source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Daniel Dee VEON, Appellant.
    No. 72-1889.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1973.

      Claude 0. Allen, Oakland, Cal., for appellant.
    James L. Browning, Jr., U. S. Atty., F. Steele Langford and Jerry K. Cimmet, Asst. U. S. Attys., San Francisco, Cal., for appellee.
    Before TRASK, GOODWIN and WALLACE, Circuit Judges.
   PER CURIAM:

Daniel Dee Veon appeals from convictions of violations of 21 U.S.C. § 841 (a) (1) (possession of marijuana with intent to distribute); two counts of 21 U.S.C. § 843(b) (use of telephone to commit or to facilitate commission of felonies under Title 21); 21 U.S.C. § 846 (conspiracy to distribute and to possess with intent to distribute marijuana).

Defendant contends the district court erred: (1) in restricting the reeross-examination of a government witness; (2) in receiving into evidence a tape recording and a written transcript of the tape; and (3) in submitting the case to the jury, upon evidence which he asserts was insufficient to support the verdict.

Customs agents observed a load of 400 kilograms of marijuana being brought in from Mexico. The agents arrested the smugglers and had them make a “controlled delivery” to Donald Lynch, their employer. Lynch was arrested and agreed to cooperate with police. With police listening and taping the call, Lynch phoned Veon and told him that the “stuff” was in for “Gary.” Veon said, “Yeah, okay, uh?” Lynch replied, “Same old thing.” Veon signified assent. This call is the basis for the second count of the indictment.

At trial, Lynch testified that the call was made pursuant to a pattern he had prearranged with Veon. When Lynch’s employees would arrive with a shipment, Lynch would telephone Veon and Veon would send Geary Willingham, an employee of Veon, to pick up the contraband and pay Lynch at a pre-arranged location. Lynch testified that he disposed of all his marijuana through Veon.

Lynch, carrying a tape recorder, met Willingham, and in a brief conversation the name “Danny” was mentioned twice. This tape recording became the disputed exhibit. Willingham picked up the marijuana and was arrested. He testified that he was employed by Veon and acted at his request.

The same night that Lynch was. arrested, he received another call from Veon in which Veon stated that he could get only $9,000 that night, and that he would deliver it later. This call is the basis for count three of the indictment. Still later, Lynch received a call from Veon in which Veon told Lynch that “Gary” had been “busted” and that he (Veon) was going to a motel.

The alleged restriction on cross-examination occurred when defense counsel attempted to re-examine a prosecution witness for the fifth time. The curtailment of repetitious examination on a marginally relevant point was a legitimate exercise of the court’s discretion. United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971).

The objection to the use of the tape recording is equally without merit. The defense had obtained a discovery order to furnish copies of any statements obtained through “electronic surveillance.” The government furnished a copy of the tape of the Veon-Lynch conversation, and said that it had another tape in which Yeon’s voice was not heard, but which would be furnished upon request. No request was made. The tape was nonetheless made available to the defense before Willingham testified and before the defense had relinquished its right to recall Lynch for further cross-examination.

The Jenks Act, 18 U.S.C. § 3500, gives the defense the right to have copies of statements of witnesses to government agents only after they have testified. In this ease, the defense had possession of the tape before cross-examination was concluded. But even if the defense was entitled under the discovery order to have the tape before trial, a point we need not decide, the defense was not prejudiced by the late receipt. Veon knew that both Lynch and Willingham had agreed to testify for the prosecution. The tape added little to the testimony; all mentions of “Danny” in the tape came from Lynch, so the tape did not detract from Veon’s argument that Lynch was implicating him (Veon) in an attempt to reduce his own guilt. There was no error in receiving the tape.

The government argues that the suffieiency-of-the-evidence point is not available on appeal because no objection was made on this basis at the close of the trial. Enriquez v. United States, 338 F.2d 165 (9th Cir.), cert. denied, Cura v. United States, 380 U.S. 957, 85 S.Ct. 1095, 13 L.Ed.2d 973 (1964); Lucas v. United States, 325 F.2d 867 (9th Cir. 1963). We agree with the government. But in any event we are satisfied that there was abundant evidence to support the verdict. We notice the point only because it became necessary to examine the record in order to deal with the other points urged.

Affirmed.


text:
    John OTERO and Grace Otero, his wife, Appellants, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS (IUE) an association, Ap-pellee.
    No. 71-1716.
    United States Court of Appeals, Ninth Circuit.
    Feb. 9, 1973.
    W. Roy Tribble (argued), Chandler, Ariz., for appellants.
    Melvin Warshaw, Asst. Gen. Counsel ' (argued), Ruth Weyand, Richard Seupi, International Union of Electrical, Radio, & Machine Workers, Washington, D.C., Herbert B. Finn, of Finn & Van Baalen, Phoenix, Ariz., for appellee.
    Before BARNES, KILKENNY and GOODWIN, Circuit Judges.
   PER CURIAM:

The district court had jurisdiction of this action, though not by reason of diversity, which does not here exist. 28 U.S.C. § 1332; United Steel Workers of America v. Bouligny, Inc., 382 U.S. 145, 150-151, 86 S.Ct. 272 (1965). Jurisdiction depends on the existence herein of a collective bargaining contract between an employer (itself a union) and a “labor organization” representing the employer’s employees. (See. 301, Labor Management Relations Act of 1947, 29 U.S. C., Sec. 185).

The undisputed facts presented by affidavits on the motion heard indicate a settlement was arrived at after proceedings were instituted by the union representing the employee (herein Council of Industrial Organizers, or “Council”) on Otero’s behalf. These proceedings were but partially completed; and had proceeded to, but not through, available arbitration proceedings (Motion for Summary Judgment, Exhibit A, Contract; Article VII, Sec. 2). At that point, a complete and final settlement was agreed upon between the Union employer (IUE) and the employee’s designated representative (Council), which involved a change of position on each side and the delivery of two substantial sums of money to Otero. While Otero refused to sign certain releases, he cashed the checks amounting to $5,380.64.

No failure on the part of the Council of Industrial Organizers to act, and no unfairness on its part in acting for the plaintiff, was charged by Otero, either at the time of settlement, or in his complaint, or on the hearing of the motion for summary judgment.

“The parties herein agreed upon a method for final adjustment of all grievances. They further agreed that this would be final and binding upon the parties involved . . . (between the two unions). . . . This clearly was a matter subject to the contractual requirement. ... A party is entitled to no more than he bargained for and received under the contract. Chambers v. Beaunit Corporation, 404 F.2d 128 (6th Cir. 1968).”

Alonso v. Kaiser Aluminum & Chemical Corporation, D.C., 345 F.Supp. 1356, 1360 (1971), affirmed per curiam (4th Cir. 1972), 69 L.C. ¶ 13001.

The grievance and arbitration procedure contained in the Council — IUE’s collective agreement is plaintiff’s sole and exclusive remedy. Republic Steel v. Maddox, 379 U.S. 650, 652-659, 85 S.Ct. 614, 13 L.Ed.2d 580 (1964).

We agree with the district court that no claim is stated. See: Baca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Woody v. Sterling Aluminum Products, Inc., 365 F.2d 448 (8th Cir. 1966), cert. denied 386 U.S. 957, 87 S.Ct. 1026, 18 L.Ed.2d 105 (1967); Dessert Coca Cola v. General Sales Drivers, 335 F.2d 198 (9th Cir. 1964); C.C.H. (L.L.R.) 3255.55 (p. 8240); Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972).

The summary judgment granted appel-lee is affirmed.

      . This was also an action by an employee against an employer alleging wilful and malicious charges of stealing property, re-suiting in the discharge of the employee. It was also based on the granting of a motion for summary judgment.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Donald GILLIS, Defendant-Appellant.
    No. 72-1687.
    United States Court of Appeals, Ninth Circuit.
    Feb. 14, 1973.

      Taylor J. Daigneault (argued), of Daigneault, Abel & Daigneault, Torrance, Cal., for defendant-appellant.
    John M. Newman, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before MERRILL, KOELSCH, and KILKENNY, Circuit Judges.
   PER CURIAM:

Appellant Gillis was convicted by a jury on both counts of a two-count indictment charging possession of an unregistered machine gun [26 U.S.C. § 5861 (d) ], and the sale of said gun without paying the transfer tax required by 26 U.S.C. § 5811 [26 U.S.C. § 5861(e)]. On this appeal he urges three points: (1) that the sale was to a government agent and therefore exempted from the transfer tax; (2) that the jury was improperly instructed on possession; and (3) that the prosecutor’s comments in closing argument constituted prejudicial misconduct. None has merit.

