text:
    Roberto Flores AGUILAR, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-2454.
    United States Court of Appeals, Fifth Circuit.
    Sept. 12, 1974.

      Francis P. Maher, Laredo, Tex., Robert A. Maher, Chicago, 111., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Richard Farber, Attys., Tax Div., Dept, of Justice, Washington, D. C., Lee H. Henkel, Jr. Act. Chief Counsel, IRS, Washington, D. C., James R. Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., Karl Schmeidler, Gary R. Allen, Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The IRS terminated appellant’s "tax period”, pursuant to § 6851 of the Code assessed a tax of $12,774.00 and levied on a truck belonging to appellant and $11,270.00 in cash discovered in the truck without issuing a notice of deficiency under § 6861(b). Disposition is controlled by the two recent decisions of Clark v. Campbell, 5 Cir., 1974, 501 F.2d 108, this day decided and Willits v. Richardson, 5 Cir., 1974, 497 F.2d 240. Campbell holds that § 6213(a) entitles a § 6851 quick termination taxpayer to an injunction against the assessment and collection of the alleged tax due when the IRS fails to issue a deficiency notice within 60 days. Willits holds that on the showing of a kind here made out taxpayer is at least entitled to prove that the action of the IRS in conjunction with drug enforcement authorities demonstrated the assessment to be arbitrary and capricious. We reverse the District Court’s dismissal of his action and remand for further proceedings not inconsistent with these opinions.

Appellant is a citizen and resident of Mexico. He owns a trucking business which he operates exclusively in the Republic of Mexico. He did at of his business in Mexico and was not a taxpayer within the meaning of the Code, had no duty to file a return and had no income subject to taxation by the United States.

On July 27, 1972, appellant’s employees were on their way in one of his trucks to San Antonio, Texas to obtain automotive parts with the cash which was later discovered, but had turned back after encountering engine trouble. The truck was stopped by local police in Laredo, Texas for a title check. The police found a discrepancy in the identification number. Upon examination of the vehicle they discovered $11,270.00 in United States currency in a sack in the driver’s compartment. The police seized the truck and the two employees proceeded back to Mexico on foot.

The Laredo police notified the United States Customs Bureau of their discovery and that Bureau immediately placed a “hold” on the truck based on a “suspicion” that it was involved in illicit narcotics activity. When the Laredo police refused to return the cash found in the truck to appellant, appellant brought suit in the state court. The cash was promptly deposited in the registry of that court.

On August 3, 1972, the IRS made a § 6851 quick termination of his tax period and sent the usual letter to appellant terminating his tax year, and informing him that a tax of $12,774.00 had been assessed and was immediately due and payable. The IRS served a notice of levy on the state court which was holding the funds. Appellant’s truck was seized and sold by the IRS for $750.00.

Despite persistent efforts by appellant, the IRS flatly refused to disclose its theory of computation of the alleged tax maintaining that appellant could obtain an opportunity to examine and challenge the assessment and levy by filing a full year return alleging an overpayment (which would be treated as a claim for refund) and then filing suit for a refund in the District Court in six months.

Unsatisfied with that, appellant, in December 1972, filed suit in the District Court seeking to enjoin the IRS from enforcing its assessment and levy on the funds in the state court registry and to obtain the proceeds from the sale of the truck. Appellant relied primarily on the Nut Margarine exception to § 7421— the anti-injunction provision of the Code in seeking equitable relief.

The District Court dismissed the suit for a lack of jurisdiction finding that appellant did not satisfy the Enochs requirement because ■ he had an adequate remedy in the form of a petition for re-determination in the Tax Court or a refund suit in the District Court.

The Tax Court is out since IRS, following its determined practice in § 6851 quick terminations, did not send a deficiency notice which is the “ticket to the Tax Court” or more accurately, the key to the Tax Court door since its jurisdiction rests on the deficiency notice.

We do not here have to analyze the availability or relative adequacy of the post-payment tax refund route which we did in Campbell. For we held in Campbell that the deficiency notice is required for a § 6851 quick termination taxpayer just as it is for a § 6861 jeopardy taxpayer. Since Campbell was decided long after the action of the District Court below the minimum required would be to reverse and remand for reconsideration in the light of Campbell. Such circuity is not plausible in this old case so we simply direct the injunction based on Campbell.

But since the District Court’s dismissal cannot stand in the face of Willits, we remand for proceedings consistent with it in the event a necessity arises.

On the face of the record (see note 3, supra) a non-resident alien who has no income from any sources in the United States whose truck and money are geographically within the United States for the purpose of purchasing legitimate commercial supplies, has money and truck taken peremptorily from him at the instance of drug law enforcers with no more than a vague suggestion that the Government “suspected” that these strangers were trafficking in drugs. Adding to the mystery of the basis for that “suspicion” is the total — the word is total — lack of any basis for computing the quick terminated tax to be $12,774.-00 — almost the precise total of the money and the value of the truck — a pattern followed often in the contemporary practice where tax mechanisms are employed “not as tax collection devices but as summary punishment to supplement or complement regular criminal procedures”, Willits, 497 F.2d at 246.

As did the Court in Willits, we hold that this alien taxpayer was entitled on this showing to a factual determination whether the conduct of the tax authorities, alone or in combine with others, transgressed the Willits line of impermissible expedients which “ — Courts cannot allow . . . to be turned on citizens suspected of wrongdoing”. Wil-lits, 497 F.2d at 246.

Reversed and remanded.

      . 26 U.S.C.A. § 6861:
      (b) Deficiency letters. — If tlie jeopardy assessment is made before any notice in respect of the tax to which the jeopardy assessment relates lias been mailed under section 6212(a), then the Secretary or his delegate shall mail a notice under such subsection within 60 days after the making of the assessment.

      . 26 U.S.C.A. § 6213. Restrictions applicable to deficiencies; petition to Tax Court

        (a) Time for filing petition and restriction on assessment. — Within 90 days, or 150 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.

