author: CUMMINGS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Andrew GEORGE et al., Defendants-Appellants.
    Nos. 72-1553 to 72-1555.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 12, 1973.
    Decided April 12, 1973.
    Rehearing and Rehearing En Banc Denied May 2, May 31 and June 5, 1973.

      Charles A. Bellows, Sherman C. Magidson, Michael B. Nash, Francis X. Riley, Chicago, Ill., for defendants-appellants.
    James R. Thompson, U. S. Atty., William T. Huyck, Glynna W. Freeman, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before CASTLE, Senior Circuit Judge, and FAIRCHILD and CUMMINGS, Circuit Judges.
   CUMMINGS, Circuit Judge.

The three defendants were indicted for mail fraud in violation of 18 U.S.C. § 1341 and for aiding and abetting that fraud under 18 U.S.C. § 2. The indictment was ultimately in 18 counts. The only variance in counts was that the last 17 involved additional mailing dates.

The indictment described defendant Peter K. Yonan as a cabinet buyer in the Purchasing Department of Zenith Radio Corporation. Defendant Andrew George was said to do business as A & G Woodworking Co. The other defendant, Irving H. Greensphan, was specified as president of Accurate Box Corporation, which supplied cabinets to Zenith.

The grand jury charged that from June 1967 through January 1971, the three friends devised a .scheme to defraud Zenith whereby Yonan received kickbacks on Accurate Box Corporation’s sales of cabinets to Zenith. To accomplish this, George allegedly submitted fictitious “commission” invoices of A & G Woodworking Co. to Greensphan’s company. After these invoices were paid, George supposedly paid part of the proceeds to Yonan. The kickbacks were of course not disclosed to Zenith. The indictment alleged that the scheme deprived Zenith of its lawful money and property and of the honest and faithful performance of its employee Yonan’s duties. The mailings mentioned in the indictment covered checks sent by Zenith to Greensphan’s cabinet company before the latter was billed by George’s company.

After a jury trial, the defendants were found guilty as charged. Yonan received a three-year sentence; George received a one-year sentence and was assessed a $1,000 fine on each count; and Greensphan received a six-month sentence and was ordered to pay a $1,000 fine on each count. On appeal, all defendants assert that the evidence was insufficient to convict them of mail fraud; George and Greensphan assail instructions; George complains of the court’s receipt into evidence of Zenith’s conflict-of-interest policy; and Yonan attacks the court’s refusal to sever his trial from Greensphan’s. We affirm.

The evidence brought forward at the trial disclosed a novel scheme. Yonan went to work for Zenith in 1961 and was a buyer in the cabinet division of Zenith’s Purchasing Department. He had “primary responsibility” for negotiating with cabinet vendors, and, in the words of his immediate supervisor, that meant “his responsibility was to send out the blueprints and gather in quotations, and where the price was too high, to try to negotiate it down to a proper level.” Of course, the quotations Yonan negotiated were reviewed by his superiors and by other departments of Zenith. In 1966, Yonan was given the responsibility for finding and negotiating with a supplier of cabinets for Zenith’s newly conceived “Circle of Sound” product. His responsibility also included arranging for delivery and monitoring the quality of the cabinets. His friend since the mid-fifties, defendant Greensphan, the owner of Accurate Box Corporation (“Accurate”), was tapped as the supplier. During the indictment years, Accurate was the sole bidder on and supplier of these cabinets. Yonan’s supervisor thought Accurate’s prices to be fair and reasonable, but in the absence of other bidders, could not conclude they were competitive. Zenith normally allowed its suppliers a maximum of 10% profit, and Accurate’s prices reflected that profit margin. The Circle of Sound product proved to be a tremendous financial success. The Zenith checks listed in the indictment were received by Accurate in payment of the cabinets sold to Zenith.

Without recounting any actual threat by Yonan, Greensphan testified that he agreed to pay Yonan $1 per cabinet kickback on the model 565 Circle of Sound unit and later per cabinet kickbacks on other models because he was afraid he was otherwise going to lose Zenith’s business. Yonan assertedly told him that “everybody and their uncle would like to get into this to manufacture this unit.” He stated that Yonan’s requests for such payments originated in October 1967. When he asked Yonan how the kickbacks were to be paid, Greensphan was told to pay A & G Woodworking Co.’s commission invoices. Greensphan never related these events to anyone at Zenith. He had known defendant George since 1960. He denied inflating any quotations to cover monies paid to Yonan.

Commencing in December 1967, Accurate received commission invoices from defendant George’s A & G Woodworking Co. even though neither George nor A & G Woodworking Co. provided any services to Accurate. Accurate paid these invoices on the basis of a commission per unit on the types of models it shipped to Zenith. Greensphan also cashed a $3,000 Accurate check payable to himself and gave the proceeds to George because he was fearful of losing Zenith’s business. To conceal the set fee per unit commission on the cabinets shipped, Accprate’s records showed the payments to George’s company as 3.4% on monies Accurate received from Zenith rather than as fixed sums on each cabinet. However, on these records the total prices of the cabinets shipped to Zenith were not correct, but were altered to make the commissions correspond to 3.4% thereof. From December 1967 until December 1970, Accurate paid George’s company in excess of $300,000 in commissions. During the period in which Greensphan’s company was paying the commission invoices of George’s company, the latter paid Yonan kickbacks in excess of $100,000 through checks made out by George.

The Government’s theory, credited by the jury, was that the kickbacks to Yon-an were accomplished by Greensphan’s payments of George’s company’s fictitious commission invoices, with George then acting as a kickback conduit to Yonan. In this connection, it should be noted that in 1969 or 1970, Yonan asked Greensphan’s company’s controller for a report of the total commission payments then made by that company to George. Shipping quantities on at least one A & G invoice were confirmed to Yonan by Accurate’s plant superintendent.

Zenith had a conflict-of-interest policy providing that no gratuities of any nature were to be bestowed on its Purchasing Department employees by suppliers. Yonan twice signed documents embodying that policy, which was annually brought to the attention of all suppliers of Zenith through letters sent out to them. Greensphan admitted receiving these letters during the period of time he was channeling the payments to Yon-an.

A number of Zenith’s employees testified that Yonan did not request preferential treatment for Greensphan and his company and that they had no knowledge of Yonan providing such treatment for them. It appears Yonan was insistent on quality and efficiency from Accurate.

Evidentiary Sufficiency of a Scheme to Defraud

The mail fraud statute delineates two essential elements constituting the crime: a scheme to defraud and use of the mails in furtherance of the scheme. There is no dispute as to the sufficiency of the evidence to establish use of the mails, nor could there be. Defendants contend that the evidence was insufficient to satisfy the first element — the existence of a scheme to defraud. Reduced to its essential distillation, their argument is that because the kickbacks were never shown to come out of Zenith’s pockets, as opposed to Greensphan’s, because Yonan was never shown to provide or secure any special services for Greensphan and his company, and because Zenith was never shown to be dissatisfied with Accurate’s cabinets or prices, no fraud within the contemplation of the statute can have occurred. We reject this argument, in part because it misses the point in two respects and in part because the particular scheme shown by the evidence to defraud Zenith is, from every defendant’s point of view, within the reach of the mail fraud statute.

Since the gravamen of the offense is a “scheme to defraud,” it is unnecessary that the Government allege or prove that the victim of the scheme was actually defrauded or suffered a loss. United States v. Regent Office Supply Co., 421 F.2d 1174, 1180-1181 (2d Cir. 1970); Pritchard v. United States, 386 F.2d 760, 766 (8th Cir. 1967); Adjmi v. United States, 346 F.2d 654, 657 (5th Cir. 1965); United States v. Shavin, 287 F.2d 647, 651-652 (7th Cir. 1961), certiorari denied, 375 U.S. 944, 84 S.Ct. 349, 11 L.Ed.2d 273. If there was intent on the part of a schemer to deprive Zenith of Yonan’s honest and loyal services in the form of his giving Greensphan preferential treatment, it is simply beside the point that Yonan may not have had to (or had occasion to) exert special influence in favor of Greensphan or that Zenith was satisfied with Accurate’s product and prices. And it is of no moment whether or not the kickback money actually came from Zenith. United States v. Dorfman, 335 F.Supp. 675, 679 (S.D.N.Y.1971). Thus the district court correctly charged the jury that it was unnecessary for the Government to prove “that anyone actually be defrauded.” Contrary to defendants’ contentions, the evidence hardly shows that it was impossible for Yonan to exercise favoritism toward Greensphan. As the Court noted in Shushan v. United States, 117 F.2d 110, 115 (5th Cir. 1941), certiorari denied, 313 U.S. 574, 61 S.Ct. 1085, 85 L.Ed. 1531: “The fact that the official who is bribed is only one of several and could not award the contract by himself does not change the character of the scheme where he is expected to have influence enough to secure the end in view.” In our view the evidence shows that Yonan did have opportunities to give Greensphan preferential treatment, particularly by avoiding the solicitation of potential competitors. Of course, the actual exercise of any such opportunity by a person in Yonan’s position may be practically undetectable.

Furthermore, even if Yonan. never intended to give Greensphan preferential treatment, and the Government does not argue that the evidence was sufficient to support a conclusion that he did, the defendants’ argument still misses the mark. The evidence shows Yonan actually defrauded Zenith. We need not accept the Government’s far-ranging argument that anytime an agent secretly profits from his agency he has committed criminal fraud. Not every breach of every fiduciary duty works a criminal fraud. But here Yon-an’s duty was to negotiate the best price possible for Zenith or at least to apprise Zenith that Greensphan was willing to sell his cabinets for substantially less money. Not only did Yonan secretly earn a profit from his agency, but also he deprived Zenith of material knowledge that Greensphan would accept less profit. There was a very real and tangible harm to Zenith in losing the discount or losing the opportunity to bargain with a most relevant fact before it. As Judge Learned Hand stated in a related context;

“A man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales available to a court, but he has suffered a wrong; he has lost his chance to bargain with the facts before him. That is the evil against which the statute is directed.” United States v. Rowe, 56 F.2d 747, 749 (2d Cir. 1932), certiorari denied, 286 U.S. 554, 52 S.Ct. 579, 76 L.Ed. 1289.

