author: BROWNING, Circuit Judge:

text:
    Kerry M. GOUGH, Trustee in Bankruptcy of Louis Rosen, dba Walnut Creek Furniture, Plaintiff-Appellant, v. ROSSMOOR CORPORATION et al., Defendants-Appellees.
    No. 26475.
    United States Court of Appeals, Ninth Circuit.
    Oct. 17, 1973.
    As Modified on Denial of Rehearing Dec. 28, 1973.

      Maxwell Keith (argued), San Francisco, Cal., Anthony J. Mercant, of Mercant & O’Brien, San Jose, Cal., Kerry M. Gough, of Bonjour, Cal., Gough & Stone, Oakland, Cal., for plaintiff-appellant.
    John B. Clark (argued), of Miller, Groezinger, Pettit & Evers, San Francisco, Cal., for defendants-appellees.
    Before BROWNING, DUNIWAY and GOODWIN, Circuit Judges.
   BROWNING, Circuit Judge:

Plaintiff sued defendants for treble damages under section 4 of the Clayton Act (15 U.S.C. § 15) for violation of sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2). The ease was submitted to the jury on special interrogatories. The jury responded that defendants had entered into a conspiracy to exclude plaintiff from the business of selling at retail in a local market products produced in other states, that they had restrained plaintiff’s retail business to his damage, but that their acts had not had “a substantial effect on interstate commerce or the flow of interstate commerce.” Because of this negative answer regarding the effect of defendants’ conduct on interstate commerce, the district court entered judgment for defendants. We reverse.

Plaintiff was sole proprietor of a retail store selling carpets, drapes, and household furniture in Walnut Creek, California. Defendants are two members of a group of corporations that buy and sell land and construct, sell, furnish and manage residential developments. These developments are referred to individually and collectively as “Rossmoor Leisure World.”

Defendant Rossmoor Corporation is the primary developer. Defendant Crest-mark Carpet and Drapery Company is a wholly owned subsidiary of Rossmoor that sells carpets and drapes to residents of Rossmoor Leisure World, including the development in the Walnut Creek area.

All the carpeting sold by plaintiff and defendant Crestmark to residents of the Walnut Creek Rossmoor Leisure World during the relevant period was manufactured outside California and shipped to plaintiff and defendant Crestmark either directly or through in-state wholesalers.

In response to interrogatories submitted under Rule 49(a), Fed.R.Civ.P., the jury found that defendants and their subsidiaries had the power and intention to exclude plaintiff from the business of selling carpeting to residents of the Walnut Creek Rossmoor Leisure World; that they entered into a scheme to prevent plaintiff from advertising in the Leisure World News, a “house” newspaper for that development, “such as to act as a restraint on plaintiff’s business”; and that, as a result, plaintiff suffered some $50,000 damages in loss of profits and good will. However, to the question “Did such restraint have a substantial effect on interstate commerce or the flow of interstate commerce?” the jury answered “No.” Judgment was entered for defendants on the ground that this last answer deprived the court of jurisdiction under the Sherman Act.

The jurisdictional issue under the Sherman Act is distinct from the substantive issue of whether a given defendant’s conduct was of the kind prohibited by the Act. Rasmussen v. American Dairy Ass’n, 472 F.2d 517, 521-524 (9th. Cir. 1973). The jurisdictional issue is one of constitutional power. Congress intended to extend the substantive prohibitions of the Sherman Act to the farthest reaches of its power under the Commerce Clause, thereby mandating for this nation a competitive business economy to the full extent that Congress could do so under its constitutional power to regulate interstate and foreign commerce. United States v. South-Eastern Underwriters Ass’n, 322 U.S. 533, 558-559, 64 S.Ct. 1162, 88 L.Ed. 1440 (1944). The jurisdictional question, therefore, is whether defendants’ conduct had a sufficient relationship to interstate commerce to be subject to regulation by Congress. Rasmussen v. American Dairy Ass’n, supra,, 472 F.2d at 521. This, in turn, depends upon whether defendants' conduct had a “substantial economic effect” upon interstate commerce or, “ ‘concerns more States than one’ and has a real and substantial relation to the national interest” in a competitive economy. Heart of Atlanta Motel v. United States, 379 U.S. 241, 255, 85 S.Ct. 348, 356, 13 L.Ed.2d 258 (1964), quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196-97, 6 L.Ed. 23 (1824); see Rasmussen v. American Dairy Ass’n, supra, 472 F.2d at 522-523. See, generally, 1 von Kalinowski, Antitrust Laws & Trade Regulation § 5.01 [4] (1969).

The substantive issue, on the other hand, is whether defendants participated in anticompetitive conduct of the kind encompassed within the statutory terms “restraint of trade,” “monopolize,” or “attempt to monopolize.” In terms of this case, the substantive question was whether defendants, with the power and intent to exclude plaintiff from the Rossmoor Leisure World Market, entered into a common scheme or plan to restrain plaintiff’s business by preventing him from advertising in the Leisure World News, and, if so, whether such conduct was the kind of anticompetitive conduct prohibited by the Act,

Thus, although both the substantive and jurisdictional issues are often confusingly described in terms of the “effect” of particular conduct upon commerce, as if a common question were presented, see, e. g., Las Vegas Merchant Plumbers Ass’n v. United States, 210 F.2d 732, 739-740 n. 3 (9th Cir. 1954), the substance of the two inquiries is quite different. An unreasonable restraint on competition may have no impact upon interstate commerce, or an impact so insignificant that regulation under the Commerce Clause is not justified as a means of protecting interstate commerce. Page v. Work, 290 F.2d 323, 331-332 (9th Cir. 1961). Or conduct clearly having a substantial economic impact on interstate commerce may not violate the Act’s prohibitions against unreasonable restraints of trade and monopolization. Cartrade, Inc. v. Ford Dealers Advertising Ass’n, 446 F.2d 289, 292 (9th Cir. 1971).

When the issue is whether the defendant’s conduct violates the norms of the statute, the focus is upon commercial competition: whether the defendant’s conduct — “in” or “affecting” interstate commerce or not — unreasonably restrains competition in the market place. When the issue is whether jurisdiction exists, the focus is upon interstate commerce : whether the defendant’s conduct — unreasonably restrictive of competition or not — has a sufficient impact on interstate commerce to justify regulation under the Commerce Clause.

In the present case, the jury’s factual findings that defendants, with the power and intent to exclude plaintiff from the Rossmoor Leisure World market, entered into a common scheme or plan to restrain plaintiff’s business by preventing him from advertising in the Leisure World News, established, as a matter of law, that defendants had engaged in the type of anticompetitive conduct that Congress intended to prohibit by the Sherman Act. The jury’s further findings that plaintiff suffered monetary damages in a determined amount by reason of defendants’ conduct, established, as a matter of law, that plaintiff was among the class of private persons authorized by the Clayton Act to seek redress for such conduct. Defendants do not argue to the contrary.

The sole question here is jurisdictional : did defendants’ conduct have a sufficient relationship to interstate commerce to be within Congress’ power to regulate, and hence to come within the Sherman Act?

Defendants argue that the jury’s specific finding that defendants’ acts did not have a “substantial effect on interstate commerce or the flow of interstate commerce” is conclusive of jurisdiction. We disagree.

It is doubtful whether the jurisdictional issue should have been submitted to the jury, even had the evidence been- in dispute. Except where the jurisdictional issue and the issues on the merits are factually “completely intermeshed,” McBeath v. Inter-American Citizens for Decency Committee, 374 F.2d 359, 362-363 (5th Cir. 1967), it may well be the court’s function to resolve factual disputes relevant to jurisdiction on motion under Rule 12(b)(1), Fed.R.Civ.P., rather than the jury’s function to resolve such disputes in the trial of the case on the merits. See Page v. Work, supra, 290 F.2d at 334; Bailey’s Bakery, Ltd. v. Continental Baking Co., 235 F.Supp. 705, 714 (D.C.Hawaii 1964); 5 Wright & Miller, Federal Practice & Procedure § 1350, at 556-58; 5 Moore’s Federal Practice 38.36 [2.-2], at 298-300; but see Marks Food Corp. v. Barbara Ann Baking Co., 274 F.2d 934 (9th Cir. 1959).

Even assuming, however, that the resolution of conflicts in the evidence as to jurisdictional facts is the function of the jury, the jury must be given adequate instructions as to the legal standard to be applied. Ratigan v. New York Central R.R., 291 F.2d 548, 554 (2d Cir. 1961); 5A Moore’s Federal Practice, supra, ¶ 49.02, at 2206 n. 7; 9 Wright & Miller, Federal Practice & Procedure, supra, § 2506, at 502. The interrogatory submitted to the jury in this case (question “3,” supra note 2) did not inform the jury of the constitutional tests for determining whether the relationship between defendants’ conduct and interstate commerce was such as to permit Congress to prohibit defendants’ conduct. Nor was the general explanatory instruction given to the jury adequate to this purpose.

