author: MURPHY, District Judge: BROWNING, Circuit Judge:

text:
    RINCON BAND OF MISSION INDIANS, Appellants, v. COUNTY OF SAN DIEGO and J. C. O’Connor, Sheriff for the County of San Diego, Appellees. Elizabeth RICCI, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees. Lela MADRIGAL, Appellant, v. COUNTY OF RIVERSIDE et al., Appellees.
    Nos. 71-1927, 72-1256 and 71-2043.
    United States Court of Appeals, Ninth Circuit.
    March 18, 1974.
    Rehearing Denied June 11, 1974.

      George Forman, Oakland, Cal. (argued), for appellants in No. 71-1927.
    Bertram McLees, Jr., County Counsel, Anthony Albers, Deputy County Counsel (argued), San Diego, Cal., for appellees in No. 71-1927.
    Robert S. Pelcyger, Native American Rights Fund, Boulder, Colo., for amicus curiae in No. 71-1927.
    George Forman, Oakland, Cal. (argued), Monroe E. Price, Los Angeles, Cal., for appellant in No. 72-1256.
    Ray T. Sullivan, Jr., County Counsel, and Steven A. Broiles, Deputy County Counsel (argued), Riverside, Cal., for appellees in No. 72-1256.
    Russell W. Bledsoe, Los Angeles, Cal. (argued), and Hubert C. Swanson, Pla-centia, Cal., for appellant in No. 71-2043.
    Ray T. Sullivan, Jr., County Counsel, and Steven A. Broiles, Deputy County Counsel, (argued), of Kinkle, Rodiger, Graf, Dewberry & Spriggs, Riverside, Cal., Robert L. Meyer, U. S. Atty., and Eva R. Datz, Asst. Atty. Gen., Washington, D.C., Kent Frizzell, Asst. Atty. Gen., Robert S. Lynch, and Edmund B. Clark (argued), Washington, D.C., for appellees in No. 71-2043.
    Kent Frizzell, Asst. Atty. Gen., Jacques B. Gelin and Dirk D. Snel, Attys., Washington, D.C., for amicus curiae in Nos. 72-1256 and 71-2043.
    Before BROWNING and TRASK, Circuit Judges, and MURPHY, District Judge.

       Honorable Thomas F. Murphy, Senior United States District Judge, Southern District of New York, sitting by designation.

   MURPHY, District Judge:

Each of these three appeals is from a separate judgment of the United States District Court of California, the first from the Southern District, the other two from the Central District. The appeals were consolidated for argument, since each purported to present a similar legal issue, viz., whether ordinances of Riverside and San Diego Counties relating to gambling, building and outdoor festivals are applicable to Indian reservations within those counties by virtue of Public Law 280 by which Congress, in 1958, granted to several states, including California, civil and criminal jurisdiction over Indian reservations. 67 Stat. 588; 18 U.S.C. § 1162; 28 U.S.C. § 1360.

There is, however, in each appeal a vexing initial question of jurisdiction either of this Court or the District Court. Firstly, we will consider such a question in Rincon.

In Rincon, the Rincon Band of Mission Indians, with a governing body duly recognized by the Secretary of Interior, sought a declaratory judgment and in-junctive relief from the enforcement on its reservation of a San Diego gambling ordinance. The reservation is located within an unincorporated area of San Diego County, California, and held in trust by the United States. Jurisdiction was asserted under 28 U.S.C. §§ 1331 (federal question), 1362 (Indian Tribes), and 2201 (declaratory judgment).

The San Diego ordinance has been in effect since 1960 and prohibits the use of property for gambling purposes and betting on card games, such as draw poker. On October 1, 1970, the Rincon Band adopted a tribal ordinance authorizing the establishment of a card room on the reservation where certain card games not prohibited by state statute could be played. The revenue derived therefrom would be for the benefit of the Band.

On cross motions for summary judgment the District Court (Turrentine, J.), in a reasoned opinion, granted the motion of the defendants. In substance, it found (a) that the county gambling ordinance was a state law within the meaning of Public Law 280, and (b) that such ordinance was not an encumbrance on trust property or a regulation of the use of trust property in any manner inconsistent with any federal statute. (Rincon Band of Mission Indians v. County of San Diego, 324 F.Supp. 371 (S.D.Cal.1971).

No consideration was given to the question nor was it briefed, i. e., whether the “case or controversy” requirement of Article III of the Constitution is satisfied by the general allegation of a threat of enforcement against the Rincon Band of Mission Indians or its members of the county gambling ordinance.

Accordingly, we detail the relevant facts contained in the affidavits and exhibits that were before the District Court on the motions for summary judgment.

On October 1, 1970, the plaintiff, through its tribal council, passed a tribal ordinance permitting limited gambling activities not prohibited by the Penal Code of the State of California. The ordinance is described as “An ordinance of the Rincon Band of Mission Indians, Rincon Reservation, to provide for the authorization and establishment of a card room on the Rincon Reservation, Valley Center, California.” The purpose of the ordinance is “to remove any possible question as to the propriety of tribal members participating in traditional tribal games of chance and to encourage the economic development and progress of the Rincon Indian Reservation” through the establishment of a tribally run card room.

“The people of the Rincon Reservation have regularly held fiestas each year in order to raise funds for tribal development. At various times, activities at these fiestas included traditional tribal games of chance, and often many non-Indians would come to the fiestas and participate in these games. Several persons have been arrested for gambling ,at our fiestas.” (Affidavit of Frank Maz-zetti, Jr., Acting Chairman o£.the Rincon Band of Mission Indians).

On October 8, 1970, in a letter to the County of San Diego’s counsel, the Band’s attorneys alleged that several members of the Rincon Band were informed by representatives of the San Diego County Sheriff’s Department that under the county gambling ordinance all gambling in unincorporated areas of the county was illegal and that the ordinance would be enforced against persons on the Rincon Reservation.

In that letter of October 8th and in subsequent correspondence the Band’s attorneys requested a written statement of county policy as to the county’s jurisdiction to enforce its gambling ordinance on the Rincon Reservation.

On October 23, 1970, the county sheriff, defendant J. C. O’Connor, replied that “ * * * State law, as well as the County ordinance, is quite specific relative to gambling, and all of the laws of San Diego, State, Federal and County, will be enforced within our jurisdiction”, and that “ * * * we feel that the laws of the State and the County are not made for a few, but meant to include everyone, and they shall be administered in that manner.”

All will agree that federal courts may act only in the context of a justiciable case or controversy. Benton v. Maryland, 395 U.S. 784, 788, 89 S.Ct. 2056, 23 L. Ed.2d 707 (1969); Muskrat v. United States, 219 U.S. 346, 356, 31 S.Ct. 250, 55 L.Ed. 246 (1911).

Recently the Supreme Court, in a declaratory judgment action, restated the test of justiciability: “The test to be applied of course, is the familiar one stated in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941): ‘Basically the question in each case is whether * * * there is a substantial controversy, between the parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.’ ” Lake Carriers Ass’n. v. MacMullan, 406 U.S. 498, 506, 92 S.Ct. 1749, 1755, 32 L.Ed.2d 257 (1972).

Our duty, therefore, is to resolve whether there is a substantial controversy between the Rincon Band of Mission Indians and the County of San Diego and its sheriff of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

The Rincon Band claims that its members were under a threat of prosecution if they proceeded with plans to establish and maintain a gambling facility on the reservation.

We are satisfied that in the present case the threat is clearly of a general nature, and from the record it cannot be determined if there has been a history of prosecution or non-prosecution under the county ordinance. The record indicates that the threat consisted of appellant’s allegations that members of the Sheriff’s Department informed a few members of the Band that all gambling is illegal under the county ordinance, and Sheriff O’Connor’s response to the Indians’ inquiry that the state and county laws are specific as to gambling and all the laws of the county would be enforced within his jurisdiction. Similar threats in Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754, 6 L.Ed.2d 989 (1961) (“* * * in the course of his public duty he [the state’s attorney] intends to prosecute any offenses against Connecticut law, and that he claims that use of and advice concerning contraceptives would constitute offenses”), and in United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947) (possible interference with plaintiffs’ rights by the Civil Service Commission under its rules), failed to meet justiciability requirements.

Our brother Browning feels that Poe and United Public Workers are distinguishable. In Poe the statute prohibiting the use of contraceptive devices and giving medical advice in the use of such devices was three-quarters of a century old. In Rincon the statute was enacted in 1960, certainly enough time to establish a policy of enforcement or nonen-forcement, particularly in the light of the gambling activities at the annual fiestas held at the reservation. Judge Browning’s position is that there is nothing to indicate that the Rincon ordinance was not being enforced. The burden, however, was on the plaintiff to show by affidavit that the statute was being enforced. It failed in this regard. The only fact before the District Court was a general threat from the Sheriff, not much different than the allegation in the Poe complaint quoted above. As Mr. Justice Frankfurter said of such allegation: “The lack of immediacy of the threat described by these allegations might alone raise serious questions of non-jus-ticiability of appellants’ claims. See United Public Workers v. Mitchell, 330 U.S. 75, 88, 67 S.Ct. 556, 91 L.Ed. 754.” Poe v. Ullman, supra, 367 U.S. at 501, 81 S.Ct. at 1754.

