author: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alvin KLUPT and Purchasing Corporation of America, Defendants-Appellants.
    Nos. 602, 603, Docket 72-2197, 72-2198.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 23, 1973.
    Decided March 19, 1973.

      Sidney A. Soltz, Miami, Fla., for appellants.
    George W. F. Cook, U. S. Atty. for the District of Vermont (William B. Gray, Asst. U. S. Atty., on the brief), for appellee.
    Before FEINBERG, MULLIGAN and TIMBERS, Circuit Judges.
   FEINBERG, Circuit Judge:

Alvin Klupt and his controlled corporation, Purchasing Corporation of America, appeal from judgments of conviction, after a ten-day jury trial before Chief Judge James S. Holden in the United States District Court for, the District of Vermont, on various counts charging fraudulent concealment of the assets of a bankrupt corporation, Fair Haven Slate Company, Inc., and related violations. 18 U.S.C. §§ 2, 152, 153, 371, 2314, 2315. One of the ten counts in the indictment was dismissed. Klupt was sentenced to concurrent terms of one year in prison, but execution of that sentence was suspended, and he was placed on probation for two years; he was also fined $3,000. Purchasing Corporation was fined $1,500.

Klupt acquired control of Fair Haven in early October 1970 after the company’s principal creditor, Proctor Trust Company, had suggested that somebody be brought in “to salvage the business and keep it going.” At the time, Fair Haven was in a precarious financial position; and Proctor, which had loaned the company about $310,000, of which $200,000 was still outstanding, hoped to keep the enterprise functioning by bringing in new management. Shortly after Klupt’s takeover, Fair Haven petitioned for a Chapter XI arrangement and received permission to continue its business as a debtor in possession. Although not personally holding any of Fair Haven’s stock, Klupt directed its operations through its president, a business associate named Cutler, whom he had appointed. Cutler was named in the indictment as a co-conspirator, but not as a co-defendant, and was one of the principal witnesses for the Government at trial.

Before its acquisition by Klupt, Fair Haven had been factoring its accounts receivable with Proctor. Fair Haven would submit to Proctor an invoice covering a shipment to a customer and would receive an advance of 70 per cent of the face value. The account receivable would be assigned'to Proctor to cover the advance and an interest charge; when Fair Haven received payment from its customer, the company would transmit the assigned money to Proctor. In late October 1970, however, Proctor decided to discontinue this arrangement because of Fair Haven’s weakened financial condition. The financing of the accounts was taken over, pursuant to bankruptcy court authorization, by Klupt’s own company, defendant Purchasing Corporation. This arrangement continued until January 1971, when Proctor resumed the factoring of Fair Haven’s accounts.

The actions that are the subject of the indictment took place in February and March of 1971. During this period Fair Haven received but failed to turn over to Proctor, allegedly on the order of Klupt, 11 checks that had been assigned to that company. Instead, seven of the checks, totalling $8,241.65, were retained by Fair Haven and deposited in its payroll account. The other four, worth $5,727.-95, were sent to Purchasing Corporation, which placed them in its own account in Miami, Florida. The proceeds of these four checks were soon returned to Fair Haven and deposited in the same payroll account except for $927.95, which Cutler placed in his own account. Subsequently, all the money was paid over to Proctor.

Throughout the early months of 1971, the financial condition of Fair Haven worsened, and in early April an order was entered adjudging the company a bankrupt. During the subsequent bankruptcy proceedings, Proctor claimed $27,806.70 as money due for loans to Fair Haven secured by assignment of accounts receivable. The referee found the security interest on these claims invalid because Proctor had filed its financing statement in the wrong town. However, he also found that the loans were a proper expense of the administration of the debtor’s estate.

At trial, the principal issue for the jury was the role of Klupt in the admitted diversion of checks. In testimony, Klupt denied any involvement other than unexpectedly receiving and promptly returning the four checks sent to Purchasing Corporation, and he claimed that Cutler had told him that the money had been sent by mistake. However, a number of witnesses reported that Klupt had stated to them in substance that he had ordered the diversion of all 11 checks in retaliation for the apparently inadvertent prior clearance by Proctor of two checks that had been sent to it but should have gone to Purchasing Corporation. The jury obviously refused to accept Klupt’s version of what had occurred.

Appellants’ principal argument is based upon the finding of the bankruptcy referee that Proctor’s lien on the accounts receivable was invalid. Appellants assert that because of this, Proctor was only a general creditor, that as a debtor in possession Fair Haven could use the receivables to pay for the operation of the business and that, therefore, depositing the checks in the company’s payroll account did not constitute concealment under the statute.

This reasoning is manifestly inapplicable to the four checks sent to Purchasing Corporation, which are the subject of seven of the substantive counts in the indictment on which appellants were convicted. As to these, although appellants imply that the return of the' money by Purchasing Corporation to Fair Haven purged them of criminal responsibility, this theory is simply without foundation. Cf. United States v. Diorio, 451 F.2d 21 (2nd Cir. 1971) (per curiam), cert. denied, 405 U.S. 955, 92 S.Ct. 1173, 31 L.Ed.2d 232 (1972). Therefore, as to the bulk of the substantive counts, appellants’ violation was clear.

We turn then to the one remaining substantive count, which involves the seven checks deposited directly in Fair Haven’s account and which does raise more difficult issues. Although the referee ruled that Proctor, as against the later-appointed bankruptcy trustee, could not assert a lien on the accounts receivable because of the incorrect filing, the referee did not hold, as appellants suggest, that the assignment of receivables to Proctor was unauthorized and invalid. That Proctor, by reason of the referee’s decision, was only a general creditor in the later bankruptcy liquidation is not controlling on the issue before us. The statute in question —18 U.S.C. § 152 — covers in terms all creditors. As a debtor in possession, Fair Haven could, as the bankruptcy referee found, finance its receivables by assigning them to Proctor. Once this was done, the deliberate and unrevealed diversion of the assigned checks to uses other than payment to Proctor permitted a finding of concealment. See 1 Collier on Bankruptcy [ 1.07, at 58 (14th ed. 1971) (concealment includes “placing assets beyond the reach of creditors or withholding knowledge thereof by failure or refusal to divulge owed information”) ; 2 id. ¶ 29.05 [2.2], [2.3]; cf. United States v. Zimmerman, 158 F.2d 559 (7th Cir. 1947) (failure to list assets on property schedule is concealment despite actual knowledge of assets by creditors and trustee). It is true that depositing the seven checks in the debt- or’s payroll account directly benefitted the debtor rather than Klupt, but this does not change the result. Cf. Duggins v. Heffron, 128 F.2d 546 (9th Cir. 1942) (absence of diminution of debtor’s estate is not defense to claim of concealment); Kolesinski v. Mashey, 127 F.2d 528 (2nd Cir. 1942) (concealment need not be from all creditors). While these cases and the other authorities cited above are obviously not squarely on point —indeed we could find no case dealing with the precise issue raised here — the language of the statute, see note 7 supra, seems squarely to cover this situation. Compare with 18 U.S.C. § 153 (“Whoever knowingly and fraudulently appropriates to his own use . . . . ”). Moreover, the failure to follow procedures that the bankruptcy court had authorized and prescribed was, in a basic sense, a fraud on the court as well as on the creditor.

Appellants also argue that Judge Holden erred in refusing one requested charge and modifying another. The former would have required the jurors to acquit if they determined that the funds in question ultimately had been used to pay Fair Haven's other creditors. We have already indicated that it was not a defense that the seven checks initially deposited in Fair Haven's payroll account had been used to pay the debtor’s employees or that Purchasing Corporation had ultimately returned to the debtor the proceeds of the other four cheeks. Therefore, such a charge would have been incorrect and was properly refused. The other proposed instruction stated that if the jurors found that the checks had been returned to Fair Haven’s account, they “should” give this fact “great consideration” in deciding whether defendants had possessed the requisite criminal intent. In charging the jury, Judge Holden changed the word “should” to “may.” While the return of the money might be relevant to a determination of defendants’ initial intent, it did not necessarily reflect an absence of fraudulent purpose. Its probative value on that score was for the jury, not the judge, to weigh. The modification of the requested charge was not erroneous.

