author: HAYS, Circuit Judge: TIMBERS, Circuit Judge

text:
    Annette GLOVER, on behalf of herself and her minor child, Chalyce, et al. Plaintiffs-Appellees, v. Georgia L. McMURRAY, Individually and as Commissioner of the Agency for Child Development of the City of New York, et al., Defendants-Appellants.
    Nos. 1096, 1106, 1107, Dockets 73-1876, 73-1904, 73-1906.
    United States Court of Appeals, Second Circuit.
    Argued June 26, 1973.
    Decided Nov. 7, 1973.

      Marcia Cleveland, New York City (Louis B. York, Manhattan Legal Services, Marttie L. Thompson, Community Action for Legal Services, Inc., New York City, on the brief), for plaintiff s-appellees.
    Jerold Probst, Deputy Asst. Atty. Gen., State of New York (Louis J. Lef-kowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for defendants-appellants.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal'from a judgment of the United States District Court for the Southern District of New York, 361 F. Supp. 235, ordering the defendants to restore day care services to plaintiffs (including reimbursement for any day care services rendered during the pen-dency of this action) and enjoining the defendants from denying day care services to any applicant because of failure to submit Form DSS 2105 (Day Care Application and Eligibility Report) until that form is revised in accordance with the district court’s opinion. In issuing the injunction, the district court found that there was a likelihood that the plaintiffs would succeed on their claim that defendant MeMurray failed to give adequate notice to the plaintiff parents of the termination of the funding of the day care centers. Using this finding as a basis for pendent jurisdiction, the district court then found that Form DSS 2105 violated the Social Security Act.

We reverse the decision of the district court. We hold that the plaintiffs’ due process claim does not present a substantial constitutional issue. Pendent jurisdiction over the statutory claims must therefore fail.

By Administrative Letter 73 PWD-35 issued by the defendant Commissioner of the Department of Social Services of the State of New York on March 15, 1973, day care centers were required to fill out Day Care Application and Eligibility Report, Form DSS 2105. These forms were mailed by the Commissioner of the Agency for Child Development of New York City to the some 400 day care centers in the New York City area, with an accompanying letter informing them that the forms must be filled out and returned to the Agency for Child Development. Of the 400 day care centers 385 eventually complied with this request and filled out and returned Form DSS 2105. The fifteen remaining day care centers, now plaintiffs in this action, refused to complete and return the form. Consequently, on March 30, the Commissioner for the Agency for Child Development instructed the day care centers that had refused to comply that the form must be completed, and that if the form was not completed and returned by April 9, 1973 action would be taken to “close out your account with .this agency.” The day care centers which had refused to comply were offered technical advice in establishing the eligibility of families and were given an opportunity to meet with representatives of the Agency to discuss the procedure necessary for compliance.

The fifteen day care centers, however, continued in their refusal to submit Form DSS 2105 and on April 12, 1973 the Commissioner notified the day care centers that agency funds for their center would be terminated, although funding would be continued for another week. The letter of April 12 also contained an instruction to the day care centers that they were obligated by state law to inform the parents of their right to a fair hearing:

“FAIR HEARING
“If you have been serving piarents who may be eligible in accordance with Day Care Procedure # 3, you have the responsibility under State law to inform these parents of their right to a fair hearing.
“To insure the parents being informed of their rights, a letter to them is enclosed informing them of their right to have their status determined.”

The letter of April 12 contained such a letter to the parents. This letter informed the parents of the name and telephone number of the Resource Director in their area. The letter also indicated that in the event of a favorable determination of eligibility their child or children would be placed in an alternative day care center.

When the funding for these centers was terminated plaintiffs, who include both day care centers and the individual recipients of day care services, brought this action seeking injunctive and declaratory relief under 28 U.S.C. § 1343, 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201-2202. The plaintiffs contended that the submission of Form DSS 2105 violated their right to ’privacy; that Form DSS 2105 bore no rational relation to a valid State goal and was therefore constitutionally infirm; that Form DSS 2105 violated the Social Security Act and HEW regulations; and finally, that the defendant’s failure to give the plaintiffs adequate notice and a hearing before terminating day care center funds constituted a deprivation of due process.

Plaintiffs rely upon 28 U.S.C. § 1343(3) as the basis for jurisdiction in this case. To establish jurisdiction under this statute, a substantial constitutional claim must be advanced. See, e. g., Hagans v. Wyman, 462 F.2d 928 (2d Cir. 1972); Almenares v. Wyman, 453 F.2d 1075, 1082 n. 9 (2d Cir. 1971), cert, denied, 405 U.S. 944, 92 S.Ct. 962, 30 L. Ed.2d 815 (1972).

Plaintiffs’ major constitutional argument, accepted by the district court, is that they were denied due process of law because the defendants failed to give adequate notice that the funding of the day care centers was to be terminated. Plaintiffs contend that the notice was inadequate because the parents of the children affected by the termination of funding were not directly notified by the defendants, and that notice to the day care centers was inadequate to meet the constitutional standard.. Plaintiffs also contend that the notice was inadequate because it was given, at most, only six days before funding was terminated.

. [2, 3] Due process is limited by the practicalities of the situation presented. See Mullane v. Central Hanover Bank & Trust Go., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The plaintiffs in the instant case conceded that all information about the individual plaintiffs, who were the parents of the children affected by the termination of funding, was kept in strict confidence at the various day care centers; in fact, this was part of the information that the day care centers were protecting in refusing to complete DSS Form 2105, the act which prompted. the termination of funding. Given this situation, there was no practical way for the State to notify the individual plaintiffs. Due process' does not require the State to engage in impractical searches to obtain such information. In Mullane, swpra,, the Supreme Court said,

“■vye have no doubt that such impracticable and extended searches are not required in the name of due process.” Id. at 317-318, 70 S.Ct. at 659.

In short, the State had no duty to ferret out the names and addresses of the parents, even if it was possible for the State to obtain such names and addresses, a possibility that has not been shown in the instant case. This is especially so in the situation in which the State, was prevented from obtaining the information by the action of the day care centers.

Since the State through a reasonable expenditure of resources was not able to notify the parents individually of the termination action, it adopted the best means available to provide notice to the parents. It contacted the day care center and indicated to the day care center that it had an obligation under state law to inform the parents that they had a right to notice and a hearing on the termination of funding. It also sent to each day care center sufficient copies of an open letter from the Commissioner to the parents with instructions that the day care centers distribute them to the affected parents. This letter informed the parents of the action contemplated and gave them the name and telephone number of the Resource Director in their area. The letter also indicated that after a determination of eligibility had been made their child or children would be placed in an alternate day care center.

In our view, these efforts by the State to furnish adequate notice to the parents fulfilled the requirements of due process of law under the conditions presented.

Since we find the due process claim to be insubstantial, no jurisdiction exists to consider the statutory claims urged by plaintiffs. Plaintiffs also assert 28 U.S.C. §§ 2201 and 2202 as basis for jurisdiction. However, it is well settled that 28 U.S.C. §§ 2201 and 2202, providing for declaratory judgments, cannot be used as a basis for jurisdiction. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671-672, 70 S.Ct. 876, 94 L.Ed. 1194 (1950).

We remand this case with instructions to dismiss for want of jurisdiction.

TIMBERS, Circuit Judge

(dissenting) :

Under the same standard we applied in Gulf & Western Industries, Inc. v. Great Atlantic & Pacific Tea Company, Inc., 476 F.2d 687, 692-93 (2 Cir. 1973), in there affirming Judge Duffy’s order granting a preliminary injunction, I think Judge Duffy’s order in the instant ease granting a preliminary injunction likewise should be affirmed.

Turning directly to the central issue upon which the majority opinion turns, with deference I believe that plaintiffs have demonstrated that their due process claim presents substantial constitutional questions — ones which, at the very least, may fairly be said to be “serious questions going to the merits which warrant further investigation and trial.” Gulf & Western, supra, 476 F.2d at 692-93, and authorities there cited. In my view, the due process clause requires better notice than was provided here. The notice given by the state was not timely, did not adequately explain the rights of the recipients, and was not the most effective available method of notice.

The jurisdictional underpinning for this action therefore was provided by the Civil Rights Act, 42 U.S.C. § 1983 (1970), and its jurisdictional implementation, 28 U.S.C. § 1343(3) (1970). It follows that there is pendent jurisdiction over the statutory claims.

Defendants certainly have not complied with 45 C.F.R. § 205.10 (1973) which requires that each claimant be given an opportunity for a fair hearing before the state agency if he feels aggrieved by agency policy as it affects his situation. The same regulation requires that notice be mailed at least fifteen days before action is taken by the agency. Clearly the notice sent to the day care recipients via the day care centers did not comport with that requirement. Moreover, the action of defendants in terminating funding to the centers is “agency policy” directly affecting the recipients. Thus, the fair hearing requirements of the regulation are here applicable.

The deficiencies of Form DSS 2105 are evident from a reading of the Social Security Act and the regulations promulgated thereunder. By failing to provide a deduction for work-related expenses in calculating net earned income for the purpose of determining eligibility, Form DSS 2105 clearly does not meet the requirements of 42 U.S.C. § 602(a)(7) (1970). An examination of 42 U.S.C. § 622(a)(1)(C) (iii) and (iv) (1970) indicates that § 602(a)(7) and not § 622 is the controlling provision as to financial eligibility regardless of the nature of the welfare program.