With reference to United Public Workers, Judge Browning suggests that there was a lack of a threat of enforcement. In United Public Workers there was, in fact, a threat of enforcement albeit a general threat. Mr. Justice Reed, in describing the threat, said: “No threat of interference by the Commission with rights of these appellants appears beyond that implied by the existence of the law and the regulations.” 330 U.S. 75 at 91, 67 S.Ct. 556 at 565, 91 L.Ed. 754. He described them further:

“The threats which menaced the affiants of these affidavits in the case now being considered are closer to a general threat by officials to enforce those laws which they are charged to administer * * * , than they are to the direct threat of punishment against a named organization for a completed act that made the Mail Association [Railway Mail Association v. Corsi, 326 U.S. 88, 65 S.Ct. 1483, 89 L.Ed. 2072] and the Hill [Hill v. Florida, 325 U.S. 538, 65 S.Ct. 1373, 89 L. Ed. 1782] cases justiciable.” Id. at 88, 67 S.Ct. at 564.

The threat in Rincon was of no greater specificity or immediacy.

Although Sheriff O’Connor asserted that he had been and was then “enforc- \ ing the card room and gambling ordinances to all persons equally in the unincorporated areas of the county”, there is no proof or suggestion of any specific instances of prosecution under the ordinance. While it is true that appellants have alleged that at their annual fiestas arrests were made, it is nevertheless unclear as to whether the arrests were for violations of the county ordinance or violations for some other reason, and whether they were Indians or non-Indians does not appear. Accordingly, it can hardly be said on this record that there was a history of prosecution under the San Diego gambling ordinance.

Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), one of last year’s abortion decisions by the Supreme Court, is not to the contrary. In that case the physician-appellants were found to have presented a justiciable controversy. The Court said:

“ * * * The physician is the one against whom these criminal statutes directly operate in the event he procures an abortion that does not meet the statutory exceptions and conditions. The physician-appellants, therefore, assert a sufficiently direct threat of personal detriment. They should not be required to await and undergo a criminal prosecution as the sole means of seeking relief. Crossen v. Breckenridge, 446 F.2d 833, 839-840 (CA6 1971); Poe v. Menghini, 339 F.Supp. 986, 990-991 (Kan.1972).” 410 U.S. at 188, 93 S.Ct. at 745.

The Sixth Circuit, in finding a case or controversy to be present in Crossen, said that it was not a case “in which there is an apparent state policy of non-enforcement of a criminal statute making its ‘mere existence * * * insufficient grounds to support a federal court’s adjudication of its constitutionality * * * ’ Poe v. Ullman, 367 U.S. 497, 507, 81 S.Ct. 1752, 1758, 6 L.Ed.2d 989.” 446 F.2d at 838. The court found that there was “an actual threat of pros-eeution for performing abortions” because of the history of prosecution under the statute. Also, the physician-plaintiff alleged that he was unable to practice medicine to the best of his professional judgment and ability because of the criminal statute and that he was deterred and hindered in treating patients asking for abortions, thus claiming an interference with the rights of the pregnant women coming to him for treatment. In Rincon, the record does not indicate that there is a policy of enforcement of the county ordinance ñor do plaintiffs allege actual interference with fundamental rights as does the plaintiff in Crossen.

In Poe v. Menghini, supra, the court found prosecution to be imminent because of a letter sent to the hospital advising them to cease performing abortions and because of evidence showing an ongoing investigation of the hospital, including harassment and coercion of patients leaving the hospital. Poe is distinguishable from Rincon, in which the record cannot support a finding of imminent prosecution.

Also, in Doe v. Bolton the Supreme Court found that the Georgia statute was “recent and not moribund” and the successor to another Georgia statute under which physicians were prosecuted. Again, Rincon is distinguishable, since no history of prosecution has been shown. Cf. Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

Judge Browning relies on Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), which concededly we cannot distinguish. Perhaps it is a special case involving First Amendment issues that makes it sui generis. In Ep-person plaintiff, a teacher, challenged an anti-evolution statute. She was not threatened with prosecution, and there was no record of any prosecution under the statute. The statute may have been “more of a curiosity than a vital fact of life.” Id. at 102, 89 S.Ct. at 269. In any event, the most recent pronouncement by the Supreme Court reenforces our opinion that Epperson is not controlling and that Rincon does not present a case or controversy. See, O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

We think it abundantly clear that the general threat of enforcement of the San Diego ordinance and the absence of any arrests for violating such ordinance are insufficient to meet the case or controversy requirements of Article III of the Constitution and the “actual controversy” requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201, and any decision in such circumstances would lack sufficient immediacy and reality.

Judgment reversed, and complaint dismissed.

In Ricci there is a similar question of justiciability. Ricci, an Indian woman with an allotment within the Pechanga Reservation in the County of Riverside, had almost completed the construction of a house on her allotment when the defendant’s agents posted the house with a notice calling attention to the requirement of a Riverside County ordinance that there be a building permit, and a subsequent notice served on plaintiff’s husband to obtain a building permit or face criminal prosecution. In addition to failing to secure a building permit, Ricci had failed to comply with the Riverside County Building Code requiring galvanized pipe be used in the plumbing system and that a portion of such pipe be wrapped in a protective covering.

Thereupon Mrs. Ricci instituted an action in the District Court of California, Central District, for an injunction restraining the County of Riverside from requiring a building permit and for a declaratory judgment that Riverside County Building Code (Ordinance No. 457) was not applicable to a building on Indian land held in trust by the United States. Jurisdiction was claimed pursuant to 28 U.S.C. § 1331(a), which provides:

“(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum, or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.”

A bench trial was had exclusively on affidavits, a stipulation of facts, and exhibits. There was no testimony.

Judgment was entered on September 9, 1971, (1) enjoining defendants from requiring plaintiff to obtain a building permit and (2) declaring the Riverside County Building Code did apply to plaintiff and the Pechanga Indian Reservation. Plaintiff appeals from the entire judgment and not that part of the judgment, as she states in her brief, which made the declaration of the applicability of the Riverside County Building Code.

United States, in its amicus brief, has suggested “since Mrs. Ricci’s immediate grievance, as expressed in her complaint and brief, related to her ability to build her home free of county control, she has substantially prevailed in the District Court. Amicus therefore submits that the question of Riverside County’s powers to regulate other construction on Elizabeth Ricci’s trust allotment is purely artificial and hypothetical on the present record and therefore moot in this case at this time.” In California v. San Pablo & T. R. R., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893), the Supreme Court held California’s action for taxes moot after the defendant paid them, despite the fact that the state still wished a decision on the merits and other eases turned, by stipulation, on the outcome of this one. It held:

“[T]he state has obtained everything that it could recover in this case by a judgment of this court in its favor. The duty of this court, as of every judicial tribunal, is limited to determining rights of persons or of property which are actually controverted in the particular case before it. When, in determining such rights, it becomes necessary to give an opinion upon a question of law, that opinion may have weight as a precedent for future decisions. But the court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it.” 149 U.S. at 314, 13 S.Ct. 878.

More than three years have gone by, and we have not been advised that any prosecution has been instituted by the county against Mrs. Ricci for any violations of the Building Code. We hold that whatever threat there was of prosecution because of other possible violations of the Building Code does not create a substantial controversy of sufficient immediacy and reality to warrant consideration of that part of the judgment below declaring the Riverside County Building Code applied to the plaintiff and the Pechanga Indian Reservation. See our discussion in Rincon, supra, pp. 5-6. Mrs. Ricci’s appeal, therefore, is dismissed as moot. Having arrived at that conclusion, “we are precluded from considering any other issues presented for review” (Black-mun, J., concurring in O’Shea v. Littleton, supra, 414 U.S. at 504, 94 S.Ct. at 680.

Although no one has raised the issue, we call to the District Court’s attention the matter of its own jurisdiction.

Under the federal question jurisdiction, 28 U.S.C. § 1331, one of the two requirements for jurisdiction is that the matter in controversy be more than $10,000.

We explain in Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 654 (9th Cir. 1966), what the “matter in controversy” means:

“By ‘matter in controversy’ is meant the subject of litigation, the matter upon which the issue is brought and issue is joined. Smith v. Adams, 130 U.S. 167, 175, 9 S.Ct. 566, 32 L.Ed. 895. The value of the right sought to be gained determines the amount in dispute. Federated Mutual Implement & Hardware Insurance Co. v. Steinheider, 8th Cir., 268 F.2d 734, 738.”

Cf., Packard v. Banton, 264 U.S. 140, 142, 44 S.Ct. 257, 68 L.Ed. 596 (1924).

An examination of every affidavit, exhibit and stipulation in the record reveals only two instances where money is mentioned. On page 10 of the affidavit of plaintiff she states, in part, that the material for the building of the home cost $4,000.

