author: SKOPIL, District Judge:

text:
    DALE M. MADDEN CONSTRUCTION, INC., Petitioner, v. James D. HODGSON, Secretary of Labor, United States Department of Labor, et al., Respondent.
    No. 72-1874.
    United States Court of Appeals, Ninth Circuit.
    July 29, 1974.
    As Modified on Denial of Rehearing Oct. 1, 1974.

      Donald MeL. Davidson (appeared), of Ferguson & Burdell, Seattle, Wash., for petitioner.
    Stephen F. Eilperin (appeared), for Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
    Allen H. Sachsel, Appellate Counsel (appeared), Occupational Safety and Health Review Comm., Washington, D. C., for intervenor.
    Before KOELSCH and WALLACE, Circuit Judges, and SKOPIL, District Judge.

       Honorable Otto K. Skopii, Jr., United States designation. District Judge, District of Oregon, sitting by

   OPINION

SKOPIL, District Judge:

Dale M. Madden Construction, Inc. petitioned for review of a decision* of the Occupational Safety and Health Review Commission (Commission) under the Occupational Safety and Health Act of 1970 (Act). 29 U.S.C. § 660(a). After we assumed jurisdiction, the Secretary of Labor (Secretary) settled with petitioner through the Department of Justice. The Commission then intervened to oppose the Secretary’s motion for approval of the settlement.

THE ACT

This controversy questions the perimeters of the respective powers of the Secretary and of the Commission, which must be determined in light of the legislative history and the provisions of the Act.

The Act (29 U.S.C. § 651 et seq.) was prompted by Congress’ concern about the alarming number of perennial work-related injuries and illnesses. The Act established a comprehensive program designed to encourage industry to reduce job hazards and improve working condi--tions. § 651.

Congressional debate prior to enactment focused upon proposed enforcement systems. The Administration desired segregation of the rule-making, inspection, and adjudication functions. Organized labor wanted them consolidated. A compromise amendment vested the Secretary with the rule-making and inspection powers and created the Commission to adjudicate. See Senate Committee on Labor & Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (Comm. Print 1971); Cross, The Occupational Safety and Health Act: Much Ado About Something, 3 Loyola L.J. 247 (1972); Moran, A Critique of the Occupational Safety and Health Act of 1970, 67 Nw.U.L.Rev. 200 (1972). The Act was finally adopted in 1970 and became effective in 1971.

The structure of the adjudication system is clearly delineated. The Secretary promulgates mandatory safety and health standards. § 651(b)(3). He inspects job sites for violations.' § 657. If they are found, he cites the employer and notifies him of the proposed penalty. § 659(a). The employer can challenge either the citation or the proposed penalty by notifying the Secretary, who transmits the matter to the Commission. § 659(c). The Commission assigns the case to one of its appointed hearings officers. § 661(d). The hearing is governed by § 665 of Title 5. Employers, aggrieved employees, and the Secretary are the potential parties. The hearings officer’s determination becomes a final order of the Commission unless a commissioner requests review. § 661 (j). The Commission’s final order is to be based on findings of fact and may affirm, modify, or vacate the citation or proposed penalty. § 659(c). The employer and the Secretary can obtain review in the U.S. Court of Appeals. The Secretary may also seek enforcement there. § 660(b).

FACTS

On July 9, 1971, the Secretary cited Madden Construction for a violation of the Act. The hearings officer found no such violation but was reversed by the Commission, which affirmed the citation and the proposed $650 penalty. After we took jurisdiction, the Secretary agreed to accept $150 in consideration for dismissal of Madden’s petition. The Commission opposes that compromise.

ISSUES

Two questions are raised: (I) whether the Act authorizes the Secretary to compromise penalties assessed by Commission order; and (II) whether the Commission may contest such compromises in court.

DISCUSSION

I

Enforcement of the Act is the Secretary’s responsibility. He has discretion to compromise penalties as a natural incident to his enforcement powers. See Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct. 932, 17 L.Ed.2d 814 (1969). Congress apparently felt that that discretion would be presumed, for the Act contains no provisions explicitly granting the Secretary settlement powers, except perhaps § 655(e), which imposes a publication requirement upon that discretion:

“Whenever the Secretary grants any exemption or extension of time, or compromises, mitigates, or-settles any penalty assessed under this chapter, [he shall publish reasons in the Federal Register]. (emphasis added)

The Commission denies that this section enables the Secretary to compromise penalties. The Commission reasons that § 655(e) must refer to authority given the Secretary which is inapplicable here —the Federal Claims Collection Act, for example (31 U.S.C. 952 et seq.).

This interpretation is defeated by considering the Act as a “harmonious whole”. The Secretary’s rule-making and enforcement functions are complementary. He inspects job sites for violations of rules and standards which he has promulgated. If he issues a citation, he has discretion to establish a specific “proposed penalty” within ceiling limits. He may propose no penalty. Unless the employer challenges the citation or proposed penalty, both become final and subject to the Secretary’s enforcement powers. The Commission does not become involved at all unless the employer contests the Secretary’s citation or proposed penalty. In that event it may affirm, modify, or vacate the Secretary’s actions.

Settlements enable the Secretary to expedite administration of the Act. The controlling purpose of the Act is to reduce safety hazards and improve working conditions. After Commission affirmation of his citation, the Secretary may decide that a lesser penalty than that proposed would effectuate that goal. Settlement would eliminate an unnecessary appeal and reduce administrative costs.

The Secretary is given jurisdiction over other extraordinary remedies as well. § 655(b)(6), (d), and (e). Evidently Congress felt the Secretary could more suitably . expedite such matters. Consequently it provides the Secretary, not the Commission, with representation in civil litigation. § 663.

Leonard v. United States Postal Service, 1 Cir., 489 F.2d 814, is limited to its facts and does not alter our conclusion.

II

The Commission says that, like the National Labor Relations Board and the Federal Trade Commission, it develops public policies in its decisions which it may defend in court. The Commission’s identification with those agencies is misplaced. Unlike the NLRB and the FTC, it has neither prosecution nor enforcement powers. Those have been exclusively delegated to the Secretary.

Policy making is arguably a byproduct of the Commission’s adjudication. But the Act imposes policy-making responsibility upon the Secretary, not the Commission. Whatever “policies” the Commission establishes are indirect. Only those established by the Secretary are entitled to enforcement and defense in court.

FTC v. Dean Foods Company, 384 U.S. 597, 86 S.Ct. 1738, 16 L.Ed.2d 802 (1966), cited by the Commission, is limited to its facts. Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). Brennan v. OSAHRC and Interstate Glass Co., 487 F.2d 438 (8 Cir. 1973), is obviously distinguishable on its facts as well.

The administrative structure limits the Commission to adjudication. The Commission has so recognized. Secretary of Labor v. Wetmore and Parman, Inc., OSAHRC Docket No. 221 (Jan. 18, 1973). In Wetmore the Commission questioned its own authority to enhance penalties proposed by the Secretary. It decided it had none. It determined that its impartiality was essential and declined to interfere with the Secretary’s prosecutorial function. We generally approve that position.

The Commission improperly pursues an expansionist tendency here. It may not contest settlements made by the Secretary. A contrary holding would establish a monstrous precedent.

The Secretary’s motion for approval of the settlement is granted. The petition for review is dismissed.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge: WALLACE, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert C. McCORMICK, Defendant-Appellant.
    No. 73-2252.
    United States Court of Appeals, Ninth Circuit.
    July 17, 1974.
    Rehearing Denied Sept. 16, 1974.
    Wallace, Circuit Judge, dissented and filed an opinion.

      Leonard N. Kesselman (argued), Los Gatos, Cal., for defendant-appellant.
    James H. Daffer, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and WALLACE, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

McCormick was convicted of conspiring to make, possess, sell and otherwise deal in counterfeit Federal Reserve notes, in violation of 18 U.S.C. §§ 371, 471, 472 and 473.

On February 17, 1972, McCormick was arrested at his Mountain View, California, home, pursuant to an arrest warrant. When Secret Service agents arrived to make the arrest, they parked in McCormick’s driveway, blocking egress for his automobile, a blue Buick Riviera, which was in the driveway. Between fifteen minutes and one hour after McCormick’s arrest, a Secret Service agent drove the Buick to the subbasement parking garage of the Federal Office Building in San Francisco. The next day another Secret Service agent searched the ear and discovered an enlarged photographic negative of a’treasury seal. No warrant was obtained either to seize the car on February 17 or to search it on February 18. McCormick’s pre-trial motion to suppress this evidence found in his car was denied. On appeal, he argues, citing Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, that the Secret Service agents should have obtained a search warrant before the seizure and search of his car. We agree and therefore reverse this conviction.