Here the fraud consisted in Yonan’s holding himself out to be a loyal employee, acting in Zenith's best interests, but actually not giving his honest and faithful services, to Zenith’s real detriment.

No refuge can be taken in Zenith’s policy “normally” to allow suppliers a 10% profit and in Accurate’s prices being within that margin. Nothing would have prevented Zenith from bargaining with Accurate for a lesser profit margin, and it would be unrealistic to presume that Zenith would consider the fact of better than $100,000 in actual kickbacks to its buyer- — over $300,000 in agreed-to-kickbacks — to be immaterial in its dealings with Greensphan. It is preposterous to claim that Zenith would have spurned such a discount if offered.

In this case, whether Zenith was to be deprived of Yonan’s honest and faithful performance of his duties to the extent of his secretly profiting from his agency and concealing knowledge of the availability of that material sum from Zenith, or to the further extent of his meriting the payments which he received, a fraud within the reach of the mail fraud statute would be present. The statute requires the existence of a scheme to perpetrate this fraud, and the question of evidentiary sufficiency boils down to whether the Government has proven that the defendants contemplated that Zenith suffer the loss of Yonan’s honest and loyal services.

Indubitably the evidence showed a “scheme.” The critical element is fraudulent intent. United States v. Regent Office Supply Co., supra, 421 F.2d at 1180. Each of the defendants asserts that there was insufficient evidence as to his intent to defraud Zenith of Yon-an’s loyalty and honesty, but we conclude to the contrary.

As to Yonan, his undisclosed receipt of the kickbacks by itself warrants a finding that he intended to defraud Zenith of his honest and loyal services. His employment duty was to negotiate the best possible deal for Zenith, or at least to apprise Zenith that Greensphan would be satisfied with a lesser profit margin. He is presumed to know that he could not personally profit by any decrease in price he could negotiate with Greensphan and that any such decrease should be made available to Zenith. In sum, the jury could hardly help but infer that Yonan intended to do exactly what he did. Hence it was not necessary for the jury to conclude that when Yonan received the kickbacks, he intended to defraud Zenith further by giving Greensphan the favored treatment for which Yonan was paid.

The evidence also supports a finding that George contemplated Zenith would be defrauded of Yonan’s honest and faithful services. George billed Greensphan for “commissions” on the Circle of Sound cabinets Greensphan sold Zenith though he provided no services to Greensphan. Checks totalling about $100,000, approximately one-third of the commissions, then passed from George to Yonan, with George apparently retaining an unmerited two-thirds. That George’s payments to Yonan had their source in Greensphan’s commission payments to George is shown by Yonan’s call to Greensphan’s accountant asking about the commission sums paid to George by Greensphan and by Yonan’s checking the shipping quantities on an A & G invoice with Greensphan’s plant superintendent. George can hardly claim to have been an unwitting conduit for the payments from Greensphan to Yonan. He submitted spurious invoices based on the number of cabinets Greensphan shipped to Zenith and made an enormous profit in the process. He, Greensphan, and Yonan were mutual friends at the inception of the scheme, and, at least on one occasion, were observed together in Accurate’s plant. He must have known Yonan’s position at Zenith and the relationship between Yonan and Greensphan. If the substantial payments from Greensphan to Yon-an were not designed to compromise Yonan’s fiduciary duties to Zenith, why were they not made directly and openly instead of through George and disguised as commission payments to him? Why would the transaction be so shrouded in secrecy and spuriousness if Yonan could legitimately make and hide from Zenith an enormous profit from his employment position or curry Greensphan’s favor? It would take a man of incredible na'iveté to play George’s role in this scheme and not understand that Yonan was giving less than full measure of loyalty and honesty to Zenith. At least George must have known that some actual injury to Zenith was the reasonably probable result of this scheme. See United States v. Regent Office Supply Co., supra, 421 F.2d at 1182.

Having admitted that he agreed to make the kickback payments to Yonan to ensure that he would not lose the Circle of Sound cabinet business, Greensphan argues that he lacked the requisite intent on the ground that he was the victim of extortion. He urges what is really an affirmative defense of extortion. However, he had no contractual agreements entitling him monopolistically to continue to sell cabinets to Zenith. He had no right to be protected from future competition. If he really feared Yonan would wrongfully try to shift the cabinet business to a competitor, why did Greensphan not go to Zenith with the report that Yonan had asked for the kickbacks ? He presented nothing to indicate why this course was not open to him. And certainly he could have gone to Zenith when and if Yonan had decided that a less deserving competitor should get the business. Under some circumstances a threat of economic injury may constitute a defense, but not here. Furthermore, since, by Greensphan’s own account, Yonan did not actually threaten him with economic harm, the evidence does not support his claim. United States v. Miller, 340 F.2d 421, 425 (4th Cir. 1965). Accordingly, his tendered instructions B and C were properly refused. Under the evidence Greensphan’s payments could be considered by the jury as an attempt to obtain an advantage against competition by purchasing Yonan’s loyalty. Greensphan’s “theory of defense,” to the extent it was valid and supported by evidence, was adequately safeguarded because the instructions given as to intent, “knowingly” and “willfully” as used in the two statutes specified in the indictment permitted the jury to accept the hypothesis that Yonan’s economic pressure negatived Greensphan’s intent to harm Zenith. Its choice not to do so was supported on this record.

Thus we conclude that there was sufficient evidence for the jury to find that each defendant intended to defraud Zenith.

Admissibility of Zenith’s Conflict-of-interest Policy

The Government introduced Zenith’s conflict-of-interest policy as bearing on the knowledge of Yonan and Greensphan. It was clearly admissible for this purpose since Yonan’s and Greensphan’s knowledge of that policy bore on their intent to defraud, though it was not essential for proving that intent. The record does not show that Zenith’s conflict-of-interest policy was admitted with reference to George’s intent. The trial testimony went to connecting the policy with Yonan and Greensphan only. The jury was correctly instructed that admissions, acts or statements of other defendants in the scheme were attributable to all only if the jury found the existence of a joint venture and if in furtherance thereof. No error was committed with respect to receiving in evidence Zenith’s conflict-of-interest policy for the limited purpose for which it was offered.

Refusal to Sever Yonan from Greensphan’s Trial

Yonan claims that Greensphan’s defense was antagonistic, thus entitling Yonan to a mistrial and a separate trial. Here we fail to discern any conflict of defense strategies, much less one so irreconcilable “that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.” United States v. Robinson, 139 U.S.App.D.C. 286, 432 F.2d 1348, 1351 (1970). True, Greensphan testified that Yonan asked him for kickbacks, but Yonan’s only real defense to what the Government proved he did was that his conduct could not have defrauded Zenith. This defense would not be undercut because he asked Greensphan for kickbacks, and Greensphan presented the same defense.

Yonan’s real complaint is that Greensphan, in an attempt to save himself, made Yonan out to be a blackmailer, and the jurors “could well conceive it their duty to remove such a person from society.” But “the mere fact that * * * one may try to save himself at the expense of another is in itself alone not sufficient grounds to require separate trials * * *." United States v. Hutul, 416 F.2d 607, 620 (7th Cir. 1969), certiorari denied sub nom. Sacks v. United States, 396 U.S. 1007, 90 S.Ct. 562, 24 L.Ed.2d 499. And Greensphan did not save himself. Furthermore, under the instructions given, the jury could not have convicted Yonan of extortion, and we see no substantial prejudice to warrant upsetting the presumption that the jurors followed the law as given to them. In sum, having found no clear likelihood of detriment to Yo-nan’s defense or confusion in the jury’s mind so great as to prejudice his fair trial, we find the trial judge did not abuse his discretion by trying all participants in the scheme together. United States v. Kahn, 381 F.2d 824, 838-839 (7th Cir. 1967), certiorari denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661.

Judgments affirmed.

      . The original Count 18 was dismissed and Count 19 became Count 18 prior to submission of the case to the jury.

      . On two Circle of Sound models, the commission was $1.00 per unit shipped, and on two others it was $.75 and $.20 per unit respectively.

      . 18 U.S.C.A. § 1341 provides :
      “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

      . See United States v. Faser, 303 F.Supp. 380, 383-384 (E.D.La.1969); United States v. Hoffa, 205 F.Supp. 710, 716 (S.D.Fla.1962).

      . See Epstein v. United States, 174 F.2d 754 (6th Cir. 1949). In that case, heavily relied on by defendants, two of the defendants had directorates in both breweries and brewery supply companies, and the Government argued that because the breweries bought from these suppliers and the defendants did not disclose their conflict-of-interest positions, - the defendants were guilty of mail fraud. The Court held such conduct was “constructive” and not “active” fraud and outside the purview of the mail fraud statute absent a showing that the supply companies’ prices were unfair. Its rationale was that under applicable civil law, directors, on behalf of their corporations, could contract with themselves or corporations in which they were interested, and such contracts were completely valid so long as they were advantageous and made in good faith. Under these circumstances mere non-disclosure did not generate a profit at the corporation’s expense. However, those defendants did not have a duty to make their profit — the return on their investment in the supply companies— available to the breweries, whereas Yonan did have a duty to make his profit — an assumedly unmerited kickback — available to Zenith. There was no reason to believe disclosure by the defendants in Epstein would have, under the particular circumstances there, made any bargaining difference to the breweries, but Yonan’s disclosure, in addition to making the scheme impossible, would have enabled Zenith to realize a substantial discount.

      . The court properly charged the jury as follows:
      “Now, to knowingly tamper or interfere with an employer-employee relationship for the purpose of and with the intent of depriving the employer of the employee’s honest and faithful performance of his duties for the employer may constitute a fraud within the meaning of the mail fraud statute.” See United States v. Procter & Gamble Co., 47 F.Supp. 676, 678 (D.Mass.1942).

