author: WILLIAM E. MILLER, Circuit Judge.

text:
    SECURITIES AND EXCHANGE COMMISSION, Appellee, v. GUARANTY BOND AND SECURITIES CORP. et al., Defendants, James C. Barbour, Receiver, Appellant.
    No. 73-1451.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1973.
    Decided April 23, 1974.

      W. Ovid Collins, Jr., Cornelius, Collins, Higgins & White, Nashville, Tenn., on brief, for defendant-appellant James C. Barbour.
    Michael A. Macchiaroli, Washington, D. C., for plaintiff-appellee S.E.C.; Lawrence E. Nerheim, Gen. Counsel, David Ferber, Solicitor, Securities and Exchange Comm., Washington, D. C., on brief.
    Wilfred R. Caron, Associate Gen. Counsel, Securities Investor Protection Corp., Washington, D. C., for appellee S.I.P.C., Theodore H. Focht, Gen. Counsel, Securities Investor Protection Corp., Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, CELEBREZZE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

Guaranty Bond and Securities Corporation was registered with the S.E.C. as a broker and dealer in securities as required by Section 15(b) of the Securities Exchange Act of 1934. As part of its business, it promoted the sale of church bonds. On December 22, 1970, the S.E.C. filed in the court below a complaint against Guaranty alleging net capital violations contrary to the federal securities laws including Section 15(c)(3) of the Securities Exchange Act, 15 U.S.C. 78o(c) (3). Injunctive relief was sought against the alleged violations.

The district court, finding that Guaranty had violated the S.E.C.’s net capital rule and that such violation had existed for a substantial period of time prior to the filing of the complaint by the S.E.C., granted a preliminary injunction. The court further found that between the filing of the complaint on December 22, 1970 and the granting of the injunction on January 6, 1971, Guaranty had continued to engage in substantial business, handling 101 transactions after the effective date of the Act creating the Security Investor Protection Corporation. On application of S.E.C., a receiver was appointed for Guaranty to take charge of all of its assets subject to the further orders of the court.

On March 31, 1972, the receiver filed a petition for an order directed to the S.E.C. and the Securities Investor Protection Corporation requiring each of them to show cause why S.I.P.C. should not be required to intervene in the action and afford to the customers of Guaranty the benefits of the Act. The show cause order was issued accordingly and both S. E.C. and S.I.P.C. responded. The court, without an evidentiary hearing, filed its memorandum opinion in which it found that the Act (S.I.P.A.) was inapplicable to customers of Guaranty for the reason that Guaranty was insolvent and in financial difficulties before the effective date of S.I.P.A. To hold otherwise, it was said, would be to give the Act a forbidden retroactive effect. The court accordingly ordered that S.I.P.C. should be dismissed from the action. This order was certified as a final judgment for purposes of appeal.

The Securities Investor Protection Act was enacted in response to the need to protect the customers of securities brokers and dealers which might fail, thereby jeopardizing the cash and securities that customers had left on deposit with the firm. S.I.P.A. accordingly created the Securities Investor Protection Corporation as a “non-profit corporation,” not designed to “be an agency or establishment of the United States Government,” but rather to be “a membership corporation,” consistent with the self-regulatory nature of the securities industry. 15 U.S.C. 78ccc(a). The S.I.P.C.’s role is primarily one of consultation and cooperation with the self-regulatory organizations which remain subject to the federal securities laws and the rules of the S.E.C. By mandating membership in the S.I.P.C. for certain members of the securities industry and by granting the S.I.P.C. general assessment authority over the members in order to establish an S.I.P.C. fund, Congress accomplished its intention that the cost of providing protection to customers under S.I.P.C. was to be borne by the securities industry itself.

Under 15 U.S.C. Sec. 78 eee(a)(l), if ‘the S.E.C. or any self-regulatory organization believes that a broker or dealer subject to its regulation is in, or approaching, financial difficulty, it must notify immediately the S.I.P.C. If the S.I.P.C. determines that a member broker or dealer has failed or is in danger of failing to meet its obligations to customers, it is authorized to seek a decree in an appropriate court adjudicating that the customers of a member of S.I. P.C. are in need of the protection of the Act. 15 U.S.C. Sec. 78 eee(a)(2). Upon so finding, the district court shall grant the decree and appoint a trustee for the liquidation of the business and an attorney for the trustee. The objectives of the proceeding, in addition to operating the business for a limited purpose, completing the open contractual commitments of the dealer, enforcing rights of subrogation and liquidating the business of the dealer, are “as promptly as possible” (1) to return specifically identifiable property to the customers of a firm, (2) to distribute the “single and separate fund,” and (3) to pay to customers monies advanced by S. I.P.C. 15 U.S.C. 78 iff (a). To provide for prompt satisfaction of the net equities of the dealer’s customers, S.I.P.C. must advance to the trustee such monies as may be required to satisfy the full claims of each customer not to exceed $50,000. 15 U.S.C. 78 fff(f).

If S.I.P.C. refuses to act, the S.E.C. is authorized by 15 U.S.C. 78 ggg(b), to apply to the court for an order requiring the S.I.P.C. to discharge its obligations under the Act.

The present appeal involves a unique situation. The appellant, as mentioned earlier, urges, contrary to the district court’s decision, that the Act is applicable to Guaranty Bond. The S.E. C. agrees with the appellant’s contention that the Act is applicable, but challenges the court’s decision that the receiver has standing to petition the court to apply the Act. The S.I.P.C. agrees with the district court as to the inapplicability of the Act but challenges, along with the S.E.C., the receiver-appellant’s standing to obtain compliance with the Act.

The S.I.P.A. was effective on December 30, 1970. In two cases, Lohf v. Casey, 330 F.Supp. 356 (D.Colo.1971), aff’d. 466 F.2d 618 (10th Cir. 1972) and Bohart-McCaslin Ventures, Inc. v. Midwestern Securities Corp., 352 F.Supp. 937 (N.D.Texas 1973), courts have held that S.I.P.A. was not intended to apply to a broker-dealer who had failed prior to that date. The district court in Lohf, supra 330 F.Supp. at 358 stated:

“. . . it is equally clear that Congress expressed an intention of refusing to make the Act retroactive. The record is replete with comments to that effect, the most cogent example being the report of the Committee on Interstate and Foreign Commerce:

‘It is the clear intention of your committee that SIPC assume no liability for firms either in net capital violation, in liquidation, or in bankruptcy at the time of creation of SIPC. H.R.Rep.No.1613, 91st Cong., 2nd Sess. 14 (Oct. 21, 1970), reprinted in 3 U.S.Code Cong. & Admin.News ’70 at 5268.’

This language is frequently echoed in the debates on this bill, and it seems clear that Congress did not intend the bill to operate retroactively.”

Congress seemed to be concerned that 5.1. P.C. not be used to compensate customers of member firms of the New York Stock Exchange which “have closed their doors and begun liquidation,” when the Exchange had not advanced money from its existing trust fund to protect the customers of those firms. As mentioned earlier in the Lohf quote, the Committee Report did use very broad language when it stated that coverage be withheld from firms “either in net capital violation, in liquidation, or in bankruptcy at the time of creation of 5.1. P.C.” H.R.Rep.No.91-1613, 91st Cong., 2d Sess. p. 14 (1970). The meaning of this broad language was subsequently clarified by Representative Moss, sponsor of the Bill, on the floor of the House, when he stated:

“Finally, we have been concerned all along with the problem of providing protection to the customers of firms that might fail before enactment of the bill into law. We early anticipated this possibility but we have specifically declined to make the bill retroactive in its application. The bill is prospective from the date of its enactment.” [emphasis supplied] 116 Cong.Rec. 39350-39351, 12-1-70.

Congress, lacking precise information on the condition of the industry, was concerned with the impact that S.I.P.C. coverage might have on the Treasury. The losses that had already been experienced by the industry were regarded by Congress as the industry’s responsibility. S.Rep.No.1218, 91st Cong.2d Sess. 6 (1970); H.R.Rep.No.91-1613, . 91st Cong., 2d Sess. 14 (1970).

Clearly to apply S.I.P.C. to a firm that was bankrupt prior to the Act would be to give the Act a retroactive application that runs counter to the Act’s clear purpose as reflected by its legislative history. However, application of the Act to Guaranty .would not be in our view a retroactive application. “A statute is not rendered retroactive merely because the facts or requisites upon which its subsequent action depends are drawn from a time antecedent to its enactment.” Benjamin v. Hunter, 10 Cir., 176 F.2d 269 at 272. The time period of the financial difficulties of the broker-dealer bears more on the status of the broker within the meaning of the Act than upon the issue of retroactivity.

The court in Lohf found the absence of business activity subsequent to the effective date of the Act as determinative of the non-coverage issue when it stated:

However, it is apparent that plaintiff was not conducting its business as a broker or dealer at the effective date of the Act. The business was in the jurisdiction of the bankruptcy court, and the day to day decisions were being made by the trustee. We cannot consider plaintiff then to be a “broker or dealer,” whether registered or not, as contemplated by the Act. It makes no difference for these purposes that plaintiff’s registration had not been officially terminated, and thus the automatic membership in the Securities Investor Protection Corporation may have continued in form. It could not be expected that the Act could be applied to firms which had already gone out of business. Plaintiff thus did not have the status of a broker or dealer for the purposes of the Act. 466 F.2d at 620.

The district court in Bohart-McCaslin Ventures, Inc., supra 352 F.Supp. at 940 made a similar determination when it stated;

For purposes of determining coverage under the Act, this Court discerns no legal difference between a firm in bankruptcy and a firm in the financial and legal condition which Midwestern suffered prior to the effective date of the Act. Midwestern, prior to the effective date of the Act, had ceased to be a broker-dealer in any real sense of that term and has not resumed the normal activities of a broker-dealer even at the present time.

