the duties with regard to the notice imposed upon him by the second sentence of the statute. Sec. 1309.44(C) adds to the protection thus afforded by providing that the notice requirement of Sec. 1319.07 may not be waived with certain exceptions not applicable here. ' The legislative intention is thus clearly indicated by these statutory provisions to prevent a chattel mortgagee from relying upon any agreement with or waiver by his mortgagor as a basis for recovery of a deficiency judgment against him where the notice requirements of Sec. 1319.07 have not been complied with.

Since the law implies the obligation of a principal debtor (mortgagor) to reimburse his guarantor for any amount that the guarantor is required to pay on the guaranteed indebtedness, the guarantor may ordinarily plead as a defense against any claim for a deficiency judgment the failure of the chattel mortgagee to give the prescribed notice to the chattel mortgagor.

Nevertheless, although the court in Politzer recognized these principles, it proceeded to hold that despite failure of the mortgagee to comply with the notice requirement, a guarantor of payment of an indebtedness secured by chattel mortgage, may “waive his right to rely or estop himself from relying upon” the chattel mortgagee’s failure to give the statutory notice to the mortgagor as a defense against the chattel mortgagee’s claim for a deficiency judgment. Politzer reasoned that such a waiver or estoppel will not have the effect of preventing the chattel mortgagor from receiving the protection which the notice statute was designed to give him. This is true since a guarantor cannot compel the principal debtor (mortgagor) to reimburse him for payment on the guaranteed indebtedness if the principal debtor (mortgagor) had a valid defense against the claim for such payment.

On the facts presented, the court in Politzer found that the defendants, Edward and Karen Politzer, by signing, after default by the mortgagor and repossession of the collateral by the mortgagee, an agreement expressly waiving the requirements of See. 1319.07, and recognizing that they would be liable for any deficiency which may exist after the sale, in effect induced the mortgagee to proceed with the sale without giving the statutory notice and were thus estopped to rely upon such failure as a defense.

As in Politzer, Martin Weinstein’s waiver was executed by a guarantor in connection with an agreement to sell the collateral. It would appear that Politzer is directly in point and that Martin Weinstein “waiv[ed] his right to rely or estop[ped] himself from relying upon a defense against the . . mortgagee based upon his failure to comply with the notice requirements of Section 1319.07, Revised Code.” 256 N.E.2d at 611. It is defendant Martin Weinstein’s contention, however, that there are certain factors which should distinguish this case from Politzer. We find these contentions to be without merit even if we accept defendant’s argument that Politzer is based on a theory of estoppel rather than waiver.

Defendant Martin Weinstein first argues that it is not true in this case, as it was in Politzer, “that the notice required was dispensed with for the benefit of and at the request of the guarantors,” or “that the mortgagees were prepared to provide the required notice.” While the record does not clearly indicate who “requested” the waiver in this case, this fact is not of critical importance. If both parties are in agreement, it is irrelevant who first suggested the waiver. Furthermore, there is no indication that the mortgagee in this case was any less prepared to give the required notice than was the mortgagee in Politzer. The fact is that such notice was not given because it appeared to become unnecessary in light of the agreement of sale and waiver. The only question to be determined is whether the defendant here, by his signing of the agreement to sell with its waiver of right to notice, induced the plaintiff to forego the giving of notice • and thereby estopped himself from relying on the defense of lack of notice in an action to recover the deficiency. We believe the facts here compel this result to the same extent as the facts in Politzer.

It is further insisted that the waiver executed in this case was not voluntary and knowledgeable and therefore was ineffective to estop Martin Weinstein from relying on the defense of failure to provide notice. This contention is based on the fact that the waiver in this case, unlike the Politzer waiver, did not contain a paragraph which expressed a recognition and reaffirmation of the fact that the mortgagee would hold the guarantor liable for any deficiency balance resulting after the sale. We are not convinced that such an acknowledgement of continued liability for any deficiency was necessary. The guarantor should have been aware that he was liable for the full amount of the note on default by the mortgagor or for any deficiency after sale of the collateral. A statement in the agreement to sell that the guarantor would be liable for any deficiency was completely irrelevant to the question of whether defendant’s waiver was voluntary and knowledgeable. Even if notice of the sale had been given rather than defendant having waived such notice, he would nevertheless have been liable for the deficiency. The only way defendant would not have been liable would have been if he had not waived the right to notice and the mortgagee had then failed to provide such notice to the mortgagor. Such an occurrence would in effect have been a penalty against the mortgagee for violation of the statute.