26 U.S.C. § 5811 levies a $200 per weapon tax on the transfer of firearms, the tax to be paid by the transferor. Appellant sold a Beretta 9mm machine gun to an undercover agent of the Alcohol, Tobacco, and Firearms Division of the Treasury Department, but paid no tax. He contends that the sale to such an agent is exempted from the transfer tax requirements of § 5811 by the provisions of 26 U.S.C. § 5852(a), which provides: “Any firearm may be transferred to the United States or any department, independent establishment, or agency thereof, without payment of the transfer tax imposed by section 5811.” However, the exemption statute itself provides that a transfer is not tax-exempt “. . . unless the transfer ... is performed pursuant to an application in such form and manner as the Secretary or his delegate may by regulations prescribe.” 26 U.S.C. § 5852(f). The Secretary has issued specific regulations controlling the manner in which a tax-exempt transfer to the government may be effectuated. 26 C.F.R. § 179.89 provides that, while a transfer to the government may be made without payment of the tax, “ . . the procedures for the transfer of a firearm as provided in § 179.90 shall be followed in a tax-exempt transfer. . . . ” 26 C.F.R. § 179.90(c) expressly provides that, “The transferor shall be responsible for establishing the exempt status of the transferee before making a transfer under the provisions of this section. Therefore, before engaging in transfer negotiations with the transferee, the transferor should satisfy himself of the claimed exempt status of the transferee and the bona fides of the transaction. . . . An unapproved transfer or a transfer to an unauthorized person may subject the transferor to civil and criminal penalties. (See sections 5852, 5861, and 5871, I.R.C.).” Cf. United States v. Freed, 401 U.S. 601, 605, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Thus, even if appellant might have invoked the exemption provisions of § 5852(a) he failed to fulfill the necessary conditions precedent to their application.

In its instructions, the court not only defined possession, but also explained what constituted termination of possession in line with appellant’s defense that he had abandoned the gun and was later entrapped by the government agent into retaking possession. These instructions were correct and germane to the issues.

Finally, with respect to the matter of the prosecutor’s comments, the record shows that defense counsel vigorously appealed to the jury to acquit because the particular acts were trivial and innocuous. The District Attorney, in rebuttal, pointed out several potentially unlawful uses to which an illicitly purchased weapon of this type might be put. We have examined the transcript of the arguments, and we agree with the trial court that the comments were invited and not improper. See Tenorio v. United States, 390 F.2d 96 (9th Cir. 1968), cert. denied, 393 U.S. 874, 89 S.Ct. 169, 21 L.Ed.2d 145; Chatman v. United States, 411 F.2d 1139 (9th Cir. 1969).

The judgment is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gordon Fred JOHNSON, Defendant-Appellant.
    No. 72-2601.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1973.

      Keith C. Monroe, Santa Ana, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Barry Russell, Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and GOODWIN, Circuit Judges, and SCHWARTZ, District Judge.

       Honorable Edward J. Schwartz, Chief Judge, United States District Court for the Southern District of California, sitting by designation.

   PER CURIAM:

Johnson was convicted of aiding and abetting the distribution of LSD, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S. C. § 2. In urging reversal, he claims that the trial court erred in determining that the defendant’s extra-judicial statements were made freely and voluntarily, and in admitting the statements in evidence at the trial. He alleges, further, that the court failed to find that defendant had waived his Miranda rights, and, absent such a finding, deprived him of a fair trial by admitting the statements in evidence.

We conclude that the trial court’s determinations were supported by the evidence. A hearing on the issue of voluntariness was held out of the jury’s presence as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed. 2d 908 (1964). Upon hearing the conflicting testimony concerning the events surrounding the statements of March 7 and March 9, the court stated that it believed the testimony of the agents that the defendant had been advised of his rights on both occasions, and that it disbelieved the defendant’s testimony. The court found that the defendant’s decision to make the statements “constituted a reasoned choice,” and that he made the statements freely and voluntarily.

It is also apparent from the trial court’s statement that defendant’s decision “constituted a reasoned choice” that the court found defendant to have waived his Miranda rights. A Miranda waiver may be implied where warranted from the facts and circumstances of the particular case. United States v. Hilliker, 436 F.2d 101 (9th Cir., 1970). Though the court must find that a defendant waived his rights knowingly before it admits his statements in evidence, it is not required to express such finding in the exact same words in every case. After first denying any knowledge of drug activities, the defendant told one of the government agents that he wished to make a statement and wanted to cooperate with the government. He thereupon made two statements to the agents and offered to lead them to an LSD manufacturing operation on the island of Maui, Hawaii. The trial court properly inferred a waiver under the circumstances of this case.

Affirmed.


text:
    YORK-SHIPLEY, INC., Plaintiff-Appellee, v. ATLANTIC MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 72-2361.
    United States Court of Appeals, Fifth Circuit.
    Feb. 23, 1973.
    Roland R. Parent, Miami, Fla., Joseph J. Magrath, New York City, for defendants-appellants.
    Adams, George & Wood, Miami, Fla., for Atlantic Mut. Ins. Co.
    Thomas J. Schulte, Suarez, Carricarte & Freire, Miami, Fla., for Int’l Fwdrs.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   PER CURIAM:

In this cargo insurance case, the district court found that at the time of the damage, the plaintiff-appellee, YorkShipley, Inc., was the owner of the boiler in question. This was clearly erroneous since the cargo was shipped C.I.F. port of destination. Title to the boiler passed to the consignee when it was shipped from Miami in accordance with the terms of the contract. York-Shipley had no property rights in the boiler at the time it was damaged, and therefore had no insurable interest. Because York-Shipley, Inc. lacks standing to bring this suit, we need not reach the other errors assigned. We reverse.

York-Shipley held an ocean marine open cargo policy issued to it by the appellant, Atlantic Mutual Insurance Co., covering all of York-Shipley’s international shipments of “lawful goods and merchandise consisting principally of heating equipment and parts.” The policy contained a provision reading in pertinent part, as follows:

“Authority is hereby given to the assured to issue this company’s special policies of insurance which will be supplied on request. Such special policies are to be issued only in accordance with the terms and conditions of the policy, and are not transferable unless countersigned by the assured.”

Such special policies are used when an assured sells on terms (e. g., C.I.F.) which require it to obtain insurance for the benefit of its customers abroad. The special policy takes the place of the open policy with respect to the particular shipment for which it is issued and contains, in full or by reference, all of the provisions necessary to single shipment insurance.

In the instant case, such a special policy was issued covering two boilers while in transit from Miami to Guatemala, and the policy was forwarded, along with the bill of lading and freight receipt, to York-Shipley’s consignee in South America. In effect, then, as regards the insurance, York-Shipley was merely the agent of its foreign customer for obtaining insurance on the goods sold.

Article 2, § 320 of the Uniform Commercial Code defines the term “C.I.F.” to mean “that the price includes in a lump sum the cost of goods and the insurance and freight to the named destination. . . . ” Section 320 also spells out the duties of the seller under a C.I.F. destination contract: (1) he must put the goods into the possession of a carrier at the port of shipment and obtain a bill of lading, (2) load the goods and obtain a receipt from the carrier showing that the freight has been paid, (3) obtain a policy of insurance covering the goods while in transit,’ (4) prepare an invoice of the goods and procure any other documents required to offset shipment or comply with the contract, and (5) forward and tender with commercial promptness all the documents in due form and with any indorsement necessary to perfect the buyer’s rights. Section 320 concludes that “[u]nder the term C.I.F. . . . unless otherwise agreed the buyer must make payment against tender of the required documents and the seller may not tender nor the buyer demand, delivery of the goods in substitution for the documents.” (Emphasis supplied). Under the UCC, as well as at common law, title to goods shipped C.I.F. passes upon their delivery to the carrier. UCC Art. 2, § 401; see id. art. 2, § 509; Smith Co. v. Marano, 1920, 267 Pa. 107, 110 A. 94. See generally Bender’s U.C.C. Service, Dursenberg & King, Sales and Bulk Transfers § 8.02[2] [b] at 8-17 (1968).