      . These recitations are written as though they were proved in fact since the Court had to accept them under the Government’s motion to dismiss the Federal Court injunction complaint.

      . 26 U.S.C.A. § 7701(a) (14) :
      The term “taxi>ayer” means any person subject to any internal revenue tax.

      . See 26 U.S.C.A. §§ 871, 881 and 882.

      . Miller v. Standard Nut Margarine Co., 1932, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422. As refined in Enochs v. Williams Packing & Nav. Co., 1962, 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292, 296-297, in order to obtain an injunction the taxpayer must show (1) “under the most liberal view of the law and facts, the United States cannot establish its claim” and (2) “equity jurisdiction otherwise exists”- — -that is there is irreparable injury and no adequate remedy at law.

      . Corbett v. Frank, 9 Cir., 1961, 293 F.2d 501, 502. See also Mason v. Commissioner of Internal Revenue, 5 Cir., 1954, 210 F.2d 388.

      . See §§ 6214, 7442. See also § 6861.

      . The lists are narrowing with the forces equally divided. The Second and Seventh Circuits against, the Sixth and the Fifth for mandatory deficiency notice. The national answer depends on certiorari. See Campbell, supra, note 1.

      . In Rinieri v. Scanlon, S.D.N.Y., 1966, 254 F.Supp. 469, four years after the § 6851 quick termination the taxpayer successfully prevailed on a motion for summary judgment in the District Court in his refund suit to recover the currency seized. In entering judgment for taxpayer the District Judge observed:
      The Revenue Agent testified in substance that he did not know whether Mr. Rinieri earned any money here; that his only information was that Rinieri was found with the money at the airport and that Rinieri refused to answer certain questions; that he was instructed to prepare a return showing a tax of approximately $247,500 due and he therefore did so; and that the $53,100 cost-of-living income figure was a pure fiction constructed in order to make the tax due come out close to $247,500, the amount found in plaintiff’s possession. The agent testified in addition that he knew of no further information in the files of IRS, other than that already stated, pertaining to the earning of the money in this country by Mr. Rinieri.
      * * * * *
      The sum and substance of the situation is this, then: While pointing to not one iota of proof that any of this money was earned within the United States, although approximately 46 months for investigation have passed since the money was seized, the government contends that a jury would be entitled to disbelieve the plaintiff’s story. With this argument I must emphatically disagree.
      254 F.Supp. at 472-473.
      In United States v. Bonaguro, E.D.N.Y., 1968, 294 F.Supp. 750, aff’d sub nom. United States v. Dono, 2 Cir., 428 F.2d 204, cert. denied sub nom., Bonaguro v. United States, 1970, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59, the District Judge stated:
      The critical defect in the Government’s position in the instant case is that it has failed to show that it took the formal steps under the statute at all, that it made even internally the findings and declaration required under Section 6851(a), or entertained the belief required by Section 6861(a), or adverted to any data that could induce a reasonable belief that a tax of $1,617.50 was in jeopardy, or filed an involuntary return which was both consistent with the data it had and free of intrinsic repugnancy. The inference is — in short — that it had not acted under the statute to protect the revenue interest and collect a tax that seemed to be in jeopardy, but had made a merely colorable use of the statutory forms at the suggestion of another agency of government in accordance with a pattern of conduct that is not strange to the courts.
      294 F.Supp. at 753-754.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    Mrs. Norma J. WRIGHT et al., Plaintiffs-Appellants, v. BAKER COUNTY BOARD OF EDUCATION et al., Defendants-Appellees. UNITED STATES of America, Plaintiff, Charlie Ridley, Jr., et al., Plaintiffs-Intervenors, v. The STATE OF GEORGIA et al., Defendants.
    No. 74-1483.
    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1974.
    Elizabeth R. Rindskopf, John R. Myer, Atlanta, Ga., Jack Greenberg, Norman J. Chachkin, James C. Gray, Jr., New York City, for plaintiffs-appellants.
    Frank S. Twitty, Sr., Camilla, Ga., for Baker County School District.
    Peter Z. Geer, Albany, Ga., for defendants-appellees.
    David L. Norman, Asst. Atty. Gen., Brian K. Landsberg, Atty., Civil Rights Div., Dept, of Justice, Washington, D. C., for United States.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

This case is concerned with the validity of the sale of a surplus public school building to a private all-white school. It began on the initiative of the United States on February 12, 1972 by the filing of a motion to add parties defendant and motion for supplemental relief and transfer of case (CA 1201). The United States sought an order rescinding the sale of the West Baker Elementary School by the Baker County Georgia Board to Mr. J. R. Rhodes, who conveyed it to Baker Parents, Inc. Other relief was sought to enjoin the Board from selling, leasing, loaning or giving textbooks, material, equipment or aid to the Baker Academy, a private school operated by Baker Parents, Inc., and for an order enjoining the Board from taking any actions tending to impede or frustrate the District Court’s orders requiring the desegregation of Baker County public schools.

Thereafter, on March 13, 1972 (CA 1167), a separate action was filed by plaintiffs, Mrs. Norma J. Wright, et al„ on behalf of themselves and minor children and others similarly situated, against defendants seeking the identical relief previously requested by the United States.

The two matters were consolidated, and on the day of trial a settlement conference was .held with counsel resulting in an agreement for a consent decree which was. concurred in by all parties except plaintiffs, Mrs. Norma J. Wright, et al. The proposed consent decree was presented to the District Court, and when plaintiffs objected thereto a hearing was held on the objections.

