text:
    UNITED STATES of America, Plaintiff-Appellant, v. Salvatore CASTELLANA a/k/a Sam Castellana, Plaintiff-Appellee.
    No. 73-2259.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.
    Rehearing En Banc Granted March 1, 1974.

      John L. Briggs, U. S. Atty., Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellant.
    Henry Gonzales, Thomas J. Hanlon, Tampa, Fla., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and INGRAHAM, Circuit Judges.
   THORNBERRY, Circuit Judge:

Castellana was indicted for being a felon in possession of a firearm that has moved in interstate commerce, a violation of 18 U.S.C. App. § 1202(a). He made motions to suppress four handguns and certain statements on the grounds they were obtained in violation of his rights under the Fourth and Fifth Amendments. The Government here appeals the trial court’s decision granting these motions, and we affirm.

I.

The F.B.I. suspected that Castellana was conducting gambling activities at his store, the Albany Drive In Market in Tampa, Florida. To investigate these suspicions agents obtained two valid search warrants, one for the premises and one for Castellana’s person. At 6:14 p.m. on August 5, 1972, twenty armed F.B.I. agents converged on the market to execute their search warrants. Apparently unwelcome, the agents broke in the door to make theii entry.

Special Agent Smith asked Castellana to accompany him to the store’s back room, a distance of about forty feet. When they arrived in the back room Castellana placed himself about four feet from his desk, and Smith began to read him the warrant. All was proceeding smoothly until Agent Arwine walked in and, for reasons known only to himself, abruptly asked Castellana: “Do you have any weapons within reach?” The accused replied, “Yes, down there,” indicating the lower desk drawer. Upon opening the drawer Arwine found four handguns and asked Castellana, “Where did you get them?” Castellana responded, “I took them in on a loan.” Smith then finished reading the search warrant and advised Castellana of his Miranda rights.

This unusual factual situation requires us to answer two questions. Are Castellana’s statements inadmissible products of custodial interrogation not preceded by Miranda warnings? If so, are the guns inadmissible products of the unlawful interrogation ?

II.

Miranda warnings must precede “custodial interrogation.” Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. To justify the absence of warnings here the Government claims first that Castellana was not in custody, and second that Agent Arwine’s questions did not constitute interrogation.

“The Miranda opinion declared that the warnings were required when the person being interrogated was ‘in custody at the station or otherwise deprived of his freedom of action in any significant way.’ ” Orozco v. Texas, 1969, 394 U.S. 324, 327, 89 S.Ct. 1095, 1097, 22 L.Ed.2d 311. The warnings’ purpose is to dispel the compulsion inherent in custodial surroundings. In determining whether there has been custodial interrogation our Circuit uses a case-by-case approach. United States v. Montos, 5th Cir. 1970, 421 F.2d 215, cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L.Ed.2d 532. In each case the court must “determine whether there were present the compulsive factors' with which Miranda was concerned.” Id. 421 F.2d at 223.

In the instant case Castellana was “deprived of his freedom of action” and therefore “in custody.” It is true that the agents had not placed him under arrest and that they questioned him in his own store. But it is also true that the trial court found he was not free to leave; moreover, the presence of twenty armed agents completely undermines the Government’s argument that Castellana was in “friendly surroundings” and therefore could not be in custody. We conclude that the agents created an atmosphere of compulsion and consequently a custodial setting for Castellana’s interrogation.

But, the Government argues, Ar-wine’s questions were not the sort of interrogation treated by Miranda; the Miranda doctrine applies to questions asked for evidentiary reasons, and Ar-wine’s questions were posed solely for security purposes. This argument fails on two counts. First, the trial court found that there was no evidence that the agents had any reason to believe Castellana threatened their safety. The finding is not clearly erroneous; it is supported by the agents’ failure to give the accused a patdown and by their placing the discovered guns on the desk in front of him. We conclude that Arwine’s inquiries were not valid security questions.

Even if the questions had had a legitimate security purpose, we believe for several reasons that Miranda warnings should have preceded them. First, such questions can be of only limited security value. If a detainee is truly dangerous, it is unlikely that he will reveal the location of weapons essential to his own security. Second, it would be difficult to define what is a “security” or “safety” inquiry, as opposed to an “evidentiary” inquiry. If the response can be used in evidence against the detainee, then to some extent he is being asked to incriminate himself — precisely the danger Miranda seeks to avoid. Third, under existing authority the police may take direct action and search a suspicious, dangerous detainee. Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Such a search would seem to provide much better protection than mere questioning. In sum, we feel that a “security” exception to Miranda would erode that doctrine measurably without providing substantially greater protection for the police.

III.

Having determined that Castellana’s statements were illegally elicited, we now ask whether the guns should be excluded as derivatives of Castellana’s unlawfully elicited responses.

The test to be applied is

“whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”

Wong Sun v. United States, 1963, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed. 2d 441.

The Supreme Court has recognized two ways in which evidence can be derived so that the primary taint is purged. First, the connection between the lawless conduct of the police and the discovery of the challenged evidence may “become so attenuated as to dissipate the taint.” Nardone v. United States, 1934, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307. See Williams v. United States, 5th Cir. 1967, 382 F.2d 48. Far from being attenuated, the connection in Castellana’s case is strong and apparent. Immediately following his improper question Agent Arwine used the response to search for and discover four handguns.

The second means for “purging the taint” is discovering the same evidence from an “independent source.’.’ Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319. See, e. g., Agius v. United States, 5th Cir. 1969, 413 F.2d 915. In this case one could argue that the search warrant was such an independent source. The warrant, however, was not utilized independently of Castellana’s statements. Instead it was used in conjunction with them to produce the four handguns. In Wong Sun terms, the guns were “come at by exploitation” of an illegality, improper interrogation.

Notwithstanding the inapplicability of these two recognized exceptions to the exclusionary rule, the Government argues we should admit the guns because agents searching the market under the warrant would have found the guns eventually, even without Castellana’s guidance. This argument is an application of the “inevitable discovery” limitation on the exclusionary rule. It is not widely adopted; it has not been adopted by the Supreme Court and it is not the rule in this Circuit. Annot., 43 A.L.R. 3rd 385 (1972). Furthermore, we reject the Government’s invitation to embrace it now. To admit unlawfully obtained evidence on the strength of some judge’s speculation that it would have been discovered legally anyway would be to cripple the exclusionary rule as a deterrent to improper police conduct. See Pitler, “The Fruit of the Poisonous Tree” Revisited and Shepardized, 56 Calif.L.Rev. 579 (1968). Contra, Maguire, How to Unpoison the Fruit — The Fourth Amendment and the Exclusionary Rule, 55 J. Crim.L.C. & P.S. 307.

Since we have found that Arwine’s questions constituted unlawful custodial interrogation, and the handguns were the products of those questions, Castel-lana’s statements and guns must be excluded from evidence.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en bane and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing 'schedule for the filing of supplemental briefs.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Floyd A. DOMBKOWSKI, Petitioner, v. Perry JOHNSON, Warden for the State Prison of Southern Michigan, Respondent.
    No. 73-1324.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 2, 1973.
    Decided Dec. 5, 1973.

      Leo H. Hildebrandt, Jr. (Court appointed) Cincinnati, Ohio, for appellant.
    Thomas A. Carlson, Asst. City Sol. Gen., for appellee; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., on brief.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal from an order of the District Court denying petitioner’s request for a writ of habeas corpus.

While sitting in a Grand Rapids bar on the evening of February 26, 1970, petitioner was approached by two small boys who offered to sell him some candy. Petitioner asked the boys to meet him in an alley behind the club ostensibly for the purpose of paying for the candy, but when petitioner arrived he allegedly attempted to pull down the trousers of one of the boys.

The boys fled and reported the incident to their mother who called the police. The mother and a male companion then located petitioner outside another nearby tavern. The male companion restrained petitioner until two policemen arrived.

After listening to an account of the events by the boys’ mother and noting that the petitioner was intoxicated and using violent speech, the policemen arrested him on a charge of being drunk and disorderly in violation of Grand Rapids Ordinance Code § 9.134. The next day petitioner entered a plea of guilty to this city charge and was sentenced to 18 days in jail.

Subsequently petitioner was charged with and convicted in a Michigan state court of attempting to take indecent liberties with a minor child. M.C.L.A. § 750.336. Petitioner unsuccessfully appealed this state felony conviction to the Michigan Court of Appeals, People v. Dombkowski, 35 Mich.App. 264, 192 N. W.2d 286 (1971), and later to the Michigan Supreme Court, 386 Mich. 757 (1971). Although the petitioner alleged five assignments of error in the Court of Appeals, he alleged only one assignment of error in the Supreme Court.

The petitioner next filed a petition for a writ of habeas corpus in the United States District Court. His primary contention — the only issue raised on both appeals in the Michigan state courts— was that he was placed in double jeopardy in violation of the Fifth Amendment by being placed on trial for indecent liberties by the state of Michigan after having previously been tried and found guilty on the city charge of being drunk and disorderly. The double jeopardy provision of the Fifth Amendment has been applied to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The District Judge held that petitioner was not placed twice in jeopardy because the drunk and disorderly conviction was based on facts and circumstances other than the conduct which led to his conviction for attempting to take indecent liberties with a minor child. We agree.

Petitioner relies on Ex Parte Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). In each of those cases, the Supreme Court granted relief to a petitioner on the basis of a finding that the petitioner was twice placed in jeopardy.

