source: Caselaw Access Project

author: GEWIN, Circuit Judge: GOLDBERG, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony LEGATO and Abraham Migdall, Defendants-Appellants.
    No. 71-3336.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.
    Goldberg, Circuit Judge, concurred specially and filed opinion.

      Melvyn Kessler, Miami, Fla., Robert Bailey, Chicago, Ill., for defendants-appellants.
    Robert W. Rust, U. S. Atty., William P. Cagney, U. S. Dept of Justice, Miami, Fla., Frederick W. Read, III, Atty., Dept. of Justice, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   GEWIN, Circuit Judge:

The appellants, Anthony Legato and Abraham Migdall, were charged in a three-count indictment on September 30, 1971 with the following criminal offenses: (1) conspiracy to knowingly and intentionally distribute heroin, a Schedule I controlled substance, 21 U.S.C. § 841(a)(1); (2) knowingly and intentionally possessing heroin with an intent to distribute, 21 U.S.C. § 841(a)(1); and (3) knowingly and intentionally attempting to distribute heroin, 21 U.S.C. §§ 841(a)(1), 846. After entering not guilty pleas, the appellants were tried by a jury and found guilty as charged. Both received concurrent 10 year sentences under each count and, in addition, were fined $10,000. We affirm.

I

On August 11, 1971 the FBI in Miami, Florida received an anonymous tip over the telephone that someone carrying a bomb in an orange shopping bag would attempt to board an airplane leaving for Chicago that afternoon at 4:00 p. m. from either the Miami or Fort Lauderdale airport. This information was relayed to officials of Delta Airlines who in turn alerted all ticket agents and other personnel. Specific reference was made to a 4:10 p. m. Delta flight from Fort Lauderdale to Chicago.

At approximately 3:30 p. m., Legato and Migdall appeared at the Delta Airlines ticket counter in the Fort Lauder-dale airport where Legato validated a return ticket to Chicago under the name of “A. Martino.” Neither man had an orange shopping bag. A few minutes later, however, they were seen by a Delta ticket agent walking past the counter toward the gate where the 4:10 p. m. Delta flight was scheduled to depart. This time the agent noticed that Legato was carrying a bright orange shopping bag in which a gift wrapped package was visible.

At Gate 12, the station agent, who had been forewarned of the appellants’ arrival, removed the flight coupon from Legato’s ticket and assigned him a seat on the airplane. Meanwhile, two Delta Airlines security agents, William Bratton and Barry Brender, and FBI Agent Patrick Murray, proceeded to the boarding area. There they observed Legato and Migdall sitting down in the waiting room of the boarding area engaged in conversation with the orange shopping bag on the floor between them. In response to these developments, FBI Agent Murray went to the airline office to call for the assistance of a Navy bomb squad while Bratton announced over the public address system that a bomb threat had been received and that all passengers were to return to the ticket area to reclaim their baggage and submit to a security search.

Along with the other passengers, the appellants began walking toward the ticketing area. Legato stopped when he reached the ticket counter, but Migdall, who was then carrying the orange shopping bag, continued out of the door of the terminal and across the street into the parking lot. He was followed all of the way from Gate 12 by Delta security agent Brender who stopped him and took possession of the shopping bag. At about the same time this was taking place, Legato was likewise taken into police custody. Both men were escorted to an office in the Delta operations area and the orange shopping bag was turned over to FBI agent Murray.

Prior to conducting an interrogation, Murray apprised the appellants of their constitutional rights and explained that an anonymous phone call had been made to FBI officials advising them that a man flying to Chicago at 4:00 p. m. would be carrying a bomb on board in an orange shopping bag. Migdall said that the package in the shopping bag did not contain a bomb, but rather a coffee percolator which was a gift for a friend he was supposed to meet at the airport. He denied that Legato was the friend, however, saying, “I’ve never seen that man before in my life.” Legato concurred in that statement and also declared that he and Migdall had not been sitting together in the Gate 12 boarding area. At that point, a Delta employee informed Murray that Legato was flying under the name of “A. Martino.”

Although Migdall refused to open the gift wrapped package himself, he readily agreed to allow Murray to do so. Murray took the package to a scheduled area of the airport and cautiously examined the contents. He found that it contained a white powdery substance in a plastic container which on the basis of a field test was determined to be heroin and not explosives as was originally feared. The actions of the officers in handling and opening the package clearly demonstrate that they were fearful that an explosive substance was contained therein.

II

The appellants first contend that the trial court erred in denying their motion to suppress for use as evidence the heroin involved. They complain that the search of the package by the investigating officers violated the fourth amendment since it was incident to an arrest which was made without probable cause. They further contend that the search cannot be sustained as an investigative stop and protective frisk under principles recognized in Terry v. Ohio, 392 U. S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We reject the appellant’s argument on both scores, believing that there are at least two legal concepts upon which the search can be upheld.

AIRPORT SEARCH

In United States v. Moreno, 475-F.2d 44 (5th Cir. 1973) [1973], this court recognized that the public danger posed by air piracy has transformed the airport into a “critical zone where special fourth amendment considerations apply.” 475 F.2d at 51. Though the Terry and Adams decisions were followed in that case, the court rejected the view that “airport security officials must always confine themselves to a ‘pat down’ search where there is a proper basis for an air piracy investigation.” 475 F.2d at 51. It indicated that while such a per se restriction on the authority to search might be sufficient to protect a police officer from harm in a street encounter, it would not necessarily be adequate to ensure the safety of those in need of protection from air piracy. In other words, though it was realized that the fourth amendment intrusion incident to an airport search might be greater in degree than that resulting from the ordinary stop and frisk, the Moreno court made it clear that such an intrusion is not unconstitutional if it is based upon a particularized set of facts which reasonably substantiates the investigating officer’s belief that the individual searched was armed in some fashion and hence a threat to air security. 475 F.2d at 50.

Relating the principles announced in Moreno to the case at hand, the question before this court is whether in the airport context the apprehension of Legato and Migdall and the search of the package for explosives violated their fourth amendment rights. We are compelled to answer this question in the negative, finding as we do, that the investigating officers had reasonable grounds to believe that the action taken was appropriate.

After the announcement of the bomb search Migdall appeared to be leaving the terminal with the orange shopping bag which until that point had been in ticket holder Legato’s possession. The significance of this turn of events considered in light of Legato’s and Migdall’s reaction, was that an element of corroboration was supplied which tended to support the details of the informant’s report of criminal conduct which had theretofore been less certain. The circumstances then facing the investigating officers left only two available courses of action. One was to make an investigative stop long enough in duration to allow an inquiry into the possibility of criminal behavior. The other was to do nothing, thus letting Migdall escape with the possible consequence that he and Legato would only be thwarted temporarily in their plans. Given the current threat to public safety posed by air piracy as well as the inherent destructive potential of a bomb, it is inconceivable to us that the officers would choose the latter alternative. Under the circumstances, it was clear that with only minimal inconvenience to all concerned, a brief stop and inquiry into the contents of the shopping bag could quickly and conclusively resolve what appeared to be an extraordinarily dangerous situation. In our opinion, the stopping of Legato and Midgall is clearly sanctioned by Moreno. Moreover the officers’ conduct was precisely the kind of intermediate police response found to be appropriate in Terry v. Ohio, supra, and Adams v. Williams, supra, where the requisite level of information necessary for probable cause to arrest is lacking. Adherence to the commands of the fourth amendment, as the Supreme Court has said, does not mean that a law enforcement official must “simply shrug his shoulders and allow a crime to occur or a criminal to escape.” Adams v. Williams, supra, 407 U.S. at 145-146, 92 S. Ct. at 1923, 32 L.Ed.2d at 616, 617.

We next must determine whether the fourth amendment intrusion involved in the search of the package for explosives was likewise consistent with the principles recognized in Moreno. Once FBI Agent Murray began questioning Legato and Migdall, two additional facts came to light which tended to reinforce his already substantial suspicion that the package in the orange shopping bag contained a bomb. First, both men denied knowing each other despite being told that they were seen sitting together in the boarding area only minutes earlier. Second, it was brought to Murray's attention that Legato was flying under the name of “A. Martino.” Thus, even though Migdall attempted to explain that the package contained a coffee percolator and not a bomb, we believe that Murray was justified in refusing to accept this story. Moreover, we think that his decision to search the package at that point was demanded by the sheer urgency of the situation. Not only did Murray have his own safety to consider but the safety of many others in the vicinity who might be killed or injured if a bomb was detonated was involved as well. On the facts of this case society’s interests in self-protection were, if anything, greater than they were shown to be in Moreno. Accordingly, we hold that this search did not violate the appellants’ fourth amendment rights.

Throughout the preceding discussion, we have implied that it is of no consequence to the result reached in this decision that an anonymous tip triggered the chain of events leading up to the stopping of Legato and Migdall and the protective search of the package for explosives. The appellants argue, however, that the action taken by the officers should not be upheld because the tip failed to meet the standards of informer reliability set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1968). Even assuming that the tip was insufficient under Aguilar and Spinelli, we cannot agree with this argument. The criteria established to determine the reliability of an informer in those two cases applies only when the question is whether there was probable cause to arrest or probable cause for the issuance of a search warrant in the circumstances there under consideration. The instant case does not fall into either of those categories since the question here presented arises under the line of decisions growing out of Terry v. Ohio, supra.

