text:
    UNITED STATES of America, Plaintiff-Appellee, v. Larry Napoleon COOPER, Defendant-Appellant.
    No. 73-3260
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    George Peach Taylor, Univ. of Alabama, University, Ala. (Court-appointed), for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., J. Stephen Salter, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

      Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Larry Napoleon Cooper was indicted and subsequently convicted by the district court sitting without a jury for knowingly making a false statement of a material fact in a loan application submitted to the Small Business Administration (SBA) with the purpose of influencing favorable agency action thereon, in violation of 15 U.S.C. § 645(a). His direct appeal from the judgment of conviction and concomitant 30-day sentence presents four specifications of error in the proceedings below: (1) Cooper’s written, negative responses to questions regarding the nature and number of any previous criminal indictments, arrests or convictions against him, if false, were not material misstatements because either the agency routinely investigated the criminal background of each loan applicant and thus could not have been influenced by the answer, or the information requested is itself irrelevant and immaterial; (2) the prosecution did not introduce sufficient evidence to corroborate Cooper’s extra-judicial confession to FBI Agent Carr, in which he admitted that the misstatements were indeed falsely entered to avoid jeopardizing his loan application; (3) Cooper was entitled to be represented at trial by a Ms. McCutcheon, who was not a licensed or trained attorney; and (4) the SBA’s requirement that loan applicants disclose their prior criminal record is unconstitutional. Finding each of these contentions to be without merit, we affirm.

The statute, as applied at bar, and the agency’s request for information about the loan applicant’s previous brushes with the criminal law fully comport with the Constitution. In any event, a defendant cannot test the constitutionality of requesting the information by giving a false response. United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). There is no colorable merit in the proposition that a criminal defendant (especially one who has twice rejected the services of qualified and competent court-appointed counsel) is constitutionally vested with the right of assistance or representation by a lay person. It is similarly clear that Cooper’s rejoinders to the SBA’s inquiries about his criminal past were both false and materially so within the purview of the statute. See, e. g., United States v. Goberman, 458 F.2d 226 (3d Cir. 1972); United States v. East, 416 F.2d 351 (9th Cir. 1969); Owen v. United States, 386 F.2d 774 (5th Cir. 1967); Kovens v. United States, 338 F.2d 611 (5th Cir. 1964). Obviously, Cooper’s false replies had “a natural tendency to influence, or [were] capable of influencing, the decision of the tribunal [SBA] in making a determination required to be made.” Blake v. United States, 323 F.2d 245, 246 (8th Cir. 1963), quoting Gonzales v. United States, 286 F.2d 118, 122 (10th Cir. 1960), and Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699, 701 (1956).

A cursory review of the record inevitably leads to a denial of Cooper’s remaining contention. Defendant’s extra-judicial confession and his prior criminal record were amply corroborated by his in-court admissions that FBI Agent Carr had correctly recited the substance of his confession and contemporaneous oral interview, that he had indeed violated Section 645(a), and that he had been arrested on approximately 50 previous occasions. See, e. g., United States v. Khandjian, 489 F.2d 133 (5th Cir. 1974); United States v. Baty, 486 F.2d 240 (5th Cir. 1973). Cooper’s sole avowed purpose in proceeding to trial rather than pleading guilty was to preserve his appellate challenges to the constitutionality of the statute as applied, and the trial court’s denial of lay representation. Furthermore, he neither objected to the introduction into evidence of Carr’s written statement summarizing the oral interview nor cross-examined the agent. Cooper’s refusal to challenge the documentation of his criminal record or the corroboration of his confession before the trial court waived his right to insist upon such a contest on this appeal. The decision of the district court is

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    KIRKHAM, MICHAEL & ASSOCIATES, INC., et al., Appellants, v. The TRAVELERS INDEMNITY COMPANY et al., Appellees.
    No. 73-1676.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided March 5, 1974.
    Rehearing Denied March 25,1974.
    William G. Campbell, Omaha, Neb., for appellants.
    Sam W. Masten, Canton, S. D., for appellees.
    Before MATTHES, Senior Circuit Judge, and HEANEY and BRIGHT, Circuit Judges.
   PER CURIAM.

This is an appeal from a judgment of the United States District Court for the District of South Dakota, determining that defendant insurance companies were not liable under certain insurance policies. The trial court’s opinion is reported at 361 F.Supp. 189.

Plaintiff-appellant, Kirkham, Michael & Associates, Inc. (KMA), a South Dakota engineering and architectural firm, instituted this declaratory judgment action in order to determine the scope of coverage of a Travelers Indemnity Company comprehensive general liability policy issued to KMA for the year 1966. Travelers had previously denied coverage under the policy and had refused to defend KMA in a suit' filed in state court by the City of Rapid City, South Dakota, alleging, inter alia, negligence on the part of KMA in the design, preparation of plans and specifications, and supervision and inspection of the materials and work in connection with the construction of the City’s sewage treatment plant.

Conjoined with KMA as plaintiffs were the Continental Casualty Company, KMA’s professional liability insurer, and the Maryland Casualty Company, an issuer of a comprehensive general liability policy to KMA in 1965.

Prior to trial, the district court ordered the realignment of the Maryland Casualty Company as a party defendant and the introduction of the City of Rapid City, South Dakota, as an involuntary plaintiff.

The policy issued by Travelers to KMA in 1966 agreed:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of injury to or destruction of property, including the loss of use thereof, caused by accident.

With respect to such insurance as is afforded by this policy, the company shall:

(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient * * *.

With respect to the period of coverage, the policy provided: “This policy applies only to accidents which occur during the policy period * * While excluding professional liability arising from defects in maps, plans, designs or specifications, the policy did not exclude professional liability arising from supervisory or inspection services.

Travelers conceded that an “accident,” within the meaning of the insurance policy, had occurred. The question presented by the case was whether the accident occurred when KMA allegedly negligently supervised and inspected the construction of the plant, within the coverage period of the 1966 policy, or when the sewage treatment plant was tendered to the City, beyond the coverage period of the 1966 policy.

The trial judge found:

It is the damage incurred by “accident” that triggers the policies’ coverage, not the preceding wrongful acts. A thorough reading of the complaint discloses that the City sustained actual damages or injury by accident when the alleged defective facility was turned over for possession and operation.

Kirkham, Michael & Associates v. Travelers Indemnity Co., 361 F.Supp. 189, 193 (D.S.D.1973).

In his memorandum decision, the trial judge conscientiously explored the facts of the case, the contentions of the parties, and the applicable law. We find ourselves in agreement with the trial judge, and on the basis of his opinion, affirm the judgment in favor of defendants.

      . The 1967 Travelers policy in effect at the time the plant was turned over to the City contained a broader exclusion of professional liability than that contained within the 1966 policy. KMA concedes in its brief on appeal that this exclusion forecloses coverage under the 1967 policy.


author: ALFRED T. GOODWIN, Circuit Judge:

text:
    HERMETIC REFRIGERATION COMPANY, INC., Appellee, v. CENTRAL VALLEY NATIONAL BANK INC., Appellant, Robert L. Walker and First Western Bank and Trust Company, Inc., Defendants.
    No. 73-1420.
    United States Court of Appeals, Ninth Circuit.
    Feb. 15, 1974.

      C. Jay Hollander (argued), Fitzsim-mons & Hawthorne, Oakland, Cal., for appellant.
    William A. Resneck (argued), Marvin D. Morgenstein, Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Cal., for appellee.
    Before CARTER and GOODWIN, Circuit Judges, and SOLOMON, District Judg.e.

       The Honorable Gus. J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.

   ALFRED T. GOODWIN, Circuit Judge:

A bank which honored unauthorized endorsements by an embezzler of his employer’s checks appeals a judgment in favor of the employer, asserting error in the district court’s refusal to accept a defense of contributory negligence.

Robert Walker was employed by Hermetic Refrigeration Company as the manager of its Oakland office. As office manager he had authority to receive checks made payable to Hermetic and to transfer them to Hermetic’s Phoenix office, or, in the case of exceptionally large checks, to deposit them in Hermetic’s corporate account with the Bank of America in San Leandro. Walker, however, opened a personal checking account with Central Valley National Bank (Central Bank) and, without authorization, deposited therein checks made payable to Hermetic. Walker stamped these checks on the reverse side with a rubber stamp bearing Hermetic’s name and address and signed his name below the stamp.

California Commercial Code (hereinafter C.C.C.) § 3406 provides:

“Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or pay- or’s business.”

