text:
    UNITED STATES of America ex rel. William HAYWARD, Appellant, v. Robert L. JOHNSON, Superintendent State Correctional Institution, Graterford, Pennsylvania, Appellee.
    No. 74-1335.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 15, 1974.
    Decided Jan. 28, 1975.

      Robert Scandone, Brobyn, Forceno, Curran & Scandone, Philadelphia, Pa., for appellant.

      Bonnie Brigance Leadbetter, Mark Sendrow, Steven H. Goldblatt, Abraham J. Gafni, Richard A. Sprague, F. Emmett Fitzpatrick, Jr., Philadelphia, Pa., for ap-pellee.
    Before VAN DUSEN, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

This case, an appeal from an order denying habeas corpus relief, presents us with one of the most difficult tasks in the law: that of determining whether a confession obtained after custodial police interrogation was voluntary.

Appellant William Hayward, a seventeen-year old drug addict with a tenth grade level of education, was indicted for murder, aggravated robbery and conspiracy for his alleged role in the death of a Mr. William Smith. Prior to the start of his trial, Judge Joseph L. McGlynn, Jr., of the Pennsylvania Court of Common Pleas held a suppression hearing on the admissibility of the confession. After a ruling that the confession was admissible, appellant was brought to trial, convicted of aggravated robbery and conspiracy and sentenced to 6 — 20 years’ imprisonment. His conviction was sustained on appeal, and he thereupon sought habeas corpus relief in the Eastern District of Pennsylvania. Although a federal magistrate recommended an evidentiary hearing, the district court denied relief without holding such a hearing.

Appellant makes two principal contentions in challenging the admissibility of his confession. First, he argues that the undisputed facts determined at the suppression hearing compel a finding that his confession had been obtained involuntarily. Second, he argues that the district court at least should have held an evidentiary hearing to resolve disputed issues of fact concerning the voluntariness of his confession which he asserts were inadequately adjudicated by the state court during the suppression hearing. We reject both contentions and affirm the judgment below.

I.

With respect to the first contention, the uncontested facts, based on testimony from the suppression hearing, are as follows: The decedent, William Smith, was discovered by a neighbor in a badly beaten condition and was taken to the hospital, where he died on September 15, 1970. Appellant was questioned on three separate occasions with respect to Smith’s death, each time in a small interrogation room at the police station and each time after receiving the full Miranda warnings. Although the police never had a warrant when they took him into custody, he went voluntarily and with his mother’s permission each time he was questioned.

The first questioning occurred on September 21, 1970, when Detective Kelly of the Philadelphia police picked appellant up at his home at 2:30 p. m. At the police station, he was questioned initially for about one hour. During this questioning, he admitted knowing the decedent, but gave a generally exculpatory statement. After voluntarily submitting to a lie detector test, which he failed, appellant was questioned for another forty minutes. That period of questioning was terminated when appellant began to suffer withdrawal symptoms and became quite ill. The police then drove him home.

The second occasion on which the police questioned appellant was September 24, after picking him up at his home at 6:20 a. m. On this date, appellant changed his story somewhat and stated that he observed two others (Len and Nelson Johnson) take money from Smith and beat him. However, appellant continued to deny any involvement in the incident. Although the questioning was concluded at 8:00 a. m., the police kept appellant at the station while they went over his story. At 1:00 p. m., he again began to suffer from withdrawal symptoms, and was again driven home.

On October 3, the third time appellant was questioned, he gave his confession. He was picked up at his home at 12:30 a. m. and driven to the police station, where he arrived at 1:10 a. m. From 1:25 a. m. to 2:40 a. m. he gave an oral statement in which he admitted that he had suggested robbing Smith and that he shared in the proceeds. After a twenty minute recess during which he went to the lavatory, he gave a six-page written statement from 3:00 a. m. to 4:50 a. m., and he signed every page. Subsequently, however, he again suffered withdrawal symptoms, becoming so ill that he was taken to the hospital in an emergency patrol wagon. While at the hospital, he was examined by Dr. B. Duvall, who reported that appellant told him that he would rather die than go into withdrawal and that he had tried to commit suicide four times while at the police station. This report was admitted into evidence at the suppression hearing.

At the conclusion of the testimony and arguments by counsel, Judge McGlynn made the following findings:

I will find as a fact that [Hayward] was advised of his constitutional rights; that he understood them; that he freely and voluntarily made the statement, and it was not the result of either physical force or psychological duress; that the fact that he later on suffered withdrawal does not affect the voluntariness of the statement.

Since it is evident from this excerpt that Judge McGlynn made both factual and legal findings, it is necessary to distinguish between them in order to determine the scope of our review. The purely factual findings — that appellant was warned of his rights and that he understood them, and that he suffered withdrawal after giving his statement— are binding on us, since we are satisfied that sufficient evidence exists to support them and since they are not contested on appeal. The remaining findings, which pertain to the voluntariness of the statement, are at least mixed questions of law and fact, and they do not foreclose our independent review. We are in fact obligated to make our own determination on the basis of the uncontested facts and the specific factual findings supported by the record, as to whether appellant’s statement was voluntarily given. Haynes v. Washington, 373 U.S. 503, 515, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Malinski v. New York, 324 U.S. 401, 404, 65 S.Ct. 781, 89 L.Ed. 1029 (1945); Ashcraft v. Tennessee, 322 U.S. 143, 147-148, 64 S.Ct. 921, 88 L.Ed. 1192 (1944).

In determining whether a confession was voluntary, we must satisfy ourselves that the confession was “the product of an essentially free and unconstrained choice by its maker,” that it was “the product of a rational intellect and a free will” and that the appellant’s will was not “overborne.” In making this determination, it is essential for us to consider the “totality of the circumstances” surrounding the obtaining of the confession. Schneckloth v. Bustamonte, 412 U.S. 218, 226-227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Clewis v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Haynes v. Washington, supra at 513-514 of 373 U.S., 83 S.Ct. 1336.

Applying these standards, we acknowledge that this is a close case, and we are troubled by the police conduct here, involving a late night questioning, without any apparent justification, of a seventeen-year old youth. We also acknowledge that the Supreme Court’s decision in Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1947), on which appellant relies, is in some respects similar to the case before us. In that case, the Supreme Court held involuntary the confession of a fifteen-year old boy who was taken from his home at night and questioned steadily from 12:00 midnight to 5:00 a. m.

However, we believe that Haley is distinguishable, and we are satisfied that the Commonwealth of Pennsylvania has sustained its burden of proving, by a preponderance of the evidence, that appellant’s confession was voluntarily given. One important distinction is the fact that the youth in Haley was never informed of his right to remain silent or to have a lawyer present, whereas in this case appellant was read all four Miranda warnings prior to each questioning. On October 3, he was read those warnings twice, once before the initial questioning and again before giving his written statement. In addition, each time he was read the warnings, he was also asked a series of questions from the standard police interrogation card, and all his responses indicated that he was willing to talk without delay and without the assistance of counsel. Neither at the suppression hearing nor on appeal does appellant challenge the sufficiency of his warnings or deny a willingness to talk without an attorney present.

We recognize that the giving of such warnings is but one factor in the “totality of circumstances” that we must consider, albeit an important one, and we certainly do not suggest that a confession obtained after a suspect has been fully informed of his rights can never be found involuntary. However, there are additional factors in this case which further distinguish it from Haley and which likewise point toward voluntariness. First, the period of questioning was shorter and the manner of questioning seems less coercive. Unlike the youth in Haley, who gave his confession only after five hours of continuous incommunicado questioning by five or six policemen in relays of one or two each, appellant here began to give his confession early on the third occasion he was questioned, and the questioning was conducted predominantly by one person, Detective Kelly.

Furthermore, the confession was obtained only on the third occasion he was questioned. By October 3, the circumstances of his questioning and the setting at the police station must have appeared less novel and intimidating; after two previous questionings he had been sent home, where he had the opportunity, unpressured by the police, to consider his situation; he was fully informed that the police' were investigating his possible role in the death of William Smith; and he was surely aware that the police had twice released him without obtaining a confession. Therefore, since he had been subjected to unfamiliar surroundings on two prior occasions and yet had withstood lengthy questionings without confessing, we find it difficult to conclude that he was not acting voluntarily on October 3, when he began giving his oral incriminatory statement shortly after arriving and completed giving it within an hour and fifteen minutes of questioning. Finally, unlike the Supreme Court in Haley, we find no evidence of a callous disregard of appellant’s rights by the police after he gave his confession which might cast suspicion on their conduct throughout the questioning.

Appellant places considerable emphasis on an additional factor in his case which he believes makes it stronger than Haley —the fact of his drug addiction and the undisputed seriousness of his withdrawal symptoms. However, we believe that this additional factor carries little weight in support of his contention that his confession was involuntary. As we noted earlier, the evidence at the suppression hearing indicates that appellant did not go into withdrawal until several hours after he had given both his oral and written confession, and he does not argue the contrary on appeal. Rather, his position is that his fear of oncoming withdrawal was so great that his will was overcome and that he gave a statement he hoped was satisfactory in order to be relieved of the “oppression” of withdrawal.

We find this position unconvincing. It seems that the only way appellant could have believed he would be relieved of his plight after giving a “satisfactory statement” would be if he expected to be released from custody in order to take another “fix.” Yet it is unrealistic to conclude that appellant could have believed that he was gaining his speedier release and easing his predicament by admitting to participation in a robbery which led to the victim’s death. Furthermore, he had gone into withdrawal twice before without confessing. Finally, on the two prior occasions when he went into withdrawal, appellant was promptly taken home, and he had no reason to believe that the same would not happen on October 3.