According to the proposed decree, Baker County Board and its Superintendent of Schools were enjoined from providing aid or assistance in any form to the Baker Academy or from taking any other steps which would interfere with the orderly desegregation of the public schools of Baker County. In the case of any future sale of real property the Board was required to insert a re-versionary clause in the deed providing for a reversion of the property to the school district in the event a segregated school was established on the property. Defendant, Baker Parents, Inc., was ordered to desist from operating the segregated Baker Academy at the West Baker school facility, and further ordered permanently to vacate the school premises on or before June 15, 1974. The defendant was also ordered to attempt to sell the facility and disburse the proceeds, first to pay off outstanding indebtedness for capital improvements thereto, and second, to pay $6,000 of the remaining proceeds to the Baker County School District. Baker Parents, Inc. was also ordered not to use the proceeds to pay current operating expenses or indebtedness or past operating expenses until Baker County School District had been paid the sum of $6,000. Finally, defendant, Baker Parents, Inc., was directed to insert a reversionary clause in the deed of conveyance of the West Baker school facility providing for the reversion of the property to Baker Parents, Inc. in the event a segregated school was established or operated on the property.

Plaintiffs objected that the consent decree did not rescind the sale of the West Baker school building to Baker Parents, Inc., asserting that the court had a constitutional obligation to order the return of the school building to Baker County Board with the value of three years’ use of the facility. Plaintiffs further objected that the proposed decree would permit Baker Academy to salvage its indebtedness and retain the remaining proceeds from the sale of the school property after payment of outstanding indebtedness.

On January 4, 1974 the District Court concluded to enter the proposed consent decree as its judgment, and this appeal by plaintiffs, Mrs. Norma J. Wright, et al., followed.

The facts developed at the hearing show that pursuant to orders of the District Court the public schools of Baker County were to be integrated for the school year beginning September, 1970. Baker Parents, Inc. was incorporated July 8, 1970 to establish Baker Academy for its first year of operation in the 1970- 1971 school year. There is little question that the private academy was a segregated school — all of its students and faculty were white — and that it was established to counteract the effects of court ordered desegregation of Baker County public schools. Mrs. Virginia Jones, wife of Baker County Board member Earl Jones, was selected as the Academy headmaster. Later Baker County Board member Earl Jones, at the February 2, 1971 meeting of the Board, moved that the West Baker School be declared surplus and sold at public auction.

Pursuant to Georgia law, Section 32-909, Georgia Code Annotated, the property was duly advertised and sold at public auction on March 2, 1971 at the courthouse door in Baker County to one J. R. Rhodes, the highest bidder, for the sum of $6,500. On March 19, 1971 Mr. Rhodes conveyed the school property to Baker Parents, Inc. for the sum of $6,500. He had purchased the school property as agent for the private school corporation. The Baker Board then declared as surplus the desks, books and equipment in the school property and sold it at a nominal price to the Academy. Eleven used buses were also sold through intermediaries to the Academy for use in transporting pupils to and from the school. In the school year 1971- 1972 there was a large increase in enrollment of the Academy (from 38 to 316 pupils) and a corresponding decrease in enrollment of white pupils in Baker County Public Schools (from 220 to 107 pupils).

The school building involved was constructed in 1955 for the sum of $125,000. It was in good repair when sold. Defendant Baker Board, in answer to interrogatories, stated that its replacement cost would be $150,000. An expert for plaintiffs testified that the present value of the building is $250,000.

When the property was advertised for sale at public auction by the Baker Board the right was reserved by the Board to reject any and all bids. Despite this fact, the Board accepted the nominal bid of $6,500. It is apparent from the record that the Board cooperated in every possible way to assist the Academy, for it additionally provided the necessary desks, textbooks, equipment and school buses also at nominal cost. It is obvious that the Baker County Board may not constitutionally support a private, segregated, all-white school in this manner.

This case is, therefore, not similar to McNeal v. Tate County School District, 5 Cir., 1972, 460 F.2d 568, where the school board acted in good faith in disposing of a surplus school building. Here there was constitutionally impermissible cooperation by the Baker County Board with Baker Parents, Inc. and Baker Academy. The actions of the Board contributed substantially to impeding and interfering with previously ordered desegregation of the public schools of Baker County. Thus the case is governed by our previous holdings in Wright v. City of Brighton, 5 Cir., 1971, 441 F.2d 447, and United States v. State of Mississippi, 5 Cir., 1974, 499 F.2d 425.

Under the circumstances, the sale of the school property must be rescinded. Placing the parties back in their original position before the sale of the building, however, is impossible. To add to the confusion we are now informed by counsel, and it is undisputed, that Baker Academy closed its doors and ceased operations on February 28, 1974, and that bankruptcy of Baker Parents, Inc. is contemplated. Picking up the pieces and trying to put them together now is much more difficult.

There seems to be no dispute as to that portion of the District Court’s order which enjoined the Baker County Board and its Superintendent of Schools from providing aid or assistance in any form to the Baker Academy or from taking any other steps which would interfere with the orderly desegregation of the public schools of Baker County, and which ordered that in any future sale of real property the Board insert a rever-sionary clause providing for reversion of the property to the school district in the event of the establishment of a segregated school thereon, and which ordered Baker Parents, Inc. to desist from operating the segregated Baker Academy at the West Baker facility and permanently to vacate the premises on or before June 15, 1974. The District Court’s decree in such respects must therefore be affirmed.

However, the following modification of the District Court’s decree is required under the circumstances:

1. The sale of the West Baker School property by the Baker County Board of Education, title to which property is in Baker Parents, Inc., must be rescinded and the property re-conveyed to the School Board.

2. The purchase price of $6,500 paid by Baker Parents, Inc. must be returned, less an appropriate amount to be determined by the District Court, for rental of the property during the period of occupancy by the Academy.

3. Existing secured obligations against the property shall remain in full force and effect.

4. Buildings erected on the property by Baker Parents, Inc. which are portable shall be removed by the owner.

It is necessary that the resolution of these details be committed to the supervision of the District Court. Accordingly, the case is remanded to the District Court.

Affirmed in part; modified in part; remanded for further proceedings.

      . By our decision on August 14, 1972, sub. nom. U. S., Ridley v. Georgia (Baker Co. School Dist.), 466 F.2d 487, we reversed and remanded the decision of the District Court which had dismissed the motion of the United States for supplemental relief.