This section does not establish liability, but rather creates a conditional estoppel not otherwise available to a bank. However, before it can take advantage of the estoppel, the bank must first show that it acted in accordance with the reasonable commercial standards of the banking business. Comment, C.C.C. § 3406. See Cooper v. Union Bank, 9 Cal.3d 371, 107 Cal.Rptr. 1, 507 P.2d 609 (1973).

Walker’s peculations were undiscovered for more than six years. We will assume for the purposes of this appeal that in not detecting and stopping the embezzlement Hermetic was contributo-rily negligent.

Uncontradicted testimony at trial showed that Central Bank failed to comply with the reasonable commercial standards of the banking business, and the district judge found accordingly. That finding is supported by the evidence, and the conclusion that the bank could not assert the defense of contributory negligence is correct. See Gresham State Bank v. O and K Construction Co., 231 Or. 106, 370 P.2d 726, 372 P.2d 187 (1962).

Affirmed.


text:
    Gerald D. PETERSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1905.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided March 1, 1974.
    Gerald D. Peterson, pro se.
    Bert C. Hurn, U. S. Atty., J. Whitfield Moody, and Frederick O. Griffin, Asst. U. S. Attys., Kansas City, Mo., for appellee.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

On January 10, 1968, Gerald D. Peterson was sentenced to concurrent prison terms of ten years, five years, and one year, respectively. Following this court’s affirmance of the narcotics convictions underlying those sentences, Peterson v. United States, 405 F.2d 102 (8th Cir. 1968), cert. denied, 395 U.S. 938, 89 S.Ct. 2003, 23 L.Ed.2d 453 (1969), Peterson filed a motion, in the United States District Court for the Western District of Missouri, to vacate those convictions and sentences pursuant to 28 U.S.C. § 2255. Peterson’s motion was based upon the allegation that prior constitutionally tainted state felony convictions were improperly introduced for impeachment purposes when he took the stand at trial, in violation of his Fifth and Sixth Amendment rights. He further contended that his Fourteenth Amendment rights were infringed when a presentence report, containing constitutionally tainted state convictions as well as other allegedly prejudicial matters, 3 ****was submitted to the sentencing judge, Judge Collinson, and was improperly used to enhance Peterson’s sentence.

The District Court, Judge William Collinson, dismissed the § 2255 motion without a hearing, holding that (1) the prior state convictions were not constitutionally defective and (2) the argument that Peterson’s sentence was improperly enhanced was without merit, for the District Court would have imposed the same sentence notwithstanding the presentence report. We affirm.

The state convictions which Peterson describes as constitutionally tainted have been upheld as constitutionally valid in previous actions brought by Peterson in federal court. Peterson v. Missouri, 355 F.Supp. 1371 (W.D.Mo.1973), aff’d Nos. 73-1238, 73-1237, 73-1236 (8th Cir., September 14, 1973). See also Peterson v. United States, 467 F.2d 892 (8th Cir. 1972), cert. denied, 410 U.S. 933, 93 S.Ct. 1383, 35 L.Ed.2d 596 (1973). Successive applications for similar post-conviction relief may properly be denied where they raise issues previously decided against the applicant on the merits and the ends of justice would not be served by reaching the merits again. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Vincent v. United States, 488 F.2d 1109 (8th Cir. 1973).

A further reason supports our affirmance. We are required to remand for resentencing where prior constitutionally invalid state convictions may have enhanced the punishment allocated by a federal judge in a subsequent criminal case. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). But where, as here, the sentencing judge has asserted without qualification that he would have imposed the same sentence regardless of the allegedly invalid convictions or the presentence report, a remand for resentencing is improper. United States v. Simon, 488 F.2d 1094 (8th Cir. 1973. See also Ryan v. United States, 485 F.2d 295 (8th Cir. 1973); Young v. United States, 485 F.2d 292 (8th Cir. 1973) ; McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972), cert. denied, 411 U.S. 949, 93 S.Ct. 1933, 36 L.Ed.2d 411 (1973).

Affirmed.

      . The ten-year sentence was for violating, as charged, 26 U.S.C. § 4705(a) and 18 U.S.C. § 2; the five-year sentence for violating, as charged, 18 U.S.C. § 371; the one-year sentence for violating, as charged, 21 U.S.C. § 331(q) (2) and 18 U.S.C. § 2.

      . The three prior state convictions which Peterson challenged as constitutionally tainted are: (1) a 1954 conviction on a plea of guilty to a charge of auto theft in Buchanan County, Missouri; (2) a 1956 conviction, following a verdict of guilty by a jury, on a burglary charge in Buchanan County; and (3) a 1963 conviction on a plea of guilty to a charge of stealing an auto in Nodaway County, Missouri. The details surrounding these convictions are recounted in Peterson v. Missouri, 355 F.Supp. 1371 (W.D.Mo. 1973), aff’d, Nos. 73-1238, 73-1237, 73-1236 (8th Cir., September 14,1973).

      . According to Peterson, the presentence report included charges ultimately dismissed and convictions ultimately reversed, in addition to the challenged state felony convictions.

      . In his brief, Peterson erroneously suggests that this court’s order of September 14, 1973, issued pursuant to local Buie 9(a), was not an affirmance but simply a dismissal of his appeal for want of jurisdiction. Buie 9(a) of the rules of this court is not confined to dismissals for want of jurisdiction but also provides for, inter alia, summary affirmances.


text:
    Michael Wayne THOMPSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1152.
    United States Court of Appeals, Eighth Circuit.
    Feb. 25, 1974.
    Daniel C. Galvin, Sioux City, Iowa, for appellant.
    Evan L. Hultman, U. S. Atty., and Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before GIBSON and BRIGHT, Circuit Judges.
   PER CURIAM.

Petitioner Michael Wayne Thompson was convicted by a jury in United States District Court for the Northern District of Iowa of ten counts of interstate transportation of forged securities in violation of 18 U.S.C. §§ 2 and 2314. Petitioner’s court-appointed attorney filed a motion for leave to proceed on appeal in forma pauperis in the district court. The district court determined that “no serious questions of law or fact exist relative to this matter,” and certified petitioner’s appeal as frivolous. See 28 U.S.C. § 1915 and Rule 24(a), F.R.A.P. Petitioner’s attorney then filed a motion for leave to proceed on appeal in this court pursuant to Rule 24(a), F.R.A.P. The motion came before us as an administrative panel of this court. See Rule 2(c) of the Rules of this Court. We now authorize the petitioner to proceed on this appeal in for-ma pauperis. Because our determination of appealability reaches a result contrary to that of the district judge, we believe a statement of our reasons may provide a helpful guideline in other similar cases.

An indigent defendant is entitled to an in forma pauperis appeal from his conviction and to the assistance of counsel on that appeal unless his appeal is found to be wholly frivolous. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); DeMarrias v. United States, 444 F.2d 162 (8th Cir. 1971); 28 U.S.C. § 1915. If the district court determines that the appeal is frivolous, an indigent defendant is entitled to challenge the court’s finding and to have the assistance of counsel in doing so. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957) ; DeMarrias, supra.

In DeMarrias this court held that before a finding of frivolity could be made, “due process requires the [district] court, with the assistance of briefs of defense counsel setting forth any grounds arguably supporting the appeal, to make a full examination of the record before determining that the appeal is wholly frivolous.” 444 F.2d at 165.

We fully recognize the power of the district court under 28 U.S.C. § 1915 to certify an appeal as frivolous. However, there is nothing in the present record to indicate that either petitioner or his counsel was permitted to set forth the grounds arguably supporting an appeal and that the district court subsequently determined from a full examination of the record that the appeal is wholly frivolous. Thus, on the state of the record before us, we conclude that we have no alternative but to grant the motion. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), and DeMarrias v. United States, 444 F.2d 162 (8th Cir. 1971).

We grant leave to proceed on appeal in forma pauperis.

      . It should be pointed out that an indigent who has been granted leave to proceed in forma pauperis in the district court need not make a second request from the district court for leave to proceed on appeal in for-ma pauperis but may proceed to the court of appeals automatically unless there is a certification of bad faith or frivolity by the district court. See Rule 24(a), F.R.A.P.


author: Mr. Justice CLARK:

text:
    FRALIN AND WALDRON, INC., Appellant, v. CITY OF MARTINSVILLE, VIRGINIA et al., Appellees.
    No. 73-1766.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1973.
    Decided Feb. 25, 1974.

      Jackson L. Kiser, Martinsville, Va., for appellant.
    Joseph M. Winston Jr., Danville, Va., and Robert P. Vines and David B. Worthy, Martinsville, Va., of counsel, for ap-pellees.
    Before CLARK, Associate Justice, and CRAVEN and WIDENER, Circuit Judges.