Defendant Martin Weinstein finally contends that he should not be estopped because in this case, unlike Politzer, there was no good faith reliance on his waiver since the statute by its language (“. . . any stipulation in such mortgage, or agreement, or provision of law to the contrary notwithstanding”) prevents any good faith reliance on his representation of waiver. It is further argued that there has been no evidence showing a detrimental change of position by the SBA in reliance on defendant’s waiver.

This argument is without merit. As we have pointed out above, § 1319.07 does not extend its protection to guarantors in this type of situation and does not therefore prevent reliance on a purported waiver extended by a guarantor. In addition, the SBA did in fact detrimentally rely on the inducement of defendant in executing the waiver. While it is not clear whether it was the SBA or the bank that sold the collateral, the SBA certainly relied to its detriment, if not in selling the collateral then in accepting the assignment of the note from the bank after the sale with the expectation that the waiver would enable it to obtain a deficiency judgment. It could hardly be said that the SBA would not suffer a detriment if the waiver in this case were not upheld.

We turn to the question whether defendant Alma Weinstein can be said to have executed an effective waiver or to be estopped from relying on the defense of noncompliance with § 1319.07. Alma Weinstein, as noted, was not a signatory to the agreement to sell and waiver executed by Martin Weinstein after the note payments had become in arrears. The only waiver signed by her was the general waiver of notice included in her original guaranty. In this posture she is similarly situated as was Shirley Politzer in the Politzer case who had signed only a guaranty and not a subsequent agreement to sell with a waiver of notice. Shirley Politzer was therefore found not to have waived her right to notice or to be estopped from asserting the defense of lack of notice. 256 N.E.2d at 611.

It is true that the Politzer opinion does not specifically indicate that the guaranty signed by Shirley Politzer included waiver language similar to that found in Alma Weinstein’s guaranty. We deem this fact to be of no consequence, however, as we interpret Politzer as relying more on the theory of estoppel than on waiver. That this is the thrust of the court’s analysis can be seen from the language used. Rather than speaking of a guarantor having “waived his right to notice” the court speaks in terms of one being able to “waive his right to rely or estop himself from relying upon a defense . . . based upon [a mortgagee’s] failure to comply with Section 1319.07.” 256 N.E.2d at 611. (emphasis added). The language of the court, in emphasizing that defendants “induced and participated in the actions of the plaintiff” and therefore were es-topped “from taking the unconscionable position that the conduct . . ., which they induced, now provides them with a defense” further supports this position. Whether or not Shirley Politzer’s guaranty included a waiver, she did not participate in the subsequent inducement of the mortgagee to sell to the extent that the other guarantors had estopped themselves from relying on a lack of notice.

Similarly, in the case at bar, it is apparent that the mortgagee was not induced to its detriment to rely upon the waiver language in the Martin and Alma Weinstein guaranty alone. This is evident from the fact that it was thought to be necessary to obtain from Martin Weinstein a second, more specific, waiver in the context of an agreement to sell the collateral. Thus, no detrimental reliance on the guaranty waiver language is demonstrable. We must conclude, therefore, that Alma Weinstein has a valid defense of lack of compliance with § 1319.07.

For the foregoing reasons, the judgment against defendant Martin A. Weinstein is affirmed and the judgment against defendant Alma J. Weinstein is reversed and the action remanded for any further proceedings which may be necessary consistent with this opinion.