In any event, there was no conflict in the evidence as to the facts relevant to jurisdiction. The undisputed facts established that the necessary relationship to interstate commerce did exist. In these circumstances, it was error to submit the jurisdictional issue to the jury under Rule 49(a). Wirtz v. La Fitte, 326 F.2d 856, 858-860 (5th Cir. 1964); W. R. Grimshaw Co. v. Nevil C. Withrow Co., 248 F.2d 896, 902-903 (8th Cir. 1957); 9 Wright & Miller, supra, at 499. The jury’s erroneous answer to the jurisdictional interrogatory should have been ignored. Ratigan v. New York Central R.R., supra, 291 F.2d at 554-555; W. R. Grimshaw Co. v. Nevil C. Withrow Co., supra, 248 F.2d at 902-905; Albert Pick-Barth Co. v. Mitchell Woodbury Corp., 57 F.2d 96, 99-103 (1st Cir. 1932).

We need not stop to inquire whether retail sales of carpeting to Rossmoor Leisure World residents occurred “in” interstate commerce, for it is clear that defendants’ anticompetitive conduct in connection with such sales necessarily had the “substantial economic effect” upon interstate commerce in carpeting requisite to the exercise of federal regulatory power. The retail transactions affected by defendants’ conduct were essential to the continued movement of a substantial volume of carpeting from the states of manufacture to the Walnut Creek, California, area. See Cartrade, Inc. v. Ford Dealers Advertising Ass’n, supra, 446 F.2d at 292. Elimination of competition in these intrastate sales of goods produced in other states inevitably affected the interstate commerce in such goods: “When competition is reduced, prices increase and unit sales decrease,” resulting in fewer purchases from out-of-state producers. Burke v. Ford, 389 U.S. 320, 322, 88 S.Ct. 443, 19 L.Ed.2d 554 (1967). By restricting plaintiff’s participation in these retail transactions, and eventually excluding plaintiff entirely from this trade, defendants diverted interstate shipments of carpeting from plaintiff to themselves, thus “interfer[ing] with the natural flow of interstate commerce.” Klors, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 213, 79 S.Ct. 705, 710, 3 L.Ed.2d 741 (1959). The states in which the carpeting is manufactured as well as the State of California are concerned with the conditions under which carpeting is sold at retail to California residents. And the relationship between the elimination of competition in these retail sales of carpeting at Rossmoor Leisure World and the national interest in the distribution of carpeting in a free competitive economy is not so tenuous as to bar federal intervention, though the market monopolized in this instance was small. Id. at 213-214, 79 S.Ct. 705. See also Radi-' ant Burners, Inc. v. Peoples Gas Light & Coke Co., 364 U.S. 656, 660, 81 S.Ct. 365, 5 L.Ed.2d 358 (1961).

Jurisdiction under the Sherman Act was therefore clearly present.

The judgment is vacated and the cause remanded for further proceedings consistent with this opinion.

      . Defendant Crestmark’s sales of carpeting and padding to residents of Rossmoor Leisure World at Walnut Creek exceeded $380,000 in 1965, $565,000 in 1966, and $305,000 in 1967. The volume of plaintiff’s sales of carpeting to residents of the development is not entirely clear from the record, but defendants conceded at oral argument that such sales were not de minimis. Moreover, plaintiff testified, and the jury, necessarily found, that such sales would have been substantially greater but for defendants’ acts.

      . The written submission to the jury read as follows:
      The following questions are being submitted to you for your answer in order to aid the Court in reaching a decision in this matter.
      You should recognize that your answers to these questions will be the basis for the Court’s decision which will decide whether or not the plaintiff is entitled to recover or not from the defendants.
      You are to answer the following interrogatories as applicable. Before any question may be answered, all 12 of the jurors must agree on the answer.
      1. Did the defendants and Leisure World Foundation or Golden Rain Foundation by means of a common plan scheme or design have the power and intention to exclude plaintiff from the carpet and/or other business in Rossmoor Leisure World?
      Yes X
      No ....
      2. Did defendants enter into a common plan, scheme or design with Leisure World Foundation or Golden Rain Foundation to prevent plaintiff from advertising carpets in the Leisure World News such as to act as a restraint on plaintiff’s business of selling carpets or other merchandise at Rossmoor Leisure World?
      Yes X
      No ....
      3. If your answer to' either of the preceding questions is in .the affirmative, did such restraint have a substantial effect on interstate commerce or the flow of interstate commerce?
      Yes ....
      No X
      4. Has plaintiff suffered any monetary damage by reason of its inability to advertise in Leisure World News?
      Yes X
      No ....
      5. If so, please indicate the amount opposite the appropriate type of damage you find to have been suffered.
      Net Profits $18,143.00
      Goodwill 22,738.00

      . Professor Moore summarizes the policy considerations supporting this view as follows :
      As a matter of policy, however, there is much to be said for approaching problems of statutory coverage as triable to the court when reasonably separable from the facts of violation. The difference is this: if coverage is treated as substantive for purposes of mode of trial, the issue of whether a cause of action is stated must be left to the jury in eases in which underlying facts are not in dispute, but different inferences may be drawn from them. Thus on the same business arrangements one case may be decided one way and another in a different way, as the jury may find that the arrangements did or did not affect commerce . . . . Surely these are matters that should be treated as a matter of law so that the perimeter of the statute can be worked out in the appellate courts. When there is . . . in the case of the antitrust case a factual question as to details of the defendant’s business activities, such questions could be put to the jury as special interrogatories, or a special verdict employed.
      5 Moore’s Federal Practice If 38.36 [2.-2], at 300.

      . The only relevant portion of the instructions read (Tr. 1310) :
      The Sherman Act applies to parties whose acts are in the course or flow of commerce across state lines or whose acts, although local, substantially affect interstate trade and commerce. By substantial the law means not de minimis — • not insignificant, an amount more than trifling. The amount of interstate trade involved, if substantial, is not material, since the Sherman Act brands as illegal the character of the restraint, not the amount of commerce affected.


source: Caselaw Access Project

author: WYZANSKI, District Judge: TIMBERS, Circuit Judge, joined by LUMBARD, Circuit Judge,

license: Public Domain

text:
    Siegfried HERNANDEZ, Plaintiff-Appellant, v. EUROPEAN AUTO COLLISION, INC., et al., Defendants-Appellees. The Attorney General of the State of New York, Intervenor-Appellee, Auto Body Craftsmen’s Guild, Inc., Intervenor-Appellee.
    No. 406, Docket 72-1977.
    United States Court of Appeals, Second Circuit.
    Argued March 5, 1973.
    Decided June 29, 1973.
    Rehearing and Rehearing En.Banc Denied Sept. 7, 1973.

      Kalman Finkel, New York City (The Legal Aid Society, Civil Appeals Bureau, New York City, on the brief), and John E. Kirklin, New York City, for plaintiff-appellant.
    Louis J. Lefkowitz, Atty. Gen. of N. Y., pro se intervenor-appellee.
    Before LUMBARD and TIMBERS, Circuit Judges, and WYZANSKI, District Judge.

       Of the District of Massachusetts, sitting by designation.

   WYZANSKI, District Judge:

This case involves a challenge under the due process clause of the Fourteenth Amendment to Sections 184, 201, 202 and 204 of the New York Lien Law, McKinney’s Consol. Laws, c. 33.

Those sections provide:

§ 184. Lien of bailee of motor vehi-. cles, motor cycles, motor boats, or aircraft A person keeping a garage, . for the storage, maintenance, keeping or repair of motor vehicles or of motor cycles as defined by the vehicle and traffic law, . . . and who in connection therewith stores, maintains, keeps or repairs any motor vehicle ... at the request or with the consent of the owner, . has a lien upon such motor vehicle . . . for the sum due for such storing, maintaining, keeping, or repairing of such motor vehicle . and may detain such motor vehicle ... at any time it may be lawfully in his possession until such sum is paid . § 201. Notice of sale Before such sale is held the lienor shall serve a notice upon the owner with due diligence within such county, if such owner can be found when such lien arose . . . Such notice shall contain a statement of the following facts:
1. The nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due;
2. A brief description of the personal property against which the lien exists;
3. The estimated value of such property;
4. The amount of such lien, at the date of the notice.
It shall also require such owner or person to pay the amount of such lien, on or before a day mentioned therein, not less than ten days from the service thereof, and shall state the time when and place where such property will be sold, if such amount is not paid. If the-agreement on which the lien is based provides for the continuous care of property, the lienor is also entitled to receive all sums which may accrue under the agreement, subsequent to the notice and prior to payment or a sale of the property; and the notice shall contain a statement that such additional sum is demanded. Such notice shall be verified by the lienor to the effect that the lien upon such property is valid, that the debt upon which such lien is founded is due and has not been paid, and that the facts stated in such notice are true to the best of his knowledge and belief. § 202. Sale to be advertised
Each sale of personal property to satisfy a lien thereon shall be at public auction to the highest bidder, and shall be held in the city or town where the lien was acquired. After the time for the payment of the amount of the lien specified in the notice required to be served by the preceding section, notice of such sale shall be published once a week, for two consecutive weeks, in a newspaper published in the town or city where such sale is to be held, and such sale shall be held not less than fifteen days from the first publication; if there be no newspaper published in such town, such notice shall be posted at least ten days before such sale in not less than six conspicuous places therein. Such notice shall describe the property to be sold and shall state the name of the person for whose account the same is then held and the time and place of such sale
§ 204. Disposition of proceeds
Of the proceeds of such sale, the lienor shall retain an amount sufficient to satisfy his lien, and the expenses of advertisement and sale. The balance of such proceeds, if any, shall be held by the lienor subject to the demand of the owner, or his as-signee or legal representative, and a notice that such "balance is so held shall be served personally or by mail upon the owner of the property sold.

