author: GEWIN, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WHITE KNIGHT MANUFACTURING COMPANY, Respondent.
    No. 72-2030.
    United States Court of Appeals, Fifth Circuit.
    March 1, 1973.

      Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Charles M. Paschal, Jr., Director, Region 15, N. L. R. B., New Orleans, La., Avrum M. Goldberg, Atty., N. L. R. B., Washington, D. C., for petitioner.
    John W. Brahm, Stanley S. Jaspan, Milwaukee, Wis., for respondent.
    Before GEWIN, BELL and GOD-BOLD, Circuit Judges.
   GEWIN, Circuit Judge:

This case arises out of a representation election held May 5, 1971 among certain employees of White Knight Manufacturing Company to determine whether they desired to be represented for collective bargaining purposes by Textile Workers Union of America, AFL-CIO. The election was held pursuant to a “stipulation for certification upon consent election”, by secret ballot among the employees of a stipulated unit. None of the ballots was challenged. Out of 180 eligible voters, 92 voted for the union and 85 against. Only three eligible persons failed to vote. Following’timely objections to the election by the Company, the Regional Director conducted an administrative investigation and recommended that the Union be certified. The Board affirmed, finding that “The [Company’s] exceptions raise no material or substantial issues of fact or law which would warrant reversal of the Regional Director’s . . . recommendations or would require a hearing.” The Company thereafter refused to bargain collectively causing the Union to file an unfair labor practice charge with the Board under §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq. On motion for summary judgment, the Board ruled that the refusal to bargain violated the Act. Accordingly it ordered the Company to cease and desist from the unlawful conduct found and affirmatively required the Company to bargain collectively with the Union as the employees’ exclusive representative. The Board now seeks enforcement of that order and we conclude that enforcement should be granted.

In its objections, White Knight alleged four grounds for setting the election aside, each one involving threats of physical harm to certain of its employees because of their opposition to the Union campaign. The incidents described were claimed to have destroyed the laboratory conditions necessary to a free and fair election. White Knight now asserts that the Board committed reversible error by refusing to. invalidate the election and by failing to direct a hearing on its objections. We reject both of these contentions.

We begin with a discussion of the validity of the Board’s order. In reaching a decision on this issue, we must be mindful of the fact that Congress has vested the Board with broad discretion in dealing with matters relating to representation proceedings. Considerable weight, therefore, must be accorded to the Board’s findings with judicial review limited to ascertaining only their reasonableness. N. L. R. B. v. Laney & Duke Storage Warehouse Co., 369 F.2d 859, 864 (5th Cir. 1966). Whether this court would reach the same conclusion as the Board is immaterial so long as the Board’s finding that the election was conducted fairly is supported by substantial evidence on the record as a whole. Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456, 462 (1951). The decisive factor in such cases is not whether improprieties occurred during the campaign, but rather whether the challenged conduct produced such a climate of tension and coercion that the employees were effectively precluded from making a free choice. N. L. R. B. v. Singleton Packing Corp., 418 F.2d 275, 281 (5th Cir. 1969). The burden of proof is on the objecting party. As this court observed in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969):

“This is a heavy burden; it is not met by proof of mere misrepresentations or physical threats. Rather, specific evidence is required, showing not only that the unlawful acts occurred, but also that they interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.”

White Knight initially argues that the Board erred because in reaching its decision it placed an improper reliance on the absence of an agency relationship between the Union and the objectionable conduct. We disagree. Even a cursory reading of the Board decision indicates that a number of other relevant factors were taken into account such as: (1) the Union’s prompt action in calming a supporter who had been involved in heated personal disputes with two co-workers because of differences of opinion about the Union; (2) its public disapproval of the use of anonymous phone calls as a means of influencing the outcome of the election; and (3) its repudiation of the use of violence in connection with any of its activities. In our judgment, the lack of Union agency was not given conclusive or disproportionate weight by the Board and consequently we must reject White Knight’s contention in this regard.

Equally without merit is the argument that the Board failed to consider the cumulative impact of the challenged conduct on the outcome of the election. As the objecting party, it was incumbent upon White Knight to come forward with specific evidence showing that the atmosphere surrounding the campaign was so coercive that the employees were prevented from exercising a free choice. In our opinion, the record is devoid of such evidence. White Knight’s objections described a series of incidents which, notwithstanding the closeness of the vote, were simply insufficient to justify setting the election aside. At the worst, these incidents amounted to nothing more serious than verbal excesses and isolated attempts to harass non-union employees, none of which had any demonstrated influence on the outcome of the election. Indeed, whatever impact they may have had, it was far from pervasive; for by the Company’s own admission only six out of a total of 180 eligible voters were allegedly victimized. And there is no apparent indication that even any of these six were so intimidated by this conduct that they were unable to vote their personal preferences in the election. Hence, it is clear that there was nothing wrong about the Board’s conception of the evidence; White Knight merely failed to meet its burden of proof. The various other grounds upon which the Board rested its decision have been mentioned earlier in this opinion. We are compelled to conclude that the Board’s refusal to invalidate the election was correct in all respects and supported by substantial evidence in the record as a whole.

White Knight’s second claim of error is that the Board’s failure to conduct a hearing constituted a denial of due process. At the outset, it should be noted that there is no statutory requirement for a post election hearing in representation proceedings. Under the Board’s Rules and Regulations, 29 C.F.R. 102.69(c), such a hearing is required only when' it appears that the objections to the election raise “substantial and material” factual issues. This court has held on more than one occasion that this administrative procedure comports with the due process requirements of the Constitution. See, e. g., N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889, 892 (5th Cir. 1968); N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245, 249 (5th Cir. 1964). In order to establish the need for a hearing, the objecting party must present evidence which would constitute a prima facie showing sufficient to warrant setting the election aside. United States Rubber Co. v. N. L. R. B., 373 F.2d 602, 606 (5th Cir. 1967). In essence this means that “there must be ‘specific evidence of specific events from or about specific people’ in support of allegations having a basis in law sufficient to overturn the election.” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 33 (5th Cir. 1969).

The Board’s denial of a hearing in this case turned largely on the fact that White Knight failed to make a prima fa-cie showing that the election should be set aside and hence failed to raise substantial and material issues of fact. The Board took the approach that even if the alleged incidents took place, White Knight failed to show any adverse effect on the atmosphere necessary to the conduct of a free and fair election. The fact that only three persons out of 180 eligible voters failed to vote plus the fact that the results of the election were very close, considering all of the surrounding conditions and circumstances, lends little support if any to the contention that laboratory conditions were destroyed or that an aura of tension, fear and coercion pervaded the election. This conclusion is further supported by the fact that not a single ballot was challenged; and the election was by secret ballot. While an opportunity to examine and observe witnesses might have been helpful in determining the impact of the challenged conduct on the election, the need for such a procedure is still left to the sound discretion of the Board. From our review of the record in this case, we think that the Board exercised this discretion properly.

The Board’s order will be enforced.

      . Upon motion of counsel for the General Counsel for summary judgment after the case had been transferred to the Board, the Company was directed to show cause why the motion for summary judgment should not be granted. The Company did not file a response to the order to show cause or otherwise oppose the motion. See Fones v. N.L.R.B., 431 F.2d 417, 420 (5th Cir. 1970); N.L.R.B. v. Crest Leather Mfg. Co., 414 F.2d 421, 423 (5th Cir. 1969).

      . Initially there were seven objections to the election. The Regional Director found all to be groundless. Only four of them were reasserted before the Board and hence are properly reviewable by this court. They are summarized as follows: (1) in response to a hypothetical question, a Union official told a non-union employee that if there was ever a strike, he would do everything in his power to keep her from working. (2) A union supporter was heard by co-workers on two occasions to say that she was going to beat up another employee (apparently nonunion). (3) Several non-union employees received anonymous phone calls threatening them in connection with the upcoming election. (4) A foreign substance was thrown on the rear window and trunk of a non-union employee’s automobile.