Those eases are, however, clearly distinguishable from the instant case in that in each of them both trials were based on charges that arose out of the same factual episode. In Nielsen, the court granted a writ of habeas corpus where a petitioner had been tried first on a charge of unlawful cohabitation and later on a charge of adultery for the same instance of cohabitation. In Ashe, where the accused had allegedly robbed six poker players, the court would not sanction trial of the accused for the robbery of one player after the accused had previously been acquitted of the robbery of another player. In Waller, the court held that the theft of a mural from a city hall could not serve as the basis for successive trials, one for destruction of public property and another for grand larceny.

In this case, the police officer who made the arrest testified that he arrested petitioner on the drunk and disorderly charge because of petitioner’s intoxicated condition and use of violent speech in his presence. The police officer also testified that he specifically refused to arrest petitioner at that time for indecent liberties in spite of the boys’ mother’s insistence that he do so.

Petitioner’s subsequent trial for indecent liberties was based on his behavior toward the boys in the alley behind the bar. This episode occurred some thirty to forty-five minutes prior to petitioner’s confrontation with the police. Therefore, it is clear that the District Court was correct in concluding that the basis for the two charges against petitioner arose out of different facts and circumstances.

Accordingly, we hold that under the circumstances of this case petitioner was not placed in double jeopardy in violation of the Fifth Amendment by being placed on trial for attempting to take indecent liberties with a minor child subsequent to his conviction for being drunk and disorderly.

Petitioner also attempts to raise certain other issues of constitutional dimensions. These issues were presented to the Michigan Court of Appeals but were not made the basis of an application for leave to appeal to the Michigan Supreme Court.

The District Judge correctly refused to consider these issues in petitioner’s application for a writ of habeas corpus on the ground that petitioner had failed to exhaust his state remedies with respect to these issues. Exhaustion of state remedies, including the right of delayed appeal, is a condition to seeking habeas corpus relief in the federal courts. 28 U.S.C. § 2254(b). Albertson v. Johnson, 440 F.2d 1201 (6th Cir. 1971); Curtis v. Buchkoe, 336 F.2d 32 (6th Cir. 1964); Hampton v. Buchkoe, 334 F.2d 6 (6th Cir. 1964).

Affirmed.


text:
    Robert E. HANSON, Appellant, v. HUNT OIL COMPANY, a foreign corporation, Appellee.
    No. 73-1669.
    United States Court of Appeals, Eighth Circuit.
    Nov. 19, 1973.

      Thomas A. Mayer, Bismarck, N. D., for appellee.
    Albert A. Wolf, Bismarck, N. D., for appellant.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This matter comes before the court upon a motion pursuant to our Eighth Circuit Rule 9(b) for summary dismissal of an appeal taken from an order of the district court dismissing portions of the complaint. We conclude that this court is without jurisdiction and we grant the motion.

This litigation arises from a contract and side agreement for a unitization project (the Tioga-Madison Unit) designed to consolidate and thereby increase the production of oil in North Dakota. In 1966, Robert E. Hanson filed an action to reform the contract and for an accounting, and Hunt Oil filed a counterclaim for unpaid operational costs. Judgment was rendered for Hunt Oil, but was reversed by this court in Hanson v. Hunt Oil Co., 398 F. 2d 578 (8th Cir. 1968). On remand, judgment again was entered for Hunt Oil and the judgment was affirmed in Hanson v. Hunt Oil Co., 438 F.2d 690 (8th Cir. 1971).

Hanson filed the instant action on October 20, 1971, alleging, inter alia, that Hunt Oil had operated the oil wells in either a negligent or willful manner to eliminate or reduce the production of oil from Hanson’s wells and that Hunt Oil had unlawfully induced him to enter into the agreement.

After further discovery, pre-trial conferences and an offer of proof by Hanson, the district court on July 30, 1973, granted Hunt Oil’s motions to strike portions of the complaint which made reference to the side agreement on the ground that it had been determined in prior litigation that the side agreement had been fully performed. Based on assertion that the “heart and substance” of his lawsuit had been removed, the district court entered the following order:

It is the court’s view that the plaintiff should have an opportunity to apply to the Court of Appeals for permission for an appeal to be taken from this order, if he has a desire to do so, pursuant to the provisions of 28 U.S.C. § 1292(b). The court, therefore, certified as follows . . . -

Hanson filed a notice of appeal in this court on August 23, 1973. Hunt Oil has filed a motion to dismiss the appeal on the ground that this court is without jurisdiction because of appellant’s failure to timely file an application for permission to appeal in this court within ten days of the district court’s certification. See 28 U.S.C. § 1292(b) and Rule 5(a) of the Federal Rules of Appellate Procedure. The failure to file an application for leave to appeal within the statutory ten days is a jurisdictional defect under § 1292(b), and we conclude that the court is without jurisdiction to hear the instant appeal under this statutory provision. Alabama Labor Council v. Alabama, 453 F.2d 922 (5th Cir. 1972) .

The appeal is dismissed for want of jurisdiction.

      . 28 U.S.C. § 1292(b) provides :
      When a district judge, in making in a civil action an order not otherwise appeal-able under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order : Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

      . Moreover, even if the order of the district court could be construed to be final as to one or more of appellant’s claims, the existence of other claims precludes this court’s jurisdiction in the absence of a certificate under Rule 54(b) of the Federal Rules of Civil Procedure. See Richardson v. Communication Workers, 469 F.2d 333 (8th Cir. 1972), cert. denied, 414 U.S. 818, 94 S.Ct. 38, 38 L.Ed.2d 50 (1973).


author: PER CURIAM:

text:
    Carlton BRYANT, Appellant, v. Kenneth L. HARDY and Richard G. Kleindienst, Appellees.
    No. 73-1516.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided Nov. 30, 1973.
    Richard G. Singer, Newark, N. J. [Court-appointed], for appellant.
    Brian P. Gettings, U. S. Atty., for ap-pellees.
    Before CLARK, Associate Justice, Retired, Supreme Court, HAYNSWORTH, Chief Judge, and CRAVEN, Circuit Judge.
   PER CURIAM:

In September 1971 Carlton Bryant was transferred from the federal reformatory at Lorton,- Virginia, to the federal penitentiary at Marion, Illinois. He subsequently filed a pro se petition, cast as a petition for either mandamus or habeas corpus, in which he claimed he was entitled to notice of the proposed transfer and a hearing, and that the failure to grant either constituted a denial of procedural due process. The district court dismissed his petition sua sponte without requiring the United States to answer, and Bryant appealed. We reverse and remand with instructions to require the government to answer the petition.

The law governing procedural due process within prisons is in a state of flux. Several courts have recently held that prisoners must be given some form of hearing when they are disciplined. E.g., Miller v. Twomey, 479 F.2d 701 (7th Cir. 1973); McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3257 (U.S. Oct. 23, 1973) (No. 73-679); Sostre v. McGinnis, 442 F.2d 178, 194-199 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). Other courts have required hearings in connection with prisoner transfers. E. g., Hoitt v. Vitek, 361 F.Supp. 1238 (D. N.H.1973); White v. Gillman, 360 F. Supp. 64 (S.D.Iowa 1973); Park v. Thompson, 356 F.Supp. 783 (D.Hawaii 1973); Gomes v. Travisono, 353 F.Supp. 457 (D.R.I.1973). In accordance with the suggestion in Morrissey v. Brewer, 408 U.S. 471, 481-482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), that procedural due process in actions affecting prisoners (parolees) depends on the severity of the consequences, most of the eases that have imposed due process requirements on disciplinary action and transfers have involved serious changes in status: punitive segregation, loss of accumulated good time credit, transfer from a state reformatory for young offenders to a state penitentiary, or long-distance transfer from one prison system to another. None have dealt with routine transfers within the federal prison system. But cf. Genovese v. Ciccone, 331 F. Supp. 1117 (W.D.Mo.1971) (without discussing due process the court held that a federal prisoner had ho right to review of a transfer decision).

Because no answer was filed in this ease, we do not know the reasons for the transfer nor can we gauge its consequences. The record contains no comparison of Lorton and Marion. Bryant alleges that he spent five days in segregation upon arriving at Marion, but if true we do not know whether the segregation was punitive, and if so, whether it was a consequence of the transfer. Bryant alleges that the Lorton warden later told him that he had been transferred because of alleged involvement in drug traffic at Lorton. Without an answer, we are unable to determine if a factual dispute actually existed, or whether the transfer was a method of disciplining Bryant or was reasonably necessary as a matter of internal prison security and control. And because we do not know what prison rules apply to such transfers, we cannot judge whether the prison administrators followed their own regulations.

Consequently we are in no position to determine whether Bryant should have been given some form of notice and hearing. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Miller v. Twomey, supra. After the government has answered, the district court will then be able to determine whether an evidentiary hearing is required. See Dodson v. Haugh, 473 F. 2d 689 (8th Cir. 1973); cf. Raines v. United States, 423 F.2d 526 (4th Cir. 1970).

Reversed and remanded.


text:
    UNITED STATES of America, Appellee, v. James Edward BROWN, Appellant.
    No. 73-2075.
    United States Court of Appeals, Ninth Circuit.
    Nov. 28, 1973.

      P. Vernon Zeitsoff, Deputy Federal Public Defender, Kenneth L. Collins (argued), Deputy Federal Public Defender, Los Angeles, Cal., for appellant.
    Darrell MacIntyre, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appel-lee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and THOMPSON, District Judge.

       The Honorable Bruce R. Thompson, United States District Judge for the District of Nevada,. sitting by designation.

