author: MILLER, Judge.

text:
    61 ccpa
    S. Y. RHEE IMPORTERS, Appellant, v. The UNITED STATES, Appellee.
    Customs Appeal No. 5527.
    United States Court of Customs and Patent Appeals.
    Nov. 1, 1973.
    William E. Melahn, Rode & Qualey, New York City, attys. of record, for appellant.
    Irving Jaffe, Acting Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, New York City, Frank J. Desider-io, Dept, of Justice, Civil Div., Customs Section, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MILLER, Judge.

This appeal is from the decision and judgment of the United States Customs Court, 69 Cust.Ct. 177, C.D.4391, 353 F.Supp. 880 (1972), overruling appellant’s protest against the classification as toys, not specifically provided for under TSUS (Tariff Schedules of the United States) item 737.90 of imported plastic inflatable articles having humorous sayings or greetings thereon. We affirm.

Appellant contends that the articles in question should have been classified under TSUS item 790.39 which reads:

790.39 Pneumatic mattresses and other inflatable articles not specially provided for . . . 10% ad val.

An alternate contention in the court below that the articles are dutiable as greeting cards under item 274.05 of the Tariff Schedules is not pursued here.

The articles are of various colors and shapes and are imported in a deflated condition, each in a small plastic outer wrapping. The sayings or greetings on the articles vary according to the appearance of an article when it is inflated and, as noted by appellant, express sentiments keyed to a holiday or event in a recipient’s life. For example, one article is in the shape of a ladybug with the various colors necessary to create the image of a ladybug. The underside of the article has the following saying: “Don’t worry about a thing! They’ve found the BUG that bit you!!”

After importation, the articles are packaged for sale at retail in a specially designed retail envelope which includes the inflatable article and a separate mailing envelope. The retail envelope conveys information that the contents are “A GREETING PLUS A GIFT FOR ALL AGES.”

Concerning the tariff classification of toys, the Customs Court in its opinion referred to United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A. D. 1022, 440 F.2d 1384 (1971), where this court declared:

The term “toy” is defined in the tariff schedules as “any article chiefly used for the amusement of children or adults.” In interpreting and applying this provision, the courts are precluded from entertaining any considerations of relative specificity with regard to any provisions outside schedule 7, part 5, subpart E, in which the “toys” item appears.

The Customs Court then said:

In view of the customs classification, presumptively the chief purpose of the inflatable articles is to amuse a child or adult. That purpose is not refuted by the evidence adduced at trial. The drawings on the articles indicating what the articles are intended to represent and the “gag” or humorous sayings on the articles, furthermore, support the presumption that these inflatables are articles chiefly used for the amusement of children or adults. “Greetings” and “amusement” are not mutually exclusive, and the fact that the inflatables have a “gag” or humorous “greeting” of sorts is not inconsistent with their classification as articles chiefly used for the amusement of children or adults.

In reaching its decision, the Customs Court followed General Interpretative Rule 10(e)(i), which states that “[T]he controlling use is the chief use, i. e., the use which exceeds all other uses (if any) combined . . ..”

Although we agree with the Customs Court that greetings and amusement are not mutually exclusive, we emphasize that chief use as amusement would be inconsistent with chief use as a greeting card, for example, under General Interpretative Rule 10(e) (i). Therefore, for appellant to prevail, it must first carry the burden of proving that the protested classification was in error or, in other words, that the chief use of the articles in question is not amusement.

This leads to appellant’s primary argument that the lower court found chief use as a greeting card. Great emphasis is placed on a statement by the Customs Court that “[t]he evidence preponder-ently establishes that the imported inflatable articles are sold and purchased in the same manner that ordinary greeting cards are sold and purchased.” (Emphasis supplied.) Appellant then argues that the Customs Court was, therefore, inconsistent in finding chief use as a greeting card and then classifying the imported items as toys. Such an inconsistency would, of course, be erroneous. However, as quoted above, the Customs Court clearly stated that the chief purpose of amusement “is not refuted by the evidence adduced at trial.” Moreover, it said:

It is relatively of little probative value that the articles are sold at counters that feature “greeting cards” consisting essentially of printed matter, and not by retail stores that sell toys exclusively. There are few stores that any longer have a corner on the toy market.

This court has had occasion to point out that the manner in which an article is bought and sold is not necessarily determinative of its classification. United States v. Ignaz Strauss and Company, Inc., 37 CCPA 32, C.A.D. 415 (1949); United States v. Ignaz Strauss and Company, Inc., 37 CCPA 48, C.A.D. 418 (1949). Novelty Import Company, Inc. v. United States, 53 Cust.Ct. 274, Abstract No. 68780 (1964) is also in point. There certain imitation poodle dogs were classified as manufactures of rayon and other synthetic textiles. The importer protested that they were properly classifiable as toys not specially provided for and presented testimony concerning their display in toy sections of stores and their sale to toy jobbers. In overruling the protest, the Customs Court declared:

The mere fact that three of the witnesses sold the imported items to toy jobbers and the other witnesses observed them displayed in the toy section of large stores, does not ipso fac-to make the involved merchandise toys since the merchandising medium through which articles may be sold is not always a proper criterion through which to judge the classification of an article. United States v. Ignaz Strauss and Company, Inc., 37 CCPA 32, C.A.D. 415.

Accordingly, we do not agree with appellant that the Customs Court found chief use as a greeting card and reached a result inconsistent with such finding.

The question then becomes one of whether appellant’s evidence below was sufficient to sustain its burden of proving that the chief use of the articles in question was not amusement of children or adults. In holding that such evidence was not sufficient, we note that almost all of the testimony of appellant’s witnesses related to use in the hands of the retail purchaser (the sender). Only very briefly did two of these witnesses, refer to use in the hands of the recipients — the ultimate users, and that testimony was not inconsistent with the concept of chief use for amusement of the recipients. In contrast, appellee’s witnesses concentrated on use in the hands of the recipients. We hold this, to be the decisive point of emphasis here, for the purchaser merely served as a conduit in enabling the articles to achieve their chief use — use in the hands of the recipient. And appellee’s witnesses left no doubt that this was amusement. Indeed, it appears that such use was the very reason why the articles were purchased instead of ordinary greeting cards and that the “greeting” use was merely incidental to the chief use of amusement rather than the other way around, as appellant suggests.

We note further that three of appellant’s four witnesses considered the articles to be toys or not to be toys upon the basis of whether they were or were not used as playthings — a factor considered irrelevant by this court upon enactment of the Tariff Schedules of the United States. United States v. Topps Chewing Gum, Inc., 58 CCPA 157, C.A.D. 1022, 440 F.2d 1384 (1971).

Appellant argues that its motion to strike certain opinion testimony of appellee’s expert witness should have been granted below. However, appellant admits that this witness was a qualified psychologist having past experience with greeting cards. The record also shows that he had experience with modes of communication and greetings relating to the giving and receiving of gifts and that he had observed the articles in question both before and during the trial. Accordingly, we do not find the Customs Court’s denial of the motion to have been in error. Wigmore on Evidence, Sections 557 and 678, Vol. II (1940); Rule 703, Rules of Evidence for United States Courts and Magistrates, July 1, 1973.

The judgment of the Customs Court is, therefore, affirmed.

Affirmed.

      . The relevant provisions relating to TSUS item 737.90 are as follows:
      Schedule 7. — Specified Products : Miscellaneous And Nonenumerated Products Part 5. — Arms and Ammunition; Fishing Tackle; Wheel Goods; Sporting Goods, Games and Toys Subpart E. — Models; Dolls, Toys, Tricks, Party Favors Subpart E. Headnotes:

      * * * * *
      2. For the purposes of the tariff schedules, a “toy” is any article chiefly used for the amusement of children or adults.
      * * * * * *
      Toys, and parts of toys, not specifically provided for:
      737.80 Toys having a spring mechanism * * *
      737.90 Other.....28% ad val.


source: Caselaw Access Project

author: HASTINGS, Judge.

license: Public Domain

text:
    NATIONAL PETROLEUM REFINERS ASSOCIATION et al., Plaintiffs-Appellants, v. John T. DUNLOP, Director, President’s Cost of Living Council, et al., Defendants-Appellees.
    No. DC-16.
    Temporary Emergency Court of Appeals.
    Oct. 23, 1973.

      William Simon, Howrey, Simon, Baker & Murchison, Washington, D. C. (Alan Wiseman, Washington, D. C., oh the brief), for plaintiffs-appellants.
    William C. White, Atty., U. S. Dept, of Justice (Irving Jaffe, Acting Asst. Atty. Gen., William E. Nelson and John N. Hanson, Attys., Dept, of Justice, Washington, D. C., on the brief), for defendants-appellees.
    Before TAMM, Chief Judge, and VAN OOSTERHOUT and HASTINGS, Judges.
   HASTINGS, Judge.

This case, involving challenges to certain Cost of Living Council (CLC) Phase IV petroleum regulations, is before us on certification from the district court pursuant to § 211(c) of the Economic Stabilization Act of 1970, as amended. Section 211(e) requires such certification where “substantial constitutional issues” are raised in suits brought under the Act.

Plaintiffs have strenuously argued, both here and in the court below, that certification is improper here inasmuch as the constitutional issues are “peripheral” to this lawsuit. The CLC agrees that the case was improperly certified, but for the reason that plaintiffs’ constitutional claims are without merit and thus are not “substantial” within the meaning of the Act. The parties of necessity have fully briefed and argued the entire case before this court, including the substantial nonconstitutional questions involved, and the CLC urges that we now decide the case on the merits in the interest of judicial economy. This we decline to do. Rather, we agree with the parties that the ease was improperly certified and, for the reasons stated below, shall remand for a trial on the merits.