      . Lest there be any doubt on that score, it may be noted that Tonan twice signed Zenith’s conflict-of-interest policy, thus acknowledging this.


source: Caselaw Access Project

author: KALODNER, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Gilbert John GAUGLER, Appellant, v. Joseph BRIERLEY, Superintendent, State Correctional Institution at Pittsburgh.
    No. 72-1262.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 31, 1972.
    Decided April 16, 1973.

      H. David Rothman, Pittsburgh, Pa., for appellant.
    J. Kent Culley, Asst. Dist. Atty., Appeals Section, Robert W. Duggan, Carol Mary Los, J. Kent Culley, Pittsburgh, Pa., for appellee.
    Before KALODNER, ADAMS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

KALODNER, Circuit Judge.

The relator Gaugler is now serving a two to four year sentence imposed by a Pennsylvania court following his conviction for burglary and larceny.

On July 16, 1971, fifteen days after he commenced serving his sentence, the relator filed a petition for a writ of habeas corpus in the District Court challenging the validity of his conviction and confinement on the ground that the state trial court had erred in not suppressing evidence which he claims was obtained by use of alleged illegal search warrants.

The District Court, after reviewing the state trial records, ordered that an evidentiary hearing take place. At that hearing, the state adduced testimony to the effect that the applicant for the challenged search warrants had, under oath, made allegations to the Justice of the Peace who had issued the warrants which fully supported their issuance.

The District Court denied the relator’s petition for habeas corpus relief.

The relator’s primary contention on this appeal is that the District Court erred in allowing testimony in supplementation of the bare averments of the affidavit filed in support of the application for the warrants. He concedes that under Pennsylvania law sworn oral testimony before a magistrate may be considered along with the facts recited in the affidavit for a search warrant in determining the sufficiency of the facts before the magistrate to justify his finding of probable cause. Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), aff’d per curiam, 432 Pa. 627, 247 A.2d 226 (1968). The relator, however, urges that Commonwealth v. Crawley, supra, “is unconstitutional because it supplies no guidelines or standards” for its administration.

The background facts necessary to our disposition may be stated as follows:

On October 2, 1966, the home of Clyde W. Williams in Gibsonia, Allegheny County, Pennsylvania, was burglarized of some $1,500 personal property. On or about October 16, 1966, the home of Mr. and Mrs. Eugene Connelly, located in the Penn Hills section of Pittsburgh, was also burglarized of some $13,500 personal property.

Connelly, in advertisements in two local newspapers, offered a $1,000 reward for information regarding the burglary of his home. In response, an informant who identified himself as a member of the burglary gang, met with Connelly. He named the relator as the burglar, and Barbara Enscoe, the relator’s girlfriend, as receiver of some of the stolen property. He described Barbara and supplied addresses where she could be located. Connelly proceeded to look for Barbara at these addresses. He found her one evening in a bar on the north side of Pittsburgh. He observed at the time that she was wearing his wife’s mink stole and wristwatch.

Connelly advised the local police as to these facts the next day. A day later, on December 5, 1966, he, his wife and Police Lieutenant James DiMaria of the Penn Hills Police Department went to the local Justice of the Peace, A. C. Ireland (“Squire”).

Connelly asked the Squire to issue search warrants for Barbara’s apartment, at No. 9, 1110 Palo Alto Street, Pittsburgh, Pennsylvania, and for the relator’s automobile. He told the Squire, under oath, the details of the disclosures made to him by his informant burglary gang member, earlier here recited. He further testified that when he located Barbara he observed that she was wearing his wife’s stolen mink stole and wristwatch. Connelly then executed an affidavit which had been prepared by the Squire’s sister who was apparently acting as his clerk. The affidavit did not reflect Connelly’s testimony that when he located Barbara she was wearing his wife’s stolen mink stole and wristwatch.

Armed with the search warrants issued by the Squire, the police entered Barbara’s apartment on December 6, 1966. She and the relator were there at the time. The police found items stolen from the homes of Connelly and Williams in the apartment. They then searched the relator’s car and found in it items stolen from Connelly and Williams. The relator and Barbara were then placed under arrest.

A Pittsburgh newspaper published a picture of the items found in Barbara’s apartment, which was seen by Williams. He recognized several of the items as property stolen from his home. Search warrants were then issued for Barbara’s apartment and the relator’s home in Gibsonia, Pennsylvania. Items stolen from Williams’ home were found in Barbara’s apartment.

It may be noted, parenthetically, that the relator, subsequent to his arrest, admitted to Connelly his participation in the burglary of the latter’s home.

The relator was charged in two indictments respecting the Connelly and Williams burglaries: at No. 74 February Sessions 1967, he was indicted with Barbara in the Williams burglary on three counts — Burglary, Larceny and Receiving Stolen Goods; and at No. 81 March Sessions 1967, he was indicted on the same three counts in the Connelly burglary.

Prior to his state trial at which he pleaded not guilty on all indictments and counts, the relator moved to suppress all seized evidence,' and subsequent statements and admissions. The trial court, following a hearing, dismissed the suppression motion on December 1, 1967.

On the same day, the relator was found guilty on all counts of the indictment relating to the Connelly burglary and guilty on the Receiving Stolen Goods count of the indictment relating to the Williams burglary. His motion to arrest judgment on the Receiving Stolen Goods count of the indictment relating to the Connelly burglary was granted.

In disposing of the relator’s challenge to the Connelly affidavit in the first search of Barbara’s apartment, the state court held that “ [sufficient facts are alleged here to enable the Magistrate to form his own conclusion that stolen property will be found at the address stated.” The relator’s conviction was subsequently affirmed by the Superior Court of Pennsylvania, and Allowance for Appeal was denied by the Pennsylvania Supreme Court.

On April 17, 1968, the relator was sentenced to a two to four year prison term on Indictment No. 81 March Sessions 1967. Sentence was suspended on Indictment No. 74 February Sessions 1967.

His state remedy exhausted, the relator filed the instant petition for a writ of habeas corpus in the United States District Court for the Western District of Pennsylvania. He urged that the facts as evidenced by Connelly’s affidavit did not constitute probable cause for the issuance of the initial search warrants and that all evidence seized after-wards, and his admission of guilt to Connelly, were “fruits of the poisonous tree.”

At the District Court evidentiary hearing, objected to by the relator, Connelly testified that he had told the Squire, under oath, of observing Barbara’s wearing of Mrs. Connelly’s mink stole and wristwatch.

Mrs. Connelly and Police Lieutenant DiMaria substantially corroborated Connelly’s testimony at the evidentiary hearing.

In an Opinion, accompanying its Order denying the relator’s habeas corpus petition, the District Court stated in relevant part:

“[I]t is clear that the material supplied by the informant and the corroboration supplied by Connelly’s investigation supplied both probable cause and evidence as to the reliability of the information. . . . ”
“ . . . Pennsylvania law . . . as set out in Commonwealth v. Crawley, 432 Pa. 627, [247 A.2d 226,] 209 Pa.Super. 70, [223 A.2d 885,] holds that sworn oral testimony before a magistrate may be used to supplement facts contained in the affidavit. This court, in Commonwealth of Pennsylvania, ex rel. Feiling v. Sincavage, 313 F.Supp. 967 (W.D.Pa.1970), affirmed per curiam 439 F.2d 1133 (3rd Cir. 1971), also recognized the validity of supplementary oral testimony to sustain a search warrant.
“Although Justice of the Peace Ireland died before the evidentiary hearing in this court, nevertheless we find the testimony of Mr. Connelly, as corroborated by his wife and Lieutenant DiMaria, to be credible and reliable. A study of the transcript during the trial in the state court also contains references to Connelly’s investigation and to his observation of Miss Enscoe before the search warrant was issued.
“Because it is alleged that a federal right has been violated, it becomes our duty to determine the validity of the attack by review of any available information even if it involves taking of testimony not given to the state court. Since we determine that the warrant was valid when the oral statements made to the magistrate are considered, in all events, then it becomes immaterial that the state court based its decision on less evidence.
“While it is désirable that all of the information presented to the magistrate be included in the affidavit, we do not believe that such a.requirement is of constitutional dimensions. Accordingly, the petition for writ of habeas corpus is denied. An appropriate order will be entered.” (footnote omitted).

The hard core of the relator’s position is that probable cause is not shown on the face of the affidavit in support of the search warrants here involved and that the District Court erred in receiving Connelly’s oral testimony before the Squire in supplementation of the affidavits.

We do not subscribe to the reiator’s contention.

We are of the opinion that a federal court, in acting on a habeas corpus petition arising out of a state conviction, may consider sworn oral testimony presented to a state judicial officer who issued a search warrant, in determining whether probable cause existed for the warrant’s issuance. Otherwise stated, we hold that in a federal habeas proceeding arising out of a state conviction, sworn oral testimony presented to a state judicial officer in an application for a search warrant may supplement an affidavit for the warrant which on its face fails to establish probable cause for the warrant’s issuance.

Our holding is without precedent in this Court.

It is in accord with the views expressed by our counterparts in the Second, Eighth and Ninth Circuits. The other Circuits have not reached the issue embraced in our holding. Nor has the Supreme Court of the United States expressly done so.

The Supreme Court has, however, in two cases arising from state criminal convictions, indicated that sworn oral testimony presented to a state judicial officer in an application for a state search or arrest warrant may constitutionally supplement an affidavit which, on its face, fails to establish probable cause for the warrant’s issuance.

The Court did so in the leading case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), where questions concerning the constitutional requirements for obtaining a state search warrant were presented, and Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), where the constitutionality of a state arrest and ensuing search and seizure was at issue.

In Aguilar, supra, a state search warrant was issued to local police officers upon an affidavit which stated in relevant part:

“Affiants have received reliable information from a credible person and do believe that heroin . . . and other narcotics . . . are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”

The affidavit provided no further information concerning either the undisclosed informant or the reliability of the information. The warrant was issued, a search made, and the evidence obtained was admitted at the trial over objections challenging the validity of the search warrant. The defendant was found guilty of possessing heroin. His conviction was affirmed on appeal to the Texas Court of Criminal Appeals.