Accordingly, once York-Shipley put the boilers in the possession of the carrier in Miami, it no longer had any interest in them. Indeed, it was prohibited from tendering the goods instead of the appropriate documents. YorkShipley therefore has' no insurable interest in the cargo and, consequently, has no standing to sue. Standing depends upon whether the party has such a “personal stake in the outcome of the controversy as to assure . . . concrete adverseness. . . .” Baker v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663; See Sierra Club v. Morton, 1971, 405 U.S. 727, 732, 92 S.Ct. 1361, 31 L.Ed.2d 636; Flast v. Cohen, 1968, 392 U.S. 83, 101, 88 S.Ct. 1942, 20 L.Ed.2d 947. York-Shipley has no interest in the outcome of this suit, other than that of an unsecured creditor of its foreign customer. Such an interest is insufficient to meet the requisites of standing.

Reversed.


text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. Im HATTON, Individually and doing business as Air Control Engineering Company, Defendant-Appellee.
    No. 72-2703.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.

      Richard F. Schubert, Sol. of Labor, U. S. Dept, of Labor, Washington, D. C. , M. J. Parmenter, Regional Sol., William E. Everheart, Carin Ann Clauss, Donald S. Shire, Attys., U. S. Dept, of Labor, Dallas, Tex., Jacob I. Karro, Atty., U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    L. H. Warburton, Jr., Alice, Tex., for defendant-appellee.
    Before ALDRICH SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   PER CURIAM:

The Secretary of Labor sought to enjoin defendant-appellee, individually and as a commercial employer, from violating the minimum wage and overtime provisions of the Fair Labor Standards Act, Title 29 U.S.C. Section 201 et seq. The district court held the defendant was not within coverage of the Act and denied the requested relief. We reverse.

Defendant-appellee Hatton is a sole proprietorship located in Alice, Texas. The business has three employees. It installs, repairs and maintains air conditioning and heating systems, including duct work, in residential properties. Approximately ninety per cent (90%) of Hatton’s purchases were manufactured in Texas. The Secretary claims Hatton is an “enterprise engaged in commerce” as required by Sec. 3(s) of the Act, Title 29 U.S.C. Section 203 (s), and therefore subject to the minimum wage and overtime standards of Sections 6 and 7 of the Act, Title 29 U.S.C. Sections 206 and 207.

The theory of “enterprise coverage” by which the Secretary hopes to apply the Act to defendant-appellee was introduced into the law by amendment in 1961. We stated the purpose of “enterprise coverage” in Montalvo v. Tower Life Building, 5 Cir. 1970, 426 F.2d 1135, 1139. Limiting coverage of the Act to enterprises which are in more than one business would frustrate that purpose of eliminating fragmentation of the Act’s application. Accordingly, defendant-appellee is not exempt from the Act’s requirements solely because it is engaged in only one business. See Schultz v. W. R. Hartin & Son, Inc., 4 Cir. 1970, 428 F.2d 186; Wirtz v. Melos Construction Corp., 2 Cir. 1969, 408 F.2d 626; the textual references to a single establishment in Sections 3(r) and (s) of the Act, Title 29 U.S.C. Section 203(r) and (s); H.Rept.No.75, Fair Labor Standards Amendments of 1961, 87th Cong., 1st Sess., p. 7; S.Rept.No.145, Fair Labor Standards Act of 1961, 87th Cong., 1st Sess., p. 41, U.S.Code Cong. & Admin. News 1961, p. 1620; and S.Rept.No.1487, Fair Labor Standards Amendments of 1966, 89th Cong., 2d Sess., p. 7, U.S. Code Cong. & Admin.News 1966, p. 3002.

The 1961 and subsequent amendments further expanded coverage of the Act by introducing a sweeping definition of “enterprise engaged in commerce or in the production of goods for commerce”:

“(s) ‘Enterprise engaged in commerce or in the production of goods for commerce’ means an enterprise which has employees engaged in commerce or in the production of goods for commerce, including employees handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person, and which—
(1) during the period February 1, 1967, through January 31, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated) or is a gasoline service establishment whose annual gross volume of sales is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated), and beginning February 1, 1969, is an enterprise whose annual gross volume of sales made or business done is not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated);
(2) is engaged in laundering, cleaning, or repairing clothing or fabrics;
(3) is engaged in the business of construction or reconstruction, or both; or
(4) is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or defective who reside on the premises of such institution, a school for mentally or physically handicapped or gifted children, a preschool [an] elementary or secondary school, or an institution of higher education (regardless of whether or not such hospital, institution, or school is public or private or operated for profit or not for profit).
Any establishment which has as its only regular employees the owner thereof or the parent, spouse, child, or other member of the immediate family of such owner shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce or a part of such an enterprise, and the sales of such establishment shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of this subsection.”

Title 29 U.S.C. Section 203 (s).

Defendant appellee is within that definition because it met the two requirements necessary for inclusion: (1) the court below found as a fact that most of the parts used by the employees in their work “were manufactured outside of and had moved in commerce getting to Texas” and this, we hold, is the same thing as saying the defendantappellee’s employees were “handling, selling, or otherwise working on goods that have been moved in or produced for commerce by any person”; and (2) the business of installing, repairing and maintaining air conditioning and heating systems, including duct work, in residential properties is an enterprise “engaged in the business of construction or reconstruction or both”. Holding that no other requirement exists, we find defendant-appellee is covered by the Fair Labor Standards Act.

Reversed and remanded.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    Martha A. WILLGING, Individually and as executrix of the estate of John Z. Willging, Appellee, v. UNITED STATES of America, Appellant.
    No. 26618.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Paul M. Ginsberg, Atty. (argued), Meyer Rothwacks, Elmer J. Kelsey, Attys., Johnnie Walters, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Dean C. Smith, U. S. Atty., Spokane, Wash., for appellant.
    Gary C. Randall (argued), Scott B. Lukins, of Lukins, Seelye & Randall, P. S., Spokane, Wash., for appellee.
    Before ELY and GOODWIN, Circuit Judges, and FERGUSON, District Judge.

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

   ALFRED T. GOODWIN, Circuit Judge:

The government appeals a district court judgment, 313 F.Supp. 297, granting the taxpayer a refund of part of the income taxes she paid in 1966.

Mrs. Willging and her husband were wheat farmers, owning community property, and reporting their income on the accrual basis. To determine their income for each year, they would add to the sales price of products sold during the year the value of their closing inventory and would subtract from this figure the value of their opening inventory. Treas.Reg. § 1-61-4. Inventories were valued under the “farm price” method (market price less direct costs of disposition), Treas.Reg. § 1.471-6; expenses were deducted in the year in which they were incurred. Treas.Reg. § 1.162-12.

The value of the Willging’s opening grain inventory for 1966 was $1,195. On November 15, 1966, Mr. Willging died. At that time the value of the grain inventory was $37,953.98. The grain had the same value at the end of the year.

Mrs. Willging contends that the entire increase in the value of the 1966 crop inventories between the first of the year and November 15 escapes taxation because Int.Rev.Code of 1954, § 1014, stepped up the basis of the grain to its market value on the death of her husband. In the alternative, she argues that the half of the crop which vested in her on November 15 by virtue of the community-property laws escapes taxation.

The basic thrust of Mrs. Willging’s first argument is that accrual-basis farmers should be treated the same as cash-basis farmers. A cash-basis farmer who dies owning an appreciated inventory is not taxable on the unrealized appreciation. Nor does his spouse take over a potential tax liability, for she receives upon his death a stepped-up basis under § 1014(b)(1). Rev.Rul. 58-436, 1958-2 Cum.Bull. 366. If the property is owned by the community (in a community-property state) there is still no realization upon the death of one spouse. The surviving spouse is entitled to a stepped-up basis under § 1014(b)(6) if at least one half of the whole of the community interest in such property was includable in determining the value of the decedent’s gross estate.