Plaintiff was the owner of a Volkswagen automobile. He filed against three defendants — a corporation operating a garage and repair shop, its president, and a New York licensed auctioneer — a complaint seeking a declaratory judgment against the statute, an injunction against defendants, and damages from them.

The District Court dismissed the complaint for failure to state a cause of action, on the ground that the challenged statute as allegedly here applied was not unconstitutional. The following are the allegations of the complaint, which, in effect, has been held to be demurrable.

February 10, 1972 plaintiff’s car suffered damage in a collision. The following day plaintiff asked the corporate defendant’s employee, whose first name is Marcel, to tow the car to its garage and to estimate the cost of repair, but not to repair until plaintiff’s insurance company had estimated the damage and until the corporate defendant had made contact with plaintiff.

February 24 Marcel asked plaintiff if the corporation should repair. Plaintiff replied negatively because the insurer had not yet appraised.

Later plaintiff secured from the garage corporation an estimate (dated February 18) that repairs would cost $1545.58.

In March, Marcel telephoned plaintiff that his car had been repaired, and asked if he wanted to pick it up. Plaintiff replied that he had not authorized repairs.

Subsequently, representatives of plaintiff’s insurer reported to plaintiff that the fair cost of repairs was $750 and that the garage had erroneously charged for parts which were neither damaged nor replaced.

April 7 defendant president of the garage company wrote, and April 13 plaintiff received, a letter to plaintiff that $950 was due the company for repair and $235 for storage, and that if plaintiff did not pay his bill and pick up the car, defendant company would sell the car pursuant to the statutory procedure with respect to foreclosing a garage-man’s lien.

April 13 plaintiff wrote to defendant company for an itemization.

April 17 defendant company wrote plaintiff that unless he paid his alleged indebtedness of $1311.50 by April 28, his car would be sold on May 19 at public auction under the direction of defendant auctioneer, pursuant to sections 201-204 of the New York Lien Law. The letter attached a partial itemization, including $950 for repairs. Presumably, the balance of the $1311.50 was for storage.

At plaintiff’s solicitation, an Assistant Attorney General of New York, and The Legal Aid Society then futilely sought to mediate the dispute.

May 12 plaintiff filed in the District Court a complaint pleading substantially, if unnecessarily verbosely, the aforesaid allegations. Relying on the court’s jurisdiction under 28 U.S.C. § 1343(3), he sought threefold relief: a declaratory judgment that, as here applied, Sections 184, 200-202, and 204 of the New York Lien Law violated the due process clause of the Fourteenth Amendment, a permanent injunction against the enforcement of those statutory provisions, and compensatory and punitive damages. He prayed for a three-judge district court, pursuant to 28 U.S.C. §§ 2281, 2284.

The Attorney General of New York and the Auto Body Craftsmen’s Guild petitioned the District Court to intervene as defendants. The Court granted a temporary injunction effective only until it determined the case, allowed the petition for intervention, denied plaintiff’s request for a three-judge court on the ground that the complaint did not name a state officer as defendant, and ultimately dismissed the complaint because the court regarded the Constitution as not requiring notice and opportunity to be heard on the amount claimed as a debt as a condition preliminary to sale under the statutory procedure.

Plaintiff moved this Court for an order staying the defendants’ sale of his car pending appellate hearing. Circuit Judge Kaufman denied the stay.

We are informed that, following Circuit Judge Kaufman’s denial of a stay, the auctioneer actually sold the car.

We now come to the questions of law presented by the District Court’s dismissal of the complaint.

Clearly the District Judge correctly determined that a three-judge court was not appropriate in this case, because, as he noted, none of the defendants is a state officer. There is no reason for us to say more than has been well said already by Judge Costantino on this point.

We next consider whether plaintiff has standing to attack those provisions of Section 184 of the New York Lien Law which allow a garageman to detain until he is paid his storage and his repair charges as well. Plaintiff admits that he told the garageman to pick up his car. Hence he voluntarily incurred at least some storage charges. Indeed, his car became subject to reasonable storage charges and to any common law lien, as well as to a statutory lien for those amounts. More important for present purposes, plaintiff, up to the time he filed his complaint, never asked to have the car back, nor tendered the amount of reasonable storage charges. Accordingly, he is in no position to challenge the statutory lien, even if it were true, which we do not suggest is the case, that the garageman was demanding excessive storage, as well as repair charges. Plaintiff’s challenge to the detention provisions of the New York Lien Law is, therefore, moot. Consequently, we do not rule upon the constitutionality of Section 184 of the New York Lien Law.

The situation is different with respect to plaintiff’s challenge to the sale provisions of tfee New York Lien Law. This has several aspects. The garageman gave notice of a forthcoming sale; so plaintiff was not injured by the notice aspect of the statute as here applied. Consequently, we do not rule upon Section 202 of the New York Lien Law.

However, perhaps what plaintiff means is that he was not given notice of a hearing in court before the sale. This is just another way of claiming that the statute does not require, what it is contended that the due process clause commands, that before effectuating a sale to foreclose a garageman’s lien a garage-man must afford in a judicial proceeding an opportunity to a car owner to have a judicial determination of the amount allegedly owed, at least when, as here, the owner disputes the amount. This is the nub of the present case because it is a non-moot challenge to Section 204 of the New York Lien Law. The fact that the sale has already occurred obviously does not make moot the prayers for a declaratory judgment and for damages.

We are of the view that, upon a full finding of the facts, which has not yet occurred because the complaint was dismissed for failure to state a cause of action, it may appear that the garage company and the plaintiff were in dispute as to the former’s charges for storage and repair, that in this posture, without taking the initiative to afford plaintiff opportunity for judicial ascertainment of the asserted debt, the garage defendant authorized the auctioneer, pursuant to New York Lien Law § 204, to sell plaintiff’s car, that the auctioneer sold the car, and that the auctioneer then turned over to the garage company the whole proceeds in partial satisfaction of the amount the garage company had claimed was owing to it for storage and repair charges. If those should be the facts found, then we would conclude that plaintiff has, under the doctrines enunciated in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed. 2d 556 (1972), Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), and Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L. Ed.2d 349 (1969), a tenable contention that Section 204 of the New York Lien Law as applied here was repugnant to the due process clause of the Fourteenth Amendment and that he is entitled to a declaratory judgment and perhaps to compensatory and possibly punitive damages. We have not overlooked what was said below about the state procedures, such as replevin, which were open to plaintiff to have forestalled the sale. But we are persuaded that, even if those remedies would have been effective, they do not validate Section 204 of the New York Lien Law so as to give defendants the right to sell plaintiff’s property without either judicial ascertainment of the amount owed by plaintiff to the garage company or plaintiff’s admission or contractual stipulation as to the amount due. However, it is manifestly not proper for us to make final rulings on those points before the facts are found by the District Court after a plenary trial. All that we now do is to reverse the dismissal of the complaint and to remand the ease to the District Court with directions to try the case on its merits.

Reversed and remanded.

TIMBERS, Circuit Judge, joined by LUMBARD, Circuit Judge,

(concurring) :

I concur in the judgment of the Court and in the opinion of Judge Wyzanski to the extent that they reverse the order of the district court dismissing the complaint and remand for trial on the issue of the constitutionality of the sale provisions of the New York Lien Law as applied to the sale of appellant’s automobile. I would go further, however, and state what I believe to be the applicable constitutional principles. Indeed, I would direct the district court to declare the sale provisions unconstitutional as applied if appellant is able to prove his allegations.

Like Judge Wyzanski, in my view the key question raised by this complaint is whether the summary sale procedure provided for in N.Y. Lien Law § 200, et seq. (McKinney Supp. 1972) passes constitutional muster. While I agree that if appellant can prove the facts outlined in Judge Wyzanski’s opinion, appellant will have “a tenable contention that Section 204 of the New York Lien Law as applied here was repugnant to the due process clause of the Fourteenth Amendment”, I think the issue is so important and close as to warrant more guidance from us to the district court.

On the issue of the statute’s detention provision, N.Y. Lien Law § 184 (McKinney Supp. 1972), I agree with Judge Wyzanski that appellant’s claim is no longer justiciable, but for somewhat different reasons.

I.

The district court, in holding that due process does not require the opportunity for a hearing prior to the sale of personal property by a garageman pursuant to the Lien Law, relied primarily on Magro v. Lentini Bros. Moving & Storage Co., 338 F.Supp. 464 (E.D.N.Y.1971), aff’d per curiam on opinion below, 460 F.2d 1064 (2 Cir.), cert, denied, 406 U.S. 961 (1972) There, the court upheld the constitutionality of the UCC’s warehouseman’s lien provision, N.Y.U.C.C. § 7-210 (McKinney 1964), which permits a warehouseman to enforce a statutory lien by sale of the bailed goods without a prior judicial hearing. The basis for that conclusion was the court’s reading of Sniadach v. Family Finance Corp., 395 U.S. 337 (1969), which it held confined the requirement of a pre-seizure hearing to goods “the deprivation of which will drive the debtor ‘to the wall’.” 338 F.Supp. at 468. Where a debtor voluntarily parts with possession of goods for a reasonably long period of time, the district court reasoned in Magro, the deprivation of those goods cannot be said to be of sufficient severity to bring the case within Sniadach.