       Supreme Court of the United States, retired, sitting by designation.

   Mr. Justice CLARK:

In this interlocutory appeal Fralin and Waldron, Inc. complains of the decision of the District Court to abstain from deciding appellant’s action for declaratory judgment, injunctive relief and damages against the City of Martins-ville, Virginia, and its agencies and officials for their refusal either to grant appellant a special use permit or to approve its subdivision plan permitting appellant to build a 120 unit apartment complex, a project qualifying for mortgage insurance under Section 236 of the Housing and Urban Development Act of 1968. 12 U.S.C. § 1707 et seq. The detailed facts of this case, as well as the controlling law, are ably discussed in the opinion of the learned trial judge, and we agree with it entirely.

Appellant contends, inter alia, that Section VIII, Appendix B of the Martinsville City Code is unconstitutional on grounds of vagueness and that this section has been arbitrarily and discriminatorily applied against it. All of its claims raise legitimate questions involving municipal zoning ordinances, the correct construction of local land use law as to special use permits, and the delineation of the proper scope and exercise of local administrative discretion. Understandably, the courts of Virginia have extensive familiarity and experience with such matters, and we believe that they should have the initial opportunity to pass upon them. A state adjudication may well avoid the necessity of a decision on the federal constitutional question presented as well as avoid needless friction in federal-state relations over the administration of purely state affairs. We conclude that the requisite special circumstances warranting abstention are present here and that the case is controlled by Louisiana Power and Light Company v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959). Also see Zwickler v. Koota, 389 U.S. 241, 248, 249, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1971); Chicago v. Fieldcrest Dairies, 316 U.S. 168, 62 S.Ct. 986, 86 L.Ed. 1355 (1942); Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972); Blasecki v. City of Durham. North Carolina, 456 F.2d 87, 93 (4th Cir. 1972); AFA Distributing Co., Inc. v. Pearl Brewing Co., 470 F.2d 1210, 1212, 1213 (4th Cir. 1973).

Appellant insists that relief in the courts of Virginia is precluded by § 15.1-497 of the Code of Virginia; we think not. We believe that in light of pertinent sections in Chapters 21, 25 and 28 of Title 8 of the Virginia Code, full redress is available in Virginia’s courts. Moreover, it is clear that should the state courts hold against appellant on the questions of local law, it may neverthless return to the federal court for an adjudication of its federal contentions if it preserves its right to do so. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 419-422, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).

Assuming, arguendo, that Virginia’s courts do not accept jurisdiction of appellant’s cause, the District Court has properly retained its jurisdiction. American Trial Lawyers v. N. J. Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973). If the state courts decline to hear the case, it will be soon enough to return to the federal court for disposition on the merits.

Affirmed.


author: PER CURIAM:

text:
    Ralph Benno HABERSTROH, Petitioner-Appellant, v. Superintendent MONTANYE, Attica Correctional Facility, Respondent-Appellee.
    No. 672, Docket 73-2353.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 21, 1974.
    Decided March 14, 1974.

      Steven M. Hochberg, New York City (Michael Jaffe, New York City, on the brief), for petitioner-appellant.
    Burton Herman, Asst. Atty. Gen. of the State of New York (Louis J. Lef-kowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.
    Before HAYS, MANSFIELD and OAKES, Circuit Judges.
   PER CURIAM:

Appellant brought this habeas corpus action alleging that certain identification testimony at his trial was influenced by impermissibly suggestive pretrial identifications and that the prosecuting attorney improperly commented on his failure to testify. The district court denied the writ. 362 F.Supp. 838 (W.D.N.Y.1973). We affirm.

At about 1:00 A.M. on April 22, 1968, a man entered the Mancuso Restaurant in Batavia, New York, and after ordering and drinking two beers, robbed the restaurant. Appellant was charged with the crime and convicted in state court. His conviction was affirmed on appeal in the state courts. 37 A.D.2d 692, 323 N.Y.S.2d 414 (4th Dep’t 1971).

Appellant objects to the admission at trial of the identification testimony of Arthur Smith, the bartender at the restaurant at the time of the robbery. After the robbery the police went to the restaurant several times and showed Smith about a hundred photographs. Smith recognized none of them as the robber. Some time later the police asked him to come to the police station to examine three additional photographs. One of the photographs depicted Haber-stroh, while the others did not fit the description given the police by witnesses after the robbery. From this group Smith identified Haberstroh as the criminal.

The district court found this procedure impermissibly suggestive, but held that the circumstances disclosed no substantial possibility that the exhibition of the photographs led to misidentification of the appellant at trial.

The conviction must stand unless “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). We must examine the claimed violation in “the totality of the circumstances.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Considering the elements enumerated by the Supreme Court in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), we find no “substantial likelihood of irreparable misidentification.” Smith had ample opportunity to view the robber for over twenty minutes at close range at the time of the crime. He looked at the robber several times and the robber’s appearance made a lasting impres-' sion on him. His identification of Haberstroh was unequivocal at the time of the photographic identification, the preliminary hearing, and the trial, and remained so despite effective cross-examination. These factors support the conclusion that misidentification was not a “substantial likelihood.” See United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801-802 (2d Cir. 1973). The discovery of appellant’s fingerprints in the restaurant on a bottle of the brand of beer that Smith testified the robber drank further reduces the possibility of misidentification. See id., at 803-804.

Appellant further objects to his identification .at trial by the witness Laesser, who was a patron in the restaurant at the time of the robbery. Laesser identified appellant as the robber at a preliminary hearing at which appellant was represented by counsel. His counsel neither objected to this identification of appellant nor requested a line-up. No objection to the identification was raised in the state appellate courts. Counsel for appellant did, however, cross-examine Laesser closely at the hearing. Laesser testified he had clearly observed the robber at close range. All these factors, together with the corroborative evidence, indicate that there was no subr stantial likelihood. of misidentification.

Appellant addresses a final objection to the following comment by the prosecutor in summation concerning his failure to testify:

“First of all, let’s take a look at the defense in this case. It’s true that they don’t have to present any proof whatsoever, the burden of proof is on the People, no question about this. But here for obvious reasons, I think they felt it was necessary to present some proof. Let’s take a look at that proof. First of all let’s take a look at the proof that wasn’t there. The witness that wasn’t there, that was not submitted, this is Haberstroh. He did not testify. The proof that was submitted was by this fellow, Pat Riscili.” (Emphasis added.)

The prosecutor’s remark was clearly improper. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). However, the comment was brief and superficial and was addressed to credibility rather than substance. It is highly unlikely that the comment swayed the jury. Appellant did not object to it. The trial judge instructed the jury not to consider the failure to testify as evidence of guilt. Under the circumstances the error in the comment was harmless. See United States ex rel. Satz v. Mancusi, 414 F.2d 90, 92, n. 1 (2d Cir. 1969); United States v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968); United' States ex rel. Miller v. Follette, 397 F.2d 363, 367 (2d Cir. 1968).

Affirmed.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Isaac BROWN, Jr., Defendant-Appellant.
    No. 73-3201
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing Denied May 23, 1974

      G. Michael Agnew, Columbus, Ga. (Court-appointed), for defendant-appellant.
    William J. Schloth, U. S. Atty., O. Hale Almond, Jr., Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 P.2d 409, Part I.

   DYER, Circuit Judge:

Brown appeals from a judgment of conviction entered upon a jury verdict of guilty on two counts of an indictment in which he was charged with violations of 18 U.S.C.A. §§ 922(a)(6) and 924(a). He complains of dispersal of the jury, prejudicial newspaper publicity and biased comments by the court during the trial. We affirm.

After final argument of counsel the court permitted the jurors to go home and return the following morning to hear the court’s charge, deliberate and return a verdict. Brown made no objection to this procedure, hence his challenge must now be rejected unless there is a showing of actual prejudice. Grant v. United States, 5 Cir. 1966, 368 F.2d 658. The only prejudice suggested by Brown is that there was some newspaper publicity about an earlier prosecution on the same charges that ended in a mistrial. The district court asked the prospective jurors on voir dire whether they had seen anything in the papers concerning the previous trial, and the sole prospective juror who had seen the published reports assured the court that he could serve as a fair and impartial juror.