The amount in controversy is specifically denied by defendant’s answer (Rec. p. 187, par. 1). However, there is a stipulation signed by the attorneys for the parties, dated the blank day of June, 1971 and filed in the court below on July 15, 1971, which reads as follows:

“II
“JURISDICTION AND VENUE
“Federal jurisdiction and venue for the trial of this matter is present on the following grounds:
“a) Jurisdiction of this court as to action No. 71-1134-EC is conferred by and founded upon 28 U.S.C. § 1331 in that this is an action arising under the Constitution, laws or treaties of the United States and the value of the rights sought to be protected exceeds Ten Thousand Dollars ($10,000.00) exclusive of interest and costs. # * -X- »

It is hornbook law that jurisdiction of a District Court cannot be stipulated to by the parties, and that the court sua sponte must satisfy itself that jurisdiction exists. California v. La Rue, 409 U.S. 109, 112-113 fn. 3, 93 S. Ct. 390, 34 L.Ed.2d 342 (1972); Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 79 L.Ed. 338 (1934); Continental Ins. Co. of N. Y. v. Cotten, 427 F.2d 48, 51 (9th Cir. 1970); Canadian Indemnity Co. v. Republic Indemnity Co., 222 F.2d 601, 603 (9th Cir. 1955); Law of the Federal Courts, Charles Alan Wright (1970), § 66.

There being no proof that the matter in controversy exceeded $10,000, there was no jurisdiction of the District Court. The prayer for a declaratory judgment fails, too, since an action for declaratory judgment has no jurisdictional basis per se. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1957); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617 (1937).

In Madrigal, the Indian plaintiff sought to enjoin the captioned defendants from enforcing a temporary restraining order issued by the Superior Court of California. Such order was issued on August 12, 1970, on Riverside County’s ex parte petition to restrain not the plaintiff but one Ernest Sagado, Jr. and five hundred John Does from holding an outdoor festival on the Cahuilla Reservation on August 21, 22 and 23, 1970, until necessary licenses or permits were obtained from Riverside County. The order also temporarily restrained Sagado and the John Doe defendants from erecting structures for human use in preparation for the festival. Additionally, plaintiff Madrigal sought an injunction against the named defendants from enforcing or attempting to enforce in the future against her on her 340 acres of land in the Cahuilla Reservation Riverside County’s ordinances numbered 348, 457 and 522; she also prayed for compensatory and punitive damages. She alleged that the District Court had jurisdiction by virtue of the Fourteenth Amendment, Sections 1 and 5 thereof, and 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. §§ 1983 and 1985, and that the matter in controversy exceeded the sum of $10,000 exclusive of interest and costs.

Her complaint and amended complaint, ignoring the dictates of F. R.Civ.P. 8(e)(1), alleged in substance that she was a member of the Cahuilla Indian Tribe and was an “assignee by Cahuilla Indian custom” of 340 acres on the Cahuilla Indian Reservation near the town of Anza, Riverside County, California; and that such reservation land is owned in fee by the United States in trust for the Cahuilla Band of Mission Indians.

After numerous allegations professing her love and devotion to racial unity, Indian affairs, Indian culture, environment and the ubiquitous “ecology”, she alleged that for some time she had been negotiating with Ernest Sagado, Jr. for the operation of an Indian festival, “traditionally” called Fiesta de Vida, and Sagado started to make arrangements and construct facilities therefor. She then alleged that Riverside County ordinances numbered 457, 348 and 522, relating to structures for human use, zoning and outdoor festivals, are not applicable to her land on the Cahuilla Indian Reservation, and accused the defendants Sullivan, Riverside County’s counsel, and Seeley, McCall, Davis and Clark, four of the Supervisors of the Board of Supervisors of Riverside County, and Riverside County of conspiring against her in the following fashion:

As part of the plan to stifle criticism toward land developers who threaten the environment and ecology of Riverside County, to harass and persecute plaintiff in order to suppress her opposition to those who want to damage the environment and ecology of Riverside County and knowing that the Riverside County ordinances numbered 457, 348 and 522 were not applicable to Indian reservation land, they nevertheless agreed, under color of their official position and under subterfuge of enforcing such ordinances, they would deprive plaintiff of the “equal privileges and immunities under the laws” and injure her in person and in her property; depriving her of exercising her rights and privileges as a citizen to silence her criticism of destructive practices of land developers, to prevent her from communicating with others the necessity of preserving the environment and ecology of Riverside County and the necessity of protecting the rights of Indians and other minority groups. As a further part of the scheme she alleged that defendants McCall, Seeley and Davis met clandestinely and in violation of the Brown Act [sic] and agreed to use the ordinances for the purposes of denying to plaintiff funds that would be available from the festival for the communication of her beliefs in Indian culture, and concludes in haec verba:

“Plaintiff is informed and believes, and upon such information and belief alleges, that defendants, and each of them, intend once again to repeat the sordid chapters of California history which resulted in brutality and callousness closely approaching genocide against the California Indian population. Those Indians with courage enough to defend their culture and their loved onces [sic] against commercial exploitation are subject to the retaliation planned and perpetuated against them by defendants, as set forth herein.”

She then alleged that pursuant to such conspiracy the defendants secured without notice the temporary restraining order against Ernest Sagado, Jr., and that on August 14, 1970, Sagado applied for a writ of prohibition to the Fourth Appellate District Court of Appeal of the State of California to prohibit the Superior Court for the County of Riverside from enforcing such order on the land of the plaintiff, which application she alleges was denied on August 17,1970.

Thereafter, Madrigal instituted this action on August 24, 1970, the day after the festival was to have ended.

After hearings on plaintiff Madrigal’s application for a temporary restraining order, preliminary injunction and permanent injunction, the District Court entered judgment on February 16, 1971 dismissing the complaint. The appeal presently before this Court is from that judgment.

It was during these hearings that the Riverside County action in the Superior Court of California was removed by the defendant Sagado to the District Court, but during the course of the hearings on Madrigal’s application for an injunction it was remanded to the state court. No appeal has been taken therefrom.

The complaint, on its face, readily suggests a number of complex jurisdictional questions, but in view of the evidence submitted at the hearings and our conclusion that the District Court lacked jurisdiction, we need not become involved in a jurisdictional thicket. The problems would be substantial: such as whether a state civil action comes within the applicability of the Federal Anti-injunction Statute, 28 U.S.C. § 2283, in an action for an alleged conspiracy to violate the plaintiff’s civil rights, or whether the teaching of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), of federal abstention and deference to state courts applies. See, Gibson v. Berryhill, 411 U.S. 564, 573-576, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973); Burger, Ch.J., concurring, in Mitchum v. Foster, 407 U.S. 225, 243-244, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); and whether plaintiff has standing to enjoin a state action in which she is not a party; see Linda R. S. v. Richard D., 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L.Ed.2d 536 (1973), where the Supreme Court said:

“Although the law of standing has been greatly changed in the last 10 years, we have steadfastly adhered to the requirement that, at least in the absence of a statute expressly conferring standing, federal plaintiffs must allege some threatened or actual injury resulting from the putatively illegal action before a federal court may assume jurisdiction. See e. g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-167, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972); Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Cf. Laird v. Tatum, 408 U.S. 1, 13, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972).” (Footnotes omitted.) ;

and whether some defendants are “persons” under 42 U.S.C. § 1983 or whether some or all have immunity.

Accordingly, we turn to what the plaintiff proved as distinguished from what she alleged. This is important because appellant’s brief disregards both the pleadings and the proof; refers to exhibits not offered or received in evidence; and refers to a rule of practice (probably Cal.Civ.Pro.Code, § 446) not found in the Federal Rules of Civil Procedure.

To begin, it is an astounding fact that out of 447 pages of the transcript of four days of hearings on plaintiff’s application for a temporary restraining order, a preliminary injunction and permanent injunction, only 157 pages are devoted to testimony, and of that number 116 pages relate to plaintiff’s testimony and her five witnesses.

Since the essence of plaintiff’s claim for a permanent injunction is the alleged conspiracy by most of the defendants to deprive plaintiff of her civil rights, it is a shocking revelation to discover that she offered not one word of testimony to substantiate such a charge. In addition to her own testimony and that of five witnesses, including the defendant County’s trial counsel, the record is absolutely barren of any proof of any concert of action by defendants to “stifle criticism toward land developers” ; “to harass and persecute plaintiff in order to suppress her opposition to those who want to destroy the environment and ecology of Riverside County”, “or knowing the Riverside County ordinances numbered 457, 348 and 522 were not applicable to Indian reservations they nevertheless agreed under color of their official position * * * they would deprive plaintiff of the equal privileges and immunities under the law”, etc. etc.

Plaintiff’s proof at trial related to the “lease of her property” on the Cahuilla Reservation to Ernest Sagado, Jr. and his uncle, Joseph Sagado, as a site for holding the festival, which by prior agreement with plaintiff was in turn subleased to one Nick Avenetti, who was not a member of the Cahuilla Band. The written lease and sublease were for a term of 90 days, and the consideration running to the lessor was $10,000. It was, however, not approved by the Bureau of Indian Affairs as was required. 25 C.F.R. § 131.1 et seq. (1961). Not surprising, none of the, three witnesses, including the plaintiff, who testified about the lease, produced the original or a copy. It was agreed, however, that the lease expired early in August 1970. Plaintiff testified that after the lease terminated it was she who was putting on the festival, assisted by Ernest Saga-do, Jr.

There was a conflict in the evidence presented by plaintiff and her witnesses as to whether such a lease needed the approval of the Tribal Council. It was agreed, however, that permission to hold the festival was sought, of 'the Council, which voted 22 to 4 against having the festival and also voted to ask the Sheriff of Riverside County to prevent it. Plaintiff testified that she was a Cahuil-la Indian and “owned land on the Reservation having inherited it from her father who was an assignee”. It was her testimony, too, that the platform and ra-madas and the well that were being constructed were halted when the temporary restraining order was obtained by Riverside County. She denied receiving any consideration for the lease from the Sagados, and testified that she did not contract with anybody to construct any improvements on the property; she had no relationship with any contractor or paid anyone any money; had no idea how many people were expected to attend the festival or the price of the tickets. One witness, Ernest Sagado, Jr., testified that he hoped for an attendance of 15,000 people at $15 a ticket.

