author: WEIS, Circuit Judge.

text:
    PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA, Appellant in No. 74-1353, v. Selma EHRLICH, Appellant in No. 74-1354, Shirley Ehrlich a/k/a Shirley Joan Ehrlich, Shirley Ehrlich a/k/a Shirley Joan Ehrlich, Executrix of the Estate of Edward H. Ehrlich, Deceased.
    Nos. 74-1353 and 74-1354.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 19, 1974.
    Decided Jan. 27, 1975.

      J. Stokes Adams, III, Philadelphia, Pa., for appellant, Provident Mutual Life Ins. Co. of Philadelphia; Hart, Childs, Hepburn, Ross & Putnam, Philadelphia, Pa., of counsel.
    Jay D. Barsky, Philadelphia, Pa., for appellant, Selma Ehrlich.
    M. Stuart Goldin, Isenberg, Goldin & Blumberg, Philadelphia, Pa., for appel-lee, Shirley Ehrlich.

      Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

The break up of a family is an unhappy affair whose consequences linger on long after the event and often involve strangers as well as those directly concerned. In this case a life insurance company finds itself in the unpleasant position of being beset by competing claims of two wives of a deceased insured. While both have sympathetic appeal, we conclude that only one can prevail here. The decision of the district court in making an award to both women, while somewhat solomonic in nature, we find to lack legal support.

Dr. Edward Ehrlich left his wife, Selma, and four children in the family home in Philadelphia in 1966 and moved to Nevada where he later secured a divorce and married Shirley. Some years before, he had taken out a life insurance policy with the Provident Insurance Company naming Selma, the first wife, as beneficiary. After the second marriage, he wrote to the insurance company requesting that Shirley be designated as beneficiary. The company declined to change the designation on its records because of pending litigation brought by Selma.

When Dr. Ehrlich died in 1972, both wives claimed the proceeds of the policy. Provident filed an interpleader in the United States District Court for the Eastern District of Pennsylvania and paid the proceeds into the court. After a trial, the district court held that Shirley had been legally designated beneficiary and was entitled to the proceeds. The court also decided that Selma was entitled to recover an equivalent amount from the insurance company because of equitable estoppel, 374 F.Supp. 1134. We affirm as to Shirley but reverse as to Selma.

The policy, which originally named Selma as the beneficiary, was in the face amount of $25,000 and was issued to Dr. Ehrlich on December 9, 1962. One of the policy provisions was that the insured reserved the right to revoke and change the beneficiary.

It was on or about October 6, 1966 that Dr. Ehrlich left Philadelphia permanently, and on October 25, 1966, Selma brought an action against him under the Act of 1907, P.L. 227, 48 P.S. § 132, in the Common Pleas Court of Philadelphia County. This statute provides that, in the event of failure to provide for the support of his wife and children, proceedings may be instituted against any real or personal property of the husband and the court may direct a seizure and sale of sufficient assets to provide funds for the maintenance of wife and children.

On November 10, 1966, the state court appointed a receiver for the real estate of the husband which had been specifically described in the complaint and directed that the property be sold. The order further provided that “[t]he Receiver is hereby authorized: (a) To seize and take possession of all the property, assets and effects of the defendant not limited to those above described or referred to wheresoever situate or found.” Dr. Ehrlich received notice of this order although he was never personally served and did not subject himself to the jurisdiction of the Philadelphia court. On November 23, 1966, the attorney for Selma sent a copy of the court order to the Provident Insurance Company along with a letter requesting information on the amount of a quarterly premium which was soon due.

On December 28, 1966, Dr. Ehrlich divorced Selma in a Nevada proceeding and married Shirley on the same day. As part of the divorce decree, the doctor was ordered to make support payments of $100 per month per child until emancipation, with credit to be allowed for the assets attached in the Pennsylvania court proceeding. Ehrlich established a medical practice in Nevada and continued to live there until his death some six years later.

Dr. Ehrlich wrote to the Provident on February 20, 1967, saying:

“Please send me forms for change of beneficiary as well as the policy numbers which I have with you. My agent, C. E. Tobias, has not answered my request for this information in a letter dated Dec. 2nd, 1966. Perhaps you can roust him out.
“At any rate, this letter will serve in lieu of an official form until I can complete one.
“Change primary beneficiary from Selma Ehrlich to Shirley Ehrlich.”

In-house counsel for Provident responded on March 2, 1967, advising that the company could not permit the doctor to deal with the policies because of the November 10, 1966 order of the Philadelphia court.

After receiving premium notices from the company on May 2, 1967, Dr. Ehrlich wrote again on May 10:

“I have a letter from your legal department 3/3/67 stating that because I am in receivership in Penna. you cannot change the beneficiaries of my life insurance. In this case allow the policies to lapse. If you can change the beneficiaries, I will continue the policies.”

On May 17, 1967, Provident wrote Selma’s attorney inquiring “whether this matter has progressed to the point whereby it might be permissible for Doctor Ehrlich to effect changes of beneficiaries . . . ” Selma’s counsel responded on May 19 that he did not agree to any change of beneficiary and further opined that the cash surrender value was subject to the court order and, accordingly, that the receiver was entitled to these proceeds. The company’s in-house counsel replied by letter on May 22, 1967, stating that the cash values, in accordance with the contract, would be used for the purchase of extended term coverage. The letter concluded: “Mrs. Ehrlich’s rights, of course, are fully protected in that she is continued as beneficiary for the period covered by the two policies placed under extended term . ” On that same day the company also wrote to Dr. Ehrlich and in referring to the court order stated, “This is a matter of law over which we have no control. Thus we are unable to effect a change in beneficiary designation

Selma never secured a court order specifically reciting any interest in the policy or directed to Provident. On October 18, 1967, the receiver was released by the court after accounting for the sale of real estate and collection of debts owed to the doctor by various patients.

Logically, the first question to be answered is — who is the legal beneficiary?

Pennsylvania law, which the parties have considered applicable here, is to the effect that when an insured wishes to change the beneficiary, he can do so without strict and literal compliance with the policy terms. Thus, it is not always necessary that the form supplied by the company be used or that the change be endorsed on the policy. Substantial compliance with policy provisions is sufficient. All that is required is that every reasonable effort under the circumstances be made to effect the change. Kit v. Stecker, 109 F.2d 281 (3d Cir. 1940); Ruggeri v. Griffiths, 315 Pa. 455, 173 A. 396 (1934); Riley v. Wirth, 313 Pa. 362, 169 A. 139 (1933). Cf. Breckline v. Metropolitan Life Insurance Co., 406 Pa. 573, 178 A.2d 748 (1962). See also Couch on Insurance 2d § 28.66; Vance on Insurance § 109 (3d ed.).

Here, Dr. Ehrlich wrote twice to the insurance company and once to the agent, advising of his desire to change the beneficiary. The insurance company refused to honor the instructions of its insured and would not even forward the standard forms.

From the tenor of Provident’s letters, it is clear that even if the insured had used the company forms and had forwarded the policy, the company’s reaction would have been the same since it felt bound by the state court order. Under the circumstances, therefore, we cannot say it was error for the district court to find that the insured made every reasonable effort to comply with the policy requirements.