I. The question presented.

The government justifies its seizure and later search of McCormick’s automobile solely on the basis of 49 U.S.C. § 782, which provides, in pertinent part, that “[a]ny . . . vehicle . which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of said section has taken or is taking place, shall be seized and forfeited. ...”

49 U.S.C. § 781 provides, in part:

(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
(b) As used in this section, the term “contraband article” means— * * * * *
(3) Any falsely made, forged, altered, or counterfeit coin or obligation or other security of the United States or of any foreign government; or any materal or apparatus, or paraphernalia fitted or intended to be used, or which shall have been used, in the making of any such falsely made, forged, altered, or counterfeit coin or obligation or other security.

We do not doubt that, if the seizure of the car on February 17, 1972, was valid, the later search on February 18, 1972, was also valid. Cooper v. California, 1967, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730. There, California police officers seized Cooper’s car when they arrested him on a narcotics charge. The seizure of the car was pursuant to Cal. Health and Safety Code § 11611, which provides that any officer making an arrest for a narcotics violation shall seize any vehicle used to store, conceal, transport, sell or facilitate the possession of the narcotics. The officers searched the car where it was stored one week after the seizure, and the evidence seized was introduced at Cooper’s trial. The search was upheld. The rationale is as follows:

Here the officers seized petitioner’s car because they were required to do so by state law. They seized it because of the crime for which they arrested petitioner. They seized it to impound it and they had to keep it until forfeiture proceedings were concluded. Their subsequent search of the car — whether the State had “legal title” to it or not — was closely related to the reason petitioner was arrested, the reason his car had been impounded, and the reason it was being retained. The forfeiture of petitioner’s car did not take place until over four months after it was lawfully seized. It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for “[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” United States v. Rabinowitz, 339 U.S. 56, 66 [70 S.Ct. 430, 94 L.Ed. 653]. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding. Id. at 61-62, 87 S.Ct. at 791.

Assuming the validity of the initial seizure under 49 U.S.C. § 782, we think that this rationale would be applicable to the later search.

However, as the Supreme Court has later made clear, the Court in Cooper did not pass upon the legality of the original seizure of Cooper’s car. Apparently that question was not presented in the case. Coolidge v. New Hampshire, supra, points out that in Cooper the Court did not rule on the validity of the statute authorizing the seizure:

In Cooper, the seizure of the petitioner’s car was mandated by California statute, and its legality was not questioned. The case stands for the proposition that, given an unquestionably legal seizure, there are special circumstances that may validate a subsequent warrantless search. 403 U.S. at 464, n.21, 91 S.Ct. at 2037. (emphasis supplied).

We have several times upheld searches of vehicles seized under 49 U.S.C. § 782. But none of our eases prevents our now considering the constitutional validity of the seizure in this case.

In United States v. Arias, 9 Cir., 1972, 453 F.2d 641, we upheld a subsequent search of a seized car where Arias’ car was seized at the time of his arrest and the officers knew, at that time, that the car was being used to facilitate the consummation of a crime (453 F.2d at 643). The case falls within the automobile exception to Fourth Amendment requirements, discussed infra.

Our other decisions, Lockett v. United States, 9 Cir., 1968, 390 F.2d 168; Kap-lan v. United States, 9 Cir., 1967, 375 F.2d 895; Browning v. United States, 9 Cir., 1966, 366 F.2d 420, and Burge v. United States, 9 Cir., 1965, 342 F.2d 408, were all decided before the decisions of the Supreme Court in Coolidge v. New Hampshire, supra; Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; United States v. Robinson, 1973, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427; and Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. To the extent that any of our cases can be read as holding that, in every case, a ear can be seized under 49 U.S.C. § 782 without a warrant, so long as probable cause exists, they no longer state good law, for reasons considered hereafter.

For similar reasons, we consider it unnecessary to discuss cases from other circuits dealing with seizures and searches under 49 U.S.C. § 782. Only one of them, United States v. Stout, supra, n.l, is a post Coolidge case, and it, like our Arias ease, can be supported under the automobile exception to Fourth Amendment requirements.

II. The Fourth Amendment applies.

We therefore turn to the validity of the seizure of McCormick’s car. We start with the proposition that the Fourth Amendment applies equally to searches and to seizures. It provides that 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, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This guarantee interposes between citizens and the police a magistrate whose objective evaluation must weigh the “right of the people to be secure” against the need to enforce the law. “When the right of privacy must reasonably yield to the right of search [and seizure] is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.” Johnson v. United States, 1948, 333 U.S. 10, 14,-68 S.Ct. 367, 369, 92 L.Ed. 436.

A search and seizure question therefore begins with the proposition that “the most basic constitutional rule in this area is that ‘searches [and seizures] conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.’ ” Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. at 2032, quoting Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. Unless a warrantless search or seizure meets one of these exceptions, the evidence thereby obtained is inadmissible at trial. Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652.

The fact that the agents made the seizure and search pursuant to an act of Congress does not remove that seizure and search from the purview of the Katz per se rule. Unless the statute itself falls within one of the exceptions to the warrant requirement, it must yield to the right to be secure against searches and seizures. This is clear from the Supreme Court’s decision in Almeida-Sanchez v. United States, supra, in which the government’s sole justification for a warrantless search of an automobile was a federal statute authorizing the search. The Court held that a statute cannot justify an otherwise unconstitutional search:

Since neither this Court’s automobile search decisions nor its administrative inspection decisions provide any support for the constitutionality of the stop and search in the present case, we are left simply with the statute that purports to authorize automobiles to be stopped and searched, without a warrant and “within a reasonable distance from any external boundary of the United States.” It is clear, of course, that no Act of Congress can authorize a violation of the Constitution. 413 U.S. at 272, 93 S.Ct. at 2539.

In Howard v. United States, 9 Cir., 1970, 423 F.2d 1102, we held that evidence found in a search of a car that was purportedly seized under 49 U.S.C. § 782 should be suppressed. Reversal was for lack of probable cause, and the usual Fourth Amendment tests were applied.

With this background we scrutinize both Section 782 and the seizure to determine whether it falls within an exception to the warrant requirement.

III. The incident to arrest exception does not apply.

The search of McCormick’s automobile does not qualify as a search incident to arrest, viz. a search “of the area within the control of the arrestee.” United States v. Robinson, supra, 414 U.S. 224, 94 S.Ct. 471. We assume that the arrest of McCormick inside his house was valid, so that the first condition of a warrant-less search incident to an arrest is met. Coolidge, supra, 403 U.S. at 455, 91 S.Ct. 2022.

The leading case in this area is Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, which limits a seai’ch incident to arrest to the arrestee’s person and “the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040. The justification for this exception to the warrant requirement is that the police have the

need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as . the need to prevent the destruction of evidence of the crime— things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. Preston v. United States, 1964, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777.

These justifications are absent here. Four Secret Service agents and two local police officers raided McCoi'mick’s house and immediately placed him under arrest and handcuffed him; his car remained outside in the driveway. Under no circumstances could the car be considered under his “immediate control.” Coolidge v. New Hampshire, supra, 403 U.S. at 456-457, 91 S.Ct. 2022. See also Preston v. United States, supra.

IV. The automobile exception does not apply.

The seizure of McCormick’s Buick also fails to qualify under the automobile exception to the warrant requirement, which was first announced in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. In Carroll, the Court upheld a federal statute authorizing the warrantless search of an automobile if the ax-resting officer had probable cause to believe that the automobile was “in the act of” transporting illegal liquor. Id. at 144, 45 S.Ct. 280. The Court has read Carroll to hold that

a search warrant [is] unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained. . . . [T]he opportunity to search is fleeting. . Chambers v. Maroney, 1970, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419.

The justification for a warrantless search and seizure under these circumstances rests on the

necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile, for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Carroll v. United States, supra, 267 U.S. at 153, 45 S.Ct. at 285 (emphasis added).

Carroll thus authorizes warrantless seizures of automobiles when two factors are present.

1. The arresting officer has probable cause to believe that the automobile contains contraband, and

2. There are exigent circumstances associated with the automoble.

Assuming the officer has probable cause, Carroll does not allow him to seize any automobile, but only those automobiles which are movable and for which “it is not practicable to secure a warrant.” Id. “The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, supra, 403 U.S. at 461-462, 91 S.Ct. 2022, 2035.