Appellants also claim that a mistrial should have been declared when the prosecutor stated in the presence of the jury that he was handing over to defense counsel the grand jury testimony of the next two witnesses; that, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), defendants’ attorney was not shown possibly exculpatory evidence in the Government’s files; and that the prosecutor failed to make clear, when cross-examining Klupt’s daughter, that some of his earlier questions to her had been based on allegedly prejudicial factual assumptions that he had since learned were incorrect. As to the first argument, while we do not approve of the practice followed here, see United States v. Gardin, 382 F.2d 601, 605 (2nd Cir. 1967), it does not call for reversal in this case. The second claim is without merit, and the third is de minimis.

Judgment affirmed.

      . Counts one and two charged fraudulent concealment of assets from the bankrupt’s creditors; counts three and four charged receipt and aiding and abetting receipt of property from a bankrupt for purposes of defeating the bankruptcy law; counts five and six charged transportation and aiding and abetting transportation in interstate commerce of converted securities; counts eight and nine alleged receipt and concealment and aiding and abetting such receipt and concealment of converted securities; and count ten charged a conspiracy to violate the bankruptcy law.

      . In view of the mildness of the sentences imposed, we withhold any comment as to the appropriateness, on the facts of this case, of a ten-count indictment.

      . A majority of Fair Haven’s stock was distributed to Klupt's daughter and lesser amounts to the company’s president and quarry manager. A qualifying share was also issued to Fair Haven’s lawyer.

      . Because of this diversion of funds, Proctor again terminated its factoring of Fair Haven’s accounts in March 1973.

      . Thus, for example, Bernard Dick, Fair Haven’s court-appointed attorney, testified : Well, [Klupt] said “they took my funds,” and he said, “So, it is all right for me to take their funds,” then he used, I can remember this favorite term, “hanky-panky, — if they are playing hanky-panky with my funds, I can play hanky-panky with their funds.”

      . The argument also applies to the conspiracy conviction, which involved all 11 checks.

      . Whoever knowingly and fraudulently conceals . . . from creditors in any bankruptcy proceeding, any property belonging to the estate of abankrupt ....

      . It is true that the bankruptcy court authorization for Fair Haven to assign its accounts named Purchasing Corporation as the assignee and that the subsequent substitution of Proctor was not pursuant to a court order. However, as the referee observed:
      This Court and all parties who attended the hearings within two months after the date of said Order [authorizing the assignment of accounts to Purchasing Corporation] were well aware that Proctor had been substituted for Purchasing and . . . this amounted to implied authority.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brian CAREY, D.P.M., Defendant-Appellant.
    No. 72-1440.
    United States Court of Appeals, Ninth Circuit.
    March 19, 1973.

      John P. Hanrahan, John G. Davies, Los Angeles, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Eric A. Nobles, Robert C. Bonner, Asst. U. S. Attys., Los Angeles, Cal., for plaintiffappellee.
    Before HAMLEY and WRIGHT, Circuit Judges, and POWELL, District Judge.

       Honorable Charles L. Powell, Senior United States District Judge for the Eastern District of Washington, sitting by designation.

   PER CURIAM:

On June 25, 1971, the appellant, a podiatrist licensed under California law, was indicted in a nine-count indictment with violations of 18 U.S.C. § 1001. The indictment alleged offenses on nine different dates and charged the defendant with knowingly making false and fictitious statements to various insurance intermediaries acting as paying agents for the Social Security Administration for Medicare.

Prior to trial the Court dismissed Counts three, eight and nine. The trial commenced November 30, 1971. Following the trial the Court granted the defendant’s motion for acquittal as to Counts one and two. After three days’ deliberation the jury found the defendant guilty of Counts four and seven but was unable to agree on a verdict as to Counts five and six. The defendant was sentenced and fined $2500 on each of Counts four and seven.

SUFFICIENCY OF THE EVIDENCE

In 1966 Congress enacted the medical insurance program called Medicare. The overall administration of the program was delegated to the Social Security Administration. That administration entered into contracts with insurance companies to pay the covered medical expenses. Occidental Life Insurance Company and Travelers Insurance Company were two of such “carriers”. Medicare claims were submitted by physicians and others on a Request for Medicare Payment, Social Security Form 1490.

Appellant Brian Carey, a doctor of podiatric medicine in Los Angeles, California, submitted requests for medicare payments on Form 1490 to the insurance carriers as charged in Counts four and seven. The claims were for operations on two of his patients, which claims the Government alleged were false. In his brief the appellant argues the evidence in detail and asserts that it was not sufficient to warrant the finding of the jury convicting the appellant on the two counts from which this appeal is taken.

The jury found the appellant guilty on proper instructions. From an examination of the entire record it is determined that the evidence is sufficient to sustain the verdict of the jury. Since the Government is entitled to have the evidence viewed in the light most favorable to it, the verdict must be sustained on appeal. United States v. Knight, 416 F.2d 1181, 1183 (9 Cir. 1969).

MOTION FOR NEW TRIAL

A motion for new trial based upon newly discovered evidence is addressed to the Court’s discretion and must meet certain well recognized requirements. They are enumerated in Lindsey v. United States, 368 F.2d 633, 634 (9 Cir. 1966), cert. denied, 386 U.S. 1025, 87 S.Ct. 1383, 18 L.Ed.2d 465 (1967). The motion here is supported by' affidavits. A perusal of them shows that the motion, with its supporting documents, does not meet the requirements of the Ninth Circuit as set forth in the Lindsey case. The evidence offered to support the motion for new trial is cumulative and impeaching. There is no showing of the reason for failure to discover it earlier, or that due diligence was exercised in attempting to discover it for use at the trial. The evidence does not appear to be such as would be likely to produce an acquittal on retrial.

MOTION FOR ACQUITTAL AS TO COUNTS FIVE AND SIX

The jury was unable to agree on a verdict on Counts five and six. The Court therefore declared a mistrial and continued the trial as to these two counts. The evidence, we find, was sufficient to present the case to the jury. The defendant is attempting to appeal from a portion of the judgment holding the two counts in abeyance pending this appeal. It is not a final and appealable order. The denial of the motion for acquittal is not a final order in this context. United States v. Kaufman, 311 F.2d 695 (2 Cir. 1963).

MOTION TO DISMISS FOR PRE-INDICTMENT DELAY

The delay complained of by the appellant occurred prior to the filing .of the indictment against this appellant. Appellant’s reliance on Rule 48 is misplaced. United States v. Marion, 404 U.S. 307, 319, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971).

“No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Rule 48(b) of the Federal Rules of Criminal Procedure, which has the force of law, authorizes dismissal of an indictment, information or complaint ‘[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . . . ’ The rule clearly is limited to post-arrest situations.” (Emphasis supplied.)

The Marion rule controls here. There is no claim that there was delay in the trial of this action following the filing of the indictment. The defendant's motion was properly denied.

FAILURE TO INSTRUCT CONCERNING LESSER AND INCLUDED OFFENSE

We do not agree with the appellant that 42 U.S.C. § 408 defines a lesser and included offense in the offense charged under 18 U.S.C. § 1001. To be necessarily included in the greater offense the lesser offense must be such that it is impossible to commit the greater without first having committed the lesser. The offense must not require some additional element not needed to constitute the greater. Moreover, the lesser offense must be included in, but not be encompassed by, the greater offense. Olais-Castro v. United States, 416 F.2d 1155, 1157 (9 Cir. 1969).