Initially, we observe that the trial court has incorrectly certified the entire case to this court. Section 211(c) states that when the trial court “determines that a substantial constitutional issue exists, the court shall certify such issue to the Temporary Emergency Court of Appeals.” (Emphasis supplied.) The appeals court may then, in its discretion, direct that the “entire action be sent to it for consideration,” or it may treat the certified issues and remand the case for further disposition below. In disposing of this case we shall view the procedure here as one of certifying all constitutional issues raised by the parties in their pleadings and memoranda filed in the trial court.

Plaintiffs brought this action on August 27, 1973, seeking a declaratory judgment and injunctive relief to prevent defendants from enforcing against them section 150.352 and subsections 150.355(e), 150.358 (k), and 150.359(d) of Subpart L, Part 150 of the CLC Phase IV regulations. These sections require, inter alia, that retailers of gasoline post on their pumps the octane number of the gasoline (§ 150.355(e)); that refiners and resellers of gasoline certify to purchasers in writing the octane number of gasoline sold (§ 150.-358(k) and § 150.359(d)); and that the octane number which is posted or certified be computed by dividing by two the sum of the “research” and “motor” octane numbers as described by the American Society for Testing and Materials (§ 150.352). On brief the CLC asserts that the purpose of the regulations is to “assist in precluding reductions in quality without corresponding price reductions.”

A hearing on plaintiffs’ motion for a preliminary injunction was scheduled for August 29, 1973. At the hearing the district court on its own motion and over plaintiffs’ objection decided to certify the case to this court. The district court denied plaintiffs’ motion for a temporary restraining order but did not rule on the motion for a preliminary injunction. On August 30, plaintiffs filed a motion for a preliminary injunction in this court, which we denied on September 4, with the notation that such denial “reflects in no degree or manner a decision on the merits of this case.” The case was consolidated for oral argument with T.E.C.A. Nos. DC-14, DC-15, and 6-3, each of which challenged some or all of the Subpart L petroleum regulations.

With deference, we have concluded that the district court, in certifying this case, has misconceived the nature of the challenge to the regulations brought by these plaintiffs. Unlike DC-14, DC-15, and 6-3, which challenge the pricing provisions of Subpart L primarily on the grounds of unconstitutional discrimination, the principal issues here involve statutory interpretation and agency discretion.

The major portion of plaintiffs’ lengthy complaint is devoted to developing two basic claims, which may be summarized as follows:

1. The challenged regulations are in excess of the statutory authority of the Council, in that a statutory mandate to stabilize prices cannot be read to authorize regulations which require the certification and posting of product ingredients (paragraphs 8, 16, and 29); and
2. The challenged regulations are arbitrary and capricious, primarily because octane is only one of twelve characteristics of gasoline which are indicative of quality (paragraphs 8, 16-24, 28, 30-31).

Both claims are grounded, not on the Constitution, but on § 211(d)(1) of the Act, which provides in pertinent part:

* * * no regulation of any agency exercising authority under this title shall be enjoined or set aside, in whole or in part, unless a final judgment determines that the issuance of such regulation was in excess of the agency’s authority, was arbitrary or capricious, or was otherwise unlawful under the criteria set forth in section 706(2) of title 5, United States Code * * *

It is true that the complaint also raises several constitutional issues. Paragraphs 26 and 32 claim a denial of due process in violation of the Fifth Amendment, in that the regulation “invidiously discriminates” against plaintiffs by requiring the gasoline industry alone to certify and post product ingredients. The prayer for relief seeks a declaration, inter alia, that the CLC failed to establish “adequate standards,” in violation of the due process clause. Also, paragraphs 25 and 32 allege, inter alia, that the “regulation constitutes an improper delegation of legislative authority,” presumably in violation of Article I of the Constitution. Nevertheless, a review of the complaint as a whole compels the conclusion that the constitutional issues here are in fact peripheral to this lawsuit. Two of these issues are not discussed at all in plaintiffs’ fifteen page memorandum to the trial court, and the sole constitutional issue there treated is relegated to a single, five line paragraph. We think it clear that in the context of this litigation, the constitutional issues are not substantial within the meaning of § 211(c), and that the certification was improper.

In thus disposing of the case, we express no opinion on the merits of plaintiffs’ claims, constitutional or otherwise. Section 211(c) grants this court wide discretion in disposing of certified constitutional issues. An issue which is “substantial,” in the sense that it is not without merit, may nevertheless be remanded to the trial court where the need for factual development so dictates. Here, for example, the discrimination question likely turns on whether the CLC possessed a rational basis for its alleged singling out of the gasoline industry for imposition of an ingredients posting requirement. See United States v. Lieb, 462 F.2d 1161, 1167 (T.E.C.A.1972), citing Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971). Resolution of the rational basis question in turn requires consideration of the often complex economic data which prompted the CLC action. Such consideration is best performed in the first instance by the district court. Cf. Western States Meat Packers Association, Inc. v. Dunlop, 482 F.2d 1401 (T.E.C.A.1973), where in deciding a certified due process issue we relied heavily on the district court record and findings reported in Pacific Coast Meat Jobbers Association, Inc. v. Cost of Living Council, 481 F.2d 1388 (T.E.C.A.1973). Thus, even if plaintiffs were here primarily relying on constitutional arguments — which they are not — the appropriate disposition might well be to remand the case for factual development at the district court level.

Plaintiffs in their brief “renew their motion for a preliminary injunction,” heretofore filed August 30, 1973, and denied by this court on September 4, 1973. In view of our disposition of this case, such renewed motion for a preliminary injunction is denied.

In light of the foregoing, the certification by the district court is vacated and this cause is remanded for a trial on the merits.

Remanded with instructions.

      . “ § 211 Judicial review
      * * * * *
      (c) In any action commenced under this title in any district court of the United States in which the court determines that a substantial constitutional issue exists, the court shall certify such issue to the Temporary Emergency Court of Appeals. Upon such certification, the Temporary Emergency Court of Appeals shall determine the appropriate manner of disposition which may include a determination that the entire action be sent to it for consideration or it may, on the issues certified, give binding instructions and remand the action to the certifying court for further disposition.” 12 U.S.C.A. § 1904 n. (Supp.1973).

      . The trial court’s notice of certification, which also certified Schirtzinger v. Dunlop, T.E.C.A. No. DC-15, states in pertinent part:
      “ * * * The matter having come on for hearing on Plaintiff’s Motion for Preliminary Injunction in each of the cases and because of the fact that the parties have raised substantial constitutional questions as to Subpart L of the Phase IV Oil Regulations, particularly as they relate to the Due Process Clause of the Fifth Amendment to the Constitution of the United States, and pursuant to the authority conferred upon the Temporary Emergency Court of Appeals to hear and determine the issues when a ‘substantial constitutional issue exists,’ I hereby certify each of the above-entitled cases to the Temporary Emergency Court of Appeals for appropriate disposition along with Murray Anderson, et al. v. John T. Dunlop, et al., C.A. No. 1621-73 [366 F. Supp. 582], decided August 24, 1973 by Judge Barrington D. Parker.”

      . Sections 150.352, 150.358 (k), and 150.-359(d) are found at 38 Fed.Reg. 22536 (Aug. 22, 1973) ; § 150.355(e) is at 38 Fed.Reg. 23794 (Sept. 4, 1973). On September 28, 1973, the Council announced significant amendments to Subpart L. 38 Fed.Reg. 27290 (Oct. 2, 1973). However, the changes registered with respect to the sections here challenged do not appear to affect this dispute.

      . Plaintiffs do not complain of the requirement for posting the ceiling price. Our only concern here is the challenge to posting the octane rating.

      . Anderson v. Dunlop, decided by our court Oct. 10, 1973.

      . Schirtzinger v. Dunlop, certified Aug. 29, 1973, now pending.

      . Michigan Petroleum Association v. Cost of Living Council, filed Sept. 5, 1973; agreement of dismissal filed by the parties Oct. 16, 1973.

      . Scant mention also is made in the complaint and in plaintiffs’ brief to this court of a third statutory claim: that the President and his delegate, the CLC, have violated § 203(a) and (b) of the Act by failing to state reasons for the regulations and by failing to establish adequate standards.

      . The reference therein to 5 U.S.C. § 706(2) incorporates the subsection of the Administrative Procedure Act which sets forth standards for judicial review.

      . General Rule 32(b) of the Temporary Emergency Court of Appeals provides that in certification cases this court may require that the record in the district court be forwarded for consideration. Normally, a record sufficient to decide “rational basis” due process questions would be compiled in the trial court in the first instance. Here, the district court apparently felt that the issues were adequately developed by the pleadings, briefs, and affidavits, and by the record in Anderson v. Dunlop, reference to which is expressly made in the notice of certification. (See n. 2 supra.)

      . We do not hold that in every case in which a constitutional issue exists the trial court must first resolve all nonconstitutional questions before certifying constitutional issues to this court. Cf. Hannah v. Larche, 363 U.S. 420, 430, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). Section 211(c) clearly anticipates that this court, in its discretion, may choose to consider an entire action. Where substantial constitutional issues are raised, it is for the Temporary Emergency Court of Appeals to determine the appropriate disposition, which may include remanding the case for further development at the trial level.


author: HEANEY, Circuit Judge.

text:
    Jerry CAMPBELL, Appellant, v. STATE OF MINNESOTA, Appellee.
    No. 73-1373.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Nov. 13, 1973.

