author: TRASK, Circuit Judge: DUNIWAY, Circuit Judge

text:
    UNITED STATES of America ex rel. Henry F. COBELL, Petitioner-Appellee, v. Joan R. COBELL et al., Respondents, and Leona Conway, Respondent-Appellant. UNITED STATES of America ex rel. Henry F. COBELL, Petitioner-Appellee, v. Joan R. COBELL et al., Respondents, and The Honorable Judge John Sharp and the Blackfeet Tribal Court, Respondents-Appellants.
    Nos. 72-3175, 73-1071.
    United States Court of Appeals, Ninth Circuit.
    Sept. 5, 1974.
    Duniway, Circuit Judge, dissented and filed opinion.

      Donald R. Marble (argued) of Bunn & Marble, Chester, Mont., for appellants in 72-3175.
    John T. McDermott (argued), Director, Indian Law Program, University of Montana, School of Law, Missoula, Mont., for appellants in 73-1071.
    D. Patrick McKittrick (argued), Great Falls, Mont., for appellee.
    Before DUNIWAY and TRASK, Circuit Judges, and SHARP, District Judge.

       Honorable Morell E. Sharp, United States District Judge from the Western District of Washington, sitting by designation.

   OPINION

TRASK, Circuit Judge:

This is a unique child custody struggle involving the conflicting jurisdictional claims of the Montana state courts and the Blackfeet Tribal Court. The controversy comes before us on appeal from the granting of a writ of ha-beas corpus by the federal district court pursuant to 25 U.S.C. § 1303.

Henry and Joan Cobell, the parents of the two minor children who are the subjects of this custody battle, are both enrolled members of the Blackfeet Tribe. In August 1971, Joan Cobell sued for a divorce in the Montana state court and Henry Cobell counterclaimed. A divorce decree was entered the following December and Henry Cobell was granted temporary custody of the children. In August 1972, however, the state court modified its original order and transferred custody of the children to their mother, pending further hearings. Acting under the authority of this revised order, Joan Cobell took the children to her mother’s home on the Blackfeet Reservation. Meanwhile, Henry Cobell successfully appealed the custody reversal to the Montana Supreme Court. The August 1972 order granting custody to Joan Cobell was vacated and temporary custody was restored to Henry. The mother, however, refused to surrender the children, and it is at this point that the Blackfeet Tribal Court intervened. On a petition from the children’s maternal grandmother (appellant Leona Conway), Tribal Judge John Sharp assumed jurisdiction over the controversy and issued, ex parte, a temporary restraining order enjoining the children’s removal from the Blackfeet Reservation. Service of the order was effected on Henry Cobell by mail. Shortly thereafter, Henry Cob-ell filed a petition for a writ of habeas corpus in the federal district court in order to secure the release of his two children. The District Court granted the writ and ordered that the custody of the children be restored to the father in accordance with the Montana state court rulings. The children’s grandmother, Leona Conway, and Tribal Judge John Sharp both appeal the granting of this writ.

Preliminarily, we address the appellants’ argument that the habeas corpus petition was prematurely entertained since the petitioner had not “exhausted” his tribal remedies. That is, it is urged that a principle analogous to the “exhaustion of state remedies” doctrine be applied to federal review of tribal actions. Here it is argued that Henry Cobell could have requested a hearing before Judge Sharp or could have appealed the tribal restraining order to a special tribal appellate court before he sought federal intervention.

Unlike the general habeas corpus statute directed against unlawful state custody 28 U.S.C. § 2254, there is no express exhaustion requirement contained in the specialized writ which is involved in this controversy, 25 U.S.C. § 1303. Nonetheless, we acknowledge thé principle of comity which underlies the exhaustion doctrine, Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and note that the doctrine has been applied in other non-state contexts, e. g., Gusik v. Schilder, 340 U.S. 128, 131-132, 71 S.Ct. 149, 95 L.Ed. 146 (1952) (habeas attack on military judgment). The arguments in favor of extending the exhaustion doctrine to reviews of tribal action under the Indian Bill of Rights, 25 U.S.C. §§ 1301-1303, are well summarized in Dodge v. Nakai, 298 F.Supp. 17, 25 (D.Ariz.1968):

“First, this interpretation [reading an exhaustion requirement into the act] would reconcile the statute with ‘a strong Congressional policy to vest Navajo Tribal Government with responsibility for their own affairs.’ Second, this interpretation would place primary responsibility for the vindication of rights violated by Indian governmental agencies upon the tribal courts. Such responsibility may well enhance the development of an independent Indian judiciáry, thus reconciling the statute with recognized federal policy .... Third, this interpretation would insure that this Court would intervene only in those instances in which local conflicts cannot be resolved locally . . . .”

The reasoning in Dodge v. Nakai has also been recently approved by the Eighth Circuit. In O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1146 (8th Cir. 1973), the court concluded:

“. . . [T]he adoption of the Indian Bill of Rights was not meant to detract from the generally recognized policy, stated in the Williams case, of preserving the ‘authority of tribal courts . . . .’ Williams v. Lee, supra, 358 U.S. [217] at 223, 79 S.Ct. 269, [3 L.Ed.2d 251]. Furthermore, we believe that the policy stated in Williams ‘would support an exhaustion requirement.’ ”

See also McCurdy v. Steele, 353 F.Supp. 629 (D.Utah 1973).

Our recognition of the exhaustion principle in the tribal context is not unqualified, however. We concur with the view expressed by the Eighth Circuit that “exhaustion is not an inflexible requirement.” O'Neal v. Cheyenne River Sioux Tribe, supra 482 F.2d at 1146. The court there further observed:

“A balancing process is evident; that is weighing the need to preserve the cultural identity of the tribe by strengthening the authority of the tribal courts, against the need to immediately adjudicate alleged deprivations of individual rights. Thus this Court must determine whether exhaustion is appropriate in the case at bar.” Id. at 1146.

Indeed, exhaustion was ultimately found to be impractical in Dodge v. Nakai, supra, and McCurdy v. Steele, supra, cases which endorsed the exhaustion principle in general. Likewise, we do not believe that the District Court here erred when it concluded that Henry Cobell lacked meaningful remedy in the tribal courts. First, the restraining order issued by Judge Sharp contained no invitation to participate in tribal appellate processes. Rather, the ex parte order, although designated as “temporary,” spoke with a tone of finality. More significantly, however, is the fact that Judge Sharp testified that he had issued the restraining order to test tribal jurisdiction, and .that only a federal court order would cause him to rescind the action. Under these circumstances, we agree with the District Court’s conclusion that:

“. . . [T]he petitioner had no effective remedies available to him in Tribal Court. . . . That remedies are available in theory, but not in fact, is not synonymous with failure to exhaust remedies. That ineffective and meaningless procedures were available to petitioner does not preclude his seeking a writ of habeas corpus.” C.T. at 101-102.

At the outset we are confronted with the question of mootness although not urged by any of the interested parties. Following the action of Judge Sharp which vacated the Tribal Court’s restraining order and ordered Joan Cobell to release the children to Henry Cobell at his request, the children were obtained by Henry who returned with them to Billings, Montana. The parents were then involved in active litigation before Montana state courts concerning custody. Thus the order of the District Court has been fully performed.

However, the determination of the issue by the District Court and compliance therewith by the interested parties does not necessarily render the cause moot. The underlying conflict still exists. Notice of appeal was filed both by Leona Conway and by the Blackfeet Tribal Court and the Honorable John Sharp, Judge. The District Court noted that it had been informed that an appeal would be taken when his final order was made. The loser in the custody battle in the Montana state courts may still return to the reservation as a sanctuary in the hope that Judge Sharp or his successor might upon reconsideration choose not to follow the existing District Court ruling. Indeed, the brief on behalf of Judge Sharp and the Tribe, in its opposition to any suggestion of mootness, frankly states that “[i]t is much more than merely possible that the childless parent will continue to use the judicial processes available to obtain custody — it is almost a certainty!”

It is clear that the voluntary cessation of the conduct which has been challenged does not necessarily render the case moot. United States v. W. T. Grant Co., 345 U.&. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); So. Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct., 279, 55 L.Ed. 310 (1911); Alton & So. Ry. Co. v. Int’l Ass'n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872 (1972); Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1682 (1970). Here the situation itself, plus the implications of the appellants’ briefs, suggests the tinder which can not only inflame the same controversy but bring the same parties before the court again. In addition, there is a public interest in having the issue now before the court resolved with some hope of finality. It affects the most sensitive of human relationships; it also directly involves the vital jurisdictional harmony of two sovereign entities. The case has not become moot either as a matter of judicial administration or of constitutional dimension under ax’ticle III.

We therefoi’e turn to the primary jurisdictional issue involved in this appeal. The State of Montana’s interest in the welfare of the Cobell children is beyond dispute. The children were domiciled in the state and enrolled in the state public school system when Joan and Henry Cobell began their divoxxe proceedings. Presence, domicile and jurisdiction over the parents are well recognized bases for the assertion of jurisdiction to determine child custody. Restatement (Second) Conflict of Laws § 79 (1971). Even more pertinent is Mont.Rev.Stat. Tit. 21, § 138 (1947) which states:

“In an action for divorce the coux-t or judge may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.”