This contention is not well founded for a further reason. Under Rule 30 F.R.Cr.P. no error may be assigned on appeal unless an exception was taken to the instructions given to the jury or to the failure to give an instruction requested by appellant. No such exception was taken and no instruction was requested by the appellant during the trial setting out the claimed lesser and included offense. See Britton v. United States, 112 U.S.App.D.C. 207, 301 F.2d 531 (1962). See also, Higgins v. Wainwright, 424 F.2d 177, 178 (5 Cir. 1970).

We find no merit in other claims of appellant.

Affirmed.


author: HAMLEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frederick Isiah GRANGER, Defendant-Appellant.
    No. 72-2201.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Certiorari Denied June 4, 1973.
    See 93 S.Ct. 2757.

      M. Van Elgort, Deputy Federal Public Defender, argued, Alan Issacman, Deputy Federal Public Defender, John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for defendant-appellant.
    Darrell W. MacIntyre, Asst. U. S. Atty. (argued), Eric A. Nobles, Vincent J. Marella, Asst. U. S. Attys., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before HAMLEY, BROWNING and WRIGHT, Circuit Judges.
   HAMLEY, Circuit Judge:

Frederick Isiah Granger appeals from his conviction, after a jury trial, on counts three and four of a four-count indictment pertaining to the transfer, delivery and possession of counterfeit money in violation of 18 U.S.C. §§ 472 and 473. All of Granger’s arguments on appeal relate to his sole defense of entrapment. We affirm.

Granger first contends that the trial court erred in refusing to give his requested jury instruction No. 1 on entrapment. We quote the essence of the proposed instruction in the margin. This requested instruction is based on what has been termed the “Government Conduct Theory” of entrapment which has its origins in the separate opinion of Mr. Justice Roberts for himself and two other justices in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and the concurring opinion of Mr. Justice Frankfurter, for himself and three other Justices, in Sherman v. United States, 356 U.S. 369, 378, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

Instead, the trial court gave an entrapment instruction designed to apply the so-called “Predisposition Theory,” adopted by the Supreme Court in the opinions by Mr. Chief Justice Hughes in Sorrells, and by Mr. Chief Justice Warren in Sherman. With exceptions to be noted below, the Ninth Circuit has consistently applied the “Predisposition Theory.”

Granger, however, calls attention to two recent decisions of this court which, in his view, demonstrate that, as currently conceived, the principal issue raised by the entrapment defense is the moral character of the police activity. These decisions are Greene v. United States, 454 F.2d 783 (9th Cir 1971), and United States v. Russell, 459 F.2d 671 (9th Cir. 1972), cert. granted 409 U.S. 911, 93 S.Ct. 226, 34 L.Ed.2d 172 (1972).

It is fair to state that these two decisions carve out a narrow exception to the theretofore prevailing rule in this circuit that an entrapment defense is not available to one who is shown to have a predisposition to commit the kind of offense in question. In Greene, the defendant was shown to have a predisposition to commit offenses associated with bootlegging. Under the unique circumstances of that case, however, it was established that the Government, through its agent, directly and continuously involved itself in the creation and maintenance of the criminal operations. Because predisposition to commit such offenses was shown, we acknowledge that Greene is not a typical entrapment ease. But we nevertheless set aside the conviction on the ground that

“when the Government permits itself to become enmeshed in criminal activity, from beginning to end, to the extent which appears here, the same underlying objections which render entrapment repugnant to American criminal justice are operative.” 454 F.2d at 787.

In Russell, the defendant was convicted on three counts of violating the Federal Food and Drug laws in manufacturing, processing, delivering, and selling a prohibited depressant or stimulant drug, namely methamphetamine, in violation of 21 U,S.C. §§ 831(q)(1), (2); 360a (b). The evidence showed that a Special Agent of the Bureau of Narcotics and Dangerous Drugs met with Russell and Several of the latter’s codefendants. The agent claimed that he represented an organization anxious to control the manufacture and distribution of methamphetamine in the Pacific Northwest. He offered to supply the chemical Phenyl-2-Propanone in exchange for one-half of the methamphetamine to be manufactured therewith. An agreement was reached, and several days later, the agent provided the Phenyl-2-Propanone, and the methamphetamine was produced with the agent’s assistance. He received his share and also purchased, from Russell, an additional amount of the finished product.

We noted in Russell the defendant’s concession that he may have harbored a predisposition to commit the charged offenses. We nevertheless reversed, holding that a defense to such a charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise. We declined to label the defense, in this context, an entrapment defense, but held the conduct of the government agent equally repugnant, if not more so, than the conduct of the government agent in Greene.

Nothing approaching the unique circumstances of Greene or Russell is present here, even accepting at full value all of the evidence favorable to Granger. The offenses of which he was convicted occurred on August 27, 1971. Granger had previously, by his own admission, engaged in similar transactions on May 29, 1971. The May 29 offense was preceded by considerable contact between Granger and Carl Birge, an acquaintance Granger met while serving a sentence in state prison. Birge, a government informer, introduced Granger to a government agent who acted as a prospective buyer of counterfeit money.

While Birge and the government agent had, prior to May 29, made persistent attempts to get Granger to find a source of counterfeit currency, they made no effort to assist in the manufacture, transportation or concealment of counterfeit currency. They did not even offer to compensate Granger for his assistance although he hoped to receive some clothes or jewelry.

After completion of the May 29 transaction, activities got under way leading to the August 27 transaction on which Granger’s conviction is based. Again, the activities of Birge and the government agent were limited to attempts to persuade Granger to find a source of counterfeit money. But the contacts were now somewhat less persistent. Granger was told that he would profit from his assistance. Finally, Granger did locate a source and, in order to obtain sample counterfeit bills, he met with the government agent and received one hundred dollars in genuine United States currency to be used to purchase samples. On August 27, 1971, Granger gave the agent a counterfeit one hundred dollar bill and two counterfeit twenty dollar bills. When Granger’s source decided to drop out of the picture, Granger was arrested.

The government agent’s efforts to have Granger find a source of counterfeit currency was perhaps more persistent and continuous than in many cases which come to mind. But, in essence, they were activities of the same kind which have been held permissible in dealing with other persons predisposed to commit the relevant offenses. Thus this appears to us to be, essentially, a typical instance for application of the rule that the entrapment defense is not available to one predisposed to commit the crime.

In Greene and Russell we have evidenced our willingness to set aside convictions for offenses in which government agents were, in a very real sense, actual participants in the crime, notwithstanding predisposition by the defendant. Those cases involved government participation to the extent that agents actually exercised control over the criminal activity and aided in the manufacture, production, or transfer of the contraband. See also, United States v. McGrath, 468 F.2d 1027 (7th Cir. 1972). This is not such a case.

Granger’s remaining points are without merit. On the whole we believe the trial court’s initial and supplemental instructions on the law of entrapment were clear and fair. One could find fault with some nuances which can be drawn from these instructions, but we conclude that any such defects were minor and did not prejudice Granger.

The evidence bearing upon entrapment was clearly sufficient to overcome the contention that Granger was entrapped as a matter of law. Needless to say, what we have recounted above concerning the facts relevant to entrapment reflects only Granger’s version, since his entitlement to a particular entrapment instruction must be measured by his version of the evidence. But when it comes to the sufficiency of the evidence to support the verdict, we consider the evidence favorable to that verdict.

Here, the Government’s evidence pertaining to entrapment varied widely from that offered by Granger. According to the Government’s case, Granger was about as active in contacting the government agents as they were in contacting him. This left just a credibility question for the jury. Robison v. United States, 379 F.2d 338, 343 (9th Cir. 1967).