      Bernard P. Becker, Minneapolis, Minn., for appellant.
    Theodore B. Rix, Asst. Hennepin County Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

The defendant was tried in Minnesota’s Hennepin County District Court and convicted of murder in the first degree. He contended at trial that certain evidence procured through a search of his home, pursuant to a search warrant, should be suppressed because the finding of probable cause for the search by the issuing judge was erroneous. He also objected to the introduction of evidence of his blood type secured without a warrant while he was recovering from surgery in a hospital. The trial court found that the search warrant was issued on a proper probable cause finding and that the defendant consented to the taking of a sample of his blood. The defendant urged these and other claims as a basis for reversal in his appeal to the Minnesota Supreme Court. The court affirmed the conviction. State v. Campbell, 281 Minn. 1, 161 N.W.2d 47 (1968).

The Supreme Court held that an affidavit of Detective Robert D. Anderson of the Minneapolis Police Department, plus his oral testimony before the issuing Municipal Judge (Elmer Anderson) provided sufficient probable cause for the issuance of the warrant. The court then found that:

Apart from the record itself, post-trial affidavits of Detectives Anderson and Pufahl, as well as Judge Anderson himself, remove any vestige of possible doubt as to the substance of the information upon which Judge Anderson issued the warrant.

State v. Campbell, supra at 53 n. 6.

The defendant next sought a writ of habeas corpus from the United States District Court for the District of Minnesota. His principal claims were that his rights under the Fourth Amendment were violated by (1) a search conducted pursuant to a warrant obtained without probable cause, and (2) the introduction of blood samples taken without his consent. The District Court denied his petition.

The facts can be briefly summarized. Hanson’s Super Fair Store, located at 4245 Fourth Avenue South, in Minneapolis, was robbed shortly after 9:30 p. m. on October 21, 1965. During the robbery, Wilford Hanson, the proprietor, was killed and the robber escaped with a stab wound in the chest area. Detectives Robert D. Anderson and Aloysius Pufahl of the Minneapolis Police Department were led in their investigation of the crime to Hennepin County General Hospital where the defendant had been admitted to surgery with a stab wound in his upper stomach. After a check of the defendant’s police record, the detectives went to the home of Judge Elmer Anderson of the Hennepin County Municipal Court and obtained a warrant for the search of the defendant’s apartment. The warrant was obtained at about 1:00 a. m. on October 22.

The part of Detective Anderson’s affidavit submitted to Judge Anderson with which we are concerned reads:

* * [T]he facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: Robbery and homicide occurred at 9:50 p. m. October 21, 1965, at Hanson’s Super Fair 4245 4 Ave. So. Suspect of homicide was stabbed and fled. Within one hour, one Jerry Henry Cambell [sic] was admitted to General Hospital with a stab wound. Campbell lives within two bldcks of scene. Has criminal record for robbery. Cambell [sic] admits being stabbed in this area.

At approximately 11:00 a. m., on October 22, Detective Russell Krueger and another detective went to General Hospital and obtained a sample of defendant’s blood. A blood analysis revealed that this sample was of the same grouping as that found on the robber’s abandoned paper mask and on certain items found in the defendant’s apartment.

The defendant contends on appeal that:

1. There is not sufficient competent evidence on the record to support a finding of probable cause for the issuance of the search warrant.
(a) The affidavit presented to Judge Anderson was not sufficient to establish probable cause.
(b) The information stated by Detective Anderson in the state court trial to have been conveyed orally to Judge Anderson was not sufficient to establish probable cause, even when considered with the affidavit.
(c) It has not been shown that the oral testimony before Judge Anderson was given under oath.
(d) The affidavits submitted to the Minnesota Supreme Court cannot be used to support a finding of probable cause.

2. The blood samples were taken from the defendant without his consent and without a warrant and, thus, his rights under the Fourth and Fourteenth Amendments were violated.

The affidavit presented to Judge Anderson does not provide a sufficient basis upon which a finding of probable cause could have been made. See, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). It fails to set forth any of the underlying circumstances necessary to enable the magistrate to judge independently Detective Anderson’s conclusion that the defendant had robbed and murdered the proprietor of Hanson’s Super Fair Store. There is no indication in the affidavit of the basis of the detective’s knowledge of the facts stated therein. Moreover, the record before us does not establish that these defects were cured by the oral information given to Judge Anderson. Detective Anderson testified at the state court trial that he told Judge Anderson:

* * * [A] crime had been committed in the City of Minneapolis and a man had been shot and killed by a holdup man. I told him that a party had come into General Hospital fitting generally the description of the holdup man suffering from a wound that we felt could have been sustained at the scene and that the man’s room that we wanted to search lived within two blocks of the scene of the holdup shooting and that due to his prior record and his companions, that we felt that a search warrant was necessary at this time.

This testimony is largely repetitious of the statements in the earlier affidavit and suffers from the same defects.

We find that the United States District Court erred in relying upon the affidavits submitted to the Minnesota Supreme Court. 28 U.S.C. § 2254 requires a federal court to hold an evidentiary hearing in habeas corpus cases when there was a dispute on the facts and “ * * * the fact-finding procedure employed by the State court is not adequate to afford a full and fair hearing * * Here, there is a factual issue, i. e., what did Detective Anderson tell Judge Anderson when he made application for the search warrant. The procedure employed by the Minnesota Supreme Court to resolve this factual issue was not adequate. The defendant did not have an opportunity to cross-examine the affiants. Such an opportunity is a necessity, especially where the memories of the affiants may have dimmed over the two-year period between application for the warrant and submission of the affidavits. Although the information in the affidavits submitted to the Minnesota Supreme Court may very well have been conveyed to Judge Anderson on October 22, the defendant is entitled to have this issue determined in an evidentiary hearing where both parties have an adequate opportunity to present relevant evidence and rebut the evidence of the opposition.

We do not criticize the actions of the detectives or of Judge Anderson. The police officers are to be commended for seeking the warrant, and the judge is to be commended for receiving the officers in the middle of the night and for accepting oral testimony to supplement the affidavit, which must have appeared to him to be sketchy. While it would have been preferable to make a contemporaneous recording of the testimony, this failure can certainly be excused under the circumstances. Moreover, there is nothing in the Fourth Amendment to require the adoption of such a procedure. United States v. Berkus, 428 F.2d 1148, 1152 (8th Cir. 1970). Our only concern is that the defendant has not been given an opportunity to examine Judge Anderson and the detectives with respect to (1) whether the oral testimony was given under oath, and (2) what the substance of the testimony was. The defendant urges that a reversal here would be inconsistent with our earlier decision in Berkus. We do not agree. We simply held in Berkus that a written affidavit in support of a search warrant could be supplemented by unrecorded (sworn) oral testimony. We reaffirm that decision here and simply add that if there is a dispute with respect to the oral testimony, the defendant must be provided an evidentiary hearing to resolve that dispute.

There was adequate evidence to support the finding made by the state trial court, and adopted by the United States District Court, that the defendant consented to the taking of a sample of his blood. This issue was fully and adequately developed at trial.

Reversed' in part, affirmed in part, and remanded to the District Court for action consistent with this opinion.

The nearly unanimous view is that the Fourth Amendment requires that only information related to the magistrate on Oath or affirmation is competent upon which to base a finding of probable cause; that unsworn oral statements may not form a basis for that decision. It is clear that Detective Anderson swore that the contents of the affidavit were true. What is not clear is whether his oral testimony was given under oath. Therefore, we must direct the District Court to make an independent factual finding after a hearing on this issue.

      . These affidavits give a detailed account of the detectives’ investigation of the crime. They reveal the underlying circumstances which led the officers to seek a warrant and include all sources of information, e. g., Detective Anderson’s affidavit recites:
      That your Affiant’s recollection is that he informed Judge Anderson of the following: That the information as to the happening of the robbery, homicide and stabbing was obtained by Affiant from personal observation at the scene of the crime and by interviewing eyewitness-victims of said robbery and events; That said eyewitnesses also gave your Affiant the description of the hold-up man; That your Affiant was informed by his superior, Captain Henry Deason, in charge of the Homicide Division of the Minneapolis Police Department, that a [N]egro male fitting the description of the hold-up man and with a stab wound had been admitted to Henne-pin County General Hospital admission record was examined by your Affiant and showed that the suspect was named Jerry H. Campbell and lived at the address named in the search warrant; That your Affiant had examined official records of the City of Minneapolis Police Department Bureau of Identification which disclosed that said Jerry H. Campbell had been picked up by the Federal Bureau of Investigation on a fugitive warrant for robbery; That said Jerry II. Campbell was a suspect for robberies committed in Waterloo, Iowa supermarkets, that Jerry H. Campbell was from Waterloo, Iowa, and that said Jerry H. Campbell’s brother was wanted on a warrant for robberies and was reported to frequent Jerry H. Campbell’s residence; That your Affiant also informed Judge Anderson that he had talked to one Ronald Seth Sims, a neighbor of said Jerry H. Campbell, who had brought said Jerry H. Campbell to Hennepin County General Hospital for treatment of a stab wound; That said conversation took place at the Minneapolis Police Department Headquarters where said Ronald Seth Sims voluntarily appeared; That your Affiant had verified what Sims related by examining said Jerry I-I. Campbell’s admission record at the Hennepin County General Hospital; That said record showed that he had been brought to the said Hospital by said Ronald Seth Sims[.]

      . In his state court trial testimony, Detective Anderson did not claim that any additional information was conveyed orally to Judge Anderson. . In giving his reasons for seeking a warrant, however, Detective Anderson stated essentially the same facts subsequently asserted in the affidavits submitted to the Minnesota Supreme Court to have been conveyed orally to Judge Anderson.