Thus, by voluntarily invoking the state court’s jurisdiction for divorce purposes, the Cobells clearly submitted the question of their children’s custody to the judgment of the Montana state courts. Moreover, Montana, like the majority of states, views its jurisdiction in custody matters as continuing, Barbour v. Barbour, 134 Mont. 317, 330 P.2d 1093 (1958), and unaffected by the removal of the children from the state, Butts v. Collins, 129 Mont. 440, 289 P.2d 949 (1955).

Notwithstanding the jurisdictional claims of the Montana courts, the appellants argue that the presence of the children on the Blackfeet Reservation gave the Tribal Court a coequal interest in the children’s welfare. Although the possibility that two sovereigns may enjoy concurrent jurisdiction in a custody situation is well recognized, Restatement (Second) Conflict of Laws § 79 (1971), we do not believe that such a situation exists here. First, unlike ¡the State of Montana, the jurisdiction of the Blackfeet Tribal Court is limited and does not extend to the full range of domestic relations incidents. Chapter 3 of the Blackfeet Tribal Law and Order Code explicitly disclaims tribal jurisdiction over marriage, divorce and adoption. The Code defers to state law and state jurisdiction for proceedings in those areas. We interpret this relinquishment of jurisdiction to encompass a surrender of jurisdiction over custody determinations incident to divorce actions as well. The appellants, however, contend that Chapter 3, Section 6 of the Blackfeet Tribal Law and Order Code entitled “Proceedings for the Termination of the Parent-Child Relationship” gave the Tribal Court authority for its action. We disagree. The provision cited by the appellants deals with child neglect and abandonment on the Reservation. Only a strained reading can support application of that provision to this child custody struggle which is characterized by the very opposite of parental neglect. Moreover, nowhere in the detailed Code provisions is there any reference to the child custody determinations coincident with divorce. Rather, Section 6 contains the disclaimer:

“This judicial action is intended primarily for those situations where other judicial remedies appear inappropriate, and is not intended to modify Sections 1, 2 and 3 of Chapter 3 of the Blackfeet Tribal Law and Order Code dealing with the applicability of State laws to marriage, divorce and the determination of paternity.”

We therefore conclude that the Tribal Court lacked jurisdiction to determine the custody of the Cobell children and that the court’s order restraining the children was unlawful. The writ of ha-beas corpus was properly granted.

Judgment affirmed.

DUNIWAY, Circuit Judge

(dissenting) :

I dissent, on two alternative grounds.

First, I am of the opinion that this case is moot. After these appeals were filed, this court denied a stay of the district court’s order on January 3, 1973. On the same day, tribal Chief Judge Sharp entered the order set out in footnote 2 to Judge Trask’s opinion. Judge Sharp’s order does more than vacate the temporary restraining order that he had entered, it affirmatively awards custody of the children to Henry Cobell. We are advised that Henry has in fact taken custody, and that the children are with him in Billings, Montana, off the reservation, where he has been attending college. Henry has thus obtained from Judge Sharp the exact relief that he sought from the United States District Court.

The possibility that the children may at some time be brought back to the reservation is not, in my view, a basis for saying that the action is not moot. I think that the possibility is far too speculative. I cannot believe that Henry, while he has custody, will take them back to the reservation. If the Montana court should award custody to Joan, she would be entitled to take them there. Only if she did so, and then only if Henry were again successful in reversing the Montana court’s order, would there be a possibility of another resort to Judge Sharp’s court. Such a possibility is, to me, too remote to warrant a holding that this case is not moot. If it should occur, the background of the case would be substantially different from what it is now, and Judge Sharp might well, at such a time, refuse to enter an order similar to his order of October 6, 1972. If he should enter another order, it would be in the light of a different factual background from that of this case.

Second, assuming that the case is not moot, I would vacate and remand on the ground that the court should have abstained until Henry had exhausted his remedies in the tribal court.

Regardless of what Judge Sharp may have said about this jurisdiction and his desire to have the question settled or his belief that the question ought to be settled in a Federal Court, I find nothing in the record indicating that Henry could not have appeared and moved to set Judge Sharp's order aside, and nothing indicating that, had he done so, Judge Sharp would have refused to hear him. Moreover, and more important, we do not, in habeas corpus cases, permit the by-passing of state remedies merely because the state law, or something that a state court has said, makes it appear probable that the petitioner’s use of state remedies will not succeed. As we said in Morehead v. State of California, 9 Cir., 1964, 339 F.2d 170, 171: “ ‘Ineffectiveness’ of State relief cannot be established if no attempt is made to obtain that relief.” See also Pate v. Wilson, 9 Cir., 1965, 348 F.2d 900, 901. I would apply the same principle to tribal courts.

In addition, if Henry were unsuccessful in Judge Sharp’s court, he could have appealed. The Blaekfeet Tribal Law and Order Code sets up an Appellate Court (Blaekfeet Tribal Law and Order Code, Ch. 1, Sec. 5). There is nothing in the record to indicate that Henry, if unsuccessful before Judge Sharp, could not have appealed. See Darr v. Burford, 1950, 339 U.S. 200. 208, 70 S.Ct. 587, 94 L.Ed. 761.

For the reasons stated in O’Neal v. Cheyenne River Sioux Tribe, 8 Cir., 1973, 482 F.2d 1140, I would apply the exhaustion of remedies doctrine to habeas corpus cases under 25 U.S.C. § 1303 which involve detention under orders of tribal courts. Those courts will never become the effective instruments for the administration of justice that they are supposed to be if every time one of them issues an order for detention the person detained, or someone acting on his behalf, can immediately inject a federal district court into the proceedings by asking for a writ of habeas corpus. The other two cases cited by Judge Trask, Dodge v. Nakai, D.Ariz., 1968, 298 F.Supp. 17, and McCurdy v. Steele, D. Utah, 1973, 353 F.Supp. 629, are distinguishable. See O’Neal, supra, 482 F.2d at 1146.

If it were clear that Judge Sharp had no jurisdiction, I might reach a different result. But he did have jurisdiction. The Blaekfeet Tribal Law and Order Code, Chapter 3, Domestic Relations, Sec. 6, D, confers upon the Tribal Court “original jurisdiction over petitions to terminate the parent-child relationship when the child involved is present on the Blackfeet Indian Reservation.” This is precisely the jurisdiction that Judge Sharp purported to exercise. Whether he exercised his jurisdiction properly is another question, and as to that question I would require exhaustion of tribal remedies.

I would vacate the order of the district court and remand with directions to dismiss the proceedings as moot. Alternatively, I would vacate and remand with directions to dismiss without prejudice pending exhausting tribal court remedies.

      . Section 1303 reads :
      “The privilege of the writ, of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.”

      . The full text of Judge Sharp’s order reads: “Upon the filing of a Petition by Leona Conway and good cause having been shown;
      “NOW THEREFORE, it is ordered as follows:
      I.
      “That Venetta Lynn Cobell and Rodney Dale Cobell are hereby declared to be without sufficient and adequate supervision ; and,
      II.
      “That said children are presently residing on the Blackfeet Reservation and are Indian offspring, of parents who are enrolled members of the Blackfeet Tribe and legal residents; and,
      III.
      “That said children are suffering emotionally and psychologically because of the uncertainty of their custody and adult supervision ; and,
      IV.
      “That the Court as a friend and protector of these children deems it necessary under the circumstances to assume the care, custody and control of the children, by virtue of its jurisdiction, until a hearing may be held after investigation by the Welfare Department; and,
      V.
      “That said children be, and they are hereby ordered to be under the care, custody and control of this Court; and,
      VI.
      “That the children are not to be removed from the Blackfeet Reservation by anyone without further order of this Court; and,
      VII.
      “That a copy of this order be served personally or through the mail upon the parents, Henry Cobell and Joan Cobell; and,
      VIII.
      “That the Welfare Department is ordered to provide for these children until further order of this Court, and to make periodic reports to this Court that it may request; ; [sic] and ;
      IX.
      “That this Order will be temporary until this Court is satisfied that Montana State District Court has made a final determination upon the question of custody and until this Court is further satisfied that custody provisions are accepted and for the best, interests of said children.
      DATED this 6th day of October, 1972.” C.T. at 4-5.

      . On January 3, 1973, Judge Sharp issued an “Order to Vacate,” as follows :
      “Action and compliance [sic] with the December 15, 1972, Order of the United States District Court for the District of Montana and the January 3, 1973, Order of the United States Court of Appeals for the Ninth Circuit.
      “IT IS ORDERED that the temporary restraining order of October 6, 1972, is hereby vacated;
      “IT IS FURTHER ORDERED that the custody of the two (2) children, Venetta Lynn Cobell and Rodney Dale Cobell, is hereby awarded to their father, Henry Cobell;
      “IT IS FURTHER ORDERED that Joan Cobell release the children to nenry Cobell at his request.
      “Dated this 3rd day of January, 1973.
      /s/ John P. Sharp
      JOHN P. SHARP, Chief Judge for the Blackfeet Tribe.”
      Brief for Appellants at Appendix A.

      . See n. 1, supra.