      . The pertinent parts of the decree of the District Court are reproduced as follows:
      IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the Baker County School District i, its officers, agents,
      1. This term refers to the Baker County School District, the Superintendent of Schools for Baker County and the Baker County Board of Education, all of whom have either been added as parties defendant in C.A. No. 1201 by the district court order of August 21, 1972 or named as parties defendant by private plaintiffs in G.A. No. 1167. The requirements of this order, are applicable to all of these parties.
      employees, successors, assigns, and all persons acting in concert or participation with it are hereby enjoined from providing aid or assistance in any form (including, but not limited to, the transfer or loan of real or personal property or the provision of services) to the Baker Academy or any other private, segregated school or taking any other steps which would interfere with the orderly desegregation of the public schools of Baker County. In the case of any future sale or transfer of real property the defendant school district shall insert a reversionary clause in the deed of conveyance providing for the reversion of the property to the school district in the event that a segregated school is established or operated on the property. For the purposes of this order, a school is segregated if it does not have both black students enrolled and black teachers employed to some significant extent, considering the racial composition of the area served by the school.
      IT IS FURTHER ORDERED that the Baker Parents, Inc., its officers, agents,
      2. This term refers to the Baker Parents, Inc., and the members of the Board of Trustees of Baker Parents, Inc., who were added as parties defendant by the district court order of August 21, 1972 and named as parties defendant by private plaintiffs in O.A. No. 1167. As the record in this case indicates that of the original members of the Board of Trustees of Baker Parents, Inc., (Mrs. Oliver Jones, Arthur E. West, Bernard O. Palmer, J. R. Rhodes, ¡Sr. and Luther Moore), Mrs. Oliver Jones, Arthur E. West, and Luther Moore are no longer members and have been replaced by Mrs. W. D. Drennon and J. W. Hendricks, the pleadings in O.A. No. 1201 and O.A. No. 1167 are hereby amended to reflect these changes. The requirements of this order are applicable to all of these parties.
      employees, successors, assigns and all persons acting in concert or participation with it (hereinafter referenced as Baker Parents, Inc.) shall cease to operate the segregated Baker Academy or any other private, segregated school, at the former West Baker facility and shall permanently vacate the premises upon the completion of the 1973-74 school year, on or before June 15, 1974. After that date, the defendant Baker Parents, Inc., shall immediately attempt to sell the former West Baker facility and shall exercise due diligence in attempting promptly to obtain a purchaser for the property. The proceeds from the sale shall be disbursed as follows:
      1. First, the proceeds shall be used to pay off the outstanding, secured indebtedness of the capital improvements made to the former West Baker facility by Baker Parents, Inc., prior to the filing of the motion and complaint in these cases, except for those capital improvements which are removable.
      2. Second, all of the remaining proceeds from the sale, up to $6,000, shall be paid by Baker Parents, Inc., to the Baker County School District.
      3. Third, the Baker Parents, Inc., shall not use the proceeds from the sale to pay current operating expenses or indebtedness on past operating expenses until the Baker County School District has been paid the complete sum of $6,000.
      IT IS FURTHER ORDERED that within 15 days after the sale of the former West Baker facility, the Baker Parents, Inc., shall file with the Court, with copies served on all parties, a report indicating the following: (1) the date of the sale (2) the terms of the sale, including the name(s) and addresses) of the purchaser (s) and the price paid for the pi'operty (3) the purpose (s) to which tiie property will be put by the purchaser (s) (4) a detailed .list of all of the outstanding secured indebtedness for capital improvements made to the former West Baker facility which the Baker Parents, Inc., intends to pay off from the proceeds of the sale of the facility including (a) the name and address of each creditor (b) a description of each capital improvement (c) the date on which each capital improvement was completed (d) the total cost of each capital improvement and (e) the unpaid balance owed on each capital improvement. None of the proceeds of the sale shall be paid out by the Baker Parents, Inc., until 30 days after the filing of the above report. If the parties cannot reach agreement as to the proposed disposition of the proceeds of the sale, objections shall be made within 30 days of the filing of the report and a hearing will be scheduled to resolve any dispute. All parties shall be permitted appropriate discovery in accordance with the Federal Rules of Civil Procedure, and the Baker Parents, Inc., shall make no payment for any disputed expense until final resolution by the Court.
      IT IS FURTHER ORDERED that the Baker Parents, Inc., shall insert a reversion-ary clause into the deed of conveyance of the former West Baker facility, providing for the reversion of the property to the Baker Parents, Inc., in the event that a segregated school, as previously defined above, is established or operated on the property. A verified copy of the deed of conveyance shall be filed with the report required above.
      All prior orders in these cases not inconsistent with the provisions of the order shall remain in full force and effect.

      . No action was taken by the United States or the plaintiffs in opposition to the sale until nearly a year after it was made. It would be inequitable to deny recognition to those who hold secured obligations which were made during the interim.


author: PER CURIAM: FIELD, Circuit Judge

text:
    E. I. duPONT de NEMOURS AND COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1655.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided July 26, 1974.

      Francis V. Lowden, Jr., Richmond, Va. (Thomas J. Manley and Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for petitioner.
    Jay E. Shanklin, Atty. (Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., on brief), for respondent.
    Before CRAVEN, RUSSELL  and FIELD, Circuit Judges.

       Judge Russell disqualified himself after argument and Judge Bryan substituted in his place.

   PER CURIAM:

An order of the National Labor Relations Board is here attacked by the petitioner, DuPont, as unjustified; at the same time its enforcement is sought by the Board.

This ease is a sequel to E. I. DuPont De Nemours and Company v. N. L. R. B., 480 F.2d 1245 (4 Cir. 1973), involving a companion but unadjudicated issue which is now the question before the court. Specifically, it is the right of the employer to insist upon the inclusion in the collective bargaining agreement of a provision eliminating the control mechanics from the “roll-back” privileges described in the opinion. Condensed, rollback was a practice in the company’s graduated employment system whereby if an employee failed in the training course for job-progression, he was nevertheless retained but was demoted to the lowest grade. The factual frame is the same in both cases and, to avoid repetition, the statement of them in the earlier opinion is now adopted by reference.