      . Although the absence of Union agency is not to be given conclusive effect in cases such as the instant one, it is, nevertheless, a factor which can properly be considered by the Board in reaching its decision. The rule is well established that where the challenged conduct is not attributable to either of the parties it can be given less weight than if the conduct were attributable to the parties themselves. Bush Hog v. N.L.R.B., 420 F.2d 1266, 1269 (5th Cir. 1969); N.L.R.B. v. Staub Cleaners, Inc., 418 F.2d 1086, 1088 (2d Cir. 1969).


source: Caselaw Access Project

author: SKOPIL, District Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Charles Cary CHUDY, Appellant.
    No. 72-1704.
    United States Court of Appeals, Ninth Circuit.
    March 7, 1973.
    Theodore E. Orliss (argued), Los An-geles, Cal., for appellant.
    David M. Fox, Asst. U. S. Atty. (argued), Elliott H. Kajan, Richard J. Trattner, Eric A. Nobles, Asst. U. S. Attys., and William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Before MERRILL and GOODWIN, Circuit Judges, and SKOPIL, District Judge.

       The Honorable Otto R. Skopil, Jr., United States District Judge for the District of Oregon, sitting by designation.

   SKOPIL, District Judge:

Appellant was indicted on five counts of violating selective service regulations, 50 U.S.C. App. § 462. The jury acquitted him of the first two but convicted him of the third. The Government dismissed the last two. The third count charged the appellant with failing to keep his local board advised of the address where mail would reach him during the period of July 13, 1970, to January 7, 1971.

On February 16, 1966, appellant registered with his local board in Downey, California. On April 4, 1966, he gave the board his current mailing address, and R. C. Bryant, his grandfather, as the person other than a member of his household who would always know his address.

In November of 1969, the appellant left for Hawaii. In May, 1970, the draft board sent out a number of letters to different people trying to find him. The board received replies stating appellant was often with his sister, Mrs. Bernard Wylie, 1130 Hassinger Street, Apartment No. 2D, Honolulu, Hawaii, and included the sister’s telephone number.

In the interval, on May 18, 1970, the appellant completed a current information questionnaire and delivered it to the Honolulu draft board. It was received by his own board in California on May 20. He gave his address as Apartment No. 21, 264 Kaiulani, Honolulu, Hawaii. He indicated the person who would always know his address was his sister, Sandy Wylie, of 1120 Hassinger Street. He also gave the address of his employer, Kai Kahini, Hawaii Real Estate, Waikiki Suite 206, 667 Ala Moana, Honolulu, Hawaii.

On July 6, 1970, his board sent to the Kaiulani Street address an order to report for a physical examination. This order was returned by the post office. On July 14, the board sent a letter to appellant and another letter to his sister, both addressed to Apartment No. 20, 1130 Hassinger Street, Honolulu. The letter to appellant was returned to the board, although the one to his sister was not. On August 13, 1970, the board sent another letter to the sister requesting information about appellant. .There was no response to this letter. Also on August 13, the board wrote the manager of the Kaiulani Street apartment, appellant’s mother and his grandmother. The only response was from the two relatives who indicated they did not know appellant’s whereabouts and did not know anyone who did.

On November 12, 1970, appellant was classified 1-A, and a letter informing him was sent to the Kaiulani Street address. It was returned by the post office. On November 23, another communication was sent to the Kaiulani Street address. It, too, was returned. On De-cember 29, 1970, the board sent an order to report for induction to the Kaiulani Street address, and it was returned.

On February 23, 1971, appellant wrote the board inquiring about his draft status and gave a new address.

Count III of the indictment is based upon 32 C.F.R. § 1641.3, which provides in pertinent part:

“It shall be the duty of each registrant to keep his local board advised at all times of the address where mail will reach him.”

There is no question that appellant did not and could not receive mail at the Kaiulani Street address during the period charged in the indictment. By his own testimony, he was there only a few weeks after having given the address to the draft board.

The failure to furnish the draft board with a home address does not constitute a violation of the regulation with which the appellant was charged. United States v. Munns, 457 F.2d 271 (9th Cir. 1972). A registrant is not required to report his every move to the board. He is required to provide a suitable means for being reached by the board. Bartchy v. United States, 319 U.S. 484, 63 S.Ct. 1206, 87 L.Ed. 1534 (1943); United States v. Ebey, 424 F.2d 376 (10th Cir. 1970).

The board never attempted to contact the appellant or his sister at the 1120 Hassinger Street address furnished by him. Instead, all mail went to the 1130 Hassinger Street address. It is impossible to conclude that mail would not have reached him at the 1120 Hassinger Street address in the absence of any evidence that mail was, in fact, sent to that address. There was uneontradicted evidence that appellant was in frequent contact with his sister during this period.

The Government contends that since it relied on the 1130 number supplied by others, it was excused from trying the 1120 number furnished by the appellant himself. We reject this proposition.

After the order to report for induction mailed to the appellant’s home address was returned, the local board was required to contract the person who would always know the registrant’s address, or his employer. During the period covered by the indictment, 32 C.F.R. § 1642.41(b) was in effect. It provides in pertinent part:

“In endeavoring to locate and to secure the compliance of a delinquent prior to reporting him to the United States Attorney, the local board should contact the delinquent and the ‘employer’ or ‘person who will always know’ the delinquent’s address, . or any other person likely to know his whereabouts.”

The board must make some compliance with this regulation. United States v. Buckley, 452 F.2d 1088 (9th Cir. 1971); cf. Kokotan v. United States, 408 F.2d 1134 (10th Cir. 1969). Here, the board did not attempt to contact either person at the addresses given by defendant. The board did contact other persons likely to know defendant’s whereabouts; however, these efforts appear to be legally insufficient. Ward v. United States, 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711 (1953), reversing per curiam 195 F.2d 441 (5th Cir. 1952). See also Venus v. United Stated, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961), reversing per curiam 287 F.2d 304 (9th Cir. 1960).

The court below instructed the jury that the law required appellant to furnish the board with his home address. While this is true, the reference is to a different regulation, 32 C.F.R. § 1641.7(c), the violation of which was not charged in the indictment. United States v. Munns, supra; United States v. Neilson, 471 F.2d 905 (9th Cir. 1973). It is possible that the jury may have been confused by this instruction.

The judgment is reversed.

      . The jury acquitted defendant of failing to provide the draft board with the address where mail would reach him during this period.

      . The sister did not testify.

      . This regulation, along with the rest of part 1642, was revoked effective Decem-ber 10, 1971, 36 Fed.Reg. 23383 (1971).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Edward J. FISCH, Ivan L. Glasscock, Appellants.
    Nos. 72-2007, 72-2068.
    United States Court of Appeals, Ninth Circuit.
    Feb. 16, 1973.
    Certiorari Denied May 29, 1973'.
    See 93 S.Ct. 2742.

      Edward V. Brennan (argued), of Ferris, Weatherford & Brennan, San Diego, Cal., Philip A. DeMassa (argued), San Diego, Cal., for appellants.
    Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

      Before TRASK and CHOY, Circuit Judges, and TALBOT SMITH, District Judge.

       Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, Sitting by Designation.

   PER CURIAM:

The case before us involves eavesdropping, not by the use of electronics or artificial means, but in the traditional “listening at the keyhole” sense. The convicted defendants were in a motel room and the agents listened from an adjoining room as the operation was discussed. The principal argument of appellants is that their right of privacy was thus invaded.