The district court held also that the order of the Philadelphia Common Pleas Court was ineffectual to prevent a change of beneficiary. We agree with the reasoning of the trial court that the Act of 1907 provides for an in rem proceeding and that Selma did not comply with the procedures necessary to subject the insurance contract to the Common Pleas Court order. Although the company had its headquarters in Philadelphia, it was never formally served, and of more significance there was no compliance with the requirements set forth by the Supreme Court of Pennsylvania in Jones v. Jones, 344 Pa. 310, 312, 25 A.2d 327, 328 (1942):

“It is imperative if service cannot be made on the principal defendant in the jurisdiction of the court that there be property, ‘real or personal’, within that jurisdiction and that the property of the defendant which the court is asked to seize be specifically set forth in the bill: Boudwin v. Boudwin, 320 Pa. 147, 150, 182 A. 536.”

Therefore, even if it be assumed, arguen-do, that Provident was in possession of “property” of the insured, the failure to comply with state law by specifically itemizing that “property” rendered the Common Pleas Court order legally ineffectual as to the insurance company. Thus, there was no legal barrier to prevent Dr. Ehrlich from changing the beneficiary, and the district court was correct in finding that Shirley was entitled to the proceeds of the policy.

Although the nature of the insured’s interest need not be considered in resolving Shirley’s claim, it is pertinent to the second issue presented — Selma’s counterclaim based on equitable estoppel. .The insured had the right under the policy to change the beneficiary. The company had no contractual right to refuse such a change, other than to insist on formal or ministerial procedures. As has been seen, if circumstances or the insurer’s conduct prevent the fulfillment of these ministerial requirements, the company cannot insist upon them. Furthermore, since these procedures are for the protection of the insurance company, the original beneficiary has no right to insist upon compliance. Petrik v. National Slovak Union, 136 Pa.Super. 308, 7 A.2d 60 (1939).

It may be seen, therefore, that what is involved is a right of the insured, personal to him, to make a change pursuant to the contract. This privilege cannot be abrogated by the insurance company in the absence of a statutory provision or consent by the insured, and it cannot be assigned or transferred by the company. It is a purely personal right. Although an insured may be bound by a contract with a third party to refrain from changing a beneficiary or be similarly inhibited by a divorce or support decree, such instances are founded on either consent by the insured or jurisdiction over his person. Those factors were lacking here. The Philadelphia court had no personal jurisdiction over the one person able to make a change in the policy — that is, Dr. Ehrlich.

There is no statute in Pennsylvania giving an insurance company the right to refuse a change of beneficiary under circumstances such as these, nor is there any power in a local court to make such an order upon the insurance company in the absence of personal jurisdiction over the insured.

Thus, we find no basis to hold that the Court of Common Pleas would have had any authority to prevent the change of beneficiary by enjoining the insurance company.

Selma’s counterclaim is based on the theory that she relied to her detriment on the representation of the company’s in-house counsel that she was continued as beneficiary. She asserts that if such assurances had not been given, she would have secured an order from the Common Pleas Court specifically directed to the insurance company. Since in our view such an order would have been to no avail, even if it had been obtained, she suffered no detriment, and consequently there is no basis for recovery.

There is another reason why Selma cannot succeed. In her briefs filed in this court, she states flatly that there was no reliance upon any legal opinion which might have been implicit in the company’s letter of May 22, 1967 but that prejudice occurred solely because of a factual representation in that letter.

The difficulty with her position is that from a factual standpoint there was no misstatement by the company. It did not change the beneficiary on its records, which continued to reflect Selma as the beneficiary. Insofar as it was within the company’s power to control the situation, she was continued as the beneficiary. The change did not come about by any voluntary act on the part of Provident but by operation of law.

Both the insurance company and Selma’s lawyer were aware of the same facts. Both knew or could have learned of the legal effect of the factual situation, namely, that the insurer’s unilateral action could not impair the policy owner’s right to change the beneficiary.

In denying recovery based on an es-toppel theory, a Pennsylvania appellate court said, “Both parties were equally familiar with the underlying facts of their relationship and it is unrealistic to hold that plaintiff relied on defendant’s answer any more than on his own independent judgment.” Ham v. Gouge, 214 Pa.Super. 423, 425-426, 257 A.2d 650, 652 (1969). There was no factual misrepresentation by the insurance company, here. The error was in the legal interpretation placed on the facts — an area where the parties were on an equal footing. On this basis, also, there is no liability on the insurance carrier.

Even if it be assumed, arguendo, that a Common Pleas order directed to the company could have affected Dr. Ehrlich’s rights, then the error in failing to secure it cannot be chargeable to the insurer. Selma’s attorney relied on the factual information received from the company. He was bound to know that a voluntary forbearance on the part of the insurance company could not adversely affect the legal rights of the insured. The company was not the agent of the doctor. If his rights could have been affected by the court decree, then it was necessary that Selma arrange for service upon the company of an order of seizure. Only then could the court’s order have whatever legally binding effect it possessed on Dr. Ehrlich’s rights. Although; in the circumstances here, it might be found that the company had waived service as to itself, it had no authority from its insured to waive any of his prerogatives. This, again, was not a factual matter but a legal problem whose solution remained with Selma’s lawyer. We make this point only to illustrate again the lack of detriment occasioned by the company’s letter, not to imply liability upon the part of Selma’s counsel. As we concluded earlier, the Common Pleas Court had no power to prevent a change of beneficiary in this situation, and therefore her lawyer could not have influenced that result.

As one of the prayers for relief in the interpleader, the company requested an injunction against the prosecution of suit in the Court of Common Pleas of Philadelphia — Selma Ehrlich v. The Provident Mutual Life Insurance Company at No. 2728 November Term, 1972. Since that suit sought to establish the claim of Selma as a beneficiary and the rights of the parties have been fully adjudicated in this case, the requested relief should be granted. 28 U.S.C. § 2361.

The judgment in favor of Shirley Ehrlich will be affirmed. The judgment in favor of Selma Ehrlich will be vacated, and the matter remanded to the district court for the entry of an appropriate order.

      . “§ 132. Proceedings against husband’s property; sale or mortgage; service of process

      “Whenever any man has heretofore separated, or hereafter shall separate, himself from his wife or children, without reasonable cause, or whose whereabouts are unknown, and, being of sufficient ability, has neglected or refused or shall neglect or refuse to provide suitable maintenance for his said wife or children, proceedings may be had against any property real or personal of said husband necessary for the suitable maintenance of the said wife or children; and the court may direct a seizure and sale, or mortgage, of sufficient of such estate as will provide the necessary funds for such maintenance; and service upon the defendant shall be made as in other actions, at law or in equity, or in the manner provided in the act of General Assembly, entitled ‘An act to authorize the execution of process in certain cases in equity, concerning property within the jurisdiction of the court, and on the defendants not resident or found therein’ . . ”

      . One of the two policies lapsed before the death of Dr. Ehrlich and is not involved in this suit.