These determinations are not applicable to Guaranty since it actually conducted a substantial business after the effective date of the Act. In light of the purposes of the Act, the 101 transactions conducted by Guaranty after the effective date are sufficient, we believe, to qualify Guaranty’s customers for the protection provided by the Act. As the Tenth Circuit stated in Lohf concerning the coverage of the Act:

We must take this to mean firms or persons which were actually in business in the usual sense at the critical date were the “brokers or dealers” referred to. Congress was willing to extend coverage to then financially weak institutions and those of unknown strength, but the .line was drawn to exclude those which had failed and were thus in fact not brokers or dealers. Supra 466 F.2d at 621.

We hold that Guaranty, though financially weak, was, in fact, a broker or dealer at the effective date of the Act.

The court below focused on the filing date of the action against Guaranty by the S.E.C. which was prior to the effective date of the Act. However, the S.E. C. did not seek to force Guaranty into receivership until after the effective date. Therefore, the filing of the original S.E.C. action did not prevent Guaranty from conducting normal business after the effective date of the Act and thus qualifying as a broker-dealer.

The S.I.P.C. and the S.E.C. challenge the receiver’s standing to bring an action to compel either of them to act under the S.I.P.A. The court below held that the provisions of the Act “do not limit this court’s power to adjudicate an enforcement action brought by a receiver of an insolvent member of S.I.P.C.” We agree. The appellees point to an absence of express language providing for an enforcement action by the customers of a securities company or their representatives as prohibiting such an action. We are persuaded, however, that the lack of express language of exclusivity in providing for an enforcement action by the S.E.C., coupled with a general provision allowing for suits against the S.I.P.C., evidences an intent by Congress that the statute should not be as narrowly construed as the appellees urge.

The customers of Guaranty have a definite interest in the application of the S.I.P.A. to the present litigation. The receiver, the representative of the customers of Guaranty, seeks to have the S.I.P.C. meet its obligations to the customers under the broad purposes of the S.I.P.A. Apparently, the S.I.P.C. has not attempted to obtain an adjudication of the necessity for providing the protections of the S.I.P.A. to the customers of Guaranty. Nor has the S.E.C. moved to compel the S.I.P.C. to meet its obligations. We do not believe that Congress intended under such circumstances to leave the customers of securities firms without remedy under the S.I.P.A. Furthdrmore, despite the appellees urgings, we find no constitutional or statutory prohibition to the maintenance of an enforcement action by the receiver in this case.

The judgment of the district court holding the S.I.P.A. inapplicable and dismissing the action as to S.I.P.C. must therefore be reversed for the reasons stated herein. Since we reject the premise on which the S.I.P.C. was dismissed as a party to the action — the inapplicability of the S.I.P.A. to a company of Guaranty’s status- — the action is remanded to the district court for proceedings consistent with this opinion and specifically to determine and enforce any rights of Guaranty’s customers under the S.I.P.A.

      . The legislative history shows the purpose of the S.I.P.A.
      The serious and persistent financial problems besetting the securities industry in recent months have led to the voluntary liquidations, mergers, receiverships or, less frequently, bankruptcies of a substantial number of brokerage houses. Such failures may lead to loss of customers’ funds and securities with an inevitable weakening of confidence in the U. S. securities markets. Such lessened confidence has an effect on the entire economy. Whatever other steps must be taken to improve these conditions, one objective of the bill, as reported, is to provide investors protection against losses caused by the insolvency of their broker-dealer. The need is similar, in many respects, to that which prompted the establishment of the Federal Deposit Insurance Corporation and the Federal Savings and Loan Insurance Corporation.

        4 U.S.Code Congressional and Administrative News, p. 5255 (1970).

      . The members of S.I.P.C., as defined by 15 U.S.C. Sec. 78ecc (a) (2), are:
      (A) all persons registered as brokers or dealers under section 78o(b) of this title, and
      (B) all persons who are members of a national securities exchange, other than persons whose business as a broker or dealer consists exclusively of (i) the distribution of shares of registered open end investment companies or unit investment trusts, (ii) the sale of variable annuities, (iii) the business of insurance, or (iv) the business of rendering investment advisory services to one or more registered investment companies or insurance company separate accounts;

      . S.I.P.O.’s first responsibility under the Act was to establish a fund which would consist of all amounts received by S.I.P.C. and from which all expenditures would be paid. 15 U.S.C. Sec. 78ddd(c). If the fund should become insufficient for the purposes of the Act, the S.E.C. is authorized, if necessary for the protection of the customers of brokers and dealers and for the maintenance of confidence in the United States securities markets, to issue notes under certain conditions to the Secretary of the Treasury in an amount up to one billion dollars, which then may be lent to S.I.P.C. 15 U.S.C. 78ddd(g).

      . 15 U.S.C. 78ggg(b) provides that:
      In the event of the refusal of SIPC to commit its funds or otherwise to act for the protection of customers of any member of SIPC, the Commission may apply to the district court of the United States in which the principal office of SIPC is located for an order requiring SIPC to
      discharge its obligations under this chapter and for such other relief as the court may deem appropriate to carry out the purposes of this chapter.
      As mentioned above, this section is hardly couched in terms of exclusivity — a feat easily accomplished had it been the intent of Congress.

      . 15 U.S.C. 78ccc(b) (1) provides that the S. I.P.C. has the power “to sue and be sued, complain and defend, in its corporate name and through its own counsel, in any court, State, or Federal.”

      . To meet the “case or controversy” requirement of . the Constitution, the Supreme Court has formulated a standard for ascertaining those persons with “standing” for maintaining an action in a federal court. The standard as defined by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1971), is that one must have suffered “injury in fact.” and the, injury must be to an “interest arguably within the zone of interests to be protected.” The customers of Guaranty and their representative clearly meet this broad standard. See also Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184.

      . As mentioned earlier, there are no terms of exclusivity of enforcement in the statute.

      . The S.I.P.C. also attacks the jurisdiction —both subject matter and in personam — of the district court to entertain this action. We find that the district court sufficiently disposed of these contentions in its memorandum opinion.


source: Caselaw Access Project

author: SNEED, Circuit Judge: HUFSTEDLER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Antonio R. SEDILLO, Appellant.
    No. 73-2215.
    United States Court of Appeals, Ninth Circuit.
    April 23, 1974.
    Michael T. Kenny, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Alvin S. Michaelson (argued), Los Angeles, Cal., for appellant.
    Before CHAMBERS, HUFSTEDLER and SNEED, Circuit Judges.
   SNEED, Circuit Judge:

Appellant was walking up a freeway on-ramp when he was stopped by a police officer. In response to the officer’s request, appellant was unable to produce identification but did indicate his name was Tony Sedillo. The officer then noticed in appellant’s shirt pocket an envelope containing what appeared to be a Treasury check. The name “Mitsuri E. Nagaya” was clearly visible through the transparent window of the envelope. Without asking, the officer reached to pull the check from appellant’s pocket. Appellant explained at this time that he had found the check in the street. After removing the check- from Sedillo’s pocket and observing that it had been endorsed, the officer asked appellant to sign his name in a notebook. Based upon the similarity of handwriting, appellant was placed under arrest for forgery and given the Miranda warnings. Subsequent to the taking of a second handwriting exemplar, appellant gave a full confession.

Appellant first attacks the legality of the officer’s initial “seizure” of the envelope. It has long been settled, however, that objects falling within “the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968). Although general exploratory searches are not to be permitted, the plain view doctrine is properly applied to situations in which a police officer is not searcing for evidence against the accused but nevertheless inadvertently comes across an incriminating object. See, e. g., Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); United States v. Brown, 470 F.2d 1120 (9th Cir., 1972). This is just such a case. Under the circumstances, the officer had probable cause to seize the check. See United States v. Wheeler, 148 U.S.App.D.C. 204, 459 F.2d 1228 (1972). While we recognize that it may have been more polite for the officer to request permission to examine the check, the failure to do so does not raise the issue to a level of constitutional dimensions. Not every breach of etiquette poses a constitutional issue. Compare United States v. Fisch, 474 F.2d 1071 (9th Cir.), cert. denied 412 U.S. 921, 93 S.Ct. 2742, 37 L.Ed.2d 148 (1973).

Appellant also suggests that the two handwriting exemplars were illegally obtained. Since we view the initial “seizure” of the check as proper, we reject the argument that the exemplars are the fruit of prior lawlessness. Nor did the taking of the handwriting samples violate appellant’s rights under the Fourth or Fifth Amendments. See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

Finally, appellant attacks the admissibility of his confession. Because we are holding that the officer acted properly in “seizing” the check, and because appellant was fully informed of his Miranda rights, we also reject this argument.

Affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

Officer Haynes’ seizure of the envelope from Sedillo’s shirt pocket and his examination of the envelope’s contents cannot be justified on the facts of this case by application of the plain view doctrine.

The majority opinion recognizes, as it must, that a police officer does not have the authority to seize and open anything he can see merely because he has a legal right to be in a place which provides a view of the object: “The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” (Sibron v. New York (1968) 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917.)

The plain view doctrine, as explained by Mr. Justice Stewart in Coolidge v. New Hampshire (1973) 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, and paraphrased by Judge Sneed in the majority opinion, requires not only that the police officer have a prior justification for his initial intrusion, but also that during the course of the justified, initial intrusion, the officer “came inadvertently across a piece of evidence incriminating the accused.” Further, “the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them.” {Id.)

The difficulty in applying the plain view doctrine to the case at bench is that the incriminating check was not in plain view. All that the officer could see before he took the envelope from appellant’s pocket was the name and address of a person who appeared to be the payee of a check. The check itself and the endorsement of it were not visible until the officer extracted the check from the envelope and examined both sides of it. The officer’s view of the check was no greater than a postman’s view of the contents of a bill, enclosed in a similar envelope, addressed to a householder. No view of the incriminating aspects of the check became plain until the search and the seizure had been concluded. Thus, it was not “immediately apparent” that the envelope and the check were “evidence incriminating the accused.” (See United States v. Gray (6th Cir. 1973) 484 F.2d 352 (seizure of rifles in “plain view” impermissible because not “incriminating evidence” at time of seizure).)