The Supreme Court granted a writ of certiorari to the Texas Court of Criminal Appeals. It reversed the conviction on the ground that the affidavit on it face failed to establish probable cause for the issuance of the search warrant. In doing so it held that although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the judicial officer issuing the warrant must be informed of some of the underlying circumstances relied on by the informant and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was “credible” or his information “reliable.” It is significantly pertinent here that the Court after noting that “[i]t is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention,” further stated that if facts other than those contained in the affidavit “had been appropriately presented to the magistrate this would, of course, present an entirely different case.” 378 U.S. at 109 n. 1, 84 S.Ct. at 1511 (latter emphasis supplied.)

In Whiteley, supra, the constitutionality of the use of evidence seized during a search incident to an alleged illegal arrest, was challenged by a state prisoner in a federal habeas corpus proceeding. The Court reversed denial of habeas corpus relief below on the ground that the complaint for an initial arrest warrant, presented by a county sheriff, acting on a tip, failed to show probable cause for its issuance.

In doing so, the Court emphasized that the parties had stipulated in the habeas corpus proceeding that “the sole support for the arrest warrant issued at Sheriff Ogburn’s request was the complaint. . . 401 U.S. 564-565, 91 S.Ct. 1035 (foot-omitted).

Relevant here is the fact that in stressing that the complaint was the sole basis for issuance of the warrant, the Court, in a footnote which cited Aguilar, supra, inferentially indicated that “an otherwise insufficient affidavit” can be “rehabilitated” by sworn oral testimony presented in an application for a warrant. 401 U.S. at 565 n. 8, 91 S.Ct. 1031.

It may be noted, parenthetically, that the Tenth Circuit has construed footnote 8, in Whiteley, supra, as holding that “[a]n insufficient affidavit may be ‘rehabilitated’ by testimony disclosed to the issuing magistrate.” Leeper v. United States, 446 F.2d 281, 286 (1971), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1972).

As earlier stated, the Supreme Court has not ruled upon the question here presented, viz, whether a federal court, in acting on a habeas corpus petition arising out of a state conviction, may consider sworn oral testimony presented to a state judicial officer in an application for a search warrant in determining whether probable cause existed for the warrant’s issuance.

The Supreme Court’s express rulings with respect to Fourth Amendment probable-cause requirements were summarized in Whiteley, supra, as follows: cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969); United States v. Ventresca, 380 U.S. 102 [85 S.Ct. 741, 13 L.Ed.2d 684] (1965); Aguilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509] (1964); Rugendorf v. United States, 376 U.S. 528, [84 S.Ct. 825, 11 L.Ed.2d 887] (1964); Jones v. United States, 362 U.S. 257 [80 S.Ct. 725, 4 L.Ed.2d 697] (1960); Giordenello v. United States, 357 U.S. 480 [78 S.Ct. 1245, 2 L.Ed.2d 1503] (1958).” 401 U.S. at 564, 91 S.Ct. at 1035 (footnote omitted).

“The decisions of this Court concerning Fourth Amendment probable-

The Fourth Amendment does not require that a sworn statement in support of an application for a search warrant must be reduced to writing. See Sherrick v. Eyman, 389 F.2d 648, 652 (9 Cir.), cert, denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968).

The Fourth Amendment requires only that the judicial officer issuing a search warrant be supplied sufficient information, under oath or affirmation, which would support an independent judgment that probable cause exists for the warrant’s issuance.

What has been said brings us to the relator’s contention that Rule 41(c) Fed.R.Crim.P., pertaining to “[s]earches and [s]eizures,” requires that “[a] warrant shall issue only on affidavit sworn to . . . and establishing the grounds for issuing the warrant,” and that this requirement precludes rehabilitation of an insufficient search warrant affidavit in a federal habeas corpus action arising out of a state conviction.

We do not subscribe to this contention for these reasons:

The federal criminal rules are not constitutional imperatives. They do not extend to prosecutions in state courts for violations of state criminal laws. They govern only prosecutions in federal courts for violation of criminal laws of the United States. They are procedural only.

Moreover, federal habeas corpus proceedings are civil, and not criminal, in nature. They are governed by the Federal Rules of Civil Procedure. Rule 81(a)(2) of the civil rules specifies that “[fjhese rules are applicable to proceedings for . . . habeas corpus . . . to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” (emphasis supplied).

It must be said at this juncture that the three cases cited by the relator do not afford an iota of nourishment to his contention that in a federal habeas corpus action arising out of a state conviction, Rule 41(c) precludes supplementation of an insufficient warrant affidavit by oral testimony presented to the judicial officer who issued the warrant.

First, only one of the cited cases, Frazier v. Roberts, 441 F.2d 1224 (8 Cir. 1971), involved a habeas corpus proceeding arising out of a state conviction. There, the Court in fact held that the Fourth Amendment permits supplementation of an insufficient affidavit by sworn oral testimony presented to the warrant-issuing magistrate, and it denied supplementation only because the offered oral testimony had not been given under oath.

In United States v. Berkus, 428 F.2d 1148 (8 Cir. 1970), there was a federal prosecution for violation of the federal narcotics laws. There, the search warrant had been issued by a state judicial officer on the affidavit of a city policeman. The Court ruled that the sworn oral testimony of the policeman presented in his application for the warrant could supplement his insufficient affidavit. It may be noted, parenthetically, that Rule 41(c) was not adverted to in the Court’s opinion.

United States v. Sterling, 369 F.2d 799 (3 Cir. 1966), relied on by the relator, is inapposite on its setting and its facts. Apart from the circumstance that Sterling was a federal, and not a state, prosecution it did not present the question whether sworn oral testimony presented to a magistrate in an application for a warrant may supplement an insufficient affidavit.

In -Sterling, it was contended that information presented in an affidavit for a search warrant had been illegally obtained and that accordingly it could not be held to establish probable cause.

The District Court rejected the relator’s contention. It also alternatively held that the testimony, presumably adduced at the trial, and not to the magistrate, “independent [ly]” established probable cause for the warrant’s issuance.

On review, we affirmed the trial court’s primary holding that the warrant affidavit legally established probable cause. We, however, held that its alternative ground was “legally unacceptable,” in this statement:

“The lower court’s alternative ground for upholding the search warrant was based on information not in the affidavit. Such an approach is legally unacceptable. The affidavit must be the exclusive support for the warrant.” 369 F.2d at 802 n. 2.

Coming now to the relator’s challenge to the constitutionality of the Pennsylvania rule which permits rehabilitation of an insufficient affidavit by sworn oral testimony presented to the magistrate issuing the warrant:

In Commonwealth v. Crawley, supra, it was held that the Fourth Amendment and Article 1, § 8 of the Pennsylvania Constitution, P.S. do not prohibit the use of sworn oral testimony “to demonstrate facts relied on by the magistrate in issuing the warrant.” 209 Pa.Super. 70, at 76, 223 A.2d 885, at 889.

In doing so, the Court said:

“In Pennsylvania when a warrant is under attack on the ground there were insufficient facts to support a finding of probable cause the rule has been that sworn facts told to the magistrate at the time the warrant was issued are admissible to support the finding of probable cause, (citing cases).” 209 Pa.Super. at 76-77, 223 A.2d at 889.

We agree with the Court’s holding that the stated Pennsylvania rule does not contravene the Fourth Amendment or the Pennsylvania Constitution.

It is well settled that a state has a right to formulate its own rules of procedure in cases arising out of violations of its criminal laws, providing that the state procedures do not contravene constitutional guarantees.

In Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963), it was said:

“The States are not . . . precluded from developing workable rules governing arrests, searches and seizures to meet ‘the practical demands of effective criminal investigation and law enforcement’ in the States, provided that those rules do not violate the constitutional proscription of unreasonable searches and seizures and the concomitant command that evidence so seized is inadmissible against one who has standing to complain.”

In Mapp v. Ohio, 367 U.S. 643, 659 n. 9, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081 (1961), the Court said in relevant part:

“As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.”

Again in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946), the Court said at page 175, 67 S.Ct. at page 218:

“But the Due Process Clause has never been perverted so as to force upon the forty-eight States a uniform code of criminal proocedure. Except for the limited scope of the federal criminal code, the prosecution of crime is a matter for the individual States. The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States. It is for them, therefore, to choose the methods and practices by which crime is brought to book, so long as they observe those ultimate dignities of man which the United States Constitution assures. Brown v. New Jersey, 175 U.S. 172, 175 [20 S.Ct. 77, 78, 44 L. Ed. 119]; Missouri v. Lewis, 101 U.S. 22, 31 [25 L.Ed. 989]. Wide discretion must be left to the States for the manner of adjudicating a claim that a conviction is unconstitutional. States are free to devise their own systems of review in criminal cases.” (emphasis supplied).

This, too, must be said with regard to the relator’s contention that the District Court erred in its evidentiary hearing on his habeas petition when it went beyond the state trial record and permitted Connelly to testify with respect to his sworn statements to the Squire in support of his applications for the search warrants here involved.

The stated contention is utterly without merit.

The Supreme Court has squarely ruled that “the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.” Fay v. Noia, 372 U.S. 391, 422, 83 S.Ct. 822, 840 (1963) (emphasis by the Court), and that “[t]he language of Congress, the history of the writ, the decisions of this Court, all make clear that the power of inquiry on federal habeas corpus is plenary.” Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963) (emphasis supplied).

In Townsend, supra, the Court specifically held that the State, as well as the petitioner, can present “testimonial and documentary evidence” outside the state court record, in a habeas evidentiary hearing.

In doing so, it said (p. 322, 83 S.Ct. p. 762):

“To be sure, the state-court record is competent evidence, and either party may choose to rely solely upon the evidence contained in that record, but the petitioner, and the State, must be given the opportunity to present other testimonial and documentary evidence relevant to the disputed issues.” (footnote omitted) (emphasis supplied).