Regardless of the validity of that view at the time of the district court’s decision in Magro, the “necessities” distinction surely was put to rest in Fuentes v. Shevin, 407 U.S. 67 (1972). In Fuentes, the Supreme Court disapproved the district courts' rejection of plaintiffs’ constitutional claim

“on the ground that the goods seized from them — a stove, a stereo, a table, a bed, and so forth — were not deserving of due process protection, since they were not absolute necessities of life. The courts based this holding on a very narrow reading of Sniadach v. Family Finance Corp., supra, and Goldberg v. Kelly, [397 U.S. 254], in which this Court held that the Constitution requires a hearing before prejudgment wage garnishment and before the termination of certain welfare benefits. They reasoned that Sniadach and Goldberg, as a matter of constitutional principle, established no more than that a prior hearing is required with respect to the deprivation of such basically ‘necessary’ items as wages and welfare benefits.
This reading of Sniadach and Goldberg reflects the premise that those cases marked a radical departure from established principles of procedural due process. They did not. Both decisions were in the mainstream of past cases, having little or nothing to do with the absolute ‘necessities’ of life but establishing that due process requires an opportunity for a hearing before a deprivation of property takes effect. . . . While Sniadach and Goldberg emphasized the special importance of wages and welfare benefits, they did not convert that emphasis into a new and more limited constitutional doctrine.” 407 U.S. at 88-89 (footnotes omitted).

See also, e. g., Bell v. Burson, 402 U.S. 535, 539 (1971).

Thus, if Magro is to have the continued validity with which the district court in the instant case credited it, that would be permissible only on the assumptions that (1) the “necessities” distinction was unnecessary to the decision, and (2) the critical factor in Magro was the voluntary transfer of the property —a factor also present in the instant case. My reading of the Magro opinion makes the first assumption appear dubious at best. Nor, it seems to me, does the second withstand close scrutiny, even if we were to assume that the court’s reference to the voluntary transfer was only to bolster the inference that the bailed goods did not come within Snia-dach.

In the instant case, I should assume that the reason for focusing on the voluntariness of appellant’s delivery of his car to the garageman is that it is the deprivation of tangible property that calls due process into play. As I read the cases, however, it is the deprivation of a significant property interest that gives rise to the requirement of a prior opportunity to be heard. E. g., Boddie v. Connecticut, 401 U.S. 371, 379 (1971); Fuentes v. Shevin, supra, 407 U.S. at 86. Here, it is true that appellant in a sense voluntarily delivered his car for the purpose of temporary storage and perhaps eventual repair. But it cannot be seriously contended that at the same time he voluntarily relinquished his property interest in the car. Indeed, the law is clear that, while a bailment creates a new property interest in the bailee, it does not divest the bailor of his continuing interest and title. E. g., Maudling v. United States, 257 F.2d 56, 60 (9 Cir. 1953). I find little, if any, significance in the fact that the initial delivery of the car was voluntary. I would not distinguish this case from the seizure eases on that ground.

The critical question therefore would appear to be whether the deprivation of which appellant complains, although not involving a seizure, is nevertheless encompassed within the interdiction of the Fourteenth Amendment. Following the Supreme Court’s analysis in Fuentes, the inquiry should proceed along these lines. First, the Fuentes Court noted that the replevy of the goods at issue did involve a deprivation of a possessory interest. Second, it said that under Sniadach and Bell the temporary, non-final nature of the deprivation was not decisive of the right to a prior hearing of some kind. Third, it held that the uncertainty of the ultimate right to possession did not negate that right: “It is enough to invoke the procedural safeguards of the Fourteenth Amendment that a significant property interest is at stake, whatever the ultimate outcome of a hearing on the contractual right to continued possession and use of the goods.” 407 U.S. at 87. Fourth, as stated above, the Court rejected any limitation of the due process clause to items denominated “necessaries”. Finally, it recognized the existence of certain “extraordinary situations” that might justify the summary seizure of property while postponing notice and an opportunity to be heard. E. g., Fahey v. Mallo-nee, 332 U.S. 245 (1947) (impending bank failure); Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950) (misbranded drugs). Since the replevin statutes challenged in Fuentes were not limited to such special circumstances and since the goods replevied were entitled to the protections of the Fourteenth Amendment, the Court held the statutes were unconstitutional in their failure to afford the basic elements of due process before the deprivation occurred.

A like analysis, in my view, would lead to the same result here. The sale provisions of the Lien Law permits the permanent deprivation of a significant property interest without a prior hearing; the statutory language is not confined to extraordinary situations in which such summary action might be justifiable. Comparing the Lien Law here to the replevin statutes struck down ih Fuentes, there would appear to be an even greater- disregard for the .basic elements of due process. The sale of the liened goods, for example, completely extinguishes the possibility of any future right of repossession in the event of ultimate success on the merits; re-plevin, in contrast, is a provisional remedy intended to preserve the integrity of the goods pending trial on the underlying claim. Moreover, a common replevin provision requires that an action on the merits be commenced contemporaneously by the creditor; the Lien Law, on the other hand, permits the enforcement of the lien, and the liquidation of the goods, without any judicial review at any stage.

In short, while Fuentes dealt with a statute and business setting different in certain respects from the instant case, the policies and constitutional principles articulated in Fuentes strongly point to the' conclusion here that the enforcement provision of the New York Lien Law is unconstitutional in that it permits the deprivation of a significant property interest without the opportunity for some sort of prior hearing. Thus, in my view, if appellant is able to prove the facts alleged in his complaint, he would be entitled to the relief requested.

In stating my views as I have, I am not unmindful of the substantial stake that garagemen, repairmen, and others have in the prompt enforceability of their liens. As Judge Mishler pointed out in Magro, saddling these persons with the requirement of instituting a legal action before they may dispose of their security “would serve no other purpose in the vast majority of cases than to increase the cost of the services and to weaken the . . . security.” 338 F.Supp. at 468. That argument, however, has been foreclosed by Fuentes, where the Court stated:

“[Ojrdinary hearing costs are no more able to override due process rights in the creditor-debtor context than in other contexts.
In any event, the aggregate cost of an opportunity to be heard . should not be exaggerated. For we deal here only with the right to an opportunity to be heard. Since the issues and facts decisive of rights . may very often be quite simple, there is a likelihood that many defendants would forgo their opportunity, sensing the futility of the exercise in the particular case. And, of course, no hearing need be held unless the defendant, having received notice of his opportunity, takes advantage of it.” 407 U.S. at 92-93 n. 29 (emphasis that of the Court).

While the enforcement of a lien by means of a public sale of the liened goods is a time-honored and necessary remedy for a garageman, it is not inconsistent with that remedy to afford the owner an opportunity for some sort of a prior judicial determination of the lien and of the amount of the debt. The absence of that opportunity makes the statute a party to the deprivation of a significant property interest without the right to the basic protections of the Fourteenth Amendment. Fuentes and other recent Supreme Court decisions seem to me to require considerably more.

II.

With regard to the Lien Law’s detention provision, N.Y. Lien Law § 184 (McKinney Supp. 1972), I agree with Judge Wyzanski that the voluntary and undisputed incurrence- of some reasonable storage charges precludes appellant from contesting the fact of the lien resulting therefrom. While I also agree that appellant’s challenge to the detention provision is no longer justiciable despite the dispute as to the amount of the debt, I reach that conclusion by somewhat different reasoning than that of Judge Wyzanski.

Primarily, I do not see why the failure to demand the car or to tender the amount of reasonable storage charges should make any difference. In the first place, appellant should not be penalized for neglecting to do what certainly would have been a futile act. And second, had the car been returned to appellant pending his constitutional challenge to the detainer provision, his action then would have been subject to the same mootness objection that we sustained in Kerrigan v. Boucher, 450 F.2d 487 (2 Cir. 1971).

I would ground our decision instead on the fact that, in the present posture of the ease, there is no relief available to appellant that will improve his position or make him whole for the injury allegedly sustained as a result of the operation of the detention provision. A declaratory judgment is not available where, despite an allegation of past wrongdoing, there is no continuing live controversy- — here, in the sense of a continuing detention. Golden v. Zwickler, 394 U.S. 103, 108 (1969). By the same token, an injunction would provide appellant with no more than a pyrrhic assurance that, if a similar conflict were to arise again with this same garageman, he would be granted an opportunity to be heard before his car is sold. Cf. Magro v. Lentini Bros. Moving & Storage Co., supra, 338 F.Supp. at 469.

There remains to be considered appellant’s claim for damages. That claim consists of a request for (1) $66 per week for each week he was deprived of the use of his automobile; (2) $1000 for mental and emotional distress allegedly caused by appellees; and (3) $1000 punitive damages from two of the appellees. If I understand this claim correctly, the amount of damages attributed to the detention, as opposed to the sale, of appellant’s ear may fairly be characterized as nominal. Unlike such cases as Powell v. McCormack, 395 U.S. 486, 498 (1969), this is not a cause of action for which the remaining claim for damages remains “hotly contested”. Rather, as in Kerrigan, the detention claim is one by which appellant essentially is seeking an adjudication of the unconstitutionality of § 184. “Not having found a justiciable controversy permitting a declaration, the claim for nominal damages, which is clearly incidental to the relief sought, cannot properly be the basis upon which a court should find a case or controversy where none in fact exists.” Kerrigan v. Boucher, supra, 450 F.2d at 489-90.