Of course, if the object seen is itself contraband or if the officer has reasonable cause to believe that it is contraband, probable cause exists to seize it, assuming that the view was not initially obtained in violation of constitutional commands. (E. g., United States v. Brown, supra note 1 (sawed-off shotgun); Porter v. United States (9th Cir. 1964) 335 F.2d 602 (sawed-off shotgun).) However, when the object is not contraband, no seizure is permissible without probable cause to believe that some crime has been committed and that the object seized is an instrumentality or fruit of the crime or evidence incriminating a suspect. E. g., Warden v. Hayden (1967) 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782; Gilbert v. United States (9th Cir. 1966) 366 F.2d 923; Chapman v. United States (9th Cir. 1965) 346 F.2d 383.)

Nothing in the record of this case supports a conclusion that Officer Haynes at the time of the seizure had probable cause to believe that the envelope seen in Sedillo’s pocket was contraband, or that it contained contraband, or that it was evidence relevant to a crime that Haynes had probable cause to believe had been committed. Accordingly, the plain view doctrine cannot justify the seizure of the envelope and check.

Officer Haynes did approach Sedillo to question him about an apparent pedestrian violation. It is now well established that an officer without probable cause to arrest a suspect, whom he has properly detained for investigation and who he believes is armed and dangerous, may pat down the suspect to determine whether he is carrying a weapon. (Terry v. Ohio (1968) 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L.Ed.2d 889.) But the officer may not conduct a seizure or search more extensive than is required to protect himself from a potentially armed suspect. (Sibron v. New York, supra, 392 U.S. at 65, 88 S.Ct. 1889; see United States v. Robinson (1973) 414 U.S. 218, 227-229, 94 S.Ct. 467, 38 L.Ed.2d 427.) No one contends in this case that Officer Haynes’ seizure of the envelope from Sedillo’s pocket or the examination of the envelope’s contents was necessary to protect the officer’s person. Therefore, the seizure of the envelope cannot be upheld on the basis of Terry v. Ohio. (See 392 U.S. at 25-26, 88 S.Ct. 1868.)

Furthermore, neither the search nor the seizure can be justified as incident to a lawful arrest. The district court expressly found that probable cause to arrest on the forgery charge did not exist until after Officer Haynes seized the envelope, examined its contents, and further interrogated Sedillo. A search and seizure, illegal at inception, cannot be justified by what it reveals. (E. g., United States v. Di Re (1948) 332 U.S. 581, 595, 68 S.Ct. 222, 92 L.Ed. 210; Byars v. United States (1927) 273 U.S. 28, 29, 47 S.Ct. 248, 71 L.Ed. 520.) “[A] search incident to a lawful arrest may not precede the arrest and serve as part of its justification.” (Sibron v. New York, supra,, 392 U.S. at 67, 88 S. Ct. at 1905.)

Accordingly, this case is controlled by the rules of Coolidge, Terry, and Sibron, which compel suppression of the check, and by Wong Sun v. United States (1963) 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441, which requires that the exemplars and confession must likewise be suppressed as the fruits of an illegal search and seizure.

I would reverse.

      . This section of Mr. Justice Stewart’s opinion for the Court was concurred in by only three other Justices. However, the Ninth Circuit has adopted Justice Stewart’s reasoning and language. (E. g., United States v. Brown (9th Cir. 1972) 470 F.2d 1120, 1122-1123.)

      . Harris v. United States (1968) 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067, which involved an inspection of an in-custody suspect’s impounded car, is authority only for the proposition that clearly incriminating evidence which is in the plain view of an officer who has a right tc be in the position to have the view may be seized without a search warrant.

      . The majority’s reliance on United States v. Wheeler (1972) 148 U.S.App.D.C. 204, 459 F.2d 1228, is misplaced. In Wheeler, the district court found' that the officer had probable cause to believe that the envelope contained contraband, based upon tbe officer’s testimony that he had previously found narcotics in a similar envelope, similarly packaged and placed. The court of appeals upheld the district court’s finding and conclusion. In the case at bench, there was no evidence that the officer believed or had any cause to believe that the envelope contained any evidence of a crime; the officer had had no comparable prior experience. The district court found that no probable cause emerged until after the envelope was seized, examined, and Sedillo was further interrogated. The record amply sustains the district court’s finding and its conclusion.

      . Officer Haynes did not intend to effect a custodial arrest for Sedillo’s apparent pedestrian violation. Rather, he intended only to issue a traffic citation. Therefore, this violation cannot serve as a basis for a full search incident to arrest. (See United States v. Robinson, supra, 414 U.S. at 235-236, 94 S.Ct. 467.


author: KOELSCH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Norman TORBERT, Defendant-Appellant.
    No. 73-2541.
    United States Cburt of Appeals, Ninth Circuit.
    April 26, 1974.

      T. Rodger Duncan (argued), Hollywood, Cal., for appellant.
    Jan Lawrence Handglik, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee.

      Before KOELSCH and HUFSTEDLER, Circuit Judges, and TURRENTINE, District Judge.

       The Honorable Howard B. Turrentine, United States District Judge for the District of Southern California, sitting by designation.

   KOELSCH, Circuit Judge:

Thomas Norman Torbert appeals from his conviction on four counts of possession, passing, and transferring counterfeit Federal Reserve notes, 18 U.S.C. §§ 472 and 473.

The government’s evidence, credited by the jury, established that appellant knowingly passed a counterfeit $100 Federal Reserve note to make a payment to a finance company; and that he knowingly possessed and transferred twenty counterfeit $100 notes to two men, Barbusse and Nosratian. Both men testified against appellant. While there is considerable discrepancy in the testimony of appellant and that of the two accomplices, appellant does not here challenge the sufficiency of the evidence, nor could he successfully do so. Rather, he assigns as error various rulings of the district court. Finding none of the rulings erroneous, we affirm appellant’s conviction.

Appellant contends he was denied due process of law by the procedure used to transfer the case from the originally assigned judge to Judge Real, who tried the case. Appellant filed a timely motion to disqualify the original trial judge, accompanied by the required affidavit of prejudice and certificate of counsel. The moving papers assert facts sufficient to require disqualification under 28 U.S.C. § 144, which provides in part:

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit . . . such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.”

Without formally ruling on the motion for disqualification, the challenged judge transferred the case to the calendar of Judge Real. Such reassignment through agreement of the affected judge is allowed by Rule 2 of the Local Rules of the United States District Court for the Central District of California. General Order No. 104(i) of the same court, however, provides that a case returned to the Clerk by reason of disqualification shall be reassigned by the same random procedure used to originally assign the case. Appellant made a motion to Judge Real seeking to have the case reassigned in the random manner provided for by the General Order. The motion was denied, and Judge Real conducted the trial.

Appellant here contends that the reassignment of his case by the challenged judge, rather than by the random procedure, violates 28 U.S.C. § 144 and his right to due process. We disagree.

There is certainly no constitutional impediment to the procedure used to transfer the case. We are unwilling to presume, without any factual showing (and none was made here), that a judge to whom a case is thus transferred entertains prejudice against an accused. If the likelihood of prejudice of the second judge is not manifested in his conduct of the trial (and none appears here, then the accused has received from him the fair trial to which due process entitles him. See Chessman v. Teets, 239 F.2d 205 (9th Cir. 1956).

Reassignment pursuant to Rule 2 is also consistent with the language of the statute. Section 144 does not provide for the method by which cases should be reassigned, stating only that “another judge shall be assigned .” Appellant argues that the reassignment by the challenged judge to another of his own choosing violates the statutory directive that once a sufficient affidavit is filed, the judge “shall proceed no further therein . . . .” We do not so construe the statute. Once an affidavit is filed, the challenged judge, unless the case is to languish on his calendar in limbo, must invariably “proceed further” to rule on the legal sufficiency of the affidavit and to order the case either reassigned or returned to the clerk.

Nor does the spirit of the statute conflict with non-random reassignment. The statute prevents a challenged judge from affecting substantive rights by prohibiting him from proceeding. However, except when the litigant can establish that the judge to whom the case was transferred was at that time' also prejudiced in the matter, we do not consider a transfer the type of judicial action which can potentially prejudice appellant’s substantive rights and against which the statute is directed. Moreover, the statute itself reconciles the dangers of abuse of successive challenges with the prohylactic need for disqualification by limiting a litigant to one affidavit of prejudice in a case — the potential prejudice of subsequent judges is left to be dealt with by the appellate process. Here appellant has received what the statute provides — the right to challenge one judge, and trial before another judge, whose rulings are subject to review. Cf., United States v. Hoffa, 245 F.Supp. 772 (E.D.Tenn., 1965).

The failure of the district court to follow the procedure for random assignment outlined in its General Order does not require the reversal of appellant’s conviction. The General Order is a housekeeping rule for the internal operation of the district court which has “a large measure of discretion in interpreting and applying” it. Lance, Inc. v. Dewco Services, Inc., 422 F.2d 778, 784 (9th Cir. 1970). It does not give appellant a vested right to any particular procedure, so long as alternatives applied by the court are consistent with § 144 and constitutionally permissible. Having failed to show he was actually prejudiced by the failure to comply with the General Order, appellant is not entitled to reversal on that basis. United States v. Simmons, 476 F.2d 33 (9th Cir. 1973).

Appellant’s contention that a witness who could corroborate some of appellant’s testimony was erroneously disqualified from testifying is likewise without merit. At the request of the defense, the court ordered all witnesses not to discuss their testimony with other witnesses until all testimony was complete. During the first day of trial, a discrepancy became apparent between the testimony of appellant, and the alleged accomplice Nosratian. Appellant testified that Nosratian paid him the counterfeit bills to settle a bet on a pool game at a private club; Nosratian denied that he played pool at the club, and claimed it was closed when appellant alleged the game took place. At the close of proceedings on the first day of trial, appellant's counsel asked him to locate a witness to verify his story.