      . Ohio Revised Code § 1319.07 provides as follows:
      1319.07 (8565-3). Deficiency judgment prohibited.
      Any chattel mortgagee, his executors, administrators, successors, or assigns who takes goods, chattels, or property, covered by the chattel mortgage out of the possession of the mortgagor, his executors, administrators, successors, or assigns by seizure, or repossession, and sells or otherwise disposes of the same before foreclosure of such mortgage in a court of record, shall not pursue or collect any deficiency upon such mortgage or the obligation secured thereby, from such mortgagor, his executors, administrators, successors, or assigns, any stipulation in such mortgage, or agreement, or provision of law to the contrary notwithstanding. This section does not apply if the mortgagee, his executors, administrators, successors, or assigns, gives at least ten days’ written notice to the mortgagor, his executors, administrators, successors, or assigns, personally, or by mailing it to him by registered mail, at the address of the mortgagor given in the mortgage, of the time, place, and the minimum price for which the mortgaged property may be sold, together with a statement that the mortgagor may be held liable for any deficiency resulting from said sale. The mortgagor, his executors, administrators, successors, or assigns, may redeem the property prior to the time stated in the notice for its sale or disposition, by paying the mortgagee, his executors, administrators, successors, or assigns, the amount due and unpaid on the obligation secured by the mortgage. Any person may appear at the time and place of sale mentioned in such notice and bid at such sale. At the time and place mentioned in such notice the mortgaged property shall be sold to the highest bidder if his bid equals or exceeds the minimum price set forth in the written notice given the mortgagor.

      . It is unclear whether this assignment was executed prior to both the waiver and sale, between the two, or after both the waiver and the sale. The district court’s language appears to imply that at least the sale was held after the assignment. The government’s brief states that the SBA sold the collateral. However, appellants’ brief indicates that the collateral was sold by the Capital National Bank prior to the assignment to SBA. For reasons stated below we find the discrepancy to be of no consequence.

      . Of course there is no question that such compliance was required if the sale in this case was by the Capital National Bank rather than the SBA. See note 2, supra.

      . The third defendant, Shirley Politzer, signed a guaranty but did not sign the subsequent waiver and agreement to sell the collateral. The opinions of the Court of Appeals and Supreme Court of Ohio in Politzer do not indicate what language of waiver was used in the original guaranties.


author: PER CURIAM:

text:
    Ralph C. SGAMBELLURI, Appellant, v. Pilar Calvo VELARDE et al., Appellees.
    No. 73-2874.
    United States Court of Appeals, Ninth Circuit.
    Jan. 14, 1975.

      W. Scott Barrett, of Barrett, Ferenz, Bramhall, Pauli & Klemm (argued), Oakland, Cal., for appellant.
    Howard Trapp (argued), of Trapp, Gayle & Co., Agana, Guam, for appellees.
    Before WRIGHT and GOODWIN, Circuit Judges, and MARKEY, Judge of the United States Court of Customs and Patent Appeals.

       The Honorable Howard T. Markey, Chief Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

PER CURIAM:

The would-be buyer of land in Guam appeals a judgment denying specific performance of his alleged contract. The district court held that he had failed properly to exercise his option.

The option provided that it could be exercised by the mailing of notice by registered mail to a given address. The buyer complied. The district court held, however, that the buyer’s subsequent recourse to an escrow rendered the exercise of the option ineffective. This was error. The option was exercised when the required notices were delivered to the stated address.

The exercise of the option to purchase the land substituted a bilateral contract of purchase and sale for the previous unilateral option contract. Charles Young Construction Co. v. Look, 508 F.2d 275 (9th Cir., 1973).

The terms of that bilateral contract were contained in the option agreement. It is a question of local law whether the buyer’s tendered performance substantially complied with his obligations under the contract. If his performance complied, he was entitled to have the contract enforced. The district court should decide that question free from any misconceptions about the validity of the exercise of the option.

The judgment is vacated, and the cause is remanded. Neither party shall recover costs.


author: BREITENSTEIN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Philip MARQUEZ, Defendant-Appellant.
    No. 74-1322.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 22, 1975.
    Decided Feb. 10, 1975.

      John Kobayashi, Asst. U. S. Atty. (James L. Treece, U. S. Atty., and Rob-
    ert R. Marshall, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
    Ralph B. Rhodes, Denver, Colo., for defendant-appellant.
    Before BREITENSTEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

A jury found defendant-appellant Marquez guilty of distribution of heroin, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1).