      . Although 28 U.S.C. § 2246 provides for the taking of evidence by affidavit, such a procedure cannot be used to resolve substantial disputed questions of fact. Copenhaver v. Bennett, 355 F.2d 417, 421 (8th Cir. 1966).

      . See, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

      . See, Gillespie v. United States, 368 F.2d 1 (8th Cir. 1966) ; Miller v. Sigler, 353 F.2d 424 (8th Cir. 1965), cert, denied, 384 U.S. 980, 86 S.Ct. 1879, 16 L.Ed.2d 690 (1966).

      . Even contemporaneous notes taken by the issuing judge — outlining the content of any oral testimony — would have been helpful. Again, however, the Constitution does not require adoption of such a procedure.

      . This Court stated in Frazier v. Roberts, 441 F.2d 1224 (8th Cir. 1971) :

      . In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the United States 'Supreme Court held that a warrant to take a blood sample was not necessary in the “emergency” situation faced there. Here, there has been no showing of an emergency and the defendant’s consent was required.


author: CHOY, Circuit Judge: HASTIE, Circuit Judge CHAMBERS, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernest G. RAWLINSON, Defendant-Appellant.
    No. 73-1660.
    United States Court of Appeals, Ninth Circuit.
    Nov. 1, 1973.
    Certiorari Denied March 18, 1974. See 94 S.Ct. 1579.
    Hastie, Circuit Judge, dissented and filed opinion.
    Richard H. Chambers, Circuit Judge, concurred specially and filed opinion.

      Charles M. Sevilla (argued), of Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    Douglas G. Hendricks, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before CHAMBERS, HASTIE and CHOY, Circuit Judges.

       The Honorable William H. Hastie, Senior United States Circuit Judge, Third Circuit, sitting by designation.

      . The Alderman Court, in fact, indicated it might well be proper to conduct in camera interviews with informants. In a footnote the Court cited Roviaro as a situation where in camera proceedings “have been found acceptable to some extent.” Alderman v. United States, 394 U.S. at 183 n. 14, 89 S. Ct. at 971 n. 14.

   CHOY, Circuit Judge:

Ernest G. Rawlinson was convicted after a jury trial of one count of possession of heroin in violation of 21 U.S.C. § 841(a)(1) (1970). Prior to the trial, he filed a motion to reveal the identity of a confidential government informant. The motion was denied after the trial judge held an in camera interview with the informant from which he determined that the informant’s testimony would not be helpful to the defense. Rawlin-son was sentenced to three years imprisonment with three years special parole. We affirm.

There were substantial conflicts at trial between the testimony of Rawlin-son and Officer Stephen Smith, an undercover agent assigned to the Federal Drug Abuse Law Enforcement Agency who was present on the day the alleged offense occurred. Rawlinson testified that the informant was persistent in his requests that Rawlinson obtain heroin for him. The appellant contends that it was only this persistence combined with what he testified was the informant’s obvious addiction to drugs that overcame his reluctance to obtain the heroin. Smith, on the other hand, testified that the informant’s conversations with appellant were brief, were not in any sense urgent pleas for heroin, and that the informant did not exhibit any signs of addiction on the day in question. Rawlin-son argues that his version of the facts constitutes entrapment to which the informant’s testimony, if favorable, would be highly relevant. Thus, he contends, it was error not to reveal the identity of the informant, after which the defendant, and not the trial judge by use of an in camera hearing, could best determine the usefulness of the testimony.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), the Supreme Court held that an informant’s identity must be revealed whenever it would be “relevant and helpful” to an accused’s defense or “essential to a fair determination of a cause.” 353 U. S. at 60-61, 77 S.Ct. at 628. However, the Court noted that protecting an informant’s confidentiality serves important law enforcement objectives and, therefore, determining whether to reveal an informant’s identity requires balancing the needs of law enforcement against the individual’s interest in having a fair trial.

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls, for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case. .

Roviaro v. United States, 353 U.S. at 62, 77 S.Ct. at 628; see United States v. Alvarez, 472 F.2d 111, 113 (9th Cir. 1973).

We believe that in most situations an in camera hearing provides a salutary means by which to satisfy the balancing of interests required by Roviaro. The interests of law enforcement are served by protecting the identity of the informant except where a need is demonstrated for disclosure by the informant’s own testimony, and not by the speculative claims of the defendant. A fair trial is promoted by requiring disclosure whenever the in camera hearing demonstrates that the informant’s identity would be “relevant and helpful” to the defense.

The appellant argues, on the basis of Alderman v. United Sates, 394 U. S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), and Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), that only the accused, because of his familiarity with the case, can make a determination as to the usefulness of the ■ informant’s testimony. In Alderman the Court held that the government must produce transcripts of evidence acquired by illegal wiretaps, while in Dennis the Court held that the government must reveal a witness’s grand jury testimony where that witness testifies at trial. In both cases the Court found that an in camera hearing to edit out only that information, if any, which would be relevant to the defense would be inadequate.

However, both Alderman and Dennis deal with significantly different situations than the usual case involving an informant. In both cases the Court stressed the complexity of the task faced by a judge forced to review the ofttimes voluminous and complex records involved in such cases. Not only would this place a heavy burden on limited judicial time, the Court emphasized, but a judge might frequently fail to discover material which would be significant when viewed by the accused. See Alderman v. United States, 394 U.S. 165, 182-184, 89 S.Ct. 961, 22 L.Ed.2d 176; Dennis v. United States, 384 U.S. 855, 874-875, 86 S.Ct. 1840, 16 L.Ed.2d 973. In the usual informant case, the task will not be nearly so onerous. Rather the trial judge will simply, as here, have to determine if the informant’s testimony supports one of two conflicting versions of the facts. Hence, because a judge’s task will be neither burdensome nor complex, with the consequent probability that relevant testimony will not be overlooked, Aider-man and Dennis do not preclude the use of an in camera procedure.

In this ease we have carefully examined the transcript of the in camera hearing conducted by the trial court. Although the hearing was not conducted as vigorously as it might have been, it demonstrates that the informant’s testimony could not have aided the defendant’s case.®

A police officer was also present during this hearing, a fact which the defendant also assigns as error. While we do not approve of such a practice, it is not reversible error. Even if the informant had testified in open court, he would have been conscious of the police reaction to his testimony and its effect upon the disposition of his own criminal case. No additional compulsion was added by the presence of the officer at the in camera hearing.

Finally, defendant argues it was error to admit a statement by Officer Smith that he “investigate[d] street level heroin and cocaine dealers.” This statement was given in response to a routine question and is not, by any means, sufficiently prejudicial to overcome its relevance as evidence.

Affirmed.

HASTIE, Circuit Judge

(dissenting).

It is the rule of Roviaro v. United States, 1956, 353 U.S. 53, 61-62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 that “the identity of an informer who helped set up the commission of the crime and who was present at its occurrence must be disclosed whenever the informer’s testimony may be relevant and helpful to the accused’s defense.” [emphasis added]. There, as here, the informer was a party to a transaction in which the accused allegedly sold narcotics. There, as here, the participating informer’s identity was sought in an effort to corroborate a defense of entrapment. In Roviaro the Supreme Court held that the identity of the informer must be disclosed. I am unable to agree with the majority that a difference betweeen this case and Roviaro is sufficient to warrant a different result.

The difference is that here the district court questioned the informer in camera and concluded that his testimony would not help the accused. The majority opinion recognizes that this questioning was conducted in the presence of a police officer, “was not conducted as vigorously as it might have been” and did not include questions timely filed by defense counsel for the judge’s use. I cannot be confident that such questioning provided an adequate substitute for searching pre-trial examination of the informer by defense counsel, to be followed, if the defense so desired, by testimony of the informer as a witness at trial. Where the individual whose identity is sought was a participant in and an eyewitness to the alleged criminal transaction, I would permit the concealment of his identity from defense counsel only where it appears beyond reasonable doubt that his testimony would not aid the defense. In my view, the in camera examination in this ease did not satisfy that standard and thus did not justify a result different from that in Roviaro’s case.

For these reasons I would set aside this conviction and remand the case for further proceedings consistent with this opinion.

CHAMBERS, Circuit Judge

(concurring) :

I concur because I believe the in camera interrogation was adequate to determine that the informant’s presence would have been of no aid to defendant.

      . Indeed, long recognition of tlie privilege testifies to the importance of this interest. See 8 Wigmore, Evidence § 2374 (McNaughton ed. 1961). Informants are an integral part of law enforcement efforts to halt the flow of narcotics. Often, because illicit sales of narcotics are conducted in secrecy, it is the only method of apprehending street level dealers.

      . This procedure has been approved in a number of other circuits. See United States v. Hurse, 453 F.2d 128, 130-131 (8th Cir. 1971); United States v. Lloyd, 400 F.2d 414, 416 (6th Cir. 1968); United States v. Jackson, 384 F.2d 825 (3rd Cir. 1967), cert, denied 392 U.S. 932, 88 S.Ct. 2292, 20 L.Ed.2d 1390 (1968). See also Proposed Rules of Evidence for United States Courts and Magistrates, rule 510(c)(2). No circuit has disapproved of this procedure.

      . Of course, the government can still protect the informant’s identity by dropping the charges against the defendant.


author: GARTH, Circuit Juge.

text:
    FEDERAL DEPOSIT INSURANCE CORPORATION, a Federal corporation, Appellant, v. Nathan GREENBERG, Appellee.
    No. 71-1358.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 6, 1973.
    Decided Nov. 6, 1973.

      Gregory M. Harvey, Philadelphia, Pa., for appellant; Morgan, Lewis & Boekius, Philadelphia, Pa., of counsel.
    Bernard Chanin, Philadelphia, Pa., for appellee; Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., of counsel.
    Before STALEY, GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Juge.

