author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Eric Marshall NAGLER, Appellant.
    No. 808, Docket 73-1194.
    United States Court of Appeals, Second Circuit.
    Argued April 26, 1973.
    Decided May 17, 1973.

      Donald L. Doernberg, New York City (Jeremiah S. Gutman, Levy, Gutman, Goldberg & Kaplan, New York City, of counsel), for appellant.
    Thomas R. Maher, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., L. Kevin Sheridan, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appel-lee.
    Before BREITENSTEIN, KAUFMAN and MANSFIELD, Circuit Judges.

       Of the United States Court of Appeals for the Tenth Circuit, sitting by designation.

   MANSFIELD, Circuit Judge:

Eric Marshall Nagler appeals from a judgment of conviction for failure to report for induction into the armed forces in violation of 50 U.S.C. App. § 462(a), entered after a trial in the Eastern District of New York before Judge Anthony J. Travia, sitting without a jury. Appellant was sentenced to three years imprisonment. and was released on bail pending this appeal. The question before us is whether the denial of appellant’s claim for classification as a conscientious objector to combatant and noncombatant training and service (1-0 status) and his consequent retention in a I-A classification resulted from a denial of due process. We conclude that the Local Board did not provide adequate reasons for its rejection of appellant’s conscientious objection claim, that appellant was thus subject to an invalid induction order, and that his conviction based on that order must therefore be reversed.

The essential facts are undisputed. Appellant duly registered with Local Board 41 in Brooklyn, New York, on June 6, 1960. He was classified I-A on October 18, 1961, but on December 11, 1963, he was reclassified II-S until June 1964 because he had enrolled as a full-time graduate student in psychology at Queens College. On December 16, 1964, he was again classified I-A. After receiving information five days later from Queens College that appellant was still pursuing a graduate degree part-time, the Local Board reviewed his classification on January 20, 1965, but concluded that the new information did “not warrant reopening.” On September 22, 1965, Nagler was continued in a I-A classification, and on November 1 he was ordered to report November 12 for an Armed Forces Physical Examination. He reported for the examination as required, though he had in the interim, by letter dated November 5, 1965, requested from his Local Board SSS Form 150, the Special Form for Conscientious Objectors.

The Local Board received appellant’s completed application for conscientious objector status on November 22, 1965, along with seven letters in support of it. The Government concedes that his application “made out a prima facie case for reclassification as a conscientious objector.” Appellant based his claim on religious beliefs, including belief in a Supreme Being, which led him to “three deeply felt guiding forces: nonviolence, respect for the individual, and responsibility to the community.” He noted his Jewish background, but stressed “freedom of religion” and recorded his membership in the National Ethical Youth Organization of the New York Ethical Culture Society and its Executive Committee when he was in high school, as well as membership in the Fellowship of Reconciliation, the Committee for a Sane Nuclear Policy, and the New York Her-petologieal Society. He also stated that he was “opposed to all war,” that his conscience would not allow him to take part in killing, and that “non-violence is always a possible alternative when nations are at odds” and should be followed if at all possible in situations of individual attack, though if there were no alternatives he allowed that he would in the final analysis fight for his life. Appellant cited his brother, also a conscientious objector, as the one person most influential in guiding him towards pacifism.

No action was taken by the Local Board on Nagler's claim until seven months later, just after he wrote to them requesting permission to leave the United States for a two-month period. On June 14, 1966, he received notification of a discretionary interview before the Local Board, to be held on the following day, June 15. Following his appearance, his claim for classification as a conscientious objector was rejected by the Local Board and his request for a permit to depart the country was denied. The Board’s minutes of his appearance and of its disposition include the following notations:

“Reg. appeared requests deferment on grounds of being a conscientious objector. ... 21 Questions and Answers read and considered by the Board. ... He stated he was an atheist because he did not believe in the Jewish God or the Christian God. Believes that killing is against civilization and that things should be handled by non-violence. . . . Board finds this registrant to be less than sincere hnd statements were found to be somewhat inconsistent i. e. re: belief in Supreme Being. Registrant does not qualify for 1-0 Classification under the existing regulations.”

Appellant asked the Board to reconsider its decision and to reopen his classification, complaining that he had not been afforded sufficient time to prepare for the interview. After a lengthy exchange of correspondence, he was granted a personal appearance on September 13, 1966, but his claim was again rejected and he was retained in a I-A classification. The Board’s summary stated the following relevant observations:

“Reg. states he is of the Jewish Religion but does not attend any synagogue or Temple. . . . about a year ago he joined the Fellowship of Reconciliation. . . . Attended a Quakers meeting once and only listened. Reg. states that he would not now call himself an atheist. He be-' lieves in a Supreme being that does not organize religions but humanists. Basis of objection to war is that it is wrong to kill. . . . The 21 questions and answers read & considered by the Board. Reg. states his answers are the same today. Minutes of meeting dtd June 15, 1966 were considered & same questions & answers received. Conscientious objector for religious reasons. . Board finds that registrant to be less than sincere [sic] and statements made now are inconsistent with statements made at prior hearing held on June 15, 1966. . . . Does not warrant reopening 4-0.”

Nagler appealed the Local Board’s determination to the Appeal Board which, pursuant to procedures then applicable, 50 U.S.C. App. § 456(j) (1948) and 32 C.F.R. § 626.25(a) (1948), sought an advisory recommendation from the Department of Justice after it had reviewed the file and “tentatively” determined that appellant was not eligible for a 1-0 classification. A Hearing Officer from the Justice Department interviewed appellant on May 31, 1967, concluded that he was sincere in his religious beliefs and conscientious objection, and recommended that his conscientious objector claim be sustained. In the formal reply to the Appeal Board, however, T. Oscar Smith, Chief of the Justice Department’s Conscientious Objector Section, relayed the recommendation of the Department of Justice that the conscientious objection claim not be sustained because (1) it was filed after appellant had been classified I-A and ordered for his physical examination, (2) asserting the claim at that late date was “not persuasive” of “deep and abiding beliefs held for a long period of time,” and (3) the inconsistencies cited by the Local Board could be considered in its determination of appellant’s sincerity.

In accordance with Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L. Ed. 467 (1955), appellant was given an opportunity to and did respond to the Justice Department’s recommendation. In a 10-page letter to the Appeal Board dated August 27, 1967, Nagler protested that he had informed his Local Board at the earliest point when he had been fully convinced that he was a conscientious objector and that even if he had not been called for a pre-induction physical examination he would still have sent for the SSS Form 150 when he did. He disputed the Local Board’s summary descriptions of what he had said at his two appearances before them and their conclusion that he had been inconsistent in his views regarding his belief in a Supreme Being.

Despite appellant’s explanations, the Appeal Board unanimously sustained the Local Board’s I-A classification on October 9, 1967, without any statement of reasons. Appellant was subsequently ordered to report for induction on November 13, 1967, and he failed to do so. He was indicted on May 13, 1969 and this conviction followed.

Judge Travia rejected appellant’s argument that the Local Board’s classification of him as I-A was without a “basis in fact,” Estep v. United States, 327 U. S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946), and that the Appeal Board’s determination was invalid because that Board did not state its reasons for affirming the Local Board’s classification. The court accepted as a valid “basis in fact” the Local Board’s conclusion that appellant was “insincere” because of inconsistent statements as to his religious views. Judge Travia also interpreted the Appeal Board’s determination as resting solely on the ground of insincerity, since the Appeal Board tentatively rejected appellant’s claim before it sought the Justice Department recommendation and the judge construed the Department’s advice as relating solely to the question of appellant’s sincerity. On this interpretation Judge Travia concluded that the failure of the Appeal Board to state the reasons for its determination did not affect the validity of the induction order.

The legal parameters governing this appeal have been indicated by recent rulings of the Supreme Court, Joseph v. United States, 405 U.S. 1006, 92 S.Ct. 1274, 31 L.Ed. 473 (1972), and Lenhard v. United States, 405 U.S. 1013, 92 S.Ct. 1296, 31 L.Ed.2d 477 (1973), which have been interpreted by this and other circuits considering the issue as mandating reversal of a conviction upon a record of the type here presented. It is now clear that when a registrant states a prima facie claim for a conscientious objector classification, as concededly appellant did here, his Local Board’s failure to give reasons for denying his claim precludes meaningful administrative review by the Appeal Board and therefore invalidates a I-A classification following such denial. Accordingly a conviction based on failure to respond to an induction order grounded on that classification must be reversed. United States v. Stewart, 478 F.2d 106, 112 (2d Cir. 1973); United States v. Holby, 477 F.2d 649, 656-657 (2d Cir. 1973). Furthermore, since an Appeal Board need not restate the reasons for denying the claim when it affirms the Local Board’s determination, United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973), it “becomes all the more important that the local board specify the facts forming the basis of its decision,” United States v. Stewart, supra at 112-113. We noted specifically in the Stewart case that the requirement that reasons be furnished for rejecting the conscientious objector claim “is not satisfied by a board’s mere conclusory statements of insincerity. The facts or factors relied upon by the board must be stated. United States ex rel. Checkman v. Laird, 469 F.2d 773, 785 (2d Cir. 1972); see United States v. Andersen, 447 F.2d 1063, 1065 (9th Cir. 1971).” Id.