Affirmed.

      . “The defendant asserts that he was a victim of entrapment as to the crime charged in the indictment.
      “When a person is induced to commit a crime by the persuasion or pressure of Government agents or informants, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.
      “If you find that the criminal design or intent to commit the offense charged originated with the Government, through their agents or informants and that the defendant's course of conduct was a product of the informants and agents inducements then it is your duty to acquit the defendant.”

      . For example, see United States v. Tatar, 439 F.2d 1300, 1302-1303 (9th Cir. 1971); United States v. Walton, 411 F.2d 283, 288 (9th Cir. 1969); Nordeste v. United States, 393 F.2d 335, 338 (9th Cir. 1968); Robison v. United States, 379 F.2d 338, 343 (9th Cir. 1967). Cf. Hughes v. United States, 427 F.2d 66, 69 (9th Cir. 1970).

      . The government agent participated in the guise of a partner in the illegal undertaking. He offered to provide a still, still site, still equipment, and an operator. He provided, at wholesale prices, a ton of sugar for use in the bootleg operation.

      . A codefendant, Joe Dell Whitaker, was charged in counts one and two of the indietment with offenses growing out of the May 29, 1971, incident. Granger was charged as an aider and abettor in count one, but was not charged in count two. Whitaker was found guilty on counts one and two. Granger was acquitted of the aiding and abetting charge under count one.


author: GOLDBERG, Circuit Judge: PER CURIAM: SIMPSON, Circuit Judge, with whom GODBOLD, Circuit Judge, joins

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Pedro Miguel CRISTANCHO-PUERTO, Defendant-Appellant.
    No. 72-2511
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 10, 1973.
    Rehearing Denied April 18, 1973.

      J. V. Eskenazi, Federal Public Defender, Miami, Fla. (Court appointed but not under ACT, Charlene H. Sorrentino, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., William R. Northcutt, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

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

   GOLDBERG, Circuit Judge:

Appellant, Pedro Miguel Cristancho-Puerto, who is a citizen of Colombia, brings this appeal from a judgment convicting him of having violated 21 U.S.C. §§ 841(a)(1) and 952(a) by illegally importing cocaine and by possessing cocaine with intent to distribute. The sole issue before us is whether the trial court erred in denying appellant’s motion to suppress evidence of the cocaine and statements made in connection with its seizure. We hold that the evidence was properly admitted.

On May 18, 1972, appellant arrived at Miami International Airport aboard a flight from Bogota, Colombia. When appellant reported for immigration inspection, the immigration officials became suspicious of the authenticity of his travel documents. Appellant was taken before a secondary immigration inspector, who advised him that because of the questions regarding his papers, he would have to choose either (1) to withdraw his application for admission and voluntarily return to Colombia, or (2) to continue seeking admission to the United States with the knowledge that immigration officials were suspicious about his compliance with the entry laws. Appellant chose the latter course of action. He was then taken into custody, warned of his rights, and searched —but no contraband was discovered.

Appellant was held overnight at an office of the I.B.I. Security Agency and his luggage was placed with I.B.I. for storage. The next day, Friday, May 19, 1972, after further investigations and interviews had been completed, appellant was arrested, charged with violating 18 U.S.C. § 1546 (fraudulent entry documents), searched, and placed in the Dade County Jail. On Monday, May 22, 1972, appellant was taken before a United States Magistrate, who advised him of his rights and set bond. Appellant was returned to the Dade County Jail, where he was again searched.

On May 25, 1972, a Special Agent with the Bureau of Narcotic and Dangerous Drugs allegedly received a confidential informant’s tip that appellant was boasting to his jail-mates that he had cocaine in his possession that had not been discovered despite the many searches. The Special Agent notified the Immigration and Naturalization Service, then went to the jail with agents from the INS and from the United States Customs Bureau. Appellant was taken to an interrogation room where all three federal agents interviewed him.

After appellant had been warned of his rights, the Customs Bureau Agent asked him, “Will you take off your shoes?" Appellant replied, “Of course,” and did so. The agents immediately examined the shoes and found a substance later identified as cocaine concealed in the soles. A subsequent search of the luggage stored at I.B.I. led to the discovery of additional cocaine hidden in the soles of shoes in appellant’s suitcase. It is stipulated that no warrants were sought or obtained for either search.

Appellant was indicted on June 15, 1972, for the cocaine violations. His motion to suppress was denied following an evidentiary hearing, and a jury subsequently found him guilty on both counts. Appellant was sentenced to serve eight years imprisonment on each count, the sentences to be served concurrently.

Appellant appeals solely on the ground that the motion to suppress evidence should have been granted. Appellant correctly premises his argument on the settled principle of law that where a search is conducted without a warrant, “[t]he burden is upon the government to show that the search fell within one of the exceptions to the Fourth Amendment requirement of a warrant.” Brett v. United States, 5 Cir. 1969, 412 F.2d 401, 405; Barnett v. United States, 5 Cir. 1967, 384 F.2d 848. Although in denying the motion to suppress the evidence the trial judge failed to state which exception he thought was applicable, we find that this search was justified under a particularly narrow category of border searches.

We think it clear that appellant had not been fully “admitted” into the United States and that his legal status at the time of the search was that of a man “standing at the border.” Appellant was indeed taken past the physical border, but he was brought across that visible boundary only by» virtue of his being placed in “deferred inspection parole status.”

8 U.S.C. § 1182(d)(5) states as follows:

“The Attorney General may in his discretion parole into the United States temporarily under such conditions as he may prescribe for emergent reasons or for reasons deemed strictly in the public interest any alien applying for admission to the United States, but such parole of such alien shall not be regarded as an admission of the alien and when the purposes of such parole shall, in the opinion of the Attorney General have been served the alien shall forthwith return or be returned to the custody from which he was paroled and thereafter his case shall continue to be dealt with in the same manner as that of any other applicant for admission to the United States.” (emphasis added)

On the precise facts of this case, we find this statute to be dispositive. We are not dealing here with an alien who has been placed in deferred inspection parole status and then allowed to remain either at liberty or at large. Rather, we hold only that an alien who is brought into the country under the provisions of this law and who is being held in physical custody by entry officials, having never for a moment been allowed to move about free of custody, continues to stand at the border for customs and border search purposes. Nor do we suggest that his special legal status could be continued indefinitely. If the entry officials allow the alien to remain at large pending investigation under the statute, the alien would not remain at the door. Similarly, if a criminal trial begins against the alien, he would not be “at the door” because the government at that point would no longer be holding the alien pending some future action. Finally, we do not mean to imply that there could never be a period of time for which an alien is held under the statute that would be too long to be reasonable. Here, appellant was searched one week after his physical entry into the country. Because the search occurred only one week later, at a time when the alien had been held in continuous physical custody by entry officials, pending prosecution and pursuant to section 1182(d)(5), we hold that the search was a border search. As such, the search was proper, 19 U.S.C. § 482, and the evidence obtained thereby was introducible against appellant.

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

SIMPSON, Circuit Judge, with whom GODBOLD, Circuit Judge, joins

(dissenting) :

I respectfully dissent from the refusal to reconsider the panel opinion by the Court en banc. I think the panel opinion makes an unwarranted application of the border search doctrine to this case.

At the outset, the statutory argument by which the appellant was defined as a person “standing at the border” creates difficulties. I question the use of a statute which defines the status of a person for entry purposes under the immigration law being used as sole authority for conducting a border search. Title 19, U.S.C., Section 482, the statutory authority under which border searches are conducted, designates a border crossing rather than the legal status of a person as the event giving rise to the authority to conduct a border search. Alexander v. United States, 9 Cir. 1966, 362 F.2d 379, cert. denied 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439. It is clear however that at some point a person becomes fully admitted to the United States and may no longer be subjected to a border search, cf. Carroll v. United States, 1925, 267 U.S. 132, 134, 45 S.Ct. 280, 69 L.Ed. 543. The border or “extended border” has uniformly heretofore been defined in terms of physical distance or geographical travel time from the actual border, and authority to conduct border searches has been made dependent upon traditional border search or extended border search analysis.