No objection was made at any time concerning newspaper accounts of the previous trial, nor were any newspapers offered in evidence or proffered for the record. Thus we have nothing before us in the appellate record to support Brown’s argument, made here for the first time, that the newspapers may have carried articles which may have been seen by the jurors. There has been no showing, therefore, that the jurors were exposed to what Brown characterizes as a “charged environment.” Even if we were disposed to go outside of the record, which we are not, we would be unwilling to equate “charged environment” with “actual prejudice.” Absent “inherently prejudicial publicity which saturated the community,” Sheppard v. Maxwell, 1966, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600, we have adopted the view that “where publicity prior to and during a trial is neither inherently prejudicial nor unusually extensive, the accused must assume the traditional burden and show actual jury prejudice.” (footnotes omitted). Gordon v. United States, 5 Cir. 1971, 438 F.2d 858, 874, cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56. No objection of newspaper prejudice having been made at trial, “[w]e will not notice matters which were not presented to the district court except to prevent a miscarriage of justice. Petitioner cannot try one case below and another on appeal.” Conklin v. Wainwright, 5 Cir. 1970, 424 F.2d 516, 517-518, cert. denied, 400 U.S. 965, 91 S.Ct. 376, 27 L.Ed. 385. See also United States v. Knox, 5 Cir. 1972, 458 F.2d 612, cert. denied, 409 U.S. 845, 93 S.Ct. 48, 34 L.Ed.2d 85; United States v. Hall, 5 Cir. 1971, 440 F.2d 1277; Overmyer v. Loflin, 5 Cir. 1971, 440 F.2d 1213, cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90.

Brown next asserts that the trial court made prejudicial comments during the trial. We have searched the record in vain for comments by the judge which would have given the jury the impression that the court was partisan or was expressing an opinion concerning the guilt or innocence of Brown. Brown continually attempted to inject irrelevant evidence concerning the reason he needed a gun. On occasion, Brown’s counsel tried to ask leading questions of Brown, suggesting that the witness failed to understand the question when properly framed. The court sustained objections to this line of questioning, remarking that the witness was intelligent and need not be led.

There was no bias or prejudice in the evidentiary rulings made by the trial court. As we said in Gordon, surpra\

The trial judge’s actions indicate a persistent, but nonpartisan effort to limit the evidence to that which was relevant to the issues created by the indictment and the pleas of the defense.

Id. 438 F.2d at 863.

We further pointed out that

[wjhile a trial judge must be careful to avoid giving the jury an impression that he is partisan, he should take an active part when necessary to clarify testimony and assist the jury in understanding the evidence.

Id. at 864-865.

We are convinced that Brown received a fair and impartial trial with every safeguard to which he was entitled.

Affirmed.

      . Count 1 charged that when Brown purchased a firearm he made a false statement that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year. Count 2 charged a second firearm purchase with the same false statement.

      . Brown has attached to his brief purported copies of the Columbus, Georgia Ledger of September 12 and 13, 1973, obviously printed after the trial, containing stories of his conviction, and articles purportedly from the same paper dated August 13 and September 8, 1973, concerning his mistrial.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Willis KING and Charles Higgins, Defendants-Appellants.
    No. 74-1172
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.

      John A. Brady, Jack Q. Neal, Port Worth, Tex., for James Willis King.
    Wm. R. Magnussen, Port Worth, Tex. (Court-appointed), for Charles Higgins.
    Frank McCown, U. S. Atty., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellants King and Higgins were convicted of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). The first asserted error is that the heroin was discovered during a search incident to an illegal arrest and should therefore not have been admitted in evidence. Since the heroin was found in a search of King’s person, there can be no doubt that, if the arrest itself was legal, the search was proper. United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L. Ed.2d 427; Gustafson v. Florida, 1973, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456. The arrest was fully supported by probable cause to believe that King and Higgins were in possession of heroin, in view of the agents’ knowledge of the negotiations for the purchase between the informer and the appellants, their surveillance of the appellants, and the informer’s tip that the appellants were coming to her motel room to make the sale. In view of the fact that the informer learned the exact time and place of the sale only 35-45 minutes before it was to occur, we think the agents were not amiss in failing to secure a warrant for the arrest. Probable cause to believe that the appellants were actually in possession of heroin did not exist until the informer passed on this crucial bit of information, and by then time was too short to secure arrest warrants. Therefore, the arrest was valid. United States v. Finstad, 5 Cir. 1973, 478 F.2d 840; United States v. Wysocki, 5 Cir. 1972, 457 F.2d 1155.

Higgins next objects that the evidence was insufficient to support his conviction. However, in view of his presence during several conversations regarding the sale, his apparent attempt to discover if he was under surveillance and to evade that surveillance, and his apparent attempt to get away from the scene of the arrest, the jury could properly have inferred knowledge of and participation in the illegal transaction. The evidence was sufficient to support Higgins’ conviction either as a co-principal or, since the proper instructions were given, as an aider and abettor under 18 U.S.C. § 2(a). Pereira v. United States, 1954, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Jasso v. United States, 5 Cir. 1961, 290 F.2d 671; United States v. Bullock, 5 Cir. 1971, 451 F.2d 884.

Affirmed,


author: BELL, Circuit Judge:

text:
    Billy Floyd (Pete) BRAZZELL, Plaintiff-Appellant, v. Bobby ADAMS, etc., et al., Defendants-Appellees.
    No. 73-3279
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Billy Floyd (Pete) Brazzell, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., for defendants-appellees.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   BELL, Circuit Judge:

The complaint in this matter, brought by a Texas state prisoner, was filed pro se. It consists of an extended listing of alleged constitutional deprivations resulting in appellant’s present incarceration upon a plea of guilty to selling heroin. However, the relief sought was not release from confinement, but rather damages under the Civil Rights Act, 42 U.S.C.A. § 1983, against a district attorney and state agents participating in the arrest. The district court dismissed the complaint.

On appeal reversal is sought only as to the claim for damages based on allegations of police conduct akin to entrapment. We hold that this claim cannot be a basis for damages in the face of a plea of guilty and the doctrine of collateral estoppel.

Appellant’s position is that he engaged in the heroin transaction in the belief he was assisting state agents in their investigation of a supplier. Essentially this is a claim that by virtue of both his intent and his relationship to the state agents, he did not “sell” heroin within the contemplation of the statute and indictment. See Durham v. State, 1955, 162 Tex.Cr.R. 25, 280 S.W.2d 737, which states that, “If an accused is in no way interested in behalf of the seller but acts only as agent of the prosecutor he is not guilty of making a sale.” 280 S. W.2d at 739. However, by his guilty plea appellant admitted the elements of the charged crime, including that of making a “sale”. See Busby v. Holman, 5 Cir., 1966, 356 F.2d 75, 77. We thus are faced with the question whether collateral estoppel applies in a subsequent civil suit against state agents as to facts necessarily admitted by a plea of guilty in a state prosecution.

The general principle of collateral es-toppel is that “a fact decided in an earlier suit is conclusively established between . . . [the] parties and their privies, provided it was necessary to the result in the first suit.” Tomlinson v. Lefkowitz, 5 Cir., 1964, 334 F.2d 262, 264; Hyman v. Regenstein, 5 Cir., 1958, 258 F.2d 502, 510. Here, a determination of the fact in issue, to wit, whether appellant made a sale, was necessary to the earlier conviction. Further the parties meet the identity requirement, inasmuch as state agents involved in the criminal prosecution are the defendants herein. See Willard v. United States, 5 Cir., 1970, 422 F.2d 810, 811-812.

Finally, the general rule is that collateral estoppel applies equally whether the prior criminal adjudication was based on a jury verdict or a guilty plea. See Metros v. United States District Court, 10 Cir., 1970, 441 F.2d 313, 317, 319; Hyslop v. United States, 8 Cir., 1958, 261 F.2d 786, 790; United States v. Accardo, D.N.J., 1953, 113 F.Supp. 783, 786, aff’d, 3 Cir., 208 F.2d 632; 1B Moore, Federal Practice (1974) § 0.418, p. 2706. For arguments contra, see State Farm Mutual Auto. Ins. Co. v. Worthington, 8 Cir., 1968, 405 F.2d 683, 686-687, and 1B Moore, Federal Practice (1974) § 0.418, pp. 2707-08.

We are satisfied that the general rule should be followed, especially where, as here, the party barred by collateral estoppel has the option of challenging the earlier adjudication through a habeas corpus petition. If such a petition were successful, it would ordinarily remove the bar imposed by the guilty plea. See Shank v. Spruill, 5 Cir., 1969, 406 F.2d 756, 757; Moran v. Mitchell, D.Va., 1973, 354 F.Supp. 86, 90.

We also note that as to the defendant district attorney the complaint is due to be dismissed for a second reason, that of immunity — -there are no allegations of actions clearly outside the scope of his jurisdiction. See Madison v. Gerstein, 5 Cir., 1971, 440 F.2d 338, 340-341; Kauffman v. Moss, 3 Cir., 1970, 420 F.2d 1270, 1272-1273.