We therefore conclude that the uncontested facts of this case do not compel a finding of involuntariness. Viewing the record in its totality, we believe that a combination of factors — the full Miranda warnings, the speed with which appellant confessed on October 3, his familiarity by that date with police practices, his refusal to confess during the two prior interrogations, and the fact that he did not go into withdrawal until several hours after confessing — satisfies us that his confession on October 3 was the product of an essentially free choice.

II.

We now turn to appellant’s second principal contention — that the district court should have held an evidentiary hearing before passing on the merits of appellant’s habeas corpus claim. The district court declined to hold such a hearing, after reviewing the record of the suppression hearing and concluding that:

Relator was afforded a full and fair evidentiary hearing in the State Court. All essential and material facts were presented and developed during the state suppression hearing.

Appellant’s principal contention here is that the state suppression hearing failed to adjudicate adequately a major issue of fact: what his mental condition was at the time he gave his confession on October 3. However, we agree with the district court that all the essential facts relevant to this issue were presented before the state court. Consequently, we believe that both the district court and this court can adequately assess appellant’s claim of involuntariness without the necessity for a new hearing.

A review of the transcript of the suppression hearing indicates that appellant testified about his addiction and stated that he was “scared” during the questioning; the reports of two doctors from Philadelphia General Hospital (Dr. Paes and Dr. B. Duvall, the latter a psychiatrist) were introduced into evidence, and they referred to appellant’s addiction, his fear of withdrawal and his suicidal tendencies; and defense counsel argued strenuously that appellant’s will was overborne because of his fear of withdrawal. Judge McGlynn also heard the testimony of the police officers that appellant appeared normal and alert both during and shortly after the questioning. Given this testimony and the uncontested facts recounted earlier, we believe that the suppression hearing adequately developed all the facts material to determining whether appellant’s will was overborne at the time he made his confession, and that we therefore can make such a legal determination ourselves without holding a new evidentiary hearing. Like both the state trial court and the district court, we make the legal conclusion that appellant’s fear of oncoming withdrawal, which we fully acknowledge to have been a grave one, was not sufficient, given the totality of circumstances, to render his confession involuntary.

The only basis on which appellant attacks the suppression hearing is his assertion that “The record is devoid of expert medical evidence of what relator’s condition must have been at that time.” However, since no doctor examined appellant at the time he gave his confession, any new medical testimony introduced now at a district court hearing, more than four years after the event, would appear to have little probative value. Furthermore, since we acknowledge that appellant feared going into withdrawal but still conclude that the confession was voluntary, in part because he suffered withdrawal twice before without confessing, we question the relevance of any further testimony along this line.

We acknowledge that Judge McGlynn’s “findings” were extremely abbreviated and that he failed to evaluate the testimony, to make findings of credibility and to resolve certain discrepancies in the testimony. However, the failure of a state court to make explicit findings does not necessarily require a new evidentiary hearing. LaVallee v. Della Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed.2d 637 (1973); Townsend v. Sain, 372 U.S. 293, 314-315, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In this case, we note that appellant does not base his appeal on grounds to which the failure to make such explicit findings would be relevant, and he is not alleging a failure to resolve discrepancies in the testimony. Rather, the only asserted deficiency in the hearing was the failure to hear medical testimony which might corroborate his assertion that the fear of oncoming withdrawal was so great as to render his confession involuntary. For the reasons expressed earlier, we do not believe that the failure to hear such testimony requires a new evidentiary hearing.

It is true that under Townsend, supra, a district court has the power in its discretion to hold an evidentiary hearing even when not required to do so. However, because we question the probative value of new medical testimony regarding appellant’s state of mind at the time he gave his confession and before he went into withdrawal (the only basis on which appellant seeks an evidentiary hearing), we cannot say that the district court’s refusal to hold such a hearing was an abuse of discretion warranting reversal.

III.

Appellant makes two additional contentions which we can dispose of quickly. The first is that suppression of the statement is required by the unnecessary delay between arrest and arraignment proscribed by Pennsylvania Rule of Criminal Procedure 130, 19 P.S. Appendix. Even assuming that Rule 130 applies to this case and that it would require suppression of the statement by a state court, we do not believe that a violation of the Rule can afford a basis for habeas corpus relief in federal court. Appellant appears not to have raised this issue at the state level, and thus he cannot raise it for the first time in habeas corpus proceedings. Picard v. Connor, 404 U.S. 270, 275-276, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Most important, ha-beas corpus relief is only available to a person held “in custody in violation of the Constitution or laws or treaties of the United States,” 28 U.S.C. § 2254(a), and thus a state procedural error simply does not provide a basis for federal ha-beas corpus relief. While an unduly long delay between arrest and arraignment may give rise to a constitutional claim, it may do so not because of a violation of a procedural rule, but because the undue delay may support a finding that the confession was coerced. See Turner v. Pennsylvania, 338 U.S. 62, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949). However, we have already rejected appellant’s claim of coercion.

Appellant’s final contention is that his inculpatory statement was the only evidence linking him to the crime and that his conviction should therefore be reversed for lack of corroboration. Appellant in fact appears to be making two arguments here, but we believe that neither of them has merit. First, he argues that there was insufficient evidence to support a jury inference that the confession was truthful. He also appears to contend that the lack of corroboration violates the corpus delicti rule. Assuming arguendo that each contention is cognizable on habeas corpus, we believe that there was sufficient corroboration for either purpose. Appellant’s confession demonstrated detailed knowledge of the place and circumstances of the offenses committed. The victim’s manner of death, while not proven to be by criminal agency, was consistent both with criminal agency in general and the particular manner described by appellant in his statement. Finally, the statement implicated Nelson Johnson, whom the victim appears to have named before dying. We believe that these facts tend to “fortify the truth of the confession,” Opper v. United States, 348 U.S. 84, 92, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954), and thus both satisfy the corpus delicti rule and provide sufficient evidence for the jury to conclude that the statement was truthful.

The judgment of the district court will be affirmed.

      . Detective Kelly testified that he picked appellant up at that hour in order to be sure to find him at home, since following the first day of questioning he had been eluding the police.

      . No explanation was given for picking up appellant at this hour. Cf. note 1, supra.

      . At the suppression hearing, there was a conflict in testimony as to whether appellant read each page before signing it. Detective Kelly testified that appellant did read every page, but appellant testified that he had signed each page without reading it. While Judge McGlynn did not resolve this factual discrepancy, appellant does not argue on appeal that he signed the statement without reading it.

      . Judge McGlynn implicitly found that appellant did not go into withdrawal until after giving his statement, since he found inter alia “that the fact that [appellant] later on suffered withdrawal does not affect the voluntar-iness of the statement.” (Emphasis added.) We believe that the record contains ample support for this implicit finding. While appellant testified at the suppression hearing, in response to a leading question, that he felt sick when he signed the statement, he admitted that he did not begin to vomit until around 8:00 or 9:00 a. m., several hours after signing it. He also admitted that he was “normal” when he arrived at the police station, that he had taken a “fix” before going to bed that night and that he would not have taken his next “fix” until after arising at 6:30 a. m.
      Furthermore, Detective Kelly testified at the suppression hearing that appellant appeared alert and responsive throughout the entire questioning and had not shown any signs of illness. Detective Gold, another officer who replaced Detective Kelly later that morning, testified that appellant appeared normal when he first saw him at 10:50 a. m. and when he saw him later at 12:00 noon, and that he did not complain of feeling sick until 12:30 p. m. Finally, we note that appellant does not contend on appeal that he was experiencing withdrawal symptoms at the time he gave his statement, and in fact he appears to concede that he went into withdrawal several hours after giving the statement. (Appellant’s brief, pp. 19, 20).

      . See note 4, supra.

      . Culombe v. Connecticut, 367 U.S. 568, 603-604, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Haley v. Ohio, 332 U.S. 596, 597-598, 68 S.Ct. 302, 92 L.Ed. 224 (1947). Of course, our inquiry is limited to the undisputed facts only if we find, as we do infra, that appellant had been afforded a full and fair evidentiary hearing by the state court. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

      . Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).

      . Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).

      . Reck v. Pate, 367 U.S. 433, 440, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).

      . See note 2 supra.

      . Lego v. Twomey, 404 U.S. 477, 487-489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

      . The defendant in Haley was informed of his “rights” only after he had orally confessed, and he was so informed by means of an abbreviated and formalized recitation of his “rights” in the written confession which he signed. The Court justifiably treated this as inadequate. Haley, supra, 332 U.S. at 598, 601, 68 S.Ct. 302.

      . Those questions were as follows: “Do you understand that you have the right to keep quiet, and do not have to say anything at all?” “Do you understand that anything you say can and will be used against you?” “Do you want to remain silent?” “Do you understand that you have the right to talk with a lawyer before we ask you any questions?” “Do you want to talk with a lawyer at this time or to have a lawyer with you while we ask you questions?” “Are you willing to answer questions of your own free will without force or fear or without any threats or promises having been made?”
      Detective Kelly testified at the suppression hearing that he read all these questions to appellant each time he questioned him, and appellant neither contested his assertion at the suppression hearing nor contests it now on appeal.

      . Cf. United States v. Guaydacan, 470 F.2d 1173 (9th Cir., 1972), where the Ninth Circuit concluded that a confession was involuntarily obtained despite the giving of the Miranda warnings.

      . According to the testimony of Detective Kelly, appellant completed giving his oral statement within one hour and fifteen minutes of questioning (from 1:25 a. m. to 2:40 a. m.). While appellant’s testimony diverged somewhat (he stated, in response to a leading question, that he signed the written statement at 3:00 a. m.), it reinforces the conclusion that appellant confessed rather quickly on October 3.

      . At the suppression hearing, appellant did testify that on a few occasions Detective Thornton came into the room, once to threaten him. While Detective Thornton did not testify at the suppression hearing, Detective Kelly denied that any threats or promises had been made, and appellant does not argue on appeal that he was ever threatened.

      . Cf. Collins v. Brierly, 492 F.2d 735, 739 and n. 9 (3d Cir., 1974).