We therefore proceed to examine the facts in the present case and the statute pursuant to which McCormick’s Buick was seized, to determine whether the above two factors were present to authorize a warrantless automobile seizure.

A. Probable cause.

Our examination of the record leads us to conclude that at the time McCormick’s car was seized the officers had probable cause to believe that the car had been used in the manner denounced in § 781, and so was subject to forfeiture under § 782. However, there was no probable cause to believe that it was being so used at the time of seizure. This, however, does not end the matter; as we have seen, probable cause alone does not justify a warrantless seizure.

B. Exigent circumstances.

Although the agents had probable cause to believe that McCormick’s car had been used to transport contraband, the second sine qua non of Carroll, exigent circumstances, is here absent. On this aspect of the case, the facts are nearly identical to those of Coolidge: Secret Service agents learned that McCormick’s Buick had been used to transport contraband two and one-half months before the seizure of the car. The car was parked in the driveway of his house when it was seized and there was no indication that it was then being used for any illegal purpose. All that the agents had reasonable cause to believe was that it had been so used. Six officers entered the house to arrest McCormick, and he was quickly handcuffed. Moreover, even if he could have gained access to his car, he could not have driven it away, because a police car was blocking the driveway. In Carroll and Coolidge terms, this automobile more resembled a house than a moving or mobile vehicle. Because there were no exigent circumstances at the time of the seizure, the later search cannot be justified under Chambers v. Maroney, supra. “[N]o amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances,’ ” Coolidge v. New Hampshire, supra, 403 U.S. at 468, 91 S.Ct. at 2039, and so the seizure here does not fall within the automobile exception to the warrant requirement.

V. The plain view exception does not apply.

The seizure of McCormick’s car cannot be justified under the “plain view” exception to the warrant requirement, which allows the police to seize evidence or contraband in plain view without a warrant. Coolidge v. New Hampshire, supra, places limits on the doctrine. “[P]lain view alone is never enough to justify the warrantless seizure of evidence. . . . [E]ven where the object is contraband, . . . the police may not enter and make a warrantless seizure.” 403 U.S. at 468, 91 S.Ct. at 2039 (emphasis original). The Secret Service agents here had ample opportunity to obtain a valid warrant. They knew the automobile’s exact description and had probable cause to believe over two months before the seizure that it had been used to transport contraband. In this sense, the present ease is governed by Coolidge and the plain view exception therefore cannot authorize the seizure of the automobile.

The Coolidge Court did, however, emphasize that it was not faced with “a ease involving contraband. . . ” Id. at 472, 91 S.Ct. 2022. Can the government argue that Section 782 declares McCormick’s automobile itself to be contraband and therefore subject to seizure without a warrant if found in plain view ? We think not. There is a difference between the possession of, let us say, narcotics (see United States v. Jeffers, 1951, 342 U.S. 48, 54, 72 S.Ct. 93, 96 L.Ed. 59) or an illegal still (see Trupiano v. United States, 1948, 334 U.S. 699, 710, 68 S.Ct. 1229, 92 L.Ed. 1663) and the possession of an automobile (see One 1958 Plymouth Sedan v. Pennsylvania, 1965, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170). Possession of the former is always illegal; it is contraband per se. Possession of an automobile, on the other hand, is not always illegal; it is derivative contraband, and only its illegal use makes its possession illegal:

Both Trupiano and Jeffers concerned objects the possession of which, without more, constitutes a crime. The repossession of such per se contraband by Jeffers and Trupiano would have subjected them to criminal penalties. The return of the contraband would clearly have frustrated the express public policy against the possession of such objects. . . .
It is apparent that the nature of the property here, though termed contraband by Pennsylvania, is quite different. There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects Mr. McGonigle to its possible loss. . . . Furthermore, the return of the automobile to the owner would not subject him to any possible criminal penalties for possession or frustrate any public policy concerning automobiles, as automobiles. This distinction between what has been described as contraband per se and only derivative contraband has indeed been recognized by Pennsylvania itself in its requirement of mandatory forfeiture of illegal liquor, and stills, and only discretionary forfeiture of such things as automobiles illegally used.
. We, therefore, do not have a case before us in any way analogous to the contraband involved in Jeffers and Trupiano and these cases can in no way be deemed to impair the continued validity of Boyd [v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746] which, like this case, involved property not intrinsically illegal in character. One 1958 Plymouth Sedan v. Pennsylvania, supra, 380 U.S. at 699-700, 85 S.Ct. at 1250 (footnotes omitted)

Because McCormick’s automobile is not contraband per se, Coolidge is still in point and the seizure of the automobile is not justified under the “plain view” exception to the warrant requirement. The seizure of the automobile was therefore unconstitutional and so was the subsequent search. The photographic negative of a treasury seal thereby obtained should have been suppressed.

Unlike the statute in Almeida-Sanchez, supra, 49 U.S.C. § 782 is silent on the question of whether a warrant is required. The statute is not unconstitutional on its face; a warrantless seizure made pursuant to it which can be independently justified under an exception to the warrant requirement would not be unconstitutional. We merely hold that before seizing an item of derivative contraband under Section 782, the agent must first obtain a valid warrant except in circumstances which qualify as an exception to the warrant requirement. See Melendez v. Schultz, 356 F.Supp. 1205 (D.Mass.1973).

The judgment of conviction is reversed and the ease is remanded for further proceedings consistent with this opinion.

WALLACE, Circuit Judge

(dissenting) :

I respectfully dissent.

I agree with the majority that if the seizure of the car was valid, the subsequent search was also valid. But I do not feel at liberty to find the seizure invalid. The majority concludes that Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), requires us to suppress the evidence. However, the Coolidge Court was never presented with the possibility of a lawful warrantless seizure pursuant to a forfeiture statute and probable cause. The majority seems to read Coolidge as excluding such a result simply because the Coolidge Court did not mention forfeiture seizures as an exception to the warrant requirement. This construction assumes that the Court was dealing with all possible exceptions whether or not they were in issue in that case. I cannot concur with such an interpretation.

I believe this case is governed by United States v. Arias, 453 F.2d 641, 642-643 (9th Cir. 1972), a post-Coolidge case, where we affirmed a similar seizure and search. The majority’s attempt to distinguish Arias on the basis that the search could have been upheld on the basis of the automobile exception does not change the fact that there our court did not do so. The only issue facing us in Arias was whether the officers had probable cause to believe that the car had been used to facilitate the transportation of contraband. Arias had argued that “ ‘the facts of this case clearly bring it within the ruling of Howard v. United States, 423 F.2d 1102 (9th Cir. 1970),’ that the forfeiture provisions of 49 U.S.C. §§ 781 and 782 cannot vindicate a vehicular search where seizing officers are without ‘probable cause . . . . ’” 453 F.2d at 643. We distinguished the facts in Arias from the facts in Howard because the officers had good reason to believe that Arias had used the car in violation of the law. We affirmed Arias’ conviction, holding that where the officers have probable cause to believe that the automobile has been used to facilitate the transportation of contraband, a war-rantless search following a seizure pursuant to 49 U.S.C. §§ 781 and 782 is valid.

The majority apparently argues that the search in Arias was valid not because it was conducted with probable cause that the forfeiture statute had been violated, but because the officers had probable cause and exigent circumstances. If there were exigent circumstances in Arias, however, we did not discuss them nor base our holding upon them. Indeed, the Arias fact situation indicates that if there were ever exigent circumstances, they no longer existed at the time that the officers conducted the search. Arias had employed a woman to drive a load car from Mexico to her home in Los An-geles. The contraband was discovered at the port of entry and the driver agreed to cooperate in apprehending Arias. The woman drove the load car to her home where she and customs officials waited for Arias to pick up the car. When Arias arrived, he left his station wagon parked at the woman’s home and proceeded to drive the load car down the street. Apparently recognizing that he was under surveillance, he returned to the woman’s home where he was arrested. There is no indication that he was either in the station wagon or attempting to flee at the time of his arrest. The logical inference is that he was either in the load car or had just gotten out of it.

The station wagon was seized and taken to a federal facility where it was subsequently searched. It is clear from the case that the search was conducted pursuant to the forfeiture statute. We stated:

Although a cursory weapons search of Arias’ station wagon yielded negative results, a more thorough probe, pursuant to 49 U.S.C. §§ 781 and 782, conducted at a federal facility on Terminal Island disclosed a quantity of red seconal capsules and “marihuana debris” lodged in the vehicle’s left rear quarter panel.