This appeal involves a narrow question of procedural law: whether Federal Rule of Civil Procedure 4(e)(2), providing for service in quasi-in-rem actions, requires compliance with the rule of venue applied in Pennsylvania attachment proceedings. We hold that it does not.

Appellant Federal Deposit Insurance Corporation (FDIC) instituted this action against appellee Nathan Greenberg, a Massachusetts resident, to set aside the transfer of real property and capital stock from appellant’s debtor (Martin Decker) to appellee. Subject matter jurisdiction of this action is vested in the District Court pursuant to 12 U.S.C. § 1819.

In order to obtain quasi-in-rem jurisdiction below, FDIC caused a Writ of Foreign Attachment to issue against (1) three tracts of real estate in Montgomery County, Pennsylvania (referred to as One, Two, and Three Decker Square), (2) one tract of land in Philadelphia County, and (3) 500 shares of the capital stock of Decreal Corporation. Pursuant to a pretrial motion by appellee (Greenberg), the District Court for the Eastern District of Pennsylvania (wherein this action was brought), sitting in Philadelphia County, vacated the attachments of the Montgomery County realty and the capital stock, 52 F.R.D. 240. FDIC appeals from the order vacating both attachments.

I. Attachment of the Realty

The District Court predicated its order on the “borrowing” provision of Fed.R.Civ.P. 4(e)(2) and on its (the Court’s) interpretation of Pennsylvania foreign attachment procedure. With regard to quasi-in-rem actions originating in the federal courts, Rule 4(e) provides :

Whenever a statute or rule of court of the state in which the district court is held provides . . . (2) for service upon or notice to [a party not an inhabitant of or found within the state] to appear and respond or defend in an action by reason of the attachment or garnishment or similar seizure of the property located within the state, service . . . may be made under the circumstances and in the manner prescribed in the statute or rule.

The writ of attachment for One, Two, and Three Decker Square (Montgomery County) was issued in Philadelphia, there being no place within Montgomery County wherein federal district court is held. The District Court found that this procedure did not comply with Pennsylvania foreign attachment law. Specifically, the Court vacated the attachment of the Montgomery County property on the ground that the writ was issued against property located in a county other than the county in which the Court sits, violating Pennsylvania Rule 1254. This rule provides:

“Venue.
(a) An attachment against personal property of the defendant may be issued in and only in a county in which
(1) the property is located, or
(2) a garnishee may be served.
(b) An attachment against real property of the defendant may be issued in and only in a county in which all or any part of the property is located.”

Implicit in the District Court’s decision is the assumption that Federal Rule 4(e)(2) embraces, at the least, the above provision of the Pennsylvania attachment statutes and thereby automatically requires vacation of the foreign attachment once it is established that Pennsylvania Rule 1254 has been violated.

Literally viewed, we cannot dispute the factual conclusion that Rule 1254 has been contravened. However, we reject the implicit assumption made by the District Court and hold instead that failure to comply with the state venue statute does not vitiate otherwise proper service under Federal Rule 4(e) (2).

Prior to 1963, quasi-in-rem actions could not be commenced in federal court. Big Vein Coal Company v. Read, 229 U.S. 31, 33 S.Ct. 694, 57 L.Ed. 1053 (1913). Actions • commenced in state courts by attachment could, however, be removed to federal district courts provided the ordinary conditions for removal were satisfied. 28 U.S.C. § 1450; Clark v. Wells, 203 U.S. 164, 27 S.Ct. 43, 51 L.Ed. 138 (1906). To eliminate this anomaly, the 1963 Amendments to the Federal Rules included a provision— Rule 4(e)(2) — specifically permitting the initiation of quasi-in-rem actions in district court.

Federal Rule 4(e)(2), looking as it does to state law, is clearly a borrowing provision. Cf. Wright and Miller 4 Federal Practice and Procedure § 1121 (1969). At the outset, it is imperative to recognize that 4(e)(2) does not require a wholesale adoption of state quasi-in-rem procedure. Rather, Rule 4(e) (2) borrows only the methods of service employed in state quasi-in-rem proceedings. Procedural matters unrelated to service are not embraced within the provisions of Rule 4(e)(2), even where such matters may be identified as part of state attachment law. The question raised by the instant case is whether Pennsylvania Rule 1254 is an element of the State's service requirements.

Rule 1254 in effect identifies the court from which writs of foreign attachment shall issue. In a quasi-in-rem proceeding, the court with custody of the res is normally the court that will consider the underlying legal dispute. Thus, Rule 1254 would operate to name the court in which attachment actions will proceed, a function of a venue provision. The title of Rule 1254 — “Venue” —further convinces us that the primary purpose of the rule is to identify the location in which state quasi-in-rem proceedings are to be held.

The concepts of service (the concern of Rule 4(e)(2)) and venue (the concern of Rule 1254) are distinct and not to be confused. 1 Moore’s Federal Practice j[ 0.140[3]. Service of process, a prerequisite of jurisdiction, relates to the power of a court to adjudicate. Venue, on the other hand, is a limitation on the exercise of that power relating to the locality of the lawsuit. Olberding v. Illinois Central Railway Company, 346 U.S. 338, 74 S.Ct. 83, 98 L.Ed. 39 (1953).

We are convinced ' that Rule 4(e)(2) does not direct federal courts to apply state venue procedures such as Pennsylvania’s Rule 1254. Rule 4(e)(2) is to be construed as relating solely to the issue of service, leaving venue to be determined by normal application of federal law. See Great American Insurance Company v. Louis Lesser Enterprises, 353 F.2d 997, 1007 (8th Cir. 1965); Wright and Miller, 4 Federal Practice and Procedure § 1112; Advisory Committee Notes on the 1963 Amendments to Rule 4(e) of the Fed.R. Civ.P. We base our conclusion that Rule 4(e)(2) does not borrow state venue law on several factors.

The title or heading of a rule may be considered in the construction thereof. 12 P.S. App.R.C.P. 129.

The venue of federal courts is a matter of federal law. In McCoy v. Siler, 205 F.2d 498, 499 (3d .Cir.), cert, denied, 346 U.S. 872, 74 S.Ct. 120, 98 L. Ed. 380 (1953), this Court emphasized the dominance of federal law in determining the venue of the district court, declaring that “a state cannot by legislation. modify or repeal a Congressional statute on the venue of federal courts.” Similarly, in diversity cases, federal courts are not bound by state venue laws, despite the fact that the District Court is sitting as a court of the state in which it is located. Erwin v. Barrow, 217 F.2d 522 (10th Cir. 1954). As a statement of procedure, Rule 4(e)(2) speaks of service and not of the distinct concept of venue. Had the Supreme Court and Congress intended that Rule 4(e) (2) borrow state venue law, and thereby limit existing federal venue law, we feel confident that such a direction would have been express. Indeed, Federal Rule 82, declaring that the Federal Rules shall not be construed to extend or limit the venue of the district courts, manifests a contrary intent.

In his discussion of the borrowing of state law for the purposes of federal service of process, Professor Wright mentions that:

Frequently, state law conditions the use of a particular means of service . on the action being brought in the county in which the transaction occurred. Venue restrictions of this type are not binding in a federal court; instead it usually is sufficient that suit is being brought in the federal district that includes the county in question, and some courts have permitted even broader geographic latitude in utilizing state methods of process. There is some indication, however, that the federal courts may apply a stricter rule when service in'a quasi-in-rem is involved; indeed, one court has held that the word “county” in a state quasi-in-rem statute must be read literally. [Dunn v. Printing Corporation of America, 245 F.Supp. 875 (E.D.Pa.1965)]

In Dunn, the District Court was confronted with a situation identical to that presented in the instant case. That Court offered two reasons to support its .conclusion that 12 P.S.App.R.C.P. 1254 precluded garnishment in counties other than those in which the district court sits. First, the Court theorized that out-of-state residents should not be prejudiced merely because a plaintiff chooses a federal rather than a state, forum. 245 F.Supp. at 878. Secondly, the Dunn Court cited the “questionable utility of the use of quasi-in-rem jurisdiction” as a factor in encouraging a literal interpretation of Rule 1254. 245 F.Supp. at 879.

We are not persuaded by the Dunn reasoning. In the first instance, the prejudice involved is no greater than that normally sustained in diversity cases. Such prejudice, if indeed there is any, is minimal. As to the questionable utility of quasi-in-rem proceedings, this is a matter of legislative, and not judicial, concern. We note also that adherence to the Dunn rationale would require incorporation into 4(e) (2) of not only the venue provision, but also the minutiae of the entire attachment procedure of 12 P.S.App.R.C.P. 1251 through 1279. Such a sweeping result was never intended by the adoption of Federal Rule 4(e) (2).

Indeed, were we to adopt the logic of Dunn (upon which the District Court in the instant case relied heavily) we would be repudiating the very purpose for which Rule 4(e) (2) was adopted. Had FDIC commenced this action in state court in Montgomery County, and had appellee thereafter removed to the district court, jurisdiction and venue would have been proper in the Eastern District. 28 U.S.C. §§ 1441(a), 1450 and 1392(b). See also Clark v. Wells, supra. To hold that this action could not be commenced in the district court for the Eastern District would be to reintroduce the anomaly Rule 4(e)(2) was designed to eliminate.

We therefore conclude that the District Court erred in finding itself bound by Pennsylvania Rule 1254. As the attachment of the property in Montgomery County was challenged on no ground other than its conflict with Rule 1254, the Court below should not have vacated the attachment as to One, Two, and Three Decker Square. The order of the District Court vacating the attachment of the real estate will be reversed and the cause remanded with directions to proceed accordingly.