The appellants were charged in a four count indictment with, count one, conspiring to import, count two, importing, count three, conspiring to possess with the intention of distributing, and count four, possessing with the intention of distributing approximately 70 pounds of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, 960 and 963. After trial to the Court, appellant Fisch was found guilty on all four counts, and appellant Glasscock on counts one, two and three, but not guilty on count four. The case below is reported sub nom. United States v. Perry, 339 F.Supp. 209 (S.D.Cal., 1972).

The modus operandi was somewhat unusual. The marijuana was dropped from an airplane onto an area west of Vulcan Mountain, near the Santa Ysabel Indian Reservation. The drop area was marked by flares. These flares were observed by a retired California Division of Forestry ranger, Mr. Tobin, who stopped to investigate. As he approached, he observed two cars nearby, and two men. One asked if he was from the garage. He answered that he was not and inquired as to their “problem.” He was told they had a flat tire and trouble underneath the car. Unable to observe any flat, he took the license numbers of the cars, obtained the names of the men, Glasscock (appellant herein) and Thorpe, and suggested that they might obtain mechanical assistance at the Santa Ysabel Standard station. After telling them to extinguish the flares, he left the area. On the following day, September 24, this information was given to Deputy Sheriff Gene Cowley, of the San Diego County Sheriff’s Office. At the same time Deputy Cowley received another report. This, from Wayne and Larry King, residents of the Santa Ysabel Indian Reservation, was delivered by one of the Santa Ysabel Mission Tribe, Anthony Taylor. The message was that a red and white airplane had been observed circling in the area of Vulcan Mountain and that it had dropped two objects during one of its passes. This had occurred at about the same time that Tobin had encountered the burning flares.

In patrolling the area of the aircraft drop immediately thereafter, Cowley observed the same Ford van previously described to him by Tobin travelling very slowly down the highway. The back end of the van was dirty and the license could not be read. A tail light was defective. Cowley stopped the van and asked the occupants (Glasscock and Thorpe) to produce identification. Indiana driver’s licenses were produced, as well as a California registration, Glass-cock stating that they had borrowed the van from a Sacramento friend, James Nash. As Cowley was running a name check on the occupants, he asked permission to check the van further, which was given by Glasscock, the driver. Under the right front seat Cowley observed an aerial navigation map. It was opened to expose the Julian Omni station on Vulcan Mountain, and on it a line had been drawn from the Vulcan site northwest, intersecting Highway 79 at the point of the suspected air drop, near where the van had been observed by Ranger Tobin on the previous evening. Upon the completion of the name check the van was released.

Later that day Cowley was informed that Larry and Wayne King, who had observed the plane circling the day before, making the drop, had found a duf-fle bag containing 13 kilos of marijuana on top of Vulcan Mountain. This bag had been turned over to Border Patrol Agents in the area. Two days later a second duffle bag was found by the tribesman, Anthony Taylor. A few minutes after making the find Taylor encountered three unidentified males who told him they were there for fishing. He told them they were trespassing on Indian land and the bag was delivered to Deputy Cowley.

Again, on September 28, 1971, Deputy Cowley observed the Ford van parked off the highway near the area of the drop. No one was observed nearby but the engine was warm. Upon resuming patrol, he later observed the van on the highway. The license plate was still dirty and the tail light still defective. Glasscock showed Cowley a receipt for work done on the van and he was merely warned, not cited, upon his promise to make the necessary repairs. It was ascertained at this time also that the men were staying at the Holiday Inn Motel, Mission Valley. This information had been requested by Cowley’s superiors and was transmitted to them.

Deputy Sheriff Perkins was then assigned to the Holiday Inn, Mission Valley. He learned from the motel clerk that Glasscock and Thorpe were registered in Room 514. Perkins requested an adjoining room but none was available, so he registered in 508. Upon the Deputy’s request, and upon being informed that a smuggling investigation was underway, the motel clerk moved Glasscock and Thorpe to room 506 (adjacent to 508), upon the excuse that others had prior reservations on their room.

Aural surveillance was then begun. An attempt was made to use a suction cup electronic device but it was defective and nothing intelligible could be heard from it so its use was abandoned. All relevant conversations were heard by the naked ears of the officers. Some of the conversation was so loud that it was heard by an agent sitting on the bed in the middle of the room, specifically in part, the questioning of Fisch, the pilot, by Glasscock as to his speed when he made the drop. Other parts were heard by listening prone at the door, lying some six or eight inches away from a crack between door and carpet, leaving “room for your notebook to take notes.” There was talk of drug usage, of the “specific deal,” the problems they had had, the “trouble finding the stuff in the area” and how “they had been hassled by the Sheriffs in the area, and the Indians and the Ranger.” Glasscock indicated that the next time “they were going to do a little bit more research into the area.” He also telephoned one “Don” for help in locating the marijuana, arrangements being made for three more men to assist in the search. In short, there was ample disclosure and admission of the criminal smuggling operation then and there under execution. Arrests of the occupants of Room 506 were made immediately after the telephone call to “Don,” and of the three men upon their arrival.

Against this overwhelming array of evidence, the appellants assert to us, as defendant Fisch puts it, that there has been a “gross invasion of privacy,” or in the words of appellant Glasscock, a “sad and shocking disregard for appellant’s constitutional right of privacy.” In addition, complaint is made of the stop and search of the Ford van on the morning of the 24th, and of the information and evidence obtained as a result of the second stop of the Ford van on September 28. We will consider the vehicle questions before proceeding to the privacy issue.

On the morning of September 24, it was obvious that activities of a highly suspicious nature were underway. By this time the passes of the circling airplane were known to Cowley, the drops from the plane, the flares burning in the field, and the presence of Glasscock and Thorpe, with their non-observable flat tire. Consequently, when Cowley, patrolling in the area of the observed drop, encountered the same van as had Tobin the day before, proceeding very slowly down the highway with its license plate obscured and a defective tail light, he was under a duty to stop the car. The occupants were questioned, identities sought to be established, names were obtained and a “name check” was made. While waiting for the results of the check, permission was asked and, the trial court found, granted to “look inside and check your van.” The reason for the search was Cowley’s reasonable unease about the situation presented. “The registered owner wasn’t either occupant,” he stated. “They were from Indiana. The van was registered in California, and they didn’t have any written permission to have the vehicles, and I wanted to look further.” The limited search made disclosed the aircraft navigation map marked as described above. When the “names came back checked all right” the men were released.

With respect to the stopping of the Ford van, the validity of the detentions and actions involved is governed by the State law, subject, of course, to constitutional standards. Wartson v. United States, 400 F.2d 25 (9th Cir. 1968), cert. denied 396 U.S. 892, 90 S.Ct. 184, 24 L.Ed.2d 166 (1969). The California Vehicle Code, § 2805, provides in part:

A member of the California Highway Patrol may inspect any vehicle . . . on a highway . . . for the purpose of locating stolen vehicles, investigating the title and registration of vehicles . . .

Under the applicable state law, the validity of a temporary detention by a peace officer for investigation and questioning is summarized in the case of People v. Henze, 253 Cal.App.2d 986, 61 Cal.Rptr. 545 (1967). Required is a rational suspicion on the part of the officer that something out of the ordinary is taking place, that there is “some indication” to connect the person under suspicion with such activity, and, of course, that such activity is related to crime. The Federal constitutional standard is found in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The ultimate question for resolution in each instance is whether the action taken by the officer was appropriate, tested not by the hunch of the officer, seasoned though he may be, but by an objective standard, namely whether the facts available to the officer at the moment of the seizure (or search) would warrant a man of reasonable caution in the belief that the action taken was appropriate to the situation there presented.

Looking to both the State and the Federal standards, it is obvious that they have been amply met. Something unusual, suspicious indeed of criminal activity, was taking place in this area and Glasscock and Thorpe were involved in it. The stop and search of the Ford van was justifiable and lawful. All statements and evidence resulting from the detention were properly admissible.