Application of these principles here dictates reversal of Nagler’s conviction. After his first appearance before the Local Board on June 15, 1966, his claim was rejected because he was found to be “less than sincere” and his “statements were found to be somewhat inconsistent, i. e. re: belief in Supreme Being.” The conclusion of insincerity, standing alone, would not suffice to support the Board’s determination, United States v. Stewart, supra, 112. To the extent that it is supplemented by a reference to Nagler’s inconsistent statements regarding his religious views, the Government has conceded that “in his reply to the Smith letter Nagler appears to have fully answered and explained the alleged inconsistencies, at least to the extent that even without crediting his version of what transpired at his meetings with the Board, no reasonable person could conclude that there was any necessary inconsistency in his religious views.” (Emphasis supplied) Since the misunderstanding as to the nature of appellant’s belief in a Supreme Being was not based upon objective fact but rather upon either an erroneous record of what he had said or upon a misconception by the Board members of what he had described as his beliefs, the alleged inconsistencies do not constitute a relevant “fact which casts doubt on the veracity of the registrant,” Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955). Without a rational basis for finding appellant’s statements concerning his belief in a Supreme Being inconsistent, the Local Board cannot either base its classification on the inconsistencies or base its conclusion of insincerity on inference drawn from the supposed inconsistencies. United States v. Anderson, supra, 447 F.2d at 1066-1067. Cf. United States v. Corliss, 280 F.2d 808, 814 (2d Cir.), cert, denied, 364 U.S. 884, 81 S.Ct. 167, 5 L.Ed.2d 105 (1960); United States v. O’Rourke, 341 F.Supp. 622, 626 (S.D.N.Y.1972).

Nor do the minutes of appellant’s second appearance before the Local Board, an appearance as of right, provide a sufficient basis in fact to support the Board’s denial of his conscientious objector claim, as the Government now urges. The Board concluded again that appellant was “less than sincere”, and this time that “statements made now are inconsistent with statements made at prior hearing held on June 15, 1966.” Obviously, if the inconsistencies refer to statements concerning appellant’s religious views, they gain no more basis through repetition a second time. Adopting this view, the Government, erroneously assuming that if it could show that there was a “basis in fact” for the decisions of the Local and Appeal Boards no statement of the reasons actually relied upon by those Boards was required, initially took the position upon this appeal that the “inconsistencies,” which it correctly interpreted as referring solely to “the registrant’s use of or the Board’s understanding of the term 'atheist,’ ” were not sufficiently substantial to uphold the Board’s decision, stating:

“The government concedes that, without more, these alleged inconsistencies would appear insufficient upon which to predicate a finding of insincerity. Very simply there is not enough in this record on this point.
“At the same time, however, the Government would suggest that, on this record it seems quite unlikely that these alleged inconsistencies played any substantial role, if any at all, in influencing the Appeals Board and that there was other evidence, much more strongly emphasized in the Smith letter. . . . ”

Notwithstanding the Supreme Court’s decisions in Lenhard and Joseph and our intervening decisions in Holby and Stewart, with which the Government was first confronted after briefing the appeal, it nevertheless continues to urge other “inconsistencies” which it has culled from the record in an effort to support the Local Board’s finding of insincerity. However, in view of our agreement with the Government’s initial interpretation of the Local Board’s use of the term as referring solely to the registrant’s religious views we must reject any reasons that were not articulated by the Local Board. Accordingly, we are left with that Board’s mere conclusion that a registrant is “less than sincere,” which is insufficient. United States v. Stewart, supra.

Nor can the Government gain any comfort from the Appeal Board’s decision, which sustained the Local Board’s I-A classification on appeal without giving any reason, conclusory or otherwise. If the Local Board has supported its decision with a valid statement of reasons, a further statement by the Appeal Board would be unnecessary. United States v. Orr, 474 F.2d 1365, 1369 (2d Cir. 1973). But where, as here, the Local Board has failed to furnish such a statement, that deficiency can not be cured by the Appeal Board, since the Local Board, not having articulated any reasons which rest on a “basis in fact,” may have acted upon invalid grounds. The Appeal Board, like ourselves has been left to speculate as to what legitimate reasons, if any, the Local Board might have found conclusive. The registrant, because of the Local Board’s silence, is deprived of a basic due process step, i. e., meaningful administrative review, which is an essential element of the system and should be accorded to all registrants.

In any event, the Appeal Board’s decision is fatally deficient for the reason that it failed to state any reason at all for its rejection of appellant’s claim, thus leaving us to speculate as to its grounds, just as we must speculate as to the basis of the Local Board’s decision. This deficiency cannot be remedied by reference to the reasons suggested to the Appeal Board by the Chief of the Justice Department’s Conscientious Objector Section, to which the Appeal Board looked for guidance. Some of these suggested reasons were plainly insufficient. Although late crystallization and assertion of conscientious objection may be viewed by a Board with suspicion, this factor is not conclusive. The claim may nevertheless be found to have been asserted in good faith. It cannot, therefore, automatically be rejected on such grounds. Ehlert v. United States, 402 U.S. 99, 103-104, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971) ; United States v. Gearey I, 368 F.2d 144 (2d Cir. 1966); United States v. Gearey II, 379 F.2d 915 (2d Cir.), cert, denied, 389 U.S. 959, 88 S.Ct. 335, 19 L.Ed.2d 368 (1967) ; Paszel v. Laird, 426 F.2d 1169 (2d Cir. 1970). And in any event the Appeal Board may have made its determination in reliance on the unsupported ground of inconsistent statements by Nagler as to his religious views, since this appears to have been the basis of the Local Board’s decision and the Justice Department, in turn, stated that it could properly be considered. Since the Appeal Board’s decision may well have been based upon invalid grounds, its decision could not in any event be upheld. Clay v. United States, 403 U.S. 698, 704, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).

The judgment of the district court is reversed with directions that the indictment be dismissed.

      . Although Nagler submitted to the Armed Forces Physical Examination, he refused to complete its Security Questionnaire (DD Form 98) on the ground that it represented an “unwarranted invasion of [his] right to freedom of association and belief.”

      . Appellee’s Brief 5. See United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) ; Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) ; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970).

      . Mr. Smith’s letter did set forth, among other things, the Hearing Officer’s recommendation and the fact that the Hearing-Officer had reported “that the registrant’s early religious training was Jewish but that his beliefs are of a personal nature based on his own present understanding of the teachings of Jesus and upon his individual inquiry into various philosophies of religion” and that “he believes in a Supreme Being.”

      . Nagler’s letter stated in pertinent part:
      “In neither of my two appearances before the Local Board did I state that I am an atheist. At my first encounter I did say that I did not believe in either the Jewish or the Christian God, but I was as clear as I could be on my conception of God. I said then unequivo-cably [sic] that I believe in God, and I pointed out that the answers to the questions in series II of my SSS Form 150 are quite clear on this. .

        “God, to me, is not something which can be dearly defined by words, as can be the Judeo-Christian God, God is experienced emotionally much more than rationally. It is the Universe, It is everything that is Good, It is the Ideal, It is Love, It is Life. ... At my second appearance before the Local Board, ... I remember clearly the events which led up to their writing ‘Reg. does not now call himself an atheist.’ One of the members was looking at a paper (which I assume to have been the minutes of my first appearance) and told me that I call myself an atheist. I said that I don’t. He said that at my first appearance I had claimed atheism. I replied that I had not said such a thing. He then dictated . words to the effect that I now retract my former statement of atheism. I then said that I do not retract any statement, that I never made such a statement to the Local Board. He then dictated . . . words to the effect that I do not remember making any statement that I was an atheist, and that I do not now call myself one. I then began to repeat what I had said at the first meeting concerning my belief in God, but was interrupted. .
      “The minutes of the second appearance state that I believe in a ‘Supreme Being that does not organize religions but humanists.’ I do not remember making this statement. I do not know what it means. . . . ”

      . After the rejection of his conscientious objector claim by the Appeal Board, appellant requested an occupational deferment from his Local Board on October 23, 1967. His request was supported by a letter from his employer, an Associate Commissioner for Research and Evaluation in the State Education Department of the University of the State of New York. The Local Board convened on October 24, reviewed appellant’s file, and determined that the new information did not warrant reopening his classification.
      Appellant urges that the Local Board’s refusal to reopen his classification was error invalidating his subsequent induction order because he had stated a prima facie claim for an occupational deferment under 32 C.F.R. §§ 1622.22(a), 1622.23 (1967). The Government takes issue as to the latter claim. Because of our disposition of this case on the conscientious objector claim, we need not resolve this controversy.

      . United States v. Lenhard, 461 F.2d 1268 (2d Cir. 1972) (on remand) ; United States v. Hulsey, 463 F.2d 1071, 1075 (7th Cir. 1972) ; United States v. Hanson, 460 F.2d 337, 342-343 (8th Cir. 1972).

      . Appellee’s Brief 18.

      . Upon their initial briefing of this appeal, neither side referred to the Supreme Court’s decisions in Lenhard and Joseph, supra, and of course our decisions in JIol-hy and Stewart had not yet issued.

      . Appellee’s Brief 17.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    Joseph J. REY et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No.73-1283
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1973.