      . See Haley, supra, 332 U.S. at 600, 68 S.Ct. 302.

      . See note 4, supra.

      . Appellant in fact testified at the suppression hearing that the police had told him that he would be released if he signed the statement.

      . Cf. United States ex rel. Rush v. Ziegele, 474 F.2d 1356, 1359-1360 (3d Cir., 1973), where we held voluntary the confession, after four hours of questioning, of a defendant who had a history of mental illness, even though he had not been given any Miranda warnings.

      . Cf. Lynumn v. Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Stein v. New York, 346 U.S. 156, 185-186, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953).

      . Appellant himself admitted that he was “normal” at the beginning of the questioning.

      . We have already noted that Judge McGlynn implicitly found that appellant did not suffer withdrawal until after making his confession, and that that finding is supported by the record and is not contested on appeal. See note 4, supra.

        . This rule provides:
      When a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment.
      The Pennsylvania courts have construed this rule as requiring the suppression of evidence obtained after an unnecessary delay between the arrest and the obtaining of the evidence. See, e.g., Commonwealth v. Cherry, Pa., 321 A.2d 611 (1974); Commonwealth v. Tingle, 451 Pa. 241, 245, 301 A.2d 701, 703 (1973); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

      . We note that the Rule applies only to an unnecessary delay between arrest and arraignment, and Detective Kelly gave uncon-tradicted testimony that appellant was not placed under arrest until after he gave his statement. Detective Kelly also gave uncon-tradicted testimony that appellant went to the station on each occasion voluntarily and with his mother’s permission. We do not know whether the Pennsylvania courts would conclude that, for purposes of Rule 130, appellant had been “arrested” prior to formally being placed under arrest or that the facts of this case would evidence an unnecessary delay between “arrest” and arraignment.

      . While the Supreme Court has fashioned a rule that an unnecessary delay between arrest and arraignment in violation of Fed.R.Crim.P. 5(a) requires suppression, Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1947); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Supreme Court made it clear that this rule is not constitutionally-based, but rather was formulated in the exercise of its supervisory powers over prosecutions in the federal courts. McNabb, supra at 340-342, 63 S.Ct 608.

      . The Supreme Court has held that a constitutional claim regarding sufficiency of the evidence arises only when there is no evidence to support a crucial element of the charge. See, e.g., Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). Similarly, the corpus delicti rule has never been termed a constitutional requirement, but rather has been described as a “general rule that has been consistently applied in the lower federal courts and in the overwhelming majority of state courts . . ..” Smith v. United States, 348 U.S. 147, 152-153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954).

      . When the victim was first discovered, he said, “Don’t hit me no more Nelson.”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    DILLARD DEPARTMENT STORES, INC., Plaintiff-Appellee-Cross Appellant, v. FIDELITY UNION LIFE INSURANCE CO., and Mayflower Investment Co., Defendants-Appellants-Cross Appellees.
    No. 74-2020.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1975.
    Jerry L. Beane, Royal H. Brin, Jr., Dallas, Tex., for defendants-appellants-cross appellees.
    Richard Grainger, Mike Hatched, Tyler, Tex., for plaintiff-appellee-cross appellant.
    Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.
   PER CURIAM:

In 1969 I. Boyd Ridgeway was developing a shopping center in Tyler, Texas in joint venture with defendant Mayflower Investment Company [Mayflower], Defendant Fidelity Union Life Insurance Company [Fidelity], of which Mayflower was a subsidiary, was to secure financing for the project. Plaintiff, Dillard Department Stores, Inc. [Dillard] contracted with Ridgeway for space in the Tyler center. The project collapsed and Dillard arranged to lease from another developer. It sued defendants for actual damages and exemplary damages for fraud. The jury awarded Dillard actual damages of $470 against each defendant and $469,175 in exemplary damages from Fidelity.

Defendants filed a motion for a remit-titur of exemplary damages, or, if the remittitur were unacceptable to plaintiff, for a new trial. Plaintiff made a motion which in part asked for a new trial on the issue of actual damages for both defendants. The district court judge ordered a new trial on all issues. Appellants, Fidelity and Mayflower, and cross-appellant, Dillard, appeal this order and contest the denial of their respective motions.

This Court is without jurisdiction to hear this appeal at this stage in the proceedings. “An order granting a new trial is generally not appealable because such an order is interlocutory and not a final judgment under 28 U.S.C. § 1291. ... If a new trial is granted and results in a new final judgment, the appeal is to be taken from it.” Wiggs v. Courshon, 5 Cir. 1973, 485 F.2d 1281, 1282. See also, Citizens Nat’l Bank v. Speer, 5 Cir. 1955, 220 F.2d 889.

Appeal dismissed.


author: GIBBONS, Circuit Judge.

text:
    In the Matter of LEHIGH VALLEY RAILROAD COMPANY, Debtor. Appeal of COMMONWEALTH OF PENNSYLVANIA, in No. 74-1356. Appeal of TRUSTEES OF LEHIGH VALLEY RAILROAD COMPANY, Debtor, in No. 74-1363. Appeal of DELAWARE & HUDSON RAILWAY COMPANY, in No. 74-1379. Appeal of PENNSYLVANIA STATE LEGISLATIVE BOARD and United Transportation Union, in No. 74-1388. Appeal of CHEMICAL BANK et al., in No. 74-1424.
    Nos. 74-1356, 74-1363, 74-1379, 74-1388 and 74-1424.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 19, 1974.
    Decided Jan. 23, 1975.
    As Amended Feb. 7, 1975.

      William R. Traub, Robert L. Pratter, Duane, Morris & Heckscher, Philadelphia, Pa., for Trustees of Lehigh Valley Railroad Company, Debtor.
    John E. Hoffman, Jr., Matthew C. Gruskin, Shearman & Sterling, New York City, for Chemical Bank, The Fidelity Bank, First National City Bank and Girard Trust Bank, Indenture Trustees.
    William P. Quinn, Strong, Barnett, Hayes & Quinn, Philadelphia, Pa., for Delaware & Hudson Railway Company.
    Israel Packel, Atty. Gen., Harrisburg, Pa., Michael von Moschzisker, Deputy Atty. Gen., Philadelphia, Pa., Gordon P. MacDougall, Sp. Asst. Atty. Gen., Washington, D. C., for Commonwealth of Pennsylvania.
    Thomas P. Shearer, Pittsburgh, Pa., for United Transportation Union.
    Richard R. Bongartz, Westport Harbor, Mass., Terrence M. Quirin, Philadelphia, Pa., for Trustees of Penn Central Transportation Company, Debtor, Trustees.
    Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal pursuant to 11 U.S.C. § 47 from Order No. 226 of the district court in proceedings under § 77 of the Bankruptcy Act for reorganization of the Lehigh Valley Railroad Company. The order, made as a result of a petition filed by the Trustees of Penn Central Transportation Company, directs the Le-high Valley trustees to pay post-reorganization net interline balances due to Penn Central on a current basis. The district court judge who supervises both the Lehigh Valley and the Penn Central reorganizations, held that the post-reorganization net interline balances from Lehigh Valley to Penn Central were administration expenses of the Lehigh Valley reorganization, and were to be paid on a current basis beginning with those incurred in January, 1974. Unpaid interline balances from July 31, 1970, the closest settlement of accounts date following the Lehigh Valley petition for reorganization, were held to be administration claims against the Lehigh Valley estate. In re Lehigh Valley Railroad Co., 371 F.Supp. 210 (E.D.Pa.1974) (Claim of Penn Central Trustees for Interline Balances).

Order No. 226 was entered over the objection of The Commonwealth of Pennsylvania (appellant in No. 74 — 1356); United Transportation Union (appellant in No. 74-1388) which is the collective bargaining representative for some Le-high Valley employees; the Delaware & Hudson Railway Co. (appellant in No. 74-1379) which interchanges freight with Lehigh Valley; the Lehigh Valley mortgage indenture trustees (appellants in No. 74-1424); and the Lehigh Valley trustees (appellants in No. 74 — 1363).

All the appellants argue that requiring Lehigh Valley to make current payment of interline balances will endanger the continued ability of Lehigh Valley to maintain rail operations. They contend that a condition of the 1968 merger between the Pennsylvania Railroad and the New York Central, imposed in the Interstate Commerce Commission’s approval of that merger was that Penn Central must keep the Lehigh Valley operational. The appellants urge that the Penn Central trustees hold the Penn Central franchises subject to the I.C.C. condition, and that the condition precludes their demand for current payment of the net interline balances. The Lehigh Valley trustees also urge that the I.C.C. condition precludes treatment of post-reorganization net interline balances as expenses of administration. The Lehigh Valley mortgage indenture trustees contend that the post-reorganization net interline balances due Penn Central must be subordinated to the pre-reorganization claims of Lehigh Valley’s secured creditors. Order No. 226 in effect rejected each of these contentions. Order No. 233 stayed the current payment provisions of Order No. 226 and directed that the net current interline balances be placed in escrow pending appeal.

The Lehigh Valley Railroad runs from Buffalo, New York to the Port of New York. It connects with the Delaware & Hudson with which it interchanges New England and Canadian traffic, at Owego, New York and Wilkes-Barre, Pennsylvania. It connects with the Penn Central, with which it interchanges western and southern traffic, at Buffalo, New York, and Wilkes-Barre, Pennsylvania. In 1962, while the Pennsylvania Railroad and the New York Central were still competitors the former acquired ownership of 97.3% of the common stock of Lehigh Valley. It continued to operate Lehigh Valley as a separate entity with independent management, except that Pennsylvania’s accounting department undertook accounting services for the Le-high Valley, and both companies had a common treasurer. The Buffalo interchange with Lehigh Valley was of great significance since it gave Pennsylvania a route to the Port of New York and to New England competitive with the New York Central route through Albany, New York. In 1962, negotiations looking toward merger were also going forward between the Pennsylvania and New York Central. An important feature of what became the proposed merger were the economies to be achieved by routing incoming western traffic over the New York Central lines from Buffalo through Selkirk, New York, to the New York metropolitan area, and to New England over other lines in the New York Central System. However, these economies would eliminate any incentive for a merged Penn Central to interchange traffic with Lehigh Valley at Buffalo, and cast doubt upon the latter’s ability to operate. In addition such a development could, in turn, damage the Delaware & Hudson which interchanged considerable freight traffic with Lehigh Valley at Wilkes-Barre, Pennsylvania.