Finally, it seems to me that the affirmation at the end of Form DSS 2105 conflicts with 45 C.F.R. §§ 205.20(a)(3) and 206.10(a)(12)(iii)(a) (1973). The affirmation certainly appears to require the applicant for benefits to grant in advance a blank consent to all investigations regarding eligibility. By contrast, the regulations require that the state proceed on a step by step basis, informing the applicant at each stage as to what information is desired, why it is desired, and how it will be used. I think that Judge Duffy acted clearly in accordance with the law in requiring that the form be revised to comply with the regulations.

In short, plaintiffs demonstrated a probability of success on the merits and, upon a balancing of the relative hardships to the parties, that irreparable injury would be sustained by the recipients in terms of loss of jobs and training if day care services were terminated during the pendency of this action. Furthermore, in balancing the equities, we should not lose sight of the strong public interest considerations which impelled Judge Duffy to grant the preliminary injunction. We have held such considerations to be paramount. Gulf & Western, supra, 476 F.2d at 698-99.

I would affirm the order and judgment of the district court in all respects.

      . The Form states in relevant part:
      Form DSS-21Ü5 (2/73)
      SIGNATURE OF APPLICANT OR HIS/HER REPRESENTATIVE
      To be Signed When Applicant Applies Personally
      I hereby apply for services and certify that all of the information contained herein is true and correct to the best of my knowledge and belief and that no facts have been omitted. I make this application with the understanding that I will furnish any additional information which may be required, and I will report immediately, any changes in circumstances, including changes in financial resources.
      I understand that my application may be investigated and I agree to cooperate in such an investigation. I further understand that the law provides for fine or imprisonment, or both, for a person hiding facts or not telling the truth.
      SIGNATURE OF DATE SIGNED APPLICANT
      To Be Signed When Representative Applies for Applicant
      I hereby submit this application for services on behalf of the applicant named above, and furnish the information contained in the application based upon knowledge and information obtained from the applicant. The information furnished is true and correct to the best of my knowledge and belief. This application is submitted with the understanding that verification of the information may be required anti that such verification will be obtained if required.
      SIGNATURE OF REP- DATE SIGNED RESENTATIVE OF APPLICANT X ..................................... ADDRESS
      FORM COMPLETED BY
      In view of the portion of the concurring and dissenting opinion relating to the “affirmation” at the end of Form DSS 2105, it might be well to note that plaintiffs have made no claim of any improper investigations on the part of the state agencies involved and that the consent presented for signature is no more than would be reasonably required of any recipient of state funds.
      We are persuaded that the requirement of the Form does not on its face raise any problem, either statutory or constitutional.

      . The text of the letter from Georgia Mc-Murray to the day care centers on March 30, 1973 was as follows:
      “You have been previously advised of your responsibility to submit admission forms verifying the eligibility of families to receive publicly subsidized day care services at your center. As of March 23, 1973 this Agency had not received any such forms from you.
      “Therefore, no further funds will be authorized by this Agency for your center. The check which you received in March, 1973 carried sufficient funds to cover your first payroll in April. If you choose not to have your funding disrupted, you can submit admission forms for eligible families enrolled at your center by April 9, 1973. After this date if no forms have been received, you will be advised that action is being taken to close out your account with this Agency. Individual instructions will be issued regarding procedures in this regard.
      “A meeting has been scheduled at 240 Church Street in the Basement Conference Room on Wednesday, April 4, 1973 at 10:30 to discuss this Agency’s procedures on compliance. Further, technical assistance is available through the ACD Resource Centers to assist you in establishing eligibility of families if you so desire.”

      . The text in full of the letter of April 12, 1973 to the day care centers was as follows:
      According to our records, you were advised by letter dated March 30, 1973, that due to your failure to complete and submit required eligibility forms, the Agency for Child Development could no longer expend public funds for purchase of day care services from your organization.
      We are, therefore, implementing the following procedures to assure the orderly termination óf our relationship.
      FINANCIAL ACCOUNTING
      Prior to April 30, 1973, the Agency will send one of its auditors to your center to complete the closing of the books between the Agency for Child Development and your center. The books must be retained on the premises until the auditor has completed his review. The Director and Bookkeeper should be retained on staff until April 30, to assist the auditor in determining what outstanding items are reimburseable [sic] and the amount of vacation pay due your employees.
      We will reimburse for the salary of the Director and Bookkeeper through April 30, and will also reimburse for rent through the month of April.
      We will shortly be forwarding a check to you for payment of staff salaries and sufficient funds to cover meals through April 18, 1973, and thereafter, forward checks for the employees’ vacation pay and other outstanding reimbursable items.
      REGISTRATION OF ELIGIBLE PARENTS
      Since staff salaries will be paid through April 18, 1973, we request that enough staff remain available to assist eligible parents who wish to place their children in publicly-funded day care programs. These parents should be told to call the Agency for Child Development Vacancy Information Unit at 553-6576. Top priority for placement will be given to them.
      EQUIPMENT
      In accordance with applicable City law, all equipment purchased with Agency funds is the property of the City and must be returned to the Agency for Child Development. Prior to April 30, we will inform you of arrangements that have been made to pick up this equipment. If you plan to continue providing day care services with private funds and want to purchase this equipment from the City, we will work out a payment schedule with you or, if you wish, deduct payment from monies due you.
      INSURANCE
      The Agency for Child Development has, during the tenure of your sponsorship, as•sumed the cost of all insurance premiums relative to youf employees and the premises. As your center is no longer eligible for public funds, we will be notifying our insurance carrier to this effect. If your center plans to continue in operation, it is imperative that you immediately secure liability, fire, health, accident, theft and any other insurances required by law. We will be informing your landlord that insurance coverage on your behalf will no longer be the obligation of the Agency. Assistance, if necessary, will be available to transfer this 'insurance to your own carrier, at your expense.
      FAIR HEARING
      If you have been serving parents who may be eligible in accordance with Day Care Procedure #3, you have the responsibility under State law to inform these parents of their right to a fair hearing.
      To ensure the parents being informed of their rights a letter to them is enclosed informing them of their right to have their status determined.

      . The text of the “Open Letter to the Parents” sent to the day care centers on April 12, 1973 reads as follows:
      “Dear Parent:
      “We regret to inform you that because of the failure of your center to submit information verifying the eligibility of families to receive publicly subsidized day care services, funds are being withdrawn from your center.
      “State and federal regulations mandate that recipients of public assistance and Social Services be informed of their right to a Fair Hearing, should their services be discontinued. However, the method of termination differs relative to individual status and kind of service received.
      “Because you have not identified the category from which your eligibility could or could not be determined, we can only inform you of your rights when the information required is submitted.
      “To inform you of your rights and to determine your eligibility, please call the Resource Center Director in your area. JOSEPHINE CLARK at 433-6618. If eligible, your child will be placed in an alternate 'day care service in your neighborhood.”

      . The centers indicated that they received the letter of April 12th on April 16th and 17th.

      . In reaching the conclusion that the notice given in the instant case did not violate due process of law, we need not pass on defendant’s claim that no notice was required in this situation. We merely hold, that assuming notice was required, the notice given in the instant ease does not raise a substantial question of constitutional law.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. Vincent ROLLINS, Appellee.
    No. 1123, Docket 73-2023.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1973.
    Decided Oct. 31, 1973.

      S. Andrew Schaffer, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. New York, John W. Nields, Asst. U. S. Atty., of counsel), for appellant.
    Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City), for appellee.
    Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This is the second time this case has been before the court in respect to this court’s now superseded Rules Regarding Prompt Disposition of Criminal Cases, often referred to as the Second Circuit Speedy Trial Rules.

The appellee was arrested on March 30, 1972, charged with having sold heroin to an undercover agent. He was indicted on April 28, 1972, and pleaded not guilty on May 15, 1972. On October 13, 1972, he moved to dismiss the indictment, on the basis that the Government had failed to indicate its readiness to bring him to trial within the six months required by then Rule 4. The Government admitted that “the six-month date, quite frankly, slipped past . . .,” but alleged “exceptional circumstances” on the basis that the undercover agent who had allegedly bought the heroin from Rollins was himself under investigation, being suspected in an unrelated case of having permitted an informant to take some heroin the agent had purchased. The Government was unwilling to risk the “serious danger that cross-examination of the police officer . . . would have compromised the investigation” into the agent’s behavior, and, desiring also to protect his reputation, decided to wait until that investigation was disposed of.

Under Rule 4 the Government was required' to be ready for trial within six months except for certain periods excluded from the time computed. The district court originally found that this situation satisfied the requirements of Rule 5(h) allowing for an exclusion of time for “exceptional circumstances,” but held that the Government was required to move for an extension to be able to qualify for such an exclusion. Because the Government had not so moved, the district court dismissed the indictment. In United States v. Rollins, 475 F.2d 1108 (2d Cir. 1973) (Rollins I), we held that the Government was not required to move for an extension to qualify for the Rule 5(h) exclusion. On remand for evidentiary hearing, following United States v. Valot, 473 F.2d 667 (2d Cir. 1973), and United States v. Scafo, 470 F.2d 748 (2d Cir. 1972), the district court received affidavits and then decided that Rule 5(h) was inapplicable after all, and that the case was governed by Rule 5(c) (i), which applied in the case of the “unavailability of evidence material to the government’s case . . . .” Since under Rule 5 (c) (i) the prosecuting attorney must have sought a continuance prior to the expiration of the Rule 4 six-months period, Rollins I, 475 F.2d at 1110 & n. 2, the district court again dismissed the charges. The Government appeals.