      Joseph J. Rey, El Paso, Tex., for plaintiffs-appellants.
    William S. Sessions, U. S. Atty., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., Morton Hollander, Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER 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.

   SIMPSON, Circuit Judge:

Joseph J. Rey, Edna H. Rey, and C. Richard Tinguely appeal from the dismissal, as statutorily barred, of their complaint against the United States under the Federal Tort Claims Act, Title 28, U.S.C., Sections 1346(b), 2671 through 2680. Accepting, as we must, e. g., John Walker & Sons v. Tampa Cigar Co., 5 Cir. 1952, 197 F.2d 72, the truth of plaintiffs-appellants’ allegations, we note the following sequence of events as disclosed by the pleadings.

In April 1969, plaintiff-appellant Joseph J. Rey was a contractor with the United States for the removal of edible garbage from the U.S. Military Reservation at Fort Bliss, Texas. Rey used the garbage removed under the contract to feed hogs belonging to Rey and plaintiff-appellant Tinguely. The contract specified that routine inspection and testing of the garbage removal operation was to be performed by Dr. L. E. Moffit of the Animal Health Division, United States Department of Agriculture. The contract also required that Dr. Moffit be notified if more than a usual number of plaintiffs’ hogs died.

On April 21, 1969, sixteen of plaintiffs’ hogs died, and Rey immediately notified Dr. Moffit. Dr. Moffit examined the carcasses, and with Rey’s permission destroyed three additional hogs of different ages and from different pens to test for hog cholera infection in the herd. Dr. Moffit promised he would notify plaintiffs and their veterinarian promptly of the test results. On April 30, 1969, Dr. Moffit notified plaintiffs that the hogs were infected with hog cholera, and imposed a quarantine on the hogs.

At that time, a live virus vaccine was available for hog cholera. Use of the vaccine was hazardous, however, as the vaccine could cause otherwise uninfected hogs to contract fatal hog cholera. Upon receipt of the April 30 notice from Dr. Moffit, and after consultation with their own veterinarian, plaintiffs proceeded to inject their hogs with the live vaccine. As a result of the inoculations, a large number of plaintiffs’ hogs died. Plaintiffs Joseph and Edna Rey lost 415 hogs, with an asserted market value of $21,580; plaintiff Tinguely lost 185 hogs with a claimed market value of $7,400.

In point of fact, still according to plaintiffs’ allegations, Dr. Moffit did not receive the laboratory test results until May 19, 1969; these results indicated that plaintiffs’ hogs were not infected with hog cholera. Plaintiffs alleged additional delay before the correct test results were communicated to them.

Plaintiffs filed their complaint in the lower court on January 6, 1971. The complaint alleged that Dr. Moffit, as an employee of the government, ordered the herd of hogs quarantined at the time the initial testing was done, and that the fatal vaccinations were performed because of the quarantine. The complaint alleged, inter alia, negligence in failing to notify plaintiffs within a reasonable time that their hogs were not subject to quarantine, negligence in certifying that the hogs had cholera, and negligence in not notifying plaintiffs of the proper diagnosis. On March 12, 1971, the government answered, denying plaintiffs’ allegations of negligence.

On January 5, 1972, the government filed a motion to dismiss on the grounds that plaintiffs’ claim was barred by the statutory quarantine exception to the Federal Tor-t Claims Act, Title 28, U.S. C., Section 2680(f). On July 31, 1972, plaintiffs filed a motion and affidavit controverting the government’s motion to dismiss, asserting that their claim rested upon the “negligent operational activities of the defendant” and not upon “the imposition or establishment of a quarantine.”

On July 31, 1972, the matter came on for hearing in the court below. In response to the district court’s concern that plaintiffs’ complaint charged negligent imposition of a quarantine, barred by Section 2680(f), plaintiffs renewed their position that the complaint was based on Dr. Moffit’s negligence in stating that the hogs had cholera, not on damages arising from the effects of a quarantine. The district court thereupon ordered the parties to get together a stipulation of the facts by August 4, so that the court could speedily dispose of the case. No such stipulation was ever filed.

Instead, on August 3, 1972, in response to the trial court’s expressed concern that plaintiffs’ claim was barred by Section 2680(f), plaintiffs filed an amended complaint with leave of court. The amended complaint omitted any reference to the imposition of any quarantine, and proceeded on the theory that plaintiffs’ damages were proximately caused by the negligence of Dr. Moffit in his actions concerning the diagnosis and testing for hog cholera. The law suit lapsed into quiescence for several months. On December 14, 1972, without further hearing of any sort, and without government response by motion or otherwise to the amended complaint, the district court dismissed plaintiffs’ suit sua sponte stating that the claim was “a claim caused by the imposition or establishment of a quarantine by the United States,” and hence barred by Title 28, U.S.C., Section 2680(f).

We affirm but for a different reason than that stated by the trial court. We do so despite our disapproval of the district court’s rather cavalier dismissal without holding a further hearing on the issues raised by the amended complaint. This is the unusual case where dismissal on the barebone pleading — as augmented here by appellant Rey’s affidavit — is not fatal error.

Insofar as the original complaint alleged that plaintiffs-appellants suffered damage because Dr. Moffit incorrectly imposed a quarantine, we agree with the court below that such claims are barred by Title 28, U.S.C., Section 2680(f). Allegations of negligence in the procedures, either through diagnosis or testing, by which Dr. Moffit arrived at a decision to impose a quarantine would also be barred by Section 2680(f). Dalehite v. United States, 1953, 346 U.S. 15, 32, 73 S.Ct. 956, 966, 97 L.Ed. 1427, 1439 (dictum). But we construe the Section 2680(f) quarantine bar to apply only to damages proximately caused by the “imposition or establishment of a quarantine,” such as loss in value occasioned by physical restraint on stock for a period of time or losses caused by the forced exposure of healthy animals to diseased animals within the quarantine area. Damages incidental to the quarantine itself, for example, damage caused by the negligent operation of a motor vehicle during the quarantine inspection process, would not in our judgment be barred by Section 2680(f).

But plaintiffs-appellants’ amended complaint, filed with written permission of the trial court, alleged a cause of action not related to the “imposition or establishment of a quarantine by the United States,” and hence not barred on the face of the complaint by Title 28, U.S.C., Section 2680(f). Alleging as it did negligence in both the diagnosis and testing of appellants’ hogs, the amended complaint claimed damage proximately resulting from negligent actions by Dr. Moffit. Damage proximately resulting from quarantine status was not alleged. These allegations of negligence of the amended complaint were not alluded to and apparently not considered by the trial judge when he dismissed the plaintiffs’ complaint.

The government did not raise the point below, but now contends that appellants’ amended claim is barred by Title 28, U.S.C., Section 2680(h), the misrepresentation exception to the Tort Claims Act.

We think this exception bars appellants’ restated claim. Reading the amended complaint in the fashion most favorable to plaintiffs, John Walker & Sons v. Tampa Cigar Co., supra, it charges that Dr. Moffit negligently and erroneously notified plaintiffs that the hogs were infected with hog cholera, and that such negligent notification proximately caused Rey to have administered the serum which caused the death of the hogs. The amended complaint centered its allegations upon negligent transmission of erroneous misinformation to plaintiffs-appellants. Whatever the additional allegations of negligence in the defendant United States’ operations, the negligently erroneous transmission of misinformation is the crucial element in the chain of causation from defendant’s negligence to plaintiffs’ damages. It is the key fact to be established, the sine qua non, of the theory of the amended complaint. Barred by the quarantine exception, Section 2680(f), from proceeding with their original theory, appellants’ change of direction leaves them still statutorily barred. Misrepresentation, although asserted in terms of negligence, is the tortious act now relied on for recovery.

“The provisions of this chapter and section 1346(b) of this title shall not apply to—
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” (emphasis added)

But Section 2680(h) bars claims arising out of negligent misrepresentation as well as claims arising out of intentional misrepresentation. United States v. Neustadt, 1961, 366 U.S. 696, 701-702, 81 S.Ct. 1294, 1298, 6 L.Ed.2d 614, 619. In a case bearing striking resemblance to the case at bar, Hall v. United States, 10 Cir. 1959, 274 F.2d 69, plaintiff cattleman sued the United States under the Federal Tort Claims Act. The complaint alleged that employees of the Department of Agriculture tested plaintiff’s cattle for Brucel-losis and told plaintiff that one or more of his cattle were suffering from the disease. This diagnosis was alleged to have been incorrect due to negligence and to have proximately resulted in plaintiff’s having to sell his herd at less than the fair market price. The district court dismissed on the basis of the quarantine exception (Section 2680(f)) but the court of appeals affirmed on the basis of the misrepresentation exception (Section 2680(h)). Specifically the court said—

“We must then look beyond the literal meaning of the language to ascertain the real cause of complaint. Plaintiff’s real claim is that because of the negligent manner in which these tests were made, the result showed that plaintiff’s cattle were diseased; whereas, in fact, they were free from disease and that the Government misrepresented the true condition of these cattle. Plaintiff’s loss came about when the Government agents misrepresented the condition of the cattle, telling him they were diseased when, in fact, they were free from disease. The claim is that this misrepresentation caused plaintiff to sell his cattle at a loss. This stated a cause of action predicated on a misrepresentation. Misrepresentation as used in the exclusionary provision of the Statute was meant to include negligent misrepresentation.” 274 F.2d at 71.