We have discussed the above issues at some length in deference to the zeal of counsel. It should be observed, however, that we find nothing in the record that would warrant our reversal of the District Court’s finding that Glasscock, in fact, consented to the limited search made.

We turn now to the second stop of the Ford van, that on September 28. By this time it was known that the packages dropped from the plane contained marijuana. Glasscock and Thorpe were still roaming around in the area with their fishing gear. Their vehicular defects were still uncorreeted. Under the totality of the circumstances there was now probable cause for arrest. The most vigorous representation to us at this point is that the real reason for the stop was to obtain the local address of the suspects. Under these circumstances we are not disposed to weigh the motives of the officers, to categorize, as appellants would have us do, into principal and secondary reasons for the stop, some of which are concededly good, others allegedly bad. There was in fact at this point reasonable grounds for further inquiry, questioning as to continued presence in the area, residence therein, reasons for not bringing the vehicle into compliance with the law, and other relevant and pertinent inquiries. There was nothing arbitrary, capricious, or unlawful in the officer’s actions at this point. The holding in Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), is peculiarly applicable at this point:

We take it as settled that there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not justifying an arrest, for purposes of limited inquiry in the course of routine police investigations. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960); Busby v. United States, 296 F,2d 328 (9th Cir. 1961). A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing [361 F.2d at 415].

It is our conclusion, also, with respect to the second stop of the Ford van, that it was lawful and that all statements and any evidence obtained therefrom are admissible.

Coming now to privacy, there are several things this case is not, and it would be well to note them at this point. We have no telephone tap here. We have no bugging by electronic means. We have

no trespass. The officers were exercising their investigative duties in a place where they had a right to be and they were relying upon their naked ears. So using their natural senses, they heard discussion of criminal acts. What was heard, however, was expressed by speakers who insist that they were justifiably relying upon their right of privacy, who sought to keep their conversation private, who “did not expect that law enforcement officers would be located just a few inches away from the crack below the door connecting the two adjoining rooms,” and who thus conclude that “If one justifiably relies on his privacy any eavesdropping constitutes a search and seizure within the meaning of the Fourth Amendment.”

It is true, as appellants point out, that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), holds that “The Fourth Amendment protects people not places,” but this is not a rule of decision. Actually it is the Court’s expression of the rationale of decision, that the property concepts so long governing, substantially, decision as to unreasonable search no longer control. In short, this particular phrase, which is cited to us again and again, expresses little more than a rejection of the trespass rule. It does not tell us what people are protected, when they are protected, or why they are protected.

But it is clear from Katz that for' suppression of overheard speech the speaker must have “justifiably relied” on his privacy. As the concurring opinion of Mr. Justice Harlan makes clear, the concept of justifiable reliance involves both subjective and objective aspects. There must, first of all, have been a reliance on, an actual and reasonable expectation of, privacy. But beyond the individual’s expectations, the needs of society are involved. The individual’s subjective, self-centered expectation of privacy is not enough. We live in an organized society and the individual’s expectation of privacy must be justifiable, “one that society is prepared to recognize as ‘reasonable.’ ”

The statements before us fail of suppression on both aspects. As Mr. Justice Harlan points out, concurring, “ [Statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” Here the conversations complained of were audible by the naked ear in the next room. True the listening ear was at the keyhole, so to speak, but another listening ear was also, at one time, on the bed in the middle of the room, where was heard the pilot’s story. Appellants would have us divide the listening room into privileged or burdened areas, and the conversation into degrees of audibility to, we presume, the normal ear, thus a remark heard on the bed arguably admissible, but not those heard at the door, a loud remark admissible, arguably one uttered in “normal” tones, but definitely not one whispered. We find no precedent for a categorization involving such hair-splitting distinctions and we are not disposed to create one.

Listening at the door to conversations in the next room is not a neighborly or nice thing to do. It is not genteel. But so conceding we do not forget that we are dealing here with the “competitive enterprise of ferreting out crime.” The accomplishment of the move of the defendants’ room to one more accessible for surveillance violated no constitutional right of the appellants. They could, had they wished, refused the transfer. The officers were in a room open to anyone who might care to rent. They were under no duty to warn the appellants to speak softly, to put them on notice that the officers were both watching and listening. Their means of observation was not improper. In fact, they did not, with their naked ears, “intrude” upon the appellants at all. If intrusion there was it was, at times, the other way around, as anyone who has weathered the night in a motel room as the occupants next door partied and argued will bear ready witness.

The objection aspect of justifiable reliance, that the expectation be one recognized as reasonable by the current society, bars the bizarre, the freakish, and the weird expectations. A recent perceptive study poses the hypothetical of two narcotics peddlers who have chosen to rendezvous for an illegal transaction in a desolate corner of Central Park in the middle of the night and are surprised by a passing patrolman’s haphazard illumination of their transaction. Their expectation of privacy was undoubtedly reasonable. Yet whether their expectation would be constitutionally enforced would depend upon the social considerations involved, or, in the words of Mr. Justice Harlan, whether “the expectation be one that society is prepared to recognize as ‘reasonable.’ ”

The test applied as to society’s tolerance of the search rests, as it has for years, upon “the facts and circumstances — the total atmosphere of the case.” There is no ready formula, “each case is to be decided upon its own facts and circumstances.” What we undertake, actually, is a balancing process, a weighing of the social factors involved. Or, as Judge Duniway put it in the pre-Katz case of Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), cert. denied 382 U.S. 981, 86 S.Ct. 555, 15 L.Ed.2d 471 (1966), “The public interest in its privacy, we think, must, to that extent, be subordinated to the public interest in law enforcement.”

Here, on the one hand, there is no doubt that society invests a hotel room, transient though its occupancy may be, with that special character of intimacy justifying its characterization as a private place. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962), cited in United States v. Hitchcock, 467 F.2d 1107 (9th Cir. 1972). The “place,” though its ownership or possession no longer controls, remains as an element for our consideration under the Katz ruling. We consider, as well, the non-trespassory origin of the information received, the absence of artificial means of probing, with their potentialities for the wide-spread dissemination of total revelation, the gravity of the offense involved, here the smuggling of contraband. The type of information received from the aural surveillance is a factor to be considered in attempted delineation of the limits “of what society can accept given its interest in law enforcement,” whether society can “reasonably be required to honor that expectation [of privacy] in all cases.” The degree of probable cause before us is high, there being reasonable cause for the police to believe that the room in question was being used in aid of a criminal venture.

Upon balance, appraising the public and the private interests here involved, we are satisfied that the expectations of the defendants as to their privacy, even were such expectations to be considered reasonable despite their audible disclosures, must be subordinated to the public interest in law enforcement. In sum, there has been no justifiable reliance, the expectation of privacy not being “one that society is prepared to recognize as ‘reasonable.’ ”

Affirmed.

      . This section of the Code has been held to apply to peace officers generally. People v. Brown, 4 Cal.App.3d 382, 84 Cal.Rptr. 390 (1970).

      . Katz v. United States, supra, at 351, 88 S.Ct. at 511.

      . Id., at 353; 88 S.Ct. 507.

      . Id., at 361, 88 S.Ot. at 516.

      . Id. See also, Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969).

      . “ [I] t would seem rather arbitrary to draw a constitutional line between the whisper and the shout.” People v. Guerra, 21 Cal.App.3d 534, 98 Cal.Rptr. 627 (1971).

      . Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

      . “The enforcement of the criminal law is not, however, a mere sporting game, and the hunters, as well as the hunted, have their problems.” United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971).

      . Pope, J., concurring in Smayda v. United States, 352 F.2d 251 (9th Cir. 1965).