Moreover, Adams v. Williams reveals very plainly that the inadequacy of a tip under Aguilar and Spinelli is not necessarily fatal to an investigative stop and protective search based thereon if other factors are present to give the tip some “indicia of reliability.” The two factors most prominently mentioned in Adams were the past reliability of the informant and the existence of on-the-scene verification of his tip. Here, although nothing at all was known about the anonymous tipster’s reliability, there was on-the-scene corroboration of almost every innocent detail of his report, plus circumstances which strongly suggested the possibility of criminal activity. This corroboration gave the report sufficient indicia of reliability under Adams v. Williams, supra, to justify the conduct of the officers.

CONSENT

As a second and alternative ground for holding that the heroin was properly admitted into evidence, we hold that Migdall consented to the search of the package for explosives and thereby waived his fourth amendment rights. It should also be noted that Legato disclaimed any interest in the package, denied that he had ever possessed it and denied any acquaintance with Migdall at the time of the search. Before developing this • point further, however, it should be noted that our conclusion in this regard rests upon our determination that the initial decision to detain Legato and Migdall was valid. Thus, the following discussion is included to refute any possible claim that the search of the package went beyond the bounds of Terry v. Ohio, supra, and Adams v. Williams, supra, as they were interpreted and applied in Moreno.

Consent may constitute a waiver of fourth amendment rights, Zap v. United States, 328 U.S. 624, 66 S.Ct. 1277, 90 L.Ed. 1477 (1946), but to be valid a waiver must be an intelligent relinquishment of a known right or privilege, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Where a person is under arrest or in custody and consent to search is sought by police, the rule has emerged in this circuit. United States v. Canseco, 465 F.2d 383 (5th Cir. 1972), as well as others, see, e. g., United States v. Candella, 469 F.2d 173 (2d Cir. 1972); United States v. Menke, 468 F.2d 20 (3d Cir. 1972); United States v. Cox, 464 F.2d 937, 947 (6th Cir. 1972); United States v. Noa, 443 F.2d 144 (9th Cir. 1971), that absent proof of actual coercion or intimidation such consent constitutes a valid waiver of fourth amendment rights if prior to the search Miranda warnings are given. Moreover, it is clear under these cases that the validity of this waiver is not affected by a failure to include in the Miranda warnings a specific reference to the fourth amendment.

These principles are squarely in point with the facts surrounding the search in the instant case. Both Legato and Migdall were given Miranda warnings upon their arrival in the office where they were questioned. They were also informed of the reasons for their detention and were given an opportunity to explain their presence in the airport. Finally, when asked by FBI Agent Murray for permission to search the package, Migdall answered, “Sure, go ahead.” The appellants make no claim of coercion or undue pressure and none is apparent from the record. The conclusion is inescapable that Migdall’s consent resulted in a valid waiver of his fourth amendment rights. Therefore, under the facts and the established law the heroin yielded by the search was properly admitted into evidence against both Legato and Migdall.

Ill

The appellants press two additional arguments seeking reversal of their convictions. They claim various insufficiencies in the evidence and that the closing argument of the prosecutor was so prejudicial that a new trial is required. We have carefully reviewed the record in this case and find both of these contentions to be without merit. Accordingly, the judgments of conviction against appellants Legato and Migdall are affirmed.

Judgment affirmed.

GOLDBERG, Circuit Judge

(specially concurring):

Under the commands of Moreno I concur only in the result. The exigencies of skyjacking and bombing, however real and dire, should not leave an airport and its environs an enclave where the Fourth Amendment has taken its leave. It is passing strange that most of these airport searches find narcotics and not bombs, which might cause us to pause in our rush toward malleating the Fourth Amendment in order to keep the bombs from exploding. Seeking to prevent or detect crime, standing alone, has never justified eroding the right to privacy, and I continue to hope that we will soon return to the hallowed and halcyon days of the Fourth Amendment.

      . As to this count of the indictment, Legato was charged with the substantive offense of attempt and Migdall was charged as an aider and abettor under IS U.S.C. § 2.

      . At least 2 telephone calls were received warning that a bomb would be carried aboard the aircraft.

      . FBI Agent Murray originally came to the airport that afternoon on another matter. However, when lie was told of the bomb threat, he began to take an active role in the surveillance activities at the boarding gate.

      . At the suppression hearing, FBI Agent Murray described this phase of his conversation with Migdall as follows: “Also at that time I came back and I spoke to Mr. Migdall, trying to find out about the package. I asked him if he would open it. He said no. I asked him if I could. He said, ‘Sure. Go ahead and open it. It’s only a coffee percolator. It’s for a friend of mine.’ He said it was for a friend who was going to Chicago.” (p. 22 transcript of suppression hearing).

      . At the sheriff’s office Migdall spontaneously stated: “Ten more minutes and it would have been in the air.”

      . Legato points out, quite correctly we think, that since he was charged with possession of contraband, he has standing by virtue of the Supreme Court’s decision in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 702 (1960) to move for the suppression of the evidence on fourth amendment grounds even though he was not actually searched.

      . Thus far, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) has been deemed controlling by all of the circuits which have considered the question of security searches in the airport context. See United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Oir. 1971). Although recently two district courts have held airport searches to be invalid, their decisions have likewise recognized the applicability of the Terry rationale to cases similar to the instant ease. United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972); United States v. Kroll, 351 F.Supp. 148 (W.D. Mo.1972).

      . In United States v. Meulener, 351 F. Supp. 1284 (C.D.Cal.1972) the search of a passenger’s suitcase was held invalid on two separate fourth amendment grounds. One of the grounds was that the defendant was not given the opportunity to decline to submit to the search upon the condition that he not be allowed to board the plane. This issue was not raised directly in Moreno, nor is it properly before this court now. But we observe that the broad implication of Moreno is that once the facts become sufficient to justify an air piracy investigation, a law enforcement official has the authority to conduct a protective search without regard to the individual’s lack of consent.

      . The evidence adduced at the trial showed that Migdall had met Legato at the airport in Miami the day before his planned departure. Migdall also brought Legato to the airport on the occasion in question.

      . The fact that we make this assumption should not be taken as a conclusion that we recognize it to be the law. Indeed, the reverse appears to be true. There are a number of recent cases where the investigation leading up to the arrest or search was triggered by the tip of an untested or unknown informant. See, e. g., United States v. Berry, 150 U.S.App.D.C. 187, 463 F.2d 1278, 1281 (1972); Gov’t of Canal Zone v. Wright, 460 F.2d 1402 (5th Cir. 1972) ; United States v. Dzialak, 441 F.2d 212, 216 (2d Cir. 1971); United States v. Viggiano, 433 F.2d 716 (2d Cir. 1970). For our purposes, the principal point is the high probative value that these decisions place upon police corroboration of such tips in applying the Spinelli and Aguilar standards. This emphasis on corroboration is in keeping with the Supreme Court’s decision in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In the instant case, there was extensive corroboration of the original tip and thus we are unwilling to concede that Spinelli and Aguilar would operate to invalidate the action taken by the officers in detaining Legato and Migdall and searching the package for explosives.


author: LAY, Circuit Judge.

text:
    James LeRoy IVERSON, Appellee, v. STATE OF NORTH DAKOTA, Appellant.
    No. 72-1600.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1973.
    Decided June 11, 1973.

      Robert A. Alphson, Grand Forks, N. D., and Mart R. Vogel, Fargo, N. D., for appellant.
    John G. Shaft, Grand Forks, N. D., for appellee.
    Before LAY and ROSS, Circuit Judges, and NICHOL, District Judge.

       The Honorable Fred J. Nichol, Chief Judge of the United States District Court for the District of South Dakota, sitting by designation.

   LAY, Circuit Judge.

The petitioner, James LeRoy Iverson, was found guilty in the Grand Forks County District Court of North Dakota of the strangulation murder of two young women. His conviction was affirmed by the North Dakota Supreme Court. State v. Iverson, 187 N.W.2d 1 (N.D.1971), cert. denied, 404 U.S. 956, 92 S.Ct. 322, 30 L.Ed.2d 273. Thereafter petitioner sought and was granted on August 31, 1972, a writ of habeas corpus in the federal district court. 347 F.Supp. 251 (D. N.D.1972). The State of North Dakota appeals. We reverse and remand with directions.

The federal district court for the District of North Dakota, the Honorable Ronald N. Davies presiding, reviewed the state proceedings and, without evidentiary hearing, determined (1) that during petitioner’s state trial there was received into evidence certain items which were obtained by a search warrant issued without probable cause; (2) that the petitioner was denied due process of law since he was mentally incompetent at the time of his preliminary hearing; and (3) that the petitioner had been compelled to be a witness against himself at the State’s Attorney’s Inquiry contrary to his constitutional privilege against self-incrimination. Petitioner raised in the federal district court the additional ground that he was denied effective assistance of counsel by reason of his trial counsel’s incompetency. The trial judge found it unnecessary to pass on this latter question in view of the grant of the writ of habeas corpus on the other grounds.