Appellant went to talk to the club’s manager. Rather than simply inquiring into whether the manager knew when the club had been open or whether Nosratian played pool there, appellant recited the substance of his own testimony to the potential witness, who agreed to testify that Nosratian had indeed played pool at the club during the period in question. Appellant’s violation of the court’s order was revealed by government questioning the next day, and the court disqualified the witness and excluded his testimony.

It is well settled that a court, in order to enforce a sequestration order, may in some circumstances exercise its discretion to disqualify an offending witness. See Holder v. United States, 150 U.S. 91, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); Taylor v. United States, 388 F. 2d 786 (9th Cir. 1967). However, because of the availability of alternative sanctions to enforce the order, and because of the constitutionally based right of the defendant to relevant testimony in his favor, see Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1968); Braswell v. Wainright, 463 F.2d 1148 (5th Cir. 1972), it is ordinarily an abuse of discretion to disqualify a witness unless the defendant or his counsel have somehow cooperated in the violation of the order. E. g., Braswell, supra, at 1155; Taylor, supra, at 788. Here the appellant himself violated the clear order, and we are satisfied that the trial court permissibly enforced the purpose of the order by disqualifying the witness to whom appellant had recited his testimony.

Continuing with appellant’s contentions, we conclude that the refusal of the district court to grant a continuance on the afternoon before trial was well within its discretion. United States v. Goodman, 457 F.2d 68 (9th Cir. 1972).

Likewise, the district court properly allowed the cross-examination of which appellant complains. Appellant’s direct testimony put his knowledge of the counterfeit nature of the bills and his intent in issue, and the government’s questioning probed the matter. In particular, the questions relating to the unindieted incident in which appellant bought a camera with four $100 counterfeit notes were proper both to explore intent and to lay a foundation for impeachment by appellant’s various inconsistent prior statements. United States v. Harding, 432 F.2d 1218, 1220 (9th Cir. 1970).

Appellant’s remaining contention is also without merit, but requires more than passing attention. Appellant sought to elicit evidence from several character witnesses. The government objected on the ground that such evidence was inadmissible until the government had first attacked appellant’s character. The judge, however, appears to have excluded the evidence, not on the ground urged, but because no adequate foundation was laid for its introduction. We affirm on that basis — none of the witnesses was sufficiently well acquainted with appellant’s reputation in the community to express an opinion.

The ground urged by the government was erroneous. The law is well settled that an accused may present, initially, evidence of his good character as relevant, substantive evidence bearing on the probability that he did not commit a particular act, or did so without the requisite knowledge or intent.' And, conversely, the government may not adduce proof of general bad character until the accused has first put his character in issue. E. g., Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L. Ed. 168 (1948). To the extent that Harris v. United States, 412 F.2d 384, 388 (9th Cir. 1969), is to the contrary, that decision is overruled.

The judgment is affirmed.

      . The failure of the district court to rule on the sufficiency of the affidavit of prejudice did not prejudice appellant, as the case was reassigned to a different judge. Cf., Benitez v. Bank of Nova Scotia, 141 F.2d 939 (1st Cir. 1944).

      . The government contends that the General Order was not violated because the original judge did not rule formally on the motion for disqualification. We think that the transfer by Buie 2 was the effective equivalent of a formal disqualification, see United States v. Hoffa, 245 F.Supp. 772 (E.D. Tenn.1965), and that at least the spirit, if not the letter, of the General Order was violated.

      . The procedure for reassignment outlined in the General Order is no doubt intended to maintain the appearance of justice and impartiality. And it ought to be followed.

      . This opinion has been circulated to all of the active judges of the court. No judge has requested that the case be reheard in banc.


author: WEICK, Circuit Judge. KRUPANSKY, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James REYNOLDS, Defendant-Appellant.
    No. 73-1393.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 11, 1973.
    Decided April 30, 1974.

      Martin J. Miller, Columbus, Ohio, for defendant-appellant; Robert P. Moses (court appointed) Moses & Miller, Columbus, Ohio, on brief.
    William D. Beyer, Asst. U. S. Atty., Cleveland, Ohio, for plaintiff-appellee; Frederick M. Coleman, U. S. Atty., on brief.
    Before WEICK, Circuit Judge, O’SULLIVAN, Senior Circuit Judge, and ALLEN, District Judge.

       The Honorable Charles M. Allen, Judge, United States District Court for the Western District of Kentucky, sitting by designation.

   WEICK, Circuit Judge.

Reynolds has appealed from his conviction by a jury on an indictment charging him with robbery, by force and violence and by intimidation, of the Ravenna Road branch bank of the Twins-burg Banking Company, a federally insured bank, and putting in jeopardy the lives of employees of the bank with a handgun, in violation of 18 U.S.C. § 2113(a) and (d).

The bank robbery took place on August 31, 1972, at 10:30 o’clock a. m., when three armed robbers, wearing Afro-wigs and nylon stockings drawn over their faces, entered the bank. They had driven to a lot near the bank in a white Buick automobile which they had stolen on the same day from an employees’ parking lot at the Southgate Shopping Center. The stolen automobile belonged to an employee of May Department Stores of Cleveland, who worked at said shopping center.

Upon entering the bank the robbers ordered everyone to lie down on the floor. Two of the robbers vaulted over the bank counter, entered tellers’ cages, emptied the cash therefrom, and put the cash in a pink pillow case. The robbery took place in only two minutes, and the robbers departed with $13,504 in cash.

During the course of the robbery a surveillance camera was activated and was in operation, which alerted the police.

The Assistant Bank Manager had observed the white Buick as it approached the bank. When the films had been developed he identified one of the robbers as Jimmie Lee Williams, with whom he had attended school. Williams was arrested and he confessed. Williams implicated Reynolds and Reynolds’ seventeen-year-old brother Paul as the other two robbers. Williams entered a plea of guilty to robbery of the bank, but had not been sentenced at the time of the Reynolds trial. Williams testified as a Government witness.

Williams testified that he was twenty-one years old; that Reynolds was a cousin of the husband of his sister, Mrs. Geraldine Green; that he had known Reynolds for some time; and that Reynolds was his friend. He testified that Reynolds and his (Reynolds’) younger brother Paul had come from Columbus on the previous day and visited him at his apartment in Twinsburg; that Reynolds told him that he (Reynolds) needed money to pay his lawywer who was defending him on another armed robbery charge; and that they planned the robbery of the Twinsburg Bank.

Williams further testified that on the morning of the robbery they drove to the Southgate Shopping Center, where they stole a white Buick automobile; that from there they drove the Buick to a wooded area; and that Williams left and went to the home of his sister, Geraldine Green, a short distance away, and arranged with her to go to the bank to ascertain whether everything was clear. The sister went to the bank and obtained five dollars worth of quarters, allegedly for use in a nearby laundromat. After going to the bank the sister drove her ear to the wooded area where her brother and the two Reynolds brothers were waiting in the stolen Buick. The sister reported to them that everything was clear at the bank. The three men then left for the bank and robbed it. After robbing the bank they departed in the white Buick, and on their way back to the wooded area they dropped their wigs, stocking masks, and some articles of clothing in a field. When they arrived at the wooded area Williams wiped the inside of the car with a wet cloth. They left the Buick in the wooded area, and then drove in another car to Williams’ apartment where they divided the stolen money.

The FBI was called into the case and recovered the stolen Buick on the day of the robbery. They also recovered the wigs, stocking masks and other articles of clothing, which were offered in evidence at the trial.

A Special Agent of the FBI obtained twenty-seven latent finger prints from the outside of a door and a fender of the Buick automobile. Three of the prints, namely, one finger print and two palm prints, taken from the car, were from the finger and palm of Reynolds.

At the trial the Assistant Bank Manager and a woman teller testified as to the occurrences at the bank. They testified also as to the height, weight, and apparent ages of the three bank robbers. Their descriptions involved a large man, who was apparently the leader, a middle-sized man, and a small man.

The most convincing, incriminating evidence, however, was the three prints taken of the finger and palm of Reynolds’ hand, taken from the door and fender of the stolen car.

Reynolds had an alibi defense; he claimed to have been in Columbus, Ohio, at the time of the robbery. Reynolds offered the testimony of some of his relatives and friends and also that of a used-car dealer in Columbus and the dealer’s son. The relatives and friends were not clear about the date. The used-ear dealer and his son testified that Reynolds and his minor brother were at the used-car lot between the hours of 2:00 and 4:00 o’clock, p. m., making and closing a deal for the purchase of a 1964-Cadillac Fleetwood automobile, for which the minor brother paid two thousand dollars in cash; and that they left the used-car lot about 5:00 o’clock, p. m.

Columbus is about 136 miles from Twinsburg. The jury could well have found from the evidence that the Reynolds brothers could have driven from Twinsburg to Columbus after the robbery in ample time to have made and completed the purchase of the Cadillac.

Reynolds testified in his defense. He made no attempt to explain how the prints from the finger and palm of his hand happened to be on the door and fender of the automobile stolen from Southgate Shopping Center. The employee whose car was stolen lived at Walton Hills, a suburb of Cleveland. The robbers were in possession of the stolen car at the Shopping Center and at Twinsburg only a short- time on the day of the robbery. The car was recovered by the FBI on the same day of the robbery, when the twenty-seven fingerprints were lifted therefrom. Three of these prints were mute, uncontradicted testimony of Reynolds’ involvement in the robbery.

On appeal the only error assigned was the admission by the District Court of evidence of the custodial interview between a Special Agent of the FBI and Reynolds, at a Columbus, Ohio jail, during the course of which Reynolds made an incriminating admission.

The District Court conducted an evidentiary hearing on a motion to suppress, at which FBI Special Agent Thomas Decker testified. In substance Decker testified that initially he did not go to interview Reynolds regarding the Twinsburg Bank robbery for which he was under investigation, but rather regarding another bank robbery; and that he had advised Reynolds of his rights by reading to him the advice of rights form. He also asked Reynolds to read the form and to sign it if he desired. Reynolds said that he “understood this form and he stated he would answer questions but would not sign anything.” Decker also told Reynolds that he had the right to have counsel present and that he could terminate the interview at any time. Decker had interviewed Reynolds at least on two other occasions, and had also interviewed members of Reynolds’ family.