        . Sometimes phrased as “reasonable and legitimate expectation of privacy,” United States v. Missler, 414 F.2d 1293 (4th Cir. 1969).

      . “From Private Places to Personal Privacy: A Post-Katz Study of Fourth Amendment Protection,” 43 N.Y.Univ.L.R. 968 (1968).

      . 389 U.S. at 361, 88 S.Ct. at 516.

      . United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

      . Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931).

      . See also Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), giving (in a search warrant situation) “full recognition to the competing public and private interests.” See, also, State v. Smith, 37 N.J. 481, 181 A.2d 761, cert. denied 374 U.S. 835, 83 S.Ct. 1879, 10 L.Ed.2d 1055 (1963), quoted in People v. Berutko, 71 Cal.2d 84, 77 Cal.Rptr. 217, 453 P.2d 721 (1969), “But it is the duty of a policeman to investigate, and we cannot say that in striking a balance between the rights of the individual and the needs of law enforcement, the ITourth Amendment itself draws the blinds [to the window] the occupant could have drawn but did not” (Italics 77 Cal.Rptr. 222, 453 P.2d 726).

      . “As the Court’s opinion states, ‘the Fourth Amendment protects people not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ ” 389 U.S. at 361, 88 S.Ot. at 516, Harlan, J., concurring.

      . See Fried, “Privacy,” 77 Yale L.J. 475 (1968).

      . Remington, “Criminal Justice Administration,” 73, “Each of the methods which police may use in collecting evidence of crime has its own problems — problems of effectiveness, of intrusiveness, of interference with innocent people, of susceptibility to regulation. The seriousness of the criminal conduct may affect the degree to which people will tolerate intrusive detection techniques.”

      . 82 Harv.L.R. 63 (1968).

      . Cf., Smayda v. United States, supra.

      . Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507.

      . Id., at 361, 88 S.Ct., at 516, Harlan, J., concurring.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carson Eugene TYLER, Defendant-Appellant.
    No. 72-3045
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.
    Rehearing Denied March 29,1973.

      John McGuigan, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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:

Carson Tyler was convicted after a jury trial in federal district court of receiving and possessing property with a value in excess of $100 which had been stolen from a federally insured savings and loan association, in violation of 18 U.S.C. § 2113(e). The stolen property in question consisted of unsigned travelers’ checks with a face value of $4,000. The prosecution attempted to prove at the trial that Tyler was instrumental in arranging and carrying out the transfer of the stolen checks to one Harvey Allen Ward, who then passed them to John Harold. Harold cashed several of the checks for their face value of $400. Tyler contends on this appeal that: (1) the evidence was insufficient to show that the stolen property had a value in excess of $100; (2) the trial court erred in failing to instruct the jury on the standard to be used in measuring value; (3) the evidence was insufficient to show that he had possessed the stolen property. We affirm the conviction.

The burden of proving the value of the stolen property was, of course, on the government. United States v. Bryant, 4 Cir. 1971, 454 F.2d 248. Tyler stresses that he did not cash the checks, and that there is no evidence that he himself expected to realize any profit from them. He argues that the checks had no fixed value whatever until the person cashing them actually signed them. He asserts that, as far as he knew, the parties to whom he allegedly supplied the checks might have intended to sell them on the underworld market, or otherwise dispose of them, for a sum of less than $100.

Value may be proved by circumstantial evidence. Jalbert v. United States, 5 Cir. 1967, 375 F.2d 125. The evidence of value in this case was sufficient to support the jury’s verdict. The travelers’ cheeks had a fixed face value, and thus at least a potential worth, of well in excess of $100. This in itself is persuasive evidence that their value exceeded $100. See Churder v. United States, 8 Cir. 1968, 387 F.2d 825, 833. Moreover, the conduct of the parties to this transaction strongly suggested that all of them understood that the checks would be cashed for their face value. Harold, who actually cashed the checks, expected to realize between $1,500 and $1,800 from his activities. In view of the evidence introduced by the government that Tyler met with Ward and arranged the transfer of the checks to Harold, and that Harold was to contact Tyler after he disposed of the checks, the jury could have concluded justifiably that Tyler, as well as the other parties, knew that the checks would be worth more than $100. See United States v. Bullock, 5 Cir. 1971, 451 F.2d 884; Jalbert v. United States, supra.

Tyler also objects to the trial court’s failure to instruct the jury as to what standard — face value or possible value on the thieves’ market — they should apply in assessing the value of the checks. He failed to raise this objection below, however. Given the clear evidence that the checks in fact had and were considered by all parties as having a value of more than $100, the court’s failure to give specific instructions on measuring value was not plain error. United States v. Devall, 5 Cir. 1972, 462 F.2d 137, 143.

Tyler’s contention that he never possessed the stolen checks required him to explain the presence of one of his fingerprints on the back of one of the checks. At the trial he introduced two witnesses, the Feins, who testified that the checks were handed to Tyler at a party, apparently in fun, and that he immediately handed them back. Tyler also seeks to explain testimony that he physically carried the package of cheeks to Ward by asserting that he was an innocent messenger.

On the basis of all the evidence, however, the jury could reasonably conclude that Tyler was something more than an innocent participant in this transaction. The jury was free to disbelieve the testimony of the Feins and draw an inference of actual possession from the presence of Tyler’s fingerprint on the cheek. Stoppelli v. United States, 9 Cir. 1950, 183 F.2d 391, cert. denied, 1950, 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631. Furthermore, given the testimony that Tyler had pre-arranged the actual transfer of the cheeks with Ward and that Harold was to contact Tyler after disposing of the checks, the jury had adequate evidence on which to base a finding of constructive possession. See United States v. Virciglio, 5 Cir. 1971, 441 F.2d 1295; Feinstein v. United States, 8 Cir. 1968, 390 F.2d 50, 54, cert. denied sub nom. Jackson v. United States, 1968, 392 U.S. 943, 88 S.Ct. 2327, 20 L.Ed.2d 1405.

The judgment of the district court is affirmed.


author: HASTINGS, Senior Circuit Judge.

text:
    The HOME INDEMNITY COMPANY, Plaintiff-Appellee, v. TWIN CITY FIRE INSURANCE COMPANY and Parker G.M.C. Truck Sales, Inc., Defendants-Appellants.
    No. 71-1671.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 30, 1972.
    Decided March 9, 1973.

      Emerson Boyd, E. Davis Coots, Indianapolis, Ind., for defendants-appellants.
    Evan Steger, Indianapolis, Ind., for plaintiff-appellee.
    Before HASTINGS, Senior Circuit Judge, CAMPBELL, Senior District Judge, and MORGAN, District Judge.

       Honorable William J. Campbell, Senior District Judge, Northern District of Illinois, and Honorable Robert D. Morgan, Chief Judge, Southern District of Illinois, are sitting by designation.

   HASTINGS, Senior Circuit Judge.

The Home Indemnity Company (Home) brought this diversity declaratory judgment action against Twin City Fire Insurance Company (Twin City), Parker G.M.C. Truck Sales, Inc. (Parker Truck), Oley Thorpe and Mary Cook. It sought thereby to determine whether Home or Twin City insured Rex L. Imlay, the driver of a certain 1966 Mack tractor at the time it was involved in an accident in Indianapolis, Indiana. This question, in turn, is answered by determining who owned the Mack truck at the time of the accident.

Home was the liability insurance carrier for Imlay’s employer, Bodge Lines, Inc. (Bodge), which was engaged in the trucking business. Frank A. Price was president of Bodge, and Imlay was employed as a mechanic.

Twin City was the liability insurance carrier for Parker Truck, which was engaged in the business of selling new and used trucks. Parker Truck employed Joseph A. Burke as a salesman and William Amos as a truck driver.