The question then presented is whether a witness who is physically available within the jurisdiction and capable of testifying is “unavailable” within Rule 5(c) (i) simply because the Government has found it undesirable to produce him under the circumstances, embarrassing both to the Government and the witness alike, of his being under investigation in another matter. If, despite his physical availability, his evidence is “unavailable” under Rule 5(c) (i), then the Government must have moved for a continuance, and having failed to do so within the allowable six months, the case must be dismissed.

The District Court, in holding that the evidence was “unavailable” and that Rule 5(c) (i) thus applied, relied on this circuit’s decisions in United States v. Counts, 471 F.2d 422, (2d Cir.) cert, denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L. Ed.2d 395 (1973), and United States v. Boatner, 478 F.2d 737 (2 Cir. 1973). But in Counts the witness in question was in Vietnam — outside the jurisdiction. See also Wigmore, Evidence § 1404 (3d ed. 1940). In Boatner the witness was in Louisiana and pregnant, with advice from her physician that she not travel. See Wigmore, swpra, § 1406(5) (“Any physical incapacity preventing attendance in court should be a sufficient cause of unavailability. . . .”). In each case, that is to say, the witness was unavailable in the ordinary sense of the term.

It may be true, as appellee argues, that, in the context of the evidentiary inference to be drawn from a party’s failure to call an available witness, the “availability” of a witness has been held to depend in some cases on all the facts and circumstances bearing upon the witness’s relation to the parties, rather than merely on physical presence or accessibility. E. g., Kean v. Commissioner, 469 F.2d 1183, 1188 (9th Cir. 1972); United States v. Johnson, 467 F.2d 804, 809 (1st Cir. 1972), cert, denied, 410 U.S. 909, 93 S.Ct. 963, 35 L. Ed.2d 271 (1973). See also United States v. Jackson, 257 F.2d 41, 43-44 (3d Cir. 1958). Here, however, the investigation of the undercover agent himself would not have made him unavailable so as to avoid the drawing of such an inference. We feel sure that if the Government had brought this case without presenting this witness, its failure to call him would have properly given rise to an inference against it. Further supporting the “availability” of the agent in this case is the concept of availability in the context underlying the introduction in evidence of a deposition. Surely it cannot be argued, at least at common law, that a deposition would be usable if the witness were alive and well within the jurisdiction and subject to subpoena, simply because the party calling him wanted to preserve his identity or wished not to expose him’to unfair cross-examination. See generally Wigmore, supra, §§ 1401-18. We hold, therefore, that the Government witness here was not unavailable so as to have required the Government to move for a continuance pursuant to Rule 5(c) (i).

But this does not end the case, for appellee maintains here, as he did on remand below, that if Rule 5(c) (i) were not applicable, Rule 5(c) (ii) was, and to take advantage of 5(c) (ii) also required a motion by the Government. Rule 5(c) (ii) provided a double requirement before time is excluded from the six-month period. First, the continuance must have been in order “to prepare the Government’s case,” and second, this additional time must have been necessary as a result of “the exceptional circumstances” of the case. This case does not fall within these strictures for two reasons. Initially, it is clear here that the Government did not need additional time to prepare its case. While the use of the language “exceptional circumstances” in both 5(c) (ii) and 5(h) was perhaps unfortunate, the Statement of the Circuit Council to Accompany the Rules indicated the difference meant between the two. In 5(e) (ii) “exceptional circumstances” referred to cases where “because of their nature and complexity” more than usual time is required for preparation. In other words, the Circuit Council was trying to ensure that continuances would not be granted for additional preparation absent a demonstrable, objective need for it. Here, however, the exceptional circumstances were not involved with nor did they result from the complexity of the case. Indeed, at this point it seems a routine drug case. The exceptional circumstances here were just those contemplated by Rule 5(h) — those circumstances where an' exclusion is proper but not specifically covered in the other subsections.

While finding the proper pigeonhole in a serviceable but now obsolete desk that has been retired to the judicial attic may be difficult, we must keep our eyes focused on the purpose of both the old and new rules — to bring about the prompt disposition of criminal cases. The threat of dismissal was aimed at motivating prosecutors to prepare and try their cases as promptly as possible. Exceptions were made to the six-month rule where it would be harsh and counterproductive to the purpose of the rules. A prosecutor who became aware of the possibility of going beyond six months should, of course, have sought a continuance, but, where the reasons for delay were within the rules’ exceptions, it would serve little purpose to penalize the public by dismissing the case merely for the prosecutor’s inadvertent failure to seek a continuance. The focus should be on the delay and the reasons for it.

With that in mind this court in Rollins I remanded the cáse for findings on the question of “exceptional circumstances.” The district court did not make them in the light of its decision that Rule 5(c)(i) was applicable here; the district court said, however, that the facts material to the determination whether there were exceptional circumstances were submitted in affidavits to the court. Since we have the affidavits before us in this record, we may supply the absent findings.

The public interest in prompt disposition of criminal cases is the touchstone of the Rules. In determining whether facts present circumstances exceptional enough to merit an extension of time, the public interest in prompt adjudication must be balanced against competing interests. Here the delay occasioned by the secret investigation of the officer/witness furthered the public interest in full investigations of police corruption, a serious problem in New York City. Had the case been brought to trial while the investigation was in process, and had the defense cross-examined the witness concerning his alleged misconduct, the investigation would have been frustrated. In such a situation we think the balance tips in favor of a finding of “exceptional circumstances” to bring this case within Rule 5(h). We are aided in this conclusion by the district judge’s own statement at the October 13, 1972, hearing that “I think I would have been duty bound to extend your time, because I think you would have fit under Rule 5(h). I agree with that

Our analysis could end here, but we note that under the affidavits a dispute exists over whether the Assistant United States Attorney in charge of the case was aware of the secret investigation going on before the six-month period elapsed. Compare affidavits by Mr. Mogel, attorney for defendant-appellee, and Assistant United States Attorney Rohrer. It might be argued that the delay could not have been caused by exceptional circumstances unless the Assistant in charge of the case was aware of those circumstances. We believe otherwise, however, again after weighing the competing interests. Here, the circumstances necessitating the delay were beyond the control of the Assistant, so that, even had he known about them, he would not have been able to advance the date of the trial. The threat of dismissal only finds its justification in providing an incentive to prosecutors to prepare and bring on eases promptly, but this rationale would not be served here by dismissing a case where the prosecutor’s efforts would have been to no avail. Rather the only effect of a dismissal would be needlessly to penalize the Assistant, and, not incidentally, the public.

For these reasons, the judgment of the district court must be and hereby is reversed, and the cause remanded for trial.

      . These rules hav^ been replaced by our Plan for Achieving Prompt Disposition of Criminal Cases (App. Feb. 28, 1973; eff. April 1, 1973).

      . Rule 4. In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest. If the government is not ready for trial within such time, or within the periods as extended by the district court for good cause, then, upon application of the defendant or upon motion of the district court, after opportunity for argument, the charge shall be dismissed.

      . Rule 5. In computing the time within which the government should be ready for trial, the following periods should be excluded :
      (h) Other periods of delay occasioned by exceptional circumstances.

      . Rule 5. In computing the time within which the government should be ready for trial . . . the following periods should be excluded:
      (c) The period of delay resulting from a continuance granted at the request of a prosecuting attorney if:
      (i) the continuance is granted because of the unavailability of evidence material to the government’s case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will become available within a reasonable period (Emphasis added.).

      . The Supreme Court recently denied, cer-tiorari in Hilbert v. Dooling, 476 F.2d 355 (2d Cir.) (en banc), cert, denied, 414 U.S. 878, 94 S.Ct. 56, 38 L.Ed.2d 123 (1973), in which this court held that there was power to dismiss an indictment with prejudice for failure to cojpply with the Speedy Trial Rules.

      . Under Fed.R.Civ.P. 32(a)(3)(E), a deposition of such a witness might be usable, but it would be usable not because the witness is “unavailable” but because there is a finding that “exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance s of presenting the testimony . . . .” The new provision in the Organized Crime Control Act of 1970 permitting, for the first time in our jurisprudence, the use of depositions in criminal cases (under certain limited circumstances), United States v. Singleton, 460 E.2d 1148, 1153 (2d Cir. 1972), cert, denied, 410 U.S. 984, 93 S.Ct. 1506, 36 L.Ed.2d 180 (1973), would not permit the use of a deposition in this instance. 18 U.S.C. § 3503(f).

      . Rule 5. In computing the time within which the government should be ready for trial, the following periods should be excluded :
      (c) The period of delay resulting from a continuance granted at the request of a prosecuting attorney if:
      (ii) the continuance is granted to allow the prosecuting attorney additional time to prepare the government’s case and additional time is justified by the exceptional circumstances of the case.

      . United States v. Cuomo, 479 F.2d 688 (2d Cir. 1973), would appear to the contrary. In that case the Government sought a continuance in a sealed affidavit to the court based on the need to keep a witness’s identity secret for some time because he was engaged in an important investigation. In open court the Government characterized its need for a continuance as resulting from the “unavailability” of the witness. It was clear that the witness was available, and before this court on appeal, the grant of the continuance was upheld, citing without explanation Rule 5(c) (ii). 479 F.2d at 694. While not taking issue with the summary treatment in Cuomo, we note that a more appropriate citation might have been Rule 5 (h). In any case, while Rule 5(c) and Rule 5(h) are intended to be complementary, we do not need to read them as necessarily mutually exclusive. Thus, even if the Government might have been able to obtain a continuance under Rule 5(c) (ii) in this case, if its circumstances are genuinely exceptional within the meaning of Rule 5(h), its failure to seek a continuance under (c) (ii) will not defeat an independent exclusion of time under (h). As the Statement to Accompany the Rules 8-9 says:
      Rules 5(c) (ii) and 5(li)„ and indeed all the rules, are designed to permit the district courts to exercise a sound discretion in cases where special circumstances require an extension of time.