Any doubt as to the precedential weight to be accorded to Hall disappears in the light of the Supreme Court’s holding in United States v. Neustadt, supra. The Court there held that the misrepresentation exception barred an action by a person who purchased a home in reliance upon an FHA appraisal which negligently overstated the fair market value. The Neustadt court specifically foreclosed any attempt, similar to that of plaintiffs-appellants here, to avoid the bar of Section 2680(h) by alleging negligence in the generation of information which formed the basis of a misrepresentation rather than the actual misrepresentation itself.

“Throughout this line of decisions, the argument has been made by plaintiffs, and consistently rejected by the courts, until this case [below], that the bar of § 2680(h) does not apply when the gist of the claim lies in negligence underlying the inaccurate representation, i. e., when the claim is phrased as one ‘arising out of’ negligence rather than ‘misrepresentation.’ But this argument, as was forcefully demonstrated by the Tenth Circuit in Hall v. United States, supra, is nothing more than an attempt to circumvent § 2680(h) by denying that it applies to negligent misrepresentation.” (emphasis original) 366 U.S. at 703, 81 S.Ct. at 1298, 6 L.Ed.2d at 619.

Following this statement the Supreme Court quoted the same language from Hall, that we quote, supra.

Inasmuch as the amended complaint charged no more than either negligent misrepresentation or the negligent preparation of information which was thereafter misrepresented to plaintiffs-appellants, the claim sought to be pleaded is barred by Title 28, U.S.C., Section 2680(h). Any claims based upon the plaintiffs’ remaining allegations (of the original complaint) dealing with the quarantine, are, as the district court held, barred by Title 28, U.S.C., Sec. 2680(f).

Assuming as true the facts as they emerge from the most favorable reading possible of either or both of appellants’ pleadings of them, and as supplemented by Rey’s affidavit, we think it is clear that no claim upon which relief may be granted has been stated or can conceivably be proved. In these unusual circumstances, the dismissal below on the pleadings passes muster. Hoshman v. Esso Standard Oil Co., 5 Cir. 1959, 263 F.2d 499, 502, cert, denied, 361 U.S. 818, 80 S.Ct. 60, 4 L.Ed. 64; Feinberg v. Leach, 5 Cir. 1957, 243 F.2d 64, 67; Hilliard v. Brown, 5 Cir. 1948, 170 F.2d 397, 398.

Affirmed.

      . Section 2680. Exceptions:
      “The provisions of this chapter and section 1346(b) of this title shall not apply to—
      * * # *
      (f) Any claim for damages caused by the imposition or establishment of a quarantine by the United States.”

      . The complete text of the district court’s dismissal order follows: (Caption Omitted)'
      “Came on to be beard the above cause, and the Court having considered the pleadings and the Motion of the Defendant to Dismiss, and the Plaintiffs’ controverting Motion and argument of counsel, does find that said Motion to Dismiss should be granted for the reason that said cause of action is barred by Title 28 U.S. C.A., Section 2680(f), in that the claim for damages as alleged and set out in the controverting motion is a claim caused by the imposition or establishment of a quarantine by the United States.
      ENTERED THIS 14th day of December, 1972.
      /s/ Ernest Guinn
      United States District Judge”

      . Of., for example, Cook & Nichol, Inc. v. Plimsoll Club, 5 Cir. 1971, 451 F.2d 505, 506, and eases cited; Barber v. M/V “Blue Cat”, 5 Cir. 1967, 372 F.2d 626, and especially eases cited, Note 1, page 627.

      . A fair reading of Section 2680(f) — “Any claim for damages caused 'by the imposition or establishment of a quarantine by the United States” (emphasis added) — renders that section a bar only to damages proximately resulting from quarantine status.

      . Note 2, supra.

      . Section 2680. Exceptions:

      . Plaintiffs-appellants’ contentions in this vein are best summarized by Paragraph VI of their amended complaint:
      VI.
      Plaintiffs would show the Court that their damages, as complained of herein, was proximately caused by the negligence of the Defendant United States of America acting by and through its agent, Dr. L. E. Moffit as aforesaid in the course and scope of his employment in the following particulars, to-wit:
      (a) Defendant was guilty of negligence in prematurely and falsely advising Plaintiff Joseph J. Hey that his premises were infected with hog cholera.
      (b) Defendant was guilty of negligence in notifying Plaintiffs of cholera diagnosis.
      (c) Defendant was negligent in not notifying Plaintiffs of correct diagnosis established by Iowa laboratories as soon as he received true diagnosis.
      (d) Defendant was guilty of negligence in notifying Plaintiffs of a firm diagnosis of “hog cholera” when the results of the laboratory tests were not completed.
      (e) Defendant was guilty of negligence in causing the Plaintiffs to treat their hogs for an erroneously diagnosed disease.
      That each and every, and all of said acts of negligence, were a proximate cause of the damages and loss sustained and suffered by Plaintiffs, as will be. more fully hereinafter set forth.

      . See Note 3, supra, and cases cited.


author: GIBSON, Circuit Judge. LAY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Ronald BLAKE, Appellant.
    No. 73-1153.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 13, 1973.
    Decided Sept. 12, 1973.
    Rehearing Denied Sept. 28, 1973.

      Gerald Cohen, St. Louis, Mo., for appellant.
    Jerome J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

The defendant was indicted for a violation of 21 U.S.C. § 841(a)(1) for knowingly and intentionally possessing a controlled substance (14.3 grams of 17.3 per cent pure heroin) with an intention to distribute it. The jury returned a verdict of guilty, and the defendant was sentenced to five years imprisonment and a three year special parole term under 21 U.S.C. § 841, to be served concurrently with a state sentence presently being served by defendant.

The defendant was arrested without a warrant in the course of the officers making an arrest with a warrant of another individual occupying the same premises. On November 30, 1972, Leon Phillips, Kenneth R. Bloemker, and Michael W. Hillebrand, Special Agents with the Bureau of Narcotics and Dangerous Drugs, together with Detectives Lester J. Anderson and Lawrence T. Brewer went to 4242A Clarence, St. Louis, Missouri, with an arrest warrant for Willie Vales for possession and sale of heroin. There is conflicting testimony on whether the agents and officers knew that Vales was living alone or with someone else.

All of the agents and officers, except Bloemker, went to the front door of 4242A Clarence, a four-unit dwelling with separate outside entrances for each unit, in order to serve the arrest warrant. Bloemker proceeded to the rear of the apartment building to cover against any possible escape. Phillips knocked on the front door, identified himself and the purpose for his presence after a voice answered that sounded like the defendant’s, and forced open the front door when no one allowed entry. In the meantime, Bloemker, standing 15 feet below the rear balcony of the apartment at 4242A Clarence, observed the defendant step out onto the balcony and begin to throw a white change purse over the side. Bloemker identified himself as an officer and ordered the defendant to stop. The defendant ducked and immediately reentered the apartment, still carrying the white purse. As Bloemker proceeded to the front of the apartment building, the other agents and officers had already gone upstairs to Apartment A. Agent Phillips saw Vales on a couch in the living room and the defendant in a hallway between the bedroom and kitchen and next to an open laundry chute. Vales was arrested. Bloemker, who had joined the others by this time, told of the incident at the rear of the apartment and asked the defendant where the purse was. The record does not indicate the defendant’s response. The agents and officers then searched the apartment and seized a bottle of quinine, a mirror, a vial of powder, and two playing cards — all used in the preparation of heroin for distribution — in plain view on the kitchen table.

Special Agent Hillebrand saw an unlocked door leading from the kitchen, opened it, and went down a flight of stairs into a dark basement. He saw a white change purse under the only open clothes chute of four in the area and seized it. That clothes chute led to Apartment A upstairs, the residence of Willie Vales. The white change purse was in plain view, and a plastic material was extending approximately 1y2 inches outside of the closed purse. After Hille-brand opened the purse and found a plastic bag containing a powdery substance that Hillebrand believed to be a narcotic, the defendant was arrested.

At trial, expert testimony established that the white purse contained 14.3 grams of 17.3 per cent pure heroin and that at this purity it would make 140 ten-dollar bags for “street sale.” Further trial testimony revealed that heroin on the street in St. Louis would be sold at about five per cent purity, and that 420 ten-dollar bags or “dime bags” of five per cent purity could be made and sold with the amount of heroin seized from the white purse. The “street” value of the seized heroin, therefore, was $4,200.

The defendant testified that he had never previously seen any of the items seized except the mirror and that he was spending the night in St. Louis with Vales, his first cousin, since he had no transportation to his home in East St. Louis.

The defendant raises two issues on appeal: (a) the purse with its contents was taken in an illegal search and seizure in violation of the Fourth Amendment and was therefore inadmissible, and (b) the evidence was insufficient to prove the defendant had an intention to distribute the seized heroin. We reject both arguments and affirm the conviction.