      . The deposition of an attorney employed by Provident reflected the following exchange:
      “Q. I don’t want to twist your testimony, isn’t that the way it works, that when wife No. 1 makes a noise or her lawyer makes a noise and husband is attempting to change the beneficiary to wife No. 2, you tell the company to refrain from noting wife No. 2 on the policy as long as those noises and activities by wife No. 1 and her lawyer go on?
      “A. That’s true, yes.”

      . In reliance upon such cases as Riley v. Wirth, 313 Pa. 362, 366, 169 A. 139, 140 (1933), the district court stated that the payment of the proceeds of the policy into the court registry acted as a waiver by the company of the formal policy requirements for change of beneficiary. However, we think that the better view is set out in Vance on Insurance (3d ed.). In § 109 at 690, the author wrote:
      “ . . . the insurer does not by an in-terpleader or other act performed after the insured is dead transfer any rights from one claimant to the other. The insurer merely indicates by its action that it has not paid out the policy proceeds in reliance on the policy provisions relative to change in benefit and hence the courts need not. apply an exception in order to protect the insurer, but on the other hand, they may apply the usual rule of substantial compliance.”

      . It may be that the company waived, as to itself, any objection to lack of formal service upon it. That issue, however, is not controlling at this point in our decision and we do not rely upon it. Whether the company had the authority to waive service and “seizure” so as to affect the rights of its insured, however, is another matter which will be discussed infra.

      . The policy provided:
      “CHANGE OF BENEFICIARY. The beneficiary is the person or party named in or designated by endorsement on this policy to receive the proceeds hereof if the same shall become payable by the death of the Insured. The Insured, if of full age, may change and successively change any revo-cably designated beneficiary and may declare the designation of any beneficiary to be irrevocable . . Every change of beneficiary must be made in writing and filed with the Company at its Home Office, accompanied by this policy, and the Company shall be charged with notice of such change only when endorsed on this policy by the Company . . . ”
      Note that this provision does not state that the change will be effectual only when endorsed on the policy but that only then will the company be charged with notice.

      . See Couch on Insurance 2d § 28:41. The record reveals that Selma brought an action for support against her former husband in Nevada where he was residing. Although that court would have had personal jurisdiction over the husband and perhaps could have enjoined him from exercising his right to change beneficiaries, we find no indication that Selma pursued this course of action in those proceedings.

      . Certain Pennsylvania cases have upheld the attachment of intangible contractual rights belonging to a husband who is outside the personal jurisdiction of the court in order to get at a res located in the state which could be used for a wife’s support. See, e. g., Crane v. Crane, 373 Pa. 1, 95 A.2d 199 (1953) (shares of stock of a Pennsylvania corporation); Jones v. Jones, 344 Pa. 310, 25 A.2d 327 (1942) (future interest in a trust res located in Pennsylvania). Luick v. Luick, 164 Pa. Super. 378, 64 A.2d 860 (1949) (assets of a partnership located in Pennsylvania). Cf. Cook v. Cook, 115 P.L.J. 165 (1966) (retirement fund stemming from a Pennsylvania employment contract). The case sub judice, however, concerns insurance proceeds which were nonexistent in the time period when Selma could have petitioned Common Pleas Court for a supplemental order. There was no fund in Pennsylvania until Dr. Ehrlich died in 1972, and when that occurred, there was no longer a duty to provide support or maintenance.

      . Furthermore, there is substantial doubt that a court having personal jurisdiction over a husband can order him to obtain the cash surrender value of policies from an insurance company, Commonwealth v. Sternberg, 184 Pa.Super. 216, 132 A.2d 770 (1957), and it seems that a wife cannot attach the insurance company to obtain the cash surrender of policies owned by her husband. Taylor v. Taylor, 36 Pa.D. & C. 320 (C.P.Phila.) (1938); Commonwealth v. Gault, 21 Pa.D. & C. 420 (M.C.Phila.) (1934).

      . See note 5, supra.


source: Caselaw Access Project

author: SETH, Circuit Judge. BARRETT, Circuit Judge

license: Public Domain

text:
    Thomas H. MAY and David C. Vigil, for themselves and on behalf of all others similarly situated, Appellants, v. The SUPREME COURT OF the STATE OF COLORADO et al., Appellees.
    No. 74-1183.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 18, 1974.
    Decided Dec. 31, 1974.

      David C. Vigil, Denver, Colo., for appellants.
    Irvin M. Kent, Asst. Atty. Gen. (John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., and Eugene F. Megyesy, Jr., Asst. Atty. Gen., with him on the brief), for appellees.
    Before LEWIS, Chief Judge, and SETH and BARRETT, Circuit Judges.
   SETH, Circuit Judge.

Plaintiffs-appellants filed suit on behalf of themselves and all others similarly situated seeking to enjoin the enforcement of Rule 227, Colorado Rules of Civil Procedure, and asking a refund of all monies paid by members of the class pursuant to the rule. Rule 227 requires that an annual fee of twenty dollars (five dollars in certain instances) be paid to the Clerk of the Supreme Court of Colorado by each lawyer admitted to practice in the state. The funds so collected are to be used by the Colorado Supreme Court only to “defray the costs of disciplinary administration and enforcement” proceedings brought against lawyers. The rule also provides for suspension from practice if the fee is not paid.

Defendants filed a motion to' dismiss, asserting lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim upon which relief could be granted. The question of convening a three-judge court was also argued by both sides. After hearings on the motions, the trial judge dismissed the action for lack of the required amount in controversy, and further found that the complaint did not state a substantial federal question.

The initial complaint alleged jurisdiction under 28 U.S.C. §§ 1331 and 1341. After the district judge ruled on the motions referred to above, the plaintiffs tendered an amended complaint alleging jurisdiction under 28 U.S.C. § 1343. On this appeal each of these sections is urged as a basis for jurisdiction. We will consider them all, since federal jurisdiction may be sustained on the basis of a statute not relied on or alleged in the pleadings. Sikora v. Brenner, 126 U.S.App.D.C. 357, 379 F.2d 134; Paynes v. Lee, 377 F.2d 61 (5th Cir.).

In reliance on 28 U.S.C. § 1341, the appellants are faced with the trial court’s finding that there was a plain, speedy, and efficient remedy available in the Colorado courts, assuming that the fee required by Rule 227 is a “tax.” But in any event 28 U.S.C. § 1341 does not operate to confer jurisdiction but instead limits jurisdiction which might otherwise exist. 28 U.S.C. § 1331 asserted by plaintiffs as a basis for jurisdiction is, of course, the federal question section and jurisdiction is there provided, where the amount in controversy exceeds $10,000 and the action “arises under the Constitution, laws, or treaties of the United States.” As analyzed by the trial court the complaint presents two state claims and two federal claims. The federal claims with which we are here concerned are:

1. That the imposition and collection of the “tax” by the Colorado Supreme Court is a usurpation of legislative power and in violation of the doctrine of separation of powers set forth in the Colorado Constitution, and that such violation constitutes an invasion of the plaintiff’s due process and equal protection rights under the Fourteenth Amendment to the United States Constitution.

2. That the difference in treatment accorded lawyers who pay the fee and those who do not constitutes invidious discrimination against those who do not pay the fee and is in violation of due process and equal protection rights under the Fourteenth Amendment to the United States Constitution.