The bodies of Carol Mayers and Diane Bill were discovered in Miss Mayers’ apartment at approximately 10:30 a. m. on November 27, 1968. Investigation was immediately commenced by the authorities. The state’s attorney conducted what is known as a State’s Attorney’s Inquiry at which witnesses are subpoenaed to appear and testify. At this inquiry, which was held at the police station, statements were taken from two young men who lived in the apartment below Miss Mayers. An additional statement was taken from the petitioner who at that time was employed by the Nodak Cab Company. The petitioner’s testimony lasted about twenty minutes and he was permitted to leave at its conclusion. Later that same evening, complaints were prepared for the arrest of the petitioner and were submitted simultaneously along with two affidavits to the county judge seeking arrest warrants as well as the issuance of a search warrant to search Iverson’s automobile and residence. Within the affidavits city detective Robert Siverson swore that at the State’s Attorney’s Inquiry Iverson had admitted to him that he knew one of the victims (Carol Mayers) and that on past occasions he had transported her to the Golden Hour Cafe in his cab; that Iverson had been in the victim’s apartment on several occasions and that the most recent time was at 6:00 a. m. on Monday, November 25, 1968; that during the course of his conversation with Iverson, the detective observed scratches on the back of Iverson’s hand and neck. In another affidavit the administrative assistant for the state’s attorney’s office swore that he had observed Iverson later that same day at a local bowling alley and he noticed a considerable number of scratches above his elbow on both arms. Based upon these facts a warrant was issued to search Iverson’s car and residence for “ladies’ garments either torn or with blood stains on them, men’s garments either torn or with blood stains on them, ladies’ purses, identification for Carol Mayers

As a result of the search of Iverson’s residence, a pair of trousers, a towel and a coat were seized. Blood stains were found on the trousers and towel that matched the victims’ type of blood; hairs were taken from the various items that were seized which bore the ’ same characteristics as the hair of both victims. These items were admitted into evidence at the trial.

A. THE SEARCH WARRANT

The first issue on appeal is whether there existed probable cause for the issuance of the search warrant. We cannot agree with the district court that no probable cause existed to make the search. This case does not present the usual problems generally associated with search warrants — whether the affidavits demonstrated the reliability of an unknown informant or whether sufficient underlying circumstances were alleged to corroborate the reliability of the facts and information disclosed. See, e. g., United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Marihart, 472 F.2d 809 (8 Cir. 1972).

Here Iverson had made certain direct statements to the affiant disclosing not only his acquaintance with the victims, but the petitioner also created reasonable suspicion by disclosing that he had been at the victim’s apartment in the early morning just forty-eight hours before the bodies were discovered. When this information is added to the fact that scratch marks were observed on the petitioner’s hands, arms and neck, suspicion was crystalized sufficient to give reasonable cause to believe that the petitioner committed the crimes. The question is whether there was probable cause to believe that petitioner committed the crime giving rise to the search of his residence for the incriminating evidence thereafter discovered. In this regard, the North Dakota Supreme Court aptly noted that “[i]t is reasonable to assume that in a violent crime such as murder there would be blood present, and that female victims would fight with the weapons available to them — their hands and fingernails. Accordingly, it would be reasonable to assume that their assailant would bear scratch marks.” 187 N.W.2d at 28. Furthermore, since the investigation involved crimes of this magnitude we think it was reasonably established that there existed a justifiable nexus which gave cause to search the accused’s living quarters and automobile for blood stained clothing. Probable cause does not require “a prima facie showing of criminal activity.” Spinelli v. United States, supra 393 U.S. at 419, 89 S.Ct. at 590. We are dealing only with probabilities which the Supreme Court in Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949), characterized as “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” See also McCreary v. Sigler, 406 F.2d 1264, 1268 (8 Cir. 1969), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773; United States v. Berry, 423 F.2d 142, 144 (10 Cir. 1970). In Aguilar v. Texas, supra 378 U.S. at 111, 84 S.Ct. at 1512, the Supreme Court observed:

“Thus, when a search is based upon a magistrate’s, rather than a police officer’s, determination of probable cause, the reviewing courts will accept evidence of a less ‘judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant’ . .” See also United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

We concur with the observation of the North Dakota Supreme Court that:

“The affidavits in the present case are not burdened by elaborate specificity, and it is obvious that they were prepared in the midst and haste of a criminal investigation. However, when judged in a common-sense and realistic fashion, with any doubt being resolved in favor of upholding the search warrant, the affidavits in this case established the necessary probable cause, thereby justifying the issuance of the search warrant.” State v. Iverson, 187 N.W.2d at 28.

B. PRELIMINARY HEARING

We come now to the district court’s ruling that the petitioner was denied due process by reason of his incompetency at the time of his preliminary hearing.

Following the arrest of Iverson, a magistrate’s hearing was held in order to appoint counsel and to determine if Iverson desired to waive a preliminary hearing. Iverson refused to waive a preliminary hearing and the state prosecutor then moved that the magistrate hold an incompetency hearing. Responding to this motion, the magistrate directed that a local medical examination be made of the petitioner. Doctor Bohrod, a psychiatrist at the Northeast Region Mental Health and Retardation Center in Grand Forks, and Doctor Wallace, a senior psychologist at the same institution, conducted individual examination of Iverson. Both doctors found Iverson incompetent to understand the nature of the proceedings against him or to competently aid in his defense at that time. Nevertheless, the magistrate refused to hold the required statutory hearing and ruled that the state should proceed with the preliminary hearing. The magistrate interpreted the statute to require an incompetency hearing only in the event the preliminary hearing resulted in Iverson being bound over for trial. Petitioner’s counsel • made no objection and Iverson was held in the county jail until January 21, 1969, when the preliminary hearing took place. At the preliminary hearing petitioner’s counsel appeared, cross-examined witnesses and raised several objections to the admission of the state’s evidence. Iverson was not called upon to testify or present a defense. Nevertheless, the magistrate found probable cause and ordered petitioner held for trial. Thereafter the district court on February 14, 1969, ordered Iverson committed to the Jamestown State Hospital for psychiatric evaluation. Four medical experts including psychologists, psychiatrists and neurologists examined the petitioner over a two-week period. All of the mental evaluation reports concurred that petitioner was then competent to stand trial and was able to participate in his defense. After these reports were received the district court without a hearing ordered Iverson to trial. No objection was made nor was any incompetency hearing requested. There is no contention at this time that Iverson was incompetent to stand trial. Cf. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The North Dakota Supreme Court noted in its opinion that “[i]t was conceded by his [Iverson’s] counsel on appeal, in oral argument, that Iverson had been examined at the State Hospital in Jamestown before his trial and that he was found to be mentally competent to stand trial.” 187 N.W.2d at 34.

With the issue thus limited to the preliminary hearing stage, the petitioner alleged that the holding of the preliminary hearing when there was evidence that he was mentally incompetent violated his constitutional right to effective assistance of counsel and his constitutional right to due process. The preliminary hearing in the instant case was conducted prior to the decision of Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), which held that the Sixth Amendment, as made applicable to the states through the Fourteenth Amendment, required counsel at a preliminary hearing. However, the recent case of Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972), held that Coleman was not retroactive. See also Konvalin v. Sigler, 431 F.2d 1156 (8 Cir. 1970). Nevertheless, the federal district court found that petitioner did not rely on the retroactivity of Coleman, but rather urged that there was a denial of due process by reason of the preliminary hearing being held at the time of petitioner’s incompetency. Adams, of course, noted that the failure to apply Coleman retroactively did not preclude a petitioner from showing actual prejudice sufficient to constitute a denial of due process. Adams v. Illinois, supra 405 U.S. at 285, 92 S.Ct. 916.

If we assume the preliminary hearing is to be considered on the same basis as the trial itself, under Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the judgment of conviction would have to be vacated. In Pate, the Supreme Court held that it was a deprivation of due process for the judge not to have ordered a hearing sua sponte on the defendant’s competency to stand trial when the trial judge was put on notice by the facts developed before him in the trial of the defendant’s possible mental incompetency to stand trial. Moreover, assuming the direct applicability of Pate, fundamental fairness would probably require that the instant case be remanded for a new trial since the court expressed doubt that any “meaningful” hearing could be held on an accused’s competency to stand trial some five or six years after the fact. Pate v. Robinson, 383 U.S. at 377, 387, 86 S.Ct. 836. See also Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L. Ed.2d 824 (1960). But see Conner v. Wingo, 429 F.2d 630, 639-640 (6 Cir. 1970), cert. denied, 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 121 (1972).

However, we find the rule of Pate not controlling as to the issue before us. The preliminary hearing, although a critical and important phase of the criminal proceeding, is obviously not the trial itself. As indicated in Coleman, supra, a preliminary hearing is not only necessary to establish probable cause to bind over the accused, but may be used for discovery and to assist counsel to inquire into possible psychiatric treatment for the accused. 399 U. S. at 9, 90 S.Ct. 1999. In fact, the Model Penal Code permits certain preliminary proceedings in a criminal case to proceed when an incompetent is represented by counsel. As Mr. Justice Blackmun indicated in Jackson v. Indiana, 406 U.S. 715, 741, 92 S.Ct. 1845, 1859, 32 L.Ed.2d 435 (1972):

“We do not read this Court’s previous decisions [citing Pate v. Robinson, 383 U.S. 375, 8,6 S.Ct. 836, 15 L.Ed.2d 815 (1966) and Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956)] to preclude the States from allowing at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel.”

Under the circumstances we hold that Iverson’s preliminary hearing conducted on January 21, with Iverson’s counsel present, did not violate his due process in the absence of showing of specific prejudice. Cf. Bradley v. United States, 447 F.2d 264, 270 (8 Cir. 1971), vacated on other grounds, 404 U.S. 567, 92 S.Ct. 746, 31 L.Ed.2d 722 (1972).

We note that Iverson testified at trial. As indicated, there is no claim he was incompetent at that time. His statement at trial is not materially different from what he had earlier stated on November 27 as to his whereabouts and activity on the alleged night of the murders. His claim that he slept in his car on that night and did not go inside Carol Mayers’ apartment was never changed. It is difficult to know in what manner he might have additionally aided his counsel at the preliminary hearing in order to call additional witnesses, cross-examine witnesses or discover exculpatory evidence. We find no prejudice and no denial of Iverson’s rights by the conduct of the preliminary hearing.