Search and Seizure Issue. Since the officers and agents did not have a search warrant for the apartment, the search of the basement and the seizure of the white purse must fall within one of “a few specifically established and well-delineated exceptions” to the general rule that searches must be judicially approved. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L. Ed.2d 576 (1967) (footnote omitted); accord, Root v. Gauper, 438 F.2d 361, 363 (8th Cir. 1971).

The facts in this case form one of those exceptions. One of the common sense reasons why Hillebrand proceeded downstairs to the basement was his belief that a white purse probably containing narcotics was underneath the clothes chute. The circumstances were suspicious. Bloemker had seen the defendant ready to toss the white purse from the balcony at the rear of the apartment. After the defendant refused to stop, Bloemker saw him reenter the apartment with the white purse. Phillips saw the defendant in the hallway next to the open clothes chute, and after Bloemker told of the incident on the balcony, the white purse could not be immediately seen. The arrest of Vales and the seizure of the heroin paraphernalia in plain view followed. At this point, one of the practical considerations was to find the white purse that probably contained nar-. cotíes. The officers could have obtained a search warrant, however the defendant was not under arrest and could have removed or destroyed the white purse. The delay in obtaining a search warrant could certainly have been fatal.

Therefore, the question is whether the facts in this case constitute an exceptional circumstance that allowed the warrantless search of the basement. Before the search of the basement and seizure of the white purse, the officers did not have probable cause to arrest the defendant. However, the failure to find and seize the white purse would have lead to a situation in which possible “evidence or contraband was threatened with removal or destruction. . . . ” Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948).

Gaines v. Craven, 448 F.2d 1236 (9th Cir. 1971), is factually similar to this case. In Gaines, the defendant was confronted in a hallway of an apartment by officers who had an unconfirmed tip that narcotics were being sold there. The officers had neither a search nor arrest warrant. The defendant tossed a package through the apartment’s open door and the police rushed into the open apartment and seized the package, which was later found to contain heroin. The Ninth Circuit upheld the warrantless entry of the apartment on the reasoning that “the package would be destroyed if he [the officer] did not take immediate action.” Gaines v. Craven, supra at 1237. Similarly, the officers in this case had to find the white purse or risk the probability that contraband would be removed or destroyed. Although the officers here did not see the white purse being tossed down the clothes chute, one officer did see the defendant with the white purse when the defendant reentered the apartment from the balcony porch and another officer observed the defendant in front of the open clothes chute. These facts gave rise to probable cause to believe that defendant might have possessed narcotics and constituted an exceptional circumstance or situation that allowed the warrantless search of the basement and seizure of the white purse.

The Supreme Court has not directly discussed the issue of whether the probability that narcotics will be destroyed' constitutes an exceptional circumstance allowing a warrantless search. However, in Johnson v. United States, supra, the Court in discussing exceptional circumstances did say in dicta that Johnson did not involve “evidence or contraband [that] was threatened with removal or destruction. . . .” Johnson v. United States, supra at 15, 68 S.Ct. at 369. Also, in United States v. Jeffers, 342 U.S. 48, 52, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951), the Court said in discussing exceptional circumstances that Jeffers did not involve “imminent destruction, removal, or concealment of the property intended to be seized.” The reasonable interpretations of these cases lead to the conclusion that narcotics that are threatened with imminent removal or destruction provide an exceptional circumstance justifying a war-rantless search.

Nor, do we think that Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), alters this rule. In Vale, the Court again in dicta, said that “[t]he goods ultimately seized were not in the process of destruction.” Vale v. Louisiana, supra at 35, 90 S.Ct. at 1972 (citations omitted). Vale may be factually distinguished from this case since it was practical there for the officers to secure a search warrant. Further, it would be imprudent to take the language “in the process of destruction” as a complete description of an exceptional circumstance for this type of narcotics ease. First, the quoted language is only a brief comment by the Court that did not apply directly to the facts of that case. Second, to wait until contraband is actually in the process of destruction could possibly forego the opportunity to seize the narcotic. The “imminent removal and destruction” rule satisfies both the need for the exceptional circumstance and the protection of the individual’s right to privacy against non-judicially approved searches. Johnson v. United States, supra, 333 U.S. at 14-15, 68 S.Ct. 367.

Therefore, not only do the facts of this case constitute an exceptional circumstance allowing the warrantless search, but they also provide a sufficient basis for concluding that the Government has carried its burden in establishing the exceptional circumstance. Vale v. Louisiana, supra at 34, 90 S.Ct. 1971.

Merely because it was impractical to obtain a search warrant does not dispense with the requirement that the officer must determine probable cause to search before proceeding with a warrantless search. Vale v. Louisiana, supra at 34, 90 S.Ct. 1971; Henry v. United States, 361 U.S. 98, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). The officer in making a warrantless search must have reasonable grounds to believe that the object sought and seized contained contraband. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In discussing probable cause, the Court in Brinegar said:

“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” Brinegar v. United States, supra at 175, 69 S.Ct. at 1310.

The grounds for probable cause here are generally the same that support the conclusion that an exceptional circumstance existed and need not be repeated. The above enumerated cumulative facts would lead a reasonable man to believe that the white purse probably contained contraband, and therefore the agents and officers properly determined that there was probable cause to search the basement and seize the white purse.

In addition to the circumstances supporting probable cause, the officers and agents had particular reason to believe that narcotics, which were probably contained in the purse, would be destroyed, if not found and seized. The defendant previous to the search of the basement had attempted to throw the white purse over the side of the rear balcony and did not have the white purse on his person when the police arrived inside the apartment. The purse eventually was thrown downstairs in an obvious attempt to conceal it. This is not a case in which “the scope of a search incident to arrest is temporarily expanded where there is a possibility that a third-party may destroy or conceal evidence.” United States v. Davis, 423 F.2d 974, 979 (5th Cir.), cert, denied, 400 U.S. 836, 91 S. Ct. 74, 27 L.Ed.2d 69 (1970) (emphasis added). In this case, the defendant had previously attempted to rid himself of the purse twice and was present in the apartment for a third attempt, if the officers had left without finding the white purse. Not only was a third-party not involved here as the family of the defendant in Davis, but the previous attempts to secrete the purse by the defendant, who was on the premises of the search, made the destruction of the white purse much more than a “possibility.” This case, therefore, is more like Gaines v. Craven, supra, than Davis. In Gaines, the defendant himself was involved, and he had tried to rid himself of the package by throwing it into an apartment.

We agree, as Davis stated, that “[t]here is almost always a partisan who might destroy or conceal evidence.” United States v. Davis, supra at 979. The family members in Davis could be considered the possible partisans, who might have destroyed the gun that was found by the officers within the yard of the Davis’ home. However, there was no indication prior to the search of the yard that any of the family members in Davis had attempted to destroy or conceal the gun. In this case, there was not a possible partisan who might conceal evidence, but a defendant who had attempted to conceal evidence. In short, this case presents the situation, viewed as an exceptional cireum- ' stance, in which imminent, not possible, removal or destruction of the white purse existed. Imminence should be determined from the totality of the factual circumstances. Time was an important factor in finding the purse, and in addition the officers and agents knew that a particular person, here the defendant, had attempted to conceal the purse that probably contained contraband. Further, the defendant was on the premises of the search and not under arrest.

The Government urges an alternative ground to justify the search and seizure of the white purse. The Government claims that the search was reasonable because the officers originally had a right to enter the apartment to arrest Vales, and once in the apartment and after the arrest of Vales, the search of the basement was also reasonable since the officers had a “right to conduct a quick and cursory viewing of the apartment area for the presence of other persons who might present a security risk.” United States v. Briddle, 436 F.2d 4, 7 (8th Cir. 1970), cert, denied, 401 U.S. 921, [91 S.Ct. 910, 27 L.Ed.2d 24] (1971). The seizure of the white purse was justified since it was in plain view. Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

After the defendant and Vales were confronted by officers upstairs and after seizure of the items in plain view on the kitchen table, Agents Bloemker and Hillebrand discussed the incident on the rear balcony and the location of the white purse. Hillebrand testified that he “looked around the kitchen for a white purse and for other people.” At this time and in the kitchen, the agents and officers were doubly concerned to find the white purse and to make a security check of the area for possible other persons. Hillebrand further testified during trial that he saw a door in the kitchen that went downstairs, apparently to a basement. Hillebrand said that he and Detective Anderson went downstairs to check for other persons. In the process of making this security check of the basement, they saw the white purse on the floor in “plain view” and under an open clothes chute. Hillebrand picked up the purse, noticed a plastic material protruding 1 y2 inches outside of the closed purse, opened the purse, and found a brown, powdery substance. Hil-lebrand took the purse upstairs and showed it to Bloemker, who said that the purse looked like the one that the defendant had on the rear balcony. The defendant was arrested.

The Government’s alternative justification for the search comports with the reasonableness requirement of the Fourth Amendment. The agents and officers, after announcing their presence and the reason for their presence and not receiving an answer, had a right to enter the apartment to arrest Vales. 18 U.S.C. § 3109; Sabbath v. United States, 391 U.S. 585, [88 S.Ct. 1755, 20 L.Ed.2d 828] (1968); Stamps v. United States, 436 F.2d 1059 (9th Cir. 1971). Once in the apartment, a quick and cursory viewing of the apartment is permissible to check for other persons who might present a security risk. United States v. Briddle, supra at 7.