   PER CURIAM:

This bank robbery conviction is here for the second time. See United States v. Brown, 475 F.2d 91 (9th Cir. 1973). The sole remaining issue is the legality of Brown’s arrest. On remand for determination of that question, the district court found that the F.B.I. agents had probable cause to arrest Brown. We agree, and affirm.

Brown, who was suspected of participating in a bank robbery in Los Ange-les, was under surveillance in New York. The investigation had progressed to the point that F.B.I. agents in California had applied for an arrest warrant. Before the warrant could be obtained, however, the agents, by telephone, caused Brown to be arrested in New York.

, Because the arrest was without a warrant, the government attempted at the suppression hearing to show that the agents had probable cause to arrest Brown without a warrant. The government placed in evidence its complaint and affidavit, and rested. This procedure was dangerous, because it denied the trial court the benefit of any information known to the agents but not included in their sworn complaint and affidavit for the unused arrest warrant.

We quote from the relevant portion of the affidavit:

“On November 25, 1970, the Security Pacific National Bank, 805 N. Highland Avenue, Los Angeles was robbed by three negro males who were armed. I am advised that two of the robbers were wearing sunglasses during the robbery and that after the robbery the robbers left the bank and entered a black and blue Buick automobile that was waiting outside the bank.
“A car matching the description of the one used by the robbers was found abandoned in a carport. The car was found five blocks from the bank in a neighborhood where at a time shortly before the robbery, a witness had seen three negro males driving slowly up and down the street looking around in an apparent effort to find an off-the-street parking spot.
“I am informed by the FBI Criminal Identification Division in Washington, D.C. that latent fingerprints found on a pair of sunglasses that were on the board of the abandoned car were determined to be those of JAMES EDWARD BROWN, a negro male matching the description of one of the two robbers who wore sunglasses during the robbery.
“That I am informed by several witnesses that BROWN is a close associate of Theodore Smith who is wanted by the FBI for the robbery of a Bank of America branch in Los An-geles on October 30, 1970. The latter robbery involved two armed negro males.”

Thin as the affidavit is, it contains sufficient facts to support a finding that an officer in possession of the facts recited in it would have probable cause to arrest the person named.

“Arresting officers have probable cause if, at the moment of arrest, ‘the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the * * * [arrested person] * * * had committed or was committing an offense.’ Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).” United States v. McDowell, 475 F.2d 1037, 1039 (9th Cir. 1973).

Affirmed.


text:
    Phillip H. MANN, Plaintiff-Appellant, v. MERRILL LYNCH, PIERCE, FENNER AND SMITH, INC., Defendant-Appellee.
    No. 73-1915
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 7, 1973.
    David Goldman, Jack Cohen, Miami, Fla., for plaintiff-appellant.
    Wm. R. Dawes, Judith S. Waldman, Miami, Fla., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Mann questions whether, the doctrine of res judicata was a proper predicate for the dismissal of his diversity complaint in the District Court.

The First Suit. In 1971, Mann filed a complaint against Merrill Lynch alleging wrongs sounding in contract essentially the same as those claimed in the present case. In March of that year, his complaint was dismissed for want of allegations establishing diversity jurisdiction, with leave to amend within 10 days. On April 22, 1971, the complaint was dismissed for failure to obey the Court’s March order. Two motions to vacate the dismissal were denied. No appeal was taken.

The Present Suit. Mann filed the present suit late in November, 1972. This was dismissed January 23, 1973 because the District Court saw it as “an apparent effort to thwart the Court’s prior dismissal and denials of plaintiff’s two motions to vacate said dismissal.” Mann’s motion to vacate this dismissal was also denied. This appeal followed.

We hold that the suit should not have been dismissed. We read the April order in the first suit as merely making final the earlier dismissal, with leave to amend, for want of necessary jurisdictional allegations.

Had the District Judge intended what he wrote literally — that the action was being dismissed because the March order had been “disobeyed” — he would have been guilty of an abuse of his Rule 41(b) discretion to dismiss. Dismissal of a case for disobedience of a court order is an exceedingly harsh sanction which should be imposed only in extreme cases, and then only after exploration of lesser sanctions. Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir. 1972); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed. 1387 (1968). Failure to amend a complaint after it has been dismissed with leave to amend is not such an extreme case of disobedience, if it is disobedience at all.

A dismissal for lack of jurisdiction is not a dismissal on the merits that makes the action res judicata. See F.R. Civ.P. 41(b). Indeed the lack of jurisdiction renders the Court powerless to make a decision on the merits.

Since the original action was dismissed basically because requisite jurisdictional allegations were missing, and not because Mann disobeyed the Court, that dismissal does not operate as an adjudication upon the merits. It is, therefore, of no moment that the April order of dismissal did not specify that it was without prejudice.

The January 22, 1973, dismissal is reversed and the case is remanded for further proceedings.


text:
    James A. TUCKER et al., Appellants, v. TOBACCO WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL 183, and Tobacco Workers International Union, AFL-CIO, CLC, Appellees.
    No. 73-1722.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Nov. 30, 1973.

      Adam Stein, Charlotte, N. C. (Chambers, Stein, Ferguson & Lanning, Charlotte, N. C., Conrad O. Pearson, Durham, N. C., William L. Robinson, Jack Greenberg, New York City, J. LeVonne Chambers, Charlotte, N. C., on brief), for appellants.
    Robert C. Stephens, Charlotte, N. C. (Robert G. Sanders, Sanders, Walker & London, Charlotte, N. C., and James F. Carroll, Washington, D. C., on brief), for appellees.
    Carol Lynn Green, Atty. (William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel, Beatrice Rosenberg and Joseph T. Eddins, Jr., Attys.), Washington, D. C., for amicus curiae E. E. O. C.
    Before CRAVEN, RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

In 1964 Local 183 and Local 204 of the Tobacco Workers International Union merged. Prior to merger Local 183 had been an all-white local and Local 204 was its all-black counterpart. Following negotiations between the two locals it was agreed that, the Shop Committee, which was responsible for handling all grievances arising under the collective bargaining agreement and negotiating new collective bargaining agreements with the Company, consist of eleven members, three of whom would be elected from three “areas” or groups of workers which were predominantly black and which, before merger, constituted the jobs and departments represented by the all-black local. The other eight members were to come from the traditionally white job groups. Among the three predominantly black areas was Area 3, which at the time of merger consisted of more than 50 persons, only one of whom was white, and which, at the time of the election in question (December 1971) still had more than 50 workers, of whom all but three were black.

Following the merger, James A. Tucker, who had been president of the black local, was nominated and elected as the representative on the Shop Committee from Area 3. Tucker served in that position until 1971 when he was defeated by a white person named Elbert Vaughn. Prior to that election, objections to Vaughn’s eligibility were raised on the basis that he was not an Area 3 employee; however, upon investigation by the international’s vice-president, the objections were dismissed.

Plaintiffs urged upon the district court and insist on appeal that Vaughn was allowed to be nominated and elected by the local and the international in violation of the 1964 merger agreement and the local by-laws because he was not in fact eligible under the agreement for the reason that he did not work in any of the Area 3 jobs. Plaintiffs further allege that .these actions resulted in discrimination against the plaintiffs and the class of blacks which they represent on the basis of race and color. Defendants insisted in the district court and contend here that Vaughn was a member of Area 3 and was, therefore, eligible for nomination and election under the merger agreement. Significantly, we think, all parties agree that neither the merger agreement nor the local by-laws nor any other understanding requires that Area 3 be represented by a black person. It is further agreed that any one of the three white persons constituting members of Area 3 might have been lawfully nominated and elected. The dispute, therefore, is not whether Vaughn was black or white but rather whether he worked in a job that made him a member of the Area 3 group of employees. It is also significant, we think, that subsequent to the December, 1971 election the plaintiff, James A. Tucker, was again nominated from Area 3, was elected, and is now the representative of Area 3 on the Shop Committee.

The question briefed on appeal is whether the district court erred in dismissing this action on the ground that it was a dispute “over internal union elections” for which an exclusive remedy is provided under Title IV of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. §§ 481-483. Plaintiffs urge that the Congress has granted them dual remedies. While they agree with the defendants that, after exhausting remedies under the constitution and by-laws of the union, they might have proceeded under 29 U.S.C. § 482 by complaint to the Secretary of Labor who could then have, in his discretion, brought suit on their behalf, plaintiffs insist that where facts are alleged that constitute a prima facie case of racially discriminatory union election practices, then the “exclusive” remedy of Title IV does not apply and instead plaintiffs may proceed under Title VII of the Civil Rights Act of 1964 and Section I of the Civil Rights Act of 1866.

We are inclined to think that there may well be eases of racial discrimination in the conduct of internal union affairs that come within the ambit of Title VII of the Civil Rights Act of 1964 and perhaps Section I of the Civil Rights Act of 1866, and that not every case involving the validity of a union election must be prosecuted pursuant to the provisions of 29 U.S.C. §§ 482 and 483. But we think this is not such a case. Plaintiffs allege only that they are entitled to have someone — black or white — to represent the interests of Area 3 and that to assure such representation the merger agreement provides that he must, in fact, be an Area 3 employee. We agree that the district judge properly characterized this allegation as a dispute “over internal union elections” for which 29 U.S.C. § 482 provides the appropriate remedy. The particular facts of this case are not sufficient to invoke an additional remedy under § 703(c) of Title VII.

Affirmed.

      . Local 183, prior to merger, represented some 900 workers in traditionally “white” jobs and departments at American Tobacco Company in Durham, N. C. Local 204 was much smaller, representing the 200-300 workers in jobs and departments at American which were, theretofore, customarily all-black. The merger was necessary in order to allow American to continue as a government contractor under the terms of Executive Order 10925, prohibiting a government contractor from engaging in collective bargaining with racially identifiable local unions.