      . The Blackfeet Tribal Law and Order Code states at Chapter 3, as follows:
      “Section 1, Marriages.
      “All members of the Blackfeet Indian Tribe shall hereafter be governed by State law and subject to State jurisdiction with' respect to marriages hereafter consummated. Common law marriages and Indian custom marriages shall not be recognized-within the Blackfeet Reservation.
      “Section 2, Divorces.
      “All divorces must be consummated in accordance with the State law of Montana. Indian custom divorces are from this time on illegal and will not be recognized as lawful divorces on the Blackfeet Reservation.”


source: Caselaw Access Project

author: CHOY, Circuit Judge:

license: Public Domain

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. CONSOLIDATED FREIGHTWAYS, INC., a corporation, Defendant-Appellee. James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. GIANT SNACKS COMPANY, a corporation, Defendant-Appellee.
    Nos. 72-2405, 73-2016.
    United States Court of Appeals, Ninth Circuit.
    Aug. 19, 1974.

      Harold C. Nystrom (argued), Atty., U. S. Dept, of Labor, Washington, D. C., for appellants.
    David C. Landis (argued), of Gearin, Hollister & Landis, Portland Or., for ap-pellee in 72-2405.
    Wm. J. Meeske (argued), of Latham & Watkins, Los Angeles, Cal., for appel-lee in 73-2016.
    Before CHOY and WALLACE, Circuit Judges, and PALMIERI, District Judge.

       The Honorable Edmund L. I>almieri, Senior United States District Judge for the Southern District of New York, sitting by designation.

   CHOY, Circuit Judge:

These are consolidated appeals brought by the Secretary of Labor. In each case employees of the appellees had their wages garnished one or more times prior to July 1, 1970. When their wages were again garnished after that date for different debts, they were dismissed from employment pursuant to company rules permitting discharge for multiple wage garnishments.

The Secretary of Labor brought suit to reinstate the employees claiming the discharges violated § 304 of Title III of the Consumer Credit Protection Act, 15 U.S.C. § 1674. It provides that:

No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.

The basis of the Secretary’s complaint was that only garnishments which occur after Title Ill’s effective date of July 1, 1970 may be taken into account for purposes of § 304. So viewed, the discharges here were occasioned by garnishments for but a single indebtedness and thus prohibited by § 304. The district courts rejected the Secretary’s claim in holding that pre-July, 1970 garnishments may also be considered. We affirm.

Jurisdiction

Appellee Consolidated Freight-ways challenges the district court's jurisdiction. The Secretary had asserted there was jurisdiction under 28 U.S.C. § 1345 which supplies jurisdiction over all actions “commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.” The only jurisdictional issue which concerns us here is the presence of an express congressional grant of power to sue, and the Secretary argues that § 306 of Title III, mandating that the Secretary of Labor “shall enforce the provisions of this subchapter,” is such a grant.

Consolidated responds that § 306 cannot be taken literally. Under § 304 criminal penalties are prescribed for its willful violation; no criminal penalties attach to violation of Title Ill’s other substantive enactment, § 303, which limits the proportion of a worker’s wages that may be garnished. From this, Consolidated concludes that the scheme of the Act was impliedly for exclusive criminal penalties for § 304 violations and civil enforcement of § 303.

We do not agree. Section 306 uses the plural “provisions of this subchap-ter.” Since there are only two substantive sections in Title III, that must mean the power to sue extends to both §§ 303 and 304. The legislative history confirms that conclusion. The Senate version of the Consumer Credit Protection Act had no restrictions on garnishment, but the House version contained the predecessor to § 303 and a section prohibiting discharge for only one garnishment. In each of these provisions was a separate subsection authorizing the Secretary to civilly enforce. See 114 Cong.Rec. 1856 (1968). In what was a drafting simplification — as indicated by the lack of comment in the Conference Report and the use of the term “sub-chapter” in § 306 — the separate powers were consolidated by the Conference Committee in the final version of the Act.

Section 306, therefore, empowers the Secretary to sue in this class of discharge cases, and that is all that is necessary for § 1345 jurisdiction here.

Effect of Pre-July, 1970, Garnishments

We turn now to the central issue in this case: whether an employer may consider pre-July, 1970 garnishments under § 304. In prohibiting discharge of an employee by reason of a garnishment “for any one indebtedness,” we think the language of the statute clearly comtemplates that an employer may consider other garnishments for different debts regardless of whether they occurred before or after Title Ill’s effective date. See Brennan v. General Telephone Co., 488 F.2d 157, 158 (5th Cir. 1973). In the legislative background to Title III, there is no indication that Congress intended any differently. Title III was a controversial portion of the Consumer Credit Protection Act. See 114 Cong.Rec. 1830-41, 14388 (1968). If Congress had intended to wipe the slate clean of pre-July, 1970 garnishments, that surely would have been noticed in the debates or reports on the bill. Yet Congress nowhere expressed what the Secretary now urges.

Still, the Secretary argues that general legislative statements pointing to the harshness of garnishment and the need for a congressional remedy are a sufficient index that Congress wished § 304 to accomplish a garnishment amnesty. However, these statements, reflective of the rhetoric of debate, are equally consistent with the view that Congress chose to adopt a compromise guaranteeing job security to an employee with one indebtedness and consequent garnishment, but not outlawing discharges premised on garnishment altogether. In any case, the statements are far too general to weigh for a sweeping result inconsistent with the plain wording of the statute. If it had been desired to grant this supposed amnesty, it would have been reasonable for Congress to make the wish explicit, and not to leave such an easily accomplished end to be gleaned from the vague generalized objectives of the legislation.

In light of the statute’s plain meaning, it would require very convincing reasons for us to adopt the Secretary’s interpretation. None of the reasons he offers is of such a convinving character.

The Secretary relies primarily on a rather ingenious use of statutory definitions. Since Title Ill’s definition of “garnishment” in § 302 became effective only when Title III itself came into force, he argues, there were no “garnishments” prior to July 1, 1970. But this misconceives the purpose of statutory definitions. They are normally not keyed to a cutoff date like regulatory provisions. Moreover, to accept this contention would mean an employer could dismiss a worker for a single pre-July, 1970 garnishment because it was not a “garnishment” within the meaning of the Act.

The Secretary also points to his administrative interpretations of § 304 in accord with his position here and urges on us the notion that such interpretations are to be given judicial deference. Granting that administrative expertise warrants that courts give some weight to agency interpretations, “[t]he deference owed to an expert tribunal cannot be allowed to slip into judicial inertia. . . . ” American Shipbuilding Co. v. NLRB, 380 U.S. 300, 318, 85 S.Ct. 955, 967, 13 L.Ed.2d 855 (1965).

The weight of such [an administrative] judgment in a particular case will depend on the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.

Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944). The Secretary’s interpretation is simply not persuasive enough to outweigh the clear import of § 304.

Finally, our reading of § 304 does not give it an impermissible retroactive effect. “A statute is not made retroactive merely because it draws upon antecedent facts for its operation.” Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 157, 67 L.Ed. 332 (1922). Counting pre-July, 1970 garnishments permits an employer to do what was allowed prior to Title III —base job retention on the avoidance of garnishments — though limiting that right by the new prerequisite of a previous debt and garnishment. Indeed, to rule an employer cannot consider pre-Ti-tle III garnishments would accord the statute an even greater retroactive effect by negating the meaning of events that had some effect before the statute came into force. See Brennan v. General Telephone Co., 488 F.2d at 159.

We therefore agree with all but one of the courts that have confronted this issue and hold that § 304 permits consideration of pre-July, 1970 garnishments.

Affirmed.

      . 15 U.S.C. § 1676.

      . 15 U.S.C. § 1673.

      . H.R.Rep.No.1397, 90th Cong., 2d Sess. 31-32 (1968).

      . See H.R.Rep.No.1040, 90th Cong., 1st Sess. 20-21, 31 (1967); 114 Cong.Rec. 1839 (remarks of Cong. Reuss), 14388 (remarks of Cong. Sullivan) (1968).

      . E. g., H.R.Rep.No.1040, supra note 4, at 7, 8, 9-11, 20-21.

      . Brennan v. General Telephone Co., 488 F.2d at 158.

      . 15 U.S.C. § 1672.

      . Wage & Hour Administrator, opinion letter No. 1136, Oct. 26, 1970, published at 2 CCH Lab.L.Rep. — Wages & Hours If 30,703; Wage & Hour Administrator, opinion letter No. 1130, Oct. 8, 1970, published at 2 CCII Lab.L.Rep. — Wages & Hours jf 30,697.

      . Accord, Simpson v. Sperry Rand Corp., 488 F.2d 450 (5th Cir. 1973); Brennan v. General Telephone Co., 488 F.2d 157 (5th Cir. 1973); Brennan v. H. K. Porter, Inc.,, Civ. Action No. 2915-II (S.D.W.Va., May 23, 1974); Brennan v. Housing Authority, 21 Wage & Hour Cases 539 (W.D.Mo.1973). Contra, Nunn v. City of Paducah, 21 Wage & Hour Cases 308 (W.D.Ky.1973).


author: DUNIWAY, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. SILVERGATE DISTRICT LODGE NO. 50, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, Defendant and Third Party Plaintiff-Appellee, v. David L. CHAMBERS, Intervenor-Appellee, Al J. Baffone and A. A. Denton, Applicants for Intervenors-Appellants.
    Nos. 72-2657, 72-3166, 73-2908.
    United States Court of Appeals, Ninth Circuit.
    Sept. 13, 1974.