But these considerations clearly are not applicable to appellant’s challenge to the sale provision. As to that, appellant alleges that he is continuing to suffer from an unconstitutional act, for which declaratory, injunctive, and monetary relief remain available.

For the reasons stated above, I concur in the judgment of the Court and in the opinion of Judge Wyzanski to the extent that they reverse the order dismissing the complaint and remand for trial on the issue of the constitutionality of the sale provisions of the New York Lien Law as applied to the sale of appellant’s automobile.

I am authorized to state that Judge Lumbard concurs in this opinion.

      . The district court also relied on Dininny v. Reavis, 100 Misc. 316 (Sup.Ct., N.Y. Co., 1915), aff’d, 178 App.Div. 922, 165 N.Y.S. 97 (1st Dept. 1917). There, in what apparently is the only state court ruling on the constitutionality of the Lien Law’s enforcement procedure, the court found the availability to the owner of lien-ed property of numerous legal options to protect his interest as satisfying the requirements of due process. The basis for that view, however, seems to have been undermined by Fuentes v. Shevin, 407 U.S. 67, 83 n. 13 (1972), where the Court noted that “if a [businessman] knows that he is dealing with an uneducated, uninformed consumer with little access to legal help and little familiarity with legal procedures, there may be a substantial possibility that a summary seizure of property ■ — however unwarranted — may go unchallenged, and the [businessman] may feel that he can act with impunity.”
      In any event, in light of the Supreme Court’s recent due process decisions (e. g., Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) ; Bell v. Burson, 402 U.S. 535 (1971) ; Fuentes v. Shevin, supra), the authority of a 58-year old constitutional decision rendered by a state trial court is of doubtful force.

      . In Magro, plaintiffs, having been evicted from their apartment, placed their furniture in storage under a contract with defendants that called for a minimum period of storage of three months.

      . E. g., Fla.Stat.Ann. § 78.07 (Supp. 1972-73) (“Before a replevy writ issues, plaintiff shall file a bond with surety payable to defendant to be approved by the clerk in at least double the value of the property to be replevied conditioned that plaintiff will prosecute his action to effect and without delay . . . .”).

      . The fact that the owner may institute a suit for damages or other appropriate relief does not, in the uneven situation normally involved in enforcement of a lien, satisfy the requirements of . due process. See note 1, supra.

      . The flexibility inherent in the clue process clause should need no further explication than it has received in the recent cases. E. g., Fuentes v. Shevin, supra, 407 U.S. at 96-97 and n. 33. The test as to whether the Constitution has been offended is not in the form of hearing but rather in whether the available hearing provides a real opportunity for ascertainment of the “validity, or at least the probable validity, of the underlying claim . . . before the [alleged debtor] can be deprived of his property.” Sniadach v. Family Finance Corp., supra, 395 U.S. at 343 (Harlan, J., concurring) (emphasis by Justice Harlan). Any form of hearing that provides that opportunity would appear to satisfy the due process requirement.


author: PER CURIAM.

text:
    Betty Jane ROBERTS, Plaintiff-Appellant, v. The UNION COMPANY, Defendant-Appellee.
    No. 73-1343.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided Nov. 21, 1973.

      William D. Wells, New York City, for plaintiff-appellant; Irwin W. Barkan, Barkan, Barkan & Neff, Columbus, Ohio, on brief.
    Elsa Dik Glass, E. E. O. C., Washington, D. C., for amicus curiae; William A. Carey, Gen. Counsel, Julia P. Cooper, Associate Gen. Counsel, Beatrice Rosenberg, Joseph T. Eddins, Attys., E. E. O. C., Washington, D. C., on brief.
    Eugene L. Matan, Columbus, Ohio, for defendant-appellee.
    Before PECK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from the dismissal of a class action brought under Title VII of the Civil Rights Act of 1964, 42 U.S. C. § 2000e et seq. The complaint charges that appellee unlawfully discriminates on the basis of sex by paying female employees lower wages than those paid to men for equivalent work, and by its refusal to employ females in its men’s clothing department. The class that appellant asserts she represents is composed of all women who are the victims of this discrimination.

The company asserts that its clothing department practice is justified as a bona fide occupational qualification because persons working there are required to fit the elothing they sell, a task that may necessitate touching intimate parts of a customer’s body. The company avers that many of its customers would be embarrassed by having females fit their clothing.

The district court found that appellant’s lower wages were justified by her sales record and by other non-culpable factors, but did not make an express finding on the hiring policy issue and determined that appellant could not maintain the action because she had voluntarily left appellee’s employ and therefore lacked standing to represent the asserted class. The district court stated, “Since the plaintiff has not been deprived of the right which she endeavors to enforce on behalf of a class of female employees at the Union Company, and since she is not now working at the company, she is not a member of the proposed class and has no standing in court to represent it.”

We hold that the district court erred in dismissing the class aspects of the action. First, dismissal of appellant’s individual claim of discrimination is not dispositive, without more, of her standing to prosecute the class action. Huff v. N. D. Cass Company of Alabama, 485 F.2d 710 (5th Cir. 1973). See also Parham v. Southwestern Bell Telephone, 433 F.2d 421 (8th Cir. 1970). Second, the complaint charges not only that appellee has discriminatory classification and wage policies, but also that it has a discriminatory hiring policy and, therefore, avers that the asserted class is not limited to current female employees of appellee but encompasses all females who may have been injured by appellee’s discriminatory policies.

Accordingly, we vacate the judgment below and remand the case to the district court to consider whether the asserted class meets the requirements of Rule 23 of the Federal Rules of Civil Procedure. If so, the court should consider whether appellee’s males only hiring policy for its men’s clothing department violates Title VII of the Civil Rights Act of 1964.

The existence of a bona fide occupational qualification is an affirmative defense, and the burden is on appellee to show that its admittedly discriminatory hiring policy is justified. The Supreme Court has held that the existence of this defense is “a matter of evidence tending to show that the condition in question ‘is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.’ ” Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S. Ct. 496, 498, 27 L.Ed.2d 613 (1971) (emphasis added).

Reversed and remanded for proceedings not inconsistent with this opinion.


author: WILLIAM P. GRAY, District Judge: MERRILL, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Vincent LEON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kimberley HARRISON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Denise BROWN, Defendant-Appellant.
    Nos. 72-2264, 72-2027 and 72-2265.
    United States Court of Appeals, Ninth Circuit.
    July 19, 1973.
    Rehearing Denied in No. 72-2097 Nov. 20, 1973.
    Merrill, Circuit Judge, filed opinion concurring in part and dissenting in part.

      Charles P. Harrod (argued), San Francisco, Cal., for appellant Harrison.
    Frank R. Ubhaus, Asst. Federal Public Defender (argued), James F. Hewitt, Federal Public Defender, San Francisco, Cal., for appellant Leon.
    Richard A. Hamar (argued), of Ha-mar, Lurie & Gaines, San Francisco, Cal., for appellant Brown.
    Jerry K. Cimmet, Asst. U. S. Atty. (argued), James R. Browning, Jr., U. S. Atty., San Francisco, Cal., for appellee.
    Before MERRILL and KOELSCH, Circuit Judges, and GRAY, District Judge.

       Honorable William P. Gray, United States District Judge for the Central District of California, sitting by designation.

   WILLIAM P. GRAY, District Judge:

Denise Brown appeals from her conviction of two sales of heroin; at the same trial, appellant Leon was convicted of having aided Brown in such sales, and appellant Harrison was convicted of possession of .a large quantity of heroin with intent to distribute it. We reverse the convictions of Brown and Leon and affirm the conviction of Harrison.

BROWN’S APPEAL. Miss Brown’s conviction was based largely upon the testimony of Lionel Stewart, a special agent of the U. S. Bureau of Narcotics and Dangerous Drugs. He testified that, in the course of his work in an undercover capacity, he was introduced to Brown by Glen Marchand (Glen), a paid Government informant, and that Brown, without substantial hesitation, responded to his request to buy heroin by driving away briefly, returning with heroin, and delivering it to him at the price upon which they had agreed.

Brown’s defense was that of entrapment by the informant, Glen, and she complains of the failure of the Government to use reasonable efforts to insure his availability at the trial.

Denise Brown, a resident of San Francisco, was eighteen years old at the time of the offense. According to her testimony, which was uneontradicted, she had been the girlfriend of (and in love with) Gus Marchand, the brother of Glen Marchand, the informant. Soon after they began “going together,” Brown learned that Gus was a heroin dealer, and from time to time she accompanied him when he made deliveries and when he went to his sources of supply. She insisted that, prior to the acts here concerned, she had never dealt in heroin in any manner, and she appears to have no prior criminal record.

Miss Brown previously had become acquainted with Glen through Gus and had understood from the latter that the two brothers had been working together in dealing in heroin. On September 29, 1971, six days before the sales here concerned, Gus left the motel where he and Brown had been staying, after telling her where he could be reached if Glen came by. Shortly thereafter, Glen did arrive at the motel and asked Brown if she could get him some heroin for a friend named Lionel. She refused, but inasmuch as Glen “seemed like he was in such a big hurry,” she offered to try to find Gus for him, and she did drive to various places in San Francisco in furtherance of this attempt.