C. THE STATE’S ATTORNEY’S INQUIRY

This brings us then to the question of whether Iverson’s statement taken by the state’s attorney which was the basis of the affiant’s information was illegally obtained. One of the reasons this becomes material is because of its direct link with the search warrant. As stated in Hoffman v. United States, 341 U.S. 479, 486-487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951):

“The privilege afforded [against self-incrimination] not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . . [I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question of an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”

See also Malloy v. Hogan, 378 U.S. 1, 11, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964); United States v. King, 402 F.2d 694, 697 (9 Cir. 1968).

The federal district court based its finding that the statement was illegally obtained on two factors. First, that Iverson was a suspect at the time of the State’s Attorney’s Inquiry and, therefore, should have been given the full warnings as required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Secondly, the court found that there was compulsion, excluding consideration of the Miranda case, in such a way that it violated the petitioner’s privilege against self-incrimination. We disagree with the district court’s analysis that it was necessary under the facts and circumstances existing here that the petitioner be given the Miranda warnings. The petitioner was subpoenaed on November 27, 1968, at 4:50 p. m. to report to the Grand Forks Police Station for purposes of giving information to the state’s attorney’s office pursuant to Section 11-19A-09 of N.D.C.C. The only warning that he was given prior to the taking of the statement was that he had a right to have an attorney present during the taking of the inquiry. This particular examination immediately followed a similar interrogation of two young men who lived in the apartment below the one in which the victims were found. The inquiry was of general nature and although it-sought explanation of the petitioner’s whereabouts and knowledge and acquaintance with the young ladies, it also inquired as to anyone else that the petitioner knew might have had acquaintance or contact with the two victims in the past. The federal district court was impressed by an affidavit of the court reporter present which disclosed that at the close of the interrogation a bloodhound was used in an attempt to identify the petitioner and that near the close of petitioner’s statement he was asked if he would be willing to take a lie detector test.

The district court felt that since there was specific suspicion directed towards the petitioner, he was a suspect and was entitled to the full Miranda warnings. We feel the district court misapplied the controlling legal standard. In Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758,12 L.Ed.2d 977 (1964), the Supreme Court held that when an investigation had reached the accusatory stage rather than a general investigatory stage and had begun “to focus on a particular suspect,” then the police had a duty to warn the suspect of his rights to remain silent and-to consult an attorney. However, in Miranda v. Arizona, the Court developed a more objective standard covering the questioning by law enforcement people. The decisive stage there articulated was when “custodial interrogation begins,” and “custodial interrogation” was defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S., supra at 444, 86 S.Ct. 1602. This distinction is set forth and discussed by the Second Circuit at length in United States v. Hall, 421 F.2d 540, 543 (1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970). There the Court of Appeals said:

“It is equally plain that ‘focus’ alone does not trigger the need for Miranda warnings. As appears from the first Escobedo extract we have quoted custody as well as focus and other factors were essential to that decision. Under Miranda custody alone suffices. 384 U.S. at 444, 478, 86 S.Ct. 1602.' We fail to perceive how one can reason from these two propositions to a conclusion that ‘focus’ alone is enough to bring Miranda into play. The only possible basis for such an argument would be that, after limiting Miranda to custodial interrogation and defining this as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way,’ 384 U.S. at 444, 86 S.Ct. at 1612, Chief Justice Warren dropped a footnote:

4. This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.

While much dialetic skill has been expended on this footnote, see Graham, What is ‘Custodial Intei-rogation ?’: California’s Anticipatory Application of Miranda v. Arizona, 14 U.C.L.A. L. Rev. 59, 114-15; Kamisar, supra, at 339-40, the one thing that is undeniable is that the opinion said that focus means custody, not that custody means focus. As Professor Kamisar has put it, ‘Miranda’s use of “custodial interrogation” actually marks a fresh start in describing the point at which the Constitutional protections begin,’ id. — Fifth Amendment protections, that is.”

Accord, Lowe v. United States, 407 F.2d 1391, 1396 (9 Cir. 1969). As we observed in United States v. Tobin, 429 F.2d 1261, 1264 (8 Cir. 1970), the test becomes whether:

“ ‘ * * * [I]n the absence of actual arrest something must be said or done by the authorities, either in their manner of approach or in the tone or extent of their questioning, which indicates that they would not have heeded a request to depart or to allow the suspect to do so.’ United States v. Hall, 421 F.2d 540, 545 (2 Cir. 1969).”

Obviously, the degree to which an investigation has “focused” on a particular “suspect” is not totally inapposite for if the interrogation has focused on an individual it is reasonable to conclude that the individual will not be free to leave. In the instant case, although Iverson was interrogated at the police station and interrogated by the detectives when the state’s attorney left, he nevertheless was never restrained or arrested and upon completion of his testimony was informed that he had a right to leave. His total interrogation lasted only twenty minutes.

We think the observation by the North Dakota Supreme Court persuasively demonstrates that Iverson was not under any custodial restraint and that in fact he was not then accused of the crime. The North Dakota Supreme Court said:

“At the time that Iverson arrived at the police station for the Inquiry, the investigation was only seven hours old. The cause of death had not been determined; the length of time the girls had been deceased was not known; witnesses had not been found who had heard or observed anything unusual relating to the girls in the past several days; substantial and revealing clues had not been found at the scene of the crime. In short, what the record reveals is that a full-scale investigation was being conducted and that the investigators were seeking any and all information that would explain the deaths of the two young women, and that up to and including the time of the State’s Attorney’s Inquiry, the information being gathered from all sources had not been correlated.” 187 N.W.2d at 14.

Moreover, the mere fact that a person appears to answer questions by reason of a subpoena certainly does not in itself constitute such compulsion to incriminate oneself to the extent the safeguards in Miranda were intended to prevent. See Robinson v. United States, 401 F.2d 248, 251 (9 Cir. 1968); cf. Hicks v. United States, 127 U.S.App. D.C. 209, 382 F.2d 158, 161 (D.C.Cir. 1967)

We come then to the last contention — that Iverson’s statements at, the State’s Attorney’s Inquiry were nevertheless illegally coerced. In situations where Miranda does not apply, the longstanding rule is whether or not the totality of the circumstances surrounding the giving of the statement demonstrates that the will of the defendant was overborne. See Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963). At the State’s Attorney’s Inquiry the transcript shows that the state’s attorney began his questioning of Iverson as follows:

“Q. Now, this is a states attorney’s inquiry as to the death of Carol Mayers and Dianne Patricia Bill. I must advise you that you can not refuse to answer the questions. Once the statement has been completed here and transcribed, you will be required to sign that this is your testimony. I must advise you that you have a right to have an attorney present during these questions if you so desire. What is your wish? I can tell you that the matter of the inquiry is the fact of a double murder or at least of a homicide of one nature.
“A. Okay.
“Q. Okay what?
“A. Well, you said — proceed. The statement is all right with me.
“Q. All right.
“A. I don’t understand it.
“Q. All right. Mr. Iverson, now we are talking about accounting for your time from approximately 3:30 Monday.
“A. 3:30 in the afternoon?
“Q. Right.” (Our emphasis).

The federal district court found that since the state’s attorney had informed Iverson that “I must advise you that you can not refuse to answer the questions,” a misrepresentation of his Fifth Amendment rights occurred which rendered the giving of the statement involuntary. The state contends that the preliminary remark made by the state’s attorney was simply a repetition of the statutory language to the effect that the witness could not refuse to answer the questions as the “purpose and legal effect of a subpoena is to compel a witness to attend a legal proceeding and to testify.”

Upon review of the overall circumstances, we conclude that the federal district court erred in holding that the state’s attorney's preliminary remarks require a finding as a matter of law that Iverson’s will was overborne and that the statement was given under compulsion. There is no question this is a relevant and significant factor relating to the overall inquiry which searches the “totality of circumstances” existing to determine whether the statement was voluntarily and freely given. See Davis v. North Carolina, 384 U.S. at 740, 86 S.Ct. 1761. However, there are other relevant factors to be considered.

As earlier discussed, Iverson was not arrested or otherwise in custody, the statement made by the state’s attorney, although fraught with danger of misunderstanding, was earlier recited to the other two witnesses who were subpoenaed to testify to give whatever information they could to assist the police investigation. In other words, Iverson was not singled out as the only witness to whom such remarks were made. The danger that it could be misunderstood must be balanced with the fact that the interrogation of Iverson was of short duration and at no time was restraint used or threatened nor was there any accusatory or coercive means, either physical or psychological, used in the examination. Under a custodial atmosphere, we might conclude otherwise. See United States v. LaVallee, 285 F.Supp. 233 (S.D.N.Y.1968), aff’d, 417 F.2d 411 (2 Cir. 1969), cert, denied McMann v. Vanderhorst, 397 U.S. 925, 90 S.Ct. 930, 25 L.Ed.2d 105 (1970). Somewhat analogous is Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), where, although the police intentionally misrepresented to the defendant statements that an accomplice had made, the Court, in examining the totality of circumstances, concluded such statements alone were not sufficient to make an otherwise voluntary confession inadmissible. See also Procunier v. Atchley, 400 U.S. 446, 453-454, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971); United States v. Yeager, 446 F.2d 1360 (3 Cir. 1971); Michaud v. Robbins, 424 F.2d 971 (1 Cir. 1970). Although Iverson gave his consent to proceed as to the questioning the federal district court found it significant that he said he “did not understand.” Based on Iverson’s complete and coherent answers to all questions (which he repeated later that same evening) it is equally plausible that his remark related to the state’s attorney’s preceding statement that “the matter of the inquiry is the fact of a double murder or at least a homicide of one nature.”