      Richard D. Prochazka (argued), Dom-nitz & Prochazka, San Diego, Cal., for Baffone.
    Stephen Reinhardt (argued), Bodle, Fogel, Julber & Reinhardt, Los Angeles, Cal., for Local 50.
    John T. Popko (argued), Greer, Pop-ko, Miller & Foerster, San Diego, Cal., for intervenor-appellee.
    Michael H. Stein (argued), Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DUNIWAY and HUFSTEDLER, Circuit Judges, and LUCAS, District Judge.

       The Honorable Malcolm M. Lucas, United States District Judge for the Central District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

These are consolidated appeals arising from an action brought by the Secretary of Labor against Silvergate District Lodge No. 50, International Association of Machinists and Aerospace Workers, AFL-CIO (Silvergate) under Title IV of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U. S.C. § 481 et seq. In No. 72-2657, Baf-fone and Denton appeal from an order denying their application to intervene in the action. In No. 72-3166, Baffone appeals from a judgment in the case. In No. 73-2908, Baffone appeals from the final judgment and from an order denying his second application to intervene.

1. The Facts

On December 1, 1970, and January 5, 1971, Silvergate held elections for President-Directing Business Representative (among other offices) and Baffone was elected, defeating one Chambers. Chambers protested the conduct of the election to the International Union and, after exhausting his internal union remedies, filed a complaint under Title IV of the LMRDA 29 U.S.C. § 482(a), with the Secretary of Labor. The Secretary investigated the charges and determined that there was probable cause to believe that violations of the Act had occurred during the election. The Secretary then filed this action in the district court seeking to have the election of Baffone set aside (as well as that of Denton as the Secretary-Treasurer, see note 1, supra) and asking the district court to order new elections.

After the filing of the Secretary’s suit, the International Union imposed a trusteeship on Silvergate. Consequently, Baffone lost control of the affairs of Silvergate and was no longer able to direct the defense of the Secretary’s action. On June 29, 1972, Baffone filed a motion under F.R.Civ.P., Rule 23(a)(2), seeking to intervene as a party defendant to defend the validity of the election. On August 7, 1972, after holding a hearing, the district court entered an order denying the motion. No. 72-2657 is Baffone’s appeal from that order.

After Baffone’s motion to intervene was denied, the Secretary and Silvergate (still in Trusteeship) settled the action by entering into a stipulation for judgment which provided for the setting aside of the January 1971 election of Baffone and for the holding of a rerun election under the supervision of the Secretary. On December 11, 1972, the district court entered a “judgment” pursuant to that stipulation. See 29 U.S.C. § 482(c). No. 72-3166 is Baffone’s appeal from that judgment.

On March 20, 1973, the Secretary conducted a rerun election and this time Chambers defeated Baffone. The Secretary filed in the action a certification of the results of the election. See 29 U.S. C. § 482(c). Baffone moved' to intervene in this proceeding as a party defendant alleging that the election was fraught with irregularities. The district court on July 31, 1973, entered an order denying the motion to intervene and entered a final judgment upholding the certification. In No. 73-2908, Baf-fone appeals from the order and the judgment.

2. The orders denying intervention are appealable.

Where a party is entitled to intervene as a matter of right, an order denying intervention is appealable. Reich v. Webb, 9 Cir., 1964, 336 F.2d 153, 156. On the other hand, where allowing intervention is within the court’s discretion, ordinarily an order denying leave to intervene is not appealable. See, e. g., Burger Chef Systems, Inc. v Burger Chef of Michigan, Inc., 6 Cir., 1964, 334 F.2d 926. See also Hodgson v. United Mine Workers of America, 1972, 153 U.S.App.D.C. 407, 473 F.2d 118, 127, n. 40.

We need not decide, however, which type of intervention Baffone sought. Even in a case where intervention is permissive, an order denying leave is applicable if the intervenor has “no remedy to litigate [his] question, except by intervening.” State of Washington v. United States, 9 Cir. 1936, 87 F.2d 421, 434. See also People of the State of California v. United States, 9 Cir., 1950, 180 F.2d 596, 600. We think that the present case falls within that rule. Judgments in the case directly affect Baffone’s claimed rights which grow out of the contested election, and, as we will show, there is no other forum in which he could litigate his claims. The two orders denying Baffone’s motions to intervene are appealable.

3. Baffone has no standing to appeal from the judgments.

Having been denied leave to intervene, Baffone never became a party to the action. Under 29 U.S.C. § 482(d), the December 11, 1972 and July 31, 1973 judgments are appealable. But Baffone has no standing to appeal from them. The rule is an old one. See Ex Parte Cutting, 1876, 94 U.S. 14, 24 L.Ed. 49. It is arguable that we should depart from it here because, if the orders denying intervention are reversed, it would be necessary to reverse the judgments in order to afford Baffone full relief. We need not decide that question, however, because we hold that the orders denying intervention must be affirmed. We treat the appeals from the judgments as protective or precautionary only.

4. The case is not moot.

Counsel for Silvergate suggests that the case is moot. Counsel for the other appellees do not. The bases for the suggestion are (1) that the election under the Secretary’s supervision has been held, Chambers was elected, and he has served his term, and (2) that at the end of the term another, unsupervised, election has been held. These events, however, are the result of the inevitable delays that arise from litigation. The Supreme Court has been most reluctant to allow intervening elections which have been held because of such delays to moot properly raised issues. See Wirtz v. Bottle Worker’s Ass’n, 1968, 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705. While that case is distinguishable from the case at bar, we think that, in principle, it controls the mootness question here. The questions presented by Baffone are important, and unless decided here, they will never be decided.

5. Baffone’s claimed right to intervene.

(a) The proceeding leading to setting aside the election.

Baffone’s primary contention is that he was entitled to intervene as of right under Rule 24(a)(2) F.R.Civ.P. because he had a vital interest in the litigation and because his interest was not adequately represented by either party. He argues that this position is supported by the LMRDA, by the cases that have interpreted that statute, and by the due process clause of the Constitution. The Secretary relies entirely upon statutory interpretation to support his contention that intervention on the side of the union in suits brought under 29 U.S.C. § 482(b) is not permitted.

Baffone’s contention that the intervention guidelines of Rule 24 control the issue at bar is supported by the only other circuit court case that has faced the issue of the permissibility of intervention as a defendant in a case like this one. Hodgson v. Carpenters Resilient Flooring Local U. No. 2212, 3 Cir. 1972, 457 F.2d 1364, 1368. There the Third Circuit held that “[t]he status of an intervenor must, under Trbovich [Trbovich v. Mine Workers, 1972, 404 U.S. 428, 92 S.Ct. 630, 30 L.Ed.2d 686], be determined by standards applicable under Fed.R.Civ.P. 24(a).” We do not agree.

The Federal Rules of Civil Procedure do not “abridge, enlarge or modify any substantive right,” 28 U.S.C. § 2072, nor do they enlarge the jurisdiction of the federal courts. See United States v. Sherwood, 1941, 312 U.S. 584, 589-590, 61 S.Ct. 767, 85 L.Ed. 1058. “Thus the basic question as to the substantive statutory right to intervene before . a district court . . . should primarily be one of statutory interpretation in light of intervention principles.” 3B Moore’s Federal Practice § 24.06[3.-1] at 24-111 (1974). In considering the right to intervene under the LMRDA in Trbovich, supra, the Supreme Court did not discard these principles. In Trbo-vich the Court carefully scrutinized the intent of Congress in adopting the LMRDA and permitted intervention there only when it was convinced that intervention would not frustrate the objectives of the statute. Id., 404 U.S. at 536, 92 S.Ct. 630. The Court turned to Rule 24 only after it had considered the statutory bars to intervention. Therefore, we conclude that we must first decide whether intervention of the sort requested here is permitted by the statute before we can determine whether the applicable standards under Rule 24 are relevant. See Hodgson, v. United Mine Workers of America, supra, 473 F.2d at 127. To do otherwise, as is suggested by Baffone, would be to put the cart before the horse, something that should not be done even in this age of the automobile.

Baffone advances three arguments to support his claimed right to intervene to oppose the Secretary’s action to set aside the election. First, he contends that in Trbovich the Supreme Court recognized the right of the individual union member to have his personal interest adequately represented in a suit to set aside a union election. Second, he asserts that the LMRDA reflects the intent of Congress to have the issue of the validity of union elections subject to viable judicial review which, he argues, necessitates the intervention of all interested parties. Third, he asserts that he has no other forum in which to defend his right to hold the office that he won in what he claims to have been a fair election. Therefore, the argument runs, to deny him the right to intervene is contrary to the intent of Congress to allow for a vigorous defense of the election’s validity, and is unconstitutional in that it deprives him of property without due process. These contentions will be discussed seriatim.

(1) The argument based upon Trbo-vich.

In Trbovich the Supreme Court held that “in a post-election enforcement suit, Title IV imposes no bar to intervention by a union member, so long as that intervention is limited to the claims of illegality presented by the Secretary’s complaint.” (Trbovich v. Mine Workers, supra, 404 U.S. at 537, 92 S.Ct. at 636, emphasis added) A union member was permitted to intervene on the side of the Secretary, but limited to supporting only those claims deemed meritorious by the Secretary. The intervenor was not permitted to assert additional claims. Thus the Court further emphasized the need to limit intervention to situations that are compatible with the Congressional intent embodied in the LMRDA. Trbovich is not an unconditional recognition of the rights of individual union members to protect their personal interest by intervening in suits brought by the Secretary under Title IV. Rather, Trbovich stands for the narrow proposition that intervention on the side of the Secretary for the limited purpose of advancing the claims of the Secretary is not barred by Title IV and for the more general proposition that all other claims of intervention are subject to the limitations imposed by the statute.