The merger between the Pennsylvania and the New York Central required the approval of the Interstate Commerce Commission. Under § 5(2)(b) of the Interstate Commerce Act, 49 U.S.C. § 5(2)(b).

“[i]f the Commission finds that, subject to such terms and conditions and such modifications as it shall find to be just and reasonable, the proposed [merger] transaction . . . will be consistent with the public interest, it shall enter an order approving and authorizing such transaction, upon the terms and conditions, and with the modifications, so found to be just and reasonable . . ..”

The Commission is specifically required to give weight to

“(1) The effect of the proposed transaction upon adequate transportation service to the public; (2) the effect upon the public interest of the inclusion, or failure to include, other railroads in the territory involved in the proposed transaction . . .49 U.S.C. § 5(2)(c).

The Commission’s Report of April 6, 1966, which approved the Penn-Central merger, described the legal effect of conditions imposed under § 5 of the Act:

“The Commission’s power under section 5 is limited to the application before it and the consequences thereof. Orders issued pursuant thereto are permissive, and obligations imposed upon applicants as conditions of approval are inchoate, attaching with binding force only if the proposed transaction is consummated. If the transaction is not consummated, though approved, the conditional obligations under our order evaporate. Pennsylvania R. R. Co.-Merger-New York Central R. R. Co., 327 I.C.C. 475, 538 (1966) (emphasis supplied).

The Commission’s Report was referring to obligations it imposed pursuant to 49 U.S.C. § 5(2)(b) as conditions to the merger which, when consummated on February 1, 1968, produced the Penn Central.

The effect of the then proposed merger on the Lehigh Valley was a cause of concern to the Commission. The hearing examiner presiding over the I.C.C.’s proceedings recognized that the consequences of the merger would be so severe on the Lehigh Valley that it could not survive unless it became a part of a major rail system. Appendix “U”, referred to in the hearing examiner’s report, lists twenty suggested conditions to the proposed merger, including Conditions No. 14 and No. 16 dealing specifically with the Lehigh Valley.

When the Commission reviewed the hearing examiner’s report it approved the proposed merger, “[sjubject to the various conditions set out in this report, including the appendixes as well as to those referred to in the initial report not deleted or modified herein . . . .” Appendix “A” to the Commission’s Report lists “[c]ertain conditions to approval imposed in lieu of the conditions set forth in appendix U to the hearing examiner’s report.”

The Penn-Central merger was consummated on February 1, 1968. Following the prior practice of the Pennsylvania Railroad, Penn Central continued to perform all treasury and accounting functions for the Lehigh Valley. Penn Central also provided financial support by not attempting to collect upon the interline accounts and other accounts and balances owed by the Lehigh Valley. As of July 24, 1970, when the Lehigh Valley petitioned for reorganization under § 77 it owed Penn Central $16,387,647.10 for unpaid interline balances.

In Order No. 1 in the Lehigh Valley reorganization, the district court directed the trustees of the Lehigh Valley to pay interline balances except those due the Penn Central. At the same time, the trustees of the Lehigh Valley, in their discretion, were authorized to make such payments to Penn Central. Following negotiations between the trustees of both railroads, and the approval of the district court, the Lehigh Valley paid a total of $2,407,397 on account of interline balances that had accrued in the post-bankruptcy period commencing on July 31, 1970. No further payments were made after March, 1972. As of December 31, 1973 the sum of unpaid post-reorganization interline balances owed by the Lehigh Valley to Penn Central totaled $14,532,253, and they continued to accrue at the rate of approximately $380,000 a month.

On January 2, 1974 the Regional Rail Reorganization Act of 1973 became law. 45 U.S.C. § 701 et seq. On January 21, 1974, the trustees of Penn Central filed a petition in the district court below requesting an order that Lehigh Valley pay its current interline balances owed to the Penn Central. The Penn Central trustees also asked the court to order the Lehigh Valley to apply for a § 213 grant under the Rail Reorganization Act, 45 U.S.C. § 723, if such an order would result in the inability of Lehigh Valley to meet its current operating expenses. The trustees of the Lehigh Valley for their part petitioned to withdraw an earlier petition to effectuate a settlement, and asked the court for a determination with respect to the interline balance payments due Penn Central. Should the court order current payments to the Penn Central, the Lehigh Valley trustees also requested that the court direct them to apply for a § 213 grant.

The district court’s opinion accompanying Order No. 226 rejected the binding effect of conditions 14 and 16 contained in Appendix “A” to the Commission’s Report. The district court concluded:

“The Interstate Commerce Commission has never entered any orders requiring Penn Central to provide support to the Lehigh Valley, and no one has ever sought such an order.
Whatever the nature of the obligation to absorb the Lehigh Valley which merger condition 14 may have imposed upon the Penn Central — absolute or contingent, enforceable by the Lehigh Valley or only by the Commission, can-celling or recognizing the interline debt — it is a pre-bankruptcy obligation. It is not binding upon the Penn Central Trustees unless they adopt it, and they certainly have not done so.” 371 F.Supp. at 214-215.

In this holding the district court erred. The conditions imposed by the I.C.C. Report approving the merger were, as the Commission had said, inchoate only up to the time the merger was consummated. Thereafter, they had binding force. By consummating the merger in 1968, Penn Central subjected itself to action of the I.C.C. seeking to keep the Lehigh Valley alive and operational until it could be included in another system, merged into Penn Central or with the Commission’s approval, abandoned. The filing of the petitions for § 77 reorganization by the two railroads did not terminate this continuing liability of Penn Central which became a term of the franchise.

The reorganization court was without authority to vary the conditions of Penn Central’s franchise. Only the appropriate regulatory agency could do so. Smith v. Hoboken R. R. Co., 328 U.S. 123, 66 S.Ct. 947, 90 L.Ed. 1123 (1946); Palmer v. Massachusetts, 308 U.S. 79, 60 S.Ct. 34, 84 L.Ed. 93 (1939); In re Central Railroad Co., 485 F.2d 208 (3d Cir. 1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974). Trustees appointed under § 77 of the Bankruptcy Act are subject to the jurisdiction of the Commission, and a modification of condition 14 would have required application to that agency in addition to approval by the reorganization court. § 77(c)(2), 11 U.S.C. § 205(c)(2). Whether, since the enactment of the Regional Rail Reorganization Act of 1973, the Commission still has any authority to amend condition 14 pursuant to 49 U.S.C. § 5(9) is a question which on this record we do not reach. See § 601(b) of the Rail Reorganization Act, 45 U.S.C. § 791(b). It suffices to say that the district court misinterpreted the merger condition as a mere executory contractual undertaking which could be affirmed or disaffirmed by the Penn Central trustees regardless of the attitude of the Commission, and regardless of the possible effect on the formulation of a final system plan to be created under the Regional Rail Reorganization Act. Nor does the happenstance that separate trustees were appointed for the parent and the subsidiary serve to alter the legal relationship resulting from the pre-reorganization decision by Penn Central to accept the merger conditions listed in Appendix “A” to the Commission’s Report.

Order No. 226 adjudicated not only that the interline accounts should be paid currently, but also that the unpaid balances accrued from and after July 31, 1970 would be treated as administration claims against the Lehigh Valley estate. The latter adjudication is based upon the same misinterpretation of the effect of the merger conditions as affected the former. The Lehigh Valley trustees and indenture trustees contend that both the pre-reorganization and the post-reorganization interline balances should be subordinated to the claims of other creditors of the Lehigh Valley, if not totally disallowed as contributions to Lehigh Valley capital. See Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Taylor v. Standard Gas & Electric Co., 306 U.S. 307, 59 S.Ct. 543, 83 L.Ed. 669 (1939); New York Trust Co. v. N. Y. & Greenwood Lake Ry. Co., 156 F.2d 701 (3d Cir. 1946).

Since Order No. 226 was entered because of a misapplication of the legal status of the merger conditions it must be vacated. It does not follow, however, that we should at this time adjudicate the application of the so-called “Deep Rock” doctrine to either the pre- or post-reorganization debts owed by the Lehigh Valley subsidiary to the Penn Central parent. In the first place, because the district court did not consider condition No. 14 to be legally binding on the reorganization trustees, it did not make findings of fact upon which we could predicate a decision as to the applicability of the “Deep Rock” rule. Moreover, on September 30, 1974 the Special Court created by § 209(b) of the Regional Rail Reorganization Act of 1973, 45 U.S.C. § 719(b), has now held that both Penn Central and Lehigh Valley are railroads in reorganization under that Act rather than under § 77 of the Bankruptcy Act. In re Penn Central Transportation Co., 384 F.Supp. 895 (Spec.Ct.1974).