In conducting this security check of the basement, the officer and agent saw the white purse in plain view on the basement floor. The seizure of the white purse is justified according to the “plain view” doctrine, for “[i]t has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968) (citations omitted). The agent and officer had a right to be in the basement to conduct a security check for other persons and also a right to seize the object, a purse, since it was apparent to them that they had evidence in plain view before them. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Although it was necessary for Hillebrand to open the purse to find the heroin, we have determined that probable cause existed to believe that the purse contained narcotics. Also, the white plastic bag, a common item in narcotics distribution, was protruding 1% inches outside of the closed purse. This was not a “general exploratory search from one object to another until something incriminating at last emerges.” Coolidge v. New Hampshire, supra at 466, 91 S.Ct. at 2038.

In addition, the “plain view” doctrine here is applicable, and the search did not violate the limitations on the plain view doctrine. First, the “plain view” doctrine alone did not justify the intrusion into the basement, for Hillebrand testified that they went downstairs to check for other persons. Second, the discovery of the purse under the clothes chute was inadvertent. Coolidge v. New Hampshire, supra at 469-470. Although the agents and officers did want to find the white purse, Hillebrand testified that he and Brewer went downstairs to check for other persons. Briddle established the right to make this quick and cursory check. No general, exploratory search followed, but the purse was seen in plain sight on the basement floor. The plain view doctrine applied to the search in this case.

Intention to Distribute Issue. The defendant’s second major argument is that there was insufficient evidence to prove that the defendant intended to distribute the 14.3 grams of 17.3 percent pure heroin. Instead, he claims that the heroin was for his personal use. Central to the defendant’s argument is his claim that the only evidence to prove intent was the quantity and street value of heroin seized, which in his view was too small in amount and value to raise an inference or constitute sufficient evidence to prove an intent to distribute.

The Government contends that there was sufficient circumstantial evidence, including the amount and street value of the heroin seized, for the jury to infer an intention to distribute the heroin. The Government mainly argues that there was sufficient evidence in addition to the amount and street value of the heroin to demonstrate that, the defendant was intending to distribute, instead of personally use or just possess, the heroin.

The Government’s view of the evidence supports the verdict. In addition to the amount and street value of the seized heroin; a bottle of quinine, a mirror, and two playing cards — all used in the preparation of heroin for sale, not personal use — were admitted into evidence. Also a chemist testified that, according to over 200 tests that he conducted on narcotics, the average purity of heroin on the street in St. Louis was five per cent. Hillebrand testified that 17.3 per cent pure heroin was not for personal consumption. In addition, the defendant, who testified at trial, did not say he personally used heroin. Even on appeal, the defendant does not expressly say that the heroin was for his personal use. He only argues that ducking into the apartment with the white purse shows that he was trying to conceal the heroin, which inferentially could be taken to mean that he was concealing the heroin for his own use. All of this above evidence provided other circumstantial evidence, in addition to the amount and street value of the heroin, for the jury to consider in arriving at its verdict.

It was also proper for the jury to consider the amount and street value of the heroin seized as leading to the conclusion that the defendant intended to distribute the heroin. In two recent cases this Court has approved the use of the amount and value of a controlled substance as proper circumstantial evidence to infer an intention to distribute. United States v. Wilkerson, 478 F.2d 813 (8th Cir., 1973); United States v. Echols, 477 F.2d 37 (8th Cir., 1973), cert, denied, — U.S. -, 94 S.Ct. 128, 38 L.Ed.2d 58 (U.S., Oct. 9, 1973). The validity of such an inference depends on whether the amount and value of the controlled substance “will support an inference of intent to distribute as distinguished from mere possession for personal use.” United States v. Mather, 465 F.2d 1035, 1037 (5th Cir.), cert, denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972), quoted in United States v. Wilkerson, supra at 815. In Mather, the defendant possessed 197.75 grams of cocaine worth approximately $2,500. In this case, Blake possessed the equivalent of 420 “dime bags” of heroin with a “street” value of $4,200. Such an amount and value was sufficient to support an inference by the jury that the defendant possessed the heroin with an intention to distribute it.

In addition to the above explained reasons why the evidence was sufficient to support the jury’s verdict, the District Court properly instructed the jury on the lesser included offense of simple possession of a controlled substance, in this case heroin. The jury chose to find that the defendant was guilty of possession with an intention of distribution. Taking the view of the evidence that is most favorable to supporting the jury verdict, we find that the evidence was sufficient to sustain the verdict. United States v. Valez, supra at 627.

Judgment of conviction affirmed.

LAY, Circuit Judge

(concurring).

I concur solely on the alternative ground that the seizure of the white purse was justified under the “plain view” doctrine. The police went to the basement solely to see whether other persons presenting a security risk might be present. The officers, thus, had a right to be there. The purse with plastic material protruding from it, which Blake had attempted to conceal, was in plain sight. Their discovery of the same was inadvertent. I cannot justify the seizure on the ground that the police had probable cause to search the basement for contraband because Blake had secreted the purse in the clothes chute. First, neither of the officers who went to the basement saw or even knew that Blake had placed the purse in the clothes chute. Second, the officers went to the basement, not to search for the purse, but to see if any other persons might be there. Simply because the white purse was missing should not give police officers carte blanche to make a general search of the apartment. I dislike relying on a new and questionable doctrine to expand a search beyond the limitations of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), without proper foundation and, more importantly, when not necessary.

      . Section 841(a) (1) reads:
      “(a) Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally—
      “(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

      . Detective Brewer of the East St. Louis Police Department was a lifelong East St. Louis resident and knew both Vales and the defendant.

      . Davis focuses on tlie temporal expansion of the search, while this case concerns a spatial expansion. The reasoning in Davis, however, could he applied to a spatial expansion as well.

      . In Briddle, the officers did have a warrant to search the apartment, however, this court held that, for the purposes of the opinion, the warrant was invalid since the affidavit • was legally insufficient. United States v. Briddle, supra, at 7, n. 10.

      . During a hearing on the Motion to Suppress, Hillebrand said that the door was in the hallway next to the kitchen.

      . Although 18 U.S.C. § 3109 expressly only deals ■with the entry of federal officials pursuant to a search warrant, Sabbath said “that the validity of such an entry of a federal officer to effect an arrest without a warrant ‘must be tested by criteria identical with those embodied in’ that statute. Miller v. United States, 357 U.S. 301, 306 [78 S.Ct. 1190, 2 L.Ed.2d 1332] (1958) ; Wong Sun v. United States, 371 U.S. 471, 482-484, [83 S.Ct. 407, 9 L.Ed.2d 441] (1963).” Sabbath v. United States, supra, at 588, 88 S.Ct. at 1757 (footnote omitted). Similarly, a federal officer’s entry into a dwelling to effect an arrest with a warrant should be tested by the same criteria in § 3109.

      . The defendant argues that Chimel v. California, 395 U.S. 752, [89 S.Ct. 2034, 23 L.Ed. 2d 685] (1969), invalidates the search in this case. Briddle, however, disposes of this contention. United States v. Briddle, supra at 8.

      . The traditional rule on reviewing jury verdicts and the sufficiency of evidence applies to this case. Since there has been a verdict of guilty by the jury, we resolve all conflicts of evidence in favor of .the jury verdict, take the view of the evidence that is most favorable to supporting the jury verdict, and accept as established all reasonable inferences that tend to support the jury’s verdict. United States v. Valez, 431 F.2d 622, 627 (8th Cir. 1970).


author: PER CURIAM:

text:
    Clara A. TORSKE, Plaintiff-Appellee, v. Elliot L. RICHARDSON, Secretary of Health, Education, and Welfare, Defendant-Appellant.
    No. 71-2056.
    United States Court of Appeals, Ninth Circuit.
    Aug. 31, 1973.
    Robert M. Feinson (argued), L. Patrick Gray, III, Asst. Atty. Gen., Har-lington Wood,' Jr., Acting Asst. Atty. Gen., Dept, of Justice, Washington, D.

      C., Sidney I. Lezak, U. S. Atty., Vinita Jo Neal, Asst. U. S. Atty., Portland, Ore., Kathryn H. Baldwin, Atty. Michael H. Stein, Dept, of Justice, Washington, D. C., for defendant-appellant.
    John S. Marandas (no appearance), Lee M. Zittenfield, Lekas, Dicey & Mar-andas, Portland, Ore., for plaintiff-appel-lee.
    Before BROWNING and CHOY, Circuit Judges, and KING, District Judge.

       The Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   PER CURIAM:

The Secretary appeals from an order of the district court granting Mrs. Torske disability benefits under the Social Security Act. We reverse.

There is substantial evidence in the record to support the hearing examiner’s conclusion that Mrs. Torske could do light work notwithstanding the limitations on the use of her right arm, and that such work existed in the region in which Mrs. Torske lived. In such circumstances, or even if the evidence on these points is in conflict, the Secretary’s finding is conclusive. Harvey v. Richardson, 451 F.2d 589 (9th Cir. 1971); Tatum v. Weinberger, No. 71-1953, 9th Cir. Memorandum April 12, 1973.