(2) The intent of Congress.

On at least three occasions the Supreme Court has carefully considered the intent of Congress in enacting the LMRDA Trbovich v. Mine Workers, supra, Wirtz v. Bottle Blower’s Ass’n, supra; Calhoon v. Harvey, 1964, 379 U.S. 134, 85 S.Ct. 292, 13 L.Ed.2d 190. In Bottle Blower’s the Court noted that “[t]he extensive, and vigorous debate over Title IV manifested a conflict over the extent to which governmental intervention in this most crucial aspect of internal union affairs [elections] was necessary or desirable.” 389 U.S. at 471, 88 S.Ct. at 648. In enacting Title IV, Congress was attempting to accommodate two important interests: the vital public interest in maintaining free and democratic union elections, and the equally vital interest in allowing unions to run their own elections and to resolve their own internal controversies. Id. at 471-476, 88 S.Ct. 643. In order to vindicate these two interests, Congress enacted a statutory scheme whereby

“Title IV . sets up an exclusive method for protecting Title IV rights, by permitting an individual member to file a complaint with the Secretary of Labor challenging the validity of any election because of violations of Title IV. Upon complaint the Secretary investigates and if he finds probable cause to believe that Title IV has been violated, he may file suit in the appropriate district court. It is apparent that Congress decided to utilize the special knowledge and discretion of the Secretary of Labor in order best to serve the public interest. Cf. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 242, [79 S.Ct. 773, 3 L.Ed.2d 775]. In so doing Congress . . . decided not to permit individuals to block or delay union elections by filing federal-court suits for violations of Title IV. Reliance on the discretion of the Secretary is in harmony with the general Congressional policy to allow unions great latitude in resolving their own internal controversies, and where that fails, to utilize the agencies of Government most familiar with union problems to aid in bringing about a settlement through discussion before resort to the courts.” Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. at 296.

In Trbovich the Court looked to these dual Congressional concerns to determine whether or not the Act barred intervention. Trbovich v. Mine Workers, supra, 404 U.S. at 530-536 (part I), 536-537 (part II), 92 S.Ct. 630. The Court determined that “Congress made suit by the Secretary the exclusive post-election remedy for two principal reasons: (1) to protect unions from frivolous litigation and unnecessary judicial interference with their elections, and (2) to centralize in a single proceeding such litigation as might be warranted with respect to a single election.” Id. at 532, 92 S.Ct. at 633. The Court stated that Congress was not opposed to participation by union members in the litigation, “so long as that participation did not interfere with the screening and centralizing functions of the Secretary.” Id. at 532-533, 92 S.Ct. at 633. The Court held that intervention on the side of the Secretary, limited to support of the Secretary’s contentions, did not interfere with the screening and centralizing functions of the Secretary. Moreover, the Court determined that such intervention would not subject the union to any intrusion into its affairs not initially caused by the Secretary’s decision to bring suit.

Intervention on the side of the union presents a different situation: it interferes with the Secretary’s functions under the statute and it is not in the union’s interest. The Secretary’s goal is to ensure fair and democratic union elections. In the performance of this duty, “the Secretary may attempt to settle the matter without any lawsuit; the objective is not a lawsuit but to ‘aid in bringing about a settlement through discussion before resort to the courts.’ Cal-hoon v. Harvey, supra.Wirtz v. Bottle Blowers Ass’n, supra, 389 U.S. at 472, 88 S.Ct. at 649. When the Secretary must resort to a lawsuit, the burden upon him and upon the union greatly increases. The union is confronted with defense of the internal operation of its elections and inevitably it must publicly expose the scars of its internal warfare. Because the overriding purpose of Title IV is to ensure democratic elections, when the union and the Secretary agree to take mutual action in pursuit of that aim, e. g., to hold new supervised elections, the interests of the act in providing a judicial remedy are satisfied.

If an incumbent officer can intervene as a matter of right to'oppose the Secretary’s action to set aside an election, a peaceful settlement of the election dispute will almost never be attainable. Even if the Secretary and the union agree, as they did here, that new elections should be held, they will still have to litigate this issue with the intervenor. Understandably, the incumbent officer’s interest in the lawsuit will be the preservation of his own position. Because 29 U.S.C. § 482(a) provides that the election is presumed to be valid until a final order to the contrary is issued, the incumbent officer will be able to delay the litigation by contesting every possible issue. To allow the incumbent officer to so defend the validity of the elections would severely undermine the Congressional interest in expediting the holding of democratic union elections.

We are not persuaded by the objection to this reasoning that under normal circumstances the incumbent officer is able to control the union and thus direct the defense of the suit in a manner designed to promote his personal interest in staying in office. In such a situation, the incumbent has at least a legitimate claim that his interest and that of the Union coincide because it is the “union’s” decision to defend the validity of the elections. The only genuine interest that the union has in the lawsuit is the defense of the integrity of its elections. To argue that the incumbent’s ability to abuse his position and circumvent the interests of the statute in one situation gives the incumbent the right to advance his own personal interests against those of the Secretary and the union in all cases is to fly in the face of the statutory purpose.

Congress drafted Title IV to provide that the only method of challenging elections is by a lawsuit brought by the Secretary “against the labor organization as an entity.’^ 29 U.S.C. § 482(b) emphasis added. The only purpose of the suit is to secure enforcement of the Act. Congress did not intend that the action be a forum for the resolution of internal union disputes nor for the incumbent to seek to vindicate his own personal interests. The incumbent officer has no legitimate interest in the lawsuit apart from those interests represented by the union as an entity, i. e., to preserve the fairness of the union’s elections. ^ See Wirtz v. Teamsters Ind. & Allied Emp. U. Local No. 73, supra, 257 F.Supp. at 788. Therefore, 29 U.S.C. § 482(b) bars intervention by an incumbent officer as a party defendant.

(3) The due process argument.

We do not agree with Baffone that our construction of the statute deprives him of property, the right to hold his office, without due process, because it leaves him without a forum to advance his claims.

Baffone’s complaint that the union in trusteeship does not adequately represent his interests is properly cognizable in another forum. The office that he held was created by the union, and he held it upon the conditions prescribed by the union. His first remedy, therefore, when the trusteeship was imposed, was the internal procedures of the union. This remedy he utilized, but without success.

Title III of the LMRDA, 29 U.S.C. § 461 et seq. provides another remedy. Baffone could have attacked the trusteeship under § 464(a). This action is not the proper forum for attacking the trusteeship or asserting Baffone’s claimed rights to office, or to its perquisites, if any.

Moreover, Baffone had a remedy, albeit not a judicial remedy, when the Secretary was investigating to determine whether this action should be brought. Under the statute the Secretary is obligated to investigate charges of statutory violations before filing a complaint. Baffone had an opportunity to refute the charges of election irregularities during this investigation. This is the only forum that Congress has provided for union members to challenge the validity of elections, Calhoon v. Harvey, supra, 379 U.S. at 140, 85 S.Ct. 292, and Baffone, as the head of the union during the investigation, had ample access to this forum.

Finally, neither the Secretary nor the court deprived Baffone of his office. At the conclusion of the litigation, Baf-fone was able to present his case to the union members. It was their votes that ultimately ousted him from office.

(b) The Certification Proceeding.

Baffone was not entitled to intervene as a party defendant to contest the validity of the rerun election that was held under the Secretary’s supervision pursuant to the court’s order. In Calhoon the Court held that the exclusive post-election remedy under the Act was a suit brought by the Secretary, In Trbovich the Court held that this exclusivity was provided for to protect unions from frivolous litigation and unnecessary judicial interference with their affairs. Trbovich v. Mine Workers, supra, 404 U.S. at 532, 92 S.Ct. 630. In Trbo-vich the Court also held that no intervention in the Secretary’s screening function was permissible because “Congress intended to insulate the union from any complaint that did not appear meritorious to both a complaining member and the Secretary.” Id. at 537, 92 S.Ct. at 635.

In the case before us, Baffone complained to the Secretary of irregularities in the rerun election and the Secretary rejected his complaints as unmerito-rious. We agree with Judge Kalodner’s observation in dissent in Carpenters that this is precisely the type of claim that the Congress intended to be barred from the courtroom when it made the Secretary’s action the exclusive means of challenging election returns. Hodgson v. Carpenters Resilient Flooring Local U. No. 2212, supra, 457 F.2d at 1371-1372. Baffone has no right to circumvent the Secretary’s function by raising by way of intervention challenges to an election that were deemed unmeritorious by the Secretary. Trbovich v. Mine Workers, supra. The district court properly denied appellant’s motion to intervene as a party defendant to contest the Secretary’s certification of the election results.

In No. 72-2657, the order appealed from is affirmed as to Baffone. The appeal of Denton is dismissed as moot.

In No. 72-3166, the appeal is dismissed.

In No. 73-2908, the order denying intervention is affirmed. The appeal from the judgment is dismissed.