In essence, we believe a court’s hindsight role in reviewing law enforcement techniques should proceed with due restraint in seizing upon isolated incidents and words as totally pervasive to void otherwise legitimate and lawful prosecutions. This does not mean that police may intentionally use illegal means to coerce confessions and that guilt will serve to make the illegality harmless error. See Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963). It is still vital to our nation that police practices stay within the bounds of common decency and legality. The real inquiry in passing upon the voluntariness issue should be to ascertain whether coercive, psychological means were used in such a way as to prevent the statement from being a product of the accused’s free and rational choice. See generally Developments in the Law, Confessions, 79 Harv.L.Rev. 938 (1966). The overall concern governing custodial interrogations resulted in the per se rule adopted in Miranda,. However, where that atmosphere which justifiably provokes the concern is nonexistent, then the totality of the picture must be viewed and weighed to see if there is any substance to the claim that an individual’s free will was overborne. On the basis of the present record, we cannot find it here.

In reaching our conclusion, we deem it significant that the state trial court in its ruling on motion for new trial found that the defendant was not illiterate and that he was able to finish high school courses while in prison (he had been previously convicted of burglary in 1958 and 1961) and had attended Bismarck Junior College for one year in 1964. The trial court mentioned that the defendant was not unfamiliar with the procedure of arrest. On this basis the court found after careful study of Iverson’s short statement that no accusations or coercion were used by the state interrogators.

When this issue was raised in the federal district court, it determined without an evidentiary hearing, from the state record itself, that the statement was in violation of the defendant’s privilege against self-incrimination. We have noted previously that a federal district judge should exercise caution under these circumstances from determining factual questions anew without an evidentiary hearing. As stated in In re Parker, 423 F.2d 1021, 1024 (8 Cir. 1970), cert. denied Parker v. South Dakota, 398 U.S. 966, 90 S.Ct. 2182, 26 L.Ed.2d 551:

“. . . [W]here the state record demonstrates procedural fairness and sufficient evidence exists to support the state court’s factual findings, the statute as well as the legislative purpose of § 2254(d) makes clear that these findings are to be presumptively correct absent a showing of constitutional deficiency in the state proceeding.”

The federal district court evidently felt that an evidentiary hearing was not required since it ruled that as a matter of law Iverson’s privilege against self-incrimination was violated. This, as noted, was incorrect. However, there exist additional factors which justify further investigation. The federal district judge found additionally that it was “significant” that Iverson had been examined by a psychiatrist and senior psychologist on December 12, 1968, and found to be incompetent so as not to understand the nature of the proceedings against him. Whether Iverson was incompetent at the time that he gave an incriminating statement directly affects the issue of voluntariness. See Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960); United States v. Silva, 418 F.2d 328, 330 (2 Cir. 1969); Green v. United States, 127 U.S. App.D.C. 272, 389 F.2d 949, 952 (D.C. Cir. 1967). Although the state trial court found the statement not to be coercively given, we specifically note that the state trial judge did not evaluate ór discuss the fact that on December 12, 1968, Iverson had been certified to the court as not competent to understand the nature of any legal proceedings.

The North Dakota Supreme Court did not discuss this fact in weighing the voluntariness of the statement. The State Supreme Court viewed this evidence as only related to the issue of whether Iverson had been deprived of due process of law by reason of his alleged incompetency at the time of his preliminary hearing. It is apparent from the briefs that the petitioner did not directly raise the incompetency issue in the state court as it affected the voluntariness of the November 27, 1968, statement. Under these circumstances, it is imperative that the state court make such determination before federal intervention in the state criminal process. Sigler v. Parker, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970). We note that the federal district court observed that the seemingly contradictory reports of the psychiatrists in December and February could both be true at the time each examination took place. On the other hand it is equally plausible, as the North Dakota Supreme Court found, that it may be that the reports simply reflect two conflicting viewpoints of medical doctors. It should be stated, as well, in adjudicating an accused’s competency, that this court has always deemed it relevant to obtain, in addition to medical opinion, laymen’s observations of the accused at the time in question. See Bradley v. United States, 447 F.2d 264, 270 (8 Cir. 1971), vacated on other grounds, 404 U.S. 567, 92 S.Ct. 746, 31 L.Ed.2d 722 (1972). Investigation should be made as to his abilities to understand and communicate with the people around him. In this case, perhaps petitioner’s trial counsel could give meaningful insight as to Iverson’s ability to understand and to communicate with him. Although it has not been raised, this court would view it as fundamental error if in fact Iverson were incompetent at the time that he gave not only his statement to the state’s attorney in the afternoon of November 27, but also the subsequent statement given that evening at the police station after he had been informed of his full Miranda rights. Cf. United States v. Elrod, 441 F.2d 353 (5 Cir. 1971). It is true that these statements were not used as affirmative evidence in the trial itself, but both were used for purposes of impeachment of Iverson after he took the stand. In this regard Iverson had denied on the witness stand that he had gone up to the door of the apartment on the morning in question to pick up Carol Mayers but had simply remained in his car and “beeped his horn.” In both of his November 27 statements he had testified that he had gotten out of the car and gone upstairs to the apartment and pounded on the door. As the district attorney points out, this was a significant impeachment which the jury could weigh in evaluating his testimony. It is true that in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that if the Miranda warnings were not given the statement could nevertheless be used for impeachment purposes. The Harris rule is specifically not applicable to statements made to police which are “coerced or involuntary.” The Supreme Court observed: “It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” (Emphasis ours.) Id. at 224, 91 S.Ct. at 645. Any statement which is involuntarily coerced or taken from an incompetent person is not reliable and should not be used for any purpose. Whether or not Iverson was competent to understand the nature of the proceedings on the date of November 27, 1968, relates not only to the validity of the search warrant but also to the admissibility of both statements in the trial itself.

Since the state courts of North Dakota have not actually passed upon this question, we feel that the federal district court should grant ninety (90) days in which the state may hold an evidentiary hearing on the question of Iverson’s competency and make a determination based on the “totality of circumstances” as to whether Iverson’s statements of November 27, 1968, were voluntarily given. In the event that a hearing is not held, then the federal district court is instructed that it should hold such a hearing and determine under the totality of circumstances the voluntariness of these statements. In the event the North Dakota courts find that the statements of November 27 were involuntarily given because of Iverson’s then existing ineompetency, this would vacate the conviction and require a new trial. Blackburn v. Alabama, supra.

The grant of the writ of habeas corpus is vacated and the case is reversed and remanded with instructions to hold the case for ninety (90) days pending an evidentiary hearing by the state court on the issues of the voluntariness of his statements and the competency of the defendant on November 27, 1968. In the event the state does grant such an evidentiary hearing the petition for habeas corpus shall be dismissed; in the event the state does not grant the hearing, then the court shall entertain such determinations as are necessary to pass upon the issues involved.

      . The record discloses that the police had many other factors which could have been disclosed to the magistrate. Nevertheless, probable cause must turn on the facts before the magistrate and not what might have been furnished. Aguilar v. Texas, 378 U.S. 108, 109 n. 1, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; McCreary v. Sigler, 406 F.2d 1264, 1268 (8 Cir. 1969), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773.

      . Under Section 29-20-01 of the North Dakota Century Code, two experts are to be appointed to examine the accused after which a hearing to determine his competency is to be held. The statute reads as follows:
      “29-20-01. Examination of defendant's mental condition to determine whether he shall he tried. — If, before or during the trial, the court has reasonable ground to believe that the defendant against whom an indictment has been found or an information filed is insane or mentally defective to the extent that he is unable to understand the proceedings against him or to assist in his defense, the court immediately shall fix a time for a hearing to determine the defendant’s mental condition. The court may appoint two disinterested qualified experts to examine the defendant with regard to his present mental condition and to testify at the hearing, or it may commit the defendant to the state hospital at Jamestown or the state school at Grafton for observation and examination regarding his present mental condition. The proper officer of such institution shall present to the court which conducted the hearing a report regarding tire defendant’s present mental condition. He also may be summoned to testify at the hearing. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party.”

      . Counsel on Iverson’s appeal to the North Dakota Supreme Court is the same counsel who lias represented Iverson throughout the post-conviction proceedings.

      . One difficulty with the federal district court’s conclusion is that there never has been an adjudication that Iverson was in fact incompetent at the time of the preliminary hearing. The Supreme Court of Xorth Dakota observed:
      “The reports of the local psychiatrist and psychologist do not prove that Iverson was incompetent to understand the nature of the proceedings against him or to aid in his own defense. The reports are merely evidence to be considered in light of the report from the superintendent of the State Hospital to the contrary.” 187 N.W.2d at 36.

      . For a recent discussion of discovery as it relates to the preliminary hearing, see Coleman v. Burnett, 477 F.2d 1187 (D.C. Cir. Mar. 14, 1973).

      . See Model Penal Code § 4.06(3) (Proposed Official Draft 1962) ; Model Penal Code § 4.06 (alternative subsection 4) (Proposed Official Draft 1962).

      . Cf. Neely v. Hogan, 62 Misc.2d 1056, 310 N.Y.S.2d 63 (1970). It has been observed that a pretrial incompetency hearing may be detrimental to the accused’s interest since he faces the prospect of being committed to a state institution before a preliminary hearing has even determined that there is probable cause that the accused committed a crime. See Foote, A Comment on Pre-Trial Commitment of Criminal Defendants, 108 U.Pa.L.Rev. 832, 841-846 (1960) ; Note, Incompetency to Stand Trial, 81 Harv.L.Kev. 454, 468 (1967).