Mrs. Torske filed an application for disability benefits on October 11, 1968. Her application was denied. At her request a hearing was held on May 7, 1969. On May 13, 1969, the hearing examiner found that she was not “disabled”. This decision was appealed. On December 23, 1969, the appeals council remanded the case to the hearing examiner with instructions to hold a supplemental hearing to receive additional evidence. This was done on February 10, 1970. The hearing examiner again found against Mrs. Torske. This decision was affirmed by the appeals council on March 6, 1970.

The district court was of the opinion that the inclusion of the Portland area (70 miles away from Mrs. Torske’s home in Albany) as a labor market available to Mrs. Torske was unreasonable, that employment as a night clerk or cashier was improbable because Mrs. Torske could neither write nor lift, and that employment as a telephone solicitor was improper.

However humane and rational these observations may be, the statutory definition of “disability” was specifically narrowed to correct court decisions that the Congress considered to be too liberal. Harmon v. Finch, 460 F.2d 1229 (9th Cir. 1972). Work of a reasonable character is not the proper criterion to the determination whether a claimant is disabled, the job area is not confined to the claimant’s locality, and the relevant inquiry is not whether the claimant is able to obtain employment at some substantial activity that exists in the national economy but whether the claimant is able to engage in such activity. Brown v. Finch, 429 F.2d 80 (5th Cir. 1970). See King v. Finch, 428 F.2d 709 (5th Cir. 1970); Chavies v. Finch, 443 F.2d 356 (9th Cir. 1971); Waters v. Gardner, 452 F.2d 855 (9th Cir. 1971).

The Congressional intent is clear. See S.Rep. No. 744, 90th Cong., 1st Sess. quoted in 1967 U.S.Code Cong. & Admin. News pp. 2834, 2880-2883.

Mrs. Torske’s situation is not unique. See Moon v. Richardson, 345 F.Supp. 1182 (W.D.Va.1972) (Useless left arm which had atrophied as a result of a childhood accident); Harvey v. Finch, 313 F.Supp. 323 (N.D.Cal.1970), aff’d sub nom, Harvey v. Richardson, supra (Back and shoulder condition which inhibited tasks that could be performed with right arm and epicondylitis in left arm); Wright v. Gardner, 403 F.2d 646 (7th Cir. 1968) (Left arm and hand almost useless); May v. Gardner, 362 F. 2d 616 (6th Cir. 1966) (Left arm severed below elbow); Robinson v. Cele-brezze, 326 F.2d 840 (5th Cir. 1964) (Right arm amputated at the shoulder).

Reversed.


text:
    M. F. BROWN, Plaintiff-Appellee, v. LYKES BROTHERS STEAMSHIP COMPANY, INC., in personam, and SS LIPSCOMB LYKES, in rem, Defendants-Appellants.
    No. 73-1572
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 31, 1973.
    Kenneth D. Kuykendall, Houston, Tex., for defendants-appellants.
    Atreus Clay, Houston, Tex., 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:

This is an admiralty case brought by appellee Brown against appellant Lykes Brothers Steamship Company, Inc. (Lykes) under the Longshoremen’s & Harbor Workers’ Compensation Act. Brown, a longshore-employee, sought damages for an injury incurred while working in the hull of Lykes’ ship, maintaining that his injury was occasioned by a breach of the vessel’s warranty of seaworthiness.

The district court found that at the time of the injury, Brown and other longshoremen were unloading a sling load of bales of cotton which would nearly complete the fifth layer of bales. As they were lifting the ends of the bales the winch began to pull the sling from under the bales, and the sling caught on an obstruction and became taut, thereby causing the bales to shift and knock Brown off of the stow into the hold of the vessel. Since each layer of cotton was two feet thick and Lykes was concededly remiss in failing to comply with a federal regulation which requires a shipowner to guard the edge of stowed cargo with a safety net when such cargo is 8 feet high, 3 the district court found that the warranty of seaworthiness had been breached. It also concluded that the unseaworthy condition of the vessel was the sole proximate cause of the injury and that Brown was free from contributory negligence. We affirm.

Lykes’ first contention is that the finding of the district court that the stow upon which Brown worked was of such height and location as to require the net was clearly erroneous. The record is replete with discrepancies in the testimony on this matter. Consequently, this is not an appropriate cause for reversal under the clearly erroneous standard.

Lykes’ second contention is that the district court’s finding of no contributory negligence is incorrect as a matter of law. We also find that contention to be without merit.

For the reasons set forth above, we affirm the judgment of the district court.

Affirmed.

      . 33 U.S.C. § 904 (1970). Although the Longshoremen’s & Harbor Workers’ Compensation Act unequivocally states that ‘‘liability of an employer prescribed in Section 904 of this title shall be exclusive,” 33 U.S.C. § 905 (1970); Reed v. S.S. YAKA, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963) announced the rule that a longshoreemployee may institute an action against his shipowner-employer based upon the vessel’s warranty of seaworthiness.

      . Stowed cargo and temporary landing platforms, 29 C.F.R. § 1918.32(b) (1972) :
      When an edge of a hatch section or of stowed cargo more than 8 feet high is so exposed that it presents a danger of an employee falling, the edge shall be guarded by a safety net of adequate strength to prevent injury to a falling employee, or by other means providing equal protection under the circumstances.

      . See McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954) ; United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746 (1948) ; Ward v. Hobart Manufacturing Co., 450 F.2d 1176, 1182-1183 (5th Cir. 1971).

      . On occasion, this court has deemed a remand necessary to insure compliance with F.R.Civ.P. 52(a). See Lettsome v. United States, 434 F.2d 907, 909 (5th Cir. 1970). However, where a finding of a subsidiary fact inheres in the finding of an ultimate fact, a remand is not required. Cf. e. g., United States v. Jacobs, 308 F.2d 906 (5th Cir. 1962). Findings similar to those made herein have frequently been sustained against challenges of insufficient precision. See, e. g., Gulf King Shrimp Company v. Wirtz, 407 F.2d 508, 515 (5th Cir. 1969) ; Compania Anonima Venezolano De Navegacion v. Matthews, 371 F.2d 971, 973 (5th Cir.), cert. denied, 389 U.S. 820, 88 S.Ct. 37, 19 L.Ed. 2d 71 (1967).


text:
    Raymond LOCKETT, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 73-3190
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 31, 1973.

      Carl J. Barbier, New Orleans, La. (Court appointed), for petitioner-appellant.
    Shirley G. Wimberly, Jr., Asst. Dist. Atty., Orleans Parish, Russell J. Scho-nekas, G. Thomas Porteous, Jr., Leroy A. Hartley, New Orleans, La., Wiliam J. Guste, Jr., Atty. Gen. of La., Baton Rouge, La., 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 Raymond Lockett appeals from the denial of his application for a writ of habeas corpus, alleging the following : first, that the district court erred in holding that as a matter of law a guilty plea can be voluntary despite the fact that an accused is not specifically apprised of his right to trial by jury, his privilege against self-incrimination and his right to confront his accusers ; and second, that the district court erred in failing to enter findings of fact and conclusions of law in accordance with Rule 52(a), F.R.Civ.Pro. Finding these contentions to be without merit, we affirm the judgment of the district court.

Lockett was arrested on December 19, 1969, on a charge of burglary. At his arraignment, he tendered a plea of not guilty. On the date scheduled for trial he withdrew his plea through his court-appointed counsel and entered a plea of guilty. He personally assured the court of his understanding of the guilty plea during a series of questions directed to him personally. Subsequently he was sentenced to serve eight years at hard labor.

After exhausting his state remedies, he filed his petition for a writ of habeas corpus in the district court. An eviden-tiary hearing was conducted on December 21, 1972 before the United States Magistrate who recommended to the district court that the petition be granted on the ground that the state court record failed to comply with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). On March 28, 1973, the district court rendered its memorandum of reasons, in which it adopted the findings of fact made by the Magistrate, but ordered that the petition for habeas corpus be denied because “the Court does not concur with the Magistrate that the plea of guilty was received ... in violation of Boykin.” A final judgment was entered by the district court on March-29, 1973 dismissing Lockett’s petition.

Lockett’s first contention that since the state record fails to specifically show that he waived his right to trial by jury, his privilege against self-incrimination and his right to confront his accusers-, his guilty plea is infirm under Boykin v. Alabama, swpra is without merit. A similar contention was made and unequivocally rejected in United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971). We do not understand any language in United States v. Escandar, 465 F.2d 438, 441 (5th Cir. 1971) to be inconsistent with the view enunciated in Frontero.

His second contention, that the memorandum of reasons issued by the district court falls short of the requirements of Rule 52, F.R.Civ.Pro., is equally unavailing. We feel that it was sufficient for the district court, after adopting the Magistrate’s findings of fact, to merely announce that it disagreed with the expansive reading the Magistrate gave to Boykin v. Alabama, supra.

We affirm the judgment of the district court.

Affirmed.