      . To be nominated, a candidate was required to work within the area which he was to represent if elected; however, election was by vote of the entire membership of the local.

      . Indeed, it would appear that they could make no such allegation in light of 29 U.S.C. § 481(e) which provides: “In any election required by this section which is to be held by secret ballot a reasonable opportunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold offiee. . . . ” (emphasis added). This was the district court’s holding in Shultz v. Local 1291, Int’l Longshoremen, 338 F.Supp. 1204 (E.D.Pa.), aff’d 461 F.2d 1262 (3rd Cir. 1972).

      . See § 703(c), 42 U.S.C. § 2000e-2(c) which provides: “It shall be an unlawful employment practice for a labor organization — (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race. . . .” See also Shultz v. Local 1291, Int’l Longshoremen, 338 F.Supp. 1204 (E. D.Pa.), aff’d 461 F.2d 1262 (3rd Cir. 1972).


text:
    UNITED STATES of America, Appellee, v. Roy Rogers FAUNTLEROY, Appellant.
    No. 73-1625.
    United States Court of Appeals, Fourth Circuit.
    Submitted Nov. 11, 1973.
    Decided Dec 4, 1973.
    Jay Tronfeld, Richmond, Va. [court-appointed], for appellant.
    Brian P. Gettings, U. S. Atty., and Raymond A. Carpenter, Asst. U. S. Atty., for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM.

Roy Rogers Fauntleroy appeals from his conviction by the district court sitting without a jury on two counts charging him with knowingly making false statements in the purchase of firearms in violation of 18 U.S.C. § 922(a)(6). Fauntleroy was sentenced to concurrent three-year prison terms on the two counts.

Fauntleroy contends on appeal that (1) the prosecution failed to adduce sufficient evidence showing that he possessed the requisite intent to knowingly make a false oral or written statement with regard to his prior felony conviction, and (2) § 922(a)(6) violates the due process clause of the Fifth Amendment in that it arbitrarily and unreasonably discriminates against convicted felons as a class.

The evidence is uncontradicted that on two separate occasions, May 27, 1972, and November 9, 1972, Fauntleroy purchased a .25 caliber automatic pistol from White’s Auto Store in Tappahan-nock, Virginia. It is also uncontradicted that Fauntleroy was convicted in a Virginia state court on January 23, 1969, of a crime punishable by imprisonment for a term exceeding one year. The record includes firearms transaction forms signed by Faultleroy on which negative answers were entered to the following question [8b]: “Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?” There is no question that the forms contain material false information and bear Fauntleroy’s signature.

Notwithstanding the forms, appellant contends that he was illiterate when he signed the forms and could not read the question pertaining to his criminal record. Even if he were unable to read the question, and the record does contain substantial evidence indicating that Fauntleroy was illiterate, his illiteracy did not preclude his understanding of the questions which were read aloud to him by the sales manager of the store, Thomas Chinault. Chinault, who sold both guns to Fauntleroy, stated that before asking Fauntleroy to sign the forms, he read them aloud in their entirety and told Fauntleroy that if he did not understand a question, he (Chinault) would explain it to him. According to Chinault, Fauntleroy indicated that he understood the questions. Chinault was satisfied that during both transactions Fauntleroy was able to freely communicate in the English language and did not appear to be under the influence of alcohol or any drug. Chinault’s testimony provided sufficient evidence on which the trier of fact could find that on two separate occasions Fauntleroy knowingly gave a false answer to the question concerning his previous conviction for a crime punishable by imprisonment exceeding one year. United States v. Brown, 458 F.2d 375 (6 Cir. 1972); United States v. Sherman, 421 F.2d 198 (4 Cir. 1970), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).

Appellant argues that § 922(a)(6) violates the constitutional guarantee of due process in that it distinguishes felons from nonfelons. Section 922(a)(6) incorporates by reference other provisions of the Federal Gun Control Act, making it a crime for convicted felons to receive, possess, or transport in commerce any firearms. See 18 U.S.C. § 922(g); 18 U.S.C. § 922(b).

In United States v. Weatherford, 471 F.2d 47 (7 Cir. 1972), the court considered the constitutionality of 18 U.S.C. § 922(g) which prohibits the interstate shipment of firearms by previously convicted felons and held that § 922(g) did not arbitrarily discriminate against previously convicted felons as a class. The court observed that “[i]t seems crystal clear that the purpose of Congress in enacting this legislation was to eliminate firearms from the hands of criminals, while interfering as little as possible with the law abiding citizen.” 471 F.2d at 51.

We agree with the court in Weatherford that the classification distinguishing felons from nonfelons for purposes of gun control legislation is reasonable.

This court has held that the Federal Gun Control Act, including specifically 18 U.S.C. § 922(a)(6), under which Fauntleroy was convicted, is constitutional. United States v. Cabbler, 429 F. 2d 577, 578 (4 Cir. 1970).

Accordingly, we dispense with oral argument and affirm.

Affirmed.

      . 18 U.S.C. § 922(a) (6) provides that:
      (a) It shall be unlawful—
      (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.

      . The case of United States v. Brown, 458 F.2d 375 (6 Cir. 1972), is nearly identical to the one at bar. Brown was convicted for violating 18 U.S.C. § 922(a)(6). Gilbert, the store manager who sold the gun, testified that he asked Brown the questions [including 8(b)] from the firearms transaction form. Brown contended, as does appellant here, that he could not read and that the salesman did not read the questions to him. In upholding the conviction, the Sixth Circuit stated:
      In finding appellant guilty .... the jury must have credited Gilbert’s testimony that he had asked Brown the required questions and that Brown had responded falsely. That determination of credibility was within the province of the jury. Accordingly, since there is substantial evidence to support the jury’s verdict, it will be sustained. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). [458 F.2d at 376.]
      The only difference in the cases is that this appellant was tried by the court without a jury, a distinction that would have no effect on the result in Brown.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth David CUSHNIE, Defendant-Appellant.
    No. 73-1902
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 11, 1973.
    Roger W. Jordan, Metairie, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Kule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Defendant appeals from his conviction for possession of marijuana with intent to distribute, a violation of 21 U. S.C. § 841(a)(1). There is only one issue raised on appeal, as indeed there has been only one issue in- the case from its inception. Defendant contends that the marijuana introduced into evidence at the trial was seized in violation of the Fourth Amendment, and that the trial court should, therefore, have granted the motion to suppress. Finding that -the evidence was in plain view of the officers at the time they lawfully arrested defendant, we affirm the action of the court below.

Defendant attempts to characterize the question as one involving an initial illegal search and subsequent arrest. However, the record clearly reveals that agents of the New Orleans Police and the United States Customs Patrol proceeded to defendant’s hotel and entered his room for the purpose of making an arrest on the basis of probable cause, approaching a certainty, for the belief that felonies under state and federal law had been and were being committed. Though warrantless, the entry for the arrest was amply justified by the exigencies of the moment, which included clear indications that defendant was preparing to flee. Once inside the room, the agents observed an open suitcase full of marijuana.

The plain view doctrine' validating warrantless seizures requires that the discovery be made inadvertently by officers legitimately on the premises. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564. It might be argued here that, by the very nature of the suspected crimes, the narcotics agents expected to locate marijuana in the room, and that this expectation destroyed the necessary inadvertence. However, where, as in this case, the original entry is clearly for the purpose of making an arrest, the need for immediate apprehension makes application for an accompanying warrant impractical, and the item seized is easily destroyed contraband, the expectation that such evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement. Coolidge v. New Hampshire, supra, at 472 & n. 28, 91 S.Ct. 2022; Ker v. California, 1963, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Affirmed.

      . The agents had been informed by a New Orleans cab driver that a suitcase picked up by defendant and two companions at the Galvez Street Wharf had leaked a certain brown grasslike substance onto the back seat while defendant was removing the valise from the cab. Police inspection revealed that the substance was marijuana. On approaching the suspect’s hotel room, the agents were met by the strong aroma of marijuana.


text:
    Otis DANIEL, Jr., etc., et al., etc., Plaintiffs-Appellants, v. WASHINGTON COUNTY BOARD OF EDUCATION and William Rawlings, Individually and in his official capacity as President of the Washington County Board of Education, et al., etc., Defendants-Appellees.
    No. 73-1836.
    United States Court of Appeals, Fifth Circuit.
    Dec. 12, 1973.

      Bernice Turner, William C. Randall, Macon, Ga., Jack Greenberg, Charles E. Williams, III, Charles S: Ralston, New York City, for plaintiffs-appellants.
    Thomas A. Hutcheson, Sandersville, Ga., Denmark Groover, Macon, Ga., for defendants-appellees.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   PER CURIAM:

This is an appeal from the denial of a preliminary injunction sought by the plaintiffs, black students, for reinstatement from suspension or expulsion from school because the procedures followed by the defendants, it is claimed, did not comply with the requirements of due process as defined and refined by this Court in Black Students v. Williams, 5 Cir. 1972, 470 F.2d 957; Williams v. Dade County School Board, 5 Cir. 1971, 441 F.2d 299; Dixon v. Alabama State Board of Education, 5 Cir. 1961, 294 F. 2d 150.

Because of the passage of time the plaintiffs now limit their request for relief to require the defendants to expunge from the record of each black student punished any notation of the suspension or expulsion imposed pursuant to the hearings in October and November, 1972. Additionally, plaintiffs seek an injunction to require the defendants to enact disciplinary procedures comporting with due process.