Loan or grant assistance to keep both Lehigh Valley and Penn Central operational during the period necessary to formulate a final system plan presumably will be available pursuant to §§ 211, 213, and 215 of the Rail Reorganization Act, 45 U.S.C. §§ 721, 723, 725. Consequently it may well be that as of September 30, 1974, the obligation to keep the Lehigh Valley operational passed by operation of the Rail Act from the Penn Central’s trustees to the federal government. If all or part of the Lehigh Valley is conveyed to the Consolidated Rail Corporation pursuant to § 303(b) of the Rail Act, 45 U.S.C. § 743(b), the total consideration must be “fair and equitable to the estate of [the] railroad in reorganization . . ..” § 303(c)(1)(A), 45 U.S.C. § 743(c)(1)(A). The Special Court must then make the determination whether the distribution is fair and equitable. § 303(c)(2), (3), (4), 45 U.S.C. § 743(c)(2), (3), (4). In doing so it will be obliged to consider the relative priorities of Penn Central and the other creditors of the Lehigh Valley in the latter’s estate. It probably will also consider the contentions of the Lehigh Valley trustees and indenture trustees with respect to the applicability of the “Deep Rock” doctrine to pre- and post-reorganization Lehigh Valley debts. If it does not do so, later stages of the Lehigh Valley claims proceedings will afford the opportunity to litigate these contentions. Therefore consideration of these contentions by us at this time would certainly be premature, and in any event, may now be beyond the scope of our appellate jurisdiction under the Bankruptcy Act. 11 U.S.C. § 47. See §§ 209(b), 601(b) of the Rail Act, 45 U.S.C. §§ 719(b), 791(b).

Order No. 226 and Order No. 233 will be vacated, except for that directive which permits the trustees of the Lehigh Valley to apply for § 213 assistance. Such vacation will be without prejudice to the consideration by the district court of the appropriateness of some interim payments of interline balances in the light of Penn Central’s obligation to keep Lehigh Valley operational until the final system plan under the Rail Act has been devised, and the cash position of the Lehigh Valley in light of the interim operating assistance which may be available to both railroads under the various provisions of the Rail Act.

      . The hearing examiner’s report stated in part:
      “L.V. — Operating under control of P.R.R., L.V. today competes with N.Y.C.’s lines extending from Buffalo to the New York City area. As indicated, L.V. is highly dependent upon off-line shippers and connecting carriers for a substantial portion of its traffic, and the record indicates that P.R.R. interchanges over 70,000 carloads with L.V. annually. Based on the fact that a community of financial interests exists between P.R.R. and L.V., and on the heretofore accepted principle that a carrier will prefer a subsidiary to a competitor or independent road in routing traffic, we must assume that the relationship between P.R.R. and L.V. is extremely close and that L.V. is greatly dependent upon P.R.R. as a source of traffic. Furthermore, in light of the poor financial condition of L.V., it is apparent that the latter needs the support of P.R.R. to remain viable.
      The merger of N.Y.C. into P.R.R., resulting in a significant improvement in service and a material reduction of costs on operations over N.Y.C.’s lines extending from Buffalo to New York City through Selkirk, will undoubtedly shift P.R.R.’s incentive from a routing via L.V. especially traffic moving to and from the New York Metropolitan area, to an all P.R.R. route via Selkirk. Since it is our view that a parent corporation and its subsidiary will compete only as long as it is to the economic advantage of the parent, we find in the proposed merger a strong possibility that L.V. will be adversely affected through the routing by the merged company or shippers of their traffic to the more efficient and less costly lines via Selkirk. This, we believe, in time, would further weaken L.V.’s present condition and possibly seriously affect its ability to provide service to the public.
      The fact that L.V. presented no evidence of diversionary impact at hearing is not significant, for its domination by P.R.R. obviously precluded independent action. We believe that, in this instance, P.R.R. had the positive obligation of establishing that no adverse effect would result to L.V. and, despite the lack of participation in this proceeding by the affected road, in this instance, applicants failed to meet their burden. On this basis, therefore, and for additional reasons subsequently considered, specific protective conditions will be provided.

      At hearing, P.R.R. indicated a willingness to sell its majority stock interests in L.V. to the C&O/B&O System. Of record, however, it was pointed out that C&O had failed to elicit any interest in applicants’ proposal and, in fact, at oral argument in the C&O/B&O proceeding, the attorney representing applicants therein specifically declined such offer. Despite this, we believe the door should be left open as wide as possible for C&O to reconsider its earlier decision and also for the Commission to consider the possible inclusion of either E-L or L.V. in one or the other major systems which presently do not have access to New York City through the Buffalo Gateway.
      The application to merge the franchises and properties of C&O and B&O, if filed, may provide such a vehicle and the inability to formulate fair and equitable conditions or inclusion of E-L into the N&W System within the 5-year period as provided, may justify the latter in seeking entrance to the New York City Metropolitan area through acquisition of L.V.
      While the Commission no longer holds authority to inaugurate basic rail consolidation plans, it has the obligation under sections 5(2)(c) and 5(2)(d) to insure that voluntary plans are complete in that they take into account such railroads as should be included therein to maintain competitive balance or as may otherwise be in the public interest. The opportunities for the Commission to achieve such objectives should be maximized.
      In this respect, we are not concluding on this record that it would be in the public interest for L.V. to be included in either the C&O/B&O or N&W Systems, for that depends first, upon the issue being jurisdic-tionally raised before the Commission; and, secondly, upon the development of facts which would justify such inclusion, not the least of which is that incorporation thereof would be economically justified and not impose an undue burden upon the carrier. It is our opinion, however, that insofar as the merged company has control over the situation, that conditions should be imposed requiring it to use its best efforts to obtain a place for L.V. in either the C&O/B&O System, or if E-L is precluded from entry into the N&W System, into the latter. In the event, however, that despite its best efforts neither alternative is accomplished within 10 years from the date of consummation or such additional time as the Commission may determine necessary, it is our conclusion that the merged company should be required to merge the franchises and properties of L.V. into its system operations, and that during the interim the merged company shall be required to maintain its present stock interests to the degree of its present holdings in L.V. and provide such support, financial or otherwise, as the Commission may from time to time deem advisable.
      With respect to the latter conditions, as previously indicated L.V. depends largely upon the support of P.R.R. for its traffic. After merger, however, it would be placed in an untenable position by reason of incorporation in the merged company of the N.Y.C. Buffalo-New York City line which would attain maximum efficiency through the construction of yard facilities at Selkirk. The consummation, therefore, would provide P.R.R. with some degree of incentive to route traffic away from L.V. It is quite apparent that L.V. cannot maintain its present position indefinitely and that either it must find an affiliation with either N&W or C&O/B&O or be merged into its present parent. While the former alternative from a competitive standpoint is obviously the more preferred, the latter provides a valid alternative in light of existing conditions and will insure a continued service to shippers and other members of the public which are dependent upon L.V. By requiring the merged company to provide support for L.V. to keep it operational, we do not mean to infer that the former shall assume the existing debt structure óf the latter nor support its uneconomical operations which may exist or come into being during the interim. We believe that such support as may be necessary to keep L.V. operational should be required, especially if a causal relationship between its condition and the operations resulting from this merger are established. The specific terms of such conditions are set forth in appendix U.” Pennsylvania R. R. Co.-Merger-New York Central R. R. Co., 327 I.C.C. 566, 919-20, 941-42 (1965) (Report Order of Hearing Examiner) (emphasis supplied).

      . 327 I.C.C. at 1068-72.

      . Several of the conditions set forth in Appendix “U” to the hearing examiner’s report were in conflict with the Commission’s. In order to avoid confusion, the Commission attached Appendix “A” to their report listing conditions corresponding generally to those contained in Appendix “U” of the examiner’s report but modified to accord with their own decision. Pennsylvania R. R. Co.-Merger-New York Central R. R. Co., 327 I.C.C. 475, 547 (1966) (Commission Report). The modifications as they are pertinent here are not significant.

      . 327 I.C.C. at 551. Appendix “A” is set out in id. at 551-55. Among those conditions are the following relating to the Lehigh Valley:
      “12. Pennsylvania New York Central Transportation Company and its subsidiary, the Lehigh Valley Railroad Company, shall be required (1) to propose negotiations and if such offer is accepted to negotiate in good faith with Chesapeake and Ohio Railway Company, its affiliates and/or subsidiaries with respect to inclusion of the Le-high Valley Railroad Company in the Chesapeake and Ohio Railway Company; (2) to file or join in the necessary applications or pleadings including petitions for inclusion in any appropriate proceeding to bring about the inclusion of Lehigh Valley Railroad Company in The Chesapeake and Ohio Railway Company and (3) to cooperate to the fullest extent in the development of an adequate record to provide a basis for the required determination by this Commission as to whether such a transaction would be in the public interest. In the event such matter is presented and if after hearing, it is determined by the Commission that such transaction is consistent with the public interest and the parties thereto are unable to agree the Commission shall impose such terms and conditions as it deems just and reasonable, and such action shall be binding on the Pennsylvania New York Central Transportation Company.
      13. After October 16, 1969, or upon issuance of an order by this Commission denying the petition of Erie-Lackawanna Railroad Company for inclusion in the Norfolk and Western Railway Company, Pennsylvania New York Central Transportation Company and its subsidiary, the Lehigh Valley Railroad Company, shall be required (1) to negotiate in good faith with the Norfolk and Western Railway Company, its affiliates and/or subsidiaries with respect to inclusion of the Lehigh Valley Railroad Company in the Norfolk and Western Railway Company; (2) to file such applications or other pleadings as may be necessary to bring about the inclusion of Lehigh Valley Railroad Company in the Norfolk and Western Railway Company; and (3) to cooperate to the fullest extent in the development of a record to provide a basis for the required determination by this Commission as to whether such a transaction will be in the public interest. In the event such matter is presented within ten years from the date of consummation here, and if after hearing, the Commission determines that such transaction is consistent with the public interest and that parties thereto are unable to agree, the Commission will impose such terms and conditions as it deems just and reasonable and such action shall be binding upon the Pennsylvania New York Central Transportation Company.
      14. Until otherwise relieved by this Commission, Pennsylvania New York Central Transportation Company shall retain its stock and other holdings to the degree now maintained in Lehigh Valley Railroad Company and render such support, financial and otherwise, as the Commission, from time to time, may determine necessary to keep such railroad operational. If at the end of ten years from the consummation of this transaction or such reasonable time as the Commission may determine, the inclusion of the Lehigh Valley Railroad Company in The Chesapeake and Ohio Railway Company, Its subsidiary and affiliates or in the Norfolk and Western Railway Company, its subsidiaries and affiliates has not been accomplished, and if after hearing, upon its own motion or upon a section 5 application, the Commission determines that inclusion of Lehigh Valley Railroad Company in the instant transaction, through merger or otherwise, is consistent with the public interest, the Commission shall order such inclusion upon such terms as may be found just and reasonable and such action shall be binding upon the Pennsylvania New York Central Transportation Company.
      16. Consummation of the transaction approved herein shall constitute on the part of The Pennsylvania Railroad Company and the New York Central Railroad Company, their successors and assigns, acquiescence in and assent to the conditions stated in this appendix and in the attached report.” 327 I.C.C. at 554-55.