      . Petitioner’s counsel in oral argument on appeal concedes this point:
      “Q. (By Judge Lay) Have you studied the transcript for the preliminary hearing?
      “MR. SHAFT. Yes, I have, your Honor.
      “Q. It is in this record here?
      “MR. SHAFT. Yes, it is, your Honor.
      “Q. Did anything develop there unforeseen that you might hold ’or allege prejudice arising therefrom?
      “MR. SHAFT. No, I can’t find anything in the record, your Honor.
      “Q. Who all testified at the preliminary hearing — the officers?
      “MR. SHAFT. The officers testified, other parties, I don’t know whether Mr. Iverson testified. Mr. Iverson, of course, did not testify at the preliminary hearing.
      “Q. He had his counsel present?
      “MR. SHAFT. He had trial counsel present.

        “Q. Who was trial counsel?
      “MR. SHAFT. Mr. Sam Rubin.
      “Q. Did he cross-examine these people?
      “MR. SHAFT. Yes, he did. It was a full day preliminary examination hearing — it took the entire day.”

      . The affidavit reads as follows:
      “Ralph D. Krasky, being first duly sworn on oath, deposes and says:
      I.
      “That he is a District Court Reporter in and for the District Court, Grand Forks County, North Dakota. That on the. 27th day of November, 1968 at 4:50 o’clock P.M. at the State’s Attorney’s inquest into the death of Carol Mayers and Diane Bill, he did transcribe and report the sworn statements of .Tames Leroy Iverson given in response to questions asked by State’s Attorney John Alphson, Orvis Olson and Robert Siverson.
      II.
      “That during the course of the inquiry and while James Leroy Iverson was being questioned, a recess was taken at .the request of Mr. Siverson. After this recess, Iverson was asked fourteen more questions and then the record was closed at the request of Mr. Alphson. After the record was closed, this reporter and James Leroy Iverson were kept in the same room for approximately ten to fifteen minutes. During either the recess or the period of time which James Leroy Iverson and the affiant were detained after the official closing of the record, Mr. Siverson told Mr. Iverson that they would like him to take a lie detector test. Mr. Iverson indicated to the officers that he could not take it that evening and at that hour because he would miss his league bowling. Either at the recess or immediately following the closing of the record, a bloodhound entered the room from the southernmost door and walked around the room and stopped at the affiant. The bloodhound then continued to sniff about the room.
      “Dated this 6th day of November, 1969.
      “/s/ Ralph D. Krasky Ralph D. Krasky”

      . This court has never viewed custodial interrogation as one that automatically ensues from the mere fact that there is interrogation at a police station. See United States v. Tobin, 429 F.2d 1261 (8 Cir. 1970). See also Fisher v. Scafati, 438 F.2d 307 (1 Cir. 1971) ; Freije v. United States, 408 F.2d 100, 103 (1 Cir. 1969), cert. denied, 396 U.S. 859, 90 S.Ct. 129, 24 L.Ed.2d 111; Clark v. United States, 400 F.2d 83 (9 Cir. 1968), cert. denied, 393 U.S. 1036, 89 S.Ct. 654, 21 L.Ed.2d 581 (1969) ; Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158, 162 (1967). But see United States v. Gibson, 392 F.2d 373, 376 (4 Cir. 1968).
      We feel the approach taken by the Fifth Circuit in United States v. Prudden, 424 F.2d 1021, 1030 (1970), cert, denied, 400 U.S. 831, 91 S.Ct. 62, 27 L.Ed.2d 62, implements the intent of Miranda, namely that each factual situation must be analyzed on a case by case basis to determine whether there were such compelling factors as to necessitate the Miranda safeguards.

      . The power to compel persons to testify in court or before grand juries and other governmental agencies cannot be disputed. Kastigar v. United States, 406 U.S. 441, 443, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Furthermore “[t]he mere subpoenaing of the defendant before the grand jury is not per se a violation of his constitutional rights . . . .” United States v. Bell, 351 F.2d 868, 874 (6 Cir. 1965), cert, denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966). See also United States v. Morado, 454 F.2d 167, 172 (5 Cir. 1972), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116; United States v. Winter, 348 F.2d 204, 207 (2 Cir. 1965), cert. denied, 382 U.S. 955, 86 S.Ct. 429, 15 L.Ed.2d 360. See generally Comment, The Grand Jury Witness’ Privilege Against Self-Incrimination, 62 Nw.U.L.Rev. 207, 224-225 (1967).

      . The fact that Iverson’s statements are more in the nature of admissions rather than confessions (e. g., he admitted being at the victim’s apartment only forty-eight hours before the bodies were discovered) does not detract from applying the same constitutional principles applicable to coerced confessions since these admissions had a direct bearing on his guilt. As stated in Miranda v. Arizona, 384 U.S. at 476, 86 S.Ct. at 1629: “No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense.” See also Gladden v. Unsworth, 396 F.2d 373, 375-376 (9 Cir. 1968) ; Jones v. United States, 111 U.S. App.D.C. 276, 296 F.2d 398, 402 (1961), cert. denied, 370 U.S. 913, 82 S.Ct. 1260, 8 L.Ed.2d 406 (1962) ; cf. Opper v. United States, 348 U.S. 84, 90-91, 75 S.Ct. 158, 99 L.Ed. 101 (1954).

      . The pertinent North Dakota Statute provides:
      “11-19A-09. State’s attorney may subpoena witnesses. — If the state’s attorney of the county shall be notified by any officer or other persons, or be cognizant himself of any violation or criminal act causing such death, or in any manner connected therewith he may inquire into the facts of such violation or criminal act, and for such purpose he shall issue his subpoena for any person who he has reason to believe has any information or knowledge of such violation, to appear before him at a time and place designated in such subpoena, then and there to testify concerning any such violation. The subpoena shall be directed to the sheriff or any constable of the county and shall be served and returned to the state’s attorney in the same manner as subpoenas are served and returned in criminal cases. Each witness shall be sworn by the state’s attorney to testify under oath, and to make true answer to all questions which may be propounded to him by such state’s attorney touching any such violation or criminal act. The testimony of every witness shall be reduced to writing, and shall become a part of the coroner’s files in such case. For all purposes in this section the state’s attorney may:
      “1. Administer oaths or affirmations to all witnesses;
      “2. Apply to the district court for the punishment of any witness for contempt for or on account of any disobedience of a subpoena, a refusal to be sworn, or to answer as a witness, or a refusal to sign his testimony; and “3. Compel the attendance of witnesses by attachment in the manner and with the effect provided in the title Judicial Branch of Government. Any witness compelled to testify under the provisions of this section shall be entitled to counsel and all other constitutional rights.” (Our emphasis.)

      . The February report of Doctor March indicates that the petitioner told him that ever since he was arrested he was able to advise legal counsel and to assist in his defense. Also, the electroencephalograms taken at the Jamestown Hospital contradicted the earlier suggestion by the Grand Forks’ psychologist that Iverson had serious organic brain damage.

      . In weighing the voluntariness of Iverson’s statement, the evidentiary hearing should consider anew, in addition to the issue surrounding petitioner’s competency at the time in question, all circumstances then existing, including, but not limited to, other relevant facts such as what warnings were or were not given, the preliminary remarks of the state’s attorney, the responses of Iverson, the surroundings, etc. As stated, the essential issue is whether the statements given were the product of the accused’s free and rational choice.

      . In the event the case is ever brought back to the federal district court, petitioner may then renew his claim that he was not afforded effective assistance of counsel. The State Supreme Court determined that he was afforded competent counsel; however, as indicated, the federal district court did not pass on this question.


author: VAN SICKLE, District Judge. VAN OOSTERHOUT, Senior Circuit Judge

text:
    Baxter BERRY, Appellee, v. NATIONAL BROADCASTING COMPANY, INC., Appellant.
    No. 72-1578.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 15, 1973.
    Decided June 13, 1973.

      Van Oosterhout, Senior Circuit Judge, filed specially concurring opinion.
    Carleton G. Eldridge, Jr., New York City, for appellant.
    Sam W. Masten, Canton, S. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and VAN SICKLE, District Judge.

       Sitting by designation.

   VAN SICKLE, District Judge.

This is a diversity action, premised on a “false light” invasion of privacy. The pertinent facts are:

On March 24, 1967, an Indian University student, Thomas White Hawk, killed a white jeweler, James Yeado, in the Yeado home in Vermillion, South Dakota. The killing was particularly brutal and, upon his plea of guilty, White Hawk was sentenced to death, which sentence was later commuted. The case received much local and national publicity.

About two years later, Baxter Berry, a white man, shot and killed an Indian, Norman Little Brave, on the Berry ranch near Belvidere, South Dakota. Baxter Berry’s claim of self-defense was believed by a coroners jury, which ruled the death to be non-felonious. The widow of Norman Little Brave then signed a criminal complaint charging Baxter Berry with murder and a jury trial followed, resulting in a verdict of not guilty.

Press reports associated the two cases, as did the argument before the jury in the Baxter Berry Criminal trial. An Associated Press story stated that “accusations of a double standard of justice in South Dakota — one for whites, the other for Indians — are being heard in many parts of the state”, and then went on to discuss these two cases..

The National Broadcasting Company broadcasts a documentary, monthly, news magazine program which they call “First Tuesday”. “Documentary” and “news” in the description mean that it purports to be factual, journalistic. “Magazine” means that several topics are covered in one program. The subject matter of the programs is not “hot” news, but rather coverage in depth. As part of the broadcast for Tuesday, December 2, 1969, National Broadcasting Company ran a film entitled “Between Two Rivers”, aimed at showing the cultural problems of the American Indian, caught between the two rivers of culture; White American and Indian American. The 26 minute broadcast was edited out of about 1200 minutes of film. The first 22 minutes of the film was a highly emotional presentation of the life and difficulties of Thomas White Hawk, including a report of his crime and sentence. The next segment, about 3 minutes long, was an unsympathetic report on the Baxter Berry shooting, trial and not-guilty verdict. The remaining minute was devoted to a dramatic closeout.