453 F.2d at 642-643 (footnotes omitted). There was no warrant for the search and apparently no warrant for the seizure. There were no exigent circumstances justifying the seizure other than The usual concern that an ally might move the car after the officers had left. Once the station wagon had been taken to the federal facility, there was no possibility that the evidence would be destroyed. We upheld the search on the ground that once the officers had probable cause for the seizure, the subsequent search was reasonable under the Fourth Amendment. We did not rely upon any other justification for the search or seizure.

The fact situation in this case is indistinguishable from Arias. The officers had probable cause to believe that McCormick had used the Buick to transport contraband. The officers seized the car and drove it to the federal office building where it was subsequently searched. If there were exigent circumstances present in Arias, then there were also exigent circumstances present in this case. Unless we are to overrule Arias, we are compelled to uphold the search of McCormick’s car.

The majority would require a warrant for the seizure and search in this situation because McCormick, following his arrest, could not have gained access to his car. Thus, they conclude, it “more resembled a house than a moving or mobile vehicle.” Such a theory appears to me to be inconsistent with the recent teachings of a Supreme Court plurality in a case factually distinguishable but close enough to provide enlightenment:

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view .... [Ijnso-far as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry.

Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974).

Further, the majority fails to acknowledge that an ally could have easily moved the car and destroyed any evidence. If the majority means to require the officers to stand guard over the car while they are awaiting a warrant, they have in effect authorized a seizure, but required a warrant for the search. See Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such an authorization would be inconsistent with their beginning premise that “if the seizure of the car . . . was valid, the later search . . . was also valid.” More importantly, I find such a requirement to be inconsistent with United States v. Evans, 481 F.2d 990, 994 (9th Cir. 1973). I would affirm.

      . See, e. g., United States v. Francolino, 2 Cir., 1966, 367 F.2d 1013; United States v. Troiano, 3 Cir., 1966, 365 F.2d 416; United States v. Trotta, 4 Cir., 1968, 401 F.2d 514; Drummond v. United States, 8 Cir., 1965, 350 F.2d 983; Ted’s Motors v. United States, 8 Cir., 1954, 217 F.2d 777; United States v. Stout, 10 Cir., 1970, 434 F.2d 1264; Sirimarco v. United States, 10 Cir., 1963, 315 F.2d 699.

      . See also Coolidge v. New Hampshire, supra, 403 U.S. at 461, N. 18, 91 S.Ct. 2022.

      . See also United States v. Connolly, 9 Cir., 1973, 479 F.2d 930, 935: “For the automobile exception to apply, the government must show that at the time of the warrantless search the officers had reason to Relieve that the mobility or exposure of the ear made it impracticable to seek a warrant.”


author: STEVENS, Circuit Judge.

text:
    Perry MULLIS, d/b/a Mullis Petroleum Co., Plaintiff-Appellee, v. ARCO PETROLEUM CORPORATION and Atlantic Richfield Corporation, Defendants-Appellants.
    No. 73-1625.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 27, 1974.
    Decided Aug. 5, 1974.

      Helen H. Cutner, Philadelphia, Pa., John J. Voortman, Chicago 111., Richard D. Wagner, Indianapolis, Ind., for defendants-appellants.
    James E. Rocap, Jr., Thomas P. Ledg-erwood, Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and STEVENS and SPRECHER, Circuit Judges.
   STEVENS, Circuit Judge.

The question presented by this appeal is whether either the Robinson-Patman Act or § 2 of the Sherman Act protects a local jobber from an otherwise lawful termination at a time when, because of the existence of an acute shortage, he cannot find another source of supply.

Plaintiff has been a distributor of petroleum products for defendant, ARCO, or its predecessor, Sinclair, in Lawrence County, Indiana, and its environs for the past 20 years. Notwithstanding occasional threats by plaintiff to take his patronage elsewhere, and notwithstanding various disputes which defendant emphasizes and plaintiff minimizes, nothing serious enough to cause a rupture in the business relationship occurred until shortly before the “energy crisis.”

On February 15, 1973, defendant notified plaintiff that his distributorship was cancelled; the termination date, originally set for March 31, 1973, was extended to May 31, 1973. Plaintiff canvassed some 20 other suppliers of petroleum products to obtain a new source, but none would agree to serve him. On May 7, 1973, he commenced this litigation. In his complaint plaintiff described his business, the receipt of the notice of cancellation and the current market situation, and alleged that ARCO’s acts constituted “an attempt to monopolize the marketing area in which plaintiff operates," and resulted in discrimination against him. After an evi-dentiary hearing, the district court entered an order enjoining defendant from refusing to furnish petroleum products to the plaintiff until further order of court. Defendant appeals from that order.

There is no question about the sufficiency of plaintiff’s proof of irreparable injury. His business, upon which he places a value of $500,000, involves the distribution of approximately 433,000 gallons of gas and 250,000 gallons of fuel oil per month. He services 20 retail gasoline stations, four of which he owns, and also supplies various governmental units, industrial customers and farms in and about Lawrence County, Indiana. Since he sells only ARCO petroleum products, and since he is unable to obtain a new supplier, it is reasonable to infer that termination of his distributorship will terminate his business.

Irreparable injury is not in itself a sufficient predicate for the entry of a preliminary injunction. There must also be substantial reason to believe that the conduct of which the plaintiff complains is unlawful and is the cause of his threatened loss. How clear the showing of illegality must be will vary from case to case; no doubt, the greater the urgency and the greater the extent of the impending injury, the more appropriate it may be to retain the status quo temporarily while the court appraises the strength of the legal claim. Thus, the requirement of a “reasonable likelihood of success" is necessarily a somewhat flexible standard that allows the chancellor room for the exercise of judgment. At the very least, however, plaintiff must demonstrate that his claims are “so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for more deliberate investigation.’ ”

In this ease it is perfectly clear that, even if plaintiff is able to prove a violation of the Robinson-Patman Act, there is no causal connection between that violation and his termination. We are also convinced that there is no basis in the record for concluding that ARCO is violating § 2 of the Sherman Act. We therefore reverse.

I.

ARCO sells gasoline directly to retail service stations in the Lawrence County area. These stations compete with the 20 stations that are supplied by plaintiff. Plaintiff has asserted that ARCO discriminates in favor of its own retail outlets and against plaintiff in two different ways.

First, in his complaint plaintiff apparently took the position that the termination itself was discriminatory since ARCO planned to continue supplying its own outlets while refusing to sell to him. It has long been settled, however, that such discrimination does not violate the Robinson-Patman Act. For that statute does not require a seller to create or to maintain a customer relationship with any buyer or prospective buyer.

Second, on appeal plaintiff’s Robinson-Patman claim is solely that a two cent per gallon rebate made available to retailers participating in defendant’s so-called “Mini Service” program illegally discriminated against him. Assuming that to be true, such illegality could be removed without modifying the “Mini Service” program simply by discontinuing sales to customers, such as plaintiff, who did not participate in that program. Since one method of terminating that illegality would be to terminate plaintiff’s distributorship, it is manifest that an assumption that the “Mini Service” program was illegal does not justify an injunction imposing a continuing business relationship upon these parties. More fundamentally, there is neither a finding nor evidence that plaintiff’s termination was in any way connected to the “Mini Service” program. Accordingly, plaintiff’s Robinson-Patman claim does not support the injunction entered by the district court.

II.

Alternatively, plaintiff contends that his termination during a period of shortage will totally exclude him from the market and, therefore, violate § 2 of the Sherman Act. He characterizes the alleged violation as an attempt to monopolize, although presumably, if his theory were valid, as -soon as the termination becomes effective, the attempt would ripen into a completed monopolization. Plaintiff’s theory is not entirely clear, but apparently rests upon the premise that the competition which has heretofore existed between plaintiff and defendant in the sale of ARCO products in Lawrence County will be replaced by defendant’s monopoly control of such sales after the termination becomes effective. It is first appropriate to identify the reasons why plaintiff’s § 2 claim would be manifestly insufficient if there had been no shortage, and then to consider the relevance of the shortage.

A.

Whether a complaint alleges monopolization or an attempt to monopolize, it is incumbent upon the plaintiff to define the relevant market in which the defendant’s actions are to be appraised. Since the statute has “both a geographical and distributive significance,” Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co., 293 U.S. 268, 279, 55 S.Ct. 182, 185, 79 L.Ed. 356, the market definition must include a description of both the territory encompassed and the product involved.