The vitality of the cited rulings was attested to in Harris v. Nelson, 394 U.S. 286, 291, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969).

We need not dwell on the relator’s contention that the District Court erred in finding credible the testimony of Connelly, his wife and Police Lieutenant DiMaria, respecting Connelly’s sworn testimony on his application for the search warrants.

Whether information was given to the magistrate on oath or affirmation within the meaning of the Fourth Amendment presents a question of fact. Frazier v. Roberts, supra, 441 F.2d at 1228.

In United States ex rel. Stone v. Robinson, 431 F.2d 548, 551 (3 Cir. 1970), we said:

“The standard of review that this Court must follow in this habeas corpus claim where factual determinations were made below is the same as that governing our review of other civil matters tried to the district court without a jury; i. e., under Rule 52 (a), Fed.R.Civ.P., 28 U.S.C.A., the findings of the court below will not be set aside unless they are ‘clearly erroneous.’ ”

On review of the record we certainly cannot say that the District Court’s challenged fact-findings are “clearly erroneous.”

Other points raised by the relator do not merit discussion.

For the reasons stated the Order of the District Court denying the relator’s habeas corpus petition will be affirmed.

      . The relator and Barbara were charged with unlawful possession of narcotics in a third indictment based-on the discovery of marijuana in Barbara’s apartment on the first search. The relator was acquitted on this charge.

      . The Opinion of the District Court is presently unreported.

      . The affidavit, prepared by the Squire’s sister, sworn to and signed by Connelly, states in relevant part:
      “AND NOW, to wit, this 5th day of Dee. 1966, before me the undersigned authority, personally appeared Eugene Connolly [sic! who being duly sworn (affirmed) according to law deposes and says that he has reason to believe, and that he does so believe, that certain articles, items, things and other property, which are particularly described as follows, to-wit, . . . and a part thereof, are now situate at and in a certain building or place, which is specifically described as follows, to wit, apartment #9, at 1110 Palo Alto Street, Pittsburgh, Pa., the same believed to be the apartment of Barbara Enscoe.
      “AND FURTHER, that the facts and circumstances tending to establish the belief that the aforesaid Articles, items, things and other property are now situate at and in the above described building or place, are (inter alia) as follows : that information was received from an informer to the effect that Barbara Enscoe was seen wearing a fur stole that was described as being identical to that stolen from the affiant and that Barbara Enscoe is a friend of the man the informer claims committed the burglary of the affiant’s home. Said informer identified himself as being a former member of the burglary gang and has good knowledge of their activities.”

      . Two district courts in this Circuit have held that sworn “[o]ral testimony as well as affidavit in writing, may serve as the basis for the issuance of a [state search] warrant under constitutional standards.” Commonwealth of Pennsylvania ex rel. Feiling v. Sincavage, 313 F.Supp. 967, 970 (W.D.Pa.1970), aff’d on other grounds, 439 F.2d 1133 (3 Cir. 1971) and United States ex rel. Boyance v. Myers, 270 F.Supp. 734, 738 (E.D.Pa.1967), rev’d on other grounds, 398 F.2d 896 (3 Cir. 1968). We noted in our disposition of the appeals in these two cases that we did not reach the quoted holdings of the district courts. In Boyance we said : “We do not reach the point urged by the appellant that unrecorded oral statements to the magistrate may not be the basis for a finding of probable cause to issue a warrant.” 398 F.2d at 897 n. 1.

      . United States ex rel. Pugach v. Mancusi, 411 F.2d 177 (2 Cir.), cert. denied, 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969); United States ex rel. Schnitzler v. Follette, 379 F.2d 846 (2 Cir. 1967).
      In Pugach, Judge (now Chief Judge) Friendly said:
      “Since the State does not seek to sustain the sufficiency of the affidavit, . . . [the relator] is entitled to a hearing at which the State may show, if it can, that the fudge had other sufficient information before him either when the bugging was initially authorized or on the extensions of the authority.” 411 F.2d at 180 (footnote omitted) (emphasis supplied).

      . Miller v. Sigler, 353 F.2d 424 (8 Cir. 1965), cert. denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966). See also Frazier v. Roberts, 441 F.2d 1224 (8 Cir. 1971).

      . Boyer v. State of Arizona, 455 F.2d 804 (9 Cir. 1972); Sherrick v. Eyman, 389 F.2d 648 (9 Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968).

      . The question whether sworn oral testimony adduced to a state judicial officer in an application for a search warrant could be considered in supplementation of an insufficient affidavit was presented to the United States Supreme Court in a petition for certiorari from a ruling of the Supreme Court of the State of Washington which answered the question in the affirmative at 74 Wash.2d 154, 443 P.2d 815 (1968) based on that Court’s prior holding at 72 Wash.2d 959, 435 P.2d 994 (1967). The Supreme Court denied certiorari, over the dissent of Mr. Justice Brennan, joined in by Mr. Justice Marshall. Christofferson v. Washington, 393 U.S. 1090, 89 S.Ct. 855, 21 L.Ed.2d 783 (1969).

      . Note 1 states in relevant part:
      “The record does not reveal, nor is it claimed, that any other information was brought to the attention of the Justice of the Peace. It is elementary that in passing on the validity of a warrant, the reviewing court may consider only information brought to the magistrate’s attention. Giordenello v. United States, 357 U.S. 480, 486 [78 S.Ct. 1245, 2 L.Ed.2d 1503], 79 C.J.S. 872 (collecting cases). . . . The fact that the police may have kept petitioner’s house under surveillance is thus completely irrelevant in this case, for, in applying for the warrant, the police did not mention any surveillance. Moreover, there is no evidence in the record that a surveillance was actually set up on petitioner’s house. Officer Strickland merely testified that ‘we wanted to set up surveillance on the house.’ If the fact and results of such a surveillance had been appropriately presented to the magistrate, this 'would, of course, present an entirely different case.” (emphasis that of the Court).

      . The complaint for the arrest warrant follows:
      “I, C. W. Ogburn, do solemnly swear that on or about the 23 day of November, A. D. 1964, in the County of Carbon and State of Wyoming, the said Harold Whiteley and Jack Daley, defendants did then and there unlawfully break and enter a locked and sealed building [describing the location and ownership of the building].”

      . The Stipulation was the basis for the Court’s denial of the State’s request for remand to the District Court so that it could “develop a record which might show that the issuing magistrate had factual information additional to that presented in Sheriff Ogburn’s complaint.” 401 U.S. at 569, 91 S.Ct. at 1037.

      . Footnote 8 stated in relevant part:
      “More importantly, even the dissent apparently concedes that as far as the record in this case reveals, the only information Sheriff Ogburn communicated to the magistrate issuing the warrant was contained in his written complaint reproduced above. Under the cases of this Court, an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U.S. 108, 109 n. 1 [84 S.Ct. 1509, 1511, 12 L.Ed.2d 723], A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless.”

      . “AMENDMENT IV — SEARCHES AND SEIZURES
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, hut upon proh

        able cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (emphasis supplied).

      . The Federal Rules of Criminal Procedure were amended April 24, 1972, effective October 1, 1972. 18 U.S.C.A. (Supp. 1973).
      We are here concerned with the Rules prevailing December 5, 1966, when the search warrant involved was applied for and issued.

      . United States v. Schwartz, 372 F.2d 678, 682 (4 Cir. 1967).

      . Cameron v. Hauck, 383 F.2d 966, 971 n. 7 (5 Cir. 1967), cert. denied, 389 U.S. 1039, 88 S.Ct. 777, 19 L.Ed.2d 828 (1968).

      . Rule 1, Fed.R.Crim.P., in effect when the warrant here involved was issued, provides:
      “These rules govern the procedure in the courts of the United States and before United States commissioners [now United States magistrates] in all criminal proceedings, with the exceptions stated in Rule 54.”

      . Independent of all other considerations, and standing alone, the following factors negate the relator’s contention that Rule 41(c) Fed.R.Crim.P. is applicable here: the Rule relates to a warrant “directed to a civil officer of the United States authorized to enforce or assist in enforcing any law thereof or to a person so authorized by the President of the United States.” (emphasis supplied). In the instant case the search warrant was issued to a state police officer incident to a state prosecution for violation of a state’s criminal laws and not to a federal officer incident to a federal prosecution for violation of a federal criminal law.

      . Fay v. Noia, 372 U.S. 391, 423-424, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Riddle v. Dyche, 262 U.S. 333, 335-336, 43 S.Ct. 555, 67 L.Ed. 1009 (1923); Fisher v. Baker, 203 U.S. 174, 181, 27 S.Ct. 135, 51 L.Ed. 142 (1906). In Dyche it was said: “The writ of habeas corpus is not a proceeding in the original criminal prosecution, but an independent civil suit. . . . ” We treated a habeas corpus petition as a civil proceeding in United States ex rel. Stone v. Robinson, 431 F.2d 548, 551 (1970).

      . In doing so, the trial court said:
      “The foregoing facts disclose that the evidence which Sterling seeks to suppress was duly obtained pursuant to a valid search warrant. Sterling seeks to go behind the warrant and establish that the whole search was the ‘fruit of a poisonous tree’. However, the testimony shows that the officer executing the warrant (as well as Sams) had long had a tip from a reliable informer regarding the tanks, and the warrant could stand on the basis of independent information unconnected with the allegedly poisonous tree.” 244 F.Supp. 534 (W.D.Pa.1965) at 536.