Sometime prior to March 24, 1969, Burke contacted Price for the purpose of selling Bodge a new 1969 G.M.C. Model 30T tractor. These negotiations contemplated that, as part of the purchase price, Bodge would trade to Parker Truck a 1966 Mack tractor which it owned, the certificate of title to which was held by a lien holder in Chicago. It was further agreed as a part of the negotiations that Bodge might remove some new tires from the trade-in Mack truck and replace them with used tires. On March 24, 1969, prior to 10:00 A.M., Bodge and Parker Truck, through their representatives, Price and Burke, respectively, came to an oral agreement concerning the purchase price which Bodge was to pay Parker Truck for the new 1969 G.M.C. tractor, and that Parker Truck would pay the lien balance owed on the trade-in vehicle.

At about 10:00 A.M., Burke went to the premises of Bodge, at which time Price, on behalf of Bodge, executed a conditional sales contract for the purchase of the new 1969 tractor; and an invoice for the same was delivered to Bodge. By this time Bodge had the new 1969 tractor in its possession. The exchange of tires on the trade-in vehicle had not yet been accomplished.

At about 1:00 P.M. the same day, Burke and Amos went to the Bodge premises to pick up the trade-in vehicle and transport it to the premises of Parker Truck. Imlay advised them he had not yet completed the exchange of tires. Burke said he would not be able to return that day, and Imlay then volunteered to drive the trade-in vehicle to the premises of Parker Truck after he had completed the exchange of the tires. Burke said that would be all right.

Imlay completed the exchange of tires at the Bodge premises and about 4:30 P.M. was driving the Mack trade-in to the Parker Truck premises. En route he was involved in an accident with defendants Oley Thorpe and Mary Cook. The Mack tractor, damaged in the collision, was later removed to the Parker Truck premises. Parker Truck subsequently had it repaired at its own expense, paid the balance owing to the lien holder, received the certificate of title and resold the repaired Mack tractor. Parker Truck made no claim that the damage to the trade-in vehicle required an adjustment to the contract.

All of the foregoing facts were found by the trial court and are fully supported by the record before us. They are not clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure, Title 28, U.S.C.A.

Defendants Oley Thorpe and Mary Cook have filed actions seeking recovery of damages for alleged personal injuries and property damage as the proximate result of the alleged negligent operation of the 1966 Mack tractor by Imlay.

The instant cause was submitted to the trial court upon a joint stipulation, without a hearing, upon the pleadings, the depositions of Imlay, Burke and Price and the respective insurance policies of Home and Twin City. The stipulation further provided:

“ * * * the sole issue for determination is whether said plaintiff or said defendant insures one Rex Imley for his liability, if any, arising out of an accident which occurred on March 24, 196S and out of which said accident claims have been presented by defendants Oley Thorpe 'and Mary Cook.
“ * * * there is a single issue of fact which will be determative [sic] of this question, to wit: Was the vehicle driven by said Rex Imley, at the time of the accident in question, ‘owned’ by Bodge Lines, Inc. (insured by The Home Indemnity Company), or by Parker GMC Truck Sales, Inc. (insured by Twin City Fire Insurance Company) ?”

Defendants Oley Thorpe and Mary Cook disclaimed any interest in the action and declined to participate.

The trial court, upon consideration of the record as stipulated and briefs by the parties in lieu of oral argument, found the facts as above set out favorable to Home. The court further found that the trade-in Mack tractor was owned at the time of the collision by Parker Truck and that ownership was acquired at the time of the execution of the contract the morning of March 24, 1969, as a partial payment by Bodge for the new G.M.C. truck. The court further found that the arrangement between Burke and Imlay for the delivery of the Mack tractor was made at a time when the vehicle was owned by Parker Truck and was not authorized by Bodge. The court finally concluded that Imlay was not insured by Home but rather was insured by Twin City, and it rendered judgment favorable to Home and adverse to Twin City.

Twin City and Parker Truck alone have appealed. We affirm.

The burden of appellants’ appeal is their contention that the trial court erred as a matter of law in finding that the title to the trade-in vehicle had passed from Bodge to Parker Truck before the vehicle left the premises of Bodge. They rely upon certain sections of the Uniform Commercial Code as authority for their claim.

Whether this challenged action of the trial court was a conclusion of law, a finding of fact or a mixed question of law and fact is not determinative of this appeal, and we shall not fashion a label for it. The parties stipulated and agreed “that there is a single issue of fact which will be determative [sic] of this question, to wit: Was the vehicle driven by said Ray Imley, at the time of the accident in question, ‘owned’ by Bodge Lines, Inc. (insured by The Home Indemnity Company), or by Parker GMC Truck Sales, Inc. (insured by Twin City Fire Insurance Company) ?” (Emphasis added.)

It is undisputed that the purchase and sale of a motor vehicle is a transaction involving goods governed by Article 2 of the Uniform Commercial Code, Ind.Code § 26-1-2-101, et seq. (1971). We are concerned here with the sale of the new G.M.C. truck by Parker Truck to Bodge and the trade-in of the Mack tractor by Bodge to Parker Truck. Each party to the transaction is the “seller” of the goods it is to deliver. U.C.C. § 2-304(1), Ind.Code § 26-1-2-304(1) (1971), provides: “The price can be made payable in money or otherwise. If it is payable in whole or in part in goods each party is a seller of the goods which he is to transfer.” Hence, both parties agree that Bodge is the “seller” of the trade-in vehicle.

Again, the parties agree that the place for delivery of the trade-in vehicle is governed by U.C.C. § 2-308, Ind.Code § 26-1-2-308 (1971), which provides, in relevant part: “Unless otherwise agreed * * * the place for delivery of goods is the seller’s place of business or if he has none his residence * * Hence, “unless otherwise agreed,” the place for delivery of the trade-in vehicle was Bodge’s place of business.

Concerning the passage of title, U.C.C. § 2-401(2), Ind.Code § 26-1-2-401(2) (1971), provides: “Unless otherwise explicitly agreed title passes to the buyer [Parker Truck] at the time and place [Bodge’s place of business] at which the seller [Bodge] completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place * * * ”

Relevant to the tender of delivery of the trade-in vehicle, appellants cite U.C.C. § 2-503(1), Ind.Code § 26-1-2-503 (1) (1971), which states, in relevant part: “Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition and give the buyer any notification reasonably necessary to enable him to take delivery.”

Based upon the foregoing sections of the Uniform Commercial Code, appellants advance the following line of reasoning. When Parker Truck sought delivery of the trade-in vehicle at Bodge’s place of business, the trade-in unit was not prepared for tender of delivery because the substitution of the used tires for the new tires had not been accomplished. At that time the parties orally agreed through their respective employees, Burke and Imlay, to change the place of delivery from Bodge’s place of business to Parker Truck’s. Since Bodge was unwilling to tender the trade-in vehicle at that time the “otherwise” agreement of § 2-308 was made. Finally» appellants argue, since Bodge had not completed the physical delivery of the vehicle at the time of the accident, and since the accident occurred while the tractor was being operated by an employee of Bodge en route to Parker Truck’s premises, in performance of the changed agreement as to delivery, title had not passed to the buyer but remained in the seller. Hence, appellants conclude, Home was obligated to defend and pay on behalf of Imlay any liability found against him. We disagree.

The trial court found as a fact that when Burke and Amos called at Bodge’s for the trade-in vehicle to take delivery and transport it to the premises of Parker Truck they were told by Imlay that he had not completed the tire exchange; that Burke said he could not return that day; that Imlay then volunteered to drive it for them when it was ready; and that Burke said that would be all right. We cannot fault this finding of fact. Imlay was driving as a volunteer to accommodate Burke and Amos, rather than as a Bodge employee under a new agreement as to place of delivery which would have affected ownership of the vehicle. Further, our reading of Price’s deposition indicates that he never authorized Imlay or any other employee to make delivery of a truck at any place other than Bodge’s premises.