The amount in controversy requirement under 28 U.S.C. § 1331 has been considered in a number of cases involving fees and assessments. In the case before us the plaintiffs will be suspended from the practice of law if they do not pay the fee. Plaintiffs assert that the amount in controversy is not the fee but the value of their right to practice law, and this is more than $10,000. The trial court found to the contrary, and in so doing it followed the rule set forth in Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248. It thus held that the amount in controversy is the amount of the tax or fee imposed rather than the financial effect of failure to pay the fee. See also Henneford v. Northern Pacific Ry. Co., 303 U.S. 17, 58 S.Ct. 415, 82 L.Ed. 619; Vicksburg, S. & P. Ry. Co. v. Nattin, 58 F.2d 979 (5th Cir.).

Plaintiffs assert on appeal that in cases where an injunction is sought the amount in controversy is measured by the value of the right sought to be protected. Some case law supports this as a general proposition: American Distilling Co. v. City of Sausalito, 73 F.Supp. 520 (N.D.Cal.); Caron Corp. v. Wolf Drug Co., 40 F.Supp. 103 (D.N.J.). But we are compelled to a different result by Healy v. Ratta. In Southern Fruit Co. v. Porter, 21 F.Supp. 1011 (W.D.S.C.), where an injunction was sought against a license and tax imposed on trucks, the court, in relying on Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, found that the amount in controversy was the amount of tax imposed and held the jurisdictional amount was not present. Mention must also be made of those cases where injunctions have been sought against business regulations imposed by state statutes or municipal ordinances. See McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135; City of Lawton, Oklahoma v. Chapman, 257 F.2d 601 (10th Cir.). Petitioners in these cases asserted that the amount in controversy should be tested by the value of their businesses. The courts reasoned that the right being protected in these cases was the right to be free of the challenged regulations. The Court in McNutt said: “The value of that right may be measured by the loss, if any, which would follow the enforcement of the rules prescribed.” Under these authorities, in the case before us the damage which results from being required to comply with Rule 227 is the amount of the fee, thus the jurisdictional amount is not met. See also Gibson v. Jeffers, 478 F.2d 216 (10th Cir.).

28 U.S.C. § 1343(3) gives the district courts original jurisdiction of actions:

“To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; . . . ”

Jurisdiction under this section is without regard to the amount in controversy. Howard v. Higgins, 379 F.2d 227 (10th Cir.). Plaintiffs have presented two claims which they urge establish jurisdiction under section 1343(3). One such claim is the allegation that the effect of Rule 227 is invidious discrimination against lawyers who do not pay the fee as opposed to those who do pay. This they assert violates the rights to due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution. Classifications are not created by the Rule. This claim is patently without merit, and will not support jurisdiction under section 1343(3).

Plaintiffs’ second 28 U.S.C. § 1343 claim is based on the doctrine of separation of powers. Plaintiffs argue that imposition and collection of a tax by the Colorado Supreme Court usurps the powers of the legislative branch in violation of the Colorado Constitution’s provisions for the separation of powers. This violation is offered as a violation of the Fourteenth Amendment’s guarantees of due process and equal protection. The principle of separation of powers is not enforceable against the states as a matter of federal constitutional law. This was the holding of the Supreme Court in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, which is the controlling authority on this question. See also Benoit v. Gardner, 351 F.2d 846 (1st Cir.); Snell v. Wyman, 281 F.Supp. 853 (S.D.N.Y.), aff’d 393 U.S. 323, 89 S.Ct. 553, 21 L.Ed.2d 511. In accordance with the holding in Sweezy, we find that plaintiffs’ separation of powers claim is not a federal claim, and that federal jurisdiction under section 1343(3) is not available.

There is present no substantial federal question, and the trial judge correctly dismissed the complaint. See Cantor v. Supreme Court of Pennsylvania, 353 F.Supp. 1307 (E.D.Pa.), aff’d 487 F.2d 1394 (3d Cir.).

Affirmed.

BARRETT, Circuit Judge

(concurring):

I fully concur in the excellent opinion by Judge Seth and in the result reached.

I believe that the appellants’ complaint and cause of action is barred, and accordingly further subject to dismissal, in that the Eleventh Amendment to the Constitution of the United States applies. The language of the Amendment is:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of- another State, or by Citizens or Subjects of any foreign State.

The parties have not presented to us any Colorado statute which grants consent in the nature of waiver of its sovereign immunity in any suits against the defendants-appellees named here. The State of Colorado has affirmatively alleged and argued on appeal that no such statutory waiver exists. Suits against state boards, agencies, departments or branches, rather than against individuals serving and/or working in official capacities with such boards, agencies, departments or branches are unquestioned suits against a sovereign state if any part of the relief prayed for is money award. State Highway Commission of Wyoming v. Utah Construction Company, 278 U.S. 194, 49 S.Ct. 104, 73 L.Ed. 262 (1929). The Court there held that the Commission was but the arm or alter ego of the State and that no claim had been made that members of the Commission are personally liable. Where there is no clear intent in a state waiver of immunity statute to subject state agencies, boards or commissions to actions for money awards, together with other relief, in Federal Courts, such suits cannot be maintained. Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862 (1946); Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Great Northern Insurance Co. v. Read, Insurance Commissioner, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121 (1944); Murray, et al. v. Wilson Distilling Company, 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742 (1909); Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971). In the latter cited case, we also held that unless there is law authorizing the Attorney General of a state to waive the immunity conferred by the Eleventh Amendment, he cannot do so by pleading to the complaint and by making a general appearance in defense. 443 F.2d 422 at 428.

Jurisdiction has reference to the power of the court over the subject matter, over the res or property in contest, and to the authority of the court to render the judgment or decree it is asked to render. Illinois Central Railroad Company v. Adams, 180 U.S. 28, 21 S.Ct. 251, 45 L.Ed. 410 (1901); 20 Am.Jur.2d, Courts, § 88, p. 450.

It is fundamental that the court must, on its own motion, determine that it has jurisdiction over the case before it. Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954 (1902); 3 A.L.R.2d 662. Jurisdiction in civil cases cannot be conferred by consent of the parties. Industrial Addition Association v. Commissioner of Internal Revenue, 323 U.S. 310, 65 S.Ct. 289, 89 L.Ed. 260 (1945); 175 A.L.R. 523. The jurisdiction of every court is limited by the principle of immunity of sovereign powers or their diplomatic representatives. United States v. Sherwood, 312 U.S. 584, 67 S. Ct. 767, 85 L.Ed. 1058 (1941).

This suit does not name any individuals as parties defendants. The action is against the Colorado Supreme Court, its unnamed Justices, its unnamed Clerk and the unnamed Colorado State Court Administrator. The defendants are not “persons” as contemplated under the Civil Rights Act. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Coopersmith v. Supreme Court, State of Colorado, 465 F.2d 993 (10th Cir. 1972). The Complaint makes it clear that the unnamed officials of the State of Colorado were at all times acting in their respective official capacities. It is firmly established that judges are cloaked with absolute official immunity or official privilege while exercising their official judicial functions and duties. Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973); Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Smith v. Losee, 485 F.2d 334 (10th Cir. 1973), cert. denied 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d 212 (1974).