      . Article 1, § 8 of the Pennsylvania Constitution provides:
      “Sec. 8. Security from searches and seizures
      “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”

      . The Crawley rule was reaffirmed and applied in Commonwealth v. Milliken, 450 Pa. 310, 312-318, 300 A.2d 78, 80-82 (decided January 30, 1973). In Milliken, the Court announced that in exercise of its supervisory powers it would “formulate by rule of Court appropriate procedural requirements of a sufficient written record made contemporaneously with the issuance of search warrants,” and that “[b]ecause this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar.” (emphasis supplied). It should be noted that the Court on March 28, 1973, adopted Rule 2003, Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix, pursuant to its announcement in Milliken, specifying that the Rule would be “effective for warrants issued sixty days hence.”


author: MATTHES, Chief Judge.

text:
    James BROWN and Rosa Lee Brown, Appellants, v. KENRON ALUMINUM AND GLASS CORPORATION, and Reynolds Aluminum Credit Corporation, Appellees. James BROWN and Rosa Lee Brown, Appellants, v. KENRON ALUMINUM AND GLASS CORPORATION, Appellee, and Reynolds Aluminum Credit Corporation.
    No. 72-1304, 72-1437.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1973.
    Decided April 20, 1973.

      Robert C. Oberbillig, Des Moines, Iowa, for appellants.
    Donald A. Wine, Des Moines, Iowa, for appellee Reynolds.
    Before MATTHES, Chief Judge, and ROSS and STEPHENSON, Circuit Judges.
   MATTHES, Chief Judge.

These appeals serve to highlight again the narrow range of remedies often afforded unwitting consumers by state law.

James Brown and his wife, Rosa Lee Brown, plaintiff-appellants, signed a contract in December of 1964 in which they agreed to purchase aluminum siding and four aluminum doors for their home from defendant-appellee Kenron Aluminum and Glass Corporation (Kenron). The contract recited a cash sale price of $2,998 payable in an undesignated number of monthly installments of $55.70. At the same time, appellants completed a credit application, which Kenron subsequently submitted to defendant-appellee Reynolds Aluminum Credit Corporation (Reynolds), a wholly-owned subsidiary of Reynolds Metals Company organized for the purpose of extending long-term credit to selected home improvement dealers. The record reveals that apart from Reynolds, Kenron also financed its customers through several local banks. Reynolds approved appellants’ credit application and notified them that the “unpaid cash balance” of $2,998 was “payable in 84 monthly installments of $55.68.” Appellants were not informed that 84 monthly installments of $55.68 equaled a time price of $4,677.12, in comparison to the quoted cash price of $2,998.

At the time of the signing of the contract, Mr. Brown, whose schooling was limited to the first grade, worked as a night watchman at Camp Dodge at a wage of $283 a month. Mrs. Brown earned $200 a month working in a rest home. They lived with Mrs. Brown’s five children in a $3,000 home they were purchasing under a real estate contract calling for monthly payments of $55. According to appellants, they understood the home improvement contract to provide for installation of four doors and fourteen windows at an approximate cost of $1,000. When they were informed that instead they had signed a contract for siding and doors at a cash price of $2,998, they allegedly sought the advice of several persons who told them “there was nothing they could do but try to pay it off as best they could.”

After Reynolds approved appellants’ credit application, Kenron proceeded to remove the original slate siding from the Brown home and install the aluminum siding and doors. On February 17, 1965, Mrs. Brown signed a completion certificate. On that same date, both appellants executed a promissory note in the amount of $4,677.12, payable in 84 monthly installments of $55.68. And in order to secure the note, they also executed a real estate mortgage on their home. Reynolds purchased the promissory note and mortgage from Kenron on February 23.

From March, 1965 through June, 1966, appellants regularly paid monthly installments on the promissory note to Reynolds. During this period of time Mrs. Brown registered several complaints with Reynolds as to the application of the siding and incompletion of the work. The record shows that Reynolds relayed these complaints to Kenron, and that, on at least one occasion, Kenron made a service call. After June, 1966, appellants fell in arrears on the note, and Reynolds referred the Brown account to an attorney, George G. West. At about the same time, Reynolds purchased the vendor’s interest in appellants’ real estate contract, allegedly in order to protect Reynolds’ security interest in the property. As payments were overdue on the real estate contract when it was acquired by Reynolds, it too was referred to West for collection. Between January 12, 1967, and March 11, 1968, appellants paid West $1,025, of which he applied $348.88 to the real estate contract and $676.12 to the note. On April 5, 1968, an additional $50 was paid by money order. The record does not reveal to which account this last payment was credited. On March 11, 1968, the balance due on the real estate contract was $975.92, and the balance due on the promissory note was $3,167.-8L

On May 28, 1968, West served notice of forfeiture of the real estate contract and, on July 1, notice to vacate the premises. Suit for possession was filed on July 22 and later dismissed for improper service of process.

This diversity action was instituted by appellants against Kenron and Reynolds in state court on August 6, and removed by Reynolds to the United States District Court, Southern District of Iowa.

On August 9, 1968, Reynolds filed anew its suit for possession in the state court. That court, however, entered a stay pending the outcome of this action, upon the condition that appellants pay $75 monthly to the court. As of March 29, 1972, appellants had paid $3,009.50 to the state court pursuant to its order.

Appellants’ amended complaint filed October 3, 1968, accused Kenron of fraudulent misrepresentation, breach of contract, usury, and unconscionability of contract. Reynolds was charged with fraud, conspiracy to defraud, liability of a principal for acts of its agent, usury and credit harassment.

In response to the amended complaint, defendants filed a motion to dismiss or, in the alternative, for a more definite statement. The trial court, on February 6, 1969, dismissed the usury claims on the ground that they had been improperly pleaded under Iowa law. Otherwise, defendants’ motion was denied.

On March 12, 1970, appellants filed a pleading denominated “statement of damages” setting forth specific elements claimed as damages. The claims for relief against each defendant sought compensatory damages for payments made to Reynolds on the promissory note, costs of repairs, the difference between heating bills prior to and after the application of the siding, mental anguish and distress, credit harassment, attorney fees and expenses, and costs of the action. In addition, in Count VI of their amended complaint appellants sought rescission of the contract contained in Exhibit B (real estate contract). Also under each count, appellants requested punitive damages in the sum of $50,000 for the wanton, willful and reckless conduct of the defendants.

On February 3, 1971, the trial court filed an order permitting Kenron’s attorney, George West, to withdraw as counsel on the ground that he would be called as a witness in the action. The order also provided that if new counsel failed to enter an appearance within fifteen days, Kenron would be in default without further notice. An attorney for the trustee of the bankruptcy estate of Kenron, which was pending at that time in the Northern District of Illinois, advised the court that Kenron would not appear and defend. Thereafter, a judgment of default was entered against Kenron and in favor of appellants in the sum of $6,400 plus interest.

Reynolds, however, vigorously contested the action.

On May 19, 1972, the trial court filed a memorandum and order finding Reynolds free from fraud or knowledge of fraud. Nor was there any evidence, the court held, that Kenron acted as an agent for Reynolds, that both had conspired to defraud appellants, or that Reynolds or West exceeded their legal rights in attempting to collect payments. The court also declared the real estate contract free of infirmity and, accordingly, refused appellants’ request for its rescission.

Having been granted leave to proceed in forma pauperis by the district court, appellants filed timely appeals from both judgments.

On appeal from the judgment in favor of Reynolds, appellants assert that the court erred in construing the pleadings to request rescission of the real estate contract rather than the rescission of the home improvement contract.

On appeal from the default judgment against Kenron, appellants argue that the court erred in not making a finding of fraud on the part of Kenron.

1. No. 72-1304

As a preliminary matter, we note that the complaint and other pleadings filed in this case by counsel for appellants are replete with ambiguity, repetition, and inartful phrasing. However, under any possible construction of the pleadings, we are soundly convinced that the judgment of the trial court in favor of Reynolds was proper.

Appellants do not suggest that there was any fraud exercised in the procurement of the promissory note and real estate mortgage, the only instruments which were eventually negotiated to Reynolds. Nor have appellants satisfactorily proved the existence of an agency or conspiracy between Kenron and Reynolds. Appellants’ theory that Kenron acted as an agent for Reynolds is premised primarily on the fact that only Reynolds, of the several financing institutions available to Kenron, offered the seven year plan extended to appellants. However, this circumstance, in and of itself, is not sufficient to negative the independent status of Reynolds, particularly when Reynolds retained the option of rejecting the credit transaction, and Kenron furnished its own forms and utilized several financing institutions. See United States v. Tholen, 186 F.Supp. 346 (N.D.Iowa 1960). In short, there is absolutely no ground upon which to rescind the home improvement contract or to bottom Reynolds’ liability for fraud, either directly or derivatively.

Appellants reach a contrary conclusion by apparently reasoning that Reynolds should be held strictly liable for defects in the obligation underlying the negotiated instruments. Appellants have not directed us, however, to any cases so holding, nor were we able to discover any by means of our own research. We emphasize the distinction, however, between this case and one where the negotiated instruments themselves are defective. See Millrose Corp. v. Brent, 106 U.S.App.D.C. 242, 271 F.2d 508 (1959). Here, the negotiated instruments were admittedly free of infirmity.

Appellants also dispute the trial court’s finding that Reynolds did not engage in credit harassment. Appellants urge that West, Reynolds’ attorney, deliberately treated appellants’ payments on the real estate contract as payments on the promissory note, thereby insuring that appellants’ property would continually remain subject to forfeiture. There existed, however, a conflict in the evidence as to the understanding between West and appellants. Moreover, since Reynolds had purchased a mortgage on appellants’ property as security for the promissory note prior to obtaining the real estate contract, it is difficult to understand what advantage effectively accrued to Reynolds by applying payments to one obligation or the other. We conclude that there was ample support for the finding of the trial court that West and Reynolds did not exceed their legal collection rights.

In the final analysis the bases for appellants’ claims against Reynolds presented issues of fact. The seasoned district judge, after a plenary trial and consideration of the voluminous documents, found that appellants had failed to sustain their burden of proving any of their claims for relief. We are satisfied the court’s findings are not clearly erroneous.

II. No. 72-1437

In appealing from the default judgment against Kenron, appellants complain of the failure of the trial judge to make a finding of fact as to the alleged fraud of Kenron.