The core of the present discord is the NLRB’s finding that in this insistence the employer, DuPont, was guilty of (a) refusing to bargain with the union representing the unit of control mechanics, and (b) interfering with or coercing them and other employees in the exercise of their entitlement to choose collective bargaining representation. These findings respectively established a breach of NLRA § 8(a)(5) and (1), 29 U.S.C. § '158(a)(5) and (1).

The eliminating provision is denounced by the Board as per se discriminatory, in that its effect would be to deny to the represented unit the benefits of the rollback while the company’s other employees enjoy them. Indeed, the members of this unit likewise did so until unionized. NLRB v. National Maritime Union, 175 F.2d 686, 688-689 (2 Cir. 1949), cert. denied 338 U.S. 954, 70 S.Ct. 492, 94 L.Ed. 1348. Also, the Board holds that, because of this deprivation, the elimination would discourage the choosing of representation by a union.

These conclusions are sinewed by the attribution to the company of antiunion disposition. For evidence thereof the Board points to a pre-election address by the plant manager threatening the retraction of rollback privileges if the union won. It was evinced, too, by the impermissible discharge rather than a rollback of a control mechanic during the contract negotiations. These incidents are related in the able opinion of the prior case between the Board and the company.

Despite the strength of the dissent, it cannot be said here that on the record as a whole there is not substantial evidential support for these findings and conclusions. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

Confessedly, the Board is “without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement”. Porter Co. v. NLRB, 397 U.S. 99, 102, 90 S.Ct. 821, 823, 25 L.Ed.2d 146 (1970). Nonetheless each can be required to negotiate in good faith on a bargainable subject, such as the seniority right of rollback. Id. at 102, 90 S.Ct. 821; NLRA §§ 8(a)(5) and (d), 29 U. S.C. § 158(a)(5) and (d); DuPont, supra, 480 F.2d at 1249. However, the elimination provision, as we have seen, was warrantably appraised as discriminatory in itself and for that reason insistence upon it was not the good faith bargaining which under Porter the Board may demand.

The Board ordered the company to cease and desist from refusing to bargain with the union in good faith, that is, without insistence upon the contract’s elimination of rollback rights. For the reasons stated by the Board the court upholds its position.

Order enforced.

FIELD, Circuit Judge

(dissenting):

On the former appeal involving this controversy we sustained the finding of the Board that the company had been guilty of an unfair labor practice in discharging a control mechanic “without first negotiating concerning the roll back rights of the other employees in the bargaining unit * * In the course of that opinion we stated

“It should be noted that the Administrative Law Judge and the Board have alternately taken and retreated from the position that the control mechanics’ roll back rights were not a bargainable issue and could not be discontinued, under any circumstances, by the company.
We disagree with this position. The roll back rights were a type of seniority and, as such, were a proper and usual subject of collective bargaining.”

To me the order of the Board presently before us directing the company to refrain from “adamantly insisting upon the inclusion in any collective bargaining agreement of a seniority clause” with respect to the roll back rights flies in the teeth of our former opinion and is utterly irreconcilable with it. Additionally, the Board’s decision is at variance with the principle enunciated in Porter Co. v. N. L. R. B., 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), since in effect it compels the company to agree upon a bargainable issue upon which the parties themselves were unable to reach an accord. Finally, the decision of the Board is contrary to the explicit direction of Congress as reflected in Section 8(d) of the Act, that the mutual obligation of the employer and the union to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.” For these reasons, I would deny enforcement of the order.

      . 203 NLRB No. 95 (May 11, 1973).

      . Local 382, International Brotherhood of Electrical Workers, AFL-CIO (IBEW).

      . E. I. DuPont de Nemours and Company v. N. L. R. B., 480 F.2d 1245, 1249 (4 Cir. 1973).

      . Id. at 1249.

      . 29 U.S.C. § 158(d).


author: ENRIGHT, District Judge: KILKENNY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Albert TREJO, Defendant-Appellant.
    No. 73-2262.
    United States Court of Appeals, Ninth Circuit.
    June 10, 1974.

      Martha Goldin (argued), of Goldin & Saltzman, Los Angeles, Cal., for defendant-appellant.
    Norman D. James, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and KILKENNY, Circuit Judges, and ENRIGHT, District Judge.

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

   ENRIGHT, District Judge:

Appellant was indicted and tried in district court for violation of 18 U.S.C. § 2113(a), (d), robbery of a national bank with a dangerous weapon. Trial before a jury resulted in a guilty verdict of the lesser included offense of robbery without the use of a dangerous weapon. Appellant now attacks this conviction and seeks reversal, claiming five instances of prejudicial error in his trial below.

The government’s case in chief consisted of seven eye-witnesses, all of whom identified the appellant as the bank robber, and photographic evidence provided by surveillance cameras located in the bank. Four enlarged photographs from these cameras were shown to the jury, along with a number of police photographs of the appellant. A photographic expert then testified for the government that in his “expert opinion,” the individual in the surveillance camera photographs cpuld be the defendant.

The defendant testified in his own defense that he was at a friend’s house in another city at the time of the robbery, and denied any participation in the robbery. During cross-examination, the prosecution attempted to impeach the defendant by questions concerning a hand gun and a briefcase as depicted in certain photographs. After a negative response, the government introduced evidence that a gun and briefcase had been earlier seized from defendant’s home in what was conceded to be an illegal search and seizure. The defendant explained that the gun and briefcase were not similar to the items depicted in the photographs, and an innocent reason existed for their presence, i. e., that he had taken the gun from a person at a “fund-raiser” picnic.