However, because Mr. Willging elected to be taxed under the accrual method of accounting, the value of the grain was “realized” when it increased his inventory value. No sale was necessary for realization. Mr. Willging’s death did not have the effect of accruing items which would not otherwise have been accrued, § 451(b), but it did serve as an occasion (the closing of his tax year) foru taxing the income he had received during his last taxable year. Section 1014 does not affect the imposition of this fax. The distinction between the taxation of cash and accrual-basis farmers on death is not fortuitous, but follows directly from the method of accounting used by the respective taxpayers. We see no reason to force the Commissioner to permit all accrual-basis farmers effectively to switch to the cash basis in the year of death. Cf. United States v. Catto, 384 U.S. 102, 113-117, 86 S.Ct. 1311, 16 L.Ed.2d 398 (1966).

Only half of the accrued increase in value of the inventories was taxed on the death of Mr. Willging because the other half vested in Mrs. Willging by' virtue of the community property laws. Mrs. Willging contends that, even if her husband was properly taxable on his half on the inventory, she is not taxable on her half because the stepped-up basis provided by § 1014(b)(6) for community property is substituted for the beginning-of-the-year inventory value which she would normally use. Mrs. Willging points out that § 1014 applies “except as otherwise provided in this section,” § 1014(a), and that the Commissioner makes no contention that the crops represent “income in respect of a decedent,” which is excepted from the application of § 1014, §§ 691, 1014(c). She contends that § 1014(b)(6) entitles her to the benefit of a stepped-up basis without the disadvantage of current taxation on the increase in value, although for a noncommunity spouse of an accrual taxpayer this would be impossible. (For § 1014 to apply to a noncommunity spouse, the property is required to have been held by the decedent, and the decedent would have been taxable on the accrued increase.)

Mrs. Willging claims more for § 1014 than Congress intended. We do not rely ' on the failure of the regulations under which the taxpayer computed her income to refer to the “basis” of the crops involved. “Basis” is a general tax accounting term whose use cannot be so tightly circumscribed. See 85 Harv.L. Rev. 880, 884 (1972). Moreover, the Code recognizes that “basis” is a concept relevant to the computation of inventories, § 1013, and the Commissioner allows cash-basis farmers the step-up denied here although the regulations under which they compute their income make no use of the term “basis.” Treas.Reg. § 1.61-4(a).

The real issue in this case is one of realization. Section 1014 operates to exempt unrealized property income from tax on the death of the owner of the property; it does not reach back to income realized before death. Income is realized under an accrual method of accounting “when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy.” Treas.Reg. § 1.451-1 (a). Because of the nature of the market for farm produce, the Commissioner allows farmers to use the increase in inventories as a realizing event. This was the method of accounting chosen by the taxpayer. It follows that § 1014 does not help Mrs. Willging, for, although it may increase her basis, it does so after the income from her crops has been realized. The time of the mechanical computation of income, at the end of the year, is irrelevant. To hold otherwise would be to make the sale of crops the determining event although the taxpayer had adopted a system of accounting which did not distinguish between sale and increase in inventory value. This would constitute a change of accounting method without the consent of the Secretary, proscribed by § 446(e).

We are reinforced in our conclusion by a consideration of the purpose of § 1014(b)(6). Given our holding that tax was due on the income accrued by Mr. Willging in the year of his death, the benefit for which Mrs. Willging contends would be peculiar to community-property taxpayers. Section 1014(b)(6) was designed to equalize the incidence of taxation between community-property and common-law states, not to provide a special benefit to community-property taxpayers. Stanley v. C. I. R., 338 F.2d 434 (9th Cir. 1964); Bath v. United States, 211 F.Supp. 368, 370 (S.D.Tex. 1962), aff’d per curiam, 323 F.2d 980 (5th Cir. 1963).

Reversed.


text:
    In the Matter of GREEN MILL INN, INC., a California corporation, Bankrupt 117739. Kal W. LINES, Trustee in Bankruptcy, Appellant, v. The NATIONAL CASH REGISTER COMPANY, Appellee.
    No. 26658.
    United States Court of Appeals, Ninth Circuit.
    Feb. 2, 1973.

      Raymond L. Mushrush (argued), of Jacobs & Mushrush, James M. Conners, Trustee, San Francisco, Cal., for appellant.
    Merrill J. Schwartz (argued), George F. Dunker, of Stark, Stewart, Simon & Sparrowe, Oakland, Cal., for appellee.
    Before TRASK, CHOY, and GOODWIN, Circuit Judges.
   PER CURIAM:

The district court overruled its bankruptcy referee, and allowed The National Cash Register Company to repossess property sold to a bankrupt under a title-retaining contract. The trustee in bankruptcy appeals. We affirm.

The thrust of the appeal is that National Cash Register’s financing statement as filed did not comply with California’s version of the Uniform Commercial Code.

Cal. Commercial Code § 9402(1) requires such a financing statement to show, inter alia, the name and mailing address of the debtor and to bear the signature of the debtor. Section 9402(5) saves a filing that is in “substantial compliance” with § 9402(1).

The financing statement here in question gave the name of the debtor on line one as “Taylor, Máxime.” The form carried the signature of the debtor on line nine as “Green Mill’Inn, Inc., by Máxime Taylor, President.” In fact, Green Mill Inn, Inc., was the entity purchasing the property.

Because the office of the Secretary of State of California was able, through cross-indexing, to locate the filing in both the corporate and individual names, actual notice was thus available to anyone interested in the filing. The district court held that the defective, or ambiguous, filing, aided by the probability of actual notice, substantially complied with the statutory requirements, and thus preserved the security interest of the seller against rival creditors.

The district judge who decided this case also decided In re Thomas, 310 F.Supp. 338 (N.D.Cal.1970), aff’d 466 F.2d 51 (9th Cir. 1972). There, an individual (Thomas), doing business under a fictitious name (West Coast Avionics), bought goods under a conditional-sale contract for which the seller filed the security statement listing the debtor’s name as West Coast Avionics. The district judge noted that the Secretary of State did not cross-index unincorporated names in the situation there presented. Since there was no means by which creditors of Thomas could learn from the Secretary’s records that Thomas was buying property on credit under the name of West Coast Avionics, a financing statement showing West Coast Avionics as debtor did not substantially comply with Cal. Commercial Code § 9402(1).

We believe that the difference between the two cases perceived by the district judge is a valid one. No creditor was misled or prejudiced by the ambiguity in the document filed by National Cash Register. Anyone seeking to determine if the bankrupt had any outstanding security interests on its property would have been given notice of National Cash Register’s claim. There was therefore no error in treating the ambiguous document as one filed in substantial compliance with Cal. Commercial Code § 9402(1). Affirmed.


text:
    Jerry WHITE, Petitioner-Appellant, v. L. B. SULLIVAN, Commissioner of Alabama Prison System, et al., Respondents-Appellees.
    No. 73-1385.
    United States Court of Appeals, Fifth Circuit.
    Feb. 22, 1973.
    Jerry White, pro se.
    Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for respondents-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.
   PER CURIAM:

Jerry White, an Alabama State prisoner incarcerated in the Mt. Meigs Medical and Diagnostic Center, has applied to this Court for leave to appeal in forma pauperis from the district court’s summary dismissal of a Civil Rights complaint filed by him. We grant the motion and summarily affirm in part and summarily vacate and remand in part.

In the action filed below, White sought damages and relief in the nature of injunction on behalf of himself and twenty-six prisoners in solitary confinement arising out of the prison officials’ refusal to allow the solitarily confined prisoners to communicate with the courts and their attorneys. Although White failed to allege that he was in solitary confinement and was then being denied access to the courts, he stated that “he is a part of an institutional population which must live from day to day under constant threats of [such] misconduct.” He further argued that “[i]t seems therefore that Plaintiff is injured, is a member of a class which is injured and is thus competent to maintain a class action for himself and others similarly situated.”

The district court peremptorily dismissed the complaint on grounds that White could not properly maintain an action complaining of the conditions of solitary confinement on behalf of those so confined, if he himself was not presently subjected to those conditions.

We agree with the court below insofar as it concluded that White was not a member of the class of twenty-six prisoners for which damages and injunctive relief was sought; and that ruling is affirmed. We do not, however, agree with the court’s conclusion that White did not present a justiciable controversy on behalf of himself and the other prisoners of Mt. Meigs who face the daily threat of suffering from the denial of access to court while in solitary confinement.