In this case plaintiff has not directly addressed the relevant market issue, but seems to assume that it consists of the sale of ARCO petroleum products in the Lawrence County area. That assumption is not supported by the evidence but is, in fact, contradicted by it. Plaintiff offered no evidence to prove that there are any legal or economic barriers to competition from areas immediately adjacent to Lawrence County. More significantly, there is no proof suggesting that ARCO products are in any way different from other brands of petroleum products available in Lawrence County. Even if we were to assume, without proof, that ARCO’s gasoline or fuel oil is not a standardized commodity, either because of physical characteristics of the product or because advertising has enhanced its consumer acceptance, there is no evidence indicating the extent of its differentiation from other brands or the competitive significance of any such possible differentiation. The only relevant evidence in the record proves that ARCO products are in active competition with other brands. Under the kind of economic analysis employed by both the majority and the dissent in United States v. E. I. duPont de Nemours & Co., 351 U.S. 377, 76 S.Ct. 994, 100 L.Ed. 1264, plaintiff clearly failed to prove that sales of ARCO petroleum products in Lawrence County, Indiana, constitute a relevant market.

Moreover, if we make the realistic assumption that the relevant market encompasses the sale of competing brands as well as ARCO products, plaintiff’s evidence would place ARCO’s position in the market far from the monopoly end of the spectrum that separates pure monopoly from pure competition. For the record indicates that at least 20 other suppliers of gasoline and oil sell in Lawrence County, and that ARCO’s share of the business is less than 3% of the total. There is no evidence that its share is growing, and certainly no basis for inferring any dangerous probability that it would ever approach monopoly proportions. In sum, apart from the problem created by the shortage of petroleum, there is not even colorable support in the record for the conclusion that defendant is guilty of violating § 2 of the Sherman Act.

B.

Plaintiff apparently contends that the shortage requires a different result in this case because alternative sources of supply were not in fact available to him and, therefore, the relevant market must be narrowly defined to include only ARCO products sold in the Lawrence County area. In appraising the legal significance of the shortage, we first review the evidence in the record and then consider whether taking judicial notice of the severity of the energy crisis which ensued would affect that analysis.

The supply available in any market may, of course, be affected by legal factors as well as purely economic factors. As far as this record discloses, at the time ARCO made its decision to cancel plaintiff’s distributorship, there were no legal barriers to price changes, to changes in methods of distribution or to shifting custom from one seller to another or from one buyer to another. The record evidence of a shortage consisted merely of plaintiff’s testimony that each of the 20 competitors of ARCO whom he approached would not supply him and, further, that ARCO’s regional manager had told him 'that jobber contracts were not being renewed “because of the shortage of the product.”

Nothing in this evidence would justify the conclusion that the relevant competitive market should be treated as including only ARCO products. It is entirely possible that all 20 of ARCO’s competitors had valid reasons, unrelated to any shortage, for not wishing to establish business relations with plaintiff. If that should not be true, no reason is apparent from the record why he was not free to offer to pay a higher price, or to perform superior services, than existing distributors of competing brands of gasoline, and thereby to secure product from one of ARCO’s competitors. Unquestionably, the constriction of supply would tend to force the price level to rise, but presumably ARCO and its 20-odd competitors would all be affected in a roughly comparable way. The fact that in such a market plaintiff might have to offer an unusually high price, or unusually favorable terms, in order to obtain a new source of supply, is not a reason for redefining the market to include less than all of the firms competing within it.

Accordingly, if we assume that the competitive market remained free of any artificial restraint, the mere fact that lesser quantities were available for sale at higher prices would not limit the number of alternative sources which might reasonably be available to any firm desiring to obtain or to retain a distributorship. Indeed, if anything, a significant increase in the price of the raw product would tend to diminish the significance of transportation costs, and thereby enlarge the geographical area in which distributors were effectively competing both in the purchase and in the sale of the product. Moreover, if the existence of a shortage required us to construe the Sherman Act as making an otherwise lawful substitution of one distributor for another illegal — or even of doubtful legality — the statute would have the anomalous effect of creating, rather than removing, restraints on competition during periods of short supply. For such a construction of the law might be the deciding factor which would cause another oil company to deny plaintiff the opportunity to replace a less efficient distributor. We are satisfied that nothing in plaintiff’s evidence justifies a redefinition of the relevant market.

Realistically, we recognize that, during periods of acute shortage or national emergency, the free market is often restrained by regulatory controls. A variety of restrictions may preclude the price changes which normally occur in response to fluctuations in supply and which may in turn have their impact upon the flow of capital and, ultimately, output. Plaintiff may appropriately ask us to take judicial notice of the .fact that, during the energy crisis, oil companies were not entirely free to adjust prices or to take on a new distributor simply because it would be good business to do so. Conceivably, therefore, emergency controls might either require ARCO to retain plaintiff as a distributor or, if his cancellation had already become effective, prevent any of ARCO’s competitors from accepting him as an additional or as a substitute distributor. Accordingly, depending upon the impact of those controls, plaintiff might be in a position to argue that the relevant market should be narrowly defined to include only the product which is in fact available to him.

Although exceptional regulatory controls may significantly restrain competition within the relevant market, we do not believe they justify a redefinition of the market. For the various brands of gasoline would retain the physical characteristics that make them readily interchangeable for essentially the same uses. Indeed, such factors as advertising of particular brands, which tend to differentiate otherwise similar products, become less significant in times of shortage. Whether viewed from the standpoint of the ultimate consumer, or of a distributor such as plaintiff, it would be less important to obtain a particular kind of gasoline than to purchase any gasoline at all. The so-called “cross elasticity of demand” would tend to enlarge the relative product market as the competition among buyers of petroleum.

The fact that an injury to a particular competitor may be unusually severe is not a justification for adopting a market definition which only considers the particular product line which he has previously sold or purchased. For in Sherman Act litigation we must adhere to the admonition that the statute is concerned “with the protection of competition, not competitors.” And whether the competition is more intense on the seller’s or the buyer’s side of the market, we may not arbitrarily segregate one brand from equally acceptable substitutes in order to protect a particular competitor from injury.

If the artificial restraints imposed by the government during a period of shortage make it appropriate to characterize ARCO as a monopolist for purposes of construing the Sherman Act, it would seem to follow that each of the 20 other oil companies, and perhaps each of the independent jobbers who sell to retail service stations in the same area, is equally a monopolist. For, conceivably, if the shortage is sufficiently acute, any one of those distributors might have the power — assuming that no contract or regulatory objection interferes — to discontinue sales to a retailer and, therefore, to put him completely out of business. If each such action were violative of § 2, the Sherman Act would, in effect, outlaw any change in existing patterns of distribution until after an acute shortage was ameliorated.

From a broad policy standpoint, perhaps such a temporary freeze would serve the public interest. Such a freeze might be an appropriate, even a necessary, counterpart to an emergency price control program. Historically, however, that kind of regulation of the economy has only been undertaken by a public agency pursuant to express legislative authorization. The Sherman Act has never been construed as a broad charter authorizing the judiciary to fashion such controls. Quite the contrary, it is such regulation, when accomplished by private action, that the Sherman Act was specifically intended to prohibit. Certainly that statute should not be construed as an authorization to the judiciary to engage in the kind of economic regulation that the statute was designed to outlaw.

To the extent that the antitrust laws remain applicable in an industry which is partially regulated by the government, their office remains the same as in an industry which is totally unregulated. Regulatory controls may limit price, either in maximum or minimum terms which the seller may charge; may require the continuation of service to unprofitable accounts; or may direct that products in short supply be allocated to essential or priority uses. Such functions, however, are not properly performed by laws which are designed to eliminate restraints of trade.

We therefore conclude that, whether we just consider the evidence of shortage in the record, or whether we also take cognizance of the distortions that may be produced by emergency measures, the injury of which plaintiff complains is not remediable under the Sherman Act. That statute does not authorize the judiciary to supplement imperfect regulatory controls imposed by other branches of government.

Reversed.

      . Plaintiff apparently relies upon 15 U.S.C. §§ 13(a) and (d).

      . 15 U.S.C. § 2 provides:
      § 2. Monopolizing trade a misdemeanor; penalty.
      Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

      . In approximately 1954 plaintiff began as a marketer, i.e., an agent selling on a- commission basis, for Sinclair Petroleum Co. He became a jobber for Sinclair in 1961, and a jobber for defendant when it merged with Sinclair in 1969. ARCO is apparently a subsidiary of the other defendant in this action, Atlantic Richfield Co.

      . In December of 1971 plaintiff and defendant entered into a jobber’s contract which was to run from month to month for a period of 10 years and was cancellable on 10 days written notice.