The memorandum and order of the trial court reads in pertinent part as follows:

“The Court finds that the plaintiffs in the above-entitled cause of action entered into a contract with the defendant Kenron on or about December 21, 1964, for aluminum siding, aluminum windows and aluminum doors for plaintiffs’ house. Defendant Kenron subsequently caused such materials to be fixed to plaintiffs’ house but subsequently, the materials proved to be defective and worthless. Default has been previously entered against defendant Kenron and the issues of liability cannot now be contested. Accordingly, the Court makes no independent finding of any fraud, misrepresentation, or malice on the part of Kenron.
The Court finds that Kenron received $4,600.00 from plaintiffs for work done in supplying and installing the above described materials. The Court further finds that the present value of these materials is nothing, and that it would take $1,800.00 to place adequate siding on the house.
Accordingly, the Clerk shall enter judgment against Kenron Aluminum and Glass Corporation and in favor of plaintiffs for $6,400.00 plus interest from the date of trial of this action.
The parties shall bear their own costs.
It Is Further Ordered that the foregoing memorandum shall constitute the findings of fact and conclusions of law in this ease with respect to Kenron Aluminum ánd Glass Corporation in accordance with F.R.C.P. 52(a).”

Rule 52(a) requires findings of fact “in all actions tried upon the facts without a jury or with an advisory jury .” A default judgment, however, generally precludes a trial of the facts, except as to damages.

“A hearing to determine whether to enter judgment by default [pursuant to Rule 55] is not considered as a trial. If the court determines that the defendant is in default, his liability to the plaintiff is deemed established and the plaintiff is not required to establish his right to recover. The allegations of the complaint except as to the amount of damages are taken as true. If the default is established, the defendant has no further standing to contest the merits of plaintiff’s right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery.”

3 Barron & Holtzoff, Federal Practice & Procedure § 1216, pp. 85-86 (1958). See cases collected in Annot., 8 A.L.R.3d 1070 (1966). A judgment by default is as conclusive an adjudication of the issues for purposes of res judicata as a judgment rendered after a trial on the merits. Riehle v. Margolies, 279 U.S. 218, 225, 49 S.Ct. 310, 73 L.Ed. 669 (1929). The allegations of the complaint, in effect, become findings of fact. And, therefore, Rule 52 is inapplicable except as to damages.

Thus we hold that implicit in the judgment of default is a finding of fraud by Kenron.

Judgments affirmed.

      . A judgment in favor of Reynolds on appellants’ complaint does not determine whether or not Reynolds would possess the status and rights of a holder in due course should that issue arise in a subsequent suit brought to enforce the promissory note. See Iowa Code Ann. §§ 554.3302, 554.3305.


author: INGRAHAM, Circuit Judge:

text:
    Bernard Gerard RAFFERTY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3819
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 4, 1973.

      Gerald H. Goldstein, San Antonio, Tex., for petitioner-appellant.
    William S. Sessions, U. S. Atty., Edward M. Johnson, Asst. U. S. Atty., San Antonio, Tex., Donald H. Feige, Atty., John L. Murphy, Chief, Dept. of Justice, Crim. Div., Washington, D. C., for respondent-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   INGRAHAM, Circuit Judge:

Appellant Rafferty, an Irish national and an ordained Roman Catholic priest, had been admitted to the United States as a permanent resident in 1965. He left the active ministry in 1970 and has been gainfully employed as a carpenter in San Antonio. In February of 1971, Rafferty filed a petition for naturalization. He was afforded a preliminary examination, at which time he indicated a desire to take a qualified oath of allegiance to the United States as permitted by the Immigration and Nationality Act, 8 U.S.C. § 1448:

Oath of renunciation and allegiance (a) A person who has petitioned for naturalization shall, in order to be and before being admitted to citizenship, take in open court an oath (1) to support the Constitution of the United States; (2) to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen; (3) to support and defend the Constitution and the laws of the United States against all enemies, foreign and domestic; (4) to bear true faith and allegiance to the same; and (5) (A) to bear arms on behalf of the United States when required by the law, or (B) to perform noncombatant service in the Armed Forces of the United States when required by the law, or (C) to perform work of national importance under civilian direction when required by the law. Any such person shall be required to take an oath containing the substance of clauses (1) to (5) of the preceding sentence, except that a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to the bearing of arms in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of clauses (1) to (4) and clauses (5) (B) and 5(C) of this subsection, and a person who shows by clear and convincing evidence to the satisfaction of the naturalization court that he is opposed to any type of service in the Armed Forces of the United States by reason of religious training and belief shall be required to take an oath containing the substance of said clauses (1) to (4) and clause (5)(C). The term “religious training and belief” as used in this section shall mean an individual’s belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code.

Specifically, Rafferty was opposed to the taking of that portion of the oath which requires him to bear arms on behalf of the United States. He asserted that his opposition was an outgrowth of his religious training and belief and was independent of the tenets of the Roman Catholic Church.

Subsequent to the interview the Naturalization Examiner entered the following findings of fact:

(a) That the petitioner is a lawfully admitted alien for permanent residence and filed a petition for naturalization on February 2, 1971;
(b) That the petitioner is not willing to bear arms on behalf of the United States when required by the law;
(c) That the petitioner is an ordained Catholic priest and is no longer in the active ministry. He is a nonpracticing Roman Catholic, and
(d) That the petitioner’s refusal to bear arms on behalf of the United States is based on his religious training and belief.

The examiner recommended that the naturalization court allow Rafferty to take the qualified oath, and further requested that the petition for naturalization be granted.

The district judge upon hearing the petition determined that Rafferty’s views did not bring him within the scope of the exception to the unqualified oath. A review of the transcript of the proceedings indicates to us that the court employed an erroneous legal criterion in arriving at its conclusion.

After questioning Rafferty’s membership in the Roman Catholic Church, the district judge formulated his basis for denying the petition as follows:

“Well, Mr. Rafferty, as you said a moment ago, as the Court knows, the Catholic Church does not have any serupples against the bearing of arms and does not prohibit it, and therefore the Court finds that you failed to show the Court by clear and convincing evidence to the satisfaction of this Court that you are opposed to the bearing of arms by reason of your religious training and beliefs, and it is more of a personal moral code. The Court will deny your petition for naturalization.”

Our interpretation of religious training and belief as it appears in § 1448 of the Immigration and Naturalization Act is guided by the Supreme Court’s construction of similar language contained in § 6(j) of the Universal Military Training and Service Act, 50 U.S.C.App. § 456. In re Thomsen, 324 F.Supp. 1205 (N.D.Ga., 1971); In re Weitzman, 426 F.2d 439 (8th Cir., 1970).

We therefore hold that the proper test to be applied in determining whether a petitioner for naturalization is to be permitted to take the qualified oath of allegiance to the United States is the religious parallel test as advanced by the Supreme Court in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965), and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970). The question to be answered is whether or not an individual’s opposition to the bearing of arms stems from his moral, ethical or religious beliefs about what is right and wrong, and whether or not these beliefs are held with strength of traditional religious convictions.

Rather than applying a subjective test in the case at hand, the district court erroneously used the tenets of the Roman Catholic Church as a touchstone against which Rafferty’s beliefs were tested. We therefore must reverse the order denying the petition and remand the case for a redetermination in accordance with the guidelines of Seeger and Welsh, supra.

During the course of the hearing the district judge questioned Rafferty as follows:

“THE COURT:
Are you married?
“MR. RAFFERTY:
Yes, sir, I am.
“THE COURT:
Do you have a child ?
“MR. RAFFERTY:
Yes, sir, I do.
“THE COURT:
If someone came into your house and attempted to kill your wife or child, would you defend them?
“MR. RAFFERTY:
Like I gave in my original testimony, I distinguish between what one does subjectively and what one does objectively. Objectively speaking, as I am standing here, I do not believe that the use of force is a solution to anything. Subjectively speaking, or in the situation like you so describe, I can’t say that I would not. I don’t know what I would do under that kind of circumstances, since I am an emotional person like everyone else.
“THE COURT:
In other words, you can’t say that you wouldn’t defend your wife?
“MR. RAFFERTY:
No, I can’t say that.
“THE COURT:
Your wife and child, and you can’t say that you wouldn’t ?
“MR. RAFFERTY:
No, I can’t say that.”

While Rafferty never expressly stated that he would resort to force, we need only note that a willingness to use force in defense of one’s self or one’s family is not inconsistent with a person’s position that he would not bear arms in defense of the nation. Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955).

Reversed and remanded.


author: PER CURIAM.

text:
    Rojelio E. RIVERA et al., Plaintiffs-Appellants, v. E. O. TOFT, Warden, et al., Defendants-Appellees.
    No. 72-1785.
    United States Court of Appeals, Tenth Circuit.
    Submitted April 23, 1973.
    Decided April 23, 1973.

      Rojelio E. Rivera, and others, pro se.
    Jerry Cord Wilson, Asst. U. S. Atty., Oklahoma City, Okla., for defendants-appellees.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Rivera and others, inmates of the Federal Reformatory at El Reno, Oklahoma, filed this action in the district court seeking a declaratory judgment and injunctive relief. Jurisdiction was asserted under the Civil Rights Act, 42 U.S.C. § 1983, and 28 U.S.C. § 1343(3).

The inmates complain of the procedures before the institution’s disciplinary committee. They contend that before being “sentenced” to punitive segregation, they are entitled to written notice of charges, a hearing with rights of confrontation and cross-examination, a record of the hearing, decision, and the evidence relied upon, and assistance of counsel or counsel substitute. They also challenge the possibility of multiple punishment for the same act — administrative punishment and criminal conviction.

The district court dismissed the petition after determining that the Declaratory Judgments Act does not apply in actions against the United States, that federal authorities do not act under col- or of state law therefore jurisdiction is lacking, and administrative remedies must be pursued in the first instance. We agree.

To begin with, it is established in this Circuit that administrative punishment and subsequent judicial prosecution does not constitute double punishment for the same offense. United States v. Smith, 464 F.2d 194 (10th Cir. 1972); United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971).