As earlier set out, the trial court found as undisputed facts that, after the accident in question, the damaged trade-in vehicle was removed to the premises of Parker Truck; it was repaired by Parker Truck at its own expense; Parker Truck paid the balance owing on it to the lien holder and later resold the repaired tractor; and no adjustment was made to the contract between the parties because of the damage sustained by that vehicle. Burke’s . deposition shows that when asked whether any such adjustment had been made, he replied, “No, we had already made the deal.”

It seems clear to us, as it was to the trial court, that Parker Truck by its own course of conduct placed its mark of approval on the meaning of the agreement of the parties by completing its performance in a manner consistent with the transfer of ownership to it prior to the accident in question.

We have examined the authorities cited by appellants concerning passage of title and ownership upon or after physical delivery of goods sold. We are not persuaded that they are inconsistent with the result reached here. This case is limited to and controlled by the factual situation present here.

We hold that the factual findings of the trial court are not clearly erroneous and that the conclusions reached below are proper and correct. In short, we have determined that the correct result was reached, and the judgment appealed from is affirmed.

Affirmed.


author: HOLLOWAY, Circuit Judge.

text:
    Earl ROBINSON, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1140.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 22, 1972.
    Decided March 9, 1973.

      Duncan J. Cameron, Denver, Colo., for plaintiff-appellant.
    Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., with him on the brief), for defendant-appellee.
    Before SETH, HOLLOWAY and BARRETT, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Appellant was convicted in April, 1968, on a guilty plea in the district of Kansas to a charge of bank robbery and putting in jeopardy the lives of bank officers by use of dangerous weapon. 18 U.S.C.A. § 2113(a), (d). The court found that appellant was 19 years of age and suitable for handling under the Federal Youth Corrections Act, 18 U.S.C.A. §§ 5005-5024. The court also found that appellant might not be able to derive maximum benefit from treatment prior to the expiration of six years from the date of conviction, 18 U.S.C.A. § 5010(c), and committed him to the custody of the Attorney General for treatment and supervision for 18 years or until discharged by the Federal Youth Corrections Division. 18 U.S.C.A. § 5017(d).

In November, 1971, appellant moved to vacate his sentence under 28 U.S.C.A. § 2255 on several grounds discussed below. The trial court concluded that the files and records showed conclusively that appellant was entitled to no relief and dismissed the action in December, 1971, without a hearing.

This appeal from that judgment is essentially grounded on contentions that appellant was not properly advised of the consequences of his plea; that counsel was ineffective; that the sentence imposed was contrary to the Youth Corrections Act’s procedural provisions and intent; that there was no factual basis or proper finding for the sentence under the Act; and that his sentencing and processing and his incarceration at the penitentiary at Marion, Illinois, were and are unlawful under the Act. We agree with the trial court’s conclusion that the contentions did not entitle appellant to relief and affirm.

First, appellant argues that neither the trial court nor his counsel advised him properly of the consequences of his guilty plea. Therefore he says the plea and conviction are invalid under Rule 11, Fed.R.Crim.P. On brief before us the appellant relies heavily on the trial court’s failure to advise him of possible sentencing under the Youth Corrections Act. His § 2255 motion alleged that he was told “he would receive the (Youth Act) understood to be, a six (6) year maximum. [Sic]”

The arraignment record does not show mention of sentencing under the Youth Corrections Act before the plea was accepted. Our record shows no reference to such sentencing until the sentencing proceeding about a month after the plea. It was then first brought up in the statement on appellant’s behalf by his attorney just before sentence was imposed. The attorney asked the court “ . . .to give some very sober consideration to placing this lad under the provisions of the Youth Corrections Act.”

Nevertheless, the arraignment record shows that before the guilty plea was accepted the trial court had personally addressed the appellant to ask if he understood a plea of guilty admitted the facts alleged in the count, waived the right of trial by jury and subjected him to punishment within the limits fixed by law, to which appellant answered “Yes.” He was also asked whether he understood that the maximum term of imprisonment which might be imposed for violation of “the statutes cited in Count I” (the bank robbery statute) could be imprisonment for as much as 25 years, and appellant answered: “Yes, sir.”

The court next inquired whether any lesser punishment had been held out to appellant if he should plead guilty; whether there had been any promise or inducement whatsoever; and whether appellant had been threatened or abused. Appellant personally answered “no” to all these questions. He also acknowledged knowing what he was charged with and that he had done the acts alleged in the indictment. After these responses the plea of guilty was accepted.

Rule 11, Fed.R.Crim.P., makes clear the trial court’s duty, among other things, of addressing the defendant personally and determining that a guilty plea is made voluntarily with understanding of the nature of the charge and consequences of the plea. One consequence the defendant must be advised of is the maximum sentence that may be imposed on a plea of guilty. Harper v. United States, 368 F.2d 53 (10th Cir.); Chapin v. United States, 341 F.2d 900 (10th Cir.). Where a defendant is sentenced under the Youth Corrections Act to a term potentially longer than the maximum represented to the defendant prior to the plea, such sentence is invalid. Chapin v. United States, supra at 901; see also Harper v. United States, supra, 368 F.2d at 56.

While the arraignment record shows no mention of the Youth Corrections Act before the plea was accepted, appellant was clearly advised by the court of the maximum sentence of 25 years. It is this maximum possible sentence that must be brought home to the defendant. Under either the Youth Corrections Act or the bank robbery statute, the 25-year sentence was the absolute maximum sentence that the court could have imposed. See 18 U.S.C.A. § 5010(c); 18 U.S.C.A. § 2113(d).

The ease bears some similarity to Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133, cert. denied, 397 U.S. 977, 90 S.Ct. 1098, 25 L.Ed.2d 272. There the defendant was advised of a possible sentence under the Act but was not warned nor was he aware that a sentence under it could extend for as long as the period of imprisonment otherwise authorized by law. The court acknowledged that the defendant may well have reasonably assumed that a sentence under the Act would not extend substantially beyond his youth. He was actually sentenced to 20 years under § 5010(c). Nevertheless the court pointed out that he had no guarantee that he would be sentenced under the Act and could have been sentenced to a straight term of imprisonment of up to 45 years. Since he understood he could be sentenced either to a substantial term of imprisonment or to confinement under the Act, Rule 11 was held to have been complied with.

We are likewise satisfied that the Rule was complied with here. The appellant clearly was aware of the nature of the charge and maximum possible sentence. These facts also make untenable the claim that counsel had misinformed the appellant. Appellant acknowledged he understood that the maximum term of imprisonment that could be imposed was 25 years and that his plea subjected him to punishment within the limits fixed by law. Thus appellant was sufficiently aware of the consequences of the plea.

Secondly, appellant contends he was denied effective assistance of counsel. He says his attorney failed to explain the consequences of his plea before it was entered and that the attorney also failed to advise the trial court that the offense was his first felony conviction before sentence was imposed.

We have referred to the record of the arraignment and sentencing proceedings above. They conclusively show that appellant was aware of the maximum sentence and that his plea subjected him to such punishment before his plea was accepted. Regardless of the source of his information, appellant can claim no prejudice from an alleged lack of such information from his attorney.

The complaint that appellant’s counsel failed to advise the court that this was his first felony offense is equally unpersuasive. The sentencing transcript shows that a pre-sentence report was reviewed by the court and also examined by appellant’s counsel before the sentencing proceeding. The trial court referred to numerous details in the report and the history of appellant’s conduct. No reference was made to any prior felony conviction by the court.