In Smith v. Losee, supra, we specially recognized that state or local officials other than judges are entitled to a privilege doctrine in relation to acts or duties performed in the scope of their official power. We there stated, in part, “We have described the absolute privilege of legislators, judges, judicial officers, and some executives which may be asserted as a plea in bar.” 485 F.2d 334 at 342.

In Kostal v. Stoner, 292 F.2d 492 (10th Cir. 1961), we held that a district attorney, as a quasi-judicial officer, is immune from a damage suit while acting within the scope of his official duties. The same rule applies to each of the unnamed officials in this proceeding in addition to the Justices of the Colorado Supreme Court.

While the action does not seek personal money judgment from the unnamed officials, it does, inter alia, seek a refund of moneys allegedly paid to the State through the Clerk of the Colorado Supreme Court. The suit is, then, in essence a suit against the sovereign State ,of Colorado for the recovery of money. Under these circumstances the doctrine of sovereign immunity applies, even though the unnamed state officials are nominal defendants. Ford Motor Co. v. Department of Treasury of Indiana, supra; Williams v. Eaton, supra; Hamilton Manufacturing Company v. Trustees of State Colleges in Colorado, 356 F.2d 599 (10th Cir. 1966).


author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl O. LUDWIG, Defendant-Appellant.
    No. 74-1046.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 9, 1974.
    Decided Dec. 27, 1974.

      William W. Deaton, Jr., Albuquerque, N. M. (Jack L. Love, Federal Public Defender, Albuquerque, N. M., on the brief), for defendant-appellant.
    Mark C. Meiering, Asst. U. S. Atty., Albuquerque, N. M. (Victor R. Ortega, U. S. Atty., Albuquerque, N. M., on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and HOLLOWAY and DOYLE, Circuit Judges.
   LEWIS, Chief Judge.

Defendant was convicted of a violation of 21 U.S.C. § 841(a)(1), possession with intent to distribute marihuana, and was sentenced to three years’ imprisonment and an additional parole term of two years. He contends that the judgment was prejudicially tainted by an illegal search, by a variance between the controlling statute and the proof as to the involved marihuana, by misconduct of the district attorney, and by an unlawful sentence.

Defendant was first arrested for a traffic violation near Santa Rosa, New Mexico. While reading the rear license plate of defendant’s vehicle, the arresting officer noted the smell of marihuana, requested the defendant to open the car trunk but was told by defendant that he had no key. The officer directed defendant to follow him back to Santa Rosa. En route back to Santa Rosa defendant was seen searching in the back seat of the suspect car. The officer again stopped him and found a syringe and a cotton wad in the driver’s seat. At Santa Rosa the officer presented, by affidavit, an account of the stated occurrences to a proper magistrate, a search warrant issued, and the resultant search revealed 430 pounds of marihuana in the trunk of defendant’s car.

The sufficiency of the officer’s affidavit to premise the issuance of the warrant is attacked in two regards: (a) the failure of affiant to establish his ability to recognize the odor of marihuana; and (b) the conclusory statement that a syringe is the usual “paraphernalia” to take heroin. This latter allegation in the affidavit is pure surplusage and inherent in the officer’s statement that he smelled marihuana is the claim that he is familiar with that substance’s odor. We conclude the search was lawful.

Defendant next contends that the government failed to show prima facie that the substance found in appellant’s car was a “controlled substance” proscribed by 21 U.S.C. § 841(a)(1). There are, he asserts, three distinct species of marihuana. Although section 812(c), 21 U.S.C., includes “marihuana” generally as a controlled substance, that term is then defined as “all parts of the plant Cannabis sativa L., whether growing or not . . ..” 21 U.S.C. § 802(15). By necessary implication, the defendant concludes, Cannabis indica and Cannabus ru-deralis are excluded, and thus the testimony of the government’s expert chemist, that his tests could not distinguish the three species, is fatal to the government’s case. Again, we disagree.

The keystone of this argument is, of course, that there are three distinct species of plants known collectively as marihuana; that Congress intended to criminalize only one species of marihuana; and that a contrary interpretation of the pertinent sections would leave the average citizen without sufficient notice of the activity sought to be prohibited. This same argument has been made in numerous cases and has been uniformly rejected. Thus, in United States v. King, 10 Cir., 485 F.2d 353, we referred approvingly to United States v. Moore, 3 Cir., 446 F.2d 448, cert. denied 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820, where it was noted that

[mjarihuana, a term of Mexican origin, is the dried leaves and flowering tops of a plant species commonly known as hemp. Botanically, the hemp plant is called Cannabis sativa L. There is only one species of this plant. Leary v. United States, 395 U.S. 6, 50 [89 S.Ct. 1532, 23 L.Ed.2d 57], However, because of the difference in soil content and climatic conditions, the plant grown in various parts of the world is not physically the same. Cannabis indica is the name goven to Cannabis sativa L. grown in India.

446 F.2d at 450. Accord, United States v. Gaines, 5 Cir., 489 F.2d 690; and United States v. Rothberg, 2 Cir., 480 F.2d 534, cert. denied 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106, wherein the court countenanced the possibility that Cannabis is botanically polytypal but rejected defendant’s argument nonetheless. In the instant case, the government’s expert chemist testified that the “different types” of marihuana are the same, and the defendant’s expert testified that the “different types” of marihuana are distinct from each other. Having considered that testimony, the trial court instructed the jury that the statutory definition of marihuana included Cannabis indica as well as Cannabis sativa L. We perceive no reason for concluding as defendant would have us do, that the instruction erroneously stated the law, and we accordingly reject the defendant’s argument that the government failed to show that the material found in defendant’s automobile was either “marihuana” within 21 U.S.C. § 812(c) or a “controlled substance” within 21 U.S.C. § 841(a)(1).

In concluding his closing argument, without objection, the district attorney told the jury:

Mr. Martinez complains about the police. I’ll conclude on this one note, ladies and gentlemen. I have seen police activity in New York; I’ve seen it in the Midwest and I’ve lived here the majority of my life and if there is one thing you can be proud of, ladies and gentlemen, it’s the New Mexico State Police. I know that Mr. Martinez disagrees with me violently on that, but I know that there is one thing you can be proud of. It’s the New Mexico State Police. It’s the finest state police that I have personally seen. Those people do their job unswayed by any person who would like to sway them. That can’t be said, I know personally, that can’t be said of New York’s police. I know personally that can’t be said of a lot of the police forces in the Midwest. But I know personally that those police officers in the New Mexico State Police are people that you can be proud of and they do their job, no matter what the consequences to them, no matter the fact that they have to sit around for five days to be asked a question, like Mr. Lujan was asked at the end of this trial.
Thank you.