Although the narration of the film did not so state, the admitted purpose of the introduction of the Baxter Berry case into the broadcast was to suggest that “some people felt that there was a double standard of justice in South Dakota.”

[The full text of the audio is shown at Appendix p. 468a, and nowhere does the phrase “double standard of justice in South Dakota” appear.] The thought was presented entirely by innuendo, and reasonable people could have, and did, interpret the meaning to be that Baxter Berry was a wrongful beneficiary of that double standard. This was the presentation which cast the plaintiff in a false light.

Baxter Berry claimed he was subjected to abuse and annoyance because of the publication, aggravating a heart condition, and he brought this action. The trial resulted in a jury verdict of $25,000.00 in Baxter Berry’s favor.

Defendant made the proper motions during the trial, and moved for judgment n.o.v. at the close of the trial. That motion was denied and in this appeal National Broadcasting Company challenges the correctness of that denial. The position of National Broadcasting Company is that in this action the plaintiff must prove that the false material was published with malice, or its equivalent, reckless disregard of its truthfulness, and that the plaintiff has failed to offer evidence sufficient to sustain a verdict.

The concept of the tort of invasion of privacy is best discussed in Restatement 2d, Torts, § 652A through 652J [Tentative Draft 13, 1967]. The existence of a right of privacy is recognized in about 35 states, and is rejected by 4 states. [Restatement 2d, Torts, § 652A et seq.] South Dakota recognizes the right [Truxes v. Kenco Enterprises, Inc., 80 S.D. 104, 119 N.W.2d 914 (S.Dak. 1963)].

The right of privacy is invaded when there is:

a) An unreasonable intrusion of one’s seclusion, or,
b) An appropriation of the other’s name or likeness, or,
c) Unreasonable publicity given to one’s private life, or
d) “Publicity which unreasonably places the other in a false light before the public . . .
[Restatement 2d, Torts, § 652A, supra.]

This case is concerned only with the false light invasion, item (d) above. In these cases, the plaintiff may have an action which can be laid in libel and slander or in invasion of privacy. The Restatement text writers point out that “false light” invasion of privacy is a distinct form of tort which is dependent upon falsity, and so is closely allied to defamation. The problem is whether the plaintiff can, by suing for invasion of privacy, by-pass the various safeguards and limitations which have grown up around the accusation of defamation. The Restatement 2d answer to this problem is:

“It appears quite unreasonable that limitations on recovery for defamation can be evaded by suing on another theory for the the same publication of the same defamatory matter.”

And, he may lay his action in two theories, but will be limited to only one recovery. [Restatement 2d, Torts, § 652A, supra.]

The United States Supreme Court has consistently held that the First Amendment protection of the freedom of the press requires that “false light” eases be subject to the same restraints as defamation eases. [See New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1963)].

The theory of the Restatement, and of the more recent cases, is that the right of privacy, the right to be left alone, is limited by a privilege to give publicity to matters of public concern and interest. [Restatement 2d Torts, § 652F, Supra.] The Rule as given in the Restatement 2d and as enunciated in Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L. Ed.2d 456 (1966) is:

The media may, without liability, give publicity, even falsely, to facts concerning another which place him in a false light to the world to his injury if the facts concern an event of general public interest, unless the falsities are published with knowledge of their falsity or in reckless disregard of whether they are true or not, i.e., with malice.

The doctrine of the vulnerability of the public to negligent news media was enunciated in N. Y. Times v. Sullivan, supra. There the Court held that a person who had run for election to public office had voluntarily exposed himself to the media to the point where he had to prove malice to recover for defamation. In Time, Inc. v. Hill, supra, the Supreme Court extended the doctrine of Sullivan to encompass the circumstances where a person is inadvertently caught up in a matter of public interest. [See also Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967); Time, Inc. v. Pape, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); where the criteria for the application of the privilege shifts from “persons in public eye” to “matters of public interest”.] On its facts, the Baxter Berry case falls somewhere between Sullivan and Hill. It is clear that as to the issue of privacy, Mr. Berry’s act of shooting Norman Little Brave removed Mr. Berry’s right to privacy as to that incident and matters relevant to it. Clearly, killing another person is a matter of public interest, and caused Mr. Berry to become a public figure. Therefore, before Baxter Berry can recover in this action, he must prove that he was cast in a false light out of “malice”.

The plaintiff has not pleaded malice, but the instructions of the Court to the jury were very specific on the need to find malice if there was to be a verdict for the plaintiff. In light of the verdiet, we must assume that the jury did find as a fact that the defendant did publish the falsity with malice, or its equivalent, reckless disregard of the truth.

Ordinarily, we would resolve the question by examining the evidence in a light most favorable to the party having the verdict and overturn it only if the verdict were clearly erroneous. In First Amendment cases however, this Court must make an independent judgment as to whether the facts will support a verdict for the plaintiff without abridging the rights of freedom of speech and press as guaranteed by the First and Fourteenth Amendments. [New York Times v. Sullivan, supra; Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296.]

We turn then to the evidence claimed to show falsehoods published in the broadcast. Plaintiff furnished proof of errors of commission and errors of omission.

The claimed errors of omission were:
1. National Broadcasting Company failed to state that there had been a psychiatric examination of Thomas White Hawk prior to his pleading guilty which found him competent, while they did state that a later examination concluded that he had been incompetent at that time.
2. National Broadcasting Company did not mention the fact that another jury had dismissed a murder charge against an Indian youth charged with being an accomplice of Thomas White Hawk in the murder of James Yeado.
3. National Broadcasting Company failed to mention that the same jury which dismissed the murder charge against Baxter Berry had also dismissed a murder charge against an Indian defendant.
4. National Broadcasting Company failed to mention that Norman Little Brave had a history of violent assault, evidenced by the fact that the Little Brave family had brought the family weapons to Baxter Berry for safekeeping at other times when Norman had threatened violence.
5. National Broadcasting Company omitted an interview with Norman Little Brave’s father after the Baxter Berry trial in which the father signified satisfaction with the trial; while they did an interview with his stepmother which gave the opposite reaction.

The claimed errors of commission were:

1. National Broadcasting Company said that Thomas White Hawk’s lawyer had only been out of law school six months at the time he represented White Hawk, whereas he had been out of school for over two years.
2. In the showing of an interview right after the Baxter Berry trial, National Broadcasting Company identified Norman Little Brave’s stepmother erroneously, calling her his mother.

National Broadcasting Company took an apparently true statement:

“That some people thought there was a double standard of justice in South Dakota”,

and used it so as to allow the inference that Baxter Berry was a guilty man found innocent by virtue of the fact that he was a white man in a predominantly white society. National Broadcasting Company did not show all of the evidence supporting Baxter Berry’s innocence, but it had no obligation to do so. Its failure to show that evidence does not alter the fact it reported truthfully that there were people who felt that a double standard existed. The connection of this double standard by innuendo with the Baxter Berry case, reasonably allowed the inference that Baxter Berry was the wrongful beneficiary of that double standard. If this allowable inference were tantamount to a falsehood, it would have been the only relevant falsehood. The others are only evidence of poor craftsmanship, or excessive zeal for news matter which supported the editor’s thesis.

Proof of the factual inaccuracies and omissions committed by National Broadcasting Company was addressed to proving a reckless disregard for the truth by the showing of numerous untruths, as was done in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). However, we hold that the proof that persons did infer that Baxter Berry was the wrongful beneficiary of a double standard, and the proof of irrelevant inaccuracies, together fall short of establishing the “malice” needed to sustain a verdict against a broadcaster in light of the dictates of the First Amendment.

Reversed and remanded with a direction that a judgment of dismissal be entered.

VAN OOSTERHOUT, Senior Circuit Judge

(specially concurring).

I agree that malice has not been established and hence a reversal is required. I concur with Judge Van Sickle’s well-considered opinion except that I am unable to agree that there is any substantial evidence to support a finding that defendant in its broadcast made any relevant false statement. The resolution of the issue on which we differ has no bearing on the result of the case.

      . Testimony of Eliot Frankel, Executive Producer, National Broadcasting Company.
      Q. Well, could you explain to me, then, the significance of using Mr. Berry in this program, what you were illustrating there?
      A. Well, from the standpoint of the Indians — I believe I just saw it here— just that the Indians felt that there was perhaps a double standard. We pointed out that one month — just one month— the ease of White I-Iawk was closed October 24th. And there was the feeling of many Indians at that time that there was a—
      Q. Double Standard?
      A. Double standard.
      Q. Of justice, is that right?
      A. So, that was the point. [Appendix p. 48a]

      . Erroneous statements or inaccurate portrayals of a matter of public interest may render a newspaper or broadcasting company liable to a private individual even where such private individual is involved in an event of public or general interest, such as a defendant in a murder trial, but only if such news media broadcast a false portrayal of such event, and in this case, that NBC knew that such report or portrayal was false or broadcast the same with a reckless disregard of whether such portrayal was false or not, meaning that NBC entertained serious doubts as to the truth of its reports.
      Counsel for the defendant NBC have inti'odueed evidence in this trial that their documentary Between Two Rivers was a fair and factual presentation of Indian problems in South Dakota, and that their brief reference to the plaintiff, Baxter Berry, was not false, and that any reference to the plaintiff, Baxter Berry, was without actual malice.
      Now, the term “actual malice” does not connote personal spite or ill will toward any particular individual. A publication or broadcast is made with actual malice, as that term is used in these instructions, if it is made with knowledge that it is false, or with reckless disregard of whether it is false or not.
      In other words, you are instructed that newsworthy publications or broadcasts may not be the subject of a damage suit based on the right of privacy unless they eontain “knowing” or “reckless” falsehood. [Appendix pp. 459a, 460a]
      The burden on the plaintiff as against the defendant, NBC, is stricter with regard to the fifth element. The plaintiff has the burden of establishing by clear and convincing evidence that the broadcast was made with knowledge that it was false or with reckless disregard of whether it was false or not. [Appendix p. 465a]'


author: COLEMAN, Circuit Judge:

text:
    DOW CHEMICAL COMPANY, Plaintiff-Appellee-Cross Appellant, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al., Defendants-Appellants-Cross Appellees.
    No. 72-1369.
    United States Court of Appeals, Fifth Circuit.
    June 12, 1973.
    Rehearing Denied Aug. 7, 1973.