      . The Fifth Circuit’s position is in accord with that of several other circuits. See, e. g., Stinson v. Turner, 473 F.2d 913, 916 (10th Cir. 1973) ; Wade v. Coiner, 468 F.2d 1059, 1061 (4th Cir. 1972).


author: THORNBERRY, Circuit Judge:

text:
    Fate BRYANT, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Respondent-Appellee.
    No. 73-2149
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 17, 1973.
    Rehearing and Rehearing En Banc Denied Oct. 25. 1973.
    James C. Bonndr, Jr., Decatur, Ga. (Court-Apptd.), for petitioner-appellant.
    Daniel MacIntyre, Deputy Asst. Atty. Gen., Courtney W. Stanton, Atlanta, Ga., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

In May, 1971, appellant Fate Bryant was convicted of kidnapping and rape in the Superior Court of Fulton County, Georgia. His conviction was upheld on appeal by the Supreme Court of Georgia. Bryant v. State, 229 Ga. 60, 189 S.E.2d 435 (1972). He then brought this ha-beas corpus proceeding in the United States District Court for the Northern District of Georgia. That court entered an order dismissing the petition on March 13, 1973, and Bryant appealed. We affirm.

The essence of appellant’s argument is that he was denied effective assistance of counsel in violation of his sixth and fourteenth amendment rights when his appointed counsel absented himself from the courtroom during the prosecution’s closing argument to the jury. The threshold question in this habeas corpus case is whether appellant has exhausted available state remedies by presenting this argument to the courts of the state. If not, a federal court may not grant habeas relief. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); 28 U.S.C. § 2254(b).

Although appellee argues that this question has not been properly presented to the state courts, appellant did assign as error before the Supreme Court of Georgia that

[t]he Court erred in permitting appointed counsel for Appellant to leave the courtroom during the State’s argument as it deprived the Appellant of the right to counsel all in violation of the Sixth and Fourteenth Amendments of the U. S. Constitution.

Appellant’s Enumeration of Errors at 2, Bryant v. State, 229 Ga. 60, 189 S.E.2d 435 (1972). While it is true that this objection is framed as an error of the court in allowing counsel to depart rather than a specific claim of ineffectiveness of counsel, we think it sufficiently raised the issue. In passing on it, the Supreme Court of Georgia specifically ruled that “[ujnder no theory can it be maintained that the trial court committed any error. . . .” Bryant v. State, 229 Ga. 60, 189 S.E.2d 435, 439 (1972) (emphasis ours). We agree with the district court that no further state review of this point is required.

Appellant’s substantive argument is that he was denied effective assistance of counsel when his court-appointed attorney left the room during the prosecutor’s closing argument to the jury. He asserts that this deprivation of effective counsel prejudiced him because the prosecutor made improper and inflammatory statements during that argument which went unchallenged due to the absence of his attorney. In support of his contention that the prosecutor’s remarks here went too far he cites numerous cases narrowly confining the scope of permissible appeals by the prosecutor to the passion or prejudice of the jury. E. g., Viereck v. United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Fullmer, 7th Cir. 1972, 457 F.2d 447; United States v. Bugros, 2d Cir. 1962, 304 F.2d 177; Traxler v. United States, 5th Cir. 1961, 293 F.2d 327; Benham v. United States, 5th Cir. 19.54, 215 F.2d 472.

While the cases cited do set more restrictive standards on permissible jury argument than were observed in this case, they are inapplicable here. They all deal with the conduct of United States attorneys in their conduct of federal criminal prosecutions in federal courts, but appellant was convicted in a state proceeding. The permissible scope of jury argument for Georgia district attorneys is very broad — much more so than that for United States attorneys. See e. g., Hart v. State, 227 Ga. 171, 179 S.E.2d 346 (1971) (“forceful and possibly extravagant” appeal by assistant district attorney to convict defendant for the safety of the whole community found acceptable); Miller v. State, 226 Ga. 730, 177 S.E.2d 253 (1970) (permissible for district attorney to characterize defendant as “a brute, a beast, an animal, and a mad dog who did not deserve to live”); Holley v. State, 225 Ga. 768, 171 S.E.2d 528 (1969) ; Wheeler v. State, 220 Ga. 535, 140 S.E.2d 258 (1965).

The district court correctly found that the prosecutor’s references to appellant’s character and his appeal to the jury to convict for the sake of the safety of the community were well within the permissible scope of jury argument for a Georgia prosecutor. While the argument may have been somewhat extravagant, it was not so inflammatory or prejudicial that it vitiated the basic fairness of the trial. The Supreme Court, commenting on a prosecutor’s remarks which it had already characterized as “undignified and intemperate,” laid down the rule which governs this case.

They do not comport with the standards of propriety to be expected of the prosecutor. But it is quite another thing to say that these statements constituted prejudicial error. In the first place, it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately. In the second place, this was not a weak case as was Berger v. United States, 295 U.S. 78, 55 S.Ct. 629 [79 L.Ed. 1314] . . . where this Court held that prejudice to the accused was so highly probable as a result of the prosecutor’s improper conduct “that we are not justified in assuming its nonexistence.” . . . [Wjhere, as here, the record convinces us that these statements were . . . not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice.

United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239-240, 60 S.Ct. 811, 852, 84 L.Ed. 1129 (1940).

While that case dealt with a federal rather than a state prosecution, it did establish that reversal due to extravagant jury argument by the prosecutor is proper only if there was prejudice or if the case was otherwise so weak that an assumption of no prejudice is unwarranted. In this case the evidence against appellant was substantial, and the prosecutor’s remarks were well within permissible limits. Consequently, the probability that appellant was prejudiced is slight, and the ends of justice would not be served by a reversal.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America v. Steve Louis KANDIS, et al., Appellants.
    No. 73-1157.
    United States Court of Appeals, Third Circuit.
    Submitted Sept. 10, 1973.
    Decided Sept. 13, 1973.

      Paul Alongi, Alongi, Bregg & Devito, Bloomfield, N. J., for appellants.
    Herbert J. Stern, U. S. Atty., Richard S. Zackin, Asst. U. S. Atty., James D. Fornari, Newark, N. J., for appellee.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION FOR THE COURT

PER CURIAM.

Kandis was indicted, tried and convicted of conspiracy, in violation of Title 18, U.S.Code, Section 2315, "transporting a Stolen Security in violation of Title 18, Sections 2314 and 2 and Receiving a Stolen Treasury bill in violation of Title 18, U.S.Code, Sections 2315 and 2.

Around December 3, 1971, the Federal Bureau of Investigation was endeavoring to ascertain who had been responsible for the stealing of almost a million dollars in United States Treasury bills from the Chemical Bank of New York.

Agent Specht, under another name, evinced interest in buying the mentioned bills. Appellant showed Agent Specht one of the bills and said that four more of them would be available for his inspection. Agent Specht promptly arrested appellant.

There is no pretension here that appellant was not guilty as charged in transporting the particular Treasury bill illegally, etc. The trial court ruled soundly that a brief reference by a prosecution witness to appellant’s undeniable criminal record was no acceptable reason for a mistrial. Actually defendant himself testified to his own criminal background.

Appellant through his attorney argues that the testimony of the witnesses who testified in the Government’s case was “excessively vague and misleading”. In fact, the testimony of said witnesses clearly substantiated the Government proofs of the rightness of the charges against appellant.

Finally, the theory of alleged entrapment of appellant is made out of whole cloth. The prosecution in this matter was not dealing in the entrapment of appellant but with a seasoned criminal who was cold bloodedly endeavoring to dispose of the particular stolen Treasury bill and the other bills that were stated by appellant to also be available for sale.

The judgment of the district court will be affirmed.


text:
    Dennis D. SALESKY, Petitioner-Appellant, v. STATE OF FLORIDA, Respondent-Appellee.
    No. 73-1277
    Summary Calendar.

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

      William T. Lassiter, Jr., Jacksonville, Fla. (Court-appointed), for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., H. Tucker Cotten, Raymond L. Markey, Asst. Attys. Gen., Tallahassee, Fla., 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., 431 F.2d 409, Part I (5tlr Cir. 1970).

   PER CURIAM:

In this 28 U.S.C.A. § 2254 action, petitioner alleges that he did not “knowingly and intelligently” waive counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The District Court, relying on the record before it, held that the waiver was effective. Finding an unresolved conflict regarding petitioner’s pre-trial hearing remarks, we vacate and remand for an evi-dentiary hearing.

Petitioner was convicted upon his trial by jury in a Florida court of two counts of breaking and entering. Aff’d Salesky v. State, 256 So.2d 250 (Fla.App.1972). At trial, petitioner alleged that he could not be adequately represented by the public defender. He claims that he was misled by said attorney into believing that he had an absolute right to appointment of separate counsel even after severance of his co-defendant.

Petitioner was informed by the trial court that, if he would not accept court-appointed counsel, he must defend himself, a proposition which he did not favor. His response, when asked at trial if he was prepared to defend himself, was recorded as “I am ready,” but he alleges in his habeas petition that he said, “I am not ready.”

In its response to a show cause order, the Government relied primarily on this contested statement, which petitioner says was inaccurately recorded. The District Court indicates that it relied on the statement as it appeared in the record. But a review of the record indicates that the recorded response as to his readiness for trial appears inconsistent with the position defendant maintained throughout the hearing and trial.

Since the transcript in question has seemingly been relied upon by both the Government and the District Court and has been reasonably challenged by petitioner, we conclude that a hearing to determine its accuracy is necessary. Petitioner’s argument can then be reconsidered by the District Court after the accurate facts have been determined.

Vacated and remanded.