We agree with the public defender that the statement constitutes clear and prejudicial error. The government concedes error in this emphatic and personalized vouching for the integrity of the state police but urges us to hold the error to be harmless in view of numerous complaints directed against defense counsel’s own conduct. We can give no comfort to the proposition that unprofessional conduct upon the part of defense counsel opens the door to similar conduct by government counsel. The government’s remedy, of course, lies with proper objection made to the trial court during the course of the trial. Furthermore, this case does not present an isolated incident on the subject of improper personal injection of government counsel in the course of argument. In United States v. Martinez, 10 Cir., 487 F.2d 973, we stated:

However, we caution prosecuting attorneys that in their closing argument they should not, in an effort to bolster the credibility of a Government witness, place their own integrity, directly or indirectly, on the scales. Such is improper, and in the proper case may well result in a reversal which could have been easily avoided. [487 F.2d at 977.]

Although the case at bar was tried about two weeks before Martinez was submitted to this court, Martinez was earlier briefed and the government was well aware that a similar claim of error was pending.

Finally, defendant requests us to reconsider our decision in Garcia v. United States, 10 Cir., 492 F.2d 395, in which we held that a sentence imposed under 21 U.S.C. § 841(a)(1) may be lawfully amended by adding a parole term after the original sentence is being served. We would not be inclined so to do even if the issue had not been mooted by our disposition in the case at bar.

The judgment is reversed and the case remanded with directions to grant a new trial.

      . At the motion to suppress the officer’s familiarity with the odor of marihuana was firmly established. Had the contrary been established we would have a different case questioning veracity.

      . Defendant was represented below by private counsel and not by the public defender.


author: DUNIWAY, Circuit Judge:

text:
    Philip Joseph MAITA, Petitioner-Appellee, v. Earl WHITMORE, Respondent-Appellant.
    No. 74-1498.
    United States Court of Appeals, Ninth Circuit.
    Dec. 9, 1974.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1676.

      Evelle J. Younger, Atty. Gen., San Francisco, Cal., for respondent-appellant.
    Donald A. Tenenbaum, San Jose, Cal., for petitioner-appellee.
    Before DUNIWAY and TRASK, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge, United States District Court for the District of Montana, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Sheriff Whitmore appeals from an order granting Maita’s petition for a writ of habeas corpus. We reverse.

The sole question presented for decision is whether Maita was entitled, under the Fourteenth and Sixth Amendments, to a jury trial when he was charged in California Superior Court with four separate criminal contempts. Each was punishable by a jail term fixed by statute at “not less than one nor more than six months” (Cal. Penal Code § 11229). Maita could have been sentenced to four consecutive six month terms but was actually sentenced to a total of not more than six months.

The California court had issued a temporary injunction enjoining Maita from doing certain things prohibited by the California Redlight Abatement Act, Cal. Penal Code §§ 11225-11235. The validity of the injunction is not here in issue. Maita was later charged with specific violations of the injunction occurring on each of four different days. He demanded a jury trial, which was denied, and he was tried by the court and found to have committed each of the contempts charged. His sentence for the first contempt was six months in jail, with four months suspended. For each of the other three contempts, his sentence was 60 days in jail. All sentences, however, were concurrent, so that his total sentence was not more than six months. Maita has exhausted his state remedies as they relate to his right to a jury trial. The district court held that Maita had been deprived of his constitutional right to a jury trial. Maita v. Whitmore, N.D.Cal., 1973, 365 F.Supp. 1331, at 1337-1340. We reverse.

The answer to our question can be found in two decisions of the Supreme Court, handed down on June 26, 1974: Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897, and Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912. Together, these cases stand for the following propositions.

First: The rules as to whether an ordinary criminal offense is “petty,” thus not requiring a jury trial, or “serious,” thus requiring a jury trial, also apply to charges of criminal contempt. Codispoti v. Pennsylvania, supra, 418 U.S. at 513, 94 S.Ct. at 2692; Taylor v. Hayes, supra, 418 U.S. at 495, 94 S.Ct. at 2701.

Second: “[Cjrimes carrying more than six month sentences are serious crimes and those carrying less are petty crimes.” (Codispoti v. Pennsylvania, supra, 418 U.S. at 512, 94 S.Ct. at 2691; Taylor v. Hayes, supra, 418 U.S. at 495, 94 S.Ct. at 2701.

Third: “[Jjudgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature.” Codispoti v. Pennsylvania, supra, 418 U.S. at 511, 94 S.Ct. at 2691. Indeed, if the penalty authorized by the legislature exceeds six months, there is a right to a jury trial, even though the judge could impose a sentence of six months or less. Baldwin v. New York, 1970, 399 U.S. 66, 68-69, 90 S.Ct. 1886, 26 L.Ed.2d 437, and cases there cited.

Fourth: Where the legislature has not prescribed a penalty, as is often the case when the charge is criminal contempt, the actual sentence imposed determines whether the offense is “serious” or “petty.” Codispoti v. Pennsylvania, supra, 418 U.S. 512, 94 S.Ct. 2687 at 2691; Taylor v. Hayes, supra, 418 U.S. at 495, 94 S.Ct. at 2701. In such a case, when multiple contempts are tried together, the imposition of consecutive sentences aggregating more than six months makes the offenses “serious” and requires a jury trial. Codispoti v. Pennsylvania, supra, 418 U.S. at 516-518, 94 S.Ct. at 2693 — 2694. On the other hand, where there are convictions for several contempts but the aggregate sentence does not exceed six months because the sentences are concurrent, jury trial is not required. Taylor v. Hayes, supra, 418 U.S. at 496, 94 S.Ct. at 2702. Moreover, it makes no difference that the trial judge at first imposes consecutive sentences totalling more than six months, if he afterward reduces them to six month sentences to be served concurrently; jury trial is not required. Id. at 496, 94 S.Ct. at 2702.

We are persuaded that Taylor v. Hayes, supra, governs the case at bar. The legislature has fixed the maximum jail term at six months. • This points strongly to a holding that the offense is “petty.” Had but one contempt been charged, no jury trial would have been required. This is conceded. Maita argues that, because four offenses were charged, the maximum penalty, as established by the legislature, is 24 months, and that therefore the aggregate offense charged is “serious.” He bases this argument on the judge’s power to impose consecutive sentences.

We conclude that, where the judge has discretion to impose more than six months by imposing consecutive sentences, just as where he has discretion to impose more than six months because there is no statutory maximum, it is the judge’s exercise of his discretion, not the mere fact that he has discretion, that determines whether the offense is “petty.” This, we think, is the teaching of Taylor v. Hayes, supra. In the case at bar, the judge exercised his discretion to impose not more than six months. We conclude that, in principle, Taylor requires reversal.

The cases on which Maita relies do not require affirmance. In United States v. Seale, 7 Cir., 1972, 461 F.2d 345, the legislature had not fixed a maximum penalty for the offenses charged; on its facts, Seale almost exactly parallels Codispoti v. Pennsylvania, supra. Language in Baldwin v. New York, supra, which might be interpreted to mean that the mere possibility, by virtue of the trial judge’s discretion to impose consecutive sentences, of imprisonment greater than six months entitles a defendant to jury trial, must be read in light of the facts of that case. There the possibility of “serious” punishment derived from the one year maximum sentence prescribed by the legislature for the single offense charged. In the case at bar, the legislature has determined that a single offense is “petty,” and the possibility of “serious” punishment derives from the trial judge’s discretion to impose consecutive sentences for multiple offenses. On its facts Baldwin is not in conflict with our holding that multiple charges of an otherwise “petty” offense do not become the equivalent of a “serious” offense when the judge’s discretion to impose consecutive sentences aggregating more than six months is not exercised. We also reject the holding in United States v. Potvin, 10 Cir., 1973, 481 F.2d 380, which was based on what we consider, in the light of Taylor v. Hayes, supra, to be an impermissibly broad reading of Baldwin.