The judgment of the district court is

Affirmed.

      . The district court dismissed on the ground that appellant’s remedy was by way of ha-beas corpus. Cf. Alexander v. Emerson, 5 Cir., 1973, 489 F.2d 285. But see Preiser v. Rodriguez, 1973, 411 U.S. 475, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439, 453, with respect to prisoner actions for damages only.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph Roland Roger SAVARD, Defendant-Appellant.
    No. 73-2926.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing Denied June 11, 1974.

      Robert Dyer, Orlando, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Jeffry R. Jontz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appel-lee.
    Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

A jury found Savard guilty of violating 8 U.S.C. § 1324(a)(2), and he was sentenced to one year in prison. All but three months was suspended. This appeal followed.

A Canadian citizen with a permanent United States work permit, Savard was chief of a fruit picking crew in Florida. His pay consisted of a percentage of the profits made from the picked fruit. Gene Mark Levesque is a Canadian citizen without a United States work permit of any type. While in Canada, Savard and Levesque agreed that Levesque would cross into the United States, meet Savard, who would then take Levesque to Florida to work. This was done, Sa-vard carrying Levesque’s baggage across the border and Levesque riding with friends so as not to arouse suspicion. In the United States they met and proceeded south. Upon arrival in Florida they were apprehended.

There are five contentions on appeal. First, the indictment should have been dismissed because it did not allege essential facts with requisite particularity to constitute an offense under the statute. We find that the indictment, plus the bill of particulars, properly advised the appellant of the offense charged. An almost identical situation existed in Bland v. United States, 299 F.2d 105 (5th Cir. 1962). That decision controls. See, Banderas-Aguirre v. United States, 474 F.2d 985 (5th Cir. 1973). See also, United States v. Duran, 411 F.2d 275 (5th Cir. 1969) and Hayes v. United States, 407 F.2d 189 (5th Cir. 1969).

Second, appellant challenges the sufficiency of the evidence of the violation. A thorough analysis of this statute, as was done in Herrera v. United States, 208 F.2d 215 (9th Cir. 1953), cert. den., 347 U.S. 927, 74 S.Ct. 529, 98 L.Ed. 1080 (1953), combined with a complete review of the evidence convinces this court that sufficient evidence existed to justify a guilty verdict. Appellant’s fourth contention of error is also controlled by our finding as to this second allegation. Furthermore, the trial record demonstrates on its face that appellant’s allegation as to Levesque’s inability to communicate is meritless.

Last, it is urged that the trial court erred in the giving of a supplemental charge. After the jury retired to deliberate, a note was sent to the court requesting a more precise definition of “furtherance of a violation.” The request was granted. The total elapsed time from the jury’s rising to go deliberate and its being reseated to hear the supplemental instructions was 34 minutes. Appellant now asserts that because of this time lapse, favorable and unfavorable instructions were not kept in equal focus. Bland, supra, and Perez v. United States, 297 F.2d 12 (5th Cir. 1961) are relied on to support this argument. In Bland the elapsed time was four hours and in Perez a minimum of 12 hours.

The trial court apparently determined that the jury had in effect deliberated no more than ten minutes. Even then, the court instructed them not to give unequal weight to any of the instructions. We conclude that under these facts no error occurred. The lower court is

Affirmed.

      . 8 U.S.C. § 1324(a) (2) provides:
      (a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
      (2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
      any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.

      . Appellant’s fourth contention was that the evidence was not sufficient for the case to go to the jury.

      . Appellant and appellee apparently miscalculated the time in their briefs.


author: KILKENNY, Circuit Judge:

text:
    James BURCHETT, Appellant, v. Harold J. CARDWELL, Warden, Arizona State Penitentiary, Appellee.
    No. 72-2685.
    United States Court of Appeals, Ninth Circuit.
    Feb. 25, 1974.

      Paul G. Ulrich (argued), of Lewis & Roca, Phoenix, Ariz., for appellant.
    William J. Schafer, III, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for appellee.
   OPINION

Before KOELSCH, DUNIWAY and KILKENNY, Circuit Judges.

KILKENNY, Circuit Judge:

•This is an appeal from the denial of appellant’s habeas corpus petition in which he charged that his pleas of guilty to: (1) assault with intent to commit rape, and (2) kidnapping and statutory rape in the state court of Arizona were unconstitutionally induced by: (a) coercion of police while appellant was mentally unbalanced; and, (b) ineffective assistance of counsel, both of which combined under a totality of circumstances to render the guilty pleas involuntary.

At the outset, the appellant is faced with the now well established legal precept that when a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense of which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty pleas. A defendant may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). See Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

The district court, after an exhaustive hearing, rejected each of appellant’s factual claims, and found that the plea was voluntary and that appellant had effective assistance of counsel. Our examination of the record convinces us of the correctness of the district court’s findings. In these circumstances, the lower court’s findings must control. Pine v. Estelle, 470 F.2d 721, 722 (CA9 1972); Albrecht v. Nelson, 462 F.2d 623 (CA9 1972); Moss v. Craven, 427 F.2d 139 (CA9 1970). The facts are such that their recital would add nothing to the validity of our conclusions.

There is no similarity between the record before us and the factual pattern presented in Davis v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966), relied upon by appellant, where the police activity included: (1) repeated police interrogation without outside advice for sixteen days; (2) a low nutrition diet; (3) forcing the accused at 5:00 A.M. to retrace his whereabouts on the night of the crime; and (4) other subtlety deceptive police tactics, all of which led to a confession. No such police activity appears in this record.

Additionally, appellant claims: (1) that Arizona Revised Statute § 13-492(C), as construed and represented to appellant at the time of his decision to enter a plea of guilty, placed an unconstitutional taint on the legislation, and (2) that the construction of the same statute by the supreme court of Arizona so as to permit a sentencing judge to impose a sentence of life imprisonment for kidnapping was in direct conflict with the sentencing requirements of Arizona Revised Statute § 13-1643.

Even conceding, which we do not, that Arizona Revised Statute § 13-492(C), presents constitutional problems under the teaching of United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the issue cannot be raised where a plea of guilty is voluntarily made with the assistance of effective counsel. Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970). We additionally find no constitutional error in the supreme court of Arizona’s construction of Arizona Revised Statute § 13-492(C), which would allow the trial court to impose a life sentence.

State v. Bennin, 107 Ariz. 1, 480 P.2d 651 (1971); State v. Wheatley, 106 Ariz. 524, 479 P.2d 409 (1971); and State v. Burchett, supra,, dispose of appellant’s second point. Appellant’s reliance on Ard v. State, 102 Ariz. 221, 427 P.2d 913 (1967), and State v. Foggy, 101 Ariz. 459, 420 P.2d 934 (1967), is entirely misplaced. Simply stated, the law of Ard is that in the absence of statutory authority, the imposition of the life sentence is improper in jurisdictions having a mandatory indeterminate sentence law. The statute under which appellant was prosecuted, Arizona Revised Statute § 13-492(C), specifically requires the imposition of the life sentence. See State v. Burchett, supra. Despite appellant’s argument to the contrary, Johnson v. Arizona, 462 F.2d 1352 (CA9 1972), is not in point. There, we held that the Arizona courts might have denied appellant the equal protection of Arizona law by the manner in which they applied the results of the decisions in Ard, supra, and Foggy, supra. Appellant points to no similar treatment of defendants sentenced under § 13-492(C).

Moreover, it was within the trial court’s power to sentence appellant to consecutive life terms. State v. Burchett, supra-, State v. Bennin, supra-, and State v. Wheatley, supra.

Finally, appellant argues that he was denied due process because only three of the five justices of the Arizona Supreme Court heard the oral arguments on appeal. Appellant cites no authority in support of his contention, nor is support revealed by our extensive research. Closely in point, however, is our decision in Dredge Corp. v. Penny, 338 F.2d 456 (CA9 1964), where we held that the opportunity to be heard orally on questions of law is not an inherent element of procedural due process, even where substantial questions of law are involved.

Finding no error, we affirm the judgment of the lower court.