I

The appellant contends that the court erred when it failed, sua sponte, to instruct the jury to consider eye-witness testimony with caution. Defense counsel did not request such an instruction, nor was an objection raised to the instructions as were given. Under these circumstances, absent clear error affecting the substantial rights of the defendant, the instructions cannot now be attacked on appeal, and no such showing has been made here. United States v. Lipsey, 438 F.2d 974, cert. denied 404 U.S. 824, 92 S.Ct. 50, 30 L.Ed.2d 52 (9th Cir. 1971); United States v. Alvarez, 469 F.2d 1065 (9th Cir. 1972); Fed. Rules Crim.Proc. 30. Moreover, even if requested, the trial court would have acted properly in refusing to give such an instruction. See Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969). Considering the instructions as given in their entirety, as we must, Medved v. United States, 411 F.2d 617 (9th Cir. 1969), there was no error in the instructions as given.

II

Two witnesses observed the bank robber enter the passenger side of a Volkswagen and make his escape. This escape vehicle was later ascertained to be registered to one Rudy Cabral, Jr., who was present during appellant’s trial. Upon cross-examination of one of the witnesses who saw the escape, defense counsel attempted to ascertain if the witness could identify Mr. Cabral as the driver of the getaway car. The trial court, considering that this was examination into collateral matters, and after balancing the rights of appellant against those of Mr. Cabral, ruled against permitting such inquiry. It has been the consistent position of this court that the trial judge has broad discretion in the admission of testimony relating to collateral matters. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967). The ultimate issue at the trial was the identity of the appellant as the bank robber, to which the identity of the driver of the escape vehicle was clearly collateral. The court did not abuse its discretion in disallowing such cross-examination.

Ill

In the investigation that followed the robbery, seven eyewitnesses were shown surveillance photographs taken at the bank to determine if the photographs actually depicted the bank robber.

Later, when the inquiry focused on the appellant, his photographs were placed with photographs of other individuals in a series of “photo spreads.” These photo spreads were shown to six of the seven witnesses to determine if the appellant could be identified by the witnesses as the bank robber.

Appellant now raises the contention that this pretrial identification by the witnesses was conducted in such an improper manner as to compel the witnesses to identify the appellant at trial, thereby depriving him of due process of law. There were two photo spreads that were shown to the witnesses. One spread consisted of nine photographs, two of which were of the appellant. The second spread consisted of six photographs, one of which was of the appellant. Each witness who was shown one of these photo spreads selected one or more of the photographs of the defendant as the bank robber. Two of the witnesses were in the same room when they made the identification, and were told that they had chosen the “correct” photograph after they chose the defendant’s picture. These same two witnesses, along with another witness, were told that a suspect had been taken into custody before being shown the photo spread. Six of the witnesses viewed the photo spreads again a day prior to trial.

Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), established that when the photographic identification procedures followed is attacked on appeal, the verdict must be set aside if that procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The record of the trial shows that the witnesses were in close proximity to the bank robber with ample time and opportunity to observe him. There is nothing in the record to suggest that the in-court identification was not made freely and based upon these observations. Moreover, a number of the witnesses were able to point out certain distinctive features of the appellant, such as the peculiar shape of his mouth and lips, to indicate that they had paid special attention to him due to his suspicious behavior. The record does not support the allegation that the photographs earlier shown the witnesses had any causal connection with the witnesses’ ability to identify the appellant at the trial, United States v. Sartain, 422 F.2d 387 (9th Cir. 1970). Although far from exemplary, there is no showing that the identification procedure was so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, supra.

Moreover, as no objection was made at trial, this contention is not properly before this court unless we can say, in the sound exercise of our discretion, “plain error” exists. Davis v. United States, 425 F.2d 673 (9th Cir. 1970), Fed.Rules Crim.Proc. 52(b). The “plain error” rule should be invoked only in exceptional eases where it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process. United States v. Sheley, 447 F.2d 455 (9th Cir. 1971). Such is not the case here. Trial counsel, when specifically given the opportunity to pursue such an objection, declined further inquiry.

IV

As part of its case, the government called as an expert witness Mr. Frederick E. Webb, an FBI photographic identification expert. He compared four photographs taken by the bank’s surveillance camera at the time of the robbery with four police photographs of appellant and one photograph of appellant obtained from the California Driver’s License Bureau. All the photographs had been enlarged so that the head size would be the same to facilitate comparison. Mr. Webb pointed out that in all the photographs, the shape of the face, nose, mouth, and hair were similar. He admitted that the surveillance photographs were not clear enough to allow a positive identification, but stated that the features of the appellant were not inconsistent with the general facial characteristics discernible in the surveillance photographs. He concluded that all the photographs could possibly be of the same individual.

Appellant contends that the admission of this testimony was prejudicial error, as it invaded the province of the jury. During the trial, defense counsel objected to the admission of this testimony as “. . .an ultimate fact to be determined by the jury whether or not the man in the picture taken during the robbery is the defendant. . . .” (R.T. 304). The trial court concluded that it was bound by this court’s decision in United States v. Cairns, 434 F.2d 643 (9th Cir. 1970), holding . . With respect to the ultimate fact argument, we are ourselves bound by United States v. Cairns, a decision that appears to be directly and positively in point . Frankly, I don’t think we have any discretion at this stage to overturn the Ninth Circuit.” (R.T. 305).

In Cairns, this court stated:

Appellant next contends that over his objection on the ground the testimony would invade the province of the jury, Government’s witness, a special agent with the Federal Bureau of Investigation and photographic identification specialist, compared two photographs: a photograph taken by the bank’s surveillance camera at the time of the robbery and a police photograph of appellant taken ten days prior to trial. To assist in his identification, he enlarged the head area of the surveillance photograph to the same size as the enlarged head area in the police photograph. The witness then pointed out the similarity in the two photographs in the nose and mouth areas, chin line, hair lines, ear contours and inner folds of the ears, among other things. He then testified that based on all the ge:(jsral characteristics the individual in the surveillance photograph is the individual in the police photograph “or another individual having all of these characteristics as to nose, mouth, chin, and the ear characteristics . . . .”
We see no error in the admission of this testimony. While the jury is the sole judge of the facts, expert testimony has long been admissible as an aid to the jury.