A similar situation was presented to this Court in Massimo v. Henderson, 5th Cir. 1972, 468 F.2d 1209. In that case the appellant, who was incarcerated in the United States Penitentiary at Atlanta, filed a petition for mandamus and for in-junctive relief seeking the release of two fellow inmates from solitary confinement, and enjoining the further use of the solitary cells due to the allegedly subhuman conditions therein. Although the appellant himself was no longer confined in solitary, this Court held that the district court was clearly erroneous in dismissing the appellant’s action for injunctive relief on grounds that he was not involved in the action. The district court’s dismissal of that part of the action seeking the release of the two other inmates was affirmed since the appellant was not an attorney and not qualified to file on their behalf.

On the basis of Massimo, swpra, we hold that Petitioner White has the requisite standing to maintain this action on his own behalf and on behalf of those not presently confined in solitary, but who face threatened imposition of alleged unconstitutional conditions of imprisonment when placed in solitary confinement.

Therefore, the district court’s dismissal of the class action on behalf of the twenty-six prisoners in solitary confinement is affirmed; and the dismissal of the class action on behalf of the general prison population threatened with being placed in solitary is vacated and remanded for consideration on the merits of the allegations.

Affirmed in part; vacated and remanded in part.

      . 28 U.S.C. § 1915.

      . 42 U.S.C. § 1981 et seq.; 28 U.S.C. §§ 2201 and 2202.

      . It is appropriate to dispose of this case summarily. See Groendyke Transportation, Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158.

      . See Andrade v. Hauck, 5th Cir. 1971, 452 F.2d 1071.


text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. SIX FLAGS OVER GEORGIA, LTD., and Great Southwest Atlanta Corp., Defendants-Appellants.
    No. 72-2990.
    United States Court of Appeals, Fifth Circuit.
    Argued Feb. 7, 1973.
    Decided Feb. 22, 1973.
    Rehearing and Rehearing En Banc Denied April 10, 1973.
    Arthur J. Riggs, Dallas, Tex., Charles Kelso, Atlanta, Ga., for defendants-appellants.
    Richard F. Schubert, Sol. of Labor, Jacob I. Karro, Atty., U. S. Dept, of Labor, Washington, D. C., Beverley R. Worrell, Regional Sol., James H. Wood-son, Atty., Atlanta, Ga., Carin Ann Clauss, Donald S. Shire, U. S. Dept, of Labor, Office of Sol., Washington, D. C., for plaintiff-appellee.
    Before ALDRICH SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   PER CURIAM:

The Secretary of Labor brought this action against Six Flags over Georgia, Ltd., and Great Southwest Atlanta Corp., hereinafter, collectively, GSA, to enjoin alleged violations of the Fair Labor Standards Act and to compel the payment of overtime to certain employees. On a stipulated record both parties moved for summary judgment. The court ruled in favor of the Secretary and GSA appeals.

GSA operates an amusement park at Atlanta, Georgia of very substantial size. During the season it has over 1600 employees, sharply reduced during the off-season, of which some 100 are engaged in maintenance and repairs. From year to year the park remodels, and erects new structures, new buildings, and new places of entertainment, in order to maintain public interest. This new construction is mostly done during the off-season, much of the work being contracted out. During the off-season GSA pays all of its employees wages within the act, but during the season it does not, by virtue of the exemption afforded by 29 U.S.C. § 213(a)(3) to amusement and recreational establishments. During the season a small amount of new work is done by what are normally maintenance employees. It is for this that the Secretary asserts liability.

GSA concedes, as it must, that a general contractor employed by it to do this construction work would not be conducting a recreational establishment. GSA is in no better position. It is the character of the work, not the source of the remuneration, that controls. Cf. Hodgson v. Colonnades, Inc., 5 Cir., 472 F.2d 42 (1973) (fact employees “changing the premises” are on hotel pay-roll irrelevant). The nature of the work is what gives rise to the need for an exemption ; the exemption is not a subsidy accorded to an employer because of his principal activities.

Nor does it make any difference that the employee is doing mixed work. In any week that any particular employee does some non-exempt work he is covered fully, not pro rata. Hodgson v. Wittenburg Livestock Co., 5 Cir., 1972, 464 F.2d 1219; Mitchell v. Hunt, 5 Cir., 1959, 263 F.2d 913. GSA says that this makes an accounting problem for it. With the. legislation on the books, the problem is of its own making.

Affirmed.


author: PER CURIAM.

text:
    Gregorio P. VALDEZ, Petitioner-Appellant, v. E. P. PERINI, Superintendent Marion Correctional Institution, Respondent-Appellee.
    No. 72-2141.
    United States Court of Appeals, Sixth Circuit.
    Feb. 21, 1973.
    Gregorio P. Valdez, pro se.
    William J. Brown, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

      Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.
   PER CURIAM.

Petitioner was convicted of second degree murder in 1958, and was sentenced from ten years to life imprisonment. Subsequently he was released on parole. In July, 1970, his parole was revoked without a hearing (a hearing was not required under Ohio law) and petitioner was returned to the state correctional institution. In October, 1971, petitioner filed in the District Court an application for a writ of habeas corpus, alleging that he had been denied constitutional rights in that his parole was revoked summarily. The District Court held that there was no constitutional right to a hearing prior to a parole revocation, relying on our decision in Rose v. Haskins, 388 F.2d 91 (6th Cir.), cert. denied, 392 U.S. 946, 88 S.Ct. 2300, 20 L.Ed.2d 1408 (1968).

Petitioner then appealed to this Court. Pursuant to Rule 9 of the Rules of this Circuit, we ordered that the judgment below be vacated and that the case be remanded for reconsideration in light of the decision of the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L.Ed.2d 484 (1972). Morris-sey held that the due process clause of the Fourteenth Amendment requires that a reasonably prompt informal inquiry be conducted by an impartial hearing officer prior to the revocation of parole.

Our remand to the District Court would necessarily require that Court to consider and determine whether Morris-sey was retrospective in application. The District Court quoted a portion of the opinion in Morrissey to the effect that it was to apply “ . . .to future revocations of parole . . . . ” (408 U.S. at 490, 92 S.Ct. 2593).

The District Court then expressed confusion over the fact that while the Supreme Court had instructed that that decision be prospective in application, the decision was retrospective with respect to Morrissey himself since his parole revocation obviously had occurred prior to the date of the decision. Nevertheless, the District Court held that Mor-rissey was not to be applied retroactively-

Petitioner has moved this Court for appointment of counsel to represent him in his appeal. We deny his motion and we dismiss the appeal pursuant to Rule 9 of the Rules of this Circuit.

If it were necessary for this Court to make an independent determination as to the retroactive application of Morrissey, which is the sole issue in petitioner’s appeal, the assistance of counsel would indeed be warranted. However, as the District Court noted, specific instructions on the prospective effect of Mor-rissey were given in the body of that opinion.

In our opinion, the fact that Mor-rissey was applied retroactively to Morrissey himself, creates no confusion. The reason for such a result was explained in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), wherein Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), was held to be prospective in application. The Court stated:

“Of course, Katz himself benefited from the new principle announced on that date, and, as our Brother Douglas observes, to that extent the decision has not technically been given wholly prospective application. But, as we recently explained in Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, the fact that the parties involved in the decision are the only litigants so situated who receive the benefit of the new rule is ‘an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum.’ Whatever inequity may arguably result from applying the new rule to those ‘chance beneficiaries’ is ‘an insignificant cost for adherence to sound principles of decision-making.’ Ibid.” (394 U.S. at 254, 255, n. 24, 89 S.Ct. at 1036.).

The petitioner’s appeal is without merit and it is therefore dismissed. Rule 9, Sixth Circuit.