      . State v. Burchett, 107 Ariz. 185, 484 P.2d 181 (1971).


text:
    Bobby T. GRIFFITH and William E. Vandiver, Plaintiffs-Appellants, v. Edsel EDWARDS, Sheriff, Defendant-Appellee.
    No. 73-1469.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 14, 1974.
    Decided Feb. 28, 1974.
    Rehearing and Rehearing En Banc Denied March 22, 1974.
    John L. Oliver, Jr., Cape Girardeau, Mo., for plaintiffs-appellants.
    Stephen R. Mitchell, Dexter, Mo., for defendant-appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This is an appeal from a jury verdict in favor of the appellee Edwards, Sheriff of Stoddard County, Missouri, at the time of the complaints alleged. The suit, filed on the basis of the Civil Rights Act of 1964, Title 42 U.S.C. § 1983, sought monetary damages and in-junctive relief.

The appellants complain that the ap-pellee abused them mentally and physically, beat them, stomped them, forced them to eat through the bars of their cells, refused them proper bedding and showers, as well as normal visiting privileges, sprayed them with mace, forced them to do push-ups, denied them drinking water and forced them to drink from the cell commode. The appellee filed a motion for summary judgment, supported by affidavits, asserting that the charges made were complete fabrications. The motion was denied upon consideration of the affidavits pro and con and the case was set down for trial.

Prior to trial thereof, appellants sought to recuse the trial judge under Title 28 U.S.C. § 144 *alleging that he was “an agent of Black Power groups” and agent for “black power movements in the City Jail in St. Louis; that he conspires with them to delay actions brought by members of the White Race and by this plaintiff, in particular,” and, in addition, that Judge Webster had “great personal interest and bias and prejudice in seeing that this plaintiff’s rights * * * are destroyed, covered up and concealed” due to his having been named as defendant in a suit brought by these plaintiffs.

The statutory requirements for disqualification, supra, were examined by us in United States v. Anderson, 433 F.2d 856 (8th Cir. 1970). It was there pointed out, among other requirements, that the affidavit must “allege specific facts and not mere conclusions or generalities.” Measured against the statutory requirements we find the affidavits insufficient. Even considering the allegations in the suit filed against Judge Webster as part of appellants’ affidavits, nothing therein contained, or in the affidavits themselves, amount to more than scurrilities and generalities falling far short of the specificities required by statute. There was no error in the denial of this motion.

The case proceeded to jury trial. Countering appellants’ charges the appellee denied, with supporting testimony, the brutalities alleged. The jury resolved the factual issues presented in appellee’s favor and, although appellants urge numerous errors in the conduct of the trial, in evidentiary rulings, and in instructions to the jury, we are not, after careful consideration thereof, persuaded of prejudicial error. Paraphrasing to some extent our holding in United States v. Christian, 427 F.2d 1299 (8th Cir.), cert. denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148 (1970), we note that although our courts are zealous in protecting a litigant’s every right, it has never been the function of a reviewing court to reverse a jury verdict unless some error of a prejudicial nature was committed. Such is not the case here. A litigant is entitled to a fair trial but not a perfect one. Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1952).

Affirmed.

      . 28 U.S.C. § 144 states in part:
      Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
      The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time * * *

      . Identical affidavits were filed by both appellants.

      . In the ease referred to, No. 730 251(2), leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) had been granted by Judge Webster. It was then assigned to Judge Regan who, prior to trial in the instant case, dismissed the action as “patently frivolous.”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Albert Jacob KREHBIEL,, Defendant-Appellant.
    No. 73-1376.
    United States Court of Appeals, Ninth Circuit.
    Feb. 19, 1974.
    Joan Celia Lavine, Los Angeles, Cal. (argued), for defendant-appellant.
    Robert C. Bonner, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
   OPINION

Before DUNIWAY and CHOY, Circuit Judges, and RENFREW, District Judge.

PER CURIAM:

Appellant, Albert J. Krehbiel, was indicted in five counts for armed bank robbery, 18 U.S.C. § 2113(a) and (d) (1970), and after a plea of guilty to one count, was sentenced to a term of 18 years in the custody of the Attorney General, 18 U.S.C. § 4208(a)(2) (1970). The instant conviction constituted Kreh-biel’s second for armed robbery. After sentencing, appellant filed a motion to modify the judgment to set aside and vacate the plea and sentence so that he could be committed as a narcotic addict under the Narcotic Addict Rehabilitation Act of 1966 (NARA), 18 U.S.C. §§ 4251-4255 (1970). The district court declined to impose sentence under NARA and denied the motion.

Krehbiel challenges the district court’s refusal to consider him for treatment as a narcotic addict as violating (1) the equal protection of the laws as embodied in the Fifth Amendment, (2) that amendment’s due process clause, and (3) the Eighth Amendment’s ban on cruel and unusual punishment. Submission of this case for decision was deferred pending a decision on the merits by the Supreme Court in the case of Marshall v. Parker, 470 F.2d 34 (9th Cir. 1972). We affirm.

In Marshall v. United States, 414 U.S. 417, 94 S.Ct. 700, 38 L.Ed.2d 618 (1974) the Court upheld the provision in the NARA, 18 U.S.C. § 4251(f)(4) (1970), which excluded from rehabilitative commitment, in lieu of penal incarceration, those addicts with two or more prior felony convictions. Finding a rational congressional purpose in excluding from the NARA program those addicts who because of prior felony records were less likely to be rehabilitated, the Court held that the Act did not deny either the rights of due process or equal protection. This reasoning and this holding are equally applicable to 18 U.S.C. § 4251(f)(1) (1970) which makes an offender who is convicted of a crime of violence ineligible for commitment under the Act. We therefore find no invidious discrimination and no equal protection violation in Krehbiel’s exclusion, as one convicted of a crime of violence, from NARA treatment.

The district court did not allow appellant to present independent evidence of his addiction to heroin. Appellant contends this violated his due process rights to a hearing on this issue. Section 4252 of NARA provides in part:

“If the court believes that an eligible offender is an addict, it may place him in the custody of the Attorney General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment.” (emphasis added)

Manifestly there could be no abuse of the district court’s discretion to determine whether appellant was an addict, since appellant was an ineligible offender under NARA in any event.

Finally, appellant contends that penal incarceration for a narcotics addict, in lieu of treatment under NARA, is cruel and unusual punishment under Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Appellant misconstrues the latter Supreme Court decision since he is not being punished for his addiction, as was the defendant in Robinson, but rather is being punished for having committed armed bank robbery. Ramos v. United States, 432 F.2d 423 (9th Cir. 1970); see Sanchez v. Nelson, 446 F.2d 849 (9th Cir. 1971).

Affirmed.

       The Honorable Charles B. Renfrew, United States District Judge for the Northern District of California, sitting by designation.

      . A “‘[c]rime of violence’ includes . (1970). robbery . . . .”18 U.S.C. § 4251(b)


text:
    Wallie W. MATTICE, Appellant, v. Lewis J. MESSER, Appellee.
    No. 73-1772.
    United States Court of Appeals, Eighth Circuit.
    March 14, 1974.

      Wallie W. Mattice, filed appendix and brief and transcript pro se.
    Herman Ginsburg and Norman Krivo-sha, Lincoln, Neb., filed brief for appel-lee.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This diversity case comes before the court upon appellee’s alternative motion for summary dismissal or affirmance. Upon study it appears that the questions presented do not require further argument. We affirm. See Local Rule 9.

Appellant, Wallie W. Mattice, brought this action, pro se, in the United States District Court for the District of Nebraska, Warren Urbom, Chief Judge. The suit was against Lewis J. Messer for the alienation of the affections of appellant’s wife. Judge Urbom ruled that the case was properly before the United States District Court on the basis of diversity jurisdiction, but that the applicable Nebraska statute of limitations barred the action.

On appeal Mattice, pro se, makes three contentions: (1) the trial court applied the incorrect statute of limitations; (2) the question of when the statute was tolled should have been decided by the jury; (3) the trial court applied improper case law.

Judge Urbom held that one of two Nebraska statutes was applicable. Under either of these statutes the limitation period is four years. Mattice has shown no prejudice resulting from the trial court’s ruling on this point. Compare Nebraska Revised Statutes §§ 25-207 and 25-212.

The record discloses that there was no question for the jury in this case. Mr. Mattice expressly agreed with the court and opposing counsel before trial that the court would determine the statute of limitations question. Furthermore, Nebraska Revised Statute 25-221 provides for preliminary rulings by the court on statute of limitation questions.

The evidence discloses and the trial court found that Mrs. Mattice left the home of Mr. and Mrs. Mattice in 1964 and that “from that time on there was, and as of that time there was a breach of her relationship with him” which was not renewed. The fact that appellant did not give up on the possibility of a renewal until 1970 did not alter the fact that no new cause of action accrued.