11. Attachment of the Capital Stock The District Court vacated the attachment of the capital stock on the ground that Rule 1254 had been violated. Although we repudiate this rationale, a concession made at oral argument before this Court moots the issue. Counsel disclosed that the 500 shares of stock, not having manually been seized, and previously thought to have been destroyed, lost, or their whereabouts unknown, have since been located in Massachusetts, thereby making vacation of the attachment proper.

In affirming the vacation of the attachment of the capital stock, we are mindful that there has not as yet been an adjudication on the merits of this controversy. Without such an adjudication, FDIC is not barred from engaging in further appropriate attempts to attach the identical res for the identical cause of action. Neifeld v. Steinberg, 438 F.2d 423, 432 (3d Cir. 1971).

Accordingly, the issue of the capital stock attachment having been mooted by concession of counsel, the order of the District Court dated February 22, 1971 vacating the stock attachment will be affirmed.

      . The merits of this controversy are not before this Court at the present time. ■ FDIC, in its complaint, alleges that Martin Decker entered into a sales agreement with his joint venturer (the “Canco interests”) whereby Decker agreed to purchase Canco’s interest in Pennsylvania real estate. Pursuant to the sales agreement, and to assure his performance, Decker delivered to an escrow agent deeds representing his interest in the realty and assignments of his interest in the capital stock of Decreal Corporation, a Pennsylvania corporation. Both the sales agreement and the escrow agreement provided that the escrow agent would deliver the deeds and assignments to Greenberg (as trustee for the Canco interests) upon Decker’s failure to perform his obligations under the sales agreement. FDIC alleges that as Decker’s creditor, it is entitled to set aside the transfer resulting from Decker’s purported forfeiture on October 16, 1970.

      . A writ was issued to attach the 500 shares of stock despite the fact that FDIO was unable to determine the precise location of the stock certificates. Apparently, defendant-appellee was also unaware of the location of the certificates at all times relevant to the District Court’s order. See Appendix at 21a.

      . As to both the property in Montgomery County and the capital stock, the District Court’s order has the effect of dismissing FDIC’s cause of action. The order is therefore appealable as a final order pursuant to 28 U.S.C. § 1291. See 9 Moore’s Federal Practice § 110.08 [1].

      . Court for the Eastern District of Pennsylvania is held at Allentown (Lehigh County), Easton (Northampton County), Reading (Berks County) and Philadelphia (Philadelphia County). 28 U.S.C. § 118. In total, throughout the entire State of Pennsylvania, District Court is held in only 11 of the 67 counties. 28 U.S.C. § 118.

      . 12 P.S.App.R.C.P. 1251 et seq.

      . In its penultimate paragraph, the District Court focused upon the issue of whether Rule 1254 had been violated :
      it is clear that Rule 1254 prohibits in state court actions attachments such as those in issue. We do not believe that we should allow plaintiff to circumvent the requirements of 1254 by permitting such attachment in Federal Court. To do so would be to seriously attenuate the provisions of the rule,
      cite 52 F.R.D. at 242.

      . 2 Moore’s Federal Practice fl 4.32[2],

      . Pennsylvania Rule 129 provides that:

      . As a suit to set aside the transfer of specific property, FDIC’s action is local in nature. Collett v. Adams, 249 U.S. 545, 550, 39 S.Ct. 372, 63 L.Ed. 764 (1919). The plain inference from 28 U.S.C. § 1392(b) is that in local actions, where the property is located within a single district, the proper venue is that district. 1 Moore’s Federal Practice If 0.141 [3], n. 1. As the attached real property is located within Montgomery County, § 1392(b) mandates the Eastern District of Pennsylvania as the proper forum for venue purposes.

      . Wright and Miller, 4 Federal Practice and Procedure, § 1112 (1969).

      . This Court fails to see how appellee Greenberg, a Massachusetts resident, is prejudiced by litigating in Philadelphia County rather than in Montgomery County.

      . The District Court stated in Dunn that: The state rules made applicable to this ease by the afore'stated Federal Buie [4] (e)(2)] are Buies 1251 through 1279 of the Pennsylvania Buies of Civil Procedure, 12 P.S.Appendix, dealing with writs of foreign attachment. 245 F.Supp. at 877.

      . There being no res judicata effect to be given to our determination, we need not follow the instructions of United States v. Munsingwear, 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (established practice where case is mooted on appeal is to reverse or vacate the judgment below and remand with a direction to dismiss), particularly where as here the District Court has directed vacation of the attachment.


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Martin Dewalt MAZURIE et al., Appellants.
    Nos. 73-1077 to 73-1079.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 11, 1973.
    Decided Nov. 8, 1973.
    Certiorari Granted Feb. 25, 1974. See 94 S.Ct. 1468.

      Charles E. Hamilton, Riverton, Wyo., for appellants.
    Lawrence E. Shearer, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., Richard V. Thomas, U. S. Atty., Edmund B. Clark, and Jacques B. Gelin, Attys., Dept, of Justice, with him on the brief), for appellee.
    Marvin J. Sonosky and Glen A. Wilkinson, Washington, D. C., on the brief for amicus curiae, Shoshone Indian Tribe and Arapahoe Indian Tribe.
    Before LEWIS, Chief Judge, and SETH and HOLLOWAY, Circuit Judges.
   SETH, Circuit Judge.

The appellants were prosecuted on an information charging them with the introduction of liquor into “Indian Country.” They were tried by the court, found guilty of a violation of 18 U.S.C. § 1154, and have taken this appeal.

The prosecution was instituted because the defendants did not have a license for their tavern from the Arapahoe and Shoshone Indian Tribes (the Wind River Tribes), permitting the salé of liquor. The tavern of defendants where the charged offense took place is located on land owned in fee by them, but within the boundaries of the Wind River Indian Reservation. The business was licensed under the laws of Wyoming by Fremont County, and had been so operating since 1954. The appellants are not Indians.

The Wind River Tribes in 1953 adopted a regulation which permitted the sale of liquor within the Reservation if it was done in accordance with Wyoming law with no additional requirements. In 1971, however, the Tribes adopted a new regulation which required persons in defendants’ position to also obtain a license from the Tribes. The defendants at the time of the charged offenses did not have such a license, and .this the Government asserts was contrary to 18 U.S.C. § 1161, which section in effect requires such a tribal license to avoid a violation of 18 U.S.C. § 1154 if the sale of liquor is in “Indian Country,” and under “jurisdiction” of the Tribe, and-not in a “non-Indian community” as the terms appear in 18 U.S.C. § 1154(c). Thus the issues on appeal relate to these exceptions or conditions provided in 18 U. S.C. § 1154(c); to the provisions for tribal licensing in 18 U.S.C. § 1161; and to the application of those provisions to a business on lands patented by the United States to defendants’ predecessors in fee.

The Wind River Reservation covers a gross area of something more than one hundred townships and is roughly in the form of a square. Within the boundaries is the town of Riverton, Wyoming, and several small communities. About 4,500 Indians live on the Reservation, that is, persons who are enrolled by the Tribes as members. The Reservation is crossed by two or three principal highways. There are several hundred separate tracts of fee land within the boundaries which in total area would be roughly one-fifth of the Reservation. Some of these fee tracts consist of twenty or thirty contiguous sections or more, and some are just a few acres. The balance of the acreage consists of trust lands, some Indian allotments, and large tracts of Government land. The Reservation is occupied by the Shoshone and Arapahoe Tribes who have beneficial title. See Shoshone Tribe v. United States, 299 U.S. 476, 57 S.Ct. 45, 81 L. Ed. 390.

The appellants’ tavern is located within the exterior boundaries of the Reservation on a small tract of land patented in fee by the United States in 1954 under 24 Stat. 390 and 34 Stat. 182 to appellants’ predecessors. The patent contains no restrictions as to the use to which the land may be put. The land is taxed by the State of Wyoming, and the state provides the usual public services for it. It is in a Fremont County School District which provides schools for the area, and on a county road.

There is no issue as to the presence of liquor at the tavern which was the incident on which the “introduction” count of the information was based.

There are several interrelated conditions and definitions, referred to above, which must be established under the several sections of the statute for there to be a violation. For example, the place where the sale took place must be in “Indian Country,” under 18 U.S.C. §§ 1154 and 1161, but not on “fee-patented” land in “non-Indian communities.” Also the sale must not be in “conformity” with state laws and tribal regulations of the Tribe “having jurisdiction” over the area of Indian country. 18 U.S.C. § 1161. These definitions or requirements must be examined as a part of the crime charged.

We are thus concerned with the elements of this crime, and not the frequently encountered question of whether state or federal jurisdiction exists over certain crimes which is determined by the place where they were committed. 18 U.S.C. §§ 1151, 1152, 1153. Instead the geographical-land status terms and the substance and effect of tribal regulations thus become part of the elements of a crime, and if not shown the act was a legal one.

The type of business engaged in by the appellants is what has now become a regulated retail business which has been legalized by the United States and licensed under the laws of the State of Wyoming. Thus the selling of liquor to Indians at a tavern licensed by the state is, of course, not a federal crime per se, but can become one under certain conditions, the definition of which, and the problem of proof of the existence of which, are hereinafter described.

The first consideration must be given to the term “non-Indian community” as used in 18 U.S.C. § 1154(c). This subsection was added by the Act of May 24, 1949, § 27(b). See U.S.Code Cong. Service, 1949, p. 1248. The reported congressional history does not provide much help in arriving at the intended construction of the term.