Duran, a federal undercover agent, and Abeyta, an informer, went to Curtis Park in Denver, Colorado. The agent testified that the informer left the car in which the two were riding, and returned with defendant, whom he introduced to the agent. The agent asked defendant if he had any “dimes,” a term for small packages of heroin. Defendant said that he'had two. The agent gave him a $50 bill. Defendant returned $30 in change to the agent. The agent asked defendant if he could purchase from him again and he said “yes, any time.”

Defendant testified that he had been a user of heroin. The informer approached him and asked if he could get any “stuff,” a term which defendant understood to mean heroin. Defendant went to Richard Aragon, who was nearby, and got two “dimes” from him. The informer introduced the agent to defendant as his cousin. Defendant and informer were good friends. The heroin packages were put on the car seat. Defendant gave the agent $30 in change, and later paid the $20 to Aragon. He, defendant, made no profit out of the transaction. The informer was not called as a government witness.

Defendant says that he was a procuring agent for a government investigator in purchasing narcotics and was not himself a seller of narcotics. He argues that the “procuring agent” instruction approved in Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541, 543-545, cert. denied 381 U.S. 920, 85 S.Ct. 1542, 14 L.Ed.2d 440, should have been given. In Lewis certain counts charged sale of narcotics and others charged facilitation of concealment and sale. The ruling was that the “procuring agent” instruction should have been given on the sale counts but was not required on the facilitation counts. The “procuring agent” instruction is a technical defense to a charge of sale on the theory that a person acting on behalf of a purchaser participates in the purchase rather than the sale. See United States v. Masullo, 2 Cir., 489 F.2d 217, 221.

Defendant was charged with distribution, not sale. The Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., makes distribution an offense, § 841(a)(1), and defines “distribute” to mean “to deliver (other than by administering or dispensing) a controlled substance.” § 802(11). Deliver means “the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” 802(8). By thus broadening the drug control laws Congress “intended to nullify an agency theory of defense.” Consequently, the “procuring agent” instruction is not applicable to prosecutions charging unlawful distribution in violation of § 841(a)(1). United States v. Miller, 5 Cir., 483 F.2d 61, 62, cert. denied 414 U.S. 1159, 94 S.Ct. 919, 39 L.Ed.2d 112. We agree and so do the other circuits which have considered the problem. See United States v. Pierce, D.C.Cir., 498 F.2d 712, 713; United States v. Masullo, 2 Cir., 489 F.2d 217, 220 — 221; United States v. Pruitt, 8 Cir., 487 F.2d 1241, 1243-1245; and United States v. Hernandez, 9 Cir., 480 F.2d 1044, 1046-1047.

Defendant argues that humanity and fairness require the instruction. United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366, says that government conduct must not violate that “fundamental fairness, shocking to the universal sense of justice.” Here the agent testified that defendant told him that he could supply more heroin, and defendant testified that he and the informer supplied heroin to each other. There was no preconceived governmental plan or design against the defendant. His acts were voluntary and he utilized a supply source known to him previously. The agent’s conduct was not outrageous. See United States v. Spivey, 10 Cir., 508 F.2d 146. Defendant’s acts were within the statutory definition of “distribute.” He was not entitled to the procuring agent instruction.

Defendant contends that the instructions placed the burden of proving entrapment on him. We do not agree. Taking the instructions as a whole they comply with established law. See United States v. Russell, 411 U.S. at 434-436, 93 S.Ct. 1637 and cases there cited; see also United States v. Spivey, 10 Cir., 508 F.2d 146, and Martinez v. United States, 10 Cir., 373 F.2d 810, 812-813. The evidence showed defendant’s' predisposition to deal in narcotics.

Affirmed.


author: TONE, Circuit Judge.

text:
    George WADSWORTH and the Farmers Insurance Exchange as subrogee of George Wadsworth, Plaintiffs-Appellants, v. UNITED STATES POSTAL SERVICE and Phil Anderson, DefendantsAppellees.
    No. 74-1306.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 11, 1975.
    Decided Feb. 19, 1975.