The trial court properly relied upon the Nebraska case of Von Dorn v. Rubin, 104 Neb. 465, 177 N.W. 653 (1920) which held that continuing damages after accrual of a cause of action does not extend the time of the cause of action. The statute of limitations commences when the initial wrong has been done. The fact .that the loss has been continuous goes only to the issue of damages. Von Dorn, supra, 177 N.W. at 653.

We are satisfied that the record presents no substantial evidence of renewal of affection after 1964. Compare Baltzly v. Gruenig, 127 Neb. 520, 256 N.W. 4, 7 (1934). Under the applicable Nebraska law the four-year statute of limitations began to run in 1964. This action is therefore barred.

Affirmed.

      . The instant action was filed August 29,1972.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CUSTOM CRAFT MANUFACTURING COMPANY, a Division of U. S. Industries, Inc., Respondent.
    No. 73-1923.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 4, 1974.
    Decided March 13, 1974.
    Fredrick Sagan, N.L.R.B. for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Alan D. Cirker, Atty., N.L.R.B., Washington, D. C., on brief.
    Robert F. Colvin, Memphis, Tenn., for respondent; Newell N. Fowler, George D. McCrary, Memphis, Tenn., on brief.
    Before WEICK, EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

The National Labor Relations Board seeks enforcement of its decision and order reported at 205 N.L.R.B. No. 111. In this order the Board found that the company violated § 8(a)(5) and (1) of the National Labor Relations Act, 29 U. S.C. § 158(a)(5) and (1)(1970), by refusing to bargain with a union which had previously been certified by the Board as exclusive bargaining representative. Previously the company and the union had stipulated to the holding of a consent election which the union won by 139 votes to 93. Subsequently the company filed objections to the election, claiming union misrepresentations, disruption, a power failure during the balloting, and improper appeals to religious bias by the union. The Regional Director’s investigation and report recommended that the objections be overruled and that the company’s request for a hearing be denied, and the Board in its decision and order followed this course.

It is clear that the record discloses a heated election campaign, with a good deal of strong propaganda on both sides. The principal complaint of the company seems to be that in a letter issued two days before the election, the union reported a rumor that the plant manager was secretly in favor of a union victory.

The plant manager himself had written or uttered some extremely strong antiunion propaganda in the period immediately prior to the election. Under these circumstances, we do not believe that, improper as the report of this rumor may have been, it could have materially affected the outcome of the election.

We also agree with the Board that the report of the Regional Director shows that the Board’s agent at the occurrence of the power failure took all necessary and appropriate steps to preserve the laboratory conditions for the election. Respondent concedes that it has refused to bargain with the union, as required by the Board’s previous certification of it as bargaining representative.

Enforcement of the order of the Board is granted.

      . Local No. 954, United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO-CLC.


text:
    King A. McCULLUM, Plaintiff-Appellant, v. UNITED INTERNATIONAL CORPORATION and Hamilton Transport Co., Defendants-Appellees, and American Bulk Loading Enterprises, Inc., a corporation, Third-Party Defendant-Appellee.
    No. 72-1857.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1974.
    Newton R. Brown, Wilmington, Cal. (argued), for plaintiff-appellant.
    Kenneth R. Chiate (argued) and Joseph G. Davis, Jr., of Lillick, McHose, Wheat, Adams & Charles, Kirtland & Packard, Law Firm, Los Angeles, Cal., for defendants-appellees.
    Before WRIGHT, KILKENNY and GOODWIN, Circuit Judges.
   OPINION

PER CURIAM:

The admiralty jurisdiction of the district court is in question on this appeal. The plaintiff-appellant was a longshoreman, employed by a stevedore company when he was injured on the pier in the course of unloading the defendant’s ship. Due either to a malfunction of a shore-based crane or to its improper operation by a fellow stevedore, a piece of cargo fell from the crane and struck the plaintiff as the crane swung from the ship to the deposit area on the pier.

The plaintiff sued in admiralty, alleging that the defendant was negligent and its ship unseaworthy. The district court granted summary judgment in favor of the defendant and the plaintiff appeals.

Federal admiralty jurisdiction [28 U.S.C. § 1333; 46 U.S.C. § 740] does not extend to injuries to stevedores on the pier caused by faulty or improperly operated pier-based equipment. Compare Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971); Chagois v. Lykes Bros. Steamship Co., 457 F.2d 343 (5th Cir. 1972); and Snydor v. Villain & Fassio, etc., 459 F.2d 365 (4th Cir. 1972) with Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963). We conclude, therefore, that plaintiff’s complaint did not state a claim of which the district court had jurisdiction.

The judgment of the district court is vacated, and the cause remanded with instructions to dismiss for lack of subject matter jurisdiction.


author: PER CURIAM:'

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ada Marie DAVIS, Defendant-Appellant.
    No. 74-1108
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 1, 1974.
    Gerald E. Hopkins, Houston, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

      Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y. et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:'

Pursuant to a plea bargain, Ada Marie Davis entered a plea of guilty to possessing a United States Treasury check which had been stolen from the mails, knowing the same to have been stolen, in violation of 18 U.S. C. § 1708. Two other counts of the Grand Jury indictment against her were dismissed. She appeals from a judgment and commitment to imprisonment for a period of thirteen months on the sole ground that the record of her arraignment and sentence contained no evidence that she knew the check she possessed was stolen. The government correctly responds to this contention by observing that a voluntary plea of guilty constitutes a judicial admission of all factual averments in the indictment. However, the instant appeal does raise a related issue amounting to plain error regarding the lack of compliance with the concluding proviso of Fed.R.Crim.P. 11, which reads:

The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

This factual basis must appear on the record. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Because the transcript of the arraignment and sentencing proceedings that form the record on this appeal fails to demonstrate the existence of such a 'factual basis for the plea of guilty to the charge of knowing possession of a stolen check, we must vacate and remand.

Defendant was represented before the court below by the same court-appointed counsel who prosecutes this appeal. At the time the defendant was arraigned the only area of inquiry that even remotely related to the development of a factual basis for her plea of guilty was the following:

THE COURT: Do you plead Guilty solely because you are Guilty ?

THE DEFENDANT: Yes, I do.

THE COURT: And do you do so willingly and voluntarily ?

THE DEFENDANT: Yes.

THE COURT: You want to do so?

THE DEFENDANT: Yes.

THE COURT: You have made the decision yourself without anyone persuading you or pressuring you?

THE DEFENDANT: Yes, I have.

In the course of his comments at the time of sentencing, the Assistant United States Attorney advised the court: “Defendant states she received this check from another individual knowing it was stolen and forged and cashed it.” Thereafter, the court had this exchange with the defendant:

THE COURT: If anything is to be corrected, you may make any corrections if you desire.

THE DEFENDANT: It’s not correct in saying I knew it was stolen at the time.

■X- -X -X -X -X- *

THE DEFENDANT: Before I was apprehended I knew it was stolen. After I cashed it I knew it was stolen.

THE COURT: After you cashed it?

THE DEFENDANT: Yes, sir. But still I was wrong, because I know I shouldn’t have cashed it.

THE COURT: Well, I appreciate that. But your knowledge and intent is a vital element of this crime with which you are charged.

THE DEFENDANT: This is why I pled guilty.

THE COURT: You found out it was stolen when, after you were apprehended ?

THE DEFENDANT: The same day.

THE COURT: The same day ?

THE DEFENDANT: Yes.

THE COURT: From whom?

THE DEFENDANT: I received, I think it was, around $7, you know, for cashing the check. And I found out that the check was stolen and that I should have received more, had I known.

I thought I was doing a favor.

Would you like for me to explain that?

THE COURT: Well, you may. Yes, you may.

******

THE DEFENDANT: . . . Marvin Blunt told me that it was his wife’s check and she was in the hospital — I know he did have her two children and he asked me would I cash the cheek for him where I would cash my Welfare check because the folks knew me quite well. I didn’t cash it using the name Ada Marie Davis because it was not in that name.

Mr. Stokes has known me all of his life. He knew that I wasn’t Marie Sykes.

And then I found out later that she did not own the check and she wasn’t in the hospital.

Defendant’s counsel, expressing surprise at his client’s denial of an essential element of the count to which her plea had been entered, stated that he might wish to move to withdraw the plea and have the case set down for trial. However, without explanation or apparent reason he reconsidered this course and deliberately allowed the guilty plea to remain unchallenged.