Decker told Reynolds that he wanted to interview him regarding the bank robbery of Ohio National Bank in Columbus, Ohio, on August 10, 1971, and regarding the Twinsburg Bank robbery on August 31,1972.

With respect to the Twinsburg Bank robbery, Decker testified:

He at first denied having any knowledge regarding the robbery, and we talked for a while about the robbery. And at one point I asked him, “Why did you take your 17 year old brother Paulie with you on this particular bank robbery?” And Mr. Reynolds lowered his face in his hands and stated that “I shouldn’t have taken Paulie with me on that job.” (Tr. p. 7)

Reynolds testified that at his previous preliminary hearing in Columbus, Ohio, his attorneys had advised him not to talk with anyone about the case unless they were present. He denied that he made the statement, “I shouldn’t have taken Paulie with me on that job,” and stated that he never called his brother, “Paulie.” Reynolds also called two relatives and a close friend, who testified that they never heard him call his brother, “Paulie.”

Robert Moses, court-appointed counsel for Reynolds, testified that he had advised Reynolds not to talk with anyone about the case in his absence, and had made such a request at the previous preliminary hearing before the Magistrate in Columbus, at which Special Agent Watson was present.

The District Court held that the rule in Miranda v. Arizona, 334 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), had been fully complied with and denied the motion to suppress.

No motion for judgment of acquittal was made by Reynolds at the close of the Government’s case, or at the close of all of the evidence. No objection was made to the Court’s instructions to the jury.

Upon consideration of the briefs and of arguments of counsel we were of the opinion that although the District Court had found that the warnings required by Miranda had been complied with, we needed additional factual findings before passing upon the merits of the ease. We therefore entered an order remanding the case to the District Court to adopt findings of fact and conclusions of law with respect to what actually took place at the interrogation, to resolve issues of credibility of the witnesses and to determine whether Reynolds voluntarily waived any of the rights accorded to him by Miranda.

The District Judge complied fully with our mandate and adopted findings of fact and conclusions of law, a copy of which is appended hereto.

We are satisfied that the findings of fact adopted by the District Court are supported by substantial evidence and are not clearly erroneous. The findings were based largely on credibility resolutions. His conclusions of law are correct.

We are not dealing here with a novice, bur rather with a knowledgeable defendant who had a criminal record of state as well as federal offenses. The interview which took place was a short one, lasting only thirty-nine minutes. Reynolds knew exactly the purpose of the interviéw, namely, two bank robberies. There was no cajoling, no coercing, no threatening or promising of any kind. Reynolds knew that he did not have to give any interview; that he could stop the interview at any time; and that he could have counsel present. With all of that knowledge he decided to talk in the absence of his counsel.

The fact that Reynolds refused to sign the waiver of rights form does not ipso facto render inadmissible all further statements made by him. Such “refusal . . . may indicate nothing more than a reluctance to put pen to paper under the circumstances of custody.” United States v. McDaniel, 463 F.2d 129, 135 (5th Cir. 1972). The defendant may very well wish to discuss the matter with his detainers in order to exculpate or explain himself. All of the facts and circumstances of the detention must be looked to in order to determine whether the refusal to sign was tantamount to a refusal to discuss. United States v. Devali, 462 F.2d 137, 141 (5th Cir. 1972).

The evidence is clear that although Reynolds did not want to sign the waiver, he was willing to talk with Special Agent Decker.

There was also substantial evidence that Reynolds knowingly and voluntarily waived his right to counsel at the interview. United States v. Dority, 487 F.2d 846, 848 (6th Cir. 1973); United States v. Springer, 460 F.2d 1344, 1353 (7th Cir. 1972); Arrington v. Maxwell, 409 F.2d 849 (6th Cir. 1969); Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968).

We think it would have been preferable for Reynolds to have his counsel present at the interview, but this was a matter solely for him to decide. He made that decision with full knowledge of his right to counsel. It is not for us to upset credibility findings made by the District Judge on contradictory testimony.

Whether Reynolds made the incriminating statement was a question properly submitted for determination by the jury.

Affirmed.

APPENDIX

THE UNITED STATES DISTRICT COURT THE NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Case No. CR72-765 ’

United States of America, Plaintiff, V. James Reynolds, Defendant.

ORDER

(Filed December 13, 1973)

KRUPANSKY, District Judge.

In compliance with the mandate of the United States Court of Appeals for the Sixth Circuit as set forth in its Order entered November 20, 1973, remanding this case for an expression of findings of fact and conclusions of law, the Court has reviewed and considered the transcript of evidence concerning the Motion to Suppress incriminating statements made by the defendant during interrogation in conjunction with the standards set forth in Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and 18 U.S.C. § 3501(b).

In support of its original decision that defendant was not denied his constitutional rights as defined by the pronouncements of Miranda, supra, and that he was fully advised of and understood those rights before waiving same, 7. the Court finds that:

1. Special Agent Thomas B. Decker, upon arriving at the Franklin County Jail on October 4, 1972, identified himself to the defendant as a member of the Federal Bureau of Investigation;

2. Defendant Reynolds was informed of the subject matter of the interrogation, namely, a bank robbery in Columbus, Ohio, on August 10, 1971, and a bank robbery in Twinsburg, Ohio, on August 31, 1972;

3. Agent Decker produced and read to Reynolds an advice of rights form, informing him of all his constitutional rights including the right to remain silent; that anything he said could be used against him; the right to consult an attorney, and the right to have an attorney present during questioning ;

4. Defendant admitted understanding his rights as is apparent from the following:

A. . And after the sergeant left, then Mr. Decker asked me did I understand my rights and I told him yes, which I understood it as far as not saying anything, because I understood that anything — -that anything I said could be held against me, I understood that.
But as far as understanding my full rights, I didn’t, you know.
Q. Did you know that anything you said could be used against you?
A. Yes. (Transcript at 19).

5. The advice of rights form was presented to him for signature, and the defendant, aware of its contents refused to sign it;

6. Defendant did not request to terminate the interrogation at any time;

Defendant conceded that he did not request the presence of counsel at any time during the course of the interview;

8. Defendant, with the exception of one alleged self-incriminating statement, denied any participation in the robberies.

Apparent from the foregoing, there is an absence of a conflict in the testimony as to any violation of defendant’s rights within the expression of Miranda, supra. The sole issue of fact arising from the interview was that arising from the conflicting testimony of defendant and the agent as to whether or not the self-incriminating statement was or was not in fact made as testified to by the agent and denied by the defendant. This factual question was properly presented to the jury for its determination.

Reflecting upon the behavior of the witnesses on the witness stand and considering their manner of testifying; the accuracy of their memories; their candor or lack of candor; their intelligence; their interest in the outcome of the proceedings together with all other circumstances surrounding their testimony and applying these tests, the Court elects to accept the forthright testimony of Agent Decker in lieu of that of defendant and concludes that:

1. The defendant was adequately advised of his constitutional rights under Miranda, supra, and Mock v. Rose, 472 F.2d 619 (6th Cir. 1972), cert. denied, 411 U.S. 971, 93 S.Ct. 2165, 36 L.Ed.2d 693 (1973);

2. Defendant fully understood his constitutional rights;

3. The Government has sustained its burden in establishing that the defendant knowingly, intelligently and voluntarily waived his right to remain silent and right to consult an attorney and have an attorney present during questioning, notwithstanding his failure to sign the advice of rights form. See, Miranda, supra at 475-476, and 479; United States v. Tafoya, 459 F.2d 424, 427-428 (10th Cir. 1972); United States v. Stevens, 445 F.2d 304 (6th Cir. 1971), cert. denied, 404 U.S. 945, 92 S.Ct. 298, 30 L.Ed.2d 260 (1971); United States v. Sisk, 411 F.2d 1192 (6th Cir. 1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 584, 24 L.Ed.2d 509 (1970).

Furthermore, the agent was under no constitutional duty to refrain from interrogating the defendant out of the presence of his attorney, since the right to have counsel present was knowingly and voluntarily waived. See United States v. Dority, 487 F.2d 846 (6th Cir. 1973) wherein the U. S. Court of Appeals for the Sixth Circuit recently held:

Clearly, the agent was required to advise Dority of his rights under the fifth and sixth amendments, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but just as clearly the appellant may waive his right to counsel. 384 U.S. 475-476, 86 S.Ct. 1602. We find that, at least for the period of time in which he gave his statement, appellant knowingly and voluntarily waived his right to counsel in connection with the federal investigation. Even if a lawyer had been appointed to represent appellant on the federal charges, the agent was under no constitutional duty to refrain from talking with appellant out of the presence of his attorney, since the right to have counsel present was knowingly and voluntarily waived. United States v. Springer, 460 F.2d 1344, 1353 (7th Cir. 1972); Coughlan v. United States; 391 F.2d 371 (9th Cir. 1968).

4. The incriminating admission, if in fact any was made, was voluntarily made and therefore admissible into evidence.

Accordingly, the Motion to Suppress is hereby denied.

IT IS SO ORDERED.

/s/ ROBERT B. KRUPANSKY United States District Judge


author: ADAMS, Circuit Judge.

text:
    Brenda ALDERMAN et al., Appellants, v. The PHILADELPHIA HOUSING AUTHORITY et al., Appellees.
    No. 73-1924.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 14, 1974.
    Decided April 16, 1974.

      Robert J. Reinstein, Philadelphia, Pa., for appellant Deming.
    Harold I. Goodman, Bruce E. Endy, Community Legal Services, Inc., Philadelphia, Pa., for appellants Alderman, Smith and Williams.
    Harold Cramer, Philadelphia, Pa., for appellees.
    Before VAN DUSEN and ADAMS, Circuit Judges, and NEALON, District Judge.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

This case presents a novel question of First Amendment jurisprudence; namely, whether the imposition of a “prior restraint” by a public agency upon the speech of its employees was justified by the agency’s interest in curtailing certain political activity by such employees. We hold that, in the circumstances presented here, the restraint constituted an impermissible infringement of the employees’ rights of free expression.