      Frank E. Hamilton, Jr., Tampa, Fla., Winn Newman, Gen. Counsel, International Union of Electrical, Radio & Machine Workers, AFL-CIO, Irving Abramson, Richard Scupi, Washington, D. C., for defendants-appellants.
    Jesse S. Hogg, Coral Gables, Fla., for plaintiff-appellee.
    Before COLEMAN and SIMPSON, Circuit Judges, and ESTES, District Judge.
   COLEMAN, Circuit Judge:

On an around the clock, three shifts basis, Dow Chemical Company owned and operated a plant at Tampa, Florida, which produced polyethylene containers, mostly for the Clorox Company. Dow’s employees were represented by the International Union of Radio, Electrical and Machine Workers, AFL-CIO and its affiliated Local 153. The contract between the union and the company had a no-strike clause which provided for a mandatory three-step grievance procedure for the settlement of company-union disputes and which further agreed that no strike might be instituted prior to the exhaustion of this procedure.

This litigation had its incipiency on the morning of December 29, 1964. Charles Winn, a plant employee and President of Local 153, was on duty along with Millard Crunk, chief steward for the local. They informed the plant manager that they wanted to leave work for the purpose of going to the union hall to discuss union business with Joseph Considine, IUE field .representative. Crunk was granted the requested permission but Winn was told not to leave until he had a replacement. It was ascertained that a replacement was available but that it would be some time before he could get to work. Winn would not, and did not, wait for the arrival of his replacement. The manager warned him that if he left work without permission he would be subject to appropriate discipline.

That afternoon, Winn received a disciplinary suspension for leaving work without permission. The next day the plant employees protested the suspension by staging a six hour walk-out. The plant manager protested to an IUE field representative that the work stoppage was illegal but the representative declined to urge the employees to return to work. The manager then contacted his superior officers who protested directly to IUE headquarters in Washington. That office instructed a return to work.

After an investigation which caused the plant manager to conclude that Winn and Crunk were responsible for the illegal work stoppage, they were terminated as employees. The next day, January 6, 1965, Considine, the union field representative, demanded an immediate meeting with the plant manager to discuss the Winn-Crunk termination. Three meetings failed to secure the reinstatement of the former employees and a strike was called, continuing from January 7 until February 2 when it was terminated by a state court injunction

On February 28 the collective bargaining agreement between Dow and IUE expired. By agreement it was extended until March 14. No contract being reached, a new strike began on March 15, lasting until April 29. The legality of this second strike is not in issue.

Dow sued the union for damages for the illegal work stoppage and for the first strike, § 301 of the Labor Management Relations Act of 1947; 29 XJ.S.C. § 185. The ease was tried to the District Court without a jury. Punitive damages were disallowed, but judgment for actual damages was entered in the sum of $297,607.65. The award was broken down as follows: for the unlawful work stoppage, $1,038; for the January 7-February 2 strike, $291,779.65; for legal expenses incurred in bringing the unlawful strike to an end, $4,790. The union appeals from the damage award and Dow cross appeals from the denial of punitive damages.

The union does not contest all liability but argues that the damage award was too broad in both scope and time.

In compliance with the well known principles of the Clearly Erroneous Rule, we shall not here retry the factual issues nor do we consider it necessary to burden this opinion with an extended descriptive or historical recital of the conflicting factual contentions. We are entirely confident that the findings of fact entered by the trial court are substantially supported by the evidence in the record:

1. The work stoppage and the first strike were in breach of contract;

2. The damages sustained by the company were caused by the January strike rather than by the latter one which the union abandoned because it was unsuccessful;

3. The adverse effects of the strike continued to manifest themselves until June 30, 1965;

4. The strike caused ruinous stresses on plant equipment when management tried to operate with replacement employees; massive repairs were done in June, to the further diminution of production ;

5. Supported by the company’s operation records, comparing actual sales with reasonably anticipated sales as well as considering both fixed and variable production costs as adversely affected by the January strike, the total damage figure can reasonably be fixed at $291,779.-65.

The judgment in favor of Dow is affirmed.

This leaves for consideration the punitive damages issue raised by the cross appeal.

In its order of December 29, 1969, the District Court described the testimony on the issue of punitive damages as follows:

“Involved here are 120 pieces of testimony to which objection was made. The testimony is by various witnesses and is a melange of various allegations and information. Samples of it include testimony that a witness heard officials of the local and international make threats of bombing the plant; that an international field representative instructed strikers to block ingress and egress to the plant; that a local official advised sabotage of machinery; that an international field representative advised stripping the clothes off female strike-breakers; that an international field representative was present when the president of the local threatened to hire out-of-town hoodlums; that officials of both defendants participated in the mass picketing and shouting from the picket line; that one persons’s car was shot at, another’s hit by a shot from a BB gun operated by unknown assailants; that one woman found a noxious thing attached to her car by persons unknown; that strange cars prowled about the houses of strikebreakers; that various acts of violence or danger were committed by persons unknown or strikers; and so on.”

Our reading of the record has prompted no disagreement with the above summary.

The District Court then considered-the punitive damage impact of this testimony as against the International Union as follows:

“Considering each of the 120 portions of disputed testimony by itself, and remembering that the ordinary law of agency does not apply, there is no proof, as to any one, that the defendant international authorized, ratified, or participated in the tortious acts enumerated. There is, of course, proof that individual members and officers of the defendants, as well as persons unknown, committed acts of tort.
“Considering the 120 pieces of testimony as whole, the requisite authorization, ratification, or participation, as well as clear proof thereof, is also lacking. Putting all the acts mentioned in the testimony together, there is not clear proof that the defendant endorsed any or all of these acts. The same is true when the testimony is examined in the light of plaintiff’s entire case.”

Again, we agree that this summarization finds support in the record.

Dow Chemical, the cross-appellant, contends, however, that the International Union is nevertheless liable because three of its field representatives actively participated in the above described conduct and that “the participation of the three was in effect the participation of the International Union”.

This brings us face to face with the provisions of § 6 of the Norris-LaGuardia Act, 29 U.S.C. § 106, which reads as follows:

“No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.”

As the District Court quite correctly pointed out, the decisions in this field, dealing particularly with the appropriate interpretation and application of § 6, are quite sparse. Without considering it necessary to rehash the issues there involved and the decisions there rendered, we have directed out attention to the decisions of the Supreme Court in United Brotherhood of Carpenters v. United States, 330 U.S. 395, 67 S.Ct. 775, 91 L.Ed. 973; United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218, as well as to the decision of the Sixth Circuit in United Mine Workers of America v. Meadow Creek Coal Company, 263 F.2d 52 (1969), cert, denied, 359 U.S. 1013, 79 S.Ct. 1149, 3 L.Ed.2d 1038.

These cases, of course, do not strike directly at the factual situation encountered in the instant appeal.

Viewing the record as a whole, we agree with the District Court when it found as follows in its order of December 29, 1969:

“The Court holds, however, as to the international, that the testimony does not meet the stringent standards of § 6. None of the acts contained within the testimony — whether viewed singly or in totality — is supported by clear proof of endorsement by the international. Section 6 is not a rule of evidence, making the testimony inadmissible; it merely defines the type of proof and incidentally establishes the quality of proof necessary to hold unions liable. The testimony here is an aggregation of information about acts committed by certain persons at certain times. No nexus connects these acts to the union in the degree required by § 6. The testimony objected to, therefore, is material but irrelevant. It is directed to the issue of tort liability on the part of the union but it fails to be probative of this issue because the acts enumerated in the testimony are not connected to the union.
“Evidence in the form of testimony as to the acts of union officials and members, and others, without more, is not indicative of union responsibility for the torts committed. In the absence of union authorization, participation, or ratification, such testimony does not tend to show liability upon the part of the union.”

We weigh this in light of the fact that this indefensible, indeed reprehensible, conduct was that of local union representatives on the scene — not that of officers of the union. We do not have here the actions of an international board member, as in United Mine Workers v. Meadow Creek Coal Company, supra, nor do we have the union authorization or ratification which were specifically found to be present in that case. Indeed, the international board member in Meadow Creek was “high enough in the hierarchy of the United Mine Workers of America” to render the union liable for acts done under his “leadership”, 263 F.2d at 63.

We think the District Court correctly applied the plain language of Section 6, 29 U.S.C. § 106, which specifically quires “clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof”.

In the absence of such proof, Congress has seen fit to remove such activities from the usual rules of agency or respondeat superior. Finally, we cannot say that the District Court findings of “no nexus” are clearly erroneous.

It follows that the judgment of the District Court, on both direct and cross appeals, will be affirmed.

Affirmed.