      . See Report of the Commission to Alleviate Allegation of Police Corruption and the City’s Anti-Corruption Procedures (1972).


author: HILL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin William MOORE, Defendant-Appellant.
    No. 73-1311.
    United States Court of Appeals, Tenth Circuit.
    Nov. 8, 1973.

      A. H. Hitchcock, Denver, Colo., for defendant-appellant.
    James M. Peters, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., Oklahoma City, Okl., on the brief), for plaintiff-appellee.
    Before PHILLIPS, HILL and DOYLE, Circuit Judges.
   HILL, Circuit Judge.

Following a jury trial, appellant Moore was convicted of bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Following the verdict, appellant moved for a new trial. The motion was denied, and he was subsequently sentenced to twenty-five years imprisonment. From the judgment and sentence of the trial court Moore now appeals.

The testimony established that about 10:00 a. m. on October 19, 1972, a man entered the First National Bank of Alex, Oklahoma, approached a teller window and pulled a gun. Thereupon he ordered the bank employees present, as well as the other employees and a customer who arrived during the robbery, to enter the vault, to lie on their stomachs and to place their hands behind their backs. The robber then instructed James Allen, one of the bank’s personnel, to tie the others’ hands and to fill a sack with the money in the vault as well as the money in the tellers’ drawers. When this had been completed, the robber returned Allen to the vault and tied his hands; he then proceeded to leave the bank and make his escape. The employees freed themselves almost immediately and observed the robber leaving the parking lot of the bank in what was later found to have been a stolen automobile.

Additional testimony, from a motorcycle shop owner, indicated that he observed Moore and another defendant, Anderson, in his shop in early November. At that time Anderson asked Moore to give him his money, and Moore subsequently removed a number of bills from his pocket; the witness did not remain long enough to see if Moore delivered the money to Anderson. Still in early November, the two defendants were stopped by a Bethany, Oklahoma, police officer for a routine traffic investigation. When it was discovered that Anderson was operating his vehicle with a suspended license, he was arrested and it was later discovered he had in his possession a revolver and a number of new paper bills. A check of the serial numbers on these bills showed that they were part of the money stolen from the bank on October 19.

At the trial, four of the bank employees positively identified Moore as the man who had robbed the bank. From these identifications and Moore’s later connection with portions of the stolen money, the jury convicted him of the robbery.

Appellant urges two grounds for reversal of the judgment in this case. He first asserts that the trial court should have dismissed the indictment for failure of the government to produce evidence that the life of anyone was placed in jeopardy during the commission of the robbery. In particular, the indictment charged as to 18 U.S.C. § 2113(d) that Moore placed the life of Allen in jeopardy through the use of a dangerous instrumentality, i. e., a pistol. The testimony indicated that the defendant used a pistol during the robbery; that he pointed it at several bank employees, including Allen, and issued commands to those employees; that he either held it in his hand or kept it near during the entire crime. Though appellant does not raise the issue, since no evidence was produced that the gun was not loaded, the jury was free to infer that it was. Lewis v. United States, 365 F.2d 672 (10th Cir. 1966). This testimony is sufficient to uphold the jury verdict in this ease, and it would have been error for the trial court to have removed this issue from the jury’s consideration on the grounds asserted here. In the recent case of United States v. Marx, 485 F.2d 1179 (10th Cir. 1973), we approved the language used by the Sixth Circuit in United States v. Beasley, 438 F.2d 1279 (6th Cir. 1971), to define jeopardy as required in this statute. In Beasley the court indicated that the requirements of § 2113(d) are satisfied when the defendant is shown:

(a) to have created an apparently dangerous situation, (b) intended to intimidate his victim to a greater degree than the mere use of language,
(c) which, does in fact, place his victim in reasonable expectation of death or serious bodily injury.

The jury is entrusted with the obligation to determine facts. This issue was properly theirs, and the trial court was correct in its ruling.

Secondly, Moore contends that the failure of the trial court to inquire as to the facts surrounding earlier pre-trial photographic identifications requires that we remand this case to the trial court so that such an inquiry can be held. This argument is based upon the standard announced in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In that opinion, the Court recognized the dangers inherent in pretrial photographic identifications and yet stated it was unwilling to deny their employment in all cases. They thus concluded that such photographic identifications must be judged upon the totality of the surrounding circumstances. Simmons established that “each case must be considered on its own facts, and that convictions based upon eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.”

It should first be noted that this issue is raised for the first time here on appeal. No motion to suppress or objection to the evidence was made at the trial level. We have previously expressed our hesitancy to review such claims raised only at the appeal stage. Haskins v. United States, 433 F.2d 836 (10th Cir. 1970). However, as we pointed out in Haskins, Rule 52(b), F. R.Crim.P., 18 U.S.C., requires that we exercise our judgment whether to notice “plain errors or defects affecting substantial rights.” In light of the conclusive weight of the evidence presented against the appellant at the trial and because no indication of prohibited procedures is present in regard to the photographic identifications, we do not believe this is an appropriate case for application of that rule.

From the evidence it appears that three of the witnesses who identified Moore during the trial had previously been allowed to view a “spread” of pictures and ask if they could identify any of the subjects as the bank robber. Each witness viewed the pictures alone and each viewed several pictures, possibly as many as seven. There was no testimony that any of the subjects was suggested as a suspect or that any other impermissible procedure was utilized. Each of the witnesses selected the appellant’s picture as being of the person who robbed the bank, and each repeated that identification in court. Despite cross examination all of these witnesses expressed no doubt as to the fact that the appellant was in fact the person who robbed the bank.

In addition to the three challenged identifications, the government produced one eyewitness identification by a bank employee who did not view any pictures of the appellant. The government also connected the appellant with parts of the stolen funds subsequent to the robbery. This evidence, in conjunction with the complete lack of evidence as to violations, of due process during the photographic identifications, requires that we affirm the trial court.

Further, the record provides an independent source for the in-court identifications sufficient to prevent any substantial likelihood of misidentification. The witnesses testified that they each observed the appellant in a well lighted bank for periods of from three to ten minutes, and that this view was from a distance of about six feet or less. Appellant wore no mask though he was described as having a beard, moustache and long hair. These witnesses gave detailed descriptions of the appellant to the police, and these descriptions matched almost perfectly even to the clothing he wore at the time of the robbery. Each witness indicated his identification was based upon observations of the appellant at the time of the robbery and as he appeared in court. These descriptions, as well as the other factors mentioned above, destroy any likelihood of misidentification.

, Affirmed.

      . 18 U.S.C. § 2113(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, . . .
      Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      18 U.S.C. § 2113(d) Whoever, iu committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

      . Clemons v. United States, 408 F.2d 1230 (D.C.Cir.1968); Haskins v. United States, supra.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Maurice Raymond TURCOTTE, Defendant-Appellant.
    No. 73-1678.
    United States Court of Appeals, Fifth Circuit.
    Nov. 26, 1973.

      M. C. Mykel, Atlanta, Ga., for defendant-appellant.
    J. W. Stokes, U. S. Atty., Stanley M. Baum, Beverly B. Bates, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appel-lee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   AINSWORTH, Circuit Judge:

Maurice Raymond Turcotte, Jr. was convicted of knowingly and wilfully refusing to submit to induction into the armed forces of the United States, in violation of 50 U.S.C. App. § 462. The district court sentenced him to a three-year suspended sentence and a two-year probation period with the special condition that he serve two years’ alternative service. Turcotte contended that his I— A classification was invalid because he was entitled to exemption from military training and service due to his conscientious objection to participation in war in any form.

Turcotte’s Selective Service File shows that he registered with the Selective Service in December 1968, following his eighteenth birthday. In February 1969 he was granted a student deferment' and classified II-S. In November 1969 he was classified I-A, available for military service, because of his failure to maintain the normal number of semester .hours as a full-time student. However, in May 1970 he was given a I-S(C), a student deferment to the end of the academic year. On September 25, 1970, while still classified I-S(C), Tur-cotte sent the following letter to his Local Board, requesting a 1-0 conscientious objector status:

“I would also like you to know of certain ideals which have become a driving force in my life.
“Drawing much from my past religious education and from current religious thought, I must religiously object to and resist the Armed Services and conscription into such services. Because I hold these beliefs, I must request a classification of I-O.
“In anticipation of your cooperation, I thank you.”

On November 4, 1970, the Local Board reclassified Tureotte I-A. On December 7, 1970, he sent the Local Board the following letter:

“I request a personal appearance before you, as I feel that I can better explain my case verbally. I also request that I may be accompanied by my own witness. In anticipation of your cooperation, I thank you.”

Tureotte appeared before the Local Board on January 13, 1971, and submitted his form 150, which detailed his reasons for conscientious objection. The form includes a statement of belief in God and a summary of religious precepts which form the basis of Turcotte’s objection to participation in war in any form. It gives the religious background, upbringing, and education Tureotte received from his family and from Catholicism. Tureotte also explains how he derived his beliefs from Roman Catholic teachings even though the Catholic Church itself does not teach conscientious objection. He also lists readings which contributed to his beliefs, persons with whom he has discussed such beliefs, and activities in furtherance of his views, such as affiliation with the Quaker House in Atlanta, peace vigils, group discussions, and draft counseling. Tur-cotte’s statement also includes the following: “My ideas about war and the military did not take shape, however, until my second year at Georgia Tech. At that time I was classified 1-A and began to seriously consider the ethical problems posed by my participation in the military.”