I

An understanding of the case requires a rather extensive exposition of the factual backdrop.

The appellants, plaintiffs in. the district court, are four former employees of the Philadelphia Housing Authority (“PHA”). They were summarily discharged from their jobs for refusing to sign a “Memorandum” directing that they refrain from making any statements regarding an election among PHA tenants. The PHA is a public agency created by state statute for the purpose, inter alia, of providing “low-income” housing. It administers and maintains upwards of 20,000 housing units, where more than 100,000 persons reside. Appellee Gilbert Stein was the Executive Director of the PHA, serving in that capacity from August of 1972, until February of 1978.

The Resident Advisory Board, Inc. (“RAB”) purports to be the formal representative of public housing tenants in Philadelphia. At the time Mr. Stein became Director of PHA, there existed a controversy between PHA and RAB over whether RAB’s representation of tenants should continue and, indeed, whether RAB was in fact representative of the interests of Philadelphia public housing residents.

In October, 1972, PHA decided to hold a “plebiscite” or referendum to determine whether public housing tenants, in their dealings with the PHA, desired representation by RAB. The vote was initially scheduled for December, 1972. In November, 1972, prior to the date set for the election, Mr. Stein caused to be issued to all PHA employees the following “Memorandum:”

“No PHA employee shall engage in any form of interference during the upcoming tenant plebiscite to determine whether residents of the PHA-managed properties want to be represented by the RAB Corporation It is the policy of this authority to encourage all tenants to exercise their right of choice . . . but there should be no attempt by PHA employees to discuss RAB politics with tenants, either pro or con. Any employee who engages in such activity will be subject to immediate dismissal. /s/ Gilbert Stein I have read the above and understand that as an employee of the Philadelphia Housing Authority, I must abide by this restriction. _

Employee’s Signature

Mr. Stein was apparently of the opinion that, if permitted to do so, many PHA employees would campaign actively against the RAB, that violent confrontations might result, and that PHA tenants might be influenced by PHA employees to vote against the RAB. His reaction was to issue the memorandum set forth above.

Subsequent to the issuance of the Stein memorandum, but before the plebiscite scheduled for December of 1972 could be held, RAB brought a suit in the district court to enjoin the election. As a result, the vote was postponed until May of 1973. On December 11, 1972, PHA and RAB entered into a stipulation in that lawsuit, approved by the district court, which provided in part that:

“The Philadelphia Housing Authority agrees that it will not take a position on the election provided for above. This shall not prevent PHA from answering any criticisms of its personnel or policies.”

All but 65 of the PHA’s employees agreed to, and did, sign the Stein memorandum. Four of the non-signers, the appellants in this case, were discharged for their failure to sign. Some explanation of the circumstances surrounding the refusal to sign by each of the four appellants may be helpful here.

Appellant Deming, a social worker, stated in a letter to the PHA that “I find it impossible to sign the attached memo because I view it to be a waiver of my First Amendment rights of free speech . . . . ” She also indicated that some discussion of the upcoming PHA-RAB election with her clients might prove to be a necessary aspect of her professional duties, and that, in any event, she wished to retain the right to express her views during off-duty hours. At least by her own understanding, she did have some “responsibility of not expressing my ideas while at the same time representing myself as an employee of PHA.” Deming was dismissed from PHA employment on December 19, 1972, for the express reason that she had refused to sign the Stein memorandum.

Appellant Smith, in a letter to PHA dated December 29, 1972, indicated an initial willingness to sign the Stein memorandum, provided Smith received assurance that the memorandum refleeted only an attempt by PHA to comply with the Stipulation that had been entered on December 11, 1972 in the RAB-PHA lawsuit. Smith never received a response to his letter. For his failure to sign, he was dismissed by PHA on December 29.

Appellant Alderman attempted, unsuccessfully, to discuss the memorandum with Mr. Stein. On January 5, 1973, she was dismissed by PHA for her failure to sign. Appellant Williams was likewise dismissed, on December 29, for failure to sign the memorandum. Both Ms. Alderman and Ms. Williams were public housing tenants while they were employed by PHA. All four appellants, upon beginning to work for PHA, had signed a Hatch Act pledge, prohibiting them from active partisan participation in political campaigns.

Although they refused to sign the memorandum, it is uncontested that none of the appellants ever interfered in the RAB election, and that none of them ever discussed RAB politics with public housing tenants prior to their dismissal.

As previously noted, Mr. Stein ceased serving as Executive Director of PHA on February 20, 1973. However, on March 2, 1973, the PHA house organ “The Good Neighbor” published a “report” by Mr. Stein that commented extensively on PHA-RAB relations and on the upcoming plebiscite. On May 9, 1973, the district court in the PHA-RAB litigation, issued an order enjoining PHA from, inter alia, “making known” its position on the upcoming plebiscite.

In April of 1973, Alderman, Williams, Smith and Deming brought suit in the district court, under 42 U.S.C. § 1983, against Mr. Stein and PHA, contending that the appellants’ discharges from employment trenched on certain of their civil rights. The complaint was framed in three counts: Count I alleged that the memorandum as implemented by the discharges amounted to an unconstitutional prior restraint on speech, Count II sought to have the Stein memorandum declared unconstitutionally “vague” or “overbroad,” and Count III challenged the dismissals on grounds of procedural due process. The appellants sought declaratory and mandatory injunctive relief — that is to say, reinstatement with back pay, interest, and accrued seniority.

The district court, by two separate orders, ruled against the discharged employees on all three counts of the complaint. On May 15, 1973, the district court granted appellees’ motion to dismiss Counts II and III of the complaint. On September 24, 1973, that court, after a hearing, entered an order granting actions judgment to appellees on Count I. Both are contested on this appeal.

We reverse the judgment of the district court, and adjudge the appellants entitled to relief based on their prior restraint argument. The justification proffered by PHA and Mr. Stein for the attempt, by way of their memorandum and the appellants’ discharges, to throttle all discussion by PHA employees of the RAB referendum, is, stated broadly, that the PHA had a legitimate and compelling interest in preserving intact the image of PHA’s impartiality. Important as this interest may have been, we conclude that it did not outbalance the weighty values sheltered by the First Amendment.

II

Freedom of speech and expression occupies an exalted niche in the empyrean of personal liberties guaranteed by the Constitution. This special position may be a function of democratic theory. The right is viewed as one of “those liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society . . . .” To an extent, the favored status proceeds from the dynamics of free speech itself, inasmuch as it benefits and protects not only the speaker but, mutatis mutandis, the receptor of the speech as well. Whatever the explanation for the ascendancy of the First Amendment protection, courts have remained particularly sensitive to governmental regulation that tends to impinge on expressive freedom.

This heightened sensitivity is manifest in, among other things, judicial distaste for the “prior restraint.” Simply put, a prior restraint is an official restriction imposed upon speech or other forms of expression in advance of actual publication. The concept does not treat the question of what subsequent punitive sanctions, if any, may properly be imposed for engaging in speech.

■ It is by now axiomatic that “[a]ny system of prior restraints of expression comes to [a court] bearing a heavy presumption against its constitutional validity.” A fuller understanding of the historical and theoretical underpinnings of this judicial attitude should help to clarify our decision in this case.

The use of a prior restraint as an implement of official control of expression can be traced back at least as far as a papal decree of 1501. In England, where printing franchises were controlled by the Crown, there developed a complex system of governmental restraints on publication, typified by the Licensing Acts. The Licensing Act of 1662 was enacted with the clear intention of imposing a prior restraint on, and not merely a post facto punishment for, “seditious, treasonable and unlicensed books and pamphets [sic] . . . .” No person was permitted to print any material without prior approval by the appropriate state functionary. The Act, as administered by the zealot licensor L’Estrange, “gagged the London Press then, as it has never been gagged before or since.”

In the latter part of the Seventeenth Century public sentiment mounted against the Act and it lapsed, never to be revived. When the First Amendment was drafted and adopted in 1791, the repugnance felt toward the old English system of censorship remained undimmed. Indeed, some have maintained that the Amendment was aimed primarily at prior restraints, and was not intended to proscribe subsequent punishments for various sorts of expression In any event, public antipathy toward prior restraints was transmitted to our law through the First Amendment. Judicial treatment of prior restraints has, at least in this century, reflected these historical developments.

The landmark decision of Near v. Minnesota signals the Supreme Court’s first extended disquisition on the doctrine of prior restraint. There the so-called Minnesota Gag Law was challenged on First Amendment grounds. The law provided for suits by the state to enjoin publication or circulation of any periodical found to be “obscene, lewd and lascivious” or “malicious, scandalous and defamatory.” Chief Justice Hughes first discussed the doctrine’s genealogy. Then, after adding the caveat that “the protection even as to previous restraint is not absolutely unlimited,” the Chief Justice left little doubt that the First Amendment tolerates few, if any, prior restraints on speech and press:

“The exceptional nature of its limitations places in a strong light the general conception that liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.
****** “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint. . . . ’

There thus was embedded in modern constitutional jurisprudence the concept that any system of prior restraints comes to a court bearing a heavy presumption against its validity. The viability of this proposition remains unabated today. Professor Emerson has cataloged the functional justifications for the disfavor in which prior restraints are held. Particularly noteworthy is his observation that a system of prior restraint “subjects to government scrutiny and approval all expression in the area controlled — the innocent and borderline as well as the offensive. . . .” In addition, whereas subsequent punishment does not prevent the dissemination of the words in question, a prior restraint, by its very nature, seeks absolutely to exclude the speech from “the market place of ideas.” These considerations, together with others, provide firm ground for judicial insistence that, before it may be deemed justified, the government must offer compelling proof that a prior restraint is essential to a vital government interest. In light of this standard, we shall proceed to analyze the justification offered by the appellees, and the district court’s evaluation of it.