      . Beginning in April, 1967, the then Pennsylvania Railroad began deferring collection of interline balances owed by the Lehigh Valley at the rate of almost $400,000 per month. After the merger, Penn Central also purchased at face value $2,460,000 in Lehigh Valley bonds which matured in 1969 and which the latter was unable to redeem.

      . In fact, the district court was to conclude that the Lehigh Valley would run out of cash in six months time if it were required to pay interline balances on a current basis to Penn Central. 371 F.Supp. at 216.

      . See note 4 supra for the text of these conditions.

      . See conditions in Note 4 supra.

      . Even in the absence of a continuing I.C.C. role, the Rail Reorganization Act appears to limit the authority of the district court under the Bankruptcy Act. See § 601(b), 45 U.S.C. § 791(b).


author: GEWIN, Circuit Judge:

text:
    William Gene NULL, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director Division of Corrections, Respondent-Appellee.
    No. 74-1923.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1975.

      C. Anthony Sexton, Tampa, Fla. (Court-appointed), for petitioner-appellant.
    Charles Corees, Asst. Atty. Gen., Richard G. Pippinger, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.
    Before GEWIN and SIMPSON, Circuit Judges, and NICHOLS, Associate Judge.

       Of the U. S. Court of Claims, sitting by designation.

   GEWIN, Circuit Judge:

A Florida court sitting without a jury found appellant Null guilty of carnally knowing a female child under the age of ten and sentenced him to life imprisonment. See Fla.Stat.Ann. § 794.01 (1965). Appellant petitioned the state courts for reversal of his conviction through direct appeal and later via habe-as corpus. When those efforts failed, he sought a federal writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition on harmless error grounds and we affirm.

Appellant was babysitting with three neighborhood children, Carla, Billy and Robin Montgomery, and his stepson during the afternoon of February 18, 1968. While the other children played monopoly on the living room floor, appellant announced he and Robin (age six) were going into the bedroom for a nap. Though the child emerged momentarily to fetch a bottle of lotion at appellant’s behest, she immediately returned to the bedroom where the two remained for an extended period. When they returned to the living room the child promptly told her siblings that the appellant had promised to buy her a new pair of shoes.

When Robin’s mother returned to the Null home to pick up her children that evening, Robin was sitting on appellant’s lap. Her mother noticed blood on the child’s underwear and immediately asked what had happened. The six-year-old started to reply, but appellant interrupted her with the admonition, “We mustn’t talk about that, Robin.” Appellant then stated that Robin had fallen on a table in the bedroom.

It was not until much later that night that Robin recanted her prior rendition of events and told her mother exactly what had caused the bleeding. As stated infra the testimony of Robin at trial was clear, positive and unequivocal. When asked why she had not divulged the true cause earlier, the child explained that appellant had promised her a new pair of shoes if she would say she had fallen on the table. Incensed, the child’s mother loaded her son’s shotgun and headed for the Null home. Her husband restrained her, however, so she finally went to her minister’s home nearby for help. The next morning Robin’s mother called the police and they took the six-year-old to the hospital for examination. Robin had a first degree laceration of the posterior vaginal wall and other injuries to the vagina, wounds the doctors later testified were consistent with sexual intercourse and inconsistent with falling against a sharp object.

After confirming the child’s story with medical personnel, police went to appellant’s home and placed him under arrest. Officer Lambert then stated they would need the clothes he was wearing the day before, and appellant replied, “Well, these are the same clothes I had on yesterday.” Appellant gave the police his clothing and his wife handed them the bed covers. Appellant faced trial on the charge of rape two months later.

Appellant’s sole contention on appeal is that the officers’ failure to give the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), deprived him of rights so basic to a fair trial that his conviction should be reversed. The state argues, conversely, that police officers did not violate Miranda's safeguards or, alternatively, that any error in admitting evidence without the prescribed cautionary admonitions was harmless beyond a reasonable doubt.

(1] Now familiar to layman and lawyer alike, the Miranda decision delineated a set of warnings to be given the accused prior to official questioning. These include the right to remain silent, the instruction that any statement he makes may be used as evidence against him, and the right to the presence of an attorney, either retained or appointed. 384 U.S. at 467-479, 86 S.Ct. at 1624-1630, 16 L.Ed.2d at 719-726. The Supreme Court has recently made clear that Miranda itself did not establish substantive constitutional rights, but expounded a series of prophylactic rules designed to protect a citizen’s Fifth Amendment right to be free from compulsory self-incrimination. Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

We cannot agree with the state’s assertion that police abided by Miranda’s safeguards when they visited appellant’s home the day following the rape. In Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), the Supreme Court held that statements made by a suspect arrested in his own home without prior Miranda warnings were inadmissible because secured in violation of the Self-Incrimination Clause. Though the admissions obtained in Or-ozco were substantially more incriminating than appellant’s statement concerning his clothing, Miranda proscribes the use of any statements by the accused, whether inculpatory or exculpatory, gleaned without use of its prophylactic litany. Miranda v. Arizona, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. In the instant case appellant’s remark that he was wearing the same clothes the previous day came as a direct response to a demand made by the arresting officer. Cf. Brown v. Beto, 468 F.2d 1284 (5th Cir. 1972). Appellant knew he was under arrest, and he had little choice but to succumb to their request. In these circumstances we hold that a Miranda violation occurred and admission of appellant’s statement constituted error.

Appellee further urges that even if the court should not have allowed the introduction of appellant’s statement, the tangible fruits of the admission — his clothing and bed covers — were nonetheless admissible. We note that the Supreme Court, when faced with the question whether Miranda requires the exclusion of fruits of statements taken in violation of its standards, declined to decide the issue. Michigan v. Tucker, supra We follow the High Court’s lead. For purposes of our decision below we assume, without deciding, that the fruits of statements secured without Miranda’s preventive measures are generally inadmissible.

Appellant submits that the teachings of Miranda are so enshrined in legal notions of fairness to the accused that the failure to give the warnings cannot be treated as harmless error. An examination of pertinent authorities belies such a view. Though some rights are so basic that their violation does not admit of harmless error treatment, the Fifth Amendment as embodied in Miranda’s procedural safeguards is not one of them. Several courts have held that in certain limited circumstances the failure to communicate the requisite warnings prior to questioning is harmless error. United States v. Hill, 430 F.2d 129 (5th Cir. 1970); United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970); United States v. Harris, 140 U.S.App.D.C. 270, 435 F.2d 74 (1970); United States v. Sutt, 415 F.2d 1305 (7th Cir. 1969).

The harmless error standard requires that a court be able to declare that the constitutional error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). If, upon its reading of the trial record, the appellate court is firmly convinced that the evidence of petitioner’s guilt was overwhelming and that the trier of fact would have reached the same result without the tainted evidence, the conviction will stand. See Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

In the case sub judice the six-year-old victim delineated in graphic detail exactly what appellant did to her while they were in the bedroom alone. Her testimony, if believed, constituted ample and complete proof of every element of the crime charged. Moreover, other evidence presented fully substantiated her detailed account of what happened. Though none of the other children visually witnessed the rape, each corroborated the circumstances surrounding the episode, including appellant’s announcement they were going into the bedroom for a nap, that Robin carried lotion into the appellant at his request, and that upon emerging from the bedroom she said appellant had promised to buy her a new pair of shoes. Given the inherently private, secretive nature of the crime, lack of eyewitness testimony cannot be held fatal to conviction. The mother’s statements concerning blood on her daughter’s underwear were corroborated by their introduction into evidence. Finally, the doctor’s unequivocal diagnosis of what caused the child’s laceration virtually sealed the prosecution’s case.

Though the state also introduced various items of appellant’s wearing apparel and bed clothing, the tangible evidence did not prove extremely damaging. FBI experts were able to match the child’s blood to a stain on one bedsheet, but all the other articles contained stains too small for typing. Some fibers found on the victim’s clothing were also identical to the wool in appellant’s sweater. However, it was undisputed that Robin had spent some time sitting on the lap of appellant during the afternoon in question. Apart from these two physical links between appellant and the victim, the tangible evidence was inconclusive.

Appellant Null presented no testimony whatsoever to counteract the state’s version of events, limiting his defense to cross-examination of opposing witnesses. He attempted to impeach the victim through utilization of prior inconsistent statements, but Robin and her mother testified that the child initially claimed to have fallen on the table in return for the promise of new shoes. Appellant’s only remaining defensive theory was the suggestion that he obtained the lotion to facilitate removing sandspurs from Robin’s feet, an explanation the court found implausible. In view of the overwhelming evidence of rape pointing toward appellant as the perpetrator, the court was amply justified in finding him guilty.