In regard to his appearance before the Local Board, Tureotte testified at trial that

“I tried to explain why I thought my belief was a religious belief, and they [the Local Board] didn’t have any questions about it.”

Trial transcript, p. 92.

“They [the Local Board] asked me maybe five or six questions. That’s about all.”

Trial transcript, p. 97.

The minutes of the Local Board make only one reference to Turcotte’s personal appearance before it:

1-13-71 Made personal appearance before the Bd and on the basis of oral information and information on 150 with other evidence Bd did not feel that he qualified for l-O.

There are no further references in the Selective Service File to indicate what the “other evidence” was, or what basis the information Tureotte presented gave for feeling that he was not qualified for a conscientious objector classification. Tureotte appealed the Local Board’s decision; the Appeal Board continued him in class I-A, and he was ordered to report for induction. Tureotte went through the pre-induction process, but refused to step forward to be inducted into the Army.

Judicial review of Selective Service classifications is extremely limited, the range of review being the narrowest known to the law. Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955); Riles v. United States, 5 Cir., 1955, 223 F.2d 786; Foster v. United States, 5 Cir., 1967, 384 F.2d 372; Matyastik v. United States, 5 Cir., 1968, 392 F.2d 657; Clay v. United States, 5 Cir., 1968, 397 F.2d 901, rev’d. 403 U.S. 698, 91 S.Ct. 2068, 292 L.Ed.2d 810 (1971); McCoy v. United States, 5 Cir., 1968, 403 F.2d 896; Robertson v. United States, 5 Cir., 1969, 417 F.2d 440 (en banc); United States v. Wingerter, 5 Cir., 1970, 423 F.2d 1015; Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959; Unit-States v. Stetter, 5 Cir., 1971, 445 F.2d 472; Kurtz v. Laird, 5 Cir., 1971, 449 F.2d 210. The scope of review of such cases was delineated by the Supreme Court in Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946) :

“The provision making the decisions of the local boards ‘final’ means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the. classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.”

The standard by which we measure the validity of Tureotte’s defense is whether there is a basis in fact for the Selective Service Board’s refusal to grant Turcotte a conscientious objector exemption. The basis in fact test has been elaborated by the Supreme Court and by this Court. In Witmer v. United States, 348 U.S. 375, 381-382, 75 S.Ct. 392, 396, 99 L.Ed. 428 (1955), the Supreme Court said:

“In conscientious objector cases, therefore, any fact which casts doubt on the veracity of the registrant is relevant. . . - If, as here, the issue is the registrant’s sincerity and good faith belief, then there must be some inference of insincerity or bad faith.”

This Court has said in Kessler v. United States, 5 Cir., 1969, 406 F.2d 151, 156:

“. . . the disbelief of Selective Service officials will not justify the rejection of a claim for conscientious objector status unless there is some affirmative evidence to support the ■rejection of the claimed exemption or there is something in the record which substantially (emphasis added) blurs the picture painted by the registrant and thus casts doubt on his sincerity, Batterton v. United States, 8 Cir., 1958, 260 F.2d 233.”

We said in Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959:

“. . . the Board is not at liberty merely to disbelieve the claimant. There must be some facts in his application — hard,, provable, reliable facts —that provide a basis for disbelieving the claimant.”

See also Riles v. United States, 5 Cir., 1955, 223 F.2d 786; Wood v. United States, 5 Cir., 1967, 373 F.2d 894, vacated on other grounds, 389 U.S. 20, 88 S. Ct. 3, 19 L.Ed.2d 20 (1967); Greer v. United States, 5 Cir., 1967, 378 F.2d 931; Foster v. United States, 5 Cir., 1967, 384 F.2d 372; Jones v. United States, 5 Cir., 1968, 387 F.2d 909; Ma-tyastik v. United States, 5 Cir., 1968, 392 F.2d 657; Clay v. United States, 5 Cir., 1968, 397 F.2d 901, rev’d. 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971); Merritt v. United States, 5 Cir., 1968, 401 F.2d 768; McCoy v. United States, 5 Cir., 1968, 403 F.2d 896; Robertson v. United States, 5 Cir., 1969, 417 F.2d 440 (en banc); United States v. Wingerter, 5 Cir., 1970, 423 F.2d 1015.

The concept of conscientious objection has been defined judicially as follows:

“An applicant for classification as a conscientious objector must satisfy three basic tests. He must show that he is conscientiously opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168, 1971; that his opposition is based upon religious training and belief, as that term has been construed, Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308, 1970; United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733, 1965; and that his objection is sincere. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428, 1955.”

Kurtz v. Laird, 5 Cir., 1971, 449 F.2d 210, 211. In his written statements on form 150, Turcotte clearly stated that he is conscientiously opposed to war in any form. He also stated that this opposition derives from religious beliefs. There remains the question of his sincerity. But the Local Board did not ask Turcotte any questions as to his sincerity or as to the “religious” quality of his beliefs, and the minutes of the Local Board have provided us with nothing but the cryptic statement, “on the basis of oral information and information on 150 and with other evidence Bd did not feel that he qualified for 1-0.” Furthermore, according to Turcotte’s trial testimony and to the record we have before us, there is no indication that the “oral information and information on 150” do anything other than support Turcotte’s position. A diligent search through Turcotte’s entire Selective Service File convinces us that there was ho evidence to contradict his claim. Therefore, we find no basis in fact for the denial of his classification as a conscientious objector.

The Government argues that the timing of Turcotte’s request for the conscientious objector form might have supplied some basis for the denial of 1-0 status. A resume purportedly prepared by an employee of the Local Board and forwarded to the Appeal Board states that “his request for conscientious objector classification seemed to have been made at his own convenience.” However, development of conscientious objection to participation in war can occur even after induction and after a period of service in the military. Rothfuss v. Resor, 5 Cir., 1971, 443 F.2d 554; Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959; Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). We have also held that “lateness in and of itself will not support a finding of insincerity,” United States v. Brown, 5 Cir., 1972, 456 F.2d 983, 985, cert, denied, 409 U.S. 886, 93 S.Ct. 108, 34 L.Ed.2d 143 (1972), and that “the timing of an application, as a solitary fact without other support in the record, is by itself not enough to provide a basis in fact for rejection of a prima facie showing of conscientious objection.” Rothfuss v. Resor, supra at 558 of 443 F.2d. However, in the instant case, as in United States v. Stetter, 5 Cir., 1971, 445 F.2d 472, and United States v. Wingerter, 5 Cir., 1970, 423 F.2d 1015, Turcotte had a student deferment when he applied for the conscientious objector form. As pointed out in Stetter, at 480-481 of 445 F.2d, it is not incumbent upon a registrant to seek conscientious objector status while he maintains a student deferment.

Even though our scope of review is limited we find that appellant has set forth a bona fide and uncontradicted claim to conscientious objection. We said almost twenty years ago, “Congress in its wisdom considered it more essential to respect a man’s religious belief than to force him to serve, in the armed forces. The draft boards and the Courts are bound to carry out that policy.” Williams v. United States, 5 Cir., 1954, 216 F.2d 350, 352. Having found no evidence to contradict Turcotte’s claim of conscientious objection, or any basis in fact for denying him a 1-0 classification, we reverse the judgment below and order that a verdict of acquittal be entered.

Reversed.

      . This section reads in pertinent part:
      “Any member of the Selective Service System or any other person charged as herein provided with the duty of carrying out any of the provisions of this title . . . , or the rules or regulations made or directions given thereunder, who shall knowingly fail or neglect to perform such duty, . . . shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment, . . . .”

      . 50 U.S.O.App. § 456(j) provides for this exemption as follows:
      “Nothing contained in this title . shall be construed to require any person to be subject to combatant training and service in the armed forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. As used in this subsection, the term ‘religious training and belief’ does not include essentially political, sociological, or philosophical views, or a merely personal moral code. Any person claiming exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the armed forces under this title, ' . . ., be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be ordered by his local board, subject to such regulations as the President may prescribe, to perform for a period equal to the period prescribed in section 4(b) ¡.section 454(b) of this Appendix] such civilian work contributing to the maintenance of the national health, safety, or interest as the local board pursuant to Presidential regulations may deem appropriate. . .

      . The provision referred to above, 50 U.S.C. App. § 460(b)(3), has been amended to codify the Estep holding:
      . . No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title [section 462 of this Appendix], after the registrant has responded either affirmatively or negatively to an order to report for induction, or for civilian work in the case of a registrant determined to be opposed to participation in war in any form: Provided, That such review shall go to the question of the jurisdiction herein reserved to local boards, appeal boards, and the President only when there is no basis in fact for the classification assigned to such registrant. . .
      Before the decision in Estep, much controversy was generated as to the finality of draft board decisions and as to whether judicial review could be precluded by the provision in 50 U.S.C.App. § 460(b) (3) making “final” the decisions of the local and appeal boards and of the President. The majority opinion in Estep includes a reference to Conner and Clarke, Judicial Investigation of Selective Service Action, 19 Tul.L.Rev. 344 (1945). Written by two members of the Louisiana Selective Service the year before the decision in Estep, that article states at 346 that:
      “We may concede that Congress was under no constitutional limitations when it undertook to define and impose military liability upon all persons residing in the United States. Likewise we may concede that the exemptions or special provisions for deferment were in the national interest and not in the interest of any individual. We may recognize also that Congress is free to remove any exemption or deferment or to extend the provisions of the act by appropriate amendment to the basic law. It does not follow however that the persons affected by the law are foreclosed from insisting that it be administered in conformity with the congressional mandate.” [Footnotes omitted.]
      It is further stated at 347 n. 14:
      “From a certain point of view it would seem to be definitely in the ‘national interest’ to encourage the conviction that agencies of government must function according to law and are not sui juris'. Consequently even conceding that the common good outweighs individual interests, it does not justify or require the condonation of arbitrariness or abuse of power. So far as the selective service system is concerned, its primary strength flows from the confidence it has earned because of its uniformly fair treatment of its registrants. Nonetheless the confidence of the people in their courts is such that the denial of judicial inquiry would be ominous and definitely detrimental to the national interest. . . .”
      Cf. also the concurring opinion of Mr. Justice Murphy, Estep v. United States, 327 U.S. at 132, 66 S.Ct. at 432:
      “. . . In this instance it seems highly improbable that the war effort necessitates the destruction of the right of a person charged with a crime to obtain a complete review and consideration of his defense. As long as courts are open and functioning judicial review is not expendable.
      “All of the mobilization and all of the war effort will have been in vain if, when all is finished, we discover that in the process we have destroyed the very freedoms for which we fought. These cases represent a small but significant reflection of that fact. The reversal of the judgments below is therefore in line with the highest traditions of the Court.”