There was testimony that arrangements were being made for 25 to 30 rock bands and that advertisements were placed in the Los Angeles Free Press. There was testimony by one of plaintiff’s witnesses, too, that the Fiesta de Vida was not a traditional fiesta and had no religious significance.

The District Court’s findings of fact, although not binding because of our conclusion of its lack of jurisdiction, are substantially as we have herein outlined except it found, in Finding 15, “The allegations of Plaintiff’s Amended Complaint, which are inconsistent with the findings hereinbefore set forth, are false.” (Emphasis ours.) We should add that the findings were drafted by the defendants’ counsel and adopted by the court, a practice which has been strongly disapproved. United States v. El Paso Natural Gas, 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

Since no conspiracy mentioned in § 1985 of Title 42 U.S.C. or a conspiracy to violate 42 U.S.C. § 1983 was proved or attempted to be proved, appellant’s pleaded claim of federal jurisdiction pursuant to 28 U.S.C. § 1343, the jurisdictional counterpart of 42 U.S.C. §§ 1983 and 1985, must fail. The same is true for jurisdiction alleged under 28 U.S.C. § 1331 (federal questions), since there was no proof that any defendant, singularly or in concert with one or more other defendants, subjected or caused to be subjected the plaintiff to the deprivation of any rights, privileges or immunities secured by the Constitution or the Fourteenth Amendment. Even if there was such proof, there was no proof that the matter in controversy exceeded $10,000, exclusive of interest and costs.

Accordingly, the judgment of the District Court dismissing the complaint is affirmed on the ground that the District Court had no jurisdiction of the subject matter. Fed.Rules Civ.Proc. 12(h)(3).

BROWNING, Circuit Judge:

• I concur except as to Rincon Band of Mission Indians v. County of San Diego, No. 71-1927. The controversy in Rincon is as real and immediate as those in Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), and United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), are distinguishable. Unlike Poe v. Ullman, Rincon involves a challenge to a fairly recent ordinance (effective April, 1960). There is nothing to indicate the ordinance was not being enforced. On the contrary, the sheriff stated, though perhaps not as directly as he might, that the ordinance was being enforced and would continue to be. The holding in United Public Workers v. Mitchell rested not only on a lack of a threat of enforcement but also on plaintiffs’ failure to specify the kinds of proscribed political activity they intended to engage in. As the Supreme Court noted, the plaintiffs’ “generality of objection [was] really an attack on the political expediency of the Hatch Act, not the presentation of legal issues.” 330 U.S. at 89, 67 S.Ct. at 564.

      . Card Rooms and Gambling, San Diego County Code, Title 3, Div. 7, Ch. I, §§ 37.101-37.105.

      . The amended complaint was filed late in the proceeding at the urging of the District Court in order to add as parties defendants the United States by its Secretary of the Interior and the Cahuilla Band of Indians. After the plaintiff complied by bringing in the United States and some fifty-nine named Indians, such defendants who had appeared were dismissed from the case on motion of the United States Attorney. No appeal was taken,

      . Probably Cal.Gov’t. Code, §§ 54950 et seq.

      . The hearings took place on August 31, 1970, September 1, 1970, September 28, 1970 and January 25,1971.


source: Caselaw Access Project

author: FERGUSON, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, and Alamo Land and Cattle Co., Inc., Defendant-Appellee, v. 2,562.92 ACRES OF LAND, MORE OR LESS, situate IN YUMA AND MOHAVE COUNTIES, STATE OF ARIZONA, Defendant-Appellant.
    No. 72-2628.
    United States Court of Appeals, Ninth Circuit.
    March 28, 1974.

      Peter C. Gulatto, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for defendant-appellant.
    James M. Videan, Phoenix, Ariz. (argued), William C. Smitherman, U. S. Atty., Kent Frizzell, Asst. U. S. Atty., Lands & Natural Resources Div., U. S. Dept, of Justice, Washington, D. C., J. Gordon Cook, of Renaud, Cook, Miller & Cordova, Phoenix, Ariz., for plaintiff-appellee.
    Before DUNIWAY and WALLACE, Circuit Judges, and FERGUSON, District Judge.

       The Honorable Warren J. Ferguson, United States District Judge for the Central District of California, sitting by designation.

   OPINION

FERGUSON, District Judge:

This is an appeal by the State of Arizona from a judgment in a condemnation proceeding awarding the Alamo Land and Cattle Co., Inc. monetary damages for its leasehold interests. We reverse.

The United States filed a condemnation action in the district court. Included in the property sought to be condemned were two parcels designated as tracts 304 and 305.

Those tracts are a part of the grant to the State of Arizona by the United States under the New Mexico-Arizona Enabling Act (Act of June 20, 1910, 36 U.S.Stat. 557, as amended June 2, 1951, 65 Stat. 50.) The lands were granted for the support of public schools and are subject to the restrictions set forth in § 28 of the Act, A.R.S.

Prior to the condemnation action the tracts had been leased by Arizona to Alamo under a ten year grazing lease.

After the filing of the action, Arizona and Alamo stipulated with the United States that the full just compensation for the taking of the two tracts, together with all improvements thereon, was the sum of $118,620.

Thereafter a distribution hearing was held by the district court. At that hearing the only parties who appeared claiming an interest in the award were Arizona and Alamo. Alamo claimed a com-pensable leasehold interest in the land as well as a compensable interest in the improvements. Arizona conceded that Alamo was entitled to receive the value of the improvements which Alamo had constructed on the property but claimed that Alamo had no right to participate in the award for any land value.

After the hearing, the district court awarded Arizona the sum of $57,970 for its fee interest in the property and awarded to Alamo the sums of $3,600 for its improvements and $57,050 for its present leasehold interest as well as reasonably prospective future leasehold interest. We hold that Alamo is entitled only to the value of its improvements.

The Enabling Act and Section 28 are described and interpreted in Lassen v. Arizona Highway Dept., 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967). As stated therein “the Act described with particularity the disposition Arizona may make of the lands and of the funds derived from them. . . . ”' Furthermore, “the Act imposes two sanctions upon transactions which fail to satisfy its requirements. First, § 28 provides broadly that trust lands must be ‘disposed of in whole or in part only in manner as herein provided . . .’It adds that ‘Disposition of any of said lands ... in any manner contrary to the provisions of this Act, shall be deemed a breach of trust.’ Finally, it provides that ‘Every sale, lease, conveyance, or contract of or concerning any of the lands hereby granted or conferred . not made in substantive conformity with the provisions of this Act shall be null and void’ . . . 385 U.S. 462, 87 S.Ct. 586.

Arizona accepted the lands pursuant to Article X of its Constitution, A.R.S. Section 1 of that article provides that all lands transferred pursuant to the Enabling Act “shall be by the State accepted and held in trust to be disposed of in whole or in part, only in the manner as in said Enabling Act . . . provided

The State of Arizona has argued that Alamo is not entitled to any compensation except for its improvements by reason of the following:

1. The lease specifically provided that:

a. It was made subject to the laws of Arizona.
b. In the event the State relinquished the property to the United States, then the lease shall be null and void as it may pertain to the land so relinquished.
c. No provision of the lease shall create any vested right in the lessee.

2. Sections 37-242 and 37-293 of the Arizona Revised Statutes restrict a lessee’s participation in the proceeds of a sale of public land to the value of improvements.

We do not find it necessary, however, to determine the rights of Alamo based upon these lease provisions or the state law.

Section 28 of the Enabling Act provides in part: “Nothing herein contained shall prevent ... (4) the Legislature of the State of Arizona from providing by proper laws for the protection of lessees of said lands, whereby such lessees shall be protected in their rights to their improvements (including water rights) in such manner that in case of lease or sale of said lands to other parties the former lessee shall be paid by the succeeding lessee or purchaser the value of such improvements and rights placed thereon by such lessee.” That provision and other provisions of Section 28 which provide (1) the lands shall be held in trust (2) can "be dis-' posed of only as set forth in the Act (3) the money proceeds shall be held in trust (4) no mortgage or encumbrance shall be valid in favor of any person, for any purpose, or any circumstance whatsoever and (5) no lands shall be sold for less than their appraised value, require this court to hold that the district court was in error in awarding Alamo a part of the appraised value of the land.

This holding is specifically required by Lassen where the Court stated “ [t] he Enabling Act unequivocally demands both that the trust receive the full value of any lands transferred from it, and that any funds received be employed only for the purposes for which the land was given. . . . [I]t requires that before trust lands . . . are offered for sale they must be ‘appraised at their true value’ and ... ‘no sale or other disposal . . . shall be made for a consideration less than the value so ascertained. . . . ’ ” 385 U.S. 466, 467, 87 S.Ct.-588, 589. (Emphasis added.)

The Court then states “All these restrictions [in the Enabling Act] in combination indicate Congress’ concern both that the grants provide the most substantial support possible to the beneficiaries and that only those beneficiaries profit from the trust.” 385 U.S. 467, 87 S.Ct. 945.