After a lengthy hearing the court below entered an order, but the observations made in the course of it are not, in any proper sense, findings of fact upon the vital issues in the case. Statements of ultimate fact are mingled with arguments and extraneous views and advice. “It is of the highest importance to a proper review of the action of a court in granting or refusing a preliminary injunction that there should be fair compliance with Rule 52(a) of the Rules of Civil Procedure” (footnote omitted). Mayo v. Lakeland Highlands Canning Co., 1940, 309 U.S. 310, 60 S.Ct. 517. 84 L.Ed. 774. Accordingly, we vacate the order of the district court and remand this cause with directions to make explicit findings of fact and conclusions of law.

Vacated and remanded with directions.


text:
    Anthony Joseph GENOVESE, III, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
    No. 73-1224.
    United States Court of Appeals, Fifth Circuit.
    Dec. 4, 1973.
    Richard W. Shelton, Cecil Burglass, Jr., New Orleans, La., for plaintiff-appellant.
    Theodore J. Pfister, Jr., Al J. Moore, New Orleans, La., for defendant-appel-lee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

Anthony Joseph Genovese filed a Title VII sex discrimination charge with the Equal Employment Opportunity Commission (EEOC) against his employer, Shell Oil Company. On January 25, 1972 he received notice from the EEOC that it had been unable to achieve voluntary compliance by Shell with Title VII. Genovese then filed this private action on March 7, 1972. 42 U.S.C. § 2000e-5 then provided that after the EEOC notifies the charging party that it has been unable to obtain voluntary compliance “a civil action may, within thirty days thereafter, be brought against the respondent named in the charge.” The district court granted summary judgment in favor of Shell Oil Company upon the basis that Genovese had not complied with this provision.

On appeal from this judgment, Gen-ovese argues that, since Title VII is remedial legislation, its provisions should be liberally construed according to equity and justice so as not to serve as stumbling blocks for potential plaintiffs. He asserts that upon receipt of the EEOC notice he contacted his attorney and authorized the filing of suit, and that the attorney apparently misread the notice and thus mistakenly failed to comply with the 30-day requirement. Based on these facts, Genovese urges us to disregard the thirty-day limitation period in the instant case.

There is no room here for liberal or strict statutory construction since it is clear from the language of 42 U.S.C. § 2000e-5 that the 30-day requirement for the filing of suit is mandatory and jurisdictional. Nothing in the legislative history cited us by Genovese convinces us otherwise. The permissive word “may" refers only to the charging party’s decision as to whether a civil action should be brought at all and does not modify the 30-day limitation provision so as to create “a discretion in the Court to receive the case following the expiration of 30 days.” Goodman v. City Products, 425 F.2d 702 (6th Cir. 1970). * Other circuits have also recognized that this requirement is jurisdictional. Harris v. National Tea Company, 454 F.2d 307 (7th Cir. 1971); Goodman v. City Products Corp., supra; F.2d 357, 359 (7th Cir. 1968). Today, and Choate v. Caterpillar Company, 402 we add this circuit to those, holding that compliance with this limitation period in 42 U.S.C. § 2000e-5 is a precondition to asserting a private Title VII action, and that jurisdiction of the courts to hear such actions is dependent upon suit being brought thirty days after the EEOC’s notice that it has been unable to achieve voluntary compliance. The district court’s grant of summary judgment is

Affirmed.


text:
    George T. BUCKLES, Petitioner-Appellant, v. U. S. DISTRICT COURT, SOUTHERN DISTRICT OF ALABAMA, Respondent-Appellee.
    No. 73-2326
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.

      George T. Buckles, pro se.
    Irwin W. Coleman, Jr., C. S. White-Spunner, Jr., Asst. U. S. Attys., Mobile, Ala., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant filed a motion under 28 U. S.C. § 2255 seeking relief from his sentence to four years imprisonment following a plea of guilty to transporting a forged security in interstate commerce, a violation of 18 U.S.C. § 2314. The district court denied relief without holding an evidentiary hearing. We affirm.

Three grounds were asserted below in support of the motion: (1) the plea was “coerced” by promises that certain state charges against appellant would be dropped if he pleaded guilty on the federal count; (2) the plea was influenced by a promise of parole after nine months; and (3) the plea was made while appellant was under the influence of medication for a nerve problem. Since no hearing was held below, this Court can uphold the action of the district court only if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. ... .” 28 U.S.C. § 2255; Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 3 L.Ed.2d 169 (1973). In this instance the record does so demonstrate.

Although the Government denies that any promises were made by federal officers concerning the state charges, it is clear from the record that all state proceedings were terminated following the disposition of the federal case. Certainly the principle of plea bargaining is not open to attack, Santobello v. New York, 1972, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 25 L.Ed.2d 162; United States v. Slatko, 5 Cir. 1972, 462 F.2d 1169; and this Circuit has explicitly approved the concept of bargains over state charges as inducements to pleas of guilty in federal cases. Roberts v. United States, 5 Cir. 1973, 472 F.2d 1195. Taken, then, in the light most favorable to the appellant, the record shows nothing more than a fulfilled promise to secure the dismissal of state charges. Such facts provide no basis for relief.

As to the claim of promised parole after nine months, the record discloses that the defendant was informed in detail of the discretion of the trial court in imposing sentence, and that he denied that any deals or assurances of leniency in punishment had influenced his decision to plead guilty. In light of these facts, appellant cannot now be heard to recant his denials and seek relief on the basis of nothing more than a disappointed hope for early parole. See United States v. Frontero, 5 Cir. 1971, 452 F.2d 406.

The final contention, that medicine had rendered appellant incompetent at the time of his plea, would, if true, provide an adequate basis for vacating the sentence and permitting entry of a new plea, Fontaine v. United States, supra. However, the medical records and affidavits “conclusively show” that appellant had received nothing more disorienting than aspirin for nearly a month prior to his trial. Certainly no evidentiary hearing was required to determine whether the medically approved dosages of aspirin had rendered appellant incompetent to plead.

Affirmed.


text:
    Joel RUBIN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2796
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec 3, 1973.
    Arthur W. Tifford, Miami, Fla., for petitioner-appellant.
    Lawrence B. Craig, Asst. U. S. Atty., Miami, Fla., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Rubin’s § 2255 motion to vacate sentence was denied by the district court. Since a notice of appeal was not filed within the time prescribed bylaw we must dismiss for lack of jurisdiction.

On October 19, 1972, appellant filed his § 2255 motion alleging juror prejudice. He filed additional motions with the district court on January 11, 1973. Those relevant here include a request for permission to interview a juror and a motion for leave to file affidavits late. The district court held that the appellant had waived his complaint of juror prejudice and entered an order dismissing the motion to vacate on February 9, 1973.

On March 27, 1973, appellant filed a second motion for leave to file affidavits late. The district court’s order denying this second motion was entered April 16, 1973. The court stated that this cause had been considered on appellant’s prior motions and the request was impliedly denied in the February order. Not until June 18, 1973, was a notice of appeal filed from the court’s order entered in February dismissing appellant’s motion to vacate. At that time a notice of appeal was also filed from the April order denying the second motion to file affidavits late.

When the trial judge acts in a manner which clearly indicates his intention that the act shall be the final one in the case, and a notation of the act has been entered on the docket, the time to appeal begins to run. Carnes v. United States, 279 F.2d 378, 380 (10th Cir. 1960); Erstling v. Southern Bell Telephone, 255 F.2d 93 (5th Cir. 1958). Appellant contends that the February order of dismissal was not clearly the final one in the case because it did not expressly dispose of every specific request. We disagree. The February order was clearly a final denial of the requested relief. Furthermore, the re-filing of a motion for leave to file affidavits late docs not toll the running of the time for filing a notice of appeal.

The final order in this case was filed in the clerk’s office on February 12, 1973. A notice of appeal was not filed until June 18, 1973, some four months later. Accordingly this appeal is dismissed for lack of jurisdiction. See, Dunn v. Henderson, 446 F.2d 1398 (5th Cir. 1971); Jackson v. Decker, 451 F.2d 348 (5th Cir. 1971).

Dismissed.

      . This order was dated April 16, 1973, but appears to have been filed in the clerk’s office on April 18, 1973.

      . The notice of appeal specifically refers to the order “denying his motion to file affidavits in support of his petition for Habeas Corpus late entered April 16, 1973, and from the dismissal of that petition.” Apparently the order was filed in the clerk’s office on April 18, 1973.

      . F.R.A.P. 4(a) provides in pertinent part:
      “. . . if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry.”
      Rule 4(a) is jurisdictional. See Holley v. Capps, 468 F.2d 1366, 1367 (5th Cir. 1973).

      . The order of dismissal was dated February 9, 1973 but was not filed in the clerk’s office until February 12, 1973.


text:
    DEVLIN LUMBER AND SUPPLY CORPORATION, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1530.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 7, 1973.
    Decided Dec. 6, 1973.

      Jerome P. Friedlander, II, Arlington, Va. (Mark P. Friedlander, Jr., Friedlan-der, Friedlander & Brooks, Arlington, Va., on brief), for appellant.
    Karen K. Siegel, Atty. (Harlington Wood, Jr., Asst. Atty. Gen., Kathryn H. Baldwin and Morton Hollander, Attys., U. S. Dept, of Justice, and Brian P. Get-tings, U. S. Atty., on brief), for appel-lee.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
   PER CURIAM:

This case involves the liability of the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674, for the loss suffered by a materialman because the government’s contracting officer failed to require a payment bond from the contractor, as required by the Miller Act, 40 U.S.C. § 270a.