      . “The very existence of Army Regulation 635-20 [governing consideration, of conscientious objector claims which occur subsequent to entry into active military service] is a recognition of the fact that crystallization of conscientious objector beliefs may occur as readily after induction as before. Further, the courts have recognized that crystallization may occur in the face of imminent induction or after considerable time spent in military service.” Rothfuss v. Resor, 5 Cir., 1971, 443 F.2d 554, 558.
      “It defies logic and experience to assert that an Army recruit’s views toward the military could not change during the time he goes through basic training. Indeed, the very purpose of basic training is to break down the recruit’s civilian orientation and orient him in the ways of military life.” Helwick v. Laird, 5 Cir., 1971, 438 F.2d 959, 967.


author: WILLIAM M. BYRNE, Sr., District Judge: ALFRED T. GOODWIN, Circuit Judge

text:
    Charles R. VEECK, Plaintiff-Appellee, v. COMMODITY ENTERPRISES, INC., et al., Defendants-Appellants.
    No. 72-1021.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1973.
    Alfred T. Goodwin, Circuit Judge, concurred specially and filed opinion.
    Kenneth P. Kimmel (appeared), Beverly Hills, Cal., Leon D. Bess, Gerald J. Kitchen, of Evans, Kitchel & Jenckes, P. C., Phoenix, Ariz., for defendants-appellants.
    Leonard A. Goldman, of Goldman, Goldman & Arnold, Los Angeles, Cal., Murray Rauth, Harold A. Donegan, Jr., Scottsdale, Ariz., for plaintiff-appellee.
    Before CHOY and GOODWIN, Circuit Judges, and BYRNE, Sr., District Judge.

       Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation.

   WILLIAM M. BYRNE, Sr., District Judge:

On January 19, 1971, Veeck instituted this diversity action in the U. S. District Court for the District of Arizona.

The plaintiff alleged that on October 19, 1969, an Arizona newspaper published a want-ad which had been placed by the defendants’ agent. The ad purported to seek a person to operate the defendants’ soon-to-be-established commodities brokerage office. It stated that the defendants would both train the applicant whom they selected and require him to make a cash investment of $25,000.00. Veeck answered the ad. One month later, in Arizona, he and the defendants’ agent signed a “resident agency agreement” pertaining to a commodities brokerage office in Scottsdale, Arizona. The agreement was subject to being accepted by the defendants at their home office. Ten days later, in California, such an acceptance occurred when the agreement was signed by defendant Joseph W. Kosseff, president of both corporate appellants. Subsequently, the defendants furnished Veeck with some training and he invested his money with them. However, a dispute later arose between the parties and it led to the instant action.

On February 1, 1971, in California, one J. Howes personally served copies of the district court’s summons and Veeck’s complaint on Kosseff and his wife in their individual capacities. In addition, he served both corporate appellants by serving Kosseff in his capacities as their respective presidents. At the time Howes effectuated those personal services of process, he was neither a federal marshal nor a person specially appointed by the district court to serve such process.

On March 12, since none of the appellants had filed any responsive pleading, a default was entered against them. On April 8th, following a hearing, the district court awarded Veeck a default judgment which included compensatory damages of $24,774.80 and punitive damages of $26,000.00. On October 14th, Veeck executed on his judgment by garnishing a bank account of appellant Franchise Marketing Services, Inc., in the amount of $51,000.00. The next day, the appellants filed a motion both to quash service of process and to set aside the default judgment. On December 9th, after a hearing on the motion, the district court denied it. This appeal arises from that ruling.

The appellants’ initial contention is that Howes lacked proper authority to serve the district court’s summons upon them. They assert that Rule 4(c) of the Federal Rules of Civil Procedure is the exclusive statutory provision regarding who is authorized to personally serve the district court’s summons. That Rule states, in relevant part, as follows:

“(c) By Whom Served. Service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose. Special appointments to serve process shall be made freely when substantial savings in travel fees will result.” [Emphasis supplied]

They argue that, since Howes was neither a federal marshal nor a person specially appointed by the district court to serve its summons, he lacked proper authority to serve them with that document.

Veeck contends that Rule 4(e) of the Federal Rules of Civil Procedure is the statutory provision which authorized Howes to personally serve the appellants with the district court’s summons. That Rule states, in relevant part, as follows:

“(e) [Summons]: Service Upon Party Not Inhabitant of or Found Within State. . . . Whenever a statute ... of the state in which the district court is held provides . . . (1) for service of a summons . . . upon a party not an inhabitant of or found within the state, . . . service may . be made under the circumstances and in the manner prescribed in the statute.” [Emphasis supplied]

Veeck points out that Arizona has a “long-arm statute” which provides for service of process upon parties who are not inhabitants of or found within its boundaries. That statute is Rule 4(e) (2) of the Arizona Rules of Civil Procedure, 16 A.R.S., which states, in relevant part, as follows:

“. . . When the defendant is . a person . . . [or] corporation . . . which has caused an event to occur in this state out of which the claim which is the subject of the complaint arose, service may be made as herein provided, and when so made shall be of the same effect as personal service within the state.
“(b) Direct service. Service out of the state may be made . . . by a person authorized to serve process under the law of the state where such service is made.” (Emphasis supplied]

He further points out that the appellants were served in the State of California and that Section 414.10 of the California Code of Civil Procedure states that:

“A summons may be served by any person who is at least 18 years of age and not a party to the action.”

He asserts that Howes was qualified to serve process under California law because he was over eighteen years old and not a party to the action filed in the district court. Veeck argues that, therefore, Howes had proper authority to serve the district court’s summons by virtue of Fed.R.Civ.P. Rule 4(e) which made applicable Ariz.R.Civ.P. Rule 4(e)(2) which in turn made applicable Cal.C.C.P. § 414.10.

The district court was persuaded that the mandatory language of Rule 4(e) could be circumvented by Veeck’s syllogistic argument. We disagree. When personal service of original process is made pursuant to Rule, 4(e), it must be made by a person specified by Rule 4(c). See 2 J.Moore, Federal Practice, j[ 4.08, at 1009-1011 (2d ed. 1970); 4 Barron & Holtzoff, Federal Practice and Procedure, § 1092, at 353 (Wright ed. 1969); cf. United States for Use of Tanos v. St. Paul Mercury Ins. Co., 361 F.2d 838, 842-843 (C.A. 5, 1966) (dissenting opinion). Accordingly, since Howes was not a person specified by Rule 4(c), he lacked proper authority to serve the district court’s summons upon the appellants.

Such a result is consistent with the overall scheme of Rule 4 when it is viewed in its entirety. Rule 4(c) and Rule 4(e) speak to different subjects, namely, the former speaks to “who” is authorized to make service of process and the latter speaks to “how” such service is to be made on a party who is neither an inhabitant of nor found within the state where the district court is held. Furthermore, in 1963, when the advisory committee members successfully proposed amending Rule 4(e) in order to permit resort to state long-arm statutes, it would seem that, if they also intended to permit resort to state criteria regarding “who” is qualified to serve process, they would have proposed an amendment to Rule 4(c) to clarify such an intention. However, they did not do so but rather left Rule 4(c) intact as originally enacted in 1937.

The appellants further contend that the district court lacked in person-am jurisdiction over them. It is fundamental that a court can acquire such jurisdiction over a defendant in only two ways, viz., his voluntary appearance in the action or service of the court’s process upon him in strict conformance with a valid statute authorizing it. Kadet-Kruger & Co. v. Celanese Corp. of America, 216 F.Supp. 249, 250 (N.D.Ill., 1963); Bruce v. Paxton, 31 F.R.D. 197, 200 (E.D.Ark., 1962); see Robertson v. Railroad Labor Board, 268 U.S. 619, 622, 45 S.Ct. 621, 69 L.Ed. 1119 (1925) (Brandeis, J.). Since the appellants made no appearance prior to their motion leading to this appeal and they were not served in strict conformance with Rule 4 by reason of Howes not being a person specified by Rule 4(c), their contention is correct.

The district court’s lack of in personam jurisdiction over the appellants renders void its default judgment against them. Pennoyer v. Neff, 95 U. S. 714, 726-728, 24 L.Ed. 565 (1877). Accordingly, the district court should have granted their motion to set aside that void judgment. Ruddies v. Auburn Spark Plug Co., 261 F.Supp. 648, 657 (S.D.N.Y., 1966); Fed.R.Civ.P. 55(c) and 60(b)(4).