      . Such a determination would require consideration of the fact that the rule of Morrissey goes to the reliability of the evidence upon which revocation is based, and the fact that the retroactive application of Morrissey would place an overwhelming burden on the states. Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). Compare United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) with Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) and United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).


text:
    Robert Edward LEHMAN, Appellant, v. The CITY OF PITTSBURGH, et al.
    No. 72-1949.
    United States Court of Appeals, Third Circuit.
    Submitted on Briefs Jan. 19,1973.
    Decided Feb. 21, 1973.
    John H. Bingler, Thorp, Reed & Armstrong, Pittsburgh, Pa., for appellant.
    Daniel M. Curtin, Asst. City Sol., Ralph Lynch, Jr., City Sol., Pittsburgh, Pa., for appellees.
    Before VAN DUSEN and ADAMS, Circuit Judges and BARLOW, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This is an action by Robert E. Lehman against the City of Pittsburgh, the Mayor of Pittsburgh, the Assistant Executive Secretary for Personnel of Pittsburgh, the Civil Service Commission of Pittsburgh, the President and Commissioner of the Civil Service Commission, and a second Commissioner of the Civil Service Commission. The plaintiff, who was born and raised in Pittsburgh and who since May 24, 1971 has again resided in that city, complains that he was deprived of the opportunity to apply for a Civil Service job as a result of Pittsburgh’s durational residency ordinance, which requires that applicants for city employment must reside in the city for two years immediately preceding such application. Claiming that this ordinance violates his rights to equal protection of the law and deprives him of privileges and immunities secured by the Constitution and laws of the United States, plaintiff invoked the district court’s jurisdiction under 28 U.S.C. § 1343 and sought both injunctive relief and damages under 42 U.S.C. § 1983.

The district court dismissed the complaint on the grounds that (1) the court lacked subject matter jurisdiction, because the complaint failed to raise a substantial federal question; and (2) the complaint failed to state a claim upon which relief could be granted.

We affirm that portion of the district court’s order dismissing the complaint as to the City of Pittsburgh and the Civil Service Commission of Pittsburgh. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), held that a municipality is not a “person” for the purpose of § 1983 suits for damages and is not, therefore, subject to suit. This holding has been extended to bar such suits against city agencies, United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969); see Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). It has also been applied by this Court to § 1983 suits for injunctive relief. Educational Equality League v. Tate, 472 F.2d 612, n. 1 (3d Cir., filed Jan 11, 1973).

As to the individual defendants, we reverse and remand since it is clear that such officials and employees of cities and municipal agencies are “persons” for the purpose of § 1983 suits. E. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, supra; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Lewis v. Kugler, 446 F.2d 1343 (3d Cir. 1971).

On the claim that Pittsburgh’s dura-tional residency ordinance denies the plaintiff the equal protection of the laws, the district court, on remand, should consider the applicability of e. g., Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Walker v. Yucht, 352 F.Supp. 85 (D.Dela., filed Dec. 6, 1972) (3-judge court) (Adams, Circuit Judge); Wellford v. Battaglia, 343 F.Supp. 143 (D.Dela.1972) (Stapleton, J.); Krzewinski v. Kugler, 338 F.Supp. 492 (D.N.J.1972) (3-judge court)


text:
    James Hugh RIDGEWAY, Appellant, v. Terrell Don HUTTO, Commissioner of Correction, State of Arkansas, Appellee.
    No. 72-1637.
    United States Court of Appeals, Eighth Circuit.
    Feb. 20, 1973.

      Kenneth Coffelt, Little Rock, Ark., filed brief for appellant.
    Ray Thornton (former Atty. Gen.) and Henry Ginger, Deputy Atty. Gen., Little Rock, Ark., filed brief for appel-lee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

The petitioner appeals from the denial of his habeas corpus petition in federal District Court. The facts are not in dispute and have been agreed upon by the parties in a stipulation filed in this Court on November 30, 1972:

“Appellant was charged in the Circuit Court of Pulaski County, Arkansas, under information, filed by the Prosecuting Attorney with the crime of assault with intent to kill one Gene Ray Cannon. The information alleged that appellant did unlawfully, feloniously, wilfully and with malice aforethought make an assault upon Gene Ray Cannon with a deadly weapon, to-wit: a knife, then and there cutting him, the said Gene Ray Cannon with said knife then and there held in the hands of him, the said James Hugh Ridge-way.—
“In the trial of the case the prosecuting witness, Cannon, testified, and there was no other proof to the contrary on the part of the State, that appellant Ridgeway shot him with a gun, and did not cut him with a knife; that another person, Butch Vaughn, cut him with a knife. The three were on the river bank when the assault occurred.”

The appellant’s conviction was affirmed by the Arkansas Supreme Court in Ridgeway v. State, 472 S.W.2d 108 (1971).

The appellant’s sole contention on this appeal is that his right to be “informed of the nature and the cause of the accusation” as guaranteed by the Sixth and Fourteenth Amendments was violated at trial due to a fatal variance between the allegations in the information and the proof at trial.

We believe the appellant waived any objection he might otherwise have had because he failed to object to the variance at trial. It is clear that the appellant did not object at trial to the introduction of the variant evidence. See, Jackson v. United States, 123 U.S.App.D.C. 276, 359 F.2d 260, 264 & n.3, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Furthermore, even though the appellant did move for a directed verdict at the close of the state’s case and at the close of all the evidence, there is no indication that these motions were based on the variant proof submitted by the state so as to preserve this question for appeal. 2 Wright, Federal Practice and Procedure, § 516 at 378-379 (1969); cf., McIntyre v. United States, 380 F.2d 822, 826 (8th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 493, 19 L.Ed.2d 487 (1967).

In any event, a careful examination of the record reveals that the appellant was not prejudiced by the fact that the proof varied from the allegations in the information. The appellant’s theory at trial was that although he was in the immediate vicinity of the crime, another person committed both the shooting and knifing. Thus, the variant proof did not prejudice the defendant’s defense. See, United States v. Covington, 411 F.2d 1087, 1089 (4th Cir. 1969). In addition, there is no indication that the appellant was surprised by the variant proof and no motion was made to the court for a continuance for the purpose of preparing a new defense. See, United States v. Covington, supra; United States v. Costello, 381 F.2d 698, 701 (2nd Cir. 1967).

Affirmed.


text:
    Gene Patrick GAREAU, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-1546.
    United States Court of Appeals, Sixth Circuit.
    Submitted Jan. 29, 1973.
    Decided Feb. 15, 1973.
    Gene Patrick Gareau, in pro. per.
    Frederick M. Coleman, U. S. Atty., Edward S. Molnar, Asst. U. S. Atty., Cleveland, Ohio, for respondent-appellee.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.
   PER CURIAM.

This is an appeal from the dismissal of a petition for a writ of habeas corpus and the denial of a motion to reconsider the petition. Because the United States Attorney has not favored this court with a brief in response to the brief- of appellant as required by Fed.R.App.P. 31(a), this appeal has been heard and decided upon the brief of appellant and the record.

Appellant is presently serving concurrent sentences in Ohio state prison as a result of a 1968 conviction for armed robbery and shooting with intent to kill. In 1965, appellant pled guilty in federal court to violation of 26 U.S.C. § 5851 (1964), for which he received, and has served, a sentence of three years’ imprisonment. After he completed serving his federal sentence, the Supreme Court held that assertion of the Fifth Amendment’s privilege against self-incrimination provided a complete defense to prosecutions'under the provisions of the National Firearms Act to the violation of which appellant had pled guilty, Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), and that this ruling was to be given retroactive application. See United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); Decker v. United States, 402 U.S. 937, 91 S.Ct. 1604, 29 L.Ed.2d 106 (1971), vacating and remanding 423 F.2d 726 (6th Cir. 1970).

On the authority of these decisions, appellant filed a petition for a writ of habeas corpus, alleging that he was in custody in violation of the Constitution because his federal conviction had the effect of increasing the time that he must serve in state prison before he will be eligible for parole. The District Court dismissed the petition initially because of the decision of this court in Decker, supra, that Haynes v. United States, supra, was not to be accorded retrospective effect. Following the vacation of Decker by the Supreme Court, appellant moved for reconsideration of the dismissal of his petition. The District Court denied his motion because it regarded appellant’s petition as a motion to vacate sentence under 28 U.S.C. § 2255 and, since appellant was not serving his federal sentence when the petition was filed, the attack on his federal conviction was “moot.”