The order appealed from is reversed.

      . Section 11229 also provides for fines, which were imposed in this case. That phase of the case, however, is not before us.

      . Under the decision in Frank v. United States, 1969, 395 U.S. 147, 150, 89 S.Ct. 1503, 23 L.Ed.2d 162, it would appear that this sentence is to be treated, as it relates to the right to a jury trial, as a two month sentence, not a six month sentence. We need not decide the question, because in any event the total sentence did not exceed six months.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James C. SPIVEY, Defendant-Appellant.
    No. 74-1140.
    United States Court of Appeals, Tenth Circuit.
    Submitted Sept. 12, 1974.
    Decided Jan. 6, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1682.

      Hugh A. Burns, Denver, Colo. (Pamela A. Ray and Dawson, Nagel, Sherman & Howard, Denver, Colo., on the brief), for defendant-appellant.
    Arthur H. Bosworth, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, District Judge.

       Sitting by designation.

   LEWIS, Chief Judge.

James C. Spivey was charged in a two-count indictment returned against him and another, with knowingly and intentionally distributing heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Following a jury trial in the United States District Court for the District of Colorado, at which trial his sole defense was entrapment, Spivey was convicted on both counts and was sentenced to concurrent terms of six years’ imprisonment on each count. Spivey now appeals from the resultant judgment, contending principally that the evidence established the defense of entrapment as a matter of law and that, in the event such defense was not so established and maintained, the conduct of a government informer was so outrageous as to be vio-lative of the judicially-imposed doctrine requiring fundamental fairness in governmental activity in the detection and prosecution of crime. Some of the facts may be summarized, others require detail.

Leaving aside, for the moment, any consideration of the conduct of the informer, we conclude that the government firmly established its case. Government agents, introduced to defendant by the informer, made two separate buys of heroin from defendant, out of the presence of the informer and after negotiation with defendant. Defendant’s present appellate claim must, therefore, be founded upon the informer’s actions which preceded the sales, made on August 23 and 29, 1973, for which defendant now stands convicted.

Defendant first met the informer, Redman, in early August, 1973. Defendant had been released from prison in the spring of that year, having served a term for robbery “to get drugs.” Red-man was a paid and professional informer. He received $300 compensation in the case at bar and had participated in his “profession” in at least one hundred cases during the preceding four years. Redman posed as a dealer in illegal drugs, living in and operating from an apartment in Denver, Colorado.

Soon after meeting Redman defendant moved into Redman’s apartment, quit his job on August 18, and thereafter shared Redman’s life style and purported “generosities” in numerous ways. Defendant paid no rent and had free and ready access to quantities of marijuana that he used at will. Redman stated and testified that such marijuana (some seven ounces) was left with him by prospective sellers as samples. Redman also held several pot parties in the apartment with marijuana being furnished to defendant and to some neighbors. Redman actively hosted these parties in order to obtain the trust and confidence of defendant and others and to establish the pretense of being a dealer in drugs. Redman also supplied food to defendant and loaned him some money. Undoubtedly Red-man’s affirmative actions were successful in obtaining defendant’s friendship and trust.

The role of the informer is indeed dirty business, but, as many before us have said, so too is heroin. And in this regard defendant is no innocent. The sources for heroin were defendant’s own, and his predisposition to engage in drug activity was in no way forced.

Concentrating on the fact that the informer’s possession and distribution of marijuana was unlawful, defendant now argues that Redman’s conduct was so outrageous that the subsequent prosecution constitutes a violation of the principles of constitutional due process. Thus, defendant continues, the government should have been precluded from invoking the judicial process and obtaining defendant’s conviction, and thus we must find that defendant was entrapped as a matter of law.

The same argument was made in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, in which the government’s undercover agent had supplied Russell, the defendant, with a scarce chemical required for the defendant’s manufacturing of methamphetamine, a controlled substance. The Court acknowledged generally the existence of such a defense and suggested that a proper case for its application would arise where the government’s activity constituted a denial of “ ‘fundamental fairness, shocking to the universal sense of justice,’ mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960).” 411 U.S. at 432, 93 S.Ct. at 1643. Significantly, the Court then referred to the peculiar law enforcement tactics necessitated by the nature of drug-related offenses, first noting that infiltration is a permissible means of investigation and then concluding that, because “an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them”, such tactics as culminated in Russell’s prosecution did not violate the principles of constitutional due process. 411 U.S. at 432, 93 S.Ct. 1637.

In the instant case, defendant seeks to demonstrate such a violation of constitutional due process, and to distinguish his case from Russell, by characterizing Red-man’s conduct as itself unlawful. Specifically, defendant asserts that Redman violated both federal and state criminal statutes by possessing and distributing marijuana and that these violations by Redman were essential to his success in “setting up” the heroin sales made by the defendant. Relying on the truth of these assertions, defendant contends that his constitutional defense must obtain. Although we cannot deny that Redman possessed and distributed marijuana and that such activity is unlawful, we do not agree that defendant’s constitutional defense is thereby successfully made out.

The Court in Russell did indeed rely, in part, on the lawful nature of the government agent’s activity in order to distinguish that case from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and others in which official lawlessness became the sine qua non of the exclusionary rule, to which rule Russell referred without avail. Nevertheless, Russell did not establish — nor does it now require us to formulate — a fixed rule that would preclude, for due process reasons, the prosecution of the defendant here because the government’s informer engaged in unlawful conduct. See 411 U.S. at 431, 93 S.Ct. 1637. We find no occasion to consider whether the test set out in Russell should be completely recast, as defendant’s argument would have us do, in terms solely of the lawfulness of the government’s informer. Concededly, the nature of that conduct is relevant to the inquiry initiated here by defendant, but we do not believe that a review of the lawfulness of Redman’s conduct can by itself answer whether the principles of due process have been violated. Rather, we have considered the entire record before us, and we conclude that the government’s conduct was not so outrageous that either the maintenance of the prosecution against the defendant or the resultant conviction violates the constitutional standard, announced in Russell, which requires that the government’s conduct be tested against notions of fundamental fairness and the universal sense of justice. 411 U.S. at 432, 93 S.Ct. 1637.

Our discussion is not complete, however, without some comment on one additional aspect of the defendant’s constitutional argument. We recognize that, under Russell, a positive test for “outrageous conduct” is, by itself, reason enough for the reversal of a conviction notwithstanding that the defendant was predisposed, and notwithstanding that a criminal otherwise goes free. It is thus that RusselF s constitutional standard protects the “sense of justice” referred to in Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 96 L.Ed. 183 (Frankfurter, J.), and in Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (Hughes, C. J.). Yet it is clear also that, to be relevant at all, the government’s conduct must be postured as connected in some way to the commission of the acts for which the defendant stands convicted. In cases decided since Russell, in which constitutional arguments have been raised similar to that here, this connection has been implicitly acknowledged by reference to the extent to which the government instigated, participated in, or was involved or enmeshed in, the criminal activity itself. Thus, the more immediate the impact of the government’s conduct upon the particular defendant, the more vigorously would be applied Russell’s test for constitutional impropriety.