Moreover, we note that the trial was held before the court sitting without a jury. Strict evidentiary rules of admissibility are generally relaxed in bench trials, as appellate courts assume that trial judges rely upon properly admitted and relevant evidence. Community Action Group v. City of Columbus, 473 F.2d 966 (5th Cir. 1973); United States v. Compania Cubana de Aviacion, 224 F.2d 811 (5th Cir. 1955). The record in the instant case confirms the wisdom of such a rule. The trial judge’s closing comments demonstrate that he placed little weight on the appellant’s statement or the tangible evidence:

It’s the court’s feeling after [having] heard the evidence it’s quite obvious that the child and the Defendant were in the bedroom together by the uncon-tradicted testimony and that from everything that was in evidence that whatever happened occurred in the bedroom. The only thing remaining is whether it is reasonable to believe that it could have occurred in any other manner than as stated by the various witnesses. There is no question within the Court’s mind but what this particular type of injury could only have occurred in a manner in which [sic] was presented in the evidence in this case. (Tr. at 356 — 57).

To say the evidence against appellant was overwhelming understates the prosecution’s case. The trial court could have found appellant innocent only if it disbelieved every witness who took the stand. Though we disapprove police officers’ negligent failure to apprise appellant of his Miranda “rights”, we are firmly convinced that the trial court would have reached the identical result even without consideration of all the arguably tainted evidence. The admission of evidence obtained without prior warnings, though erroneous, was therefore harmless beyond a reasonable doubt. Chapman v. California, supra.

The judgment is affirmed.

      . § 794.01 bears the title “Rape and forcible carnal knowledge”, although the body of the statute refers to “carnally knowing] and abuspng]” a female child under the age of ten years. The parties before this court have used the terms “carnally know” and “rape” interchangeably. In employing the term “rape” we refer to the crime denounced in the body of the statute.

      . The facts and circumstances disclosed by the record under consideration differ greatly from those disclosed in the cases considered in Miranda v. Arizona. The appellant here was not subjected to continuous interrogation; he was only informed that the officers would need the clothing involved. He was not confined to an interrogation room at the police station; he was at home in familiar surroundings. The conversation between Officer Lambert and the appellant does not reveal either the physical or psychological coercion condemned by Miranda. When appellant’s wife became somewhat hysterical at the time of his arrest, the officers departed and explained they felt it inappropriate to make further inquiries of the appellant due to the emotional state of his wife.

      . In Orozco police officers procured statements from the defendant that he had been at a particular restaurant that evening, that he owned a gun, and that he had left the gun in a washing machine located at the rear of his boardinghouse.

      . Justice Rehnquist, writing for a majority of the Court, refused to resolve the “fruits” question, in part because the defendant’s Fifth Amendment rights were not jeopardized and in part because police had followed the pronouncements of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), applicable at the time Tucker was arrested. 417 U.S. at 445-50, 94 S.Ct. at 2365-2367, 41 L.Ed.2d at 194-197. Justice Brennan’s concurrence was premised on the assumption that Miranda required the exclusion of fruits. Id. 417 U.S. at 459, 94 S.Ct. at 2372, 41 L.Ed.2d at 202 n. 5. Justice White, on the other hand, wrote that Miranda applied only to statements by the accused and should not be extended to cover fruits. Id. 417 U.S. at 461, 94 S.Ct. at 2372, 41 L.Ed.2d at 203. Only Justice Douglas’ dissent stated unequivocally that statements acquired in violation of Miranda, as well as the fruits obtained therefrom, should be excluded. Id. 417 U.S. at 462, 94 S.Ct. at 2373, 41 L.Ed.2d at 204. See generally United States v. Castellana, 500 F.2d 325, 327 n. 7 (5th Cir. 1974); The Supreme Court, 1973 Term: Self-Incrimination, 88 Harv.L.Rev. 197, 202 (1974).

      . See Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (impartial judge).

      . The dissenters in Harrington v. California, infra, complained that the majority’s holding permitted violations of Miranda to be treated as harmless. 395 U.S. at 255, 89 S.Ct. at 1729, 23 L.Ed.2d at 288 (Brennan, J., dissenting).
      Moreover, there is authority for the conclusion that a failure to fully comply with the Miranda ritual does not authorize the exclusion of statements made by a suspect in all circumstances. In Michigan v. Tucker, supra, the Court stated:
      This Court has already recognized that a failure to give interrogated suspects full Miranda warnings does not entitle the suspect to insist that statements made by him be excluded in every conceivable context.
      417 U.S. at 450, 94 S.Ct. at 2367, 41 L.Ed.2d at 197. To support its conclusion the Tucker Court relied on Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), where the Court held that statements made by the defendant himself, without having been advised of his right of access to appointed counsel, could be used to impeach the defendant’s direct testimony at trial.

      . The examining physician at Tampa General Hospital testified as follows:
      Q. In this examination will you please show the judge what you found and describe it for him, please?
      A. I have described — I have described in my report a first degree laceration of the posterior distal vaginal wall at 6:00 o’clock which would be inside if you visualize the vagina going backward into the blackboard. That would be inside of this ring right about this position (indicating). There was a fresh bruise and a superficial laceration of the vulva externally and of the hymen at the region of 9:00 o’clock. The hymen was lacerated at 7:00 o’clock which is the ring here. And the whole area was red and [there] was light bleeding. The whole area was quite tender to the examination, it elicited pain.
      ******
      Q. Are your findings — would they be consistent or inconsistent with sexual intercourse?
      A. They would be consistent.
      Q. It’s your testimony that there was penetration there?
      A. I think it’s consistent with penetration, yes, sir.
      Q. And you’re saying this within reasonable medical certainty?
      A. Yes.
      sk - * :k sk sk sk
      Q. [cross-examination] Fall against a sharp object?
      A. I don’t think that would be consistent, no.
      Q. What would be different? What would we find different from what you say you found there if the evidence were to show that this child had fallen against a sharp object?
      A. Well, I’m not saying this isn’t possible, I’m saying it’s less typical. Something inserted in there would cause this type of stretching or tearing injury whereas just a fall usually doesn’t produce this type.
      (Tr. at 109-12).


author: NICHOLS, Associate Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence HILL and Julius Wilkerson a/k/a Moon, and Clarence Diggs, Defendants-Appellants.
    No. 74-2028.
    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1975.
    Rehearing and Rehearing En Banc Denied April 1, 1975.

      A. J. McNamara, Metairie, La. (Court-appointed), for Hill.
    Michael F. Barry, New Orleans, La., for Wilkerson.
    Salvadore T. Mule, New Orleans, La. (Court-appointed), for Diggs.
    Gerald J. Gallinghouse, U. S. Atty., Cornelius R. Heusel, Mary Williams Cá-zalas, Asst. U. S. Attys., Billy B. Bowman, Sp. Atty., Drug Enforce. Adm., Task Force Div., New Orleans, La., for plaintiff-appellee.
    Before GEWIN and SIMPSON, Circuit Judges, and NICHOLS, Associate Judge.

       Of the U. S. Court of Claims, sitting by designation.

   NICHOLS, Associate Judge:

A jury convicted the appellant-defendants, Clarence Hill, Julius Wilkerson (a/k/a Moon), and Clarence Diggs of conspiracy to possess heroin with intent to distribute, and to distribute heroin, a Schedule I narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a)(1). Diggs, a multiple offender, received a 21-year sentence with a special parole term of 6 years (pursuant to 21 U.S.C. § 841). Wilkerson and Hill received 12-year sentences with special parole terms of 3 years, Hill’s sentence to run concurrently with his 8-year sentence in a companion case reported at United States v. Hill, 500 F.2d 315 (5th Cir. 1974), in which Hill was convicted of possession with intent to distribute the identical heroin which forms the basis of the conspiracy in this case. We affirm.

I

The relevant facts before the jury were as follows. On October 24, 1971, Wilkerson sent a telegraphic money order for $1,350 to Diggs’ home in New York City. In the last week of February 1972, unindicted co-conspirators Barbara Smith and Joyce Picard made a round-trip to New York City from New Orleans during which Barbara Smith picked up at Diggs’ New York home a sizeable package of heroin and couriered it back to New Orleans. Upon her return to New Orleans, she exchanged the package with Hill for $300, the agreed wages for the trip.

The next day Hill, Wilkerson, Diggs, Picard and another unindicted co-conspirator, Cora Virgil, returned to Barbara Smith’s home with the heroin, and various packaging materials, and spent several hours repacking • 40 bundles of heroin into 2,000 little glassine envelopes. The rest of the heroin was left hidden in the Smith home. A week later, Hill and Wilkerson returned and again repacked another 40 bundles into 2,000 glassine envelopes in the Smith home. The following week, the remaining 20 bundles were repacked by Hill and Wilkerson. When they left the Smith home on this occasion, they also took the surplus wrapping materials.

About 3 months later, in the search and seizure involving Hill’s home and automobile on July 1, 1972, another 42 bundles of heroin were turned over to police by Hill and other members of his family, along with $17,991 in cash and a gun.

The search and seizure issues, raised by appellants regarding Hill’s home and automobile, were heard and decided in the appeal of Hill’s companion conviction, 500 F.2d 315 (5th Cir. 1974), in an opinion by Judge Clark which disposes of all the search and seizure issues raised here, except one discussed infra. We are invited by parties other than Hill to reconsider these holdings, but we see no reason to doubt their correctness, and we reaffirm them here.