Ill

The Stein memorandum was construed by the district court as prohibiting “all Philadelphia Housing Authority Employees from discussing Resident Advisory Board politics with tenants, either pro or con.” Neither the PHA nor Mr. Stein dispute that, as so construed — and in light of the discharge of the appellants for their refusal to sign — the memorandum operated as an effective prior restraint, imposed by a governmental body, on the speech of the PHA employees. Rather, Mr. Stein and PHA seek to justify the restraint by invocation of the “significant and vital interest” of the PHA in preserving the plebiscite free of “interference” by PHA employees, in “prevent [ing] violent confrontations,” and in “protect[ing] the tenants’ rights of . freedom of choice in representation with regard to election.”

The district court concluded that the Stein memorandum, and the mechanism for its implementation, was necessary to accomplish the PHA’s stated goals, and that the resulting prior restraint was justifiable under the Supreme Court’s recent “Hatch Act” decisions. It stated:

“The Philadelphia Housing Authority, like all governmental agencies, has a continuing interest in maintaining the appearance, as well as the fact, of impartiality, and in preventing its employees from engaging in politicking rather than doing their jobs. In view of the Supreme Court’s recent decisions in Broadrick . . . and Letter Carriers . . . this interest alone is sufficient to justify substantial restrictions on the employees’ freedom of expression.”

In our judgment, neither Broad-rick nor Letter Carriers (the “Hatch Act” cases) nor any other case warrants the interdiction, embodied in the terms and enforcement mechanism of the Stein memorandum, against any and all discussion by PHA employees of the RAB plebiscite. Accordingly, we think that the “heavy burden” east by the prior restraint cases upon PHA and Stein has not been met, and that the appellants’ discharges violated their First Amendment and Fourteenth Amendment rights. Close analysis of the “Hatch Act” cases should serve to explain and illuminate this conclusion.

ÍV

It is important to make clear at this juncture what we are not deciding. We are not deciding whether, under any set of circumstances, some sort of prior restraint on political activity by PHA employees might be justified, nor whether the “Hatch Act” cases can have any application in the context of a more-or-less ad hoc administrative measure, such as the Stein memorandum. Rather, the question before use is a less heroic one, namely, whether the prior restraint that absolutely forbade all “discussion” of the RAB plebiscite was justified by the PHA’s interest in preventing political “interference” in the referendum. Letter Carriers and Broadrick, while less than pellucid in all of their implications, make it clear that a restraint such as that in this case may not be countenanced by an analogy to the Hatch Act or to its state counterparts.

The Hatch Act prohibits federal employees from taking “an active part in political management or in political campaigns.” In 1947, in United Public Workers v. Mitchell, this provision was first upheld against First Amendment attack. The Supreme Court reasoned that Congress’ conclusion “that an actively partisan governmental personnel threatens good administration” justified the Act’s restriction on political activity. The Court took care to note, however, that it was “only partisan political activity that is interdicted. . . . [Only] active participation in political management and political campaign [is proscribed]. Expressions, public or private, on public affairs, personalties and matters of public interest, not an objective of party action, are unrestricted ”

In Letter Carriers the validity of the “active part” provision was reaffirmed, and upheld in the face of “vagueness” and “overbreadth” challenges. The Court stated as a foundation for its holding, based on extensive legislative findings, that “the judgment of history” was that “federal service should depend upon meritorious performance, rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited.” The interest of the government in protecting the civil service from undue political influence, manifested by a series of Congressional debates, was deemed to outweigh the employee’s interest in the freedom to engage, unfettered, in partisan political activity.

In Broadrick, the Supreme Court sustained state legislation that, in its basic aim and method of implementation, mirrored the Hatch Act. Though the challenged state act left state employees with some uncertainty concerning the sort of activities they might permissibly engage in, the Court again rejected a First Amendment vagueness and over-breadth assault on the state statute. And once again, the Court noted emphatically that the proscription of the Act ran only to “partisan political activity.”

The district court in this case perceived firm support in Broadrick and Letter Carriers for the constitutionality of the appellants’ discharges. It stated, “just as the Hatch Act has been held to be constitutional, i.e., not violative of the First Amendment, so must this memorandum be held to be constitutional and non-violative of the First Amendment.” We think, however, that Broad-rick and Letter Carriers, properly viewed, carve out carefully circumscribed exceptions to the sweeping injunction of the First Amendment, exceptions allowing a legislature — Congress or state lawmakers — to inhibit only “partisan political activity” and not all political “discussion.”

The vagueness attack mounted in Letter Carriers was predicated upon the assertion by the appellants there that, even were the basic goal of the Hatch Act to be deemed valid, the Act was “incapable of yielding any meaningful rules to govern present or future conduct.” The Supreme. Court demurred to this contention, ruling that the Civil Service Commission Rules sufficiently “fleshed out” the statute. Reference to those rules indicates that the Hatch Act is in no sense directed at the mere expression of political opinions, or at political discussion simpliciter. Indeed, Senator Hatch’s explication of the rules makes clear that, under the Act, “[ejmployees may express their opinions on all subjects, but they may not make political speeches.” Moreover, as the Supreme Court emphasized, section 7324(b) of the Act “privileges an employee to . express his opinion on political subjects and candidates . . . ” Thus, in upholding the Act’s constitutionality, the Supreme Court did no more than sustain a curb upon political activity by governmental employees. To read Letter Carriers, as the district court apparently did, to authorize governmental restriction upon all forms of political discussion or expression would be to inflate the Supreme Court’s edict far beyond its actual scope.

This conclusion — that neither Letter Carriers nor Broadrick signals approbation of the sort of blanket prohibition on employee speech embodied in the Stein memorandum — is buttressed by the repeated mention, in those cases, of the sort of employee activity that might legitimately be curtailed. The Hatch Act, the Supreme Court noted, prohibits “active participation in political management of political campaigns Congress felt it “essential that federal employees not . . . take formal positions in political parties, nor undertake to play substantial roles in partisan political campaigns so, too, may a state forbid any employee to “solicit, receive, or in any manner be concerned in soliciting or receiving any assessment . . . or contribution for any political organization. . . .”

The excerpted instances set forth above make manifest that Letter Carriers and Broadrick herald only narrow, carefully drawn exceptions to the First Amendment’s protections, not an authorization to restrain politically oriented speech and expression by governmental employees. In addition, the statutes challenged in Letter Carriers and Broad-rick represent a “considered legislative judgment,” not the relatively spontaneous decision of a local government administrator.

Thus, we think there is scant support in Letter Carriers or Broadrick for the district court’s conclusion that the appellants’ discharges were constitutionally valid. There being little warrant in those cases for any sort of inhibition of, or punishment for, politically oriented speech, it can hardly be said that the “heavy burden” imposed on the appellees in their attempt to justify a prior restraint has been adequately shouldered.

We need not decide, of course, whether a more narrowly drawn memorandum might have passed First Amendment muster — for example, a provision carefully limited so as to proscribe “partisan political activity” by PHA employees. Accordingly, our opinion in this case should not be interpreted as resting upon “overbreadth,” “vagueness,” or like doctrines, Rather, our decision has been limited to the precise facts in question. An absolute prohibition on “discussion” of PHA-RAB polities has not, to us, seemed justified by the governmental interest asserted.

This is not to suggest that a prior restraint on the speech of governmental employees may never be justified by any considerations. It may well be too, that had the appellants been discharged by PHA subsequent to having uttered words that “interfered” with the PHA-RAB plebiscite, or cast doubt on PHA’s impartiality, resolution of the ensuing controversy might have been somewhat different. But, on the record here, there was no permissible basis for restraining the appellants in advance from any and all “discussion” of PHA or RAB politics.

The “balancing” task imposed upon us in-this case by the prior restraint doctrine is a somewhat sensitive one. We recognize, and sympathize with, the PHA’s desire to preserve intact a public image of political impartiality. We acknowledge, too, that a governmental agency may have a significantly more weighty interest in regulating the speech of its employees than in regulating that of the populace at large. There are, however, two factors in particular which have led us to hold in favor of the appellants. First, precious little in the case law supports the imposition of a restraint on all the speech of public employees, even concerning a particularized topic. Second, we think that when a prior restraint is sought to be imposed, it should be as narrowly drawn as possible, consonant with the purpose in question. Thus, assuming arguendo the validity of PHA’s desire to prevent only partisan political activity in connection with the RAB plebiscite, the failure of the Stein memorandum to reflect such specificity tends, in our judgment, to detract significantly from any attempt to shoulder the “heavy burden” imposed by First Amendment doctrine.

V

First Amendment theory has appeared, to some, to be in a “chaotic state.” Perhaps that is the fate of any constitutional guarantee that stands as a keystone of our political, social and economic freedom. Nonetheless, two aspects of the First Amendment stand out in fairly sharp relief. One, the distaste for prior restraint, is firmly rooted in Anglo-American history, public sentiment, and legality. The other, a straitened. channel of permissible restriction on the political activities of government employees, works a delicate balance between personal freedom of expression and governmental necessity. Nothing in this case has persuaded us that the sweeping prohibition embodied in the Stein memorandum fell within the narrow compass of the “Hatch Act” cases. Still less are we convinced that the prior restraining effects of the discharges for failure to sign the memorandum were justified.

Accordingly, the judgment of the district court will be reversed and the case remanded for treatment consistent with this opinion. The district court should be accorded the primary opportunity, as well as responsibility, for framing an appropriate decree of relief.

      . Housing Authorities Law, Act of May 28, 1937, 35 P.S. § 1541 et seep

      . See Brief of Appellees, at 2.

      . Finding of Fact No. 18, district court opinion of September 24, 1973, 365 F.Supp. 350.

      . See Brief of Appellees, at 5.

      . Resident Advisory Bd. v. Philadelphia Housing Authority, C.A. No. 72-2399 (E.D. Pa.). No aspect of the PHA-RAB lawsuit is before us in this appeal, nor are any of the appellants here involved in that suit.

      . Finding of Fact No. 21, district court opinion of September 24, 1973, 365 F.Supp. 350.