      E. Bryan Dunigan, III, Chicago, 111., for plaintiffs-appellants.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Carol E. Moseley, Asst. U. S. Attys., Chicago, 111., for defendants-appellees.
    Before PELL and TONE, Circuit Judges, and JAMESON, Senior District Judge.

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   TONE, Circuit Judge.

This case presents the question of whether the relation-back provisions of Rules 15(c) and 17(a), Fed.R.Civ.P., apply in a tort action against the United States when the government invokes the time bar of 28 U.S.C. § 2401(b).

A United States Postal Service truck collided with a vehicle owned by plaintiff Wadsworth and caused damages totaling $736.50. Wadsworth’s automobile collision insurer, plaintiff Farmers Insurance Exchange, paid him $676.50 for the loss, that being the amount due after subtracting the $60 which was deductible under the policy.

Wadsworth and the insurer filed separate timely administrative claims against the government under the Federal Tort Claims Act, 28 U.S.C. § 2675, he for $60 and the insurer, as subrogee, for $676.50. Both administrative claims were denied.

Wadsworth then filed this suit within six months after the denial of the administrative claims, asking damages in the amount of $1,000. Following the Illinois practice, which permits bringing the action solely in the name of the insured when he still retains an interest in the claim because of the deductibility clause (Brosam v. Employer’s Mutual Casualty Co., 61 Ill.App.2d 183, 209 N.E.2d 350, 352 (4th Dist. 1965)), the attorney who filed the action failed to include the insurer as a party plaintiff. In so doing the attorney overlooked the federal real-party-in-interest rule, Rule 17(a), Fed.R.Civ.P., under which the insurer who has paid part of the loss is required to be joined as plaintiff. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 381, 70 S.Ct. 207, 94 L.Ed. 171 (1949). An exhibit attached to the complaint showed the interest of the insurer in the claim.

The government moved to reduce the ad damnum to $60, the amount of Wads-worth’s administrative claim. When the District Court granted this motion, Wadsworth’s attorney moved to amend the complaint to add the insurer subrogee as a plaintiff. More than six months having by this time expired since the rejection of the administrative claims, the District Court held that the insurer’s portion of the claim was time barred under 28 U.S.C. § 2401(b) and refused to allow the amendment.

The District Court held and the government contends that because the time bar of 28 U.S.C. § 2401(b) is jurisdictional and timely filing of the action “is an indispensable condition of the liability and of the action which it [the statute] permits” (Simon v. United States, 244 F.2d 703, 704-705 (5th Cir. 1957)), an amendment filed after the time period allowed by the statute does not relate back under Rules 15(c) and 17(a). We disagree. Nothing in the statute or those rules suggests that those rules do not apply to actions under the statute. The time bar is jurisdictional, but the jurisdictional requirement was satisfied by the timely filing of suit for the full amount of the claim, and jurisdiction is not disturbed by an amendment correcting parties.

Wadsworth, the subrogor, sought to assert the entire claim on behalf of both himself and the insurer. In so doing he failed to comply with the requirement of the real-party-in-interest rule, Rule 17(a), Fed.R.Civ.P. The last sentence of that rule, however, provides as follows:

“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

That sentence was added to the rule in 1966 “to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made. . . . [I]ts main thrust is to allow a correction in parties after the statute of limitations has run, despite the valid objection that the original action was not brought by the real party in interest.” 3A J. Moore, Federal Practice ¶ 17.15 — 1, at pp. 602— 603 (2d ed. 1974) (footnotes omitted).

Moreover, Rule 15(c) provides that a claim asserted in an amendment relates back to the filing of the original pleading when it arises out of the occurrence set forth in that pleading. The strength of the rule’s policy is evidenced by the extension of the relation-back effect even against a defendant who was not named within the period provided by law for the commencement of the action against him if he

“(1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”

The last paragraph of Rule 15(c) expressly states what is a sufficient form of notice to the government and government agencies, thereby making it clear that the relation-back provision is intended to apply in actions against them. Both Rule 15(c) and Rule 17(a) apply to actions under the Federal Tort Claims Act and cause the amendment adding the insurer as a real-party-in-interest to relate back to the filing of the complaint.