It is significant, then, that in its argument here the government has focused on the periods of time during which the defendant was alone with the government agents — and during which he committed the acts for which he now stands convicted. It was then that he called his sources, negotiated price and quantity, gave directions, acted as intermediary, and offered to arrange future sales of both heroin and other drugs. This was the undisputed testimony of agents Castillo and Van Ark. Redman contacted Castillo and introduced him to the defendant; Redman had Van Ark contacted by another and spent “three to five minutes” with him at the apartment. That was all. The defendant was then alone with Castillo for some part of over four hours, with Van Ark for over one hour and twenty minutes. Neither Redman nor the agents threatened or coerced the defendant. There was no preconceived governmental plan or design of which the defendant was the object. There were only the voluntary acts of the defendant. He had known and had used his sources prior to his having met Red-man.

The defendant focuses on Redman. The defendant testified, although not without contradiction, that he purchased a bag of marijuana from Redman on the day they met; that while they lived together Redman usually had marijuana and would either sell it to the defendant or give it to him; that Redman gave him “bennys”; that Redman sold marijuana and “bennys” to others; and that Redman himself took “bennys” and smoked marijuana. The defendant testified that, on the morning he quit his job, Redman suggested that the defendant could make money selling drugs, that there was no need to work. He testified that Redman “kept after me” and that within a few days he agreed with Red-man to arrange a sale because “I just felt I owed him a favor,” “I just felt obligated to him,” “I just did it as a favor.” He testified that he could not remember the name or telephone number of his source in Denver and that he did not return to her after delivering the “balloon” to agent VanArk. He testified also that this was incorrect, that he had lied, that he “didn’t want to get anybody in trouble.”

Redman’s testimony differed considerably. He testified that he did not sell marijuana to the defendant; that they had not discussed drugs when they first met; that the defendant asked if he could stay with Redman; that they became close friends; that he faked smoking marijuana to maintain confidence as a drug dealer; that he did not distribute “bennys” but distributed tablets of pure caffein; and that he did not importune the defendant to sell drugs but warned him to “stay out of it.” He testified also that the defendant wanted to sell drugs, that the defendant felt “it was the only way he thought he could make money.” He testified that he had received seven samples of marijuana from persons who were seeking buyers; that the marijuana was there but that he never offered it to the defendant. There is no evidence that the government in any way directed or controlled Redman’s activities. On the contrary, there is evidence that on earlier occasions Redman had been cautioned not to break the law.

Our review of this testimony confirms our conclusion, that the government’s conduct here does not offend the “sense of justice” referred to in Rochin v. California, supra, and Brown v. Mississippi, supra. Even if, in regard to Red-man’s conduct, we were to hold the government’s case against the strictest possible standard of probity, we would still be left to grapple, in our effort to consider all the facts as an operative whole, with the defendant’s own conduct. We cannot accept defendant’s argument, that his own conduct was no more than a function of the government’s conduct, that it may be rationalized only by predicating a pervasive and creative participation by the government in the criminal activity.

Defendant also asserted at his trial the traditional, nonconstitutional defense of entrapment a valid defense “when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, quoting Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413. When such a defense is raised, the government has the burden of proving beyond a reasonable doubt that the.defendant was not entrapped. Martinez v. United States, 10 Cir., 373 F.2d 810, 812. The defendant now argues that the government failed to carry that burden and that his conviction must therefore be reversed.

Having reviewed the evidence in the light most favorable to the government, as we must do, United States v. Twilligear, 10 Cir., 460 F.2d 79, 81-82, we conclude that the government did not fail as a matter of law to prove that the defendant was not entrapped. The defendant was a ready and willing seller of heroin. He had “used heroin, codeine and speed and methadrine,” he had used “bennys” and marijuana. He had been previously convicted and sentenced for a robbery “to get drugs.” He had two ready sources for heroin, one for himself and one for other people. He had offered to arrange future sales of drugs to both Castillo and Van Ark. The defendant was not Redman’s votary. They had lived together only a few weeks. In short, defendant was predisposed to commit the crimes for which he stands convicted — he was nothing other than “the unwary criminal.” Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. 819.

Defendant finally asserts that the trial court unduly restricted his cross-examination in two instances. On cross-examination- of agent Castillo, defendant’s counsel asked whether it was “common practice for informers to supply marijuana to their victims?” The same question was posed to William Coller, an agent for the Drug Enforcement Administration. The trial court sustained the government’s objection to each question. Defendant now contends that his subsequent offer of proof on the same point indicates that further interrogation would have shown that informers in fact commonly provided marijuana to their victims and that the agents could not control this kind of activity. Defendant concludes that, because Redman’s conduct was so much in issue, the rulings were prejudicial and constitute reversible error. With similar reasoning, defendant also contends that it was reversible error to exclude inquiry into the difficulty encountered by the defendant in finding a job after his release from prison in April, 1973.

We conclude that each of these rulings was within the discretion of the trial court as bearing on subjects capable of creating irrelevant side issues. In regard to the former, there was no showing that the “common practice” was Redman’s practice; in regard to the latter, we reject the notion that one’s claim to an entrapment defense is controlled by his status as an ex-convict.

Affirmed.

      . The Court noted that the government’s conduct in both Miranda and Mapp constituted violations of independent constitutional rights of the defendants, 411 U.S. at 430, 93 S.Ct. 1637, whereas Russell could make no such claim. In the instant case, the defendant is similarly foreclosed.

      . In Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, the Court stated that an asserted denial of the protections of due process must “be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.” 316 U.S. at 462, 62 S.Ct. at 1256.

      . Compare United States v. Register, 5 Cir., 496 F.2d 1072; United States v. Hopkinson, 1 Cir., 492 F.2d 1041, cert. denied, 417 U.S. 968, 94 S.ct. 3171, 41 L.Ed.2d 1139 (1974); United States v. Greenbank, 9 Cir., 491 F.2d 184, cert. denied, 417 U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234 (1974); United States v. Rosner, 2 Cir., 485 F.2d 1213, cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); and United States v. McGrath, 7 Cir., 468 F.2d 1027, vacated, 412 U.S. 936, 93 S.Ct. 2769, 37 L.Ed.2d 395, on reconsideration, 494 F.2d 562; with United States v. Archer, 2 Cir., 486 F.2d 670; and Greene v. United States, 9 Cir., 454 F.2d 783. See also the “government-supplied contraband” cases, United States v. Mosley, 5 Cir., 496 F.2d 1012; United States v. Johnson, 10 Cir., 495 F.2d 242; United States v. Oquendo, 5 Cir., 490 F.2d 161; and United States v. Bueno, 5 Cir., 447 F.2d 903, after remand and new trial, 470 F.2d 154, cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411.