The attorney’s statement on appellant’s behalf pointed out that appellant had cooperated with the authorities by testifying in another case. He also mentioned that appellant had had family problems. The attorney urged that he should be considered for a sentence under the Youth Corrections Act instead of a long-term sentence such as at Leavenworth Penitentiary. After this statement by his counsel there was no objection nor attempt by appellant to add any further information.

The retained attorney’s representation of appellant in no way appears inadequate. The specific allegations made would not, in view of this record, show that the representation was a sham or mockery, depriving appellant of his constitutional right to assistance of counsel. See Bruner v. United States, 432 F.2d 931, 933 (10th Cir.). The remaining conclusory averments of ineffectiveness of counsel did not suffice to compel an evidentiary hearing. See Anderson v. United States, 367 F.2d 553, 554 (10th Cir.), cert. denied, sub nom. Reese v. United States, 386 U.S. 976, 87 S.Ct. 1172, 18 L.Ed.2d 137. Thus the charge of inadequacy of counsel was properly rejected by the trial court.

Third, appellant maintains the 18-year sentence imposed was contrary to the Youth Corrections Act’s procedural provisions and intent.

Appellant argues that his 18-year sentence is contrary to the Act’s purposes of treatment and supervision for youth offenders. No authority is submitted that the statute was in any way violated by the sentence imposed. The Act expressly provides that a finding may be made that the youth offender may not derive maximum benefit from treatment prior to expiration of six years from conviction and that on such a finding, the sentence may be “ . . . for any further period that may be authorized by law for the offense . . . .” 18 U.S.C.A. § 5010(c). We see no reason to hold the sentence unlawful in view of the plain terms of the statute.

Appellant also contends that there was no factual basis in the presentence report for the finding under § 5010(c) that appellant might not derive maximum benefit from treatment within the six-year period. He says 18 U.S.C. A. § 5014 required sending him to a classification center for study and a report before such a determination by the court. § 5014 expressly refers to “[ejvery committed youth offender” in prescribing such procedures and thus its mandatory provisions do not apply until after a sentence committing a youth offender under the Act. 18 U.S.C.A. § 5010(e) does provide a discretionary procedure for temporary commitment for observation and study before sentencing, but such a procedure is not required.

We feel that the statutory finding under § 5010(c) was a part of the sentencing function since it is plainly a prerequisite for the specific sentence imposed. And since the sentence was within the maximum range of punishment allowed by law, the finding is not subject to review. See Smith v. United States, 273 F.2d 462, 467 (10th Cir.), cert. denied, 363 U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729; United States v. Kellerman, 432 F.2d 371, 376 (10th Cir); see also United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592. In any event appellant’s contentions would lack substance here. The trial court obtained a pre-sentence report. And the court stated reasons for the § 5010(c) finding and sentence by saying that the report showed a long history of incorrigibility and an improper attitude toward authority. The court further noted the serious circumstances of appellant’s offense. The procedures and determinations by the sentencing court were reasonable. We are satisfied that the statutory finding and the sentence are valid.

Fourth, appellant argues that his sentence was illegal for failure to comply with 18 U.S.C.A. § 5012. He says that there was no certificate by the Director of the Bureau of Prisons before the trial court or in the record, as § 5012 requires, that proper and adequate treatment facilities and personnel were provided for sentencing under the Youth Corrections Act. Thus we are told that the necessary finding could not be made for sentencing under the Act and that the sentence is illegal.

We cannot agree. § 5012 does bar commitment to the Attorney General under.the Act until the Director certifies that proper and adequate'facilities and personnel have been provided. We believe the certification provision was concerned with the starting point for the use of the Act, and such certification has obviously occurred. See Department of Justice, Federal Prisons— 1957 — A Report of the Work of the Federal Bureau of Prisons 9-10, 86 (1958). § 5012 does not say that a certificate must be submitted to the trial court in every case where a youth offender- is up for sentencing and we feel that such an interpretation would be unreasonable.

Harvin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675, cert. denied, 404 U.S. 943, 92 S.Ct. 292, 30 L.Ed.2d 257, is relied on, but the case does not support appellant’s position here. The court did state that if proper facilities and personnel were not available, sentence could not be imposed under .the Act. Id. at 681 n. 12. This is not to say that the statute requires the Government to furnish a certification to the sentencing court on the availability of facilities and personnel in every youth offender ease and we decline to make such an interpretation. We note as to this case that appellant’s counsel urged sentencing under the Act without objection by appellant. We conclude that appellant’s contention under § 5012 is untenable.

Lastly, appellant argues that he has not received proper classification, treatment and supervision and was improperly sentenced to a penitentiary and sent directly to Marion. Vigorous objection is made to incarceration in the penitentiary at Marion as an improper facility for a youth offender.

The trial court sentenced appellant to the custody of the Attorney General for treatment and supervision as provided by 18 U.S.C.A. § 5010(c), not to any particular institution. The Director decides on the transfer and place of treatment and confinement of youth offenders. 18 U.S.C.A. § 5015; see Abernathy v. United States, 418 F. 2d 288 (5th Cir.). The objections as to the handling of appellant after sentencing and to his incarceration at Marion are not cognizable in this § 2255 proceeding before the sentencing court, but must be asserted in a proper habeas suit where the appellant is in custody. See Mordecai v. United States, supra 137 U.S.App.D.C. 198, 421 F.2d at 1139, 1140; Ridenour v. United States, 446 F.2d 57 (9th Cir.); see also Barrett v. Hunter, 180 F.2d 510, 514 (10th Cir.), cert. denied, 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650.

Affirmed.

“No youth offender shall be committed to the Attorney General under this chapter until the Director shall certify that proper and adequate treatment facilities and personnel have been provided.”

      . The indictment contained four counts but three remaining counts were dismissed after sen•tencing.

      . In Harper, supra 368 F.2d at 55-56, the court stated:
      “One of the consequences, with respect to which the defendant should be advised, is the maximum sentence which may be imposed on a plea of guilty, and when, as here, a different sentence may be imposed under two applicable statutory provisions, the maximum sentence that might be imposed under each of such provisions.” While the possibility of sentencing under the Youth Corrections Act was not mentioned at the arraignment, the 25-year maximum sentence was spelled out to appellant. We are satisfied that this complies with the intent of Harper as to the maximum sentence possible being brought out.

      . 18 U.S.C.A. § 5010(c) provides that on finding that the youth offender may not be able to derive maximum benefit from treatment prior to the expiration of six years from the date of conviction, the court may impose sentence for any further period that may be authorized by law for the offense, or until discharged. 18 U.S.C.A. § 2113(d) provides that one convicted thereunder “shall be. fined not more than $10,000 or imprisoned not more than twenty-five years, or both.”

      . The court complied with the requirement of findings necessary for sentencing under the Act, see 18 U.S.C.A. § 5010(b); Rogers v. United States, 326 F.2d 56, 58 (10th Cir.), as well as for imposing the heavier 18-year sentence.

      . The court observed that there was a shot fired by appellant in the perpetration of the robbery. The court stated “[i]t might have been just a warning shot but it certainly indicated that he felt at the time he was in command of the situation by virtue of that loaded pistol he had . . . .”

      . 18 U.S.C.A. § 5012 provides:

      . We have also examined United States v. Alsbrook, 336 F.Supp. 973 (D.D.O.) which appellant has relied on. That court has adopted a recommended procedure including the following requirement :
      “No defendant shall be committed under the Youth Corrections Act unless tbe Attorney General certifies in advance as to each defendant that a facility is available to provide the type of program and adequate period of treatment contemplated in the particular 5010(e) report.”
      336 F.Supp. at 979-980.
      The opinion does not purport to base this local procedure on a statutory requirement and we find none. In any event we feel there is no statutory requirement for such certification in each individual case, as argued by appellant.