Brown testified that on October 3, at a time when she knew Gus to be out of town, Glen telephoned her twice and in each instance importuned her to sell him some heroin; she refused. The next day he again called her twice for the same purpose; again she refused. On the following day, October 5, Glen telephoned once more, pleading that he desperately needed the heroin for his friend, Lionel, who would cause him trouble if he could not supply it. She responded that he was just wasting his time in making these requests of her, because Gus did not want her to have anything to do with his business. According to Miss Brown, Glen then said, “ ‘Well, if Gus says okay for you to do this for me, will you do it,’ and I said no. He said, ‘Well, you know, he’s in trouble and needs money.’ ” About one-half hour later, Brown received a telephone call from Gus. He said that he was at the courthouse in Los Angeles; that he had just talked to Glen; and that she was going to have to go to his source of supply and get the heroin for Glen, because he (Gus) needed the 'money to pay a fine in order to avoid jail. She asked him how this squared with his prior insistence that she not have anything to do with his “business,” and he responded that it was very important and that she was the only one upon whom he could depend “at this time.” She thereupon agreed to follow his instructions. Shortly after this conversation, Glen telephoned again and said that he would be over in about half an hour. He came, accompanied by his “friend,” Lionel (who actually was Lionel Stewart, the hereinabove mentioned special agent); and the order, procurement and delivery of heroin were accomplished.

It appears that defendant Brown and her counsel did not learn of Glen’s informant status until the second day of the trial. Several weeks previously, Brown’s attorney had moved before a magistrate for pre-trial discovery of the identities of all informers. However, the Government successfully objected on the ground that there was no showing that the informant was a participant in the crime (although the prosecution’s evidence at the trial showed clearly that the informant, Glen, was a percipient witness to the subject sale of heroin). Once counsel for Brown learned that Glen had been a paid informer, he announced that his client’s defense would be entrapment and requested that Glen be produced. The trial judge instructed the prosecutor to attempt to obtain Glen’s presence in court the following morning. The next day, the Government reported on its unsuccessful efforts to locate Glen.' Narcotics agents testified that Glen was currently working for the Government as an informer in the area covered- by the Los Angeles Regional Office of the Bureau of Narcotics and Dangerous Drugs, and that Glen had telephoned such office the preceding afternoon in connection with another case. However, the local officials did not have his address or telephone number, and they knew of no way to get in immediate touch with him although they expected to hear from him during the next day or so. Upon this showing, the court again ordered the Government to “get busy and get that informer up here today or tomorrow.” However, Glen never did appear at the trial, and the court implicitly denied Brown’s motion that her prosecution be dismissed because of the Government’s failure to produce Glen, presumably because the defendant waited until after the trial began before demanding such production.

Of course, if Glen had not been in the employ of the Government, neither his alleged importuning nor his inferred enlisting of the aid of Gus would have suggested any basis for an entrapment defense. It was presumably due to the prosecution’s refusal to reveal Glen’s relationship to the Government that Brown’s attorney was late in asserting such a defense and in asking that Glen be made available.

It is emphasized again that the above recitals with respect to Glen’s alleged participation in bringing about the subject sales of heroin stem altogether from Miss Brown’s testimony, which the jury presumably did not believe. Whether Glen would have confirmed or denied her story, we do not know. It is worthy of note, however, that one of the narcotics agents testified to the effect that, shortly before the day of the subject sale, Glen told him that if the Government wanted to make a case against Denise Brown, he could do it.

In any event, defense counsel made what, under the circumstances, was a timely request that Glen be produced, and the Government had the obligation to accomplish this or show that, despite reasonable efforts, it was not able so to do. Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). We recognize and reaffirm that “whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge.” Velarde-Villarreal v. United States, swpra,, at p. 13. We also assume from the record that the trial judge concluded that, beginning as of the time of the defendant’s request, after the trial had begun, the Government did all that it reasonably could to locate Glen and get him into court. However, the testimony of the' narcotics agents showed that Glen had been working for the Government from a time prior to the events here concerned and until at least the conclusion of the trial. Several months before the trial, an agent told Glen that he might be needed to testify, but no arrangements were made to insure his presence. In another later conversation, Glen, upon being advised by a narcotics agent as to the date of the trial, said that he did not want to testify against his brother’s girlfriend and declined to give his address and telephone number. Apparently, no attempt was made to persuade or direct him otherwise or to condition his continued employment upon his availability as a witness when needed.

We believe that the following observation from the opinion in Velarde-Villar-real v. United States, 354 F.2d 9, 13 (9th Cir. 1965) is equally pertinent here:

“The practice of the Government in employing agent-informers in narcotics cases is well known. We also know that such agents are usually not trained officers — often they are themselves addicts or former addicts. The Government must know that an eager informer is exposed to temptations to produce as many accuseds as possible at the risk of trapping not merely an unwary criminal but sometimes an unwary innocent as well. One could hardly expect such informants always to stay on the proper side of the line which separates those two cases. And since the Government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the Government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.”

We hold that if the Government, in order to “make a case” against an eighteen-year-old girl for the sale of narcotics, hires the brother of her boyfriend to set up the transaction, the “appropriate precautions” referred to in the above-quoted paragraph are not met by concealing the identity of such informant and then waiting until the time of trial before making any substantial effort to have him available to testify.

THE LEON APPEAL. Leon’s conviction of aiding and abetting Brown in the sale of heroin was based entirely upon the testimony of narcotics agent Lionel Stewart. According to the latter, Leon was present when Glen introduced Stewart to Brown on October 5 at the Red Roof Restaurant, and Leon observed Stewart hand $800.00 to Brown to pay for an initial purchase of heroin. Stewart further testified that after Brown departed to obtain the heroin, he (Stewart) expressed the hope that she' would return with his money or the narcotics, and that Leon responded that she was using his car to go and “score the dope,” and that he knew that the quality of heroin would be good because he had previously “dealt” some of it.

Leon denied that he observed or heard the transaction between Brown and Stewart and said that he lent her his car when she asked to borrow it for a few minutes, which had been his frequent practice. He also denied having said anything about heroin while Brown was absent, and he contended that it was Glen that made comments similar to those that Stewart attributed to him (Leon).

Leon (similarly to Brown) now insists that his conviction should be reversed because of the failure of the Government to produce Glen at the trial. Under the factual situation here concerned, the defense of entrapment was not available to Leon, Carbajal-Portillo v. United States, 396 F.2d 944 (9th Cir. 1968), and he thus did not have the same standing to insist upon Glen’s presence at the trial as did Brown. However, the relevance of Glen’s testimony to Leon’s case is obvious, see United States v. Kelly, 449 F.2d 329 (9th Cir. 1971); when he learned at the trial that Glen had been the informer, he joined in Brown’s request that he be produced; and if Glen had been present at the trial, as the Government presumably could and should' have accomplished because of Brown’s entrapment defense, he would have been available to Leoir as a witness. Here again, we do not know whether Glen’s testimony would help or harm Leon’s case. But in view of our conclusion that Brown is entitled to a new trial at which the presence of Glen may be anticipated, and being mindful of the relatively insubstantial nature of Leon’s alleged participation, we think that he, too, should have a new trial and a chance to get what benefit he can from Glen’s testimony.

HARRISON’S APPEAL. It was to Miss Harrison’s apartment that Brown drove on October 5 in order to obtain the heroin that she sold to narcotics agent Lionel Stewart. Having observed this fact, along with other probable cause to believe that heroin dealers were in the apartment, narcotics officers obtained a warrant to search those premises and went there for the purpose of executing it.

As they approached the area, a man named Gaines, who previously had been observed carrying narcotics, left the apartment building. Agent Niblo, the officer in charge, ordered that Gaines be arrested before the latter could depart the neighborhood. Niblo and other agents then entered the hallway leading to the Harrison apartment. At about that time, they heard a gunshot from a block or so away, which they attributed to the encounter with Gaines. When they came to the apartment door, one of the agents knocked and announced “Police.” They waited about ten seconds and, hearing no sound from within, they forced the door and entered. They observed Miss Harrison sitting at a table in the apartment. The subsequent search revealed a substantial quantity of heroin and several guns. Harrison was thereupon arrested, and prosecution followed.

Harrison assigns as error the denial by the trial court of her motions to suppress the items seized in the apartment, on the ground that the entry by the officers was illegal in light of the requirements of 18 U.S.C. § 3109. That statute provides that, in order to execute a search warrant, “The officer may break open any outer or inner door if, after notice of his authority and purpose, he is refused admittance ..” Here, the officers, by stating “Police,” gave notice of their authority, but they neglected to assert their purpose by adding that they were there to execute a search warrant.

Agent Niblo testified that he was generally aware of the requirements of § 3109. In response to a question by the court as to why he had failed to announce his purpose, he stated:

“Going through these doors is, at best, a very risky situation. I knew there were people coming in and out of that place and I didn’t know how many people still stayed in there. I didn’t know if they had guns and I presumed — I think there was a reasonably probable presumption there were other guns in there. I didn’t want to stand outside that door and
“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after make a target any longer than I had to, and in this state of mind I probably forgot — or I’m not saying I did, but I think I forgot to announce the fact we had a search warrant to be served.” notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

In holding the search and seizure to be reasonable and valid, the trial court expressed the view that it was to the credit of the officers that they knocked, announced themselves, and waited as long as they did before entering, and that their having forgotten the remaining requirement under the stress of the circumstances was quite understandable. We agree.