Despite the fact that they may be illegal entrants into the United States, aliens as well as citizens enjoy Fourth Amendment protection, cf. Au Yi Lau v. United States Immigration and Naturalization Service, 1971, 144 U.S.App.D.C. 147, 445 F.2d 217, 223. In my view the panel opinion creates a precedent fraught with dangerous implications that the validity of warrantless searches of aliens may in the future be made to depend upon administrative classifications of status made by the Bureau of Immigration and Naturalization.

Further the panel opinion approves the introduction of evidence which was the fruit of a warrantless search of the appellant’s clothing in the jail property room. Title 8, U.S.C., Section 1182(d) (5), which is relied on to place the appellant in “deferred inspection parole status” applies facially to persons and not to baggage and personal effects. It is unclear to me how this “deferred inspection parole status” can apply to baggage and personal effects that the appellant was incapable of reaching because of his incarceration. Even if Cristancho-Puerto was “standing at the border” he was still entitled to a separate and distinguishable Fourth Amendment right to the security of his clothing in the jail property room. Brett v. United States, 5 Cir. 1969, 412 F.2d 401, so holds for this Court. A warrantless search must fall within one of the narrow “jealously and carefully drawn” exceptions to the Fourth Amendment. Jones v. United States, 1960, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514. An immigration statute which defines status is not in my judgment a valid basis for engrafting an additional exception upon the warrant requirement of the Fourth Amendment.

A search must be reasonable under the Fourth Amendment. Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. Simply classifying this search as a border search is not a ground for obviating inquiry into the surrounding circumstances to determine reasonableness. Even absent the normal requirements of a search warrant for the existence of probable cause, border searches still must be reasonable under Fourth Amendment imperatives. United States v. Hill, 5 Cir. 1970, 430 F.2d 129, 130; Henderson v. United States, 9 Cir. 1967, 390 F.2d 805. The particular search here of course does not comport with the historical origin and justification for an “extended border search”— a border search occurring at some point of time other than an actual border crossing. Cf. United States v. Glaziou, 2 Cir. 1968, 402 F.2d 8, 13-14, Note 3. Ordinarily the justification for an “extended border search” is that individuals who have recently crossed a border or who have been in a border area may elude customs officials because of high mobility. Glaziou, supra. But in this case the appellant was in custody and government agents had ample opportunity to secure a warrant if the informer’s tip was reliable and sufficient to constitute probable cause. Border searches occurring at some point after an initial border crossing usually involve considerations of both distance and time from the initial crossing. Alexander v. United States, supra. No other case which I have found sanctions a border search conducted eight days after entry into the United States.

Neither the panel opinion nor the briefs make clear the actual reason for the appellant’s incarceration at the time of the search when the cocaine was discovered. The opinion (see slip opinion, pages 2 and 3) states that appellant was charged with violating Title 18, U.S.C., Section 1546 (possession of fraudulent entry documents), arraigned before a United States Magistrate on that charge, searched and jailed, being searched both at the time of the arrest and at the time of his return to jail following arraignment. These searches were unproductive. If Cristancho-Puerto was at the time of the search which located the cocaine incarcerated under the Section 1546 charge, his status on “deferred inspection parole” was seriously diluted if not completely destroyed. The petition for rehearing asserts that his remaining in jail was solely by reason of his inability to post a $2500.00 bail bond on the Section 1546 charge. If this contention is true it negates his status as a man “standing at the border” and therefore subject to a border search within the scope of the panel opinion. It also raises a question suggested in the petition for rehearing that he was discriminated against solely by reason of indigency. See Tate v. Short, 1971, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130; Williams v. Illinois, 1970, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586. It deeply disturbs me that this panel opinion says for our Court that the United States can arrest a man and charge him with a crime but still have the benefit of conducting warrantless searches of his person and effects because he is “standing at the border”. The two concepts are contradictory. The panel opinion recognized this dilemma by saying that a man would no longer be “standing at the border” if a criminal trial begins against him. I suggest that the initiation of criminal proceedings by arrest and arraignment is more logically the appropriate time for an alien to cease “standing at the border”.

Granted that the expansion of the border search doctrine approved by the panel opinion is narrowly framed, I think that the problems it raises are of sufficient gravity to warrant en banc re-examination.

For these reasons I dissent.

      . Theories mentioned in the briefs on appeal are: (1) border search; (2) “alien-status” search; (3) customs search, see 19 U.S.C. § 1595(a); (4) search by consent, compare Perkins v. Henderson, 5 Cir. 1969, 418 F.2d 441, with United States v. Resnick, 5 Cir. 1972, 455 F.2d 1127; and (5) prison search. We should not be understood as having in any way considered any exception to the Fourth Amendment warrant requirement other than that discussed in the body of this opinion.


author: ROSS, Circuit Judge.

text:
    Richard M. COURSON, Appellee, v. MARYLAND CASUALTY COMPANY, Appellant.
    Nos. 72-1480, 72-1481.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1973.
    Decided March 20, 1973.

      Dennis L. Shackleford, El Dorado, Ark., for appellant.
    Richard E. Griffin, Crossett, Ark., for appellee.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge.
   ROSS, Circuit Judge.

Richard Courson (Courson) brought this action against Maryland Casualty Company (Maryland) in the Circuit Court of Ashley County, Arkansas, to recover the sum of $10,000.00 under the uninsured motorist clause of an automobile insurance policy theretofore issued to Courson by Maryland. Maryland removed the case to the United States District Court for the Western District of Arkansas pursuant to the provisions of 28 U.S.C. § 1441. The trial court entered judgment in favor of Courson for the sum of $10,000.00 plus penalty and attorneys fees and Maryland appealed to this Court. We affirm but make one modification to the judgment.

On August 23, 1969,, Courson was involved in an automobile collision with a car driven by Earnest Green (Green), an uninsured motorist. The Courson car and the Green car were traveling in opposite directions and a collision occurred shortly after a third car driven by Robert Crane, Jr. (Crane) had entered the highway from a side road at a point between the Courson car and the Green car. Crane was insured by State Farm Mutual Insurance Company (State Farm).

Courson brought suit in state court against both Green and Crane on February 4, 1970, and at that time advised Maryland’s claim agent of the suit, “in order that they [Maryland] may properly defend in behalf of Earnest Green and Robert Crane.” (At this point Courson’s attorney erroneously believed that Crane was also an uninsured motorist.) On February 6, 1970, Maryland’s agent acknowledged receipt of the letter and stated that “We are notifying the Maryland Casualty Company, the insurance carrier for Mr. Courson, this date.” On May 4, 1970, Courson’s lawyer advised Maryland’s claim agent that Green’s attorney had advised that Green was uninsured, that the case was set for trial on June 9, 1970, and that he was interested in settling the case. He asked Maryland to contact State Farm, Crane’s carrier, to see if some kind of settlement could be made. He received no response from Maryland’s claims representative. On May 25, 1970, he again wrote the claims representative, advising him of the impending trial and giving him the name of the attorney for Crane. He further stated that “My investigation reveals that probably the primary liability lies with the uninsured defendant, Earnest Green.” He then asked the claims representative to advise him concerning Maryland’s intentions in the matter. Again he received no response. Courson’s lawyer wrote the claims representative again on June 1, 1970, asking for a response to his earlier letter, but received none.