It should also be noted that the allegations of the complaint are insufficient to confer jurisdiction on the district court. In a diversity ease an allegation that a corporation is a citizen of a state is insufficient without an allegation as to the state in which it is incorporated and that state in which it has its principal place of business. See 28 U.S.C. § 1332.. If diversity exists as a fact this error may be corrected upon remand. See 28 U.S.C. § 1653.

Reversed and remanded with instructions to quash the service of process, set aside the default judgment, and to permit the amendment of the complaint pursuant to 28 U.S.C. § 1653, if requested.

ALFRED T. GOODWIN, Circuit Judge

(specially concurring):

I concur in the opinion, but the facts of this case, and those of United States for Use of Tanos v. St. Paul Mercury Ins. Co., 361 F.2d 838 (5th Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 510, 17 L. Ed.2d 435 (1966), illustrate the need for an amendment to clarify Fed.R.Civ.P. 4(c). The interrelation of Rules 4(c), 4(d)(7), and 4(e) causes confusion among experienced lawyers, and the results must be incomprehensible to clients. See Note, 42 Notre Dame Lawyer 284 (1966).


author: SCHWARTZ, District Judge:

text:
    UNITED STATES of America, Appellee, v. Edward Francis KUNTZWEILER, Appellant.
    No. 73-1738.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1973.

      Anthony J. Raineri (argued), Joseph C. Raineri, Sr. (argued), Phoenix, Ariz., for appellant.
    Patricia Whitehead, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for appellee.
    Before CHAMBERS and DUNIWAY, Circuit Judges and SCHWARTZ, District Judge.

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

   OPINION

SCHWARTZ, District Judge:

Appellant was convicted of conspiracy to manufacture amphetamine and methamphetamine (“speed”) in violation of Title 18 U.S.C. § 371 following a jury trial. He attacks his conviction on numerous grounds.

He first contends that the government’s failure to inform him before the trial was over that charges against one co-conspirator, Brazil, had been dismissed was a “surreptitious nondisclosure” and an “unfair tactic” which deprived him of a fair trial. The cases cited by the appellant are inapposite. They involve the withholding of either evidence exculpatory of the-.accused, e. g., Barbee v. Warden, Maryland, 331 F. 2d 842 (4th Cir., 1964), or evidence tending to impeach the credibility of government witnesses, Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). While evidence of dismissal of charges against a witness might fall within the latter category, Brazil was not called as a witness by either side. Thus, there was no testimony to impeach.

Appellant next complains that the government improperly commented on his failure to testify. During closing argument defense counsel attacked the government for not producing certain records of sales to the defendant kept by Payne, a co-conspirator and the key government witness. The government responded that the defense could have subpoenaed the records themselves. It was in this context that the following comment was made:

Finally, the defendant complains that we didn’t give them the copies of their records.
Well, it is hard to know what records are missing and it is true that the defendant has no duty to put on any evidence and they never do, and that is the way it should be, but they do have the power of subpoena, and if they thought there was something wrong, something crooked about the records, they could have brought them in.

Thus, it is apparent from the record that the comment was not directed at the defendant’s decision not to testify, was invited by defense counsel’s argument, was not objected to by defense counsel, and, if erroneous, was harmless error. United States v. Taitano, 442 F. 2d 467 (9th Cir. 1971).

Appellant’s principal attack on his conviction is claimed insufficiency of the evidence to show conspiracy. Taking the evidence presented in the light most favorable to the government, the following facts emerge: Appellant purchased distillation equipment capable of use in producing illegal stimulants from a Mr. Edward Goldstein; appellant told Goldstein that he was working on a process that would make him a lot of money. Goldstein obtained the equipment for Kuntzweiler on the request of Payne, a co-conspirator, with whom Goldstein had previously worked. Payne told Goldstein that he was buying the equipment as a favor to Kuntzweiler. There was evidence of substantial chemical purchases by appellant from Payne and others. Appellant told Payne that the chemicals might be used to make “speed” and that he was having trouble getting the formula. Expert testimony indicated that there was no use for phenol-2-propanone, one of the chemicals appellant bought from Payne, other than the manufacture of amphetamines. Co-conspirator Brazil paid Payne for this chemical in cash, Kuntzweiler taking delivery of the chemical. Appellant offered Payne “speed” in payment for the chemicals and Payne, knowing the purpose for which they were bought, marked sales receipts “cash” and used an alias for appellant in his sales records to avoid identifying the true purchaser. Brazil, Kuntzweiler and Payne jointly decided that the records should be falsified. The evidence of conspiracy was sufficient.

Finally, appellant attacks the affidavit supporting a warrant to search his premises for LSD, and makes the related claim that there was no probable cause to believe that the items seized were evidence or instrumentalities of crime. The affidavit contained, information received from an informant who had proved reliable on several past occasions. He had seen LSD in appellant’s possession at the searched premises and in appellant’s 1960 automobile. Additionally, known drug users had been seen entering and leaving the apartment. This information was sufficient to provide the basis for a finding of probable cause under the standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Hence, the officers were acting pursuant to a lawful warrant to search for and seize a dangerous drug processed and manufactured in violation of state and federal law.

They did not find LSD, but rather found the chemicals, equipment and formulae necessary for the manufacture of methamphetamine, a dangerous drug. Some of the same chemicals were usable to make LSD. A chemist, called to the scene before the items were seized, advised the officers that all the ingredients required to make methamphetamine were present and that they constituted an immediate hazard as then stored. The officers thereupon lawfully seized the contraband and dangerous objects which they had discovered in the execution of a validly issued search warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Having found none of appellant’s grounds to be meritorious, we affirm. Judgment affirmed.


author: COFFIN, Chief Judge. LEVIN H. CAMPBELL, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Frederick M. MICHELI, Defendant-Appellant.
    No. 73-1186.
    United States Court of Appeals, First Circuit.
    Argued Stept 11, 1973.
    Decided Nov. 15, 1973.

      James V. McManus, Boston, Mass., for appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., and Richard E. Bachman, Asst. U. S. Atty., Chief, Crim. Div., were on brief, for appellee.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Appellant, convicted of possessing and concealing counterfeit United States Federal Reserve notes with intent to defraud, 18 U.S.C. § 472, claims that an otherwise valid warrant to search the premises of his office did not include within its scope a search of his briefcase. While appellant also contends that the search warrant did not permit government agents to forcibly detain him, and that the restraint thereby imposed upon him prior to his actual arrest invalidated the warrant, we find these latter claims clearly frivolous. The only substantive issue presented on appeal is: to what extent do personal effects lie outside the scope of a warrant to search the premises?

On June 12, 1972, after weeks of investigation and surveillance by the United States Secret Service, a search warrant was issued for the office of the Hillside Press, authorizing a search of “those rooms of the second floor of those premises known as 81 Canal Street, Boston, being used as the place of business of the Hillside Press . . . . ” At the same time an arrest warrant was issued for appellant’s brother who, with the appellant, was co-owner of the Press. That evening, government agents surrounded the premises, and observed the appellant enter the building, carrying a brown leather briefcase. Approximately one half hour later, at 6:20 p. m., the agents entered the building, arrested appellant’s brother, and proceeded to search the premises. Appellant was frisked and led into a back room. In their search of the front room, the agents discovered what they knew to be appellant’s briefcase on the floor under a desk. Inside the briefcase they found what proved to be forty-three counterfeit five dollar Federal Reserve notes, and papers identifying appellant as the owner of the briefcase.

The appellant filed a motion to suppress as evidence the contents of the briefcase, in accordance with Rule 41(e), F.R.Cr.P., on grounds, inter alia, that the agents knew that the briefcase was the personal property of the appellant and therefore its search did not come within the scope of the warrant to search the premises of the Press. The district court denied appellant’s motion, and the contents of the briefcase were subsequently entered into evidence against the appellant at his trial.

We affirm the decision of the district court. In so doing, we do not mean to suggest that anything found on the premises would necessarily fall within the scope of a warrant to search premises. Nor would we imply that the result would be different if, when the officers entered, appellant was physically holding the briefcase. To allow our decision to be interpreted as giving carte blanche to seize any objects reposing within premises covered by a warrant would be a disservice to law enforcement officials, individuals who may find their personal privacy invaded by a premises search warrant, and courts which must rule on suppression motions. Without attempting to write in black letters, we think some confusion may be spared by setting forth our rationale in deciding this case.

Had appellant been a doctor on call at the Press and had the agents reason to know that the briefcase belonged to him, we would not reach the result we do here. We are not helped, in distinguishing these two situations, by the general proposition that a warrant to search premises does not permit a personal search of one who merely happens to be present at the time. For the question is: what is a personal search? A search of clothing currently worn is plainly within the ambit of a personal search and outside the scope of a warrant to search the premises. But a personal effect such as a briefcase, carried on to the premises and then tucked under a desk, does not clearly fall either within the realm of a personal search or a search of the premises. While the articulation of guilding principle may result in a line drawn with a stub of chalk rather than with a draftsman’s pen, we nevertheless think principle exists. ■

Some courts approach the quest for principle by immunizing from a search under sanction of a premises warrant any item within the physical possession of an individual on the premises. See United States v. Teller, 397 F.2d 494 (7th Cir. 1968), cert, denied, 393 U.S. 937, 89 S.Ct. 299, 21 L.Ed.2d 273 (1968). This has the virtue of precision but suffers from being at once too broad and too narrow. It is too broad in that a search warrant could be frustrated to the extent that there are hands inside the premises to pick up objects before the door is opened by the police. This obvious loophole has led at least one court to bar such frustration by extending permissible search to objects held in hand, see Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597, 600 (1963), cert, denied, 377 U.S. 956, 84 S. Ct. 1635, 12 L.Ed.2d 500 (1964) — a rule which preserves the efficacy of a warrant by obliterating the distinction between a search of premises and a search of the person.