In so holding, we are mindful of the general proposition, announced by Justice Brennan in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), that a breaking is unlawful unless the officer states his authority and purpose for demanding admission. However, that opinion left open the question of whether the unqualified requirements of the rule might be modified by “exigent circumstances,” which we believe to be present here. Also, we agree with the view expressed in United States v. Manning, 448 F.2d 992, 1001 (2d Cir. 1971) “ . . . that the seeming rigidity of Miller has been tempered by the combined effect of a portion of Justice Brennan’s dissent in Ker v. California, [374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963)] and the incorporation of it by reference in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968).”

Here, unlike the situation in Miller, there was obvious potential danger to the physical safety of the officers; they nonetheless clearly announced their presence and their identities; and it is quite apparent that their having mentioned the search warrant would not have made the slightest difference in the events that ensued.

In no sense do we intend this decision to be a precedent as excusing anything less than füll compliance with § 3109. We only hold that, under all of the circumstances of the present case, the officers acted reasonably, that their oversight was only technical, and that the interests of justice do not require that the search be vitiated thereby.

The conviction of Miss Harrison is affirmed; the convictions of Miss Brown and of Leon are reversed and remanded for a new trial.

MERRILL, Circuit Judge

(concurring in part and dissenting in part):

I concur in Judge GRAY’s opinion respecting the appeals of Leon and Brown. However, I dissent as to Harrison.

I do not find here any justification for a belief on the part of the officers that they were being refused admission. I find no exigent circumstances otherwise justifying the forced entry. To excuse compliance here invites general disregard of the statute in eases involving narcotics arrests. Accordingly • in my view it was error to deny the motion to suppress.

As to Harrison, I would reverse.

      . The entire text of § 3109 reads :


author: ROSS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Steven Elmer ROELL and Carrie Lee Manning, Appellants.
    No. 73-1331.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct 17, 1973.
    Decided Nov. 12, 1973.

      Sherman Bergstein, Minneapolis, Minn., for appellants.
    John M. Lee, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   ROSS, Circuit Judge.

This appeal results from the joint trial and conviction, by a jury, of Steven Elmer Roell and Carrie Lee Manning. Roell was charged with violating the provisions of 21 U.S.C. § 841(a)(1) in a four count indictment, with the knowing and intentional distribution of cocaine on September 22, 1972, and September 25, 1972, and with the knowing and intentional possession of cocaine with intent to distribute on those dates. Manning was charged with knowing and intentional distribution of cocaine on September 22, 1972, and knowing and intentional possession of cocaine with intent to distribute on September 22, 1972. Roell and Manning were found guilty-on all counts. We affirm the judgments of conviction.

Roell, with his partner, Thomas Johnson, owned and operated Stone Bleu, Inc. Manning was a secretary, and Johnson’s fiance. Special Agent McDowell, of the Bureau of Narcotics and Dangerous Drugs (BNDD) purchased one ounce of cocaine from Roell at the Stone Bleu for $1,100 on September 22, 1972. At the meeting was Eric Zylman, a friend of Roell and an informant for the Government. Just prior to the sale, Manning brought the drug to the Stone Bleu and gave it to Roell. On September 25, 1972, Agent McDowell and Agent O’Connor purchased an additional ounce of cocaine from Roell at the Stone Bleu, paying $1,100. Neither Zylman nor Manning were present at this transaction. Roell was arrested on November 10, 1972, and Manning was arrested, on November 21, 1972.

At trial Roell contended that he was entrapped by Zylman. Manning contended that she was not aware that the substance she transferred was cocaine. On appeal Roell and Manning claim: the trial court erred in refusing pretrial disclosure of the identity and location of the informant Zylman and subsequently erred in allowing him to testify for the Government in rebuttal; the trial court erred in restricting cross-examination, direct examination, and closing argument; the trial court erred in refusing to grant Manning a separate trial; the trial court erred in denying a motion for mistrial; and the trial court erred when it made certain statements in the presence of the jury.

I. Zylman

The defendants, before trial, requested the identity and location of the Government’s informant relying on Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1957). The motion was denied, and they now claim that the denial of this motion prejudiced them. It is clear that Zylman was instrumental in effecting the sale of the cocaine on both September 22, 1972, and September 25, 1972, although Zylman was not present at the September 25, 1972, sale.

This Court recently held, in United States v. Barnes, 486 F.2d 779 (8th Cir., 1973), that:

We think it clear from the eases de-. cided since Roviaro that where the witness is an active participant or witness to the offense charged, disclosure will almost always be material to the accused’s defense.

But the Barnes Court recognized that where the witness is produced at trial and the defendant is given an opportunity to cross-examine, no prejudice results. The- Barnes Court further recognized that where the defendant already knows the identity of the informant, prejudice may not result. This Court in United States v. Woods, 486 F.2d 172 (8th Cir., 1973), recently held that no prejudice resulted when the Government failed to disclose the identity of the informant, but produced the informant at the trial, and the defendant was able to cross-examine the informant. The Court further noted that a motion for continuance was available in the Woods case had defense counsel been caught unprepared to cross-examine. This case is much stronger than the Woods case with respect to the validity of the Government’s assertion that the defendants were not prejudiced.

The following factors should be noted:

1. During the cross-examination of. the Government’s first witness it became apparent that the defendants knew the identity of the informant, as counsel expressed an intimate knowledge of the informant’s arrest for possession of marijuana.
2. Early in the defendants’ presenta- ■ tion of evidence, the Government identified the informant, stated that he was a University of Minnesota student, and indicated that the informant could be called by defendants.
3. Defense counsel made it clear that on Friday before the trial started on the following Monday that he suspected who the informant was. In closing argument, counsel stated: “Last Friday when we got some papers from the U. S. District Attorney we were able to figure out that Eric Zylman probably was the Government informant * *
4. Defense counsel presented the Court with information that Zyl-man had previously been arrested for possession of some 450 pounds of marijuana, and that he had not yet been tried. The court so advised the jury.
5. At the close of defendants’ evidence defense counsel was told that Zylman would be called • by the Government in rebuttal, and, after the noon recess, a period of one and one-half hours, Zylman was called. Defense counsel made no motion for a continuance. Nor did defense counsel move for a continuance when he began to cross-examine Zylman. When defense counsel was told the name of the informant, he did not move for a continuance, but simply said: “It’s a little late for that disclosure and the disclosure is relatively incomplete at this point.”
6. During the closing argument defense counsel stated that “[Tjhey surprised us and brought him in to testify — I was surprised they brought him in to some extent, but I wasn’t surprised at his testimony.” (emphasis added).
7. Roell and Zylman were friends, and Zylman visited Roell after Roell had been arrested. [At that time Roell did not know that Zyl-man was the informant.]

Under these circumstances Roell and Manning were not prejudiced by the failure to disclose the identity of Zyl-man, or the Government’s calling Zyl-man as a rebuttal witness.

II. Restriction on Examination, Cross-examination, and Closing Argument.

Roell and Manning claim that they were unfairly restricted in the examination and cross-examination of witnesses, and in closing argument. We have examined the record carefully and have found no abuse of discretion on the part of the trial judge with respect to the examinations, and have found no prejudicial error with respect to his rulings on the closing argument. See United States v. Crawford, 438 F.2d 441, 444 (8th Cir. 1971); United States v. Leach, 429 F.2d 956, 964 (8th Cir. 1970), cert, denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971).

a. Failure to allow cross-examination to determine whether Manning was arrested to force Roell to become an informant.

Roell was arrested on November 10, 1972, and Manning was arrested on November 21, 1972. Roell claims that had he been able to pursue Agent McDowell and Agent O’Connor as to their subjective reasons for arresting Manning, he would have been able to show that Manning was arrested in order to pressure Roell into becoming an informant, thus buttressing the entrapment defense.

First, although counsel was generally restricted from asking the agents why they arrested Manning, at least once, counsel asked:

Q. You didn’t arrest Miss Manning because she committed any offense that you knew of, did you ?
A. That’s untrue.

The question and answer were not objected to, nor was the answer stricken. Thus, to some extent, counsel was able to pursue the subject.

Second, the inquiry was not shown to be relevant to the entrapment defense. Manning was arrested after Roell committed the illegal act, and, after Roell was arrested. It is obvious that evidence pertaining to entrapment must, in order to be relevant, bear on the defendant’s state of mind at the time he committed the illegal act. As Chief Judge Coffin, of the United States Court of Appeals for the First Circuit, has said, in a similar case:

The remaining contention of the appellant, concerning the district court’s exclusion of testimony offered by appellant to prove the defense of entrapment, does not merit full discussion. The conversations sought to be presented occurred after Frost’s arrest. The requisite elements of entrapment must necessarily precede the criminal acts. We cannot comprehend what form of alchemy the appellant intended to employ to transmute post facto conversations into pre facto entrapment. The district court did not err in declining appellant’s invitation to view this experiment. United States v. Frost, 431 F.2d 1249, 1251 (1st Cir. 1970), cert, denied, 401 U.S. 916, 91 S.Ct. 896, 27 L.Ed.2d 817 (1971).

Furthermore, counsel contended that Zylman was responsible for the entrapment, not the agents. Hence, it is difficult to understand what relevancy the agents’ subjective reasons for arresting Manning could have had.