Consistent with the teaching of the Supreme Court in United States v. Morgan, 346 U.S. 502, 505, 74 S.Ct. 247, 249, 98 L.Ed. 248 (1954), that “in behalf of the unfortunates, federal courts should act in doing justice if the record makes plain a right to relief,” we determine that the District Court should have treated “the record as adequately presenting a motion in the nature of a writ of error coram nobis enabling the trial court to properly exercise its jurisdiction.” And the collateral consequences of appellant’s federal conviction demonstrate that his claim is not moot. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); United States v. Morgan, supra, 346 U.S. at 512-513, 74 S.Ct. 247, 98 L.Ed. 248; cf. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Moreover, it is clear from the authorities cited above that appellant’s 1965 federal conviction is constitutionally infirm. Accordingly, we reverse and remand with instructions to vacate the 1965 federal judgment of conviction and the sentence imposed pursuant thereto. See United States v. Morgan, supra, 346 U.S. at 513, 74 S.Ct. 247, 98 L.Ed. 248.

Reversed and remanded.


author: RIVES, Circuit Judge: BY THE COURT:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jo Anna Newby CARAWAY a/k/a Jo Newby and Daniel Elden Scales, Defendants-Appellants.
    No. 72-2198.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1973.
    As Amended Feb. 14, 1973.
    Rehearing En Banc Granted April 4, 1973.

      Melvyn Kessler, Miami, Fla. (Court-appointed), for Caraway.
    Sky E. Smith, Miami, Fla. (Court-appointed), for Scales.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, II, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   RIVES, Circuit Judge:

Defendants, Jo Anna Newby Caraway and Daniel Elden Scales, were charged in a two-count indictment with (1) conspiracy to violate 21 U.S.C. § 952(a), and (2) intentionally and knowingly violating § 952(a) by importing six pounds of marijuana.

Initially, each defendant pleaded not guilty to both counts. After denial of their joint motion to suppress “all evidence seized,” both defendants asked and were granted permission to withdraw the plea of not guilty as to Count II and to plead nolo contendere to that count. The district judge, upon accepting their pleas of no contest, admonished defendants in the following exchange:

“THE COURT: .... Have each of you had an opportunity to discuss with your lawyers the entry of a plea of nolo contendere as to Count II?
“THE DEFENDANTS: Yes, sir.
“THE COURT: Have your lawyers advised you that there has been an agreement between the Government and defense counsel that should you plead nolo contendere and be found guilty the Court would put Miss Caraway or Miss Newby on probation and would sentence Mr. Scales to six months ?
“Have both of you understood that?
“THE DEFENDANTS: Yes, sir.
“THE COURT:' Do each of you agree to that?
“THE DEFENDANTS: Yes, sir.
“THE COURT: Do you both understand that a plea of nolo contendere is tantamount, in effect, to a plea of guilty.
“THE DEFENDANTS: Yes, sir.” [Tr. pp. 68, 69.]
“THE COURT: Has anyone, other than what I have said with respect to the agreement with the Government, exercised any force, interrogation or duress of any kind or made any promises to you, other than what I have said, in order to induce you to plead nolo contendere to this charge ?
“THE DEFENDANTS: No, sir.
“MR. SMITH [Attorney for Scales]: The only other statements which were made to the defendants was concerning their right to appeal, and the Court advised them that Mr. Scales would be allowed the same condition of release pending appeal?
“THE COURT: Yes, sir.” [Emphasis added.] [Tr. pp. 69, 70.]

On imposition of sentence, the Court further informed defendants that:

“ . . . . It is the further order of the Court that each of you shall continue to remain at liberty pending appeal upon bond under the same terms and conditions heretofore set. it
“Now, it is my duty to advise each of you that you have an absolute right to appeal from this judgment and sentence and that you are entitled to be represented by an attorney at all times. . . . ” [Emphasis added.] [Tr. p. 74.]

Defendants, through this appeal, contest the validity of the warrantless search by Customs Agents of Scales’ boat and allege trial court error in denying their motion to suppress the fruits of that search. Since their nolo con-tendere plea precluded the necessity of introducing evidence, defendants attack a search whose constitutional stature is not a jurisdictional issue.

Under normal circumstances, a plea of nolo contendere is the legal equivalent of a guilty plea and a waiver of all non jurisdictional defects. Lott v. United States, 1961, 367 U.S. 421, 81 S.Ct. 1563, 6 L.Ed.2d 940; Zebelman v. United States, 10 Cir. 1964, 339 F.2d 484, 485; United States v. Moretti, 2 Cir. 1965, 353 F.2d 672, 673; 3 Wright, Federal Practice & Procedure § 678, p. 140 n. 28. However, when the trial court and defendant enter an explicit agreement that a no contest plea preserves objections to the evidence found admissible by denial of the motion to suppress, this Court has felt constrained to honor such an agreement. United States v. Rosenberg, 5 Cir. 1972, 458 F.2d 1183; United States v. Kelehar, 5 Cir. 1972, 470 F.2d 176. Cf., United States v. Wysocki, 1972, 457 F.2d 1155, 1162. See also Jaben v. United States, 8 Cir. 1964, 333 F.2d 535, 538, aff’d, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345.

In United States v. Doyle, 2 Cir. 1965, 348 F.2d 715, 719, cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84, Judge Friendly recognized that,

“There are a number of ways to deal sensibly with such a ease without departing from the principle of Parrino, [United States v. Parrino, 2 Cir. 1953, 203 F.2d 284, 286-287], A plea expressly reserving the point accepted, by the court with the Government’s consent or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own.”

(Emphasis added.) (Footnote omitted.) Continuing, Judge Friendly discussed Jaben and quoted from his examination of the record in Jaben “not brought to our attention by counsel for either side” that

“* * * this [the record] shows that Jaben pleaded nolo on the express condition ‘that the defendant will then have an opportunity to have the question as to whether the said count is barred by the statute of limitations decided upon by the Eighth Circuit Court of Appeals or by the Supreme Court, and that the plea of nolo conten-dere is not to preclude the defendant from taking an appeal on the issue at that time.’ ”

348 F.2d at 719.

Our rationale for recognizing this type of express agreement is twofold. First, we are reluctant to establish a rigid rule requiring a defendant to undergo the costly and futile ordeal of a complete trial, when the State could easily prove its case by the evidence claimed to b.e illegally obtained and by no other evidence, and the defendant merely seeks to preserve a single, nonjurisdictional issue. See United States v. Warden of Attica State Prison, 2 Cir. 1967, 381 F.2d 209. Second, of the combined requisites, “voluntariness” and “intelligence” (see Brady v. United States, 1970, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747), for equivalence to a valid guilty plea, a nolo plea, conditioned on right to appellate review of a motion to suppress evidence, might now (since McMann v. Richardson, 1970, 397 U.S. 759, 768-771, 90 S.Ct. 1441, 25 L.Ed.2d 763) meet the test of being “voluntary,” but the conditioning of the plea on a right to appellate review demonstrates that it was not so “intelligently” entered as to waive deprivation of the non jurisdictional defect sought to be reviewed; and more especially so, where, at the time of pleading, the practice of the reviewing court is to honor such a condition allowed by the trial court.

The pivotal marijuana, which defendants are charged with importing, arrived at Miami International Airport, from Jamaica, concealed in a steamer trunk. The trunk was addressed to Jo Anna Caraway, 1555 Griffin Road, Miami, Florida (the Marina address), Customs officials, suspicious of the trunk’s contents, placed it in the Cus-'Mpms Seizure Room where it lay unclaimed for three days.

On the third day, Mr. Cole, a resident of the Marina where Scales’ houseboat was docked, arrived to claim the trunk. Customs officials opened the trunk at the airport in Cole’s presence, discovered the marijuana, and immediately arrested Cole. Under interrogation, Cole professed his innocence, implicated the defendants in the importation plot and claimed to have seen defendants smoking marijuana on Scales’ boat.

Customs agents, evidently convinced that Cole was blameless, enlisted his aid in conducting a “controlled delivery.” The trunk was secured; Cole was instructed to return to the Marina as planned, and Customs officials secretly closed in on the rendezvous. At the Marina entrance, Scales stopped Cole and apprehensively asked him why he was delayed. Cole panicked and said, “There’s marijuana in the trunk and we are all going to get busted.” [Tr., p. 26.] Scales then turned to Miss Caraway, who was seated in a nearby car, and said, “Get out of here.”

Both Scales and Miss Caraway were immediately arrested. The trunk never left Cole’s truck. Yet, Customs officials proceeded to thoroughly search Scales’ unoccupied houseboat moored some distance away. This critical search turned up no additional contraband, but did expose letters addressed to Miss Caraway which referred to the marijuana shipment. [This fact does not appear in the record, but on oral argument counsel for Miss Caraway admitted that the letters contained references to the marijuana.]