The Fifth Amendment provides that private property may not be taken for a public use without just compensation. See United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973). That provision would guarantee to Alamo the right to compensation if they had obtained from Arizona a property right superior to or equal to the trust. However, under the Enabling Act, Arizona, as trustee, had no power to grant a compensable property right to Alamo. Alamo therefore never acquired a property right for which it is entitled to compensation.

Alamo contends that Nebraska v. United States, 164 F.2d 866 (8th Cir. 1947) requires that school trust lands must be treated as any other private property and compensation for such lands taken by condemnation must be allocated or apportioned between the state and its lessee on the basis of their relative values. The court in that ease held that the apportionment of the fair market value of lands which had been granted to Nebraska by its Enabling Act “for the support of common schools” must be the general federal rule of compensation for condemnation. Under that rule, the cash award must be allocated or apportioned among the respective estates or interests on the basis of their relative values.

Nebraska v. United States, however, is not applicable here by reason of Section 28 of the Arizona Enabling Act as interpreted in Lassen. Furthermore, the Nebraska Enabling Act does not contain the express restrictions which are incorporated in the Arizona Act. United States v. 78.61 Acres of Land, 265 F. Supp. 564 (D.C.Neb.1967). Therefore Nebraska v. United States, supra, clearly is distinguishable.

The judgment of the district court awarding compensation to Alamo for its leasehold interests in the land is reversed, and the cause is remanded to the district court to enter a judgment in accordance with the provisions of this opinion.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lawrence McHALE et al., Defendants-Appellants.
    Nos. 73-1860, 73-1861.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 25, 1974.
    Decided April 8, 1974.

      Gerald M. Werksman, William J. Stevens, Chicago, Ill., for defendants-appellants.
    James R. Thompson, U. S. Atty., Michael D. Groark, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.
   PER CURIAM.

Defendants Lawrence McHale, James Traub, Chester Labiak, Daniel Vuletich, Henry Krauth, Sr., and August Krauth were indicted with three other persons not named as defendants for conducting an illegal gambling operation in violation of Illinois law and hence in violation of 18 U.S.C. § 1955. McHale, Traub and Labiak were convicted by a jury. Traub was placed on probation for 3 years and fined $1,500; Labiak was placed on probation for 2 years and fined $1,500; and McHale was placed on probation for 3 years.

On appeal the defendants contended (1) the wiretap order was tainted by information obtained through another wiretap declared illegal by this court; (2) the government failed to follow statutory authorization procedures in obtaining the wiretap order and the evidence obtained thereby; (3) the application for the wiretap order did not establish probable cause; and (4) the defendants did not conduct a 5-or-more persons gambling operation.

1. Prior illegal wiretap. In United States v. Roberts, 477 F.2d 57 (7th Cir. 1973), we held (a) that the content of communications intercepted on the telephone of Charles Bishop Smith was properly suppressed because neither the Attorney General nor any Assistant Attorney General specially designated by him authorized the wiretap applications and (b) that wiretap evidence directed against defendants “overheard on the property suppressed Smith wiretaps” was also properly suppressed.

The argument in the present case sought to extend Roberts a step farther inasmuch as none of the present defendants was overheard on the Smith wiretaps. Instead, the affidavit supporting the application for the wiretap recited in 3 of its 43 numbered paragraphs that Smith’s telephone had been tapped (par. 16), that through that tap it was learned that Smith and Leonard Turner exchanged 12 telephone calls with Robert Hayden Plummer (par. 17) and that in those 12 calls “line” information was exchanged and wagers or lay off “moves” were made. The affidavit further recited that through telephone company records it was determined (par. 13) that Dennis Michael Finn, one of the alleged participants not named as a defendant here, had made calls to Plummer. The telephone company records were obtained by an F.B.I. agent prior to the receipt of the information of the Smith-Plummer calls in the illegal wiretap (par. 13) and as the result of a tip re-eeived from an informant who had observed a Chicago bookmaker call telephone numbers used by Dennis Michael Finn and overheard the bookmaker exchanging line information and placing lay-off wagers.

The information from an informant that a known bookmaker called Finn’s number and exchanged line information and made lay-off wagers did tend to show that Finn and the defendants (as shown through the untainted paragraphs of the affidavit) were possibly involved in a gambling operation.

18 U.S.C. § 2515 provides in part that “[wjhenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence. . . .” (emphasis added). We held in Roberts that it was “no unusual extension of the scope of suppression under existing law to conclude that the wiretap evidence” obtained through overhearing the defendants on the illegal Smith wiretap was “derived” from that tap. In Roberts the prior illegal wiretaps “prompted” the wiretaps which this court suppressed, 477 F.2d at 60.

Here, the information from the proper sources was obtained prior to the information from the illegal wiretaps. If the tainted three paragraphs had not been in the wiretap application, the wiretap order could have still issued. There was sufficient information to find probable cause based on the untainted proper sources listed in the application. We do not, therefore, conclude that the evidence gathered under this lawful wiretap order (for which there was probable cause) was “evidence derived” from an unlawful wiretap order. This is the same principle which is applied in reviewing the issuance of search warrants where there is a question of whether there was sufficient probable cause to issue a warrant in which both tainted and untainted sources are set forth in the application. Clay v. United States, 246 F.2d 298, 304 (5th Cir.). cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Chin Kay v. United States, 311 F.2d 317, 321-322 (9th Cir. 1962); United States v. Sterling, 369 F.2d 799, 802 (3d Cir. 1966).

2. Authorization for wiretaps. John N. Mitchell filed his affidavit in this case to the effect that while he was the Attorney General of the United States he personally approved and initialed applications for the wiretaps eventually authorized. In Roberts, we held that authorizations were proper where the Attorney General personally approved the wiretap applications, as here.

3. Probable cause for issuance of wiretap orders. The district judge who authorized the wiretaps found that there was probable cause to believe that Finn, Traub, Labiak, and others were committing offenses involving the operation of an illegal gambling business in violation of 18 U.S.C. § 1955, that wire communications concerning those offenses would be obtained through interception and that the telephones tapped were being used in connection with the commission of those offenses. The defendants argued that the affidavit supporting the application for the taps did not establish the reliability of the informers or the accuracy of the information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The supporting affidavit relied upon eight confidential sources, telephone company records, law enforcement* records and surveillance by F.B.I. agents. The reliability of source 1 was based on information given on 15 previous occasions resulting in 33 successful gambling raids and 41 arrests; source 2 had provided information on a regular basis over a 6-year period resulting in the issuance of 5 search warrants and the arrest of 10 persons on local gambling charges; source 3 had furnished information resulting in the issuance of 3 search warrants and the arrest of 3 persons on local gambling charges; source 4 had furnished gambling information during the past three months which had been determined to be accurate by independent investigation by the F.B.I.; source 5 had furnished information resulting in the issuance of 4 local search warrants, 4 local gambling raids; and the arrest of 4 persons on gambling charges; source 6 had furnished information resulting in 6 local gambling raids in which 50 persons were arrested and charged with gambling violations; source 7 had furnished information about 2 bookmaking operations that were handling bets on sports events and horse races, resulting in the issuance of 2 local search warrants and 3 arrests for gambling offenses; and source 8 had furnished information which resulted in 5 raids and the arrests of 7 persons on local gambling charges.

In addition most of the information obtained from the 8 informants was based on their own personal knowledge and not upon hearsay. Finally, the information in the affidavit included documentation from records. The reliability of the informants and of the information received from them appeared to be well established and it strongly supported the issuing judge’s findings of probable cause.

'4. Conducting a 5-or-more persons gambling operation. 18 U.S.C. § 1955 applies to “[wjhoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business” which “involves five or. more persons.” The section “does not include the player in an illegal game of chance, nor the person who participates in an illegal gambling activity by placing a bet.” 1970 U.S.Code Cong, and Admin.News, p. 4029. Defendant McHale contended that he was a “lay off” bettor and although bets of this kind are made between bookmakers, he was not “conducting” a gambling operation nor was he part of a 5-man business.

The only exclusions intended by Congress were the individual player or bettor and not the professional bookmaker who also in the course of his business bets.

“Thus Congress’ intent was to include all those who participate in the operation of a gambling business, regardless [of] how minor their roles and whether or not they [are] labelled agents, runners, independent contractors or the like, and to exclude only customers of the business.” United States v. Becker, 461 F.2d 230, 232 (2d Cir. 1972). “As the House Committee Report stated, the term ‘conducts’ is broad enough to include both ‘high level bosses and street level employees.’ ” United States v. Hunter, 478 F.2d 1019, 1022 (7th Cir. 1973) (includes runners, telephone clerks, salesmen and a watchman as “conducting” a gambling operation).

Certainly the lay off-bettor is a more obvious target of § 1955 than runners, salesmen, clerks, and watchmen.

We affirm the convictions of the defendants.

Affirmed.


author: FERGUSON, District Judge: CHAMBERS, Circuit Judge

text:
    In the Matter of WING SING CHEW, Alleged Bankrupt, and Rose Wong Chew, Alleged Bankrupt. Howard B. CRITTENDEN, Jr., Petitioner-Appellant, v. Kal W. LINES, Receiver-Appellee.
    No. 72-2822.
    United States Court of Appeals, Ninth Circuit.
    March 28, 1974.
    Rehearing Denied May 16, 1974.