434 F.2d at 644.

The Cairns issue was reexamined in United States v. Brown, 501 F.2d 146 (1974), where this court reasoned, at 149, “To permit an expert to testify as to his opinion of parentage based on the resemblance of a child to a reputed father in a paternity suit would be grossly inappropriate by the above standard. But just as surely, fingerprint identification, the comprehensive examination of aerial photographs, and other similar scientific and technical evaluations, are obviously within the realm of permissible expert testimony. Testimony as to whether a particular individual is portrayed in a photograph rests on some middle ground. Since the Cairns decision relied solely upon traditional expertise fields, we feel it incumbent upon ourselves to reexamine the issue faced in Cairns.” Cairns was thereupon “. . . limited to the precision as argued in its briefs . . . ” at 149. Unlike Brown and the instant case, the expert in Cairns testified to specific matters in great detail, focusing upon such unusual facial oddities as earlobe formations, and an unusual facial crease. Brown then held that prior to the admission of any expert testimony on photographic evidence relative to the issue of identity, an offer of proof must be made to the court outside the presence of the jury. The court must then determine if, beyond a preponderance of the evidence, it is convinced that the offered testimony will bring to light facts beyond the common knowledge and experience of the jury. In the case now before us, the expert testimony did not in fact touch on any matter, or offer any observations of the evidence that would not have been beyond the normal faculties of observation of a jury. There were no unusual or peculiar idiosyncrasies, or detailed analyses of facial formations which the jury could not undertake on its own as part Of its fact-finding function. It was therefore error to admit this testimony, but we decline to hold that it was prejudicial in view of the ample evidence in the record to support the conviction aside from this expert testimony.

v

Appellant took the stand and testified in his own defense. His direct testimony consisted of a general denial of the crime, and an assertion of an alibi defense. Upon cross-examination, the prosecutor asked appellant if he owned or had ever owned a pistol and a briefcase as depicted in a surveillance photograph. The response was negative, whereupon the government introduced the fact that a pistol and a briefcase had been found in appellant’s home two days after the robbery in what was admitted to be an illegal search and seizure. The appellant was allowed to explain that the briefcase found in his home was not similar to the one in the photograph, and that he had taken the pistol from an “intoxicated youngster” at the fundraiser the day after the robbery. Appellant now contends that it was improper to allow impeachment by the use of the illegally obtained gun and briefcase, when the government was foreclosed from introducing such evidence in its case in chief.

In Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), the Supreme Court upheld the trial court where the government was allowed to introduce evidence of an earlier illegal seizure of heroin to impeach the defendant’s direct testimony that he had never in his life sold or possessed narcotics. In its decision, the Court contrasted and distinguished its earlier decision in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), stating, “There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, ‘Did you ever see narcotics before?’ After eliciting the expected denial, it sought to introduce evidence of narcotics located in the defendant’s home by means of an unlawful search and seizure, in order to discredit the defendant. In holding that the Government could no more work in this evidence on cross-examination than it could in its ease in chief, the Court foreshadowed, perhaps unwittingly, the result we reach today . . . (Fn. omitted) (Id. at page 66, 74 S.Ct. at page 356). The court discussed and distinguished the case before it from Agnello: “Take the present situation. Of his own accord, the defendant went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping claim that he had never dealt in or possessed any narcotics. Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, . and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perju-rious testimony in reliance on the Government’s disability to challenge his credibility.” (Fn. omitted) (Id. at page 65, 74 S.Ct. at page 356).

Relying heavily upon Walder, the Supreme Court in 1971 decided Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1. In Harris, the Court allowed the government to impeach the direct testimony of the defendant by a statement which had not been obtained in conformity with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In affirming the conviction, the Court declined to be bound by dictum in Miranda, and relied instead upon language in Walder that “ . [T]here is hardly any justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” 347 U.S. at 65, 74 S.Ct. at 356.

Both Walder, Harris, as well as Agnello, were recently analyzed and discussed by the California Supreme Court in People v. Taylor, 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918 (1972), a case with facts strikingly similar to the present case. In Taylor, the defendant’s testimony on direct examination consisted of a denial of the factual elements of the charged crime of possession of heroin. On cross-examination, the state inquired if the defendant had ever seen narcotics before, and after eliciting the expected negative response, proceeded to introduce evidence of an earlier illegal search where heroin was found in the defendant’s personal effects. The California Supreme Court rejected the concept that Harris allowed the government to introduce illegally obtained evidence whenever the defendant chose to take the stand to testify. Rather, the California court stressed that Agnello, Walder, and Harris were compatible and distinguishable from one another in that in both Walder and Harris, the illegally obtained evidence directly contradicted certain aspects of the defendants’ direct testimony. That was held not to be the case in Taylor and thus the court ruled that illegally obtained evidence may be introduced for impeachment purposes only when that evidence contradicts or impeaches some aspect of the defendant’s direct testimony. In reaching that conclusion, the court reasoned:

“Affirming the conviction, [in Harris] the United States Supreme Court relied primarily on Walder. Both the majority and dissenting opinions emphasized that the extra-judicial statement “contradicted petitioner’s direct testimony” (id. 401 U.S. at pp. 223, 227, 91 S.Ct. 643 [28 L.Ed.2d at pp. 3, 5-6]). Quoting Walder’s reasoning that the illegality of impeaching evidence is no justification for letting the defendant “affirmatively resort to perjurious testimony,” the- court concluded (401 U.S. at p. 226, 91 S.Ct. 643 at 646 [28 L.Ed.2d at p. 5]): “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” (Italics added.)
Harris is thus factually distinguishable on the same ground as Walder. Here the defendant oti direct examination offered no elaborate justification for his conduct, and the prior illegally obtained evidence was therefore not “inconsistent” or “conflicting” with that testimony. Defendant did not rely on the illegality of the impeaching evidence as a sword to commit perjury, but simply as a shield against the consequences of concededly improper police practices.