The Federal Tort Claims Act makes the United States liable, “ * * * relating to tort claims, in the same manner and to the same extent as a private Individual under like circumstances 28 U.S.C. § 2674. The Miller Act is a direction to federal contracting officers, and applicable only to them. individual * # * >>

A violation of the Miller Act, unlike, for example, the negligent operation of a lighthouse, Indian Towing Co., Inc. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), can have no counterpart in private activity, and cannot give rise to liability under the common law. Therefore, a violation of the Miller Act does not create liability on the part of the government under the Federal Tort Claims Act. United States v. Smith, 324 F.2d 622 (5th Cir. 1963).

Affirmed.


text:
    Antonios ORGETTAS, Appellant, v. Liberian S/T CRINIS, her boats, engines, tackle, apparel, etc., Liberian S/T NEF-ELI, her boats, engines, tackle, apparel, etc., and Mara Steamship Co., S.A., Polaris Steamship Co., S.A., Boyd, Weir & Sewell Inc., and Andreadis (U.K.) Ltd., all foreign corporations or associations, and Stratis G. Andreadis, a non-resident, as owners and/or operators of the Liberian S/T Crinis and the Liberian S/T Nefeli and Dimitrios Pitaoulis and John Doe, both non-residents, individually and as Masters of the Liberian S/T Crinis and the Liberian S/T Nefeli, Appellees.
    No. 71-1180.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided Dec. 6, 1973.

      Burt M. Morewitz, Newport News, Va., for appellant.
    Virgil S. Gore, Jr., Norfolk, Va. (John R. Crumpler, Jr., and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellees.
    Before CLARK, Associate Justice, Retired, Supreme Court, HAYNSWORTH, Chief Judge, and CRAVEN, Circuit Judge.

       Sitting by Designation.

   PER CURIAM:

We heard seaman Orgettas’ prior appeal from the refusal of the district court to exercise its admiralty jurisdiction on August 31, 1971, and upon stipulation of the respondents that they would voluntarily enter a general appearance in the appropriate Greek court and consent to a trial there, we vacated the district court’s order declining jurisdiction and remanded the ease for retention on the docket pending consummation of respondents’ agreement.

On this second appeal it now appears that the agreement has been fully consummated. The Greek court entertained the suit by Orgettas against Mara Steamship Corporation on the merits and concluded that Greek law, rather than the law of the flag (Liberia), applied because the original employment contract between Orgettas and Mara was entered upon in Greece. The Greek court further held that Orgettas was not entitled to recover under Greek law for having allegedly contracted tuberculosis during his employment as a seaman aboard the CRINIS.

Having lost in Greece, Orgettas returned to the United States district court, and that court again declined to exercise admiralty jurisdiction.

Absence of another forum in which a seaman can receive a hearing on the merits is “a persuasive argument for exercising a discretionary jurisdiction to adjudge a controversy.” Gkiafis v. Steamship YIOSONAS, 387 F.2d 460, 462-463 (4th Cir. 1967), quoting Lauritzen v. Larsen, 345 U.S. 571, 589-590 (1953). But here respondents made a Greek forum available. Moreover, and more importantly, there is here not even one significant contact between the foreign seaman and the United States. See, e. g., Heros v. Cockinos, 177 F.2d 570 (4th Cir. 1949); The Fletero v. Arias, 206 F.2d 267 (4th Cir. 1953). To require the district court to exercise jurisdiction under these circumstances would make such jurisdiction compulsory rather than discretionary. See Heredia v. Davies, 12 F.2d 500 (4th Cir. 1926). The district court has not exercised its discretion “on wrong principles” nor has it “acted so absolutely differently” from the view which this court holds that we are justified in saying such discretion has been exercised wrongly. The BELGENLAND v. Jensen, 114 U.S. 355, 368, 5 S.Ct. 860, 29 L.Ed. 152 (1885).

Affirmed.

      . As to the respondent, Polaris Steamship Corporation (the NEFELI), the Greek court held that it lacked jurisdiction because, unlike the contract with Mara, the contract between Orgettas and Polaris was not signed in Greece and there were insufficient other contacts with Greece to bring the claim within the Greek court’s jurisdiction. Since the claim asserted against Polaris is identical with that asserted against Mara it seems reasonable to assume that had the Greek court exercised jurisdiction the result on the merits would have been the same, i. e., a declaration that Greek law applied and that it afforded Orgettas no relief.


text:
    In the Matter of CROWN CABINETS, INC., Bankrupt. J. L. LEACH, Trustee, Appellant, v. SMALL BUSINESS ADMINISTRATION, Appellee.
    No. 73-2817
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 4, 1973.
    E. Louis Adams, Donald D. Rentz, Albany, Ga., for appellant.
    William J. Schloth, U. S. Atty., C. Nathan Davis, Asst. U. S. Atty., Macon, Ga., for appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Leach, the trustee in bankruptcy, appeals from an order of the district court allowing the claim of the Small Business Administration as a priority claim under 11 U.S.C.A. § 104(a)(5) and 31 U.S.C.A. § 191. The referee in bankruptcy had upheld the trustee’s petition to disallow the priority, since the original claim did not clearly show that the claim was entitled to it and the attempted amendment was not timely offered. We affirm the district court’s order permitting the amendment and allowing priority for the claim.

On February 6, 1969, Crown Cabinets negotiated a loan from the S.B.A. and the National Bank of Albany, Georgia, for $55,000. The S.B.A. supplied seventy-five percent of the loan funds and the bank supplied the other twenty-five percent. Thus, it was an “immediate participation” loan, since the S.B.A. actually advanced funds at the outset rather than merely acting as guarantor. If properly proved, it was entitled to its statutory priority under the rule of Small Business Administration v. McClellan, 1960, 364 U.S. 446, 81 S.Ct. 191, 5 L.Ed.2d 200. The sole issue is whether the S.B.A. satisfactorily proved the claim.

Crown Cabinets, Inc. was adjudicated a bankrupt on April 26, 1971. The S.B. A. filed its original proof of claim on May 25, 1971, one day before the first meeting of creditors. In pertinent part, the proof of claim stated that

this claim is filed as a secured claim up to the value of the above-listed security and as a priority claim (11 U. S.C. § 10ia(5) and 31 U.S.C. § 191) as to the deficiency between the amount due on the claim and the value of the security .... (emphasis added)

It may well be true, as Leach asserts, that fully sufficient documentary proof of the nature of the S.B.A. claim was not offered until the attempted second amended proof of claim on December 22, 1972, well after the six month statutory deadline for the filing, of claims. Still, the quoted portion of the original proof of claim was enough to put the referee on notice that the S.B.A. was asserting a claim that was entitled to priority.

A bankruptcy court, in the person of the referee in bankruptcy, sits as a court of equity, duty bound to examine each claim to see that injustice is not done and that all claims are fairly considered. Pepper v. Litton, 1939, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281. We agree with the District Court that, had the referee handled the matter equitably, once put on notice by the original claim, he would have inquired into the basis for the asserted priority and determined its validity. Had he done so, the claim could have been properly established well within the six month period, obviating the necessity of the late amendment. At the least, the referee would have been in a position to recognize the late amendment as a proper amendment supplying more fully the proof of the original claim rather than a belated assertion of an entirely new claim.

Appellant Leach relies on three cases disallowing late amendments as support for the referee’s action here. None of the cases is in point, however, since they involved original claims that were insufficient even to put the referee on inquiry as to the basis of the claim asserted in the late- amendment. In In re Keck, W.D.Pa.1938, 23 F.Supp. 121, 122, the court stated that “the claim against the individuals upon which the C.I.T. Corporation relies [i. e., the amended claim] is founded upon a written guaranty by each partner. The claim as filed [the original claim] makes no mention of any such instrument.” The court in In re G. L. Miller & Co., 2d Cir. 1930, 45 F.2d 115, 116, identified the issue before it as

whether there may be substituted by amendment after the expiration of the statutory six months a wholly new and different cause of action of which no intimation whatever was given in the original claim.

In Wheeling Valley Coal Corp. v. Mead, 4th Cir. 1949, 171 F.2d 916, 918, “[n]o claim whatever was ever filed within the statutory period against the bankrupt for the items covered in Amended Claim No. 432.”

In this case, we think the original filing adequately put the referee on notice of the nature of the S.B.A. claim. In the exercise of his equitable powers, he should have inquired further. Had he done so and learned the basis of the claim to priority, he would have recognized the offered amendment as a proper améndment rather than the assertion of an entirely new claim. The district court was correct in holding that the offered amendment should have been accepted and that the claim of the S.B.A. should have been allowed priority.

Affirmed.

      . 11 U.S.C.A. § 93 (n) provides in part:
      Except as otherwise provided in this title, all claims provable under this title, including all claims of the United States and of any State or any subdivision thereof, shall he proved and filed in the manner provided in this section. Claims which are not filed within six months after the first date set for the first meeting of creditors shall not be allowed. .


author: PEB CUBIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jane DOE, a/k/a “Frankie Mae,” Defendant-Appellant.
    No. 73-2482
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 13, 1973.
    Bobert P. Cates, Gainesville, Fla. (Court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Bobert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-ap-pellee.
    Before BBOWN, Chief Judge, and DYEB and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PEB CUBIAM:

Appellant was convicted in a jury trial on June 11, 1973 of distribution of heroin (21 U.S.C.A. § 841(a)(1)). Appeal is taken on two points: (1) That reversible error was committed by the trial court in allowing a photograph to be introduced during the Government’s rebuttal testimony, and (2) that it was error to prevent the defendant from testifying in surrebuttal to the Government’s rebuttal testimony. Finding no reversible error we affirm.