      . After the denial of Denton’s motion to intervene, the district court dismissed with prejudice the Secretary’s complaint with respect to Denton’s December 1970 election. Denton’s appeal is therefore moot.

      . District courts have ruled on motions to intervene in similar situations in at least three reported decisions. See Shultz v. United Steelworkers of America, W.D.Pa., 1970, 312 F.Supp. 1044 (denying the right to intervene to challenge the terms of the Secretary-union’s stipulation for a new election); Shultz v. United Steelworkers of Am. AFL-CIO-CLC (Dist. 19), W.D.Pa., 1970, 312 F.Supp. 538, 539 (allowing intervention by the incumbent officer to defend the validity of the election); Wirtz v. Teamsters Industrial & Allied Emp. U. Local No. 73, N.D.Ohio E.D., 1966, 257 F.Supp. 784, 788-790 (denying the incumbent officers the right to intervene to defend their election).

      . The facts in Carpenters are similar to those in No. 73-2908 here, i. e., the issue concerned the availability of intervention in an action brought by the Secretary to certify the results of an election that he had supervised. Though the court in Carpenters opined that Rule 24 applied to all intervention situations under the Act, it specifically narrowed its allowance of intervention to certification proceedings brought by the Secretary. See Hodgson v. Carpenters Resilient Flooring Local U. No. 2212, supra, 457 F.2d at 1368.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alfred Delgado ARELLANES, Defendant-Appellant.
    No. 73-2671.
    United States Court of Appeals, Ninth Circuit.
    Sept. 24, 1974.

      Stephen M. Chase, Huntington Beach, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
   OPINION

Before TRASK and GOODWIN, Circuit Judges, and ENRIGHT, District Judge.

PER CURIAM:

Alfred D. Arellanes appeals from the refusal of the trial court to direct a commitment under the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. §§ 4251-4255, instead of committing him to the custody of the Attorney General.

The appellant had entered a plea of guilty to count one of a three-count indictment, which charged him with conspiring with a codefendant named Arias to distribute heroin. Overt acts included delivery of 1,037 grams of heroin and conspiring to effect future delivery of 1 kilogram of heroin. The validity of the guilty plea and conviction are not at issue.

After the plea, appellant was sent to Terminal Island by the court for a 30-day study to determine his eligibility for commitment and treatment pursuant to Title II of NARA. The conclusion of the staff after study was that appellant was an addict who would benefit from treatment under NARA.

Between the date of the study and the final sentencing of the appellant he had testified on behalf of his codefendant and in the judgment of the trial court had committed perjury in doing so. For this announced reason and perhaps for other unannounced reasons the court refused to sentence him under NARA. Appellant contends that the favorable report of NARA makes it mandatory upon the court to sentence him under it. We disagree.

Section 4253 provides in pertinent part:

“(a) Following the examination [authorized by NARA], if the court determines that an eligible offender is an addict and is likely to be rehabilitated through treatment, it shall commit him . . . for treatment if
“(b) If, following the examination . the court determines that an eligible offender is not an addict, or is an addict not likely to be rehabilitated through treatment, it shall impose such other sentence as may be authorized or required by law.”

In our judgment the matter is clearly left to the discretion of the trial court. We find no abuse in the court’s manner of exercise of that discretion. United States v. Smothers, 451 F.2d 995, 996-997 (9th Cir. 1971).

We do not find it necessary to reach the arguments posed by the Government that under sections 4251(f)(2) and 4251(f)(4) the appellant was not an “eligible offender.”

Judgment affirmed.

       Honorable William B. Enriglit, United States California, sitting by designation. District Judge for the Southern District of


author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie Mose HORTON, Defendant-Appellant.
    No. 74-1178.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 11, 1974.
    Arnette R. Hubbard, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Walter Jones, Jr., Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and CUMMINGS, Circuit Judge.
   CUMMINGS, Circuit Judge.

After a bench trial, defendant was found guilty on Count I of a 2-count indictment charging him with knowingly receiving firearms in commerce as a convicted felon in violation of 18 U.S.C. App. § 1202(a)(1). Count I alleged that defendant had been previously convicted of felonies in the Northern District of Illinois and the Western District of Michigan and subsequently received in commerce a Charles Daly shotgun with the serial number 1888. A four-year probation sentence was imposed by the court below.

The evidence showed that on November 8, 1971, Internal Revenue Service Special Agents Di Pasquale and Johnson were admitted into defendant’s apartment upon presenting their identification cards. Di Pasquale told defendant that it was the agents’ duty to investigate criminal tax fraud. Di Pasquale read the following warning to defendant:

“As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue Laws and related offenses.
“In connection with my investigation of your tax liability, I would like to ask you some questions. However, first I advise you under the Fifth Amendment of the Constitution of the United States, I cannot compel you to answer any question or submit any information if such answers or information might tend to incriminate you in any way.
“I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceedings which may be undertaken.
“I advise you further that you may, if you wish, seek the assistance of an attorney before responding.”

Defendant denied there was any tax fraud and then identified his 1964-1970 income tax returns. He said his source of income was from gambling, including cards, policy and numbers.

Di Pasquale then asked defendant what his hobbies were, and he replied that he hunted birds in the Cedar Rapids, Iowa, area with a 20-gauge shotgun. Di Pasquale asked to examine the gun, and defendant produced a 20-gauge Charles Daly shotgun with the serial number 1880 or 788.

After Di Pasquale handed the shotgun back to defendant, he said he kept as many as five weapons at once. Di Pasquale asked defendant about his involvement in narcotics, but he declined to discuss that.

Thereafter, Di Pasquale informed an Assistant United States Attorney what happened at the interview and was advised that “there was sufficient amount of evidence for a search warrant.”

On November 9, 1971, a United States Commissioner issued an arrest warrant and a search warrant with respect to defendant and his premises. Di Pasquale then accompanied three other agents to defendant’s home and told him that he was under arrest for a federal firearms violation and that a warrant had been issued. One of the agents told defendant of his constitutional rights, and then the agents started to search the apartment. Di Pasquale found the Charles Daly shotgun in a bedroom between two dressers and seized the weapon.

Defendant argues that the search warrant was invalid on two grounds and that, therefore, the district court erred in denying his motion to suppress the shotgun as evidence. He first argues that the affidavit accompanying the search warrant was deficient. Secondly, he contends that the information that led to the issuance of the search warrant was unconstitutionally obtained because the warnings given by Special Agent Di Pasquale at the November 8 visit during which defendant produced his shotgun were inadequate.

The affidavit in support of the search warrant outlined the November 8 visit to defendant’s apartment and described the shotgun in question. It failed to mention that defendant had previously been convicted of a felony, so that the possession of the shotgun would be in violation of 18 U.S.C. App. § 1202(a)(1). However, at the same time the affidavit for the search warrant was presented to the United States Commissioner, Di Pasquale presented a sworn complaint to the Commissioner which showed that defendant had been convicted of felonies in the Northern District of Illinois on February 15 and April 3, 1957, resulting in 5-year and 10-year sentences respectively upon guilty pleas. The Commissioner filed an affidavit that when, as here, a complaint, arrest warrant and search warrant with supporting affidavits are presented to him at the same time by an affiant, the Commissioner “would first swear the affiant and then read all the documents together.” In addition, Di Pasquale filed an affidavit which verified that on the occasion in question the Commissioner followed his normal practice of reading all the documents before issuing the warrants. We agree with the district judges who passed on defendant’s first and second suppression motions that the Commissioner could properly consider the affidavit and complaint together, that he did so, and that there was, therefore, probable cause to issue the search warrant. United States v. Bozza, 365 F.2d 206 (2d Cir. 1966); United States v. Nolan, 413 F.2d 850, 853 (6th Cir. 1969). We are reinforced in our conclusion because defendant did not attempt to cross-examine either the Commissioner or Di Pasquale regarding the affidavits, nor does he attack their contents. Our decision in United States v. Whitlow, 339 F.2d 975 (7th Cir. 1964), is not to the contrary, for it did not involve the propriety of a magistrate’s contemporaneous consideration of information in sworn documents other than the affidavit for the search warrant before issuing the warrant.

Defendant next argues that his motion to suppress should have been granted because Di Pasquale was “acting as a general criminal investigative agent” of the Government and yet only warned defendant that one of his functions was to investigate possible criminal violations “of the Internal Revenue Laws and related offenses,” and that he was planning to ask defendant some questions in connection with the investigation of his “tax liability.” In his view, therefore, the search warrant must fall because the information in the supporting affidavit relating to the shotgun was procured from defendant after a constitutionally deficient warning.

The evidence shows that the agents already knew defendant was a convicted felon. Di Pasquale testified that the hobby question he put to defendant came from an I.R.S. form questionnaire. The reason for the standard hobby question is “to determine large expenditures” to use on a net worth or expenditure method to ascertain if a taxpayer spends more than shown on his tax returns. Accordingly, the agent put the question to defendant about hobbies to find where defendant “spent his money.” He asked about this shotgun to discover whether defendant was talking about an expensive weapon and to learn the outlay of cash made to buy the five or so weapons owned by defendant. Since the testimony shows that the interrogation about weapons was tax-related, the warning given to defendant was sufficient. Nor was there anything improper in Di Pasquale’s reporting the possible criminal violation committed by defendant to the United States Attorney. United States v. Fruchtman, 421 F.2d 1019, 1022 (6th Cir. 1970), certiorari denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed 2d 86. In sum, the information upon which the warrant was secured was not improperly obtained.