Not only was Scales’ boat unoccupied, but also one of its engines was dismantled on the dock [Tr., p. 49], suggesting that the boat might have been inoperative. Nevertheless, Customs officials proceeded to make a warrantless, exploratory search of the boat.

Customs Agent Larry Morphis, attempting to justify the boat search, testified that,

“The way I figured, if a person is involved in smuggling with airline cargo and he has a boat and he has been known to smoke marijuana and all the other things we had, I figured it indicated a search of the boat, as far as my occupation is concerned.” [Tr., pp. 36, 37.]

In answer to later questions by defense counsel, Mr. Morphis elaborated on his reasons for conducting the boat search:

“Q. Agent Morphis, you made the statement that for many reasons you intended to search the vessel. Those were your words, I believe?
“A. Yes.
“Q. Can you list those reasons that you intended to search the vessel?
U
“A. . . . and that would be that here were the people who lived on the boat who, to the best of ray knowledge, appeared to be involved in the smuggling of marijuana via Pan American Airlines Cargo.
“Now, regardless of whether they were innocent or guilty, that along with the fact that they had been known to smoke marijuana and they had a boat, I thought that indicated that this boat should be searched . . . . ” [Tr., pp. 41, 42.]

Confronted with these feeble justifications for the boat search, the district judge initially granted defendants’ motion to suppress, stating that,

“ . . . There is no evidence that Customs ever knew this boat was out of the country. I can’t go with you at all on the theory that this is a border search.
“I know of no case in the entire case history which permits as a border search a search, for example, of a home or a permanent place of residence or a boat unless there is some knowledge that that boat has been outside the territorial waters of the United States.”

[Tr., p. 53.] After reasoning that Scales’ boat was not within the ambit of a border search, the district judge went on to puncture the Government’s claim of probable cause.

“I could see their interest in it [the boat], for example, if that steamer trunk had been delivered and taken on board that boat. But here you have a situation where it never did get on board that boat. I don’t see how Customs could have any right to search that boat at all without a search warrant, and I don’t think they have probable cause, really, to even get a search warrant.
“I am going to grant the motion to suppress, gentlemen.”

[Tr., p. 55.] After a short recess and consultation with government attorneys, the district judge abruptly overturned his prior ruling and denied defendants’ motion to suppress. He based his sudden reversal solely on 19 U.S.C. § 1581(a), which he had not previously considered. The pertinent portions of 19 U.S.C. § 1581(a) provide that,

“Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters . . . and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to impel compliance.”

The district judge, in his initial ruling, expressly held that the Customs’ boat search was not prompted by probable cause, nor was it within the scope of a legitimate border search. Although he ultimately denied defendants’ motion to suppress, the district judge never abandoned that earlier holding. Since the probable cause and border search issues are mixed questions of law and fact, this Court must give strong credence to the district court’s ruling on those issues.

19 U.S.C. § 1581(a), admittedly the sole basis for denial of defendants’ motion to suppress, does not vitiate the basic protection from unreasonable government intrusions provided by the fourth amendment. That statute, while literally broad enough to support any vessel search, may sweep only as widely as the fourth amendment permits. All searches must conform to the fundamental constitutional test of reasonableness. The warrantless search of Scales’ boat was manifestly unreasonable notwithstanding section 1581(a).

I. The Border Search Justification

Customs officials conducting' border searches have the exceptional power to search without probable cause. Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543; Cervantes v. United States, 9 Cir. 1959, 263 F.2d 800, 803; King v. United States, 9 Cir. 1965, 348 F.2d 814, 817. That power, although enabling “mere suspicion”based searches, does not obviate the necessity of compliance with the constitutional standard of reasonableness. Boyd v. United States, 1886, 116 U.S. 616, 623, 6 S.Ct. 524, 29 L.Ed. 746; Morales v. United States, 5 Cir. 1967, 378 F.2d 187.

Border search principles apply to an extended area radiating from the border, but broader than the immediate border area. Government officials may delay the search of a suspect vehicle entering the Country in order to trace the vehicle to its destination and sweep the guilty parties in with the contraband. See Rodriguez-Gonzales v. United States 9 Cir. 1967, 378 F.2d 256; Thomas v. United States, 5 Cir. 1967, 372 F.2d 252; United States v. Henderson, 5 Cir. 1972. 469 F.2d 1074.

Customs officials cannot, however, give unreasonable elasticity to the border concept. In outlining the limits of an extended border search, the court in Alexander v. United States, 9 Cir. 1966, 362 F.2d 379, 382, suggested that the government action be tested by

“ . . .a determination whether the totality of the surrounding circumstances, including the time and distance elapsed as well as the manner and extent of surveillance, are such as to convince the fact finder with reasonable certainty that any contraband which might be found in or on the vehicle at the time of search was aboard the vehicle at the time of entry into the jurisdiction of the United States.”

Applying the Alexander standard, the Customs search of Scales’ boat cannot conceivably fall within the ambit of an extended border search. The contraband was never placed on the boat. The boat did not cross any border. The district court ruling simply reinforces that conclusion.

II. The Probable Cause Justification

If the Customs officials were outside the bounds of a border search when they entered Scales’ boat, their actions cannot be justified unless based on probable cause. But no facts were known which, together with rational inferences from those facts, could have warranted this intrusion. The district judge, when confronted with the evidence, ruled that no probable cause existed. In light of the record before this Court, that decision appears irrefutable.

Searches conducted outside the judicial process are per se unreasonable subject to a few well-established exceptions. Katz v. United States, 1967, 389 U.S. 347, 356, 88 S.Ct. 507, 19 L.Ed.2d 576. Accord, Coolidge v. New Hampshire, 1971, 403 U.S. 443, 454-455, 91 S. Ct. 2022, 29 L.Ed.2d 564. Customs officials made a full exploratory search of Scales’ boat without a warrant. Yet, there was no danger that the suspect vehicle would escape from the jurisdiction. Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Nor did Customs agents possess any reliable information suggesting the necessity of an immediate search. Cole’s tale of nocturnal pot parties was unsubstantiated, and he was personally involved in the importation as well as previously unknown to law enforcement authorities.

III. Application of 19 U.S.C. § 1581(a)

The trial judge reversed his ruling on the motion to suppress solely on the basis of section 1581(a). Section 1581(a) has never been interpreted to grant the sweeping power which its language implies. In Fish v. Brophy, S.D.N.Y.1931, 52 F.2d 198, a New York district court held invalid a warrantless Customs search of defendant’s pleasure boat, allegedly authorized by section 581 of the Tariff Act of 1922 (the identically worded predecessor of 19 U.S.C. § 1581(a)). The Brophy court ruled that section 581 authorized searches only where the detained boat was required to carry a manifest, and manifests are required only in the case of vessels arriving in the United States with cargo from foreign ports. The Brophy court emphatically stated that, “It is hard to believe that the Legislature intended, in section 581, to place private pleasure boats in the same position as vessels importing cargo into the United States.” 52 F.2d at 201.

In a later case involving the Customs’ search of a fishing boat, United States v. Coppolo, D.N.J.1932, 2 F.Supp. 115, Judge Avis, in interpreting the exact statute at issue here, rejected the Bro-phy holding that the Tariff Act applied only to vessels carrying cargo from a foreign port. Instead, he found the search illegal under the theory that a government officer has the right to board a vessel to inspect the manifest and observe the cargo, but cannot conduct an exploratory search unless the initial boarding reveals “apparent violation of the navigation or revenue laws.”

The Customs’ search of Scales’ boat was illegal under the rationale of either the Brophy or Coppolo cases. Scales’ boat was apparently inoperable, utilized as a stationary home, and clearly incapable of transporting cargo. To apply section 1581(a) to such a case would impart to that statute unconstitutional scope.

Reversed and remanded.

Granting Motion for Rehearing En Banc

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

BY THE COURT:

A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc,

It is ordered that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

      . 21 U.S.C. § 952(a) :
      “It shall be unlawful ... to import into the United States from any place outside thereof, any controlled substance in schedule I or II of sub-chapter I of this chapter . . . , except that . . . [such substance] may be so imported under such regulations as the Attorney General shall prescribe . . . .”