      A. Brooks Berlin (argued), San Francisco, Cal., for petitioner-appellant.
    Lawrence Goldberg (argued), of Glicksberg, Kushner & Goldberg, Robert E. Phelan of Rothschild & Phelan, San Francisco, Cal., for receiver-appellee.
    Patrick A. Murphy (argued), Charles E. Cooper, Eldon C. Parr, San Francisco, Cal., for amicus curiae.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and FERGUSON, District Judge.

       The Honorable Warren J. Ferguson, United of California, sitting by designation. States District Judge for the Central District

   OPINION

FERGUSON, District Judge:

This is an appeal from an order of the district court affirming on review the orders of a bankruptcy referee. We affirm.

The essential facts are:

1. On October 13, 1971, Mr. and Mrs. Chew executed a deed of trust and assignment of rents.

2. Under the deed, twenty-four (24) parcels of income producing real property in San Francisco, together with their contents, were transferred to Mr. Crit-tenden, their attorney, as trustee.

3. The deed provided that the purpose of the trust was to secure and pay the secured and unsecured creditors of the Chews in the order and amounts as the trustee determined from time to time and to return to the trustors the balance after a liquidation of the trust property. The trustee was granted full power to sell and convey the trust property.

4. On January 7, 1972, within four (4) months of the execution of the deed of trust, an involuntary bankruptcy petition was filed against the Chews by the Bank of America, the Federal Deposit Insurance Corporation and the Bank of Canton, claiming to be creditors in excess of $1,365,000.

5. The petition alleged as an act of bankruptcy among others the execution of the deed of trust.

6. On January 10, 1972, upon an ex parte petition of the three creditors, the bankruptcy referee appointed Mr. Lines as receiver to take charge of the property of the Chews and protect the interests of their creditors.

7. On January 13, 1972, the referee issued an order upon Mr. Crittenden to show cause why the property he obtained as trustee under the deed of trust should not be turned over to the receiver.

8. Mr. Crittenden filed a special appearance and objected to summary jurisdiction of the bankruptcy referee, claiming that the deed of trust did not constitute a general assignment for benefit of creditors in that Mr. and Mrs. Chew transferred only a part of their assets to him.

9. The referee held a hearing on the order to show cause on January 19, 1972 at which time Mr. Crittenden’s attorney asked for a continuance of the hearing.

10. The receiver informed the court that in order to meet payroll obligations he needed immediately the payroll bank account maintained by Crittenden.

11. The referee issued a turn over order with regard to the payroll bank account in favor of the receiver and continued the hearing on the remaining part of the receiver’s application.

12. The referee thereafter conducted an evidentiary hearing to determine whether the deed of trust constituted a general assignment for the benefit of creditors.

13. Crittenden claimed that the Chews owned additional properties not transferred under the deed of trust, consisting of

(a) the furniture contained in the hotels and other properties transferred under the deed,
(b) the residence of the Chews,
(c) life insurance policies,
(d) one of the properties described in the deed of trust was actually sold by the Chews just prior to recording the deed of trust.

14. The evidence before the receiver showed

(a) the Chews had assets of $11,456,490.72 of which $11,353,000 consisted of real property;
(b) all of their real property except their residence was included in the deed of trust. That residence was valued at $125,000 with encumbrances of $75,000 and was homesteaded;
(c) the Chews received only $9,928.-71 from the sale of the property included in the deed of trust, and from that amount Crittenden was paid $5,000;
(d) no evidence of the cash surrender value, if any, of any life insurance policies was given.

15. The referee found that the speculative testimony offered by Mr. Critten-den related to any assets still retained by the Chews was of insufficient probity to defeat the rights of the receiver and creditors, and issued a turn over order against Mr. Crittenden for the property and proceeds he received as trustee under the deed of trust.

16. Mr. Crittenden petitioned the district court for review of the orders of the referee. The district court determined that from the factual findings of the referee, approximately 95% of the alleged bankrupts’ total assets of $11,456,490.72 were transferred to Crit-tenden pursuant to the deed of trust and assignment of rents. The district court agreed with the referee that petitioner received “substantially all” of the alleged bankrupts’ assets.

The issue in this case is whether the execution of the deed of trust and assignment of rents constituted a general assignment made by a debtor for the benefit of his creditors. '

11 U.S.C. § 21(a) provides “Acts of bankruptcy by a person shall consist of his having ... (4) made a general assignment for the benefit of his creditors. . . .” A general assignment for the benefit of creditors constitutes an act of bankruptcy giving the bankruptcy court exclusive jurisdiction regardless of solvency of the alleged bankrupt. Wilder v. Century Carpet Co., 92 F.2d 175 (9th Cir. 1937).

If an act of bankruptcy has been created then pursuant to 11 U.S.C. § 11(a) (21) a bankruptcy court has jurisdiction to “Require . . . assignees for the benefit of creditors and agents authorized to take possession of or to liquidate a person’s property to deliver the property in their possession or. under their control to the receiver appointed. . . .” under the Bankruptcy Act. Adjudication of bankruptcy is not a prerequisite to the appointment of a receiver. 1 Collier on Bankruptcy H 2.24, -IT 2.78.

A receiver who has been appointed within four months of a general assignment made by a debtor for the benefit of his creditors has a right to obtain an order from the bankruptcy court in a summary proceeding, to turn over to him all money and property in his hands which belonged to his assign- or. A plenary suit is not necessary, and neither is an adjudication of bankruptcy. Matter of McCrum, 214 F. 207 (2nd Cir. 1914), Wasserman v. Driscoll, 282 F.2d 502 (1st Cir. 1960).

In order for a bankruptcy court to have summary jurisdiction, under the conditions set forth in In re McCrum, there must be:

1. A general assignment for the benefit of creditors of all or substantially all of one’s property,

2. made to another party in trust,

3. with power to sell and convey the property,

4. to distribute the proceeds of all the property among the creditors, and

5. to return the surplus, if any, to the debtor.

214 F. 207, 210.

The record clearly demonstrates that the deed of trust and assignment of. rents from the Chews to Crittenden clearly meet those five conditions. While the Chews still retained 5% of their total assets, that retention is not sufficient to cause the transfer to be-other than a general assignment for the benefit of creditors. The deed clearly revealed the attempt of the alleged bankrupts to arrange for the liquidation of their estate in a way contrary to the system established in the Bankruptcy Act and was therefore a general assignment for the benefit of creditors. Wohlschlaeger v. Duncan, 157 F.2d 933 (8th Cir. 1946).

The orders of the bankruptcy court in requiring Mr. Crittenden to turn over to the appointed receiver the assets transferred to him were proper. The alleged bankrupts transferred all, or virtually all, of their business assets and properties to Crittenden, their attorney, as trustee, retaining their heavily encumbered and exempt residence and little else. Mr. Crittenden as trustee was to liquidate the properties for the benefit of creditors of the alleged bankrupts, both secured and unsecured, and return the surplus, if any, to the alleged bankrupts. Mr. Crittenden was given complete discretion to pay creditors in such order and in such amounts as he might determine from time to time. He also was given authority to transfer property to or for the benefit of a single creditor in satisfaction of a specific obligation owed by the Chews. The entire transaction was an arrangement for the liquidation of the alleged bankrupt’s estate contrary to the bankruptcy laws.

The order of the district court is affirmed.

CHAMBERS, Circuit Judge

(concurring) :

While I concur in the opinion, I wish to record my objection to the handling of this bankruptcy case.

The receiver was appointed, as he had to be, “in aid of bankruptcy.” Yet without any adjudication of bankruptcy of the Chews, the receiver has sold, parcel by parcel, most of the debtors’ properties. (It appears 17 parcels have been sold.) This strange sequence must be accounted for by the fact that the debtors appear, after the receiver was appointed, to have aligned themselves with their banker, turning their backs on their former lawyer, Crittenden, and normally there is more that a banker can do for a debtor than a lawyer.

Even though no one was pressing, it is simply wrong to let a receiver proceed with a liquidation without an adjudication of bankruptcy.

I see an abuse of the federal bankruptcy power.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Garrett Brock TRAPNELL, Appellant.
    Nos. 522 and 888, Dockets 73-2071 and 74-1018.
    United States Court of Appeals, Second Circuit.
    Argued March 19, 1974.
    Decided April 10, 1974.

      Peter R. Schlam, Asst. U. S. Atty. (Edward John Boyd, V, U. S. Atty., for the Eastern District of New York, Raymond J. Dearie and Robert F. Katzberg, Asst. U. S. Attys., on the brief), for appellee.'
    Zelda Jonas, Hicksville, N. Y., for appellant.
    Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.
   LUMBARD, Circuit Judge:

After a trial before Chief Judge Mishler and a jury in the Eastern District, Garrett Trapnell was found guilty on May 16, 1973 on all three counts of an indictment charging him with aircraft piracy, 49 U.S.C. § 1472(i), interference with an aircraft flight crew, 49 U.S.C. § 1472(j), and possession of a firearm in the commission of a federal crime, 18 U.S.C. § 924(c)(2). Trapnell was sentenced to concurrent terms of life imprisonment for aircraft piracy, and twenty and ten years respectively on the other two counts. On appeal, he contends that highly prejudicial testimony of three government witnesses should not have been admitted into evidence and that he should have been granted a new trial on the basis of evidence discovered after his conviction and during the pendency of this appeal. We affirm.