Defendant’s next argument is that the evidence was insufficient. However, through a stipulation as to the testimony of officer Rooney, Special Agent Noack and fingerprint analyst Keckler, the Government showed that the defendant was a convicted felon. Another witness testified that the gun in question had been shipped from New York to Iowa in 1969. Defendant’s possession of a firearm that previously moved in interstate commerce satisfies the statute. United States v. Walker, 489 F.2d 1353, 1357 (7th Cir. 1973), cer-tiorari denied, 415 U.S. 982, 94 S.Ct. 1574, 39 L.Ed.2d 879.

Since the statutory language does not require knowledge (see note 1 supra), defendant’s claimed ignorance of the law is no defense. Braswell v. United States, 224 F.2d 706, 710 (10th Cir. 1955). For a contrary rule, defendant relies on Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228. There the Court accepted an ignorance of the law defense based on the notice requirements of the Due Process clause because the case involved “conduct that is wholly passive — mere failure to register * * * unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed.” Unlike Mrs. Lambert, this defendant has not shown that he was “wholly passive and unaware of any wrongdoing.” 355 U.S. at 228, 78 S.Ct. at 243. Moreover, the Supreme Court refused to follow Lambert in a ease involving the receipt or possession of an unregistered firearm. United States v. Freed, 401 U.S. 601, 608-609, 91 S.Ct. 1112, 28 L.Ed.2d 356. Interestingly enough, Justice Douglas wrote the opinion of the Court in both cases. In Freed, he distinguished Lambert, stating “Being in Los Angeles is not per se blameworthy,” whereas he noted that the National Firearms Act involves the possession of dangerous offensive weapons. In our judgment, the Lambert rule is also inapplicable to this statutory provision.

For a conviction to stand under this statute, the defendant must be shown knowingly to possess a gun. The trial judge so found here, and this finding is not assailed. The Government need not show that defendant knew the gun had traveled in interstate commerce or that he intended to violate the statute. United States v. Wiley, 478 F.2d 415, 418 (8th Cir. 1973), vacated and remanded on other grounds, 404 U.S. 1009, 92 S.Ct. 686, 30 L.Ed.2d 657; see also United States v. Crow, 439 F.2d 1193, 1195 (9th Cir. 1971), vacated and remanded on other grounds, 404 U.S. 1009, 92 S.Ct. 687, 30 L.Ed.2d 657.

The judgment of conviction is affirmed.

      . 18 U.S.C.App. § 1202(a) (1) provides :
      “(a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, ♦ * *
      and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

      . At the trial, Di Pasquale identified the weapon and read the serial number as 1888, which was the serial number given in the indictment.

      . Defendant’s reliance on United States v. Squires, 440 F.2d 859 (2d Cir. 1971), is misplaced, for there the statute under consideration made knowledge a specific element of the crime proscribed,


author: LEWIS R. MORGAN, Circuit Judge. RONEY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willard Carl BUSH, Defendant-Appellant.
    No. 72-2687.
    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1974.

      Roney, Circuit Judge, filed a dissenting opinion.
    Richard V. Burnes, Alexandria, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., R. Perry Pringle, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

While investigating the tax returns of Victor J. Carona, the Internal Revenue Service discovered evidence of possible kickbacks paid Carona by Willard Carl Bush. Carona supposedly had a great amount of influence over the Jefferson Parish School Board, which was considering the purchase of a number of mobile classrooms for their school system. Bush was in the business of selling such classrooms. Apparently the purpose of the kickbacks was to obtain Carona’s influence so that Bush would be sure to obtain the mobile classroom order. While interviewing Bush, the IRS obtained two sworn affidavits, both of which in essence stated that Bush paid no kickbacks to Carona.

Bush was then indicted for violating 18 U.S.C. § 1001, relative to false statements. He was convicted by a jury trial and sentenced to two years imprisonment. This appeal followed.

Bush bases his appeal on two grounds: (1) That the first affidavit he gave the IRS was barred by the running of the statute of limitations and the second affidavit, being supplemental to the first, was therefore also barred; (2) that prejudicial conduct of the prosecutor prevented Bush from having a fair trial. This court must also decide the additional question, “Are the facts in this case such that they come under 18 U.S.C. § 1001, concerning false statements ?”

If 18 U.S.C. § 1001 does not apply, then Bush should never have been prosecuted and this case should be dismissed, therefore, that is the threshold question that must be considered by this court.

The present 18 U.S.C. § 1001 had its origin over 100 years ago in the wake of a spate of frauds on the government. United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). The original provision clearly covered the presentation of false claims against any component of the government to any officer of the government. Bramblett, supra. The prohibitions of the statute were broad, although its application was limited to military personnel. Bram-blett, supra. False statements made for the purpose of obtaining the approval of payment of any claim were also proscribed. Bramblett, supra.

In 1909, the false claim provision was extended to cover corporations in which the United States held stock, and false statements were proscribed if made “for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States,” as well as where made for the purpose of obtaining payment of a false claim. Bramblett, supra, at 506, Fn. 2, 75 S.Ct. at 506. In 1934, no change was made in the false claim portion of the statute, but the false statement section was amended so as to delete all words as to purpose, and to insert “In any matter within the jurisdiction of any department or agency of the United States or any corporation in which the United States of America is a stockholder.” United States v. Stark, 131 F.Supp. 190 (D.C.1955). This revision, largely the product of the urging of the Secretary of the Interior, was presumably for the purpose of broadening the statute so as to reach not only false statements in connection with a claim against the government, but also in connection with non-monetary frauds, such as those involved in the “hot oil” shipments. United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941). Thus, included were statements including no pecuniary loss to the government, but which by their falseness and their reliance intended thereon perverted the function of some governmental agency. Gilliland, supra.

In 1948, the statute was put into present form, the false claim provision becoming 18 U.S.C. § 287, and the false statements provision becoming 18 U.S.C. § 1001. Bramblett, supra.

Section 1001 has usually been held inapplicable to statements made to government agents acting in a purely “police” capacity. United States v. Philippe (D.C.S.D.N.Y.1959), 173 F.Supp. 582. Doubts as to whether false statements made to police agents of the federal government fall within the purview of 18 U.S.C. § 1001 are premised on a potential “investigative” exception to § 1001, based on its historical evolution as a statute seeking to prevent the administration of federal government programs from being subverted or frustrated by the false presentation of interested parties. United States v. Philippe, supra; Paternostro v. United States, 311 F.2d 298 (5 Cir., 1962).

Although the line between “administration” and “investigation” cannot be sharply drawn, the argument has been made that this statute was intended to apply only to federal government “administration” and not intended to compel citizens to answer truthfully every question put to them in the course of a federal police or federal criminal investigation. United States v. Levin, 133 F. Supp. 88 (D.C.1953). Otherwise, the contention is, the statute with its harsh maximum penalties would give powerful impetus to inquisition as a method of criminal investigation. Levin, supra. The exact scope of this possible “investigative” exception to 18 U.S.C. § 1001 has not been clearly established; more importantly, its potential application would in any event turn upon the peculiar facts of a given case.

It is necessary at this point to review the facts of the case before us in some detail so as to determine whether 18 U. S.C. § 1001 should be applied to this situation.

On March 24, 1965, two special agents of the Internal Revenue Service, Intelligence Division, went to Bush’s office in Alexandria, Louisiana, displayed their pocket commissions identifying themselves, and told Mr. Bush that they were verifying the tax returns of Victor J. Carona. In connection with that investigation, they wanted to talk to Bush, examine certain documents and review his records relating to a transaction which had allegedly taken place with respect to commissions paid on portable classrooms sold to the Jefferson Parish School Board. One of the agents displayed documents relating to the transaction, conducted an oral interview, reduced the oral interview into a written affidavit, administered an oath to the witness, and had the witness execute the affidavit. After all this had occurred, one of the agents requested permission to take certain records belonging to defendant with him and Bush agreed. It should be emphasized at this point that the affidavit taken on March 24, 1965, is not the affidavit under which Mr. Bush was indicted, the appropriate statute of limitations having run. See, 18 U.S.C. § 3282.

One year and 15 days later, two special agents of the Internal Revenue Service again appeared in Mr. Bush’s offices. They returned Bush’s records that had been taken on the first visit and prepared another affidavit which they had Bush sign. There is no evidence to indicate that the agents warned Bush he was under investigation or that suspicion had focused upon him because of possible violation of a section of the United States Criminal Code. A comparison of the first and second affidavits shows, however, that the Internal Revenue Service was now focusing its attention on certain transactions between Bush and Carona and further that the agents had good reason to believe that the specific transactions in question involved the attempt by Bush to secretly pay off Carona.

This court would be hard put were it asked to believe that at this specific point in time the Internal Revenue Service was not at least aware that Bush might be involved in illegal dealings. It is also incomprehensible to think that the IRS did not suspect Bush of swearing to statements which were not completely true.

In most cases courts have refused to apply 18 U.S.C. § 1001 to false information given to “special investigatory” Internal Revenue Service agents, strictly construing “statement” and “jurisdiction” as used in § 1001.