Prior to trial, Crane and his insurance carrier settled the claim of Courson against Crane for $5,000.00 and Courson executed a release and indemnity agreement without further notice to Maryland and without Maryland’s consent. On June 9, 1970, Courson recovered a judgment against Green for $16,000.00 and promptly demanded payment of $10,000.-00 by Maryland under the uninsured motorist clause in the policy Maryland had issued to Courson. Maryland declined on the alternate grounds that (a) the policy was inapplicable under the exclusion provision since the insured made a settlement with another person without the written consent of the insurer; (b) any amount payable under the uninsured motorist clause should be reduced by the amount recovered from Crane’s insurance carrier under Ark.Stat.Ann. 66-4006 (Repl.1966) and under the express provisions of the policy; and (c) that in any event, Maryland was entitled to recover or set off the sum of $2,074.55 to which the Arkansas Workmen’s Compensation Commission had theretofore determined Maryland was entitled to receive in subrogation, from the settlement of $5,000.00 obtained by Courson from Crane's insurance carrier.

In United States District Court, after Maryland had interposed these defenses to Courson’s action on the uninsured motorist provision in his policy, the trial court retried the issue of negligence of all of the parties to the accident and found that the accident was caused solely by the negligence of the uninsured motorist, Green. It rejected Maryland’s defenses and allegations regarding the credits, except its claim for a setoff for the amount which the Arkansas Workmen’s Compensation Commission had already found to be owing to Maryland (as compensation carrier) as a result of Courson’s settlement with Crane. However, in a supplemental opinion, the court reconsidered the latter setoff, and also disallowed it. The court found that Courson’s damages were in the amount of $15,657.36, reduced that amount by the $5,000.00 which Courson received from Crane in settlement, and found that Courson was entitled to $10,657.36. Recognizing that the uninsured motorist policy was limited to $10,000.00, judgment was entered accordingly in that amount, plus 12 percent statutory penalty and attorneys fees.

SETTLEMENT EXCLUSION PROVISION

The uninsured motorist provision of the policy contained the following exclusion:

“I. COVERAGE U — UNINSURED MOTORISTS
(Damages for Bodily Injury)
Exclusions
This insurance does not apply: (a) to bodily injury to an insured with respect to which such insured, his legal representative or any person entitled to payment under this insurance shall, without written consent of the company, make any settlement with any person or organization who may be legally liable therefor . ”

The trial court held this policy provision to be contrary to public policy and therefore invalid citing MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W.2d 252 (1968), and MFA Mutual Ins. Co. v. Lovins, 248 F.Supp. 108 (E.D.Ark.1965). In Lovins the United States District Court for the Eastern District of Arkansas had determined that a clause providing forfeiture of insurance coverage, by an insured who prosecuted a suit to judgment against an uninsured motorist without the written consent of the insurer, was against the public policy of the state and void. In Bradshaw, supra, 431 S.W.2d at 254, the Supreme Court of Arkansas indicated its agreement with that holding. However, in this ease the exclusion is claimed to result from settlement with an insured motorist without the consent of the insurer, which is a different situation from that which was present in Lovins and in Bradshaw.

Although the “settlement exclusion,” by its very terms is referred to as an exclusion, it is, in fact, a forfeiture. All coverage under the uninsured motorist policy provisions is “excluded” in the event that a settlement is made without the consent of the company. Under the law of Arkansas as in nearly all states, forfeitures are not favored. Home Mutual Fire Ins. Co. v. Riley, 480 S.W.2d 957 (Ark.1972). See generally, 1 R.Anderson, Couch on Insurance 2d § 15:95 (1959). In Riley, supra, 480 S.W.2d at 958-959, the Supreme Court of Arkansas stated the rule as follows:

“This court will grasp any circumstances which indicate an election to waive a forfeiture. In American Life Ass’n v. Vaden, 164 Ark. 75, 261 S.W. 320 (1924), we said:
The doctrine is firmly established by the highest courts in this country, and approved by us in numerous eases, that ‘forfeitures are not favored in the law,' and that ‘courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action, on the part of an insurance company, which leads a party insured honestly to believe that, by conformity thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the Company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.’ ”

In this case, Courson gave Maryland every opportunity to participate in the settlement negotiations with Crane and his insurance carrier. His requests for participation were completely ignored and Courson was entitled to assume that if any objection to the settlement was going to be made by Maryland, it would have been communicated prior to the time he attempted to collect on the judgment entered on June 9, 1970. We are satisfied that the Supreme Court of Arkansas would hold this failure to act constitutes sufficient proof of circumstances indicating “an election to waive a forfeiture.” Home Mutual Fire Ins. Co. v. Riley, supra, 480 S.W.2d at 958. See also Pickering v. American Employers Ins. Co., 282 A.2d 584 (R.I.1971); Volkswagen Ins. Co. v. Taylor, 201 So.2d 624 (Fla.App.1967); Allstate Ins. Co. v. Pietrosh, 85 Nev. 310, 454 P.2d 106 (1969).

CREDIT AGAINST POLICY LIMITS FOR $5,000 SETTLEMENT

The lower court reduced the amount of damages that it found Green was liable for, by the $5,000.00 settlement sum which Courson received from Crane. However, since the total damages were over $15,000.00, Maryland was still found to be liable for the full amount of the policy limits of $10,000.00. The provisions under which Maryland claims reduction from the policy limits for the settlement are the following:

“HI. LIMITS OF LIABILITY
Regardless of the number of insureds under this policy, the company’s liability is limited as follows:
(b) Any amount payable under the terms of this insurance because of bodily injury sustained in an accident by a person who is an insured under this coverage shall be reduced by
(1) all sums paid on account of such bodily injury by or on behalf of
(ii) any other person or organization jointly or severally liable together with such owner or operator for such bodily injury, including all sums paid under the bodily injury liability coverage of the policy . . . .”
“VI. ADDITIONAL CONDITIONS
G. Trust Agreement In the event of payment to any person under this insurance :
(a) the company shall be entitled to the extent of such payment to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury because of which such payment is made;
(b) such person shall hold in trust for the benefit of the company all rights of recovery which he shall have against such other person or organization because of the damages which are the subject of claim made under this insurance;
(c) such person shall do whatever is proper to secure and shall do nothing-after loss to prejudice such rights . . . (Emphasis added.)

The provisions of the section entitled “LIMITS OF LIABILITY” are clear in that they require a reduction of the amount payable under the terms of the insurance equal to the amount of any payments made on behalf of another person who is jointly or severally liable. The purpose of such a provision is undoubtedly to eliminate the possibility that the insured will recover from both the insurance company and another person “legally responsible.” Maryland does not appear to contend that the liability and damage determination made by the district court is not binding on it, nor does it dispute the substance of that determination. The district court specifically held that:

“By this ruling the Court concludes there is substantial evidence from the testimony of the witnesses and exhibits that the accident was not due to the negligence of Robert E. Crane, Jr., notwithstanding, the agreed settlement and release agreement in lieu of a trial in the state court.”

Arkansas has adopted the general rule that contracts, if clear and unambiguous, should be enforced as written, giving the language the common and ordinary meaning under the situation, and that words of limitation are to be construed strictly against the insurer. Phillips v. Midwest Mutual Ins. Co., 329 F.Supp. 853 (W.D.Ark.1971); Washington Fire and Marine Ins. Co. v. Ryburn, 228 Ark. 930, 311 S.W.2d 302 (1958). Although the word “liable” has been construed by the Arkansas Supreme Court to mean less than “an absolute legal and fixed liability,” Pacific Fire Ins. Co. v. Murdoch Cotton Co., 193 Ark. 327, 99 S.W.2d 233, 235 (1936), the district court’s order seems to preclude a finding in this situation that even “a condition out of which legal liability may arise” exists. Id. In our opinion a clear reading of this entire provision therefore precludes Maryland from reducing the policy limits by the amount of the settlement.