At the trial a special agent for the Federal Bureau of Narcotics and Dangerous Drugs, Ellis Dean, testified that on November 8, 1972, he went to a residence in Gainesville, Florida, where he met the defendant Frankie Mae Jones. In exchange for seventy five dollars ($75.00) Dean received five packets of a white powder subsequently analyzed to be heroin. Dean gave a full account of the transaction and identified Frankie Mae as the person who had given him the heroin.

The defense consisted of an alibi with testimony solicited from the defendant and four relatives or friends who stated that Frankie Mae was in Boynton Beach, Florida, on November 8, 1972, visiting her father. In an attempt to rebut the alibi, the Government called Clarence Thomas as a witness. Thomas was a confidential informant for the Bureau of Narcotics and Dangerous Drugs and was present during the exchange on November 8, 1972. He testified that Frankie Mae passed the heroin packets to Agent Dean in exchange for seventy five dollars ($75.00). Agent Dean then was called back to the stand as a rebuttal witness. At this time he produced a photograph which he had confiscated from the house when he returned on December 8, 1972, to arrest Frankie Mae. Dean took the photograph because it pictured the individual who had sold him the heroin on November 8, 1972. The person in the photograph was Frankie Mae.

It is within the sound discretion of the trial court to receive additional evidence after closing of the casein-chief. Simsirdag v. United States, 5 Cir., 1963, 315 F.2d 230. The acceptance of the photograph into evidence did not broaden the scope of the Government’s case. The defendant had presented a vigorous alibi defense to which Thomas and Dean responded. The issue of the rebuttal centered solely on establishing the proper identification of Frankie Mae.

Since testimony during rebuttal created nothing new, the trial court’s refusal to allow surrebuttal by the defendant was proper. Turner v. United States, 5 Cir., 1971, 441 F.2d 736. Additional testimony by the defendant would have provided the trial with a mere reiteration of her previous alibi defense.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Bentley BROWN, Defendant-Appellant.
    No. 73-2964
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 6, 1973.

      Stephen K. Johnson, Gainesville, Fla. (court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Clinton Ashmore, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Brown has pursued this appeal from an order revoking his probation following an evidentiary hearing. Claiming to be a lay minister in a religious organization, The Children of God, the appellant went to a shopping center to preach. His enthusiastic efforts were not welcomed, complaints were made by patrons of the center, and he was arrested for trespassing after warning. A subsequent search uncovered a controlled substance in the appellant’s possession. Criminal charges were dropped, but this activity or the failure to report it to his probation officer or both facts served as the basis for his probation revocation.

Appellant contends that his arrest was not based upon probable cause and that the fruits of the unreasonable search should have been suppressed at his probation revocation hearing. Even assuming appellant is correct regarding the constitutionality of his arrest and search, he admits that the exclusionary rule does not apply to probation revocation hearings absent police harassment of probationers. 2Upon a review of this record we find inadequate evidence of police misconduct or harassment to support an application of the exclusionary rule. Furthermore, we note that regardless of the legality of the arrest and search, appellant was charged with failure to report the incident to the Probation Officer. Probation revocation is a matter entrusted to the sound discretion of the district court, and only upon a clear showing of abuse of that discretion will the district court’s decision be disturbed.

Affirmed.

      . See, United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970), and United States ex rel. Lombardino v. Heyd, 318 F.Supp. 648 (E.D.La.1970), aff’d, 438 F.2d 1027 (5th Cir. 1971) (per curiam).

      . The district court’s findings of fact note that failure to report the indictment was charged, but are not clear as whether this constituted the basis for probation revocation.

      . See, Burns v. United States, 287 U.S. 216, 221, 53 S.Ct. 154, 156, 77 L.Ed. 266, 269 (1932), and United States v. Garza, 484 F. 2d 88 (5th Cir. 1973).


text:
    Eugene RUSSELL, Petitioner-Appellant, v. Honorable Judge Lamar KNIGHT, Superior Court of Troup County, Ga., Respondent-Appellee.
    No. 73-1701
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.,
    Dec. 5, 1973.
    Eugene Russell, pro se.
    Eldridge W. Fleming, Dist. Atty., Coweta Judicial Circuit, Carrollton, Ga., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

It is ordered that the dismissal of this petition for writ of mandamus be vacated and the case remanded for further consideration by the District Court.

After conviction for arson in a Georgia state court, petitioner, Eugene Russell, on September 18, 1972, filed a notice of appeal and a motion to proceed in forma pauperis dated September 11, 1972. In an order dated September 22, 1972, respondent, the Honorable Lamar Knight, Judge, Superior Court of Troup County, Georgia, holding that petitioner was not an indigent, ruled as follows:

It is therefore considered ordered and adjudged that the application to proceed in forma pauperis is hereby denied. The appeal is therefore dismissed.

The pro se defendant then filed another notice of appeal dated September 27, 1972. On November 3, 1972, Judge Knight dismissed this appeal by an order which provided:

[T]his Motion was dated September 27, 1972. It is, therefore, appearing on the face of the record, that motion was filed too late.

Petitioner subsequently brought a petition for writ of mandamus in the Northern District of Georgia, alleging denial of his right of appeal. Judge Knight responded to the District Court’s show cause order with a pleading which showed that petitioner’s September 27 notice was untimely and that petitioner was not an indigent at the time of the trial. The District Court thereupon dismissed the petition and this appeal followed.

Although this Court has been handicapped by the failure of either the respondent, or anyone on behalf of the State, to file a brief on this appeal, it appears from the record before us that the order dated September 22, 1972, dismissed petitioner’s appeal because he did not qualify as a pauper. Neither Judge Knight’s response to the District Court’s show cause order, nor the District Court order dismissing the appeal, evidences any consideration of the pro se notice of appeal filed with petitioner’s pauper application. References to untimeliness in the disposition of this case, both in state and federal court, apparently relate to the second notice of appeal.

Although federal courts have no general power to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought, petition-er’s pleading, styled as a petition for writ of mandamus, may be construed liberally and treated as one for writ of habeas corpus. Habeas corpus relief is appropriate for an unconstitutional denial of the right of appeal. On remand, the District Court should reconsider petitioner’s claim for relief in the light of this order, conduct such hearings as it may deem appropriate, and should determine whether petitioner has exhausted his state remedies if the petition is to be treated as a petition for writ of habeas corpus.

Vacated and remanded.

      . Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973) ; Anderson v. Beto, 469 F.2d 1076 (5th Cir. 1972) ; Lamar v. 118th Judicial District Court, 440 F.2d 383 (5th Cir. 1971).

      . Cf., e. g., Wooley v. Consolidated City of Jacksonville, 433 F.2d 980 (5th Cir. 1970), cert. denied, 407 U.S. 924, 92 S.Ct. 2451, 32 L.Ed.2d 811 (1972) ; May v. Georgia, 409 F.2d 203 (5th Cir. 1969).

      . See Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) ; Douglas v. Green, 363 U.S. 192, 80 S.Ct. 1048, 4 L.Ed. 2d 1142 (1960) ; Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L. Ed. 215 (1951).


author: BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin Richard MIZELL, Defendant-Appellant.
    No. 72-1397.
    United States Court of Apepals, Fifth Circuit.
    Nov. 30, 1973.

      Richard M. Gale, William M. Moran, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Harold F. Keefe, Robert N. Reynolds, Asst. U. S. Attys., Miami, Fla., for plaintiff-ap-pellee.
    Before BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
   BROWN, Chief Judge:

Appellant appeals from a conviction on a plea of nolo contendere for passing a $20.00 bill (count I) and possessing 15 counterfeit $20.00 federal reserve notes (count II), 18 U.S.C.A. § 472. The sole error asserted is that the trial court erred in denying his motion to suppress, the theory apparently being that without the evidence sought to be suppressed the government could not have made out the requisite case.

The sentencing Judge credited this theory to the extent that in response to a plea bargain struck between the government and defendant on the entry of the nolo plea and resulting conviction on it the defendant would nevertheless have a right to appeal the correctness of the Court’s ruling on suppression.

We have held this case awaiting en banc decision in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc), to determine whether an appeal properly lies after a plea of guilty — or its consequential equivalent, a plea of nolo contendere — to raise non-jurisdictional issues. Haynes v. United States, 5 Cir., 196., 372 F.2d 651, reversed on other grounds, 1968, 390 U.S. 85, 88 S. Ct. 722, 19 L.Ed.2d 923.

In affirming the panel in Sepe the Court en banc has in strong terms indicated its disapproval of any such conditional pleas and implicity the mechanism by which an appeal is sought from a plea of guilty. United States v. Sepe, supra. The Court’s en banc opinion declares “. . .we now take advantage of an opportunity to say that as a matter of policy this court disapproves the practice of accepting pleas of guilty or nolo contendere if they are coupled with agreements that the defendant may nevertheless appeal on non jurisdictional grounds.”

As in Sepe this case illustrates the soundness of this rule. The defendant’s theory was that the initial arrest was invalid and hence did not justify the warrantless search of his nearby parked vehicle made by the officers, so they asserted, under the predetermined policy of inventorying any vehicle upon being taken into police custody. The principal element of the theory was that simply passing a counterfeit bill is not enough since there must be proof of knowledge/intent — -an unquestioned truth in testing conviction, but not necessarily so in assaying arrest, search, or both.