With regard to Manning, who did not claim entrapment, but rather lack of knowledge with respect to the identity of the substance she transferred, the subjective reasons for her arrest were properly found to be irrelevant. Whether she knew the substance was cocaine on September 22, 1972, could not in any way be proven or dis-proven by the Government agents’ state of mind on November 21, 1972, when they arrested her. Whether the agents believed that she was guilty was, of course, totally irrelevant and a question for the jury.

b. Failure to allow examination of Johnson with respect to statements made to him by Agent O’Connor before and after Roell’s arrest, and regarding the fact that Johnson refused to sell drugs to O’Connor.

First, as we have previously suggested, conversations which occurred after the illegal acts were committed by Roell are not ordinarily relevant to his state of mind at the time he committed the acts. United States v. Frost, supra, 431 F.2d at 1251. Defense counsel, through Johnson, was attempting to show that agent “ * * * O’Connor was aware that these two buys would not hold water, that he was trying to make deals because of it.” It is clear that defense counsel attempted to show that O’Connor had indicated that Roell would not be arrested or not tried, if he acted as an informant. For example:

Q. After Mr. Roell was arrested did you offer to see to it that he was not prosecuted if he would go out and get people to make drug sales * * * ?

In United States v. Higgins, 362 F.2d 462, 465 (7th Cir.), cert, denied, 385 U. S. 945, 87 S.Ct. 316, 17 L.Ed.2d 224 (1966), the Court held irrelevant, evidence of an agent’s request that an arrested defendant become an informant because the evidence had no tendency to prove the case against the defendant was fabricated. Furthermore, as previously suggested, the defense was not that the agents entrapped Roell, but that Zylman had. Hence it is difficult to understand how O’Connor’s alleged offer to bargain indicated in any way that Zyl-man entrapped Roell.

Second, Roell claims that Johnson should have been able to testify that O’Connor unsuccessfully sought to buy drugs from Johnson. But as the trial judge succinctly said, “Mr. Johnson is not a defendant * * Defense counsel, through Roell, was allowed to demonstrate that O’Connor unsuccessfully sought to buy drugs from Roell 10 or 15 times after September 25,1972.

c. Miscellaneous restrictions.

First, defense counsel attempted to question Zylman about possession of injection equipment and guns when he was arrested prior to the events in question. This was done in an apparent attempt to demonstrate that Zylman was under pressure to secure convictions in exchange for immunity from prosecution. The court informed the jury of Zylman’s arrest, his possession of 450 pounds of marijuana, and the fact that he had not yet been tried. The court did not abuse its discretion in refusing to permit the defendant to make further inquiry. See United States v. Madden, 482 F.2d 850 (8th Cir, 1973).

Second, counsel tried to cross-examine the agents with respect to notes they had made during their investigation. These notes were not subject to discovery under Fed.R.Crim.P. 16(b), or the Jencks Act, 18 U.S.C. § 3500. See United States v. Long, 468 F.2d 755, 756 n. 1 (8th Cir. 1972). Cf. United States v. Mechanic, 454 F.2d 849, 857 (8th Cir. 1971), cert, denied, 406 U.S. 929, 92 S. Ct. 1765, 32 L.Ed.2d 131 (1972); United States v. Turner, 442 F.2d 1146, 1148-1149 (8th Cir. 1971). Therefore, cross-examination was properly restricted with respect to these memoranda.

Third, defense counsel asked Agent O’Connor whether he had “any feeling about hippie-type individuals?” Objection was made and sustained to this question. The question was clearly irrelevant. In any event, counsel was permitted to ask whether O’Connor attributed any significance to the fact that “hippie-type” individuals entered a place of business. O’Connor answered in the negative.

Fourth, during the cross-examination of Agent O’Connor, defense counsel asked:

Q. [Y]ou know [Roell’s] business [is] completely within the law?
A. That’s incorrect.
Q. The business of Stone Bleu, Limited, the sale of magazines, posters, things of that nature, is outside —these are outside the law ?
A. One other thing unrelated to drugs that Mr. Roell said to me when I was buying the second ounce, he showed me a pornographic comic book and he said, “If the Minneapolis Police Department knew I was selling this I could be arrested.” He implied that it was illegal to sell such a pornographic comic book.

Counsel tried to ask O’Connor whether O’Connor had made a judgment as to the illegality of the comic book, but an objection was made and sustained. O’Connor was asked whether he told any law enforcement agents about the comic book. O’Connor testified that he did not so inform any law enforcement agents about the book. This subject was clearly irrelevant.

Fifth, the complaint which formed the basis of Manning’s arrest indicated that a “reliable informant” said that Manning entered the building where the drugs were sold, and handed Roell a plastic bag containing about one ounce of a substance represented to be ' cocaine, and Roell sold such substance in her presence. The informant turned out to be Agent McDowell, and defense counsel was able to learn this by cross-examination of Agent O’Connor. It was only when counsel attempted to inquire about the Government’s practice in calling Government agents “reliable informants” that cross-examination was restricted. Such inquiry was clearly irrelevant.

Sixth, the district- court sustained an objection to a question put by defense counsel to Roell about a conversation he had with Zylman after Roell’s arrest. These conversations coming as they did after Roell’s arrest were very probably irrelevant. United States v. Frost, supra, 431 F.2d at 1251: “The requisite elements of entrapment must necessarily precede the criminal acts.” Furthermore, no offer of proof was made. It is not apparent from context what testimony counsel was trying to put before the jury, and, in the absence of an offer of proof, it is extremely difficult to evaluate the claimed error. Hunt v. United States, 231 F.2d 784, 788 (8th Cir. 1956); C. McCormick, McCormick on Evidence § 51 at 110 (Cleary Ed. 1972).

.[13] Seventh, counsel objects to being restricted during closing argument. Counsel was arguing, “Eric Zyl-man was a subject of involuntary servitude, something that I think Abe Lincoln stopped. They wanted Steve Roell and Tommy Johnson to be their involuntary servants also.” Objection was made, on the basis that there was no evidence which supported the assertion, and the trial judge said, “There is no evidence to that effect, Mr. Bergstein.” Mr. Bergstein responded, “I am aware of that, Your Honor. I am asking the jury to draw a reasonable inference from the evidence.” In any event, counsel was allowed to argue, in much more restrained and proper language, that:

[T]here was no doubt in the minds of the agents that Steve Roell and his partner Tom Johnson were engaged in a business which, if they could not recruit them, if they could not get them to work for the Bureau of Narcotics, they could be very helpful. * * *

The Court has studied the transcript and has concluded that the defendants’ counsel was not improperly restricted by the trial court. In fact the trial court was more patient with the constant argumentative, repetitive, and irrelevant questions propounded by defendants’ counsel than was required under the circumstances of the case.

III. Separate Trial — Manning

Without reference to any authority, case law or otherwise, counsel ■claims that it was prejudicial error to join the trial of Manning with that of Roell, since Roell was charged in four counts and Manning in only two counts of the indictment. It is clear that Roell and Manning were involved in the same transaction on September 22, 1972, as Manning handed the cocaine to Roell in order to consummate the transaction. This is enough to satisfy Rule 8(b) of the Federal Rules of Criminal Procedure. Moreover, by the express terms of Rule 8(b) “all of the defendants need not be charged in each count.” See Williams v. United States, 416 F.2d 1064, 1069 (8th Cir. 1969).

Furthermore, Manning has failed to meet “the heavy burden resting upon [her] to show that the trial court abused its discretion in denying a severance” pursuant to Rule 14 of the Federal Rules of Criminal Procedure. Id. at 1070.

IV. Mistrial.

During cross-examination of Agent O’Connor, defense counsel asked:

Q. At any time after the 25th did you ever see or become aware of Tommy Johnson committing any criminal offense?
MR. LEE [Government counsel]: Well, I would renew my earlier objection to this question as going outside the scope of his testimony on direction examination.
THE COURT: We are not trying a case involving Tommy Johnson. He is not a defendant here, Mr. Bergstein.
(To the witness) You may answer the question.

A. Yes, on the day I arrested Steven Roell, Steven Roell told me that Tommy Johnson gave him four grams of cocaine. To transfer that cocaine is a criminal offense. Due to a suppression order, the Government was not allowed to use any statements made by the defendants at the time of their arrest, save for impeachment purposes. Roell and Manning now claim that Agent O’Connor’s answer violated the suppression order.

This contention is absolutely frivolous. Counsel invited the answer over Government objection, and the expressed reservation of the trial judge. Furthermore, this incident aptly points out what the trial judge was attempting to safeguard against when he restricted examination about conversations occurring after the illegal acts.

V. Comments by the Trial Judge.

Roell and Manning claim they are entitled to a new trial because of certain comments made by the trial judge. Most of the statements were in response to questions which the trial court had previously ruled improper. Other comments were made when counsel was a bit overzealous in his examination of a witness or the manner in which he phrased his objections. This Court is required to view these comments from the perspective of the proceedings as a whole, which we have done as indicated heretofore in this opinion. See United States v. Haley, 452 F.2d 391, 396 & n. 2 (8th Cir. 1971), cert, denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L. Ed.2d 253 (1972). The proceedings as a whole demonstrate that Manning and Roell received a trial in a courtroom where the proper “atmosphere of austerity” was present. Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 99 L.Ed. 11 (1954). The defendants’ contention that the comments by the trial judge here approached those recounted in United States v. Dellinger, 472 F.2d 340, 387-388 & nn. 83-84 (7th Cir. 1972), cert, denied, 410 U.S. 970, 93 S. Ct. 1443, 35 L.Ed.2d 706 (1973), is frivolous.

The judgments of conviction are affirmed.