The same reasoning applies to the “Trust Agreement” clause in the policy. It refers to a credit for the proceeds of any settlement or judgment resulting from the exercise of a right to recover from a person or organization “legally responsible for the bodily injury because of which such payment is made.” Thus, in view of the district court’s determination that Crane was not in any way legally responsible for the accident, Maryland is not entitled to any settlement credit under this section of the policy.

“SETOFF” FOR CRANE SETTLEMENT

Maryland was not only Courson’s uninsured motorist carrier, but was also the workmen’s compensation carrier for Courson’s company, Richard M. Courson, Inc., and as such paid a sum of $5,305.75 to Courson for the injuries received in the accident in issue. When Courson settled with Crane for $5,000.00, the Arkansas Workmen’s Compensation Commission found that after reducing the $5,000.00 by the cost of collecting the settlement sum, Courson was entitled to one-third ($1,037.28) and Maryland, as compensation carrier, was entitled to two-thirds ($2,074.55). However, since the entire settlement had been sent to Courson, Maryland was merely credited with the sum owed it, against “future liability which might accrue to them by reason of the aforesaid injury.” Maryland contends that this amount should now be credited against the amount of any judgment rendered against it on its uninsured motorist coverage.

Courson maintains that this issue is not properly before this Court as the lower court was not presented with it, but only with the question of whether workmen’s compensation benefits can directly reduce uninsured motorist coverage. It is true that the issue of reduction of the uninsured motorist coverage by the amount of the workmen’s compensation benefits was presented by Maryland and was properly rejected by the trial court on the basis of Travelers Ins. Co. v. National Farmers Union Property and Casualty Co., 252 Ark. 624, 480 S.W.2d 585 (1972), but Maryland also specifically raised the “setoff” claim in its amended answer and the lower court spoke to that issue directly in initially granting the setoff. The trial court held:

“[P]ursuant to Act 40 of the Workmen’s Compensation Act, supra, and the order entered September 17, 1971, by the Workmen’s Compensation Commission approving the settlement between the plaintiff and the third-party as provided by the section that the defendant, Maryland Casualty Company, is entitled to the credit of $2,074.-55 against any future liability by reason of the plaintiff’s injury. This, therefore, reduces the judgment which the plaintiff is entitled to have against the defendant to the amount of $7,925.45. An order will be entered accordingly.”

Subsequently, in a supplemental opinion, and after Courson filed a motion to modify the judgment, the trial court disallowed the credit to Maryland on the basis that the Arkansas Supreme Court had subsequently ruled on the issue in Travelers Ins. Co. v. National Farmers Union Property and Casualty Co., supra, 480 S.W.2d at 588-589. That case involved an action by the administratrix of a deceased’s estate against an insurer to recover under uninsured motorist coverage which included a clause permitting the insurance company to reduce the amount payable thereunder by any workmen’s compensation benefits received by the insured. The workmen’s compensation insurer intervened seeking subrogation by virtue of the payments that it had made to the deceased. The court held: (1) the clause in the uninsured motorist policy provisions which attempted to reduce the amount payable under that policy by the amount of any workmen’s compensation benefits received by the insured on account of the bodily injury, was void and unenforceable; and (2) the workmen’s compensation carrier is not entitled to subrogation by way of lien on the amounts which the employee or his dependents may receive by virtue of the uninsured motorist coverage.

In the Travelers case, supra, the compensation carrier was attempting to procure a first lien upon two-thirds of the net proceeds of the insured’s recovery from the uninsured motorist carrier under Ark.Stat.Ann. 81-1340(a) (1) (Repl. 1960) and the court held that such a broad reading of that section was not countenanced; that the recovery on uninsured motorist coverage is not a tort recovery subject to the lien provided in that section; and that the compensation carrier has no right to expect the employee to purchase uninsured motorist coverage so as to supplement the carrier’s statutory lien. Travelers Ins. Co. v. National Farmers Union Property and Casualty Co., supra, 480 S.W.2d at 588-589.

The trial court characterized Maryland’s attempt to set off the portion of Courson’s settlement with Crane, which the Arkansas Workmen's Compensation Commission found should be credited against future liability of Maryland, as an assertion of a lien through the right of subrogation under Ark.Stat.Ann. 81-1340 (Repl.1960) against the uninsured motorist carrier (also Maryland) and therefore it applied Travelers.

Although the Travelers decision undoubtedly required the lower court to deny any reduction from the uninsured motorist coverage for amounts of workmen’s compensation benefits received by Courson from Maryland, as compensation carrier, it does not, in our opinion, have any effect upon Maryland’s right to claim a portion of the settlement with Crane pursuant to the statute. Courson is entitled to the full $10,000.00 provided for by the uninsured motorist coverage but Maryland is entitled to $2,074.55 from the settlement with Crane as a result of the determination of the Commission that this amount was Maryland’s share of the Crane settlement pursuant to the Arkansas statute permitting this allocation. We do not read the Travelers case as rejecting all claims that a compensation carrier may have against an employee who also has uninsured motorist coverage, but only as forbidding the compensation carrier from attempting to claim a lien by subrogation for workmen’s compensation paid to an employee on a percentage of the proceeds of the employee’s uninsured motorist coverage. In his brief, Courson does not contend that Travelers alone would disallow this setoff, but rather relies on the fact that Maryland did not present this issue to the lower court.

The record is not clear as to whether or not Maryland will be able to recover the $2,074.55 from the future workmen’s compensation payments by Maryland and the trial court did not, except by implication in its original opinion, reach the question as to whether or not the $2,074.55 setoff pleaded by Maryland is a proper counterclaim under Fed.R.Civ. P. 13. For this reason we do not determine those questions at this time. We only decide that the case of Travelers Ins. Co. v. National Farmers Union Property and Casualty Co., supra, is not a bar to the recovery by Maryland of the $2,074.55 portion of the Crane settlement and we remand the case to the trial court for a re-determination of whether this amount should be allowed as a setoff in this action under Fed.R. Civ.P. 13. With this modification, the judgment of the trial court is affirmed.

      . Maryland also insured Courson’s employer, R. M. Courson, Inc., for its workmen’s compensation liability and bad paid out workmen’s compensation benefits to Courson in the sum of $5,305.75.

      . In Bradshaw the Supreme Court of Arkansas held valid a policy paragraph providing that a judgment obtained against an uninsured motorist without the written consent of the insurer was not conclusive between the insured and the insurer. Based on that decision, the trial judge in this case retried the issues of liability and damages and determined that the uninsured motorist, Green, was liable to Courson in the sum of $15,657.36.

      . This finding: was made pursuant to Ark. Stat.Ann. 81-1340 (Repl.1960) which provides that the workmen’s compensation insurer is entitled to be subrogated to the rights of the insured as to two-thirds of the amount of such a settlement after deducting the reasonable cost of collection,


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Patrick Warren McDOWELL, Defendant-Appellant.
    No. 72-2514.
    United States Court of Appeals, Ninth Circuit.
    Feb. 9, 1973.

      Robert Michael Zweig (argued), of Hodge, Green & Zweig, San Francisco, Cal., for defendant-appellant.
    William B. Shubb, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee.
    Before HAMLEY and MERRILL, Circuit Judges, and SCHNACKE District Judge.

       The Honorable Robert H. Schnaeke, United States District Judge for the Northern District of California, sitting by designation.

   HAMLEY, Circuit Judge:

Patrick Warren McDowell appeals from his conviction on a charge of possessing an unregistered 9 mm. machine gun, in violation of 26 U.S.C. § 5861(d). On appeal, McDowell argues that the firearm in question, seized incident to defendant’s arrest, was obtained unlawfully. The seizure was unlawful, defendant asserts, because there was no probable cause for his warrantless arrest, and the scope of the search which led to the seizure was unreasonable. We affirm.