18 U.S.C. § 1154 provides in part:

“(a) . . . . [Wjhoever introduces . . . any . . . spiri-tous, or vinous liquor, including beer, into the Indian country, shall, ... be fined ....
“(c) The term ‘Indian country’ as used in this section does not include fee-patented lands in non-Indian communities or rights-of-way through Indian reservations, and this section does not apply to such lands or rights-of-way in the absence of a treaty or statute extending the Indian liquor laws thereto. June 25, 1948, c. 645, 62 Stat. 758; May 24, 1949, c. 139, § 27, 63 Stat. 94.”

18 U.S.C. § 1161 provides:

“The provisions of sections 1154, 1156, 3113, 3488, and 3618, of this title, shall not apply within any area that is not Indian country, nor to any act or transaction within any area of Indian country provided such act or transaction is in conformity both with the laws of the State in which such act or transaction occurs and with an ordinance duly adopted by the tribe having jurisdiction over such area of Indian country, certified by the Secretary of the Interior, and published in the Federal Register. (Added Aug. 15, 1953, ch. 502, § 2, 67 Stat. 586.)”

The basic statute (18 U.S.C. § 1154) originally made it a crime to sell liquor to certain Indians at any location, or to introduce liquor into “Indian Country.” By subsection (c), it was then provided that “Indian Country” as used in the section “. . . does not include fee-patented lands in non-Indian communities. . . .” Thus if it is assumed for the moment that the fee land in question is in “Indian Country,” generally, the question whether the particular place was also in a “non-Jndian community” must be resolved if it can be. If the tavern was in a “non-Indian community” in “Indian Country,” no crime was committed. The statute does not refer to “Indian communities” nor to non-communities.

The proof in the record herein of this element of the crime is inconclusive and indefinite. It showed that the tavern was located from one-half to three-quarters of a mile from the Reservation headquarters at Fort Washakie where there were located about eight business places. In the twenty square mile area surrounding the agency, it was estimated there were 170 Indian families and forty-one non-Indian families. The witnesses called by the Government were unable to define any boundaries of Fort Washakie. Mr. Harris, Chairman of the Shoshone Business Council, testified that the place in issue was not an “Indian community.” The Reservation Superintendent testified there were no community boundaries which could be defined, and he could not testify that the location was in an Indian community. An examination of the record on this issue demonstrates that the inability of the witnesses to testify with specificity stems from the lack of any standards or any definition for the term. It was not clear to the witnesses what a “community” was, nor what was meant by “non-Indian.” All that the proof shows was that the location was probably not in an Indian community; however, the statute refers only to “non-Indian communities.”

The term “non-Indian community” could apply to towns such as Riverton, which is located within the exterior boundaries of the Wind River Reservation, and perhaps to other smaller settlements along the highways, but when the specific place here concerned is considered the problem is apparent. There is no standard provided as to what percentage of Indians or non-Indians is contemplated. Thus if a given area can be selected as a “community,” the statute does not indicate that if there are more Indians than non-Indians, it becomes an Indian community, or what the “community” is if there are a greater or lesser comparative number of Indians. The Act also does not state who is an Indian. There are acts for other purposes which use twenty-five per cent Indian blood as the standard; others leave the test up to the Tribe concerned. Thus perhaps tribal membership is the test. However, if the twenty-five per cent test is used, individuals who are seventy-five per cent non-Indian could be counted to make up an “Indian” community, but in any event there is no guide as to this whatsoever.

It is also apparent that what constitutes a “community” for this purpose is not defined nor can it be clearly ascertained. In an area where the defendants’ business was located, there were apparently some few scattered houses, although the record is not clear, but the witnesses did not have any standard on which to base their testimony. As mentioned, the nearby Fort Washakie had no definable boundaries, if it was a community, and the witnesses thus could not testify whether the bar was in it or not. There was thus no proof as to whether it was in a community or not in one, or if in one, what kind. Again, the proof failed because the statute contains no reasonably ascertainable standards.

Under these indefinite and vague conditions, the business generally, or isolated transactions legal under state law, could be either a federal crime or perfectly legal. We must hold that the terminology of “non-Indian community” is not capable of sufficiently precise definition to serve as an element of the crime herein considered, aside from other factors or elements with similar infirmities. The statute is thus fatally defective by reason of this indefinite and vague terminology.

Vagueness in a non-First Amendment case has been considered by the Supreme Court in United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 and Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322. Under these standards the provision must not require persons of usual intelligence to guess as to its meaning nor differ as to its application. The vagueness issue was fully explored by the First Circuit in Goguen v. Smith, 471 F.2d 88 (1st Cir.). The statute here concerned is an isolated one, and not part of a general regulatory plan. It was applied in the trial court, and here urged by the Government, as containing a requirement (being in a non-Indian community) to be demonstrated at trial by the defendants. The placing of such a burden on defendants was improper. Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931.

The Supreme Court in Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346, considered the question as to whether a charge of burglary against an Indian could be prosecuted by state or federal authorities. Here again a crime covered by 18 U.S.C. § 1152 in Indian country (section 1151) was considered. The location where the crime took place was fixed, and it was on privately owned land, but the Court reaffirmed the broad interpretation of Indian country, and mentioned the problems under section 1152 if the law enforcement officials had to search the tract books to decide whether jurisdiction over a particular crime was in the state or the United States. See also the checkerboard land status cases, Ellis v. Page, 351 F.2d 250 (10th Cir.); Hilder-brand v. Taylor, 327 F.2d 205 (10th Cir.), and Martinez v. Southern Ute Tribe, 249 F.2d 915 (10th Cir.). Under this record this problem of law enforcement is not serious as the officers have dual authority; however, this is not the type of crime, nor a crime committed by an Indian, which we are considering. There is no policy or need for a broad interpretation of “Indian Country,” under these conditions. There is instead a fixed place of business, the crime charged is against non-Indians, and the question is whether additional licensing was required. We do not reach the question as to whether the definition of “Indian Country” in 18 U.S.C. § 1151 is applicable only to the ten major crimes, as defendant urges, or is applicable to other transactions, as the Government contends.

The issue is also raised on the fundamental question of the authority of the Government or of the Tribes to regulate the defendants’ business in a way that a failure to conform constitutes a crime. As indicated above, we are concerned with a business operating at a fixed place and legal under Wyoming laws. This business would have also been legal, under the Government’s theory, if defendants had a license from the Wind River Tribes. The failure to have such a license thus resulted in this prosecution. The Government has thus delegated to the Tribes the unrestricted power to determine whether the operation of defendants’ business constitutes a federal crime or not. Whatever regulation the Tribe adopts is enforced under the wording of the statute (18 U.S. C. § 1161), and any non-conformity therewith to whatever degree is a criminal offense.

If the Government has the power to regulate a business on the land it granted in fee without restrictions, which we doubt, it cannot delegate the power above described to the Tribes. There is no theory of sovereignty or governmental subdivision which would support such a delegation.

The Tribes have the usual powers of an owner of land, to the extent of such ownership, over those using their lands. This power is often confused with some elements of sovereignty when large tracts are involved, and when only the relationship between a Tribe and the Government is examined. The decisions relating to the sovereignty of certain tribes are in the context of relationships between a Tribe and the federal or state government. This relationship is influenced and derived from treaties, and relates to lands and taxes. See United States v. Mason, 412 U.S. 391, 93 S.Ct. 2202, 37 L.Ed.2d 22; McClanahan v. Arizona Tax Comm’n, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 115.

The Arapahoe and Shoshone Tribes are very important organizations which exercise a broad tribal authority over their members. They also exercise authority as would owners of large tracts of land. Their membership is limited to persons of a certain parentage or lineage as determined from time to time by the respective Tribes or by custom. Others are excluded. The membership can be described as voluntary, and the record indicates that a person with at least twenty-five per cent Arapahoe blood could be enrolled as a member of such Tribe, and the same for the Shoshone Tribe.

The tribal members are citizens of the United States. It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribunal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate “nation” of United States citizens within the-boundaries of the United States which has any authority, other than as landowners, over individuals who are excluded as members.

The authority in the custom-usage sphere over members is,' of course, another matter. The Government cites Iron Crow v. Oglala Sioux Tribe, 231 F. 2d 89 (8th Cir.), as authority for a general power to supervise business on the Reservation. We do not consider the case to so hold; instead it is authority for the assertion of tribal authority over members of the Tribe and this only.

The purported delegation of authority to the tribal officials contained in 18 U.S.C. § 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned.

Under 18 U.S.C. § 1161, neither the lands in issue, nor the defendants, were under or within the “jurisdiction” of the Tribes.

The judgment is set aside and the case is reversed with instructions to dismiss each of the informations.


author: PER CURIAM.

text:
    Peter Kenneth DeMARRIAS, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1291.
    United States Court, of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Sept. 25, 1973.
    Certiorari Denied March 18,1974 See 94 S.Ct. 1570.

      Peter Kenneth DeMarrias, pro se.
    William F. Clayton, U. S. Atty., Sioux Falls, S. D., filed brief, for appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

In a petition filed under 28 U.S.C. § 2255, Peter Kenneth DeMarrias seeks to vacate a ten-year sentence that he is now serving for voluntary manslaughter, a lesser included offense in the indictment for second degree murder brought against DeMarrias. The district court denied DeMarrias relief and he brings this appeal pro se. We affirm the district court.

The background for this litigation is contained in two earlier cases submitted to this court. In DeMarrias v. United States, 444 F.2d 162 (8th Cir. 1971), we permitted DeMarrias to file a delayed appeal from his conviction on a charge of second degree murder. In DeMarrias v. United States, 453 F.2d 211 (8th Cir. 1972), we considered the merits of the delayed appeal, determined that the proof was insufficient to sustain the conviction for second degree murder, but found the evidence sufficient to justify a conviction for the lesser included offense of voluntary manslaughter. We remanded the case to the district court. Thereafter, the district court sentenced DeMarrias to serve 10 years imprisonment on the manslaughter charge, but granted him full credit for time already served on the second degree murder conviction.