A focus on actual physical possession is too narrow, however, in that it would leave vulnerable many personal effects, such as wallets, purses, cases, or overcoats, which are often set down upon chairs or counters, hung on racks, or checked for convenient storage. The Fourth Amendment’s basic interest in protecting privacy, Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), and avoiding unreasonable governmental intrusions, Mancusi v. De-forte, 392 U.S. 364, 88 S.Ct. 2120, 20 L. Ed.2d 1154 (1968), is hardly furthered by making its applicability hinge upon whether the individual happens to be holding or wearing his personal belongings after he chances into a place where a search is underway. The rudest of governmental intrusions into someone’s private domain may occur by way of a search of a personal belonging which had been entrusted to a nearby hook or shelf. The practical result of such a rule may be to encourage the government to obtain search warrants for places frequented by suspicious individuals, such as infamous bars, then lie in wait for those individuals to enter and make themselves confortable.

In determining to what extent a recognizable personal effect not currently worn, but apparently temporarily put down, such as a briefcase, falls outside the scope of a warrant to search the premises, we would be better advised to examine the relationship between the person and the place. The purpose of a search warrant is to assure that any governmental intrusion is justified by a careful prior determination of probable cause and necessity. Furthermore, any searches which are deemed necessary should be as limited as possible. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). This further objective is achieved by requiring that the warrant contain a particular description of the things to be seized and give a clear idea of the scope of things to be searched. It should not be assumed that whatever is found on the premises described in the warrant necessarily falls within the proper scope of the search; rather, it is necessary to examine why a person’s belongings happen to be on the premises. “[T]he Fourth Amendment protects people, not places”, Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), and the protective boundary established by requiring a search warrant should encompass those extensions of a person which he reasonably seeks to preserve as private, regardless of where he may be.

Polar cases easily come to mind. A warrant to search a private home or office for specific objects might reasonably comprehend within its scope household items, containers, and personal accessories belonging to the owner of the premises. United States v. Teller, supra. But the same objects might not fall within the reasonable scope of a warrant to search a more public place, such as a meeting hall, a restaurant, or a barbershop, see Commonwealth v. Snow, Mass., 298 N.E.2d 804, 812 (1973) (Kaplan, J., dissenting in part), where the individual who owns the objects is a transient visitor or customer. A visitor in a private home stands in a different position from an habitué of a “shooting gallery”, United States v. Johnson, 154 U.S.App.D.C. 393, 475 F.2d 977, 980 (1973) (Bazelon, C. J., dissenting in part). Between the extremities, no crisp formula can substitute for reasonable judgments. That the problem of distinguishing premises from person has yielded so few decided cases indicates that the problem we are discussing is a narrow one, falling between two primary rules, one permitting searches of premises, the other prohibiting searches of person. In this interstitial area where the literal application of either primary rule would frustrate the legitimate interests of either the police or the individual, we think it more consistent with the Fourth Amendment that searches of .the personal effects of visitors to premises be appraised by reference to the reasonable expectations of privacy which visitors bring to premises rather than by attributing significance to a literal coup de main.

Our basic rationale for deciding that appellant’s briefcase fell within the scope of the warrant to search the premises does not, therefore, rest upon the fact that at the time of the search his briefcase was out of his physical possession. Rather, we base our decision on the fact that, as co-owner of the Hillside Press, appellant was not in the position of a mere visitor or passerby who suddenly found his belongings vulnerable to a search of the premises. He had a special relation to the place, which meant that it could reasonably be expected that some of his personal belongings would be there. Thus, the showing of probable cause and necessity which was required prior to the initial intrusion into his office reasonably comprehended within its scope those personal articles, such as his briefcase, which might be lying about the office. The search of the briefcase, under these circumstances, was properly carried out within the seopé of the warrant.

Affirmed.

LEVIN H. CAMPBELL, Circuit Judge

(concurring).

I am unable to accept the broad ruling suggested by the court — that the police, although armed with a warrant, may search an individual’s personal effects found on premises only if they know at the time of a close relationship between the person and the premises.

The rule eviscerates the authority conferred by a valid warrant to search premises. To obtain such a warrant, officers must show probable cause to search the premises for described evidence or contraband. That showing, I believe, justifies whatever intrusion may result from searching all articles found on the premises having characteristics making it possible for them to harbor the matter described in the warrant. There is an exception, it is true; such a warrant does not ordinarily sanction a search of persons found on the premises. That exception results from recognition that a personal search may involve a peculiarly obnoxious physical intrusion and molestation. Only rarely — as, perhaps, when necessary to avoid the removal or destruction of articles suddenly seized by a suspect in view of the officers— might we permit a search of the body on the mere authority of a warrant to search premises.

The court unnecessarily enlarges the personal search exception when it grants possible sanctuary to all manner of arguably intimate personal effects carried upon the premises and then set down.

A search of such objects is neither more nor less intrusive than would be the search of similar objects whose owner, having deposited them, had left the premises before the police arrived. Any search is an invasion of privacy; but I think the cause for issuance of the original warrant allows a search of relevant personal effects not in the possession of their owner as well as of all other relevant objects on the premises. The contraband or incriminating evidence covered by the warrant is as likely to be within briefcases or bags just brought on the premises as within other objects on the premises. It is true that if the officer knows the owner of the briefcase has no “relationship” to the premises, he might have less reason to search. But in many cases the police would have no way of knowing, in advance, what is the individual’s actual connection with the premises. When the stranger in the betting parlor solemnly announces that he is the family doctor, I am less sure than is the court that I would require police to believe him — or inquire further before searching his bag.

In the present ease the agents had a warrant permitting the suspect premises to be searched for “counterfeit Federal Reserve Notes, materials” and related equipment. A briefcase lying on these premises, whenever and by whomsoever brought, was an obvious likely hiding place for counterfeit notes. Here, as it happened, the agents knew that the owner of the briefcase was closely involved with activities oh the premises. But I do not think that their right to execute the warrant should so fortuitously turn on what they happened to know or think at the time. Given the probable association of couriers, purchasers, bagmen and other accomplices with the counterfeiting scheme, the briefcase was a suspicious object and, therefore, would have merited search had its purported owner been a total stranger to the agents, or had he introduced himself as an itinerant peddler, a salesman, a lost out-of-towner, or even a minister or priest. Had the agents known less about Miche-li, I cannot for a moment believe that they would constitutionally have been required to grant sanctuary to Micheli’s briefcase, found, as it was, on premises covered by the warrant, and relevant to the purposes of the warrant.

Sometimes the police may know in advance that X is a bagman; sometimes they may not. But when, in execution of a warrant, they find X’s bag on a table within a room where there was probable cause to suspect a criminal scheme was taking place, I can see no reason for immunizing the bag.

The test proposed by the court is, moreover, likely to prove impractical. It may make necessary a lengthy inquiry into the police officer’s subjective knowledge at the time of the search. Since the nature and quantum of “relationship” cannot readily be defined, officers and courts may be bedevilled with uncertainty in a field where certainty is especially desirable. The “test may dissolve into a protracted hunt for guidelines so faint as to be unrecognizable. And it invites a host of other niceties : such as whether the police knew or should have known that the bag had recently been brought on the premises by someone; how near the bag must be to its owner before the police need inquire into the latter’s “relationship” to the' premises; and other refinements which I think society has no vital stake in pursuing.

The rare situation which might give us pause, e. g., the search of the restaurant customer’s raincoat under authority of a warrant to search the restaurant, can be dealt with on its peculiar facts under the traditional rule that “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1967). If the warrant was issued because the restaurant was suspected to be a betting parlor, a reasonable execution of the warrant might include a search of customers’ raincoats (assuming the coats to be deposited on the premises, and not still on the backs of the customers). On the other hand, if the warrant is for a meat cleaver believed to have been used as a murder weapon a week earlier by the chef, a search of raincoats just deposited by customers might be intolerable. Much would depend on the facts of each case. The court can be expected to suppress evidence seized in a search which goes beyond the authority reasonably conferred by the warrant. But I think that a search warrant of the kind here in question affords authority to search all objects found on the premises of a character which might reasonably contain the articles for which a search is permitted.

      . See, e. g., United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948) ; United States v. Haywood, 284 F.Supp. 245 (E.D.La.1968) ; see also State v. Bradbury, 109 N.H. 105, 243 A.2d 302 (1968) ; cf. United States v. Jennings, 468 F.2d 111 (9th Cir. 1972) ; United States v. Festa, 192 F. Supp. 160, 163 (D.Mass.1960).

      . A different situation exists when a personal effect is so secreted that police could reasonably assume that the visitor did not harbor a normal expectation of privacy but, indeed, took extraordinary measures to insure that the effect would be hidden from view.

      . I leave to another day, and to the fact-pattern of that case, whether a brief case or wallet held in hand can be searched. Cf. Walker v. United States, 117 U.S.App.D.C. 151, 327 F.2d 597 (1963), cert, denied 377 U.S. 956, 84 S.Ct. 1635, 12 L.Ed.2d 500 (1964).

      . This may not, of course, be always so, as where the object of the search is a sub-machine gun, and the article searched is a woman’s handbag. But in such a case, the handbag is protected not because of the new rule proposed by the court but simply because the search would exceed the scope of the warrant.