At approximately 2:00 a. m. on January 28, 1972 Trapnell boarded TWA flight No. 2 in Los Angeles for a scheduled nonstop flight to New York. Almost three hours later, while the Boeing 707 aircraft, carrying 93 passengers and a crew of seven, was flying 600 miles per hour at an altitude of 37,000 feet, he walked into the first class lounge and handed stewardess Constance Tokarski a note indicating that the airplane was being hijacked and that she should follow instructions if she did not want to be hurt. With Miss Tokarski leading the way, Trapnell gained entrance to the cockpit, where he pulled a gun on the crew members and ordered them to follow his instructions. In the course of the next eight hours, Trapnell, in full control of the aircraft, engaged in negotiations with authorities on the ground in an effort to obtain $306,800 in cash, amnesty and political asylum in a foreign country, and the release of a friend, Jorge Padilla, incarcerated in a Dallas, Texas jail. Finally, at 11:30 a. m., while the aircraft was on a runway at Kennedy Airport in New York taking on a relief crew, F.B,I. agents overpowered Trapnell by shooting him and thereby brought the hijacking to an end.

Trapnell’s first trial in early January 1973 ended in mistrial after the jury reported that it was unable to reach a verdict. At his second trial, the subject of the present appeal, the government called Jorge Padilla as a witness during presentation of its case-in-chief. Padilla testified that Trapnell had instructed him on how to feign insanity while they were both patients at Jackson Memorial Hospital in Miami, Florida, for several weeks during 1966. Padilla attributed his subsequent success in having criminal charges dropped against him on the ground of insanity to these instructions from Trapnell.

Trapnell argues that Padilla’s testimony was improperly admitted since it was in no way probative of the crime with which Trapnell has been charged. The appellant, however, misconceives the purpose of this testimony. Although a defendant is presumed sane, once that presumption is challenged, the burden is on the government to establish the defendant’s sanity beyond a reasonable doubt. Davis v. United States, 160 U.S. 469, 484, 16 S.Ct. 353, 40 L.Ed. 499 (1895). Here, Trapnell’s attorney in his opening statement and in his cross-examination of the flight crew members, prior to Padilla’s taking the stand, made clear that the appellant’s defense would be insanity. Under the circumstances, it was entirely proper for the government to elicit testimony from Padilla which provided evidence that TrapnelPs defense of insanity was without substance and that he was employing it as a means of avoiding punishment for his criminal conduct. United States v. Driscoll, 399 F.2d 135 (2d Cir. 1968). The government was entitled to present this evidence so that the jury could properly evaluate Trapnell’s claims regarding his mental state and criminal responsibility. Moreover, the trial court carefully admitted Padilla’s testimony for this limited purpose.

Trapnell also challenges the admission of the rebuttal testimony of the government’s psychiatrist, Dr. David Abraham-sen. The essence of Dr. Abrahamsen’s testimony was that, on the basis of two examinations in October 1972 and a study of Trapnell’s past medical and family history, it was his opinion that the appellant was a malingerer who had acted as a “rational man” during the hijacking.

Trapnell argues that Dr. Abrahamsen’s testimony should not have been admitted since it violated the appellant’s fifth amendment right against self-incrimination and because he was not given the Miranda warning prior to his examination by the government psychiatrist or permitted to have his attorney present. In United States v. Baird, 414 F.2d 700 (2d Cir.), cert. denied, 396 U. S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1969), we held that once a defendant “puts in evidence the opinion testimony of his expert” as Trapnell did by having three psychiatrists testify on his behalf, “the 'Government has the right to have its expert examine the accused and to put in evidence his opinion testimony in rebuttal, and that the exercise of such right by the Government does not infringe the defendant’s right against self-incrimination.” Id. at 708. Statements made by an accused under such circumstances are verbal acts and are not protected by the fifth amendment. Id.

We also reject Trapnell’s claim that he had a right to have counsel present during his examination by Dr. Abrahamsen. In Baird, we held that there is no right to counsel at a psychiatric examination. Such an examination does “not constitute the kind of critical stage in the proceedings at which the assistance of counsel was needed or at which counsel could make a useful contribution.” Id. at 711. We recognized that the presence of counsel could very-well “destroy the effectiveness of the interview.” Id.

Trapnell’s further argument that he should have been given the Miranda warning has no merit. Since we have held that in this context the privilege against self-incrimination and the right to have counsel present do not apply, there would have been no point in requiring the government first to give him the Miranda, warning. Dr. Abrahamsen was authorized by court order to determine Trapnell’s responsibility at the time of the crime and addressed himself solely to this issue at trial. The defense was fully aware of Dr. Abrahamsen’s purpose. Moreover, Dr. Abrahamsen did not testify and could not have testified to any inculpatory statements by the appellant since Trapnell had told him that he did not remember the hijacking.

Trapnell also contests the propriety of the admission of the rebuttal testimony of a third government witness, Cyrus Berlowitz. Berlowitz testified that while working as an editor for True magazine in April 1971, Trapnell told him during an interview that he was capable of feigning insanity and thereby avoiding punishment. Berlowitz’s testimony was quite relevant to the issue of the appellant’s sanity, the only issue at trial, and was thus properly admitted for the limited purpose of shedding light on that issue.

Although Padilla had already testified on direct examination that the appellant had claimed that he could avoid punishment by feigning insanity, the trial judge had “wide discretion in permitting the introduction of evidence in rebuttal which might well have been brought out in the Government’s case in chief.” United States v. Lieblich, 246 F.2d 890, 895 (2 Cir. 1957). Since defense counsel had attempted to impeach Padilla’s credibility on cross-examination and to introduce evidence establishing Trapnell’s insanity, it was not improper for thé court to permit the government to introduce evidence in rebuttal tending to corroborate Padilla’s testimony. The several other arguments made by the appellant challenging the admissibility of the testimony of Padilla, Abrahamsen, and Berlowitz are without merit.

The appellant’s final contention is that the trial judge erred in denying his motion for a new trial. We do not agree. At a hearing before Chief'Judge Mishler on December 14, 1973, pursuant to remand by this court during the pen-dency of this appeal, Trapnell’s wife, Suzanne, testified that on June 9, 1973 at the Federal House of Detention in New York City, Padilla admitted to her that he had lied when he testified that Trapnell had instructed him on how to feign insanity. Herbert Sperling, an inmate at the detention center, also testified for the appellant that he had heard Padilla “yelling to [Mrs. Trapnell], telling her that he’s sorry. He was apologizing to her that he had lied about her husband,” suggesting that he had done so in the hope that the thirty-year sentence he was then serving , would be reduced. Sperling also testified, however, that he had not actually seen Padilla while he was speaking, that he had never had a conversation with him, and that he had previously heard his voice only two or three times. Sperling also stated that he had heard Padilla make these comments as Mrs. Trapnell was entering the visiting area, although Mrs. Trap-nell had stated that Padilla had spoken to her after she had seen her husband as she was leaving the visiting area.

Padilla testified at the hearing that he had seen Mrs. Trapnell that day, but he offered a different version of their encounter. He stated that she had approached him and asked: “Why did you do it?” to which he responded: “I just did what I felt was right, I told everything I knew.” Deputy Marshal McNeill, who was present at the time, testified that he recalled Padilla saying: “I had to do what was right.”

In denying Trapnell’s motion for a new trial, Judge Mishler, relying on United States v. Polisi, 416 F.2d 573, 576 (2d Cir. 1969), concluded that the evidence at the hearing could only impeach the credibility of Padilla and to that extent was cumulative and not material to the issue of the appellant’s sanity. At the trial, the defense had had ample opportunity to impeach Padilla’s credibility and had attempted to do so by bringing out his hostility to Trapnell, his prior criminal record, and his agreement with the government to testify in return for a ten-year reduction in sentence.

The trial judge also concluded that the newly discovered evidence was not “of such a nature that it would probably produce a different verdict in the event of a retrial,” United States v. Polisi, 416 F.2d at 577, especially since Padilla’s testimony had been fully corroborated by Berlowitz’s rebuttal testimony.

On this record, there was ample support for the denial of the motion for a new trial.

Affirmed.


author: COFFIN, Chief Judge.

text:
    Joseph LePAGE et al., Plaintiffs, Appellants, v. Philip J. PICARD, Respondent, Appellee.
    No. 73-1359.
    United States Court of Appeals, First Circuit.
    Argued March 6, 1974.
    Decided April 18, 1974.

      Evan T. Lawson, Boston, Mass., by appointment of the court, for plaintiffs, appellants.
    Barbara A. H. Smith, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Crim. Appellate Section, were on brief, for respondent, appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This is a consolidated appeal from dismissal of petitioners for writs of habeas corpus. Petitioners are serving life sentences pursuant to convictions, for first degree murder and armed assault with intent to rob, reached after a trial which began on February 4, 1965, in Massachusetts Superior Court. The hearing below was limited, by agreement of counsel, to the claim that the Superior Court denial of petitioners’ motion to suppress certain incriminating statements and their subsequent admission into evidence were violative of the Supreme Court’s holding in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The district judge ruled that the petitioners had failed to show by convincing evidence that the state court rulings were in error. 28 U.S.C. § 2254.