      . We are not persuaded by ARCO’s argument that the entry of the preliminary injunction is causing it irreparable injury. ARCO apparently operates nationwide in producing, refining and marketing petroleum products. It introduced evidence tending to show that plaintiff had from time to time engaged in unethical conduct and had refused to pay bills for insufficient reasons, and that the profitability of the business relationship was marginal. Since many of these difficulties had apparently existed throughout much of the long relationship between the parties, they do not undermine the district court’s implicit conclusion that the balance of hardship was tipped substantially in plaintiff’s favor.

      . See Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 324 (2d Cir. 1969), cert. denied, 394 U.S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777.

      . Justice Marshall, in an opinion joined by Chief Justice Burger and Justices Stewart and Blackmun, observed that, when a court issues a preliminary injunction, “one important element of its judgment is its estimate of the probability of ultimate success on the merits” by the plaintiff. Atchison, T. & S. F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 821, 93 S.Ct. 2367, 2382, 37 L.Ed.2d 350. The basis of this requisite is described by one author as follows:
      The Court [of Chancery] interferes on the assumption that the party who seeks it interference has the legal right which he asserts, but needs the aid of the Court for the protection of the property in question until the legal right can be ascertained. The office of the Court to interfere being founded on the existence of the legal right, a man who seeks the aid of the Court must be able to show a fair pri-ma facie case in support of the title which lie asserts.
      W. Kerr, Injunctions 15 (6tb ed., .1. Patterson ed. 1927).

      . Mytinger & Casselberry, Inc. v. Numanna Laboratories Corp., 215 F.2d 382, 385 (7th Cir. 1954), quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-1207 (2d Cir. 1970).

      . Naifeh v. Ronson Art Metal Works, Inc., 218 F.2d 202 (10th Cir. 1954); Chicago Seating Co. v. S. Karpen & Bros., 177 F.2d 863 (7th Cir. 1949); Shaw’s, Inc. v. Wilson-Jones Co., 105 F.2d 331 (3d Cir. 1939).

      . Consider the following proviso of 15 U.S. C. § 13(a)-:
      [N]othing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade.

      . Defendant offered a program whereby certain Arco service stations could have two sets of gasoline pumps. At one, the customer would receive both gas and services such as having his windows washed and oil checked. At the other, he would receive only gas, but at a rate of two cents per gal-Ion less than that at the full service pumps. For every gallon sold at the “Mini Service” pumps, defendant gave the service station a two cent rebate towards the purchase of more gasoline. This program was allegedly not made available to plaintiff or to his retail outlets.

      . In O. M. Droney Beverage Co. v. Miller Brewing Co., the court stated:
      Moreover, even where there are jrnoven violations of the [Robinson-Patman] act the common remedy is to enjoin the violations by [defendant] . . . and not to impose a continuing business relationship between the parties.
      365 F.Supp. 1067, 1071-1072 (D.Minn.1973) (citations omitted).

      . Indeed, under that injunction ARCO remains free to continue its “Mini Service” program without offering it to plaintiff.

      . Tlie critical importance of this requirement is identified by Chief Judge Swygert in the concluding portion of his opinion in Bernard Food Industries, Inc. v. Dietene Co.:
      Section 2 of the Sherman Act proscribes an attempt “to monopolize any part of tire trade or commerce among the several States.” Judge Learned Hand succinctly stated the elements of a Section 2 violation : “In order to fall within § 2, the monopolist must have both the power to monopolize, and the intent to monopolize.” United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945). There is no evidence whatever to indicate that the defendant’s conduct in publishing the comparison sheet manifested an intent to monopolize. Absent also is any evidentiary basis for holding that the defendant possessed the power to monopolize. Moreover, there is no proof of what constituted the relevant market. Without such a determination, the question of a monopoly or an attempt to accomplish such a goal could in no manner he meaningfully answered. A definition of the relevant market is an essential element of a violation under Section 2 of the Sherman Act. United States v. Grinnell Corp., 384 U.S. 563, 570, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966).
      415 F.2d 1279, 1284 (7th Cir. 1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (emphasis added). In Walker Process Equipment, Inc. v. Food Machinery & Chemical Corp., 382 U.S. 172, 177-178, 86 S.Ct. 347, 15 L.Ed.2d 247, Justice Clark, speaking for the Court, made it clear that the basic importance of defining the relevant market is as applicable to an attempt case as to other § 2 claims. See also Acme Precision Products, Inc. v. American Alloys Corp., 484 F.2d 1237 (8th Cir. 1973), holding at page 1242 that the burden of proof as to the relevant market rests upon the claimant.

      . The importance of defining the relevant “area of effective competition” was explained at pages 44-45 of the Report of the Attorney General’s National Committee to Study the Antitrust Laws (1955) (footnotes omitted) :
      Whether monopoly power for purposes of Section 2 exists requires first a definition of the market within which it is to be measured. For the distinction between competition and monopoly turns on power in a relevant market. Although the word “market” does not appear in the statute, it is a necessary element of the concepts of monopoly and of certain restraints of trade upon which the statute rests.
      The appropriate market is the “area of effective competition” within which the defendant or defendants operate. [Standard Oil Co. of California v. United States, 337 U.S. 293, 299-300 n.5 (69 S.Ct. 1051, 93 L.Ed. 1371)]. “The problem of defining a market turns on discovering patterns of trade which are followed in practice.” [United States v. United Shoe Machinery Corp., 110 F.Supp. 295, 303 (D.Mass. 1953), aff’d per curiam, 347 U.S. 521 (74 S.Ct. 699, 98 L.Ed. 910)]. Identification of markets required for solution of an antitrust problem is primarily one of fact. The starting point is to ascertain the actual competition to which the defendants are exposed, and the effect on rivals of the conduct they have undertaken. For these purposes, the market is normally identified both in terms of the trade in products, field or services affected by the conduct, and the geographical areas within which such trade may be limited. The Sherman Act, the Supreme Court said, in Indiana Farmer’s Guide Publishing Co. v. Prairie Farmer Publishing Co. [293 U.S. 268, 279 (55 S.Ct. 182, 185, 79 L.Ed. 356)], has “both a geographical and distributive significance and [it apixlies] to any part of the United States as distinguished from the whole and to any part of the classes of things forming a part of interstate commerce.”
      The kind of market analysis which the Committee understood the statute to require was employed by the Supreme Court in United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 389-396, 76 S.Ct. 994, 100 L.Ed. 1264.

      . In du Pont, supra note 15, the Court also noted:
      [0]ne can theorize that we have monopolistic competition in every nonstandardized commodity with each manufacturer having power over the price and production of his own product. However, this power that, let us say, automobile or soft-drink manufacturers have over their trademarked products is not the power that makes an illegal monopoly. Illegal power must be appraised in terms of the competitive market for the j)roduc.t.
      351 U.S. at 393, 76 S.Ct. at 1006 (footnotes omitted).

      . Plaintiff’s testimony that he purchased fuel from Marathon Oil in 1970 and that, at various times, he considered a change in his course of supply, Tr. 92, 121-24, indicates a degree of interchangeability between ARCO products and other brands. Plaintiff also testified that the price he charged his customers had to be competitive with the price which distributors of other petroleum companies charged. If certain customers received lower bids from these distributors, plaintiff could seek a special allowance, a “MEA”, from defendant, thereby permitting him to sell at a lower price. Tr. 54-62, 114-19. Finally, he testified that, because retail outlets selling ARCO products would engage in “price wars” with outlets selling other brands, defendant would sustain them with another type of allowance, a “TVA”. Tr. 62-68. As the Court suggested in du Pont, supra note 15, competition cannot be controlled unless one has power over price. 351 U.S. at 392, 76 S.Ct. 994. By plaintiff’s own testimony, no such power existed.

      . Although the dissenting Justices disagreed with the majority’s appraisal of the signifi-canee of competition between cellophane and other flexible packaging materials, they accepted the basic premise that the proper definition of the market was the critical issue in that case as in other Sherman Act litigation. See, e.g., 351 U.S. at 414, 76 S.Ct. 994. In his dissenting opinion, Chief Justice Warren identified significant physical differences between cellophane and other flexible wrapping materials (differences in bursting strength, permeability and transparency) and then evaluated the economic significance of the differences, noting, for example, that price changes in cellophane did not always affect the price of the other materials which the majority considered part of the relevant market.