II

Appellants also argue on appeal their motion for mistrial based on four separate remarks of the prosecutor, Mr. Bowman, in his closing argument. They allege that these remarks were impermissable comments on the defendants’ failure to take the stand in their own behalf. However, three of the four remarks could only have been understood as comments on the failure of the defense (as opposed to defendants) to counter or explain the testimony of the unindicted co-conspirators, the various police officials, and the prosecution’s other witnesses and exhibits, putting a mass of incriminating evidence before the jury. None of these three remarks specifically pointed to any or all of the defendants as not having testified. Indeed, we can find no specific reference to defendants’ failure to take the stand during the trial in the record. The judge told the jury that the defendants did not have to testify and need not offer evidence. We disapprove of any comments by prosecutor or judge that even indirectly invites the jury’s attention to the failure of the defendants to take the stand, but on the facts of this case we cannot say that the trial judge abused his discretion in not noticing that any improper comments were made. None of the statements are comparable to the prejudicial remarks and instructions that resulted in reversal of trial convictions in Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968), and in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

The fourth remark occurred in the opening words of the prosecutor’s statement, as he congratulated and complimented the jury on their patience, and attention to the various surroundings and events associated with the three-day trial. He said they “watched attentively, listened to the witnesses, observed the witnesses’ demeanor, observed the defendants’ demeanor * * * ” To invite attention to the “demeanor” of a defendant who has not taken the stand is anomalous and could be impermissably prejudicial in some circumstances. There is no showing of any such prejudice here, and the remark was no doubt taken as manifestly it was intended, as meaningless flattery to the jury upon its alert attention to all that happened before it. We will not be understood as prospectively endorsing such a remark for use in future cases: clearly it is contra-indicated.

Ill

Appellants return to the search and seizure to complain about the ruse used by the Federal agent to get Hill to open his door peacefully to them, at which time the agents disclosed their true identities and search warrant. He carried an attache case similar to those carried by insurance salesmen. He knocked and a voice inside asked who it was. He replied, “Aetna Insurance.” Hill then unlocked a wooden door and the agent said: “Federal agents with a warrant.” We see no significance if the agent pulled open an unlocked screen door before knocking. Commonly one must do that to knock or ring, if a screen door is fitted in front of a solid door. This does not make a forceful entry out of one otherwise peaceful. In United States v. Beale, 5 Cir., 436 F.2d 573, rev’d on rehearing, 5 Cir., 445 F.2d 977 (1971), cert. denied, 404 U.S. 1026, 92 S.Ct. 697, 30 L.Ed.2d 676 (1972), this court has previously struggled with the ruse problem, concluding that “if entry by deception and wholly without application of force is to be brought within § 3109, it should be by the Supreme Court.” (445 F.2d at 978). We think that our prior holding in Beale controls the instant case, particularly since here full disclosure of identity and warrant was made as soon as Hill opened the door and before entry by the officers.

Appellant Wilkerson has also urged many other assignments of error, but after careful consideration we find no merit in them, sufficient to require discussion.

Affirmed.


author: CAMPBELL, Circuit Judge.

text:
    Leroy ARMSTRONG, Plaintiff-Appellee, v. Virginia D. ARMSTRONG, Defendant-Appellant. Leroy ARMSTRONG, Plaintiff-Appellant, v. Virginia D. ARMSTRONG, Defendant-Appellee.
    Nos. 74-1259 and 74-1282.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1974.
    Decided Dec. 27, 1974.
    Milton Stanzler, Providence, R. I., with whom Abedon, Michaelson, Stanzler & Biener, Providence, R. I., was on brief, for Virginia D. Armstrong.
    James P. Flynn, North Kingstown, R. I., for Leroy Armstrong.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

On October 13, 1971, and May 9, 1972, the Rhode Island Family Court awarded to Virginia and Leroy Armstrong interlocutory and final divorce decrees. Both decrees awarded custody of their minor children to Virginia, and provided that Leroy had a duty to support Virginia and the minor children. No alimony was provided; rather the decrees recited that

“the aforesaid duty to support is governed by a Memorandum of Understanding between the parties, dated October 12, 1971, which is incorporated by reference, and made a part hereof, and therefore, there will be no express order.”

The Memorandum of Understanding revealed that Leroy had given Virginia a non-negotiable note for $288,000, payable in sixteen annual installments of $18,000, and secured by a mortgage on several nursing home properties formerly owned by the couple jointly and now owned by Leroy. Virginia and Leroy, as signers of the Memorandum, “acknowledged and understood that in addition to the sum being part payment for [the two nursing home parcels] these payments are substantially for alimony and support of the minor children.”

The federal litigation from which this appeal is taken was an outgrowth of Leroy’s failure to maintain payments under the note. Virginia initiated foreclosure proceedings, and Leroy responded by suit in the Rhode Island Superior Court for Washington County requesting an injunction against the proposed foreclosure sale and equitable cancellation or reformation of the Memorandum of Understanding, the mortgage and the note. As grounds for equitable relief, Leroy asserted that both parties had erroneously understood that the $18,000 annual payments would be reimbursed, at least partially, by certain state receipts relative to the nursing home formerly owned by the couple and now operated by Leroy. The alleged misunderstanding was said to be a “mutual mistake.”

Virginia, a Florida resident, undertook to remove her former husband’s equitable suit to the federal district court under 28 U.S.C. § 1441(a). She also filed a counterclaim in that court for the full amount of the note. The district court, after first granting Leroy a temporary restraining order against foreclosure of the mortgage, said it would hear the case, but expressed concern as to whether it could be entertained in a federal court. After Leroy had rested, the court dismissed both the complaint and counterclaim “for lack of jurisdiction,” asserting that a “federal court . . . has no jurisdiction whatever to modify state court decrees in domestic relations matters.” Both parties appealed. Leroy takes the position that in dismissing the district court acted correctly, but he contends that the case should have been remanded to the Superior Court, or at least dismissed without prejudice.

It has often been said that federal courts are without jurisdiction to decide domestic relations cases. Cf. C. Wright, Federal Courts 84 (2d ed. 1970); H. Hart & H. Wechsler, The Federal Courts and the Federal System 1189 — 92 (2d ed. 1973). The limitation goes back to a dictum in Barber v. Barber, 62 U.S. (21 How.) 582, 584, 16 L.Ed. 226 (1859),

“We disclaim altogether any jurisdiction in the courts of the United States upon the subject of divorce, or for the allowance of alimony, either as an original proceeding in chancery or as an incident to divorce a vinculo, or to one from bed and board.”

Quite likely, as Judge Weinstein shows in Spindel v. Spindel, 283 F.Supp. 797, 800-801 (E.D.N.Y.1968), the Article III judicial power is broad enough to cover even such matrimonial matters if Congress were to provide, but the force of Barber was that divorce and alimony actions were not “suits of a civil nature at common law or in equity” within Congress’ original grant of diversity jurisdiction, Act of Sept. 24, 1789, § 11, 1 Stat. 72, 78, Id. at 804. The current wording of 28 U.S.C. § 1332, “civil actions,” is not deemed to have altered this rule, and we agree with Judge Friendly that “it is beyond the realm of reasonable belief that, in these days of congested dockets, Congress would wish the federal courts to seek to regain territory, even if the cession of 1859 was unjustified.” Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 514 (2d Cir. 1973).

Lower federal courts have had difficulty determining when to decline cases which, though not strictly speaking actions for divorce or for alimony, are related to those subjects. The purely jurisdictional exception has been narrowly confined. But it has been held that a federal court — even when it has jurisdiction — may abstain for reasons of comity and common sense from cases better handled by the state courts having authority over matrimonial and family matters. Phillips, supra at 515-516; Magaziner v. Montemuro, 468 F.2d 782, 787 (3d Cir. 1972); Buechold v. Ortiz, 401 F.2d 371, 373 (9th Cir. 1968).

We do not struggle to decide whether the present case falls technically within or without federal “jurisdiction.” We are satisfied that in any event it is a case as to which sound federal policy as well as comity dictates abstention. Before the divorce, the Armstrongs had run a successful nursing home; the end of their business partnership as well as their marriage was signalled by a spate of law suits including one for alienation of affection. In settlement of these and in anticipation of a divorce, various agreements — including the Memorandum of Understanding, the note and the mortgage — were negotiated immediately preceding entry of the divorce decrees. From the face of the divorce decrees, it would appear that the note and mortgage to which the Memorandum refers were in lieu of support and alimony. It will thus be difficult if not impossible to separate the equities Leroy now asserts in support of a right to modify or cancel the agreement from the question of Leroy’s continuing support obligations-and these, in turn, may require a court to investigate the needs of his family and Leroy’s current capabilities as a family provider. While a federal court might, in a narrow sense, adjudicate the obligations vested under the note and mortgage, it could not determine Leroy’s continuing family support obligations, and would lack both the power and the resources of the Rhode Island Family Court to consider what might best serve the current interests of the family. In such circumstances, we think a federal court should decline jurisdiction. There is no reason to proliferate the number of available forums for litigation rooted in the duties of former spouses to one another and to their family. To handle matrimonial and family matters states like Rhode Island have created specialized courts with social work functions and facilities. See, e. g., R.I. Family Court Act, G.L. § 8-10-1 et seq. While the present litigation was in the Superior Court, the record indicates that related proceedings were commenced in the Rhode Island Family Court, and it would seem unwise for a federal court to issue orders which, because of res judicata or estoppel, might severely restrict the ability of the appropriate state court to reach an equitable result. See Linscott v. Linscott, 98 F.Supp. 802, 805 (S.D.Ia.1951).

While we agree with the district court’s conclusion that the action may not be entertained in a federal forum, this should have dictated a remand to the state court rather than a dismissal. See 28 U.S.C. § 1447(c); 1A Moore’s Federal Practice K 0.169 [1], The order of dismissal is vacated and the district court is instructed to enter an order remanding the action to the state court from which it was removed.

So ordered.

      . In support of this assumption, it was maintained that English chancery jurisdiction did not embrace the subjects of divorce and alimony, these being left variously to the ecclesiastical courts and Parliament. See Spindel v. Spindel, 283 F.Supp. 797, 802 (E.D.N.Y.1966); Phillips, Nizer, Benjamin, Krim & Ballon v. Rosenstiel, 490 F.2d 509, 512-514 (2d Cir. 1973).

      . Soon after this case was removed to the federal court, Leroy apparently obtained from the Rhode Island Family Court a temporary restraining order against his former wife’s foreclosure sale. Her subsequent attempt to remove that proceeding was refused by the district court.