The statements in question took place while the petitioners were in police custody on the night of March 13 or in the early morning of March 14, 1964, before the decision in Escobedo had been reached. However, because the trial took place after the Supreme Court’s decision in June, 1964, Escobedo is applicable. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Counsel in support of the motion to suppress argued specifically that Escobedo had been violated, and that the confessions were involuntary. The Superior Court rejected the challenge:

“[0]n the evidence adduced at the voir dire . . . the constitutional rights of the defendants were not violated, and . . . the defendants were not prejudiced with respect to any such rights.
I find that so much of the oral admissions and statements made by either of the defendants of an incriminating nature to police officers and police officials at the police interrogation of them at the Cambridge Police Station the night of March 13 to 14, 1964 as constituted a confession by either of the defendants were given voluntarily and were neither coerced by the police nor induced by any promises made by the police and therefore that the same are to be received in evidence before the jury under appropriate instructions.”

In concentrating on the voluntariness issue, the Superior Court did not articulate the legal standards applied or facts found in determining whether other “constitutional rights” including the right to counsel had been violated. It is petitioners’ central contention that because the district court had reason to suspect the application of an incorrect constitutional standard, the requisite facts cannot be presumed to have been properly found and therefore that a mandatory habeas corpus hearing was required of the district court under Townsend v. Sain, 372 U.S. 293, 312-318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1966). If we accept the premise that a hearing was mandated it would follow that the district court incorrectly required the petitioners to prove by convincing evidence that the Massachusetts court was in error; preponderance of the evidence would be the appropriate measure. But we are not so persuaded and find that the district court held a discretionary habeas corpus hearing, properly requiring a showing by convincing evidence under 28 U.S.C. § 2254.

Petitioners ask us to infer from the state appellate court’s articulation of the Escobedo standard the application of an inappropriate rule by the trial court. It is the petitioners’ position that the Supreme Judicial Court held that “Escobe-do did not apply” and that therefore the district court, hearing the petitions for habeas, had reason to believe the Superi- or Court failed to apply Escobedo. This argument is premised on the following statement by the Supreme Judicial Court:

“The interrogation of the defendants occurred before the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (June 22, 1964). The trial (February 4 to 19, 1965) took place before the decision in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966). The Miranda decision, of course, need not be retroactively applied to this case. Johnson v. New Jersey, 384 U.S. 719, 726-735, 86 S.Ct. 1772, 16 L.Ed.2d 882. ... The Supreme Court in the Johnson case, 384 U.S. 719, 731-735, 86 S.Ct. 1772, recognized that police authorities, like the Cambridge police in the present case, ‘attempting to protect the privilege’ against self-incrimination, prior to the Escobedo and Miranda decisions, had ‘not been apprised . of the specific safeguards’ which emerged in those cases. That court also recognized that naturally enough, such police authorities may have ‘adopted devices which, although’ not complying fully with those safeguards, ‘were not intentional evasions of the requirements of the privilege.’ We think that the Johnson decision permits the State courts a reasonable range of discretion in sensible appraisal of police action taken prior to and in ignorance of the Escobedo decision. . . . That these defendants were repeatedly warned of their rights, that they were told that they could get in touch with counsel, that Eskedahl talked with counsel who gave advice at the police station, and that they never asked for counsel distinguishes this case from the Escobe-do case. .
There is no evidence [that their attorneys] . . . requested or demanded of the police that they cease their interrogation of the defendants.” 352 Mass. 403 at 416-417, 226 N.E.2d at 208. [citations omitted].

We are asked to examine the discussion of Escobedo in vacuo, eliminating the factual discussion because the Supreme Judicial Court spoke without the benefit of specific findings by the Superior Court. We cannot fairly do so. In context, with the factual discussion and assumptions made and especially in light of the citations to Johnson v. New Jersey, supra, it is clear that the Supreme Judicial Court was aware of the applicability of Escobedo to this case. It cannot be inferred from this brief discussion on appeal that the trier did not apply the requisite standard.

Townsend v. Sain, 372 U.S. 293 at 314-315, 83 S.Ct. 745 at 758 indicates that in ordinary circumstances, unless “there is reason to suspect that an incorrect standard was in fact applied”, even where there has been no articulation by the state trier of fact, it may be properly assumed that the correct standards of federal law were applied. The facts of this case create a design which does not fit neatly into predetermined patterns. However, the petitioners’ rights in Escobedo were vigorously argued in a special hearing on the evidence in question. There is no “reason to suspect that an incorrect standard” was applied. Under these circumstances, entertaining the presumption that the Superior Court resolved petitioners’ factual contentions against them would have been proper. See Lavalee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973). Therefore, the district court was not obligated to hold an evidentiary hearing. A four day hearing was held at its discretion, Frank v. Mangum, 237 U.S. 309, 311, 35 S.Ct. 582, 59 L.Ed. 969 (1915), because the complex question before it warranted a deliberate reconstruction of the facts and because of an allegation that one of the attorneys had demanded to see his clients, which if proved would have entitled petitioners to relief. Townsend, supra 372 U.S. at 312, 83 S.Ct. 745; Fay v. Noia, 372 U.S. 391, 416 n. 27, 83 S.Ct. 822, 9 L.Ed.2d 837 (1962).

We turn now to the question of the appropriate burden of proof. The categories established in Townsend for mandatory hearing are codified in 28 U.S.C. § 2254(d). See, e. g., Maxwell v. Turner, 411 F.2d 805 (10th Cir. 1969); United States ex rel. Hughes v. McMann, 405 F.2d 773, 776 (2d Cir. 1968). The statute employs the Townsend categories not to indicate when hearing is required but rather to establish the standard of proof which is to be applied to all hearings. See Developments in the Law, Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1122, n. 46, 1141 (1970).

Where the petitioner establishes any of the eight enumerated circumstances, a preponderance of evidence will suffice to show trial error. As we have indicated, the petitioners failed to establish one of these circumstances. The district court followed the letter of the statute in requiring “the applicants] to establish by convincing evidence that the factual determination by the State court was erroneous.” 28 U.S.C. § 2254(d) (emphasis supplied).

The court, applying the appropriate standard, held: “The evidence is not convincing that the police refused to permit them to consult counsel.” The court supported this conclusion by assuming a version of events, favorable to petitioners, evidenced by police records (recorded after the events) and petitioners’ statements paralleling the records. Even with these facts assumed the court found that petitioners were effectively warned of their right to be silent; that they were permitted to phone an attorney, friends, or family; that there was only a passing request for counsel, not renewed; and that no attempt was made to terminate the questioning. The court further held that Mr. Travers, the attorney for petitioners, who said he “demanded” to see his clients was at times confused and was not a wholly reliable witness. Even by his own testimony, his actions were inconsistent with his desire to see his clients. The district court ruled that the state court would have been justified in disbelieving his testimony and could have supportably found “that Travers failed to make a clear demand or that the demand was made after the confessions were given.”

Given the district court’s factual findings, we concur in its legal evaluation. No constitutional violation was made out. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1968) dealt with a similar situation and Escobedo was the applicable case. In the midst of questioning Frazier said “I think I had better get a lawyer before I talk any more.” Id. at 738, 89 S. Ct. at 1424. The Court held that in contrast to the clear request for counsel and counsel’s repeated requests to see his client in Escobedo, “here . . . it is possible that the questioning officer took petitioner’s remark not as a request that the interrogation cease but merely as a passing comment. Petitioner did not pursue the matter, but continued answering questions. In this context, we cannot find the denial of the right to counsel which was found so crucial in Escobedo.” Id. at 739, 89 S.Ct. at 1424. We so hold in this case.

Affirmed.

      . The facts of the case can be found in Commonwealth v. LePage, 352 Mass. 403, 226 N.E.2d 200 (1967). The incriminating statements relevant to this appeal are set forth at 408, 226 N.E.2d 200.

      . “[I]f tlie prior state hearing occurred in the course of the original trial — for example, on a motion to suppress allegedly unlawful evidence, as in the instant case — it will usually be proper to assume that the claim was rejected on the merits. Townsend, supra at 314, 83 S.Ct. at 758.

      . The petitioners did not testify at the suppression hearing or the trial before the Superior Court. It is clear from the district court opinion that the district judge did not consider the testimony of the petitioners convincing. After examining the history of the circumstances and the petitioners’ natural interest in obtaining relief, the court indicated that their testimony was questionable but that even if it were relied upon, they did not establish that they were unwilling to proceed with the interrogation without legal advice.

      . LePage did i)hone his wife several times and she came to the police station and was permitted to speak to him privately. Eske-dahl spoke with Attorney Andrews early in the evening before the charge had been determined.

      , Petitioners’ challenge to these findings is unavailing. We say this after a thorough review of the district court transcript, the notes of the police officers, the deposition of Attorney Travers and the state court transcript of Attorney Andrews’ testimony. The habeas hearing having taken place nine years after the trial, minor inconsistencies in testimony are inevitable. The only recording soon after the events was done by the police.
      Petitioners made a special point to challenge the court’s finding that Eskedahl requested his attorney before talking to Le-Page and not before making the confession. We have reviewed the testimony petitioner pointed out but have also reviewed the oral testimony of Norton and Davenport which supported the findings. The district judge would have been supported in crediting any of this testimony. His holding was not that in fact a request was made before the consultation between the two petitioners but that at most the request was then made.