      . Claims that refusals to deal were violative of § 2 have often failed because the plaintiff incorrectly assumed that proof of the so-called monopoly which a manufacturer has over his own product is tantamount to proof of dominance in an economic market. See, e.g., Bushie v. Stenocord Corp., 460 F.2d 116, 120-121 (9th Cir. 1972); Cal Distributing Co. v. Bay Distributors, Inc., 337 F.Supp. 1154, 1157-1159 (M.D.Fla.1971); South End Oil Co. v. Texaco, Inc., 237 F.Supp. 650, 655-656 (N.D.Ill.1965). On the other hand, courts which have been persuaded that such dominance exists have held refusals to deal violative of § 2. See, e.g., Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359; Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684; Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334 (5th Cir. 1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811.

      . The evidence establishes that defendant sells approximately 3% of the gasoline sold in the State of Indiana; presumably its share of the Lawrence County market is about the same. There was no evidence as to its share of the market in other petroleum products; presumably its share was also about 3%.

      . Cf. Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 452 F.2d 579, 597-599 (7th Cir. 1971), cert. denied, 405 U.S. 1066, 92 S.Ct. 1500, 31 L.Ed.2d 796.

      . Tr. 78. There is also testimony that in September of 1972 one of ARCO’s representatives stated at a meeting of jobbers that there “would and could likely be some fuel shortages, but they would take care of their own distributors.” Tr. 92.

      . The quotation is from Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S.Ct. 1502, 1521, 8 L.Ed.2d 510, which specifically considered the 1950 amendment to § 7 of the Clayton Act. There is no doubt, however, that the comment is equally applicable to the Sherman Act.
      When the Court has referred to situations in which the ready availability of competitive products precludes a conclusion that the Sherman Act has been violated, see, e.g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 376, 87 S.Ct. 1856, 18 L.Ed.2d 1249, the reference has been directed at what is “available in the market,” United States v. du Pont, supra note 15, 351 U.S. at 394, 76 S.Ct. 994, rather than at what is available to any particular competitor.

      . Compare the comment by the Fourth Circuit in Davis v. Crown Central Petroleum Corp., in which plaintiffs claimed that the petroleum shortage justified an exceptional interpretation of their contract rights:
      The claim of the plaintiffs is appealing and our sympathies are with them. As the District Courts indicated, it is equitable in periods of scarcity of basic materials for the Government to inaugurate a program of mandatory allocations of the materials. This, however, is a power to be exercised by the legislative branch of Government. The power of the Court extends only to the enforcement of valid contracts and does not comprehend the power to make mandatory allocations of scarce products on the basis of any consideration of the public interest. Public reports indicate that Congress is cognizant of the problem presented by these actions and is giving active consideration to the establishment of a program of mandatory allocations that would apply from the oil producer down to the oil retailer. It is earnestly hoped that Congress will take the necessary steps to establish such controls. For that control, however, the parties must look to the Congress and not to the Courts.
      483 F.2d 1014, 1017 (1973).

      . Compare Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 213, 71 S.Ct. 259, 95 L.Ed. 219.

      . See, e.g., United States v. Borden Co., 308 U.S. 188, 199-200, 60 S.Ct. 182, 84 L.Ed. 181. The underlying concern of the Sherman Act is precisely the opposite of the office plaintiff would have it perform. It reflects the conviction that the free market, reacting to a plurality of independent entrepreneurial decisions, will best serve the interests of the consumer and the general public. It therefore proscribes private regulation of the marketplace, either by agreements among should-be competitors or by the exercise of monopoly power by a single firm. The theory of the law is that the market which performs most effectively is the one that is most free from artificial restraint. Generally, the purpose of an enforcement proceeding is to eliminate private restraints in order to enable the market to adjust itself to changing circumstances. It is assumed that a desirable adjustment will be brought about by market decisions made independently by competitors seeking to maximize their respective j>rofits or to minimize their respective losses.

      . See the materials cited by the Supreme Court in du Pont, supra note 15, 351 U.S. at 388-389 n. 14, 76 S.Ct. 994.

      . “Despite possible advantages to a stable economy from efficient cartels with firm or fixed prices for products, it is crystal clear from the legislative history and accepted judicial interpretations of the Sherman Act that competition on prices is the rule of congressional purpose and that, where exceptions are made, Congress should make them.” United States v. Line Material Co., 333 U.S. 287, 309-310, 68 S.Ct. 550, 562, 92 L.Ed. 701.

      . Cf. Mandel v. Simon, 493 F.2d 1239, 1240 (Em.App.1974):
      The record indicates that Appellants are in good faith attempting to correct these inequities as promptly as they are discovered. The Federal Energy Office must have great flexibility during the formative period of regulation. Judicial interference at this time may delay rather than advance effective regulation of this area.


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John ACKERSON, Appellant.
    No. 74-1064.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided Aug. 29, 1974.

      Thomas J. Frawley, St. Louis, Mo., for appellant.
    J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

Defendant John Ackerson was convicted on both counts of a two-count indictment. Count I charged the defendant with violating 26 U.S.C. §§ 5861(c) and 5871 by possessing a sawed-off shotgun which was made without payment of a making tax as required by 26 U.S.C. § 5821. Count II charged him with violating 26 U.S.C. §§ 5861(d) and 5871 by possessing the same gun which had not been registered to him in the National Firearms Registration and Transfer Record. He was sentenced to six years on each count, the sentences to run concurrently. He raises a number of issues on appeal, none of which are meritorious. We affirm the conviction.

I. DOUBLE JEOPARDY.

The defendant’s assertion that he was placed in double jeopardy, by being tried in federal court for violations of the National Firearms Act after having been previously tried and convicted in state court of carrying a concealed weapon (the same sawed-off shotgun), is without merit. See, Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Ferina v. United States, 340 F.2d 837 (8th Cir.), cert. denied, 381 U.S. 902, 85 S.Ct. 1446, 14 L.Ed.2d 284 (1965).

The defendant claims further that his prosecution by the federal government violates a Department of Justice policy under which persons convicted in state court for a crime involving the same acts are not federally prosecuted unless compelling reasons are present and specific approval is obtained from a designated Assistant Attorney General. The alleged policy statement was not made a part of the record, and the claim was not presented to the District Court. On this record, we are, therefore, unable to say that there is such a policy. Thus, we are not prepared to express an opinion as to the effect on a prosecution of not following the policy if there, in fact, is one. But see, United States v. Hutul, 416 F.2d 607, 626-627 (7th Cir. 1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970).

II. SPEEDY TRIAL.

The Supreme Court has indicated that four factors are to be considered in determining whether a defendant has been deprived of his Sixth Amendment right to a speedy trial: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

When we balance these factors, we do not believe that the defendant, whose trial occurred within seventeen months after he was arrested, has made a sufficient showing to justify setting aside his conviction. See, Brooks v. United States, 423 F.2d 1149, 1152 n.4 (8th Cir.), cert. denied, 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111 (1970). The trial was initially delayed because the government was unaware of the defendant’s location and thereafter because of his incarceration in a state prison. The defendant did not assert his right to a speedy trial until shortly before trial. Moreover, the defendant concedes that he was not prejudiced in the preparation • of his defense. He asserts only that he lost the possibility of serving his state and federal sentences concurrently. A delay in bringing a person to trial because he is incarcerated by another jurisdiction may be oppressive and require a reversal of a conviction. See, Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969). But the circumstances here do not require that result. See, United States v. Cabral, 475 F.2d 715 (1st Cir. 1973).

III. MOTION TO SUPPRESS.

The defendant maintains that the District Court erred in failing to suppress certain evidence: the firearm seized from him when he was arrested and a statement made by him to a federal officer in the city jail the day after his arrest. He argues that this evidence was secured in violation of Rule 5(a) of the Federal Rules of Criminal Procedure. That rule provides that an arresting officer must take the arrested person without unnecessary delay before the nearest available commissioner. The defendant asserts that he was not taken to a commissioner for months after his arrest.

The short answer to the defendant’s contention with respect to the firearm is that it was seized by state authorities and properly held by them for purposes of the defendant’s state trial. Moreover, state law with respect to the issuance of an arrest warrant by a neutral magistrate was strictly complied with. Compare, United States v. Nygard, D.C., 324 F.Supp. 863, 868 (1971). The state was not obligated to return the firearm to the defendant after the completion of the state proceedings, and the defendant cannot assert that his right to be brought before a commissioner was violated by the state’s action in turning over the gun to the federal authorities.