      . PHA claims that its records do not show affirmatively that the other 61 employees actually failed to sign, but that there is no indication that they did sign. This is ascribed, to some extent, to their absence from work at the time the memorandum was circulated. See Brief of Appellees, at 7.

      . Brief of Appellants, at 9; App. 11.

      . Direct testimony of Gilbert Stein, App. 282; Finding of Fact No. 28, district court opinion of September 24, 1973, 365 F.Supp. 350.

      . See Note 6, supra, and accompanying text.

      . Finding of Fact No. 26, District Court Opinion of September 24, 1973, 365 F.Supp. 350.

      . The appellants contend that Mr. Stein’s report shows, inter alia, that there was not a compelling interest in silencing all discussion regarding the election.

      . Jurisdiction was based upon 28 U.S.C. §§ 1343, 2201, and 2202.

      . The complaint also sought a declaration and injunction to protect appellants’ procedural rights in any disciplinary hearing after their reinstatement.

      . Without taking sides in the “preferred position” debate, see Kovacs v. Cooper, 336 U.S. 77, 88, 69 S.Ct. 448, 93 L.Ed. 513 (majority opinion of Reed, J.) 90-97, 69 S.Ct. 448 (concurring opinion of Frankfurter, J.) (1949), there can be little doubt that the Supreme Court has shown a special solicitude for the right to freedom of expression. Even Justice Frankfurter’s objection to the phrase, “the preferred position of freedom of speech,” was apparently not grounded in any belief that such freedom is in all respects coequal with other rights, but rather in the feeling that “preferred position” is only a “formula” that “makes for mechanical jurisprudence.” Id. at 96, 69 S.Ct. 448. The Supreme Court’s special concern for the First Amendment right is manifest in such decisions as Thomas v. Collins, 323 U.S. 516, 527 n. 12, 65 S.Ct. 315, 89 L.Ed. 430 (1945), and Schneider v. State, 308 U.S. 147, 161, 60 S.Ct. 146, 84 L.Ed. 155 (1939). Professor Wechsler has suggested that the “preferred position” argument is “pernicious” insofar as it injects a mechanistic note into First Amendment decision-making. He states, however, that “[i]t has a virtue . . . insofar as it recognizes that some ordering of social values is essential; that all cannot be given equal weight if the Bill of Rights is to be maintained.” Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv.L.Rev. 1, 25 (1959). See also Berns, Freedom, Virtue and the First Amendment 73-128 (1957).

      . Kovacs v. Cooper, supra at 95, 69 S.Ct. at 458 (concurring opinion of Frankfurter, J.).

      . “From the obverse side [the system of freedom of expression] includes the right to hear the views of others and to listen to their version of the facts. It encompasses the right to inquire and, to a degree, the right of access to information.” Emerson, The System of Freedom of Expression 3 (Vintage ed. 1971).
      The traditional sanctity of freedom of expression probably owes something, also, to a recognition of the central role played by literature in man’s ascent from barbarism. Milton, in his Areopagitioa, expressed it thusly: “Who kills a man kills a reasonable creature, God’s image; but he who destroys a good book kills reason itself. . . . ”

      . Emerson, The Doctrine of Prior Restraint, 20 Law and Contemp. Problems, 648 (1955) (hereinafter “Emerson, Prior Restraint”) ; Emerson, The System of Freedom of Expression 504 (Vintage ed. 1971) (hereinafter “Emerson, Freedom of Expression”). See also Near v. Minnesota, 283 U. S. 697, 713-14 (1931) ; 4 Blackstone, Commentaries on the Laws of England 151-52.

      . Emerson, Freedom of Expression, at 504.

      . New York Times v. United States, 403 U. S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) ; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Near v. Minnesota, 283 U.S. 697, 719-720, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 51 L.Ed. 879 (1907).

      . Pope Alexander VI in that year issued a bull prohibiting unlicensed printing. See Emerson, Prior Restraint at 650.

      . See generally Holdsworth, History of English Law, Vol. 6, pp. 360-78.

      . Id. at 372.

      . Id. at 372-73. L’Estrange’s zeal as a censor led him beyond a concern for the imposition of “gags” on the press, to a desire to “make sure of destroying the offenders utterly.” Id. at 373 n. 1.

      . Emerson, Prior Restraint at 651. Emerson notes that, though the English system of statutory prior restraint was allowed to die, subsequent punishments for seditious libel and blasphemy were applied with increasing frequency and severity. Id.

      . Id. at 652. Cf. Justice Holmes’ remark for the Court in Patterson v. Colorado, supra, 205 U.S. at 462, 27 S.Ct. at 558: “the main purpose of such constitutional provisions is to prevent all such previous restraints upon publications. ...”

      . 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931).

      . Id. at 716, 51 S.Ct. at 631. See Note 57, infra.

      . Id. at 716, 720, 51 S.Ct. at 631-632. In our judgment, there is no significant distinction, for First Amendment purposes, between liberty of “speech” and of “the press.”

      . See text accompanying Note 18, supra, and cases cited therein.

      . See e. g., Doe v. McMillan, 412 U.S. 306, 344, 93 S.Ct. 2018, 36 L.Ed.2d 912 (Opinion of Rehnquist, J.) (1973); Albany Welfare Rights Org. v. Wyman, 493 F.2d 1319 (2d Cir., 1974).

      . Emerson, Prior Restraint, at 656-60.

      . Id. at 656.

      . Id. at 657.

      . Nor can we fail to note that, inasmuch as the appellants had signed a Hatch Act pledge not to engage in “partisan political activity,” a fact of which Mr. Stein was aware (app. 255, 357-8), his memorandum was apparently aimed at prohibiting something more than such activity.

      . Brief of Appellees at 10. See also Finding of Fact No. 19, district court opinion of September 24, 1973, 365 F.Supp. 350.

      . United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) ; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

      . Opinion of District Court of September 24, 1973, 365 F.Supp. 350.

      . The Supreme Court’s promulgation of a “substantial overbreadth” standard has generated considerable controversy. See Broadrick v. Oklahoma, 413 U.S. at 621-633, 93 S.Ct. 2908 (dissenting opinion of Brennan, J.); The Supreme Court, 1972 Term, 87 Harv.L.Rev. 1, 141-53 (1973).

      . 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

      . Id. at 97-98, 67 S.Ct. at 568.

      . Id. at 100, 67 S.Ct. at 570.

      . See Letter Carriers, supra, 413 U.S. at 568, 93 S.Ct. 2880. See also Note, The First Amendment Overbreadth Doctrine, 83 Harv.L.Rev. 844 (1970) ; Note, The Void-For-Vagueness Doctrine in The Supreme Court, 109 U.Pa.L.Rev. 67 (1960).

      . 413 U.S. at 557, 93 S.Ct. at 2886.

      . That the Court utilized some sort of “balancing” process was made quite explicit. See 413 U.S. at 564, 93 S.Ct. 2880. Cf. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

      . See 413 U.S. at 602, 93 S.Ct. 2908.

      . See Broadrick, supra, 413 U.S. at 622, 93 S.Ct. 2908 (discussing opinion of Justice Brennan). See also Note 38 supra, and accompanying text.

      . 413 U.S. at 602, 93 S.Ct. 2908.

      . 413 U.S. at 571, 93 S.Ct. 2893.

      . Id. at 572, 93 S.Ct. 2880.

      . Id. at 572 n. 18, 93 S.Ct. at 2894; see also Id. at 561, 93 S.Ct. at 2888.

      . Id. at 568, 93 S.Ct. at 2892.

      . Id. at 551, 93 S.Ct. at 2883.

      . Id. at 565, 93 S.Ct. at 2890.

      . Broadrick, supra, 413 U.S. at 606, 93 S. Ct. at 2912.

      . We have found nothing in the record to show that there were any deliberations (extended or otherwise) before the issuance of the memorandum, or that, the Administrator (here Mr. Stein) was empowered to issue such statements. See Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.Rev. 844, 858 (1970).

      . An “overbreadth” analysis “involves scrutiny to determine whether a statute is too sweeping in its coverage.” Note, The First Amendment Overbreadth Doctrine, 83 Harv. L.Rev. 844, 845 (1970). There clearly may he an area of overlap between overbreadth analysis and prior restraint analysis. For example, the “overbroad” aspects of a statute imposing a prior restraint might also be those aspects for which there was no “compelling” justification. The statute would thus be invalid both as being overbroad and as an unjustified prior restraint. While this mode of analysis might be useful, particularly in the case of statutes impinging First Amendment interests, we decline to pursue it here. Rather, we concentrate solely on the prior restraint aspects of this case. One purpose served by the' overbreadth technique is to allow legislatures to redraft statutes. This purpose would not, obviously, be served in this case. Id. Also, the “dynamo of the overbreadth doctrine” is the concern for the “chilling effect” of subsequent punitive measures, a factor of only ancillary concern, if any, in a prior restraint case. Id. at 846. Finally, inasmuch as an overbreadth attack allows plaintiffs to assert jus tertii, it is of little utility here, since there are no other persons but these appellants who can claim harm from a failure to sign the Stein memorandum. Id. at 847.

      . Professor Emerson, writing before the decisions in Letter Carriers and Broadrick, expressed the view that the Hatch Act is “incompatible with First Amendment doctrine.” Freedom of Expression 592.

      . Prior restraints, for example, may be justified when the nation “is at war.” See Schenk v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919).

      . See text accompanying Note 11, infra.

      . We reject the “right-privilege” argument that, though PHA employees may have a “right” to speak, their employment by PHA is a “privilege,” for the enjoyment of which they can be made to abandon the right. See McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (1892); Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harv, L.Rev. 1439 (1968).

      . See Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. 1731.

      . See Pickering, supra, 391 U.S. at 574, 88 S.Ct. at 1737. (“This Court has also indicated . . . that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fa_pt that the statements are direeted at their nominal superiors. Garrison v. State of Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).”) Cf. NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 616-620, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969).

      . Emerson, Freedom of Expression 16.