The facts pertaining to the arrest and search, as set out below, were developed during a pretrial hearing on McDowell’s motion to suppress. At about 1:25 a. m., on February 8, 1971, Sgt. Melton E. McDougal of the Placer County, California, Sheriff’s Office, received a radio report of an armed robbery at the Sugar Bowl Ski Lodge on Donner Summit, in Placer County. This call came from the Sheriff’s dispatcher.

Sgt. McDougal and other law enforcement officers converged on the scene of the robbery. While doing so, Sgt. Mc-Dougal received another radio report from Dispatcher Doyle of the California Highway Patrol. According to this report there were two suspects, one wearing a white ski parka and dark clothing and the other wearing a red parka and dark clothing. The suspect with the white parka was reported to be about six feet tall, weighing between one hundred sixty-five and one hundred eighty pounds, and wearing black ski boots laced up and tied with red laces and white stitching along the side. Sgt. Mc-Dougal was told, over the radio, that both men were armed, one with an automatic weapon.

When he reached the robbery area, Sgt. McDougal was joined by Deputy John A. Pyle of the Nevada County, California, Sheriff’s Department, and a civilian named Sayer. It was then approximately 2:30 a. m. According to another report Sgt. McDougal then received, two prowlers were observed near the rear of a residence at the Donner Ski Ranch. The weather was clear but it was extremely cold and there were five or six feet of snow on the ground in this area.

Sgt. McDougal and Officer Pyle instituted a search in the vicinity in which the prowlers had been observed. Sgt. McDougal, approaching a tree with a flashlight, saw a man lying on the snow, on his back, with his feet towards the tree and with a back-pack next to him. The man turned out to be defendant McDowell. Sgt. McDougal called to McDowell to remain still, and approached to within twenty or twenty-five feet of the man. Sgt. McDougal then ordered McDowell to stand.

By this time Officer Pyle had joined Sgt. McDougal. Both officers were armed with loaded shotguns and sidearms. Sgt. McDougal observed that McDowell was about five feet ten or eleven inches tall and weighed between one hundred sixty-five and one hundred eighty pounds. He was attired in a light blue coat and pants. He was wearing black laced-up ski boots with red laces and white stitching up the sides. By this time Sgt. McDougal decided to arrest McDowell.

Before doing so, however, he asked McDowell for his name and received a correct reply. He also asked McDowell how long he had been there and what he was doing. McDowell replied that he had been there three or four hours and was spending the night there. Sgt. Mc-Dougal then asked McDowell to step away from his back-pack and to place his hands in the air. McDowell stepped away about five or six feet and raised his hands. He was then frisked and handcuffed. No weapons were found on McDowell’s person. The officers had no arrest or search warrant.

Sgt. McDougal then patted the backpack and felt a solid object in one of the outside pouches which was closed by a zipper. The officer unzipped the pouch and found the butt-plate for an automatic weapon. The two officers then took McDowell through the snow to a patrol car. Sgt. McDougal testified that he was not afraid that McDowell might obtain possession of the back-pack and get a gun from it while the three were standing near the tree. Nor was the officer worried that the contents of the back-pack might be destroyed. Sgt. Mc-Dougal did testify, however, that he was concerned about his own self-protection, presumably while getting McDowell to the patrol car.

In determining whether the part of a weapon, seized in the manner described above, was admissible in this federal prosecution it is immaterial that .the search and seizure were made by state rather than federal officers. See Elkins v. United States, 364 U.S. 206, 223, 224, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Whether a warrantless arrest, made by a state or federal officer, is constitutionally valid depends upon whether, at the moment of arrest, the officers had probable cause to make it.

Arresting officers have probable cause if, at the moment of arrest, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the . . . [arrested person] . had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). In applying that test, the facts as they appeared to the arresting officer must be judged against an objective standard, the subjective good faith of the officer is not dispositive. Beck, supra, at 95, 85 S.Ct. 223; United States v. Tramontana, 460 F.2d 464, 467 (2d Cir. 1972).

Applying the stated standards to the facts of this case, we are convinced that Sgt. McDougal had probable cause to arrest McDowell before he patted or searched the back-pack. He had information from a reliable source (official radio reports from law enforcement officers), that two armed men had engaged in the robbery, they were attired in ski clothing and boots, and were of described heights and weights.

Within perhaps two hours of the robbery, McDougal discovered a man of about the indicated height and weight lying in the snow in an area not far from the robbery. While his clothing did not correspond, in all particulars, with the description given over the radio, there was a general similarity as to clothing and a close similarity as to footgear. Probable cause can exist even though the broadcast description of the suspect does not exactly match the defendant’s appearance. United States v. Moore, 148 U.S.App.D.C. 336, 459 F.2d 1360, 1361 (1972). See also, United States v. Maynard, 439 F.2d 1086 (9th Cir. 1971).

Before making the arrest, McDougal questioned McDowell as to his reason for lying in the snow on that very cold night, and received the incredible answer that he intended to stay there all night. All of this objective information, considered in totality was, in our opinion, trustworthy and sufficient to warrant Sgt. McDougal, as a prudent man, in believing that McDowell had committed the robbery earlier that night. See United States v. Mitchell, 457 F.2d 513, 514 (6th Cir. 1972).

It was therefore permissible for Sgt. McDougal to arrest McDowell and to make a search and seizure incident to that arrest, providing the search was not unreasonable in scope.

As we stated above, Sgt. McDougal made this search and seizure for the specific purpose of safeguarding his personal security. While he testified that he had no fear that McDowell could seize a weapon from the back-pack while they were standing by the tree, he made it clear that he was concerned about his own self-protection. He knew he would have to take McDowell through deep snow, during the night time, to the patrol car and that it would be necessary to take the back-pack along rather than leaving it unattended in the snow. Mc-Dougal also had reason to believe that McDowell had an armed confederate in the area who might make an attempt to free McDowell.

Under these circumstances, and despite the fact that McDowell was handcuffed and Officer Pyle was present to assist, we think it not unreasonable for Sgt. McDougal, as a further precaution, to remove any weapon that might have been in the back-pack. It is not an abandonment of the objective-standard test of Beck v. Ohio, 379 U.S. 89, 95, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), to recognize that an officer or officers who- encounter one whom they reasonably believe to be a desperate criminal, in the dead of night, in bleak mountain country deep with snow, knowing that an armed accomplice might be nearby, and knowing that there must be a hazardous trek to the patrol car, might reasonably take precautions which may seem unnecessary when later calmly reviewed in the serene and protected atmosphere of a court room.

The exigency of the moment, as it may reasonably appear to a law enforcement officer at the time, is a factor which must not be overlooked in deciding, long afterwards, whether a search and seizure was reasonable. On the dark and wintry night of February 8, 1971, Sgt. McDougal had no opportunity to pore over law books or consult the county attorney on the niceties of the law of search and seizure. He could not tell McDowell to “resume your position stretched out on the snow while I think for a while about my authority, to search your back-pack.” It was a time for immediate and decisive action and Sgt. Mc-Dougal took it.

Placing ourselves, as best we can, in the circumstances which faced Sgt. Mc-Dougal on the night in question, we think his search of the back-pack was prudent and reasonable, and entirely consistent with McDowell’s rights under the Fourth Amendment.

Affirmed.

      . Defendant relies on United States v. Colbert, 454 F.2d 801 (5th Cir. 1972). Colbert is distinguishable from the present ease. The search of the brief cases in Colbert was made while the defendants were sitting in a police car. None of the circumstances threatening the officer’s safety present in this ease were present in Colbert.