In the Fifth Circuit case of Paternos-tro v. United States, supra, this circuit held that exculpatory “no” answer without an affirmative, aggressive, or overt misstatement on the part of the defendant did not come under the scope of 18 U.S.C. § 1001, and therefore reversed the conviction of the defendant, who had been convicted for his denials while under oath during an investigation by a special agent of the Intelligence Division of the IRS concerning whether he had solicited, received, or had any personal knowledge of “graft money” being distributed among the members of the New Orleans police force. The court noted that the Internal Revenue agent who initiated the interview was performing essentially the function of a policeman or investigative agent of the government and concluded that the same rules should apply to all policemen, whether government agent acting in this capacity to whom the answer is given is an agent of the FBI, a policeman, or an Internal Revenue agent.

The fact situation facing us is identical to the one in Paternostro, supra. Bush was approached by the Internal Revenue Service, the interview was initiated by the Internal Revenue Service, the essence of Bush’s statements were an exculpatory “no” to the questions asked by the agent.

Judge Gewin’s very able opinion in Paternostro, supra, easily distinguishes cases wherein a false written net worth statement was voluntarily prepared and submitted to the Internal Revenue agents for the purpose of misleading the IRS. Judge Gewin’s statement at page 305 can be applied to Bush as easily as it was to Paternostro:

The appellant in the case at bar made no statement relating to any claim on his behalf against the United States or any agency thereof; he was not seeking to obtain or retain any official position or employment in any agency or department of the Federal Government; and he did not aggressively and deliberately initiate any positive or affirmative statement calculated to pervert the legislative functions of government. At most, assuming that appellant’s answers to the agent were proved to be false by believable and substantial evidence, considering all he said, the answers were mere negative responses to questions propounded to him by an investigating agent during a question and answer conference, not initiated by the appellant. We conclude that the court erred in failing to dismiss .... [emphasis added].

It should be noted that there is a valid distinction between negative exculpatory denial of a suspected misdeed and an affirmative representation of facts peculiarly within the knowledge of the suspect not otherwise obtainable by the investigator.

This court is also well aware of that portion of the Fifth Amendment to the United States Constitution which says, “No person . . . shall be compelled in any criminal case to be a witness against himself, . . .” See, United States v. Davey (D.C.S.D.N.Y.1957), 155 F.Supp. 175. If, then, under the facts before us we allow Bush’s conviction to stand, Bush will have been convicted by his own words given to an investigating officer of the United States government, who at the time suspected Bush of unlawful activity. None of the evidence gives any indication that Bush knew he was under suspicion, or that he had a right to remain silent in order to avoid self-incrimination.

The specific facts of the case before us can lead to only one conclusion: Bush cannot be prosecuted for making a statement to Internal Revenue Service agents when those agents aggressively sought such statement, when Bush’s answer was essentially an exculpatory “no” as to possible criminal activity, and when there is a high likelihood that Bush was under suspicion himself at the time the statement was taken and yet was in no way warned of this possibility.

It must be emphasized that this opinion speaks only to the specific facts before us. We in no way attempt or intend to make any broad pronouncement as to the jurisdiction and application of 18 U.S.C. § 1001. As to cases which might appear contra to this opinion, we can only say, as the court held in Pater-nostro, supra, at 311 F.2d at 305:

While we have not made a detailed review of every case in which the statute involved has been considered, we have given consideration to many of the leading eases. The opinions indicate some conflict in the reasoning employed by the various courts, but such apparent conflicts arise out of distinguishing facts rather than a fundamental interpretation of the statute. Our review of the legislative history of the statute and the purposes it seeks to accomplish lead us to the conclusion that in the circumstances and under the facts of the instant case, the reasoning of the courts in the Stark, Levin, Davey, Philippe, and Allen [United States v. Allen, D.C., 193 F.Supp. 954] cases and the principles there pronounced should be applied to the factual situation involving the appellant. .

It is the decision of this court that 18 U.S.C. § 1001 simply does not apply to the fact situation before us. Consideration of Appellant Bush’s contentions of error are therefore pretermitted.

The decision of the court below is reversed and the case is remanded for the purpose of dismissal.

RONEY, Circuit Judge

(dissenting):

I respectfully dissent. United States v. Lambert, 501 F.2d 943 (5th Cir. 1974), leaves no doubt in my mind that 18 U.S.C. § 1001 properly applies to statements made to the Internal Revenue Service. I agree with the majority to this extent. I do not agree, however, that the lengthy written statement made by Bush was equivalent to the exculpatory “no” dealt with in Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962). The affidavit contained affirmative statements of false facts which the jury found to have been made willfully. That appears to me to be what Congress proscribed when it passed the 1970 version of 18 U.S.C. § 1001. Cf. United States v. Beacon Brass Co., Inc., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); United States v. McCue, 301 F.2d 452 (2d Cir.), cert. denied, 370 U.S. 939, 82 S.Ct. 1586, 8 L.Ed.2d 808 (1962); Cooper v. United States, 282 F.2d 527 (9th Cir. 1960); Brandow v. United States, 268 F.2d 559 (9th Cir. 1959); Pitts v. United States, 263 F.2d 353 (9th Cir.), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (1959); Smith v. United States, 257 F.2d 133 (10th Cir. 1958); Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, aff’d by equal divided court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431 (1948). But see United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972).

Neither Bush nor the Government argued the above ground for reversal. Inasmuch as I agree with appellant Bush’s arguments that he is entitled to a new trial because of numerous trial errors, however, I would set aside his conviction and leave the way open for a new trial.

      . The text of the second affidavit typed by the IRS special agent and signed by Bush is set out below:

      . Only those cases in which the IRS agent is acting as a “policeman” are germane here. Most often, however, the merely “administrative” nature of such an agent is far removed from the basic situation which the “investigative exception” would cover, that is of a citizen directly approached by a law enforcement agent and asked incriminating questions by such agent. See, Paternostro v. United States, 311 F.2d 298 (5 Cir., 1962).


author: PER CURIAM: HUFSTEDLER, Circuit Judge HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roberto MADUENO-ASTORGA, Defendant-Appellant.
    No. 73-2484.
    United States Court of Appeals, Ninth Circuit.
    July 5, 1974.
    As Amended on Denial of Rehearing Sept. 20, 1974.
    Hufstedler, Circuit Judge, concurred specially with opinion, and also filed an opinion dissenting from the denial of the petition for rehearing.
    John J. Cleary (argued), of Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    Thomas M. Caffin, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
   OPINION

Before BARNES, HUFSTEDLER and CHOY, Circuit Judges.

PER CURIAM:

After a trial to the court, Madueno-Astorga, was convicted of possession of about 660 pounds of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He appeals on the ground that the stop and search of his automobile were without probable cause and were thus invalidated by Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). We affirm.

About 6:50 a.m. while on routine patrol driving east on Interstate 8 about ten miles from the border, two border agents noticed that appellant’s automobile appeared “to drift” on a curve in the road. The agents followed it in their car and observed that the auto had a large trunk and a heavy duty suspension system on the rear axle and “kept on having characteristic problems of balance of a real heavy — heavily loaded car — .” After following the vehicle for about two miles, the agents stopped it to determine whether appellant was transporting illegal aliens.

On approaching the halted car, one of the agents smelled the strong, sweet mixed odor of marijuana and talcum powder issuing from it. When asked to open the trunk, appellant said he had no key to it and that the car belonged to a friend for whom he was driving it to San Diego. The agents removed the rear seat of the vehicle and saw the marijuana in kilo packages covered with talcum powder, a practice which they knew smugglers used to mask the odor of marijuana.

Almeida-Sanchez, supra, does not apply where, as here, the border patrol agents had a founded suspicion, which may be less than probable cause, for stopping the vehicle for the purpose of limited inquiry in the course of routine investigation. United States v. Bugarin-Casas, 484 F.2d 853-854 (9th Cir. 1973); United States v. Jaime-Barrios, 494 F.2d 455 (9th Cir. 1974).

The events after the stop provided clear probable cause to search the vehicle.

Affirmed.

HUFSTEDLER, Circuit Judge

(concurring specially):

I concur under the compulsion of United States v. Bugarin-Casas (9th Cir. 1973) 484 F.2d 853 and its progency.

I am unable to reconcile the rationale of Almeida-Sanchez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, forbidding border agents on roving patrol to stop and search vehicles without probable cause (see United States v. Brignoni-Ponce (9th Cir. en banc 1974) 499 F.2d 1109), with the Bugarin-Casas line of cases permitting roving border patrol agents to stop vehicles under circumstances short of probable cause.

HUFSTEDLER, Circuit Judge

(dissenting) :

I would grant the petition for rehearing. The facts that appellant’s automobile had a heavy duty suspension system, a large trunk, and appeared to be heavily loaded are not enough to create a founded suspicion that criminal activity was afoot. There is even less here to justify the stop than in United States v. Martinez-Tapia (9th Cir. 1974) 499 F.2d 1244. Moreover, I am unable to reconcile the rationale of Almeida-San-chez v. United States (1973) 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, forbidding border agents on roving patrol to stop and search vehicles without probable cause, with the line of cases typified by United States v. Bugarin-Casas (9th Cir. 1973) 484 F.2d 853, permitting roving border patrol agents to stop vehicles under circumstances short of probable cause.