To east the whole thing into the highly simplified question of whether the motion to suppress should properly have been sustained assumes that what the trial court found was an adequate factual basis for the arrest/search is all the evidence the government has. Although that may be so in a large number of instances, neither the trial judge in his role as umpire — not advocate,! nor the appellate court from its restrictive position have the facilities for ascertaining what the true situation is. Indeed, on argument we are told with positiveness that had the case gone to trial the government had abundant other evidence to establish knowledge/intent and that the reason it did not offer it on the suppression hearing was that counsel felt that the District Judge would do as he did and deny the motion.

The wisdom of the rule — that seldom is a conviction reviewable after polo or guilty plea — is reflected in the nearly unanimous practice of the other Courts of Appeals. The Third, Fourth, Sixth, Seventh, Tenth and District of Columbia Circuits decline to recognize appealability from nolo/guilty pleas to raise evidentiary non-jurisdictional issues. The First, Second, Eighth, and Ninth, while less stringent in their application of the waiver rule, nevertheless apply it allowing appeals on non-jurisdictional issues only under highly restrictive circumstances.

But appealing after a nolo/guilty plea has at least two more disadvantages in addition to that of putting the appellate court in a speculation as to what might have happened had the Judge rejected such a conditional plea. The first is in delineating those matters which are reachable by such appeals. The constitutionality of the underlying statute or the failure of the indictment to state an offense are clearly at one end of the spectrum. But how far does it go? Would it include an attack upon the sufficiency of the evidence? A jury instruction? An evidentiary ruling? The second disadvantage is that it adds to the already substantial problems of the sentencing Judge inherent in the F. R.Crim.P. Rule 11 on guilty pleas. If the sentencing Judge accepts the proposed conditional plea he has first to predict what the Court of Appeals will decide as to appealability of that particular case. This means that if, as is true here, his prediction of appealability is faulty because of action of the Court of Appeals, the whole plea and sentencing procedure is infected by an assurance given which either was not, or could not have been, made good.

That is what happened here. Since it is plain from the precision of the plea/sentencing procedure that it was all tied into the reservation of a right to appeal which the Judge expressly accorded, the conviction must be vacated so that defendant can withdraw the conditional plea and plead anew. Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Johnson v. Beto, 5 Cir., 1972, 466 F.2d 478; James v. Smith, 5 Cir., 1972, 455 F.2d 502; United States v. Anderson, 5 Cir., 1972, 468 F.2d 440.

Vacated and remanded.

      . The essence of the bargain was that in return for dismissal of count I of the indictment appellant would change his plea to nolo contendere on count II with the further condition that he have the right to appeal the denial of the motion to suppress.

      . En banc hearing was also granted in United States v. Caraway and Scales, 5 Cir., 1973, 474 F.2d 25, dismissed as moot by the Court en banc, 5 Cir., 1973, 483 F.2d 215.

      . The following summary from the government’s brief is a fair statement of the underlying facts:
      “On the 15th of October, 1971, at approximately 6:30 p. m., Bruce Taylor, a Clewiston, Florida police officer, answered a call at the Clewiston bar. When the complaint involved was resolved, Officer Taylor left the bar and at that time observed Hendry County Deputy Sheriff Buckey Hood. Deputy Hood was conversing with a Mr. Cox who is the proprietor of a nearby grocery store. It was at this time that Officer Taylor first observed the petitioner, Mr. Mizell, who was going out of Mr. Cox’s store.
      Cox, the store proprietor, had just received from the petitioner a $20.00 bill which appeared faded on the back. Cox showed Officer Taylor the bill and identified Mizell to Taylor as the man who had given him the bill.
      At this time Officer Taylor, Deputy Hood and store owner Cox all agreed that the bill didn’t appear genuine. Based upon this suspicion, Officer Taylor then arrested Mizell who had continued down the street.
      The arrest. of Mizell occurred approximately 50 feet from his automobile which was parked in a private lot. Officer Willis and Officer Tyson of the Clewiston Police Department, in addition to Officer Taylor, took Mizell into custody at this time by placing him in the rear of the police cruiser. Officer Willis then remained at the scene and conducted an inventory incident to the arrest of the contents of Mizell’s vehicle per Clewiston Police Department regulation. The inventory of the automobile revealed 13 counterfeit $20.00 bills. A further search of Mizell’s person at the police station revealed a counterfeit $20.00 bill in the toe of his shoe and three counterfeit $20.00 bills in his wallet.”

      . In Sepe we were likewise asked to make a judgment on what might have been, or more accurately, might not have been. After a motion to suppress certain evidence obtained in a particular search was granted, the defendant stood on his plea of not guilty. Without the Judge ever repudiating the prior suppression order as to the defendant Sepe, he nonetheless changed his plea to guilty after a couple of government witnesses were heard. On appeal from the conviction after plea of guilty the theory presumably was that the change of plea was made because the admission of some testimony relating to the same suitcase indicated that the Judge would eventually repudiate the earlier suppression. We declined to engage in such speculation.

      . Of course the government on appeal under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 3731, is stuck with the record as made if the motion is sustained. But we have recognized that for some aspects the case does not turn on the record as it stands. Frequently proceedings on remand are required. United States v. Lyles, Jr., 5 Cir., 1972, 471 F.2d 1167; United States v. Impson, 5 Cir., 1973, 482 F.2d 197.

      . Of course review is available to attack the unconstitutionality of the statute, United States v. Haynes, supra, or whether the acts charged constitute a crime. United States v. Cash and United States v. Rodriguez, 5 Cir., 1973, 486 F.2d 295.

      . See Abram v. United States, 3 Cir., 1968, 398 F.2d 350; United States v. Ptomey, 3 Cir., 1966, 366 F.2d 759.

      . See United States v. Mathews, 4 Cir., 1973, 472 F.2d 1173.

      . See United States v. Cox, 6 Cir., 1972, 464 F.2d 937.

      . See United States v. Cosentino, 7 Cir., 1951, 191 F.2d 574; McGrath v. United States, 7 Cir., 1968, 402 F.2d 466.

      . See United States v. Soltow, 10 Cir., 1971, 444 F.2d 59; Roeth v. United States, 10 Cir., 1967, 382 F.2d 96, cert. denied, 390 U. S. 1016, 88 S.Ct. 1267, 20 L.Ed.2d 165; Zebelman v. United States, 10 Cir., 1964, 339 F.2d 484.

      . See Watts v. United States, 1960, 107 U. S.App.D.C. 367, 278 F.2d 247; Edwards v. United States, 1958, 103 U.S.App.D.C. 152, 256 F.2d 707, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82; United States v. Dorsey, 1971, 146 U.S.App.D.C. 28, 449 F.2d 1104, although in the latter case the court expressed some approval for the New York State procedure which permits questions to be preserved on appeal following pleas of guilty.

      . See United States v. Karger, 1 Cir., 1971, 439 F.2d 1108, cert. denied, 403 U.S. 919, 91 S.Ct. 2230, 29 L.Ed.2d 696; United States v. Webb, 1 Cir., 1970, 433 F.2d 400. The First Circuit, however, has reached a speedy trial question following a guilty plea by distinguishing it from evidentiary matters which go directly to the determination of the defendant’s guilt. United States v. DeCosta, 1 Cir., 1970, 435 F.2d 630.

      . See United States v. Moretti, 2 Cir., 1965, 353 F.2d 672, vacated and remanded on other grounds, 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864. The Second Circuit has allowed review of a motion to dismiss an indictment following an admission of guilt where the asserted grounds for dismissal were that appellant’s right to a fair trial was compromised by adverse , publicity. United States v. Grassia, 2 Cir., 1965, 354 F.2d 27. That court has also considered the legality of a search following a guilty plea in a state case where that procedure was specifically sanctioned by state law reasoning that the defendant relied on the applicable state procedural statute in entering the plea. United States ex rel. Rogers v. Warden, 2 Cir., 1967, 381 F.2d 209. Dicta from other Second Circuit eases indicates that non-jurisdictional issues might be preserved on appeal if specifically reserved. See United States v. Doyle, 2 Cir., 1965, 348 F.2d 715; United States v. Mann, 2 Cir., 1971, 451 F. 2d 346.

      . See United States v. Clark, 8 Cir., 1972, 459 F.2d 977, cert. denied, 409 U.S. 880, 93 S.Ct. 209, 34 L.Ed.2d 135; Hughes v. United States, 8 Cir., 1973, 371 F.2d 694. The Eighth Circuit has allowed an appeal from denial below of a motion to dismiss the indictment following a nolo plea where the question was whether the offense was barred by the statute of limitations. Jaben v. United States, 8 Cir., 1964, 333 F.2d 535, affirmed, 381 U.S. 214, 85 S.Ct. 1365, 14 L. Ed.2d 345.

      . See Thomas v. United States, 9 Cir., 1961, 290 F.2d 696, cert. denied, 368 U.S. 964, 82 S.Ct. 446, 7 L.Ed.2d 401; Benton v. United States, 9 Cir., 1965, 352 F.2d 59. That court has, however, on occasion reached evidentiary issues following admissions of guilt by permitting attacks on the voluntariness of the plea where it is alleged that the plea was induced by a deprivation of fundamental constitutional rights. See Doran v. Wilson, 9 Cir., 1966, 369 F.2d 505; Briley v. Wilson, 9 Cir., 1967, 376 F.2d 802.

      . Illustrative of the difficulties in prediction or in the conscientious Judge’s efforts to assure full rights to a defendant are United States v. Rosenberg, 5 Cir., 1972, 458 F.2d 1183; United States v. Cook, 5 Cir., 1972, 463 F.2d 123; United States v. Wysocki, 5 Cir., 1972, 457 F.2d 1155, in all of which we undertook to review the contentions even though we had great doubts as to appealability.