Wadsworth’s attempt in his original complaint to assert both his portion and the subrogee’s portion of the claim would have been appropriate at common law or in a federal court until the Supreme Court’s decision in the Aetna case, supra, 338 U.S. 366, 70 S.Ct. 207. The Court, in holding in that case that the insurer who had paid part of the claim should be joined, did not contemplate, however, that failure to join the insurer would defeat its portion of the claim. Speaking of partial subrogation cases, the Court said:

“. . . both insured and insurer ‘own’ portions of the substantive right and should appear in the litigation in their own names.
“Although either party may sue, the United States upon timely motion, may compel their joinder. [Citing authorities.] Both are ‘necessary’ parties. Rule 19(b), Federal Rules of Civil Procedure [Footnote discussing the distinction between ‘necessary’ and ‘indispensable’ parties omitted.] The pleadings should be made to reveal and assert the actual interest of the plaintiff, and to indicate the interests of any others in the claim.” (338 U.S. at 381-382, 70 S.Ct. at 216.)

As the Court recognized, under the circumstances present in this case there is in substance but one claim, in which the subrogor and subrogee both have interests, and in the absence of a timely motion to compel joinder that claim could be asserted in its entirety by the subrogor. The proper procedure for the government in the case at bar, therefore, was not to move to reduce the ad damnum to eliminate the portion of the claim allocable to the insurer, but rather to move to compel joinder of the insurer, whose interest was known to the government through the insurer’s administrative claim and the exhibit to the complaint. The ad damnum, it is true, was required by 28 U.S.C. § 2675(b) to be limited to the total of the two administrative claims, and the government could properly have moved to reduce it to that amount. But the government was not entitled to have the amount of the insurer’s portion of the ad damnum eliminated, and the District Court should not have granted that relief. It should merely have required joinder of the insurer upon a proper motion.

Our holding is consistent with that of the Sixth Circuit in Executive Jet Aviation, Inc. v. United States, 507 F.2d 508, (1974), which government counsel, with proper and commendable candor, called to our attention the day of the argument. In that case, the insured had filed an administrative claim for the full amount of the loss. The partly subrogated insurers were not shown in that claim as having interests and had not filed separate administrative claims of their own; nor had they joined as plaintiffs in the subsequent Federal Tort Claims Act suit. Thus they were confronted with the time bar of § 2675(a) of Title 28 as well as that of § 2401(b). The court nevertheless held that the district court had erred in dismissing the insured’s action to the extent of the insurer’s interest, permitted the insured to amend its administrative claim to show the insurers as joint claimants, and held that the insurers should be given an opportunity to join in the action as plaintiffs. Here, as in that case, the government had timely notice of the claim and of the insurer’s interest and, therefore, was not prejudiced by the failure to join the insurer initially.

The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


author: PER CURIAM.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHAMPA LINEN SERVICE COMPANY, Respondent.
    No. 74-1521.
    United States Court of Appeals, Tenth Circuit.
    Feb. 13, 1975.
    William Wachter and Frederick Calatrello, Attys., N. L. R. B., Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, and Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., on brief, for petitioner.
    John K. Pickens, Alexandria, Va., on brief, for respondent.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

The National Labor Relations Board seeks enforcement of its order premised upon its decision, 209 N.L.R.B. No. 57, that respondent violated § 8(a)(3) and (1) of the Act by threatening to discharge and discharging a laundry route deliveryman for protected union activities. The respondent resists enforcement contending that the record as a whole does not support the findings and conclusions of the Administrative Law Judge as adopted by the Board.

The record in this case is brief and presents testimony of management and the subject employee in direct conflict as to whether the employee voluntarily quit or was discharged. The hearing officer very bluntly rejected the credibility of the responsible management witness and gave blanket approval to the truthfulness of the employee. Accepting, as we must, this determination of credibility the record supports the Board determination and accordingly its order will be

Enforced.