8 Cal.3d 174 at 184-185, 104 Cal.Rptr. 350 at 357, 501 P.2d 918 at 925 (emphasis added in part.)

We find such reasoning persuasive and would decline to accept the concept that Harris now permits any illegally obtained evidence to be admitted for impeachment whenever a defendant takes the stand. We agree with the Seventh Circuit, where it stated in Romanelli v. C. I. R., 466 F.2d 872 (1972) at 878, “We do not think . . . that Harris implies a rule that the only situation where failure to give Miranda warnings will ever result in exclusion is the case in chief in a criminal prosecution. Rather, Harris focuses attention on balancing, as a matter of policy, the deterrent effect of exclusion on proscribed police conduct in the particular circumstances!” Therefore, since the offered evidence does not focus on the truthfulness of a defendant’s direct testimony, we hold its introduction into evidence to be error. This court cannot, however, conclude that the errors discussed were of such a prejudicial nature to compel reversal. The record, when considered in its entirety, discloses that the appellant received a full and fair trial, and that the verdict is amply supported by the evidence. No objection was raised as to admission of the gun or briefcase, and the jury evidently rejected it when it declined to convict appellant of the crime of armed robbery, choosing instead to convict him of the lesser included offense of robbery without a dangerous weapon. Appellant was permitted to explain the presence of the gun and briefcase in his home, and the jury evidently accepted that explanation.

The judgment is affirmed.

KILKENNY, Circuit Judge

(concurring) :

I concur in the affirmance of the conviction, but not for the reasons stated by the majority. In particular, I do not agree with the limitations suggested by the majority on the breadth of Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). While Harris may have some limitations, we should not attempt to define them on the record here presented.

      . The defendant’s alibi was that at the time of the robbery, he was at a friend’s house in San Bernardino preparing for a “fund-raiser” picnic. It was at this “fund-raiser,” which allegedly took place a day following the robbery, that the defendant testified he seized the gun from a “troublemaker.”

      . No objection was made at trial to the admission of the identification testimony of the seven witnesses. It was not until the sentencing proceeding that appellant raised this objection in a motion for a new trial. During defense counsel’s closing argument, the following exchange took place :
      Mr. Reichmann: . . . but the point is it hasn’t been demonstrated to your satisfaction as to why the use of photographs was accomplished rather than the more fair process of a lineup.
      I say to you that this use of photographs is the most outrageous use of photographs that you are ever going to see as jurors, the most unfair, suggestive use of photographs.
      What happens? Mr. Lincoln tells you that, “I showed the witnesses pictures that were taken during the robbery to make sure we are talking about the right robbery suspect.” Now, if he does that, you can be sure he shows it to them first rather than afterwards, because what is the point of showing the picture of the robbery suspect that is taken during the robbery after? He wants to make sure that the particular witness is talking about the robbery suspect. That is his reason that he gives you for showing this picture or these pictures that are taken during the robbery.
      And so the witnesses are first shown pictures taken during the robbery, and then out comes a spread of pictures. This happens, let us say, a month later. You will recall it is on September 26, five or six weeks after the robbery, that these groups of pictures are shown. Most the witnesses—
      The Court: Counsel, approach the side bench.
      (The following further proceedings were had at the bench, in the presence and out of the hearing of the jury :)
      The Court: The inference the Court is receiving from the argument of counsel is that this defendant has not had a fair trial, and that the methods of identification have been unfairly permitted into evidence and that the identification itself has been unfairly admitted into evidence. Is that intended as the implication ?
      Mr. Reichmann: Absolutely not. There is absolutely no inference.
      The Court: Is there any question in your mind at all that there were available procedures to you for testing any of the methods of identification by photo spread or otherwise?
      Mr. Reichmann: There is no claim of that at all, your Honor.

        Tlie Court: All right. Then, of course, counsel may answer in an appropriate fashion.
      Mr. Reichmann: Nobody is claiming—
      The Court: If necessary, we will sum up in the area the evidence that has been brought already and explain to the jury, if necessary, that other available procedures were open to you and that this has been a fair trial, because we will not permit the inference that a defendant in this courtroom has not had a fair trial. We will reopen the matter to take or make any motions you wish.
      Mr. Reichmann: Your Honor, there are no motions. I have not made any complaint whatsoever about the conduct of this Court. I have made no complaint whatsoever. I don’t understand what the Court is indicating.
      The Court: Perhaps you should read your remarks over at the conclusion of your argument.
      Proceed.
      R.T. 413-416.

      . The court was apparently referring to the following language, found at 384 U.S. at 476-477, 86 S.Ct. at 1629. See Groshart v. United States, 392 F.2d 172, 177 (9 Cir. 1968):
      “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any ' statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner ; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In faet, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.”

      . Although perhaps differing in their relative values for impeachment and evidentiary functions, we perceive no distinction between an instance where a statement is obtained in violation of Miranda and where tangible evidence is obtained through an illegal search and seizure relative to the underlying policy of serving as a deterrent to illegal police action. This being so, the same general considerations should govern the admissiblity of each type of evidence for impeachment purposes, subject of course, to the inherent qualities of each type of evidence being considered. For instance, a statement defective under Miranda would still have to meet adopted standards of trustworthiness.

      . Harris has been cited in three cases in this circuit without extensive discussion. In Howard v. Craven, 446 F.2d 586 (9th Cir. 1971), Harris was distinguished and held not applicable where a prior conviction obtained without counsel was admitted to discredit the defendant’s character.
      In United States v. Davis, 447 F.2d 988 (9th Cir. 1971), the text of the entire per curiam opinion was:
      The judgments of conviction are affirmed. Harris v. New York (citation), answers the point made under Mallory v. United States, (citation).
      Other points we find without merit.
      In Brooks v. United States, 449 F.2d 1296 (9th Cir. 1971), the court stated, “ . assuming arguendo illegal search, under Harris v. New York, the trial judge properly admitted the letter if it met trustworthy standards, which it would.”