It must be remembered that the ’ discipline of inmates arises while they are in custody pursuant to unrelated valid convictions and this is not considered an “arrest”. United States v. Smith, supra; United States v. Reid, 437 F.2d 1166 (7th Cir. 1971). In Morrissey v. Brewer, 408 U.S. 471, 483, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972), the Supreme Court was concerned with informal procedural guarantees in parole revocations and distinguished the custody of a parolee with “that summary treatment . . . necessary as it may be with respect to controlling a large group of potentially disruptive'prisoners in actual custody.”

Actions of prison officials in disciplining inmates are not subject to judicial review in the absence of arbitrariness or caprice. United States v. Smith, supra; Graham v. Willingham, 384 F.2d 367 (10th Cir. 1967). The primary supervision in the administration of federal reformatories is delegated by statute, 18 U.S.C. § 4042, to the Bureau of Prisons under the direction of .the Attorney General, empowering them to review any action taken or approved by the local wardens. Prisoner discipline is one of the specific provisions of Section 4042. We would have to assume that the disciplinary committee operates under established practices reasonably designed to promote the discipline of the institution and that there is some uniformity in practices throughout the federal prison system. See Bureau of Prisons Policy Statements, 7400.6A; Theriault v. Carlson, 339 F.Supp. 375, 387 (N.D.Ga.1972).

From what we said above, it is clear that personal grievances should be presented, in the first instance, by administrative remedies available to the prisoner with the Bureau of Prisons. Tarlton v. Clark, 441 F.2d 384 (5th Cir. 1971), cert. denied 403 U.S. 934, 91 S.Ct. 2263, 29 L.Ed.2d 713. See also Smoake v. Willingham, 359 F.2d 386 (10th Cir. 1966); Evans v. Harris, 341 F.Supp. 609 (D.Kan.1972); McNeal v. Taylor, 313 F.Supp. 200 (W.D.Okl.1970); Harbolt v. Alldredge, 311 F.Supp. 688 (W.D.Okl.1970), aff’d, 432 F.2d 441 (10th Cir. 1970); Owens v. Alldridge, 311 F.Supp. 667 (W.D.Okl.1970); Murphy v. Surgeon General, 269 F.Supp. 227 (D.Kan.1967).

Upon docketing in this court, this case was assigned to the summary calendar, and the appellants were informed that we were contemplating summary affirmance and afforded an opportunity to submit memoranda addressing the underlying merits, which has not been done. Nevertheless, we have carefully and thoroughly reviewed the files and records in this cause and are convinced that the judgment of the district court is correct.

Affirmed.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth David CATE, Defendant-Appellant.
    No. 72-1020.
    United States Court of Appeals, Ninth Circuit.
    March 7, 1973.

      Carl E. Larson, Asst. Federal Public Defender (argued), Rodney J. Shepherd, Asst. Federal Public Defender, E. Richard Walker, Federal Public Defender, Sacramento, Cal., for defendant-appellant.
    Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., Sacramento, Cal., for plaintiff-appellee.
    Before DUNIWAY, GOODWIN and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

Appellant was convicted for failure to report for induction in violation of 50 U.S.C. App. § 462. We reverse.

Although appellant had prior difficulties with the draft, the salient facts are that on October 28, 1970, appellant was reclassified by his local board from 1-A-O (non-combatant service) to 1-O (conscientious objector) and was properly notified of the reclassification and of his right to appeal. Appellant promptly responded in writing, asking for an appeal and requesting a reclassification to 3-A (hardship) on the ground that his economic contribution to his home had become “vital.” The board construed the letter as a request for an appeal and for a personal appearance before the board and set November 18 as the date for the personal appearance. Appellant requested a postponement of the personal appearance until after November 21, 1970, claiming a conflict with his work schedule. Appellant failed to appear on the 18th, and the board reviewed his file but did not reopen his classification.

The local board forwarded appellant’s file to the appeal board on December 21, 1970, without notice to appellant. On Thursday, January 28, 1971, the appeal board reclassified appellant 1-A-O by unanimous vote but did not state any reasons for its action. On Monday, February 1, the local board received appellant’s file from the appeal board and immediately sent appellant a notice he was classified 1-A-O. On the following day the local board mailed to appellant an “Order to Report for Induction.” He did not obey the order, was convicted and appealed.

Appellant questions the authority of the appeal board to bypass the question of whether he deserved a 3-A classification instead of a 1-O and to reclassify him to the higher classification of 1 — A— O. However, we do not reach this issue because the case is reversed on a different ground.

In United States v. Haughton, 413 F.2d 736 (9th Cir. 1969), we held that when a prima facie claim of conscientious objector status was presented, the local board had a duty to state the reasons for its denial of the application. The rationale of the rule was that, when no reasons are stated, it is impossible for a reviewing court to ascertain whether the claim had been properly rejected. Id. at 739, 743. We extended the Haughton rule to similar actions of an appeal board in United States v. Kember, 437 F.2d 534 (9th Cir. 1970), cert. denied, 402 U. S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662 (1971).

Here, the appeal board was passing upon a rejected hardship classification rather than a conscientious objector claim. However, the reason for the rule in Haughton and Kember — that of facilitating judicial review — applies equally to denial of hardship claims, whether the claim is considered by the local board, United States ex rel. Bent v. Laird, 453 F.2d 625, 632-634 (3rd Cir. 1971), or by the appeal board.

This reasoning is consistent with United States v. Guaraldi, 468 F.2d 774 (9th Cir. 1972), in which we found that the failure to state reasons for denial of a requested hardship classification was cured because the reasons could be ascertained from the administrative record.

Here, a prima facie case for a hardship claim had been presented, and it is undisputed that the appeal board reclassified appellant 1-A-O without stating any reasons therefor. That would not necessarily be fatal if “the appeal board’s reasons can be determined from the agency record with reasonable certainty.” United States v. Kember, supra, 437 F.2d at 536. No such determination can be made in this case. There are a number of reasons on which the appeal board might have based its determination, but there is no hint in the file as to which it may have chosen.

      . On Ms claim for exemption, appellant indicated he was willing to be classified 1-A-O. On June 18, 1969, appellant was so classified. He passed his physical examination and was ordered to report for induction on May 12, 1970. On April 17, his mother requested the local board to reopen appellant’s classification and consider a hardship deferment. New information bearing thereon was submitted. The local board did not reopen and appellant did not report. However, the local board subsequently cancelled the order to report.

      . See Storey v. United States, 370 F.2d 255, 260-261 nn. 7-8 (9th Cir. 1966).

      . To the same effect are United States v. Mount, 438 F.2d 1072, 1074 (9th Cir. 1971); United States v. Prichard, 436 F.2d 716, 718 (9th Cir. 1970); and United States v. Callison, 433 F.2d 1024, 1026 (9th Cir. 1970).

      . Although the issue was not raised, the appeal board, in effect, has reclassified appellant from 1-O to 1-A-O and has therefore denied a conscientious objector claim. If so, with! no reasons stated, reversal would be required by Haughton and Keniber. However, the thrust of the appeal is the denial of the 3-A claim.

      . Numerous letters in the file from the registrant, from his family and relatives, and from friends and a doctor alleged that appellant’s father had become totally disabled, that his mother was too ill to work, having suffered a recent heart attack, that a minor sister was living with the family, that the family lived in a remote area and raised its own produce and chickens and burned wood for fuel, and that the family’s only steady income was $151 per month from Social Security and $50 per month from Welfare. The letters further stated that, in addition to daily chores and occasional outside odd jobs, appellant did all of the heavy work in maintaining the truck garden and cut the wood for fuel. Cf. Howze v. United States, 409 F.2d 27 (9th Cir. 1969).

      . See also United States v. Marcovich, 454 F.2d 138 (9th Cir. 1972).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Cleveland MOORE, Defendant-Appellant.
    No. 73-1128
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 7, 1973.

      L. H. Walden, Montgomery, Ala., for defendant-appellant.
    Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Defendant-appellant, Cleveland Moore, was convicted by a jury of unlawfully possessing with the intent to distribute a controlled substance, to wit, heroin, in violation of Title 21 U.S.C. Section 841(a)(1). We affirm.

On the basis of information derived from undercover sources that Moore was going to fly from Dothan, Alabama, to New York to obtain a new supply of-heroin to distribute, Alabama police officers secured a warrant to arrest appellant’s person and to search his baggage for heroin. The police officers watched Moore depart on a commercial flight bound for Newark, New Jersey, and executed the warrants three days later upon his return to the Alabama airport. The fruits of the search of appellant’s baggage included a receipt for registered mail, which was promptly delivered to the U.S. Postal Inspector who then secured a Federal search warrant for the package corresponding to the registered mail receipt taken from Moore’s person. The package contained heroin and was used as the basis for the conviction appealed from.

We have reviewed appellant’s specifications of error with care and find none to be of merit: (1) the arrest by the Alabama authorities was executed pursuant to a valid arrest warrant and the subsequent decision not to prosecute appellant in the state courts does not invalidate such arrest, United States v. Seay, 5 Cir. 1970, 432 F.2d 395, 400; (2) a more thorough search of appellant’s person was still incident to an arrest when conducted shortly thereafter at the jail rather than at the time and place of arrest, United States v. Gonzalez-Perez, 5 Cir. 1970, 426 F.2d 1283, 1287; (3) the search of appellant’s clothing was not unreasonable, Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, 256-260, and the seizure of the registered mail receipt was permissible even though it was not an instrumentality of the crime itself, Warden v. Hayden, 1967, 387 U.S. 294, 300, 87 S.Ct. 1642, 1646-1647, 18 L.Ed.2d 782, 788; (4) the federal warrant to search the package was not based on information received as the result of an illegal search since there was no illegal search; (5) the affidavits for both warrants were based on information sufficiently supported by underlying circumstances to find the degree of “probable cause” necessary to validate the warrants; and (6) the evidence was sufficient to sustain a verdict of guilty, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

Affirmed.