Following sentencing, DeMarrias filed the instant petition asserting the invalidity of this conviction on the alleged ground that the government on December 28, 1967, obtained an indictment from the grand jury charging De-Marrias with voluntary manslaughter and later, on February 20, 1968, obtained a second indictment from the same grand jury charging DeMarrias with the murder count and two counts of assault with a dangerous weapon. Upon arraignment of DeMarrias upon the latter indictment, the court on motion of the United States Attorney dismissed the early manslaughter charge. The United States Attorney noted the existence of the subsequent “superceding indictment.”

Appellant claims that it was improper for the United States Attorney to bring a second indictment and then have the first one dismissed where the first one was not invalid. or defective. He relies upon 18 U.S.C. § 3288 as controlling the issue of dismissal of indictments. This statute, of course, does not control discretionary dismissals of indictments. Federal Rule of Criminal Procedure 48(a) does control and contains no limitation preventing a United States Attorney from proceeding on a superceding indictment after dismissing a prior indictment. As a general rule, a dismissal with leave of court is considered to be without prejudice. Indeed, F.R.Crim.P. Rule 48(a) has been regularly interpreted to mean that a dismissal of an indictment at the request of the government prior to trial does not bar subsequent prosecution for criminal acts described in that indictment. See United States v. Chase, 372 F.2d 453, 463 (4th Cir. 1967). Thus there was no error here.

The appellant also claims that it was improper for the government to bring a second indictment prior to dismissal or disposal of the first indictment. There is np authority cited by the appellant and our research discloses nothing which would prevent the government from bringing more than one indictment for the same criminal acts against a single defendant so long as jeopardy had'not attached to any one of those indictments. This appears to be the prevailing view. See United States v. Bowles, 183 F.Supp. 237, 242 (D.Me. 1958) (citing eases).

Next, appellant argues that he could not be sentenced for manslaughter because the charge of second degree murder does not “include” the offense of manslaughter. To make explicit what was implicit in our earlier remand in DeMarrias v. United States, 453 F.2d 211, 215 (8th Cir. 1972), we hold, in accord with the well-established rule on this matter, that manslaughter is a necessarily included offense within a charge of murder and that, in the circumstances of this case, appellant could be convicted of voluntary manslaughter. See F.R. Crim.P. Rule 31(c); Stevenson v. United States, 162 U.S. 313, 314, 16 S.Ct. 839, 40 L.Ed. 980 (1896).

Appellant’s final contention is jurisdictional. He claims that his convictions fo'r assault with a dangerous weapon on two counts were improper because such offenses were not properly triable within the United States District Court. He is presently serving two five-year prison terms on each count concurrently with the sentence on manslaughter. This contention is wholly without merit, since this offense is specifically enumerated in 18 U.S.C. § 1153, the Major Crimes Act, which states that:

Any Indian who commits against the person or property of another Indian or another person any of the following offenses, namely * * * assault with a dangerous weapon * * * shall be subject to the same laws and penalties as all other persons committing any of the above offenses within the exclusive jurisdiction of the United States.

Accordingly, we hold that the district court properly dismissed DeMarrias’ post-conviction petition.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Garry Michael FLETCHER, Defendant-Appellant.
    No. 73-1679.
    United States Court of Appeals, Fifth Circuit.
    Oct. 31, 1973.

      Timothy N. Skidmore, Rick Sexton, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwin, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   PER CURIAM:

Garry Michael Fletcher appeals his conviction of three counts of violating Title 21, Sections 841(a)(1) and 846, U. S.C., charging conspiracy to possess with intent to distribute, aiding and abetting possession with intent to distribute, and aiding and abetting distribution of Methyl-Dioxy Amphetamine, a controlled substance. We affirm.

Fletcher’s major complaint is that he was entrapped, persuaded — indeed, well-nigh coerced — into committing the offense by government enforcement agents and informers. And the record does reveal a persistent course of importuning by the government informer, Park, directed at Fletcher and the discovery of his drug source. Other evidence which the trier of fact heard indicated that Fletcher had abandoned drug dealing after an earlier arrest; had persisted for months in his refusal to return despite pressure from Park and from his source, to whom he owed substantial sums of money; and had only yielded at last because of his fear of both, selling Park a small amount which resulted in this proceeding.

Unfortunate for Fletcher’s appeal, however, is the existence in the record of further evidence that Fletcher in fact initiated the sale for which he was convicted by obtaining the amount sold, contacting Park regarding it, distributing it and promising further, larger sales.

An issue was thus presented concerning Fletcher’s predisposition to the crime. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The issue was resolved by the trier of fact against Fletcher. This conclusion, supported by adequate evidence, we neither can nor should disturb.

Fletcher asserts, in addition, that the “procuring agent” defense was established as a matter of law. Whether it was or not need not concern us; this defense negatives “sale,” and since 1971 the question is not “sale” but “distribution.” Fletcher’s offense took place in 1972. See United States v. Johnson, 481 F.2d 645 (5th Cir., 1973) ; United States v. Miller, 483 F.2d 61 (5th Cir., 1973); United States v. Rose, 484 F.2d 654 (5th Cir., 1973).

Finally, Fletcher points to arguable defects or, at any rate, opportunities for tampering in the chain of custody of the contraband material: the material was not always firmly sealed, and at least fifteen persons had access to the evidence room where it was kept. These objections go to the weight, not the admissibility, of the evidence, as has been held in far more extreme situations. Williams v. United States, 381 F.2d 20 (9th Cir., 1967).

Affirmed.

      . The “procuring agent” defense, as enunciated in United States v. Sawyer, 210 F. 2d 169 (3d Cir., 1954), was adopted by this Circuit in Adams v. United States, 220 F. 2d 297 (5th Cir., 1955) and Henderson v. United States, 261 F.2d 909 (5th Cir., 1958) within the limited context of prosecutions under 21 U.S.C. § 174, now repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970.


text:
    Jo Rae VASILINDA, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 71-1802.
    United. States Court of Appeals, Fifth Circuit.
    Nov. 12, 1973.
    R. W. (Bill) Glenn, Douglas H. Parks, Dallas, Tex., for plaintiff-appellant.
    Frank McCowan, U. S. Atty., Kenneth J. Mighell, Asst. U. S. Atty., Dallas, Tex., Johnnie M. Walters, Asst. Atty. Gen., Meyer Rothwacks, Gilbert E. Andrews, Jr., Thomas L. Stapleton, Gary R. Allen, Attys., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   PER CURIAM:

The plaintiff-appellant, Jo Rae Vasi-linda, brought this suit to enjoin the collection of a $300 excise tax assessed against her as a tax on the transfer of marijuana. She contends that the payment of the tax would abridge her privilege against self-incrimination. The district court dismissed the complaint, holding that the collection of the tax would not violate the fifth amendment, and that the injunction suit was barred by the Tax Injunction Act, 26 U.S.C. § 7421(a) (1970). We affirm.

In a line of recent cases beginning with Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed. 2d 889, and Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, the Supreme Court has confronted the self-incrimination questions posed by provisions of the federal tax laws imposing taxes on illegal exchanges or on income from illegal activities. In those cases, the Court has made clear that Congress may not, pursuant to a taxing scheme, impose filing requirements that force individuals to submit potentially incriminating information to government officials. All of the cases were criminal prosecutions, and in each case the Court held that the fifth amendment privilege constitutes a complete defense against criminal prosecutions either for failure to file potentially incriminating information, or for nonpayment of the tax in question. In Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, the Court reached this result in the context of the provisions of the Marijuana Tax Act, 26 U.S.C. §§ 4741-4753 (1964), in question in this suit.

At the same time, however, the Court has made it abundantly clear that the power of the Government to impose taxes on illegal activities is unquestioned. See Marchetti, 390 U.S. at 44, 58, 88 S.Ct. 697. It has held that, although a criminal prosecution for failure to file or for nonpayment is barred, the Government may recover the taxes due for illegal activities in a civil suit. United States v. United States Coin & Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434. We have applied this view in two of our recent eases, one where we sat en banc, Lucia v. United States, 5 Cir. 1973, 474 F.2d 565, and the other involving the very marijuana transfer tax this suit involves. United States v. Alvero, 5 Cir. 1972, 470 F.2d 981.

In light of these holdings, the district court was clearly correct in concluding that the Government could constitutionally collect the $300 excise tax. The appellant’s sole contention is that when she pays the tax, there will be created a risk of self-incrimination. This contention has no merit when the Government is not demanding information from the taxpayer, but instead has assessed the tax on the basis of information gathered on its own. The record discloses that this is a case where “appellant was neither asked to supply information about [her] self relating to marijuana possession nor prosecuted for failing to do so.” Instead it was a case where “[t]he government had independent knowledge of facts which indicated the tax was due and assessed it”. Alvero, 5 Cir. 1972, 470 F.2d 983

Affirmed.

      . This Act is no longer in force. It was repealed by § 1101 (b) (3) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-513, 84 Stat.1236. :

      . The district court was also correct in ruling that the Tax Injunction Act barred this suit. That provision bars suits .to restrain the assessment or collection of a tax; there is a narrow judicially created exception for cases where it is certain “that under no circumstances could the Government ultimately prevail”. Enochs v. Williams Packing Co., 1962, 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d 292. Obviously, the plaintiff’s case here does not fit within that exception.