The defendant’s objection to the admissibility of the statement made to Special Agent Bennett was not made at the trial or at the suppression hearing, but is raised for the first time on appeal. His failure to make timely objection waives any rights he may have had to have the statement excluded because of unreasonable delay in being brought before a commissioner, and the contention is, therefore, not properly before us. United States v. Mills, 434 F.2d 266, 273 (8th Cir. 1970), cert. denied, 401 U.S. 925, 91 S.Ct. 908, 27 L.Ed.2d 828 (1971); United States v. Mooney, 417 F.2d 936 (8th Cir. 1969), cert. denied, 397 U.S. 1029, 90 S.Ct. 1280, 25 L.Ed.2d 541 (1970).

IV. MOTION FOR DIRECTED VERDICT OF ACQUITTAL ON COUNT I.

The defendant stipulated at trial as follows:

Specifically it is agreed that the firearm described in the indictment in Count II has been made without the payment of the making tax as required by § 5821, Title 26 U.S.C.

After trial, the defendant moved for a directed verdict of acquittal on the ground that the stipulation entered into by defense and government counsel was insufficient to show that the firearm was made in the United States. He relied on United States v. Goodson, 439 F.2d 1056 (5th Cir. 1971), which held that it is necessary to prove that a firearm was made in the United States to subject it to the making tax. The trial court denied the motion reasoning:

In this case, it was stipulated that the firearm described in the indictment had been made without the payment of the making tax as required by 5821, and obviously the requirements of 5821 are that the gun be made in the United States, and that —I think that that is inherent in the stipulation that has been entered into between the Government and the Defendant and his attorney.

We agree with the trial court’s reasoning. The stipulation fairly read admits the firearm was made in the United States. The defendant, having agreed to the stipulation, cannot now be permitted to argue that the government failed to introduce evidence to show that the gun was made in the United States.

V. MOTION FOR DIRECTED VERDICT OF ACQUITTAL ON COUNT II.

The defendant next contends that his ■motion for directed verdict of acquittal on Count II ought to have been granted because the evidence did not show that he was a “transferee” and because the evidence showed that he only had possession of the firearm for ten minutes, an insufficient period to permit him to register the weapon. The answer to this contention is threefold:

First, whether the defendant was a transferee or a finder is irrelevant to a determination of guilt under § 5861(d). That section makes it unlawful “to receive or possess a firearm which is not registered to him.” (Emphasis supplied.) In United States v. Johnson, 441 F.2d 1134, 1136 (5th Cir. 1971), the Fifth Circuit declared that “possession of such a firearm, if unregistered, whether abandoned or not, is prohibited.” Our Court quoted and embraced that view in United States v. Moon, 492 F.2d 902, 903 (8th Cir. 1974), where the defendant claimed that he had merely found the weapon. We stated:

In order to convict Moon, the government had to establish the following elements: (1) that defendant knowingly possessed the firearm; (2) that the object possessed was in fact a firearm; and (3) that such firearm was unregistered. * * * The prosecution needed to prove no more.

Id. at 903 (Citation omitted.).

Second, were the distinction relevant, the testimony of Special Agent Bennett was sufficient to permit the jury to find that the defendant was a transferee. The contradictory statement given by the defendant does not dispel that evidence since the jury is always free to reject testimony on the basis of credibility.

Third, given the design of the current Act, the defendant’s argument that he should have been given time to register the weapon is fallacious; no matter how much time he were given, it would not be possible for him to register the firearm. This was decisively settled by the Supreme Court in United States v. Freed, 401 U.S. 601, 603-604, 91 S.Ct. 1112, 1115, 28 L.Ed.2d 356 (1971), when it said:

■x- * * Under the present Act only possessors who lawfully make, manufacture, or import firearms can and must register them; the transferee does not and cannot register. * * * (Emphasis included.)

Assuming arguendo that defendant was a finder, he still could not register the weapon for, as this Court said in Milentz v. United States, 446 F.2d 111, 113 (8th Cir. 1971):

* * * valid possession may be obtained only if a lawful possessor lawfully registers the transfer of the weapon. * * * (Citation omitted.)

It may take only a split second for the recipient of a firearm to decide that he will assert dominion and control over it, but

-x- * * violation of the new Act occurs when a person elects to take possession of a firearm that is contraband inasmuch as it is not registered. * * *

United States v. Valentine, 427 F.2d 1344, 1346 (8th Cir. 1970). It is precisely because it is impossible for a recipient of a firearm to register it that one is compelled to reach the conclusion that “[t]he length of time of the possession is not material.” United States v. Sanders, 462 F.2d 122, 124 (6th Cir. 1972). Accord, United States v. Tankersley, 492 F.2d 962, 967 (7th Cir. 1974). The dictum to the contrary in Sizemore v. United States, 393 F.2d 656, 658 n. 1 (8th Cir. 1968), was in relation to an entirely different statute— one which did allow a transferee or finder to register. When that statute was repealed, the Sizemore dictum lost its validity.

VI. FAILURE OF THE DISTRICT COURT’S INSTRUCTIONS UNDER COUNT II TO REQUIRE THE JURY TO DETERMINE WHETHER THE DEFENDANT WAS A FINDER OR A TRANSFEREE.

No challenge to the District Court’s instructions were made by the defendant. He now contends, however, that it was plain error not to instruct the jury that the defendant should be acquitted if he were a finder rather than a transferee. As we have stated above, § 5861 does not speak of “finders” and “transferees,” but rather of persons who “receive or possess” an unregistered firearm. Since the distinction of finder and transferee is irrelevant to the offense, there was no error in the instructions as given.

VII. FAILURE TO INSTRUCT THE JURY THAT THE DEFENDANT COULD NOT BE CONVICTED ON BOTH COUNTS I AND II.

Finally, the defendant contends that his conduct in possessing the firearm constituted but one offense, and that it was error not to instruct the jury that he could be convicted under each count, but not under both counts. Such multiple convictions have been upheld in the past in our Circuit, without discussion of defendant’s contention. See e.g., Brinlee v. United States, 496 F.2d 351 (8th Cir. 1974); United States v. Burton, 485 F.2d 715 (8th Cir. 1973); United States v. Lines, 461 F.2d 282 (8th Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 338, 34 L.Ed.2d 251 (1972); United States v. Kiliyan, 456 F.2d 555 (8th Cir. 1972); Langel v. United States, 451 F.2d 957 (8th Cir. 1971).

The Ninth Circuit recently held, as a matter of statutory interpretation, that a defendant may be convicted of multiple counts under § 5861(c), (d) and (f), but may not receive a total sentence exceeding ten years for one course of conduct violating that section (the maximum sentence which may be imposed for any violation of the National Firearms Act. 26 U.S.C. § 5871). United States v. Clements, 471 F.2d 1253 (9th Cir. 1972). We agree with that interpretation and join the Seventh Circuit in adopting it. See, United States v. Tankersley, supra.

In Clements, the defendant received consecutive ten-year sentences under each of three counts under (c), (d) and (f), and the Court remanded the case because the cumulative sentences, exceeded ten years. Yet, the multiple convictions were sustained under the following reasoning:

The issue is not whether Congress could have authorized the imposition of cumulative sentences for the offenses with which Clements was charged. There is no constitutional impediment to Congress’ authorizing cumulative sentences for a single act that may violate more than one statute when the offenses created by the statutes are not identical. The offenses with which Clements was charged are not identical because a different set of ultimate facts is necessary to sustain a conviction under each count. * * * The difference between the ultimate facts necessary to prove failure to pay a tax and failure to register is obvious. * * *

United States v. Clements, supra 471 F. 2d at 1254 (Citations omitted.).

If there was any doubt as to the defendant’s contention, it was dispelled in United States v. Jones, 487 F.2d 676 (9th Cir. 1973), where the defendant had been given a sentence not exceeding the ten-year maximum for multiple convictions under § 5861(d), (e) and (i):

Clements is clearly distinguishable from this case, for it proscribes only cumulative punishment for offenses arising under the National Firearms Act, not conviction on multiple counts. * * * Congress has the power to establish that a single act constitutes more than one offense, at least as long as each offense requires proof of a fact the other does not. * * * The policy [of the Act] was not to force the government to elect a single offense to prosecute. Therefore, Jones was properly tried and convicted on multiple counts. * * *

Id. at 679 (Emphasis included; citations omitted.).

Following defendant Ackerson’s conviction under both § 5861(c) and (d), he was sentenced to two six-year terms to be served concurrently. Since the total sentence does not exceed the ten-year maximum set by § 5871, there is no merit to his claim that he has been unjustly convicted of multiple offenses for one course of conduct.

Affirmed.

      . The broad pretrial motion made under Rule 5(a) might conceivably be read to embrace the statement, but the memorandum submitted to the District Court presented only the issue of the shotgun, and no objection was made at trial to Bennett’s testimony.