To support the court’s action in accepting the guilty plea, the government first points to that portion of the defendant’s statement in which she admits that she knew the man who handed her the check, Marvin Blunt, by a different surname from that of the check’s payee, Marie Sykes; yet she maintained that Marie Sykes was represented to her as Marvin Blunt’s hospitalized wife. Ignoring the common law relationship possibilities, the government urges that this evidence would raise conflicting inferences sufficient to warrant submission of the issue of the defendant’s guilty knowledge of the check’s stolen character to a jury. Without comment on this postulation, we refuse to hold that such a tenuous inference, existing side by side with the defendant’s express denial that she had any knowledge that the check was stolen, presents a record that meets the requirements of Rule 11 as now written. We have stated that a judge taking a plea of guilty must make an inquiry which is “factually precise enough and sufficiently specific to develop that [defendant’s] conduct on the occasions involved was within the ambit of that defined as criminal.” Jimenez v. United States, 487 F.2d 212, 213 (5th Cir. 1973); United States v. Bethany, 489 F.2d 91 (5th Cir. 1974); see also Hulsey v. United States, 369 F.2d 284 (5th Cir. 1966). This is not to say that any claim of innocence prevents the acceptance of a guilty plea. In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), this contention was rejected, but Alford’s case arose from a state court proceeding not bound by Rule 11 and the record in his case contained evidence from two other witnesses which so strongly pointed to the defendant’s guilt that he himself considered his conviction probable.

The government raises a second contention that deserves comment on the present appeal. The defendant’s admissions demonstrate a factual basis for accepting a plea of guilty, had one been tendered, as to the second or third counts of the indictment. These counts charged Davis with forging the endorsement of Marie Sykes on the subject treasury check before she cashed it in violation of 18 U.S.C. § 495. Guilt upon either of these counts carried a stiffer maximum penalty than that which could be imposed on the Count I offense, to which her guilty plea was entered. Based upon this set of facts the government asserts that the defendant voluntarily relinquished “any doubt as to her guilt on the count to which she did plea” in exchange for the assurance of the lesser penalty. Although the argument is not without a degree of practical persuasiveness, its logic is faulty. A demonstration of guilt on counts which the prosecution has agreed to dismiss cannot form the basis for an adjudication of guilt on a less serious count that is otherwise without a basis in fact in the record. Cf. United States v. Ray, 431 F.2d 1177 (9th Cir. 1970).

The condition of this record requires that the judgment and commitment order appealed from be vacated as to the action taken on all three counts of the indictment. The cause is remanded to the court below for further proceedings not inconsistent with this opinion. Hall v. United States, 489 F.2d 427 (5th Cir. 1974).

Vacated and remanded.


text:
    In the Matter of Melvin Joseph TURNAGE, Bankrupt. PUBLIC FINANCE CORPORATION OF ALABAMA, Appellant, v. Melvin Joseph TURNAGE, Bankrupt, Appellee.
    No. 73-3752
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    Mayer W. Perloff, Mobile, Ala., for appellant.
    E. Graham Gibbons, Mobile, Ala., for appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   BELL, Circuit Judge:

Appellant, claiming to be a secured creditor of the bankrupt, filed a reclamation petition in bankruptcy court seeking certain property held by the trustee. The petition was denied on the sole ground that the description of the property in the financing statement was not sufficiently specific to satisfy Title 7A, § 9-402(1) of the Alabama Code. The district court adopted in full the opinion and order of the bankruptcy court, and this appeal followed. We reverse.

The collateral for the loan by appellant to the bankrupt was described in the security agreement as follows:

“All of the consumer goods including household goods, furniture and other personal property located in or about the debtors’ premises at their address set forth above, including but not limited to: living room furniture, dining room furniture, bedroom furniture, kitchen stoves, refrigerators, dishwashers, clothes washers and dryers, electrical appliances of all types, room air conditioners, radio and television sets, record and tape playing sets and equipment, cameras, movie projectors, sewing machines, silverware, crystal, china, musical instruments, sports equipment, books, paintings, power and manual garden tools including lawnmowers, and power and manual wood and metal working tools.”

(The foregoing appears on the printed form of the Security Agreement, and is immediately followed by- the following in type):

1 divan tan,

1 chair tan,

1 longe (sic) chair green,

1 occ table maple,

2 end tables maple,

2 lamps,

1 hifi pansonic [sic]

3 beds fruitwood,

3 chests fruitwood,

3 dressers fruitwood,

1 kitchen table maple,

6 chairs maple,

1 refrigerator signature elct,

1 deep freezer g.e. elct,

1 t.v. 21 inch color silvertone,

1 washing machine kenmore 1 dryer kenmore

This description of the collateral was prefaced by an after-acquired property clause.

A financing statement was timely filed, and described the collateral as “[a] 11 of the consumer goods, including but not limited to furniture, appliances and other household goods and personal property of all kinds and description now or hereafter located at Debtor’s address shown above.”

The district court concluded that the term “consumer goods,” as used in the financing statement, was too broad to constitute a sufficient description. However, this conclusion was based on a misapprehension of the function of a financing statement. Its purpose is discussed by the Alabama Court of Civil Appeals, in Associates Capital Corp. v. Bank of Huntsville, 1973, 49 Ala.App. 523, 274 So.2d 80, 83:

The purpose of filing the financing statement is notice to any third party. The requirement of the description of the collateral is not for the purpose of informing such third party that the exact item which he is considering taking as security is already subject to a prior security interest, without further inquiry, though such could be the result of a full and complete serial number description. The requirement of “a description that reasonably identifies” is satisfied if it reasonably informs third parties that a certain identifiable item, in this ease a 1967 BSA motorcycle, belonging to or in the possession of a debtor may be subject to a prior security interest and that further inquiry, is necessary to determine if it is the same motorcycle being offered them as collateral. Such is known as “notice filing.” It merely places other parties on notice that there is need for investigation before taking as security for a loan items of the same type belonging to the debtor or which he intends to purchase.

We think it abundantly clear that any third party considering accepting, as collateral, property covered by the above-quoted security agreement would receive ample notice in the financing statement that further inquiry was in order.

That notice is the role of the financing statement, and that general terminology can be sufficient, is also made clear in Galleon Industries, Inc. v. Lew-yn Machinery Co., 1973, 50 Ala.App.334, 279 So.2d 137, 141:

The sufficiency of a description in a financing statement is measured in terms of notice. Does the designation of “equipment now owned or hereafter acquired” give notice to a seller of a machine to be installed on the premises of an operating business and used in production that it is subject or likely to be subject to a perfected security interest ? We hold it does.

See also In re Wilco Forest Machinery, Inc., 5 Cir., 1974, 491 F.2d 1041 (applying Alabama law).

The cases relied upon by the district court are inapposite, and in any event cannot override the Alabama authority quoted above. In re Lehner, 10 Cir., 1970, 427 F.2d 357, affirmed a district court decision that three pieces of household electronic equipment were insufficiently described in a financing statement as “consumer goods.” Aside from the fact that there the appellate court decided only that the district court was not “clearly wrong,” we note that in the instant case both the financing statement and the security agreement refer to all consumer goods at a specific address, and greater specificity in the financing statement is neither practical nor necessary to put potential creditors on notice.

In re Laminated Veneers Co., Inc., 2 Cir., 1973, 471 F.2d 1124, concerned not a financing statement, but rather a security agreement. The court noted that the purpose of the latter is to express the intent of the parties, not merely to instigate further inquiry by third parties. Thus the description of collateral in the security agreement is subject to stricter standards of specificity than is that in the financing statement. *****8 On this basis the court concluded that “equipment” was insufficient to describe two automobiles, especially where another motor vehicle had been listed separately.

In re Fuqua, 10 Cir., 1972, 461 F.2d 1186, concerned a security interest in livestock, feed and machinery. The court ruled that “all personal property” was an insufficient description in a financing statement, although it recognized that under Kansas law “all personal property . . . in a certain county” would be sufficient. For our purposes, we need note only that the financing statement before us referred to “consumer goods,” which is a defined subclass of all personalty, Ala.Code, Tit. 7A, § 9-109(1), and that it further restricted the description to those consumer goods located at a specific address.

The judgment of the district court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . Title 7A, § 9-402(1) is in relevant portions identical to the corresponding section of the
      Uniform Commercial Code. It provides as follows:
      (1) A financing statement is sufficient if it . . . contains a statement indicating the types, or describing the items, of collateral. ...

      . Section 9-203 (1) (b) of the Uniform Commercial Code, which has been adopted verbatim in Alabama, requires that a security agreement contain “a description of the collateral.” This requirement should he compared with that of section 9-402(1), requiring of a financing statement only that it contain “a statement indicating the types, or describing the items, of collateral” (emphasis added).
      In pointing out this distinction between financing statements and security agreements, we do not mean to suggest that the term “consumer goods,” which is defined at UCC § 9-109(1), is too general a term for use in the latter. That issue is not before this court,