author: MANSFIELD, Circuit Judge:

text:
    Karriem THORNE, Appellee-Petitioner, v. WARDEN, BROOKLYN HOUSE OF DETENTION FOR MEN, Appellant-Respondent.
    No. 793, Docket 73-1299.
    United States Court of Appeals, Second Circuit.
    Argued March 22, 1973.
    Decided May 16, 1973.

      Morris Harary, Asst. Dist. Atty. (Eugene Gold, Dist. Atty., Kings County, N. Y., of counsel), for appellant-respondent.
    Phylis Skloot Bamberger, Atty. (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellee-peti-tioner.
    Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
   MANSFIELD, Circuit Judge:

This appeal raises serious questions as to the constitutionality of the lengthy pretrial incarceration of persons accused of crime in the Supreme Court of the State of New York, Kings County, who are unable to furnish bail, where the delay is due solely to the State’s failure to provide the necessary additional judge-ships, facilities and supporting personnel (e. g., prosecutors, stenographers, court and probation officers) required to try the increasing backlog of pending criminal cases in that county.

Karriem Thorne was arrested on January 29, 1972, on charges of robbery, which led to the filing of three indictments against him, two in April, 1972 (Nos. 937 and 2865) and one in October, 1972 (No. 2090). Because of his inability to furnish bail in the amount fixed by the state court, even after the amount was somewhat reduced as a result of his repeated applications, he was held in the Brooklyn House of Detention awaiting trial. After he had been thus “detained” in jail for almost a year awaiting trial, on October 17, 1972, he filed a pro se petition with the United States District Court for the Eastern District of New York seeking removal of the three indictments against him to the federal court, which stated, among other things, that following his arrest he had “requested for an immediate disposition pursuant to Sec. 268, C.C.P., also the 5th and 14th Amendments U.S.C. Due Process and Equal Protection clauses. Motion for disposition was therein denied said case after eight months incarceration is still pending against petitioner in lieu of $15,000 dollars bail.” In a letter annexed to his petition he further stated “There has been an unreasonable and unjustifiable delay in The People’s Prosecution. (See sections 8, 188 and 668 of the Code of Criminal Procedure). I’ve been detained now awaiting pending fair and impartial trial procedures at the Brooklyn Supreme Court, for approximately nine months. Said unreasonable delay in prosecution is unjustifiable.” Judge Weinstein appropriately treated the application as a petition for habeas corpus, 28 U.S.C. § 2241. See Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (U.S.1973).

On January 19, 1973, after two hearings, the district court found that further imprisonment of Thorne in default of bail without trial would violate his constitutional right to a prompt trial. He ordered that Thorne be released on his personal bond of $4,000 secured by $400 cash to cover all three indictments unless trial should be commenced within 40 days or unless, within 60 days, there had not been a conviction on one of the charges or a disposition of all three of them. The Warden of the Brooklyn House of Detention for Men, represented by the District Attorney for Kings County, appealed pursuant to 28 U.S.C. § 2253. We stayed the district court’s order pending disposition of the appeal.

On argument of the appeal on March 22, 1973, the Assistant District Attorney advised us that the State would be ready on March 26 to proceed with trial of one of the three indictments against Thorne in the Kings County Supreme Court. Because Thorne’s counsel was actively engaged on trial elsewhere on the latter date, trial was not commenced until April 2, 1973, more than 14 months after Thorne had been arrested. On April 5, 1973, the trial terminated, with Thorne’s conviction of 2nd Degree Robbery and two counts of Petty Larceny.

Since Thorne is now held as a convicted defendant rather than merely on a criminal charge not yet brought to trial, the issue as to the legality of his continued pretrial detention has been mooted, and it therefore becomes unnecessary to resolve the constitutional issues presented. See United States v. Baca, 444 F.2d 1292, 1296 (10th Cir. 1971). Cf. Clayton v. Stone, 123 U.S.App.D.C. 181, 358 F.2d 548 (D.C.Cir.1966). However, since the records of the Kings County Supreme Court indicate that Thorne’s incarceration is not atypical, we cannot let this occasion pass without expressing the hope that the serious conditions disclosed by the record in this case will be eliminated by the State’s provision of additional judges, facilities and personnel needed to enable the State judiciary to afford a speedy trial to each accused person who is incarcerated pending trial.

The appeal is dismissed as moot.

      . On April 25, 1972 bail in the sum of $5,000 was set on each of the first two indictments (Nos. 937 and 2865). On June 7, 1972, a motion to reduce bail was denied. On October 13, 1972, additional bail in the sum of $5,000 was fixed on the third indictment (No. 2090).
      On January 9, 1973, bail was reduced to $3,500 on indictments Nos. 937 and 2865, and to a $3,500 bond or $2,000 cash on indictment No. 2090.

      . As of December 1, 1972, there were 2,696 defendants jailed in Kings County awaiting trial on felony charges, of whom 935 had been held more than 90 days and 644 for more than six months. Monthly Reports of Special Committee for The Purpose of Alleviating Overcrowded Conditions Prevailing in Local Houses of Detention and To Expedite Disposition of Criminal Cases, pursuant to Order of Hon. Samuel Rabin, Presiding Justice of the Appellate Division, Second Department, Kings County, New York. These figures represent a substantial increase over the number of persons jailed and awaiting trial in 1970 and 1971, when we expressed our concern in United States ex rel. Frizer v. McMann, 437 F.2d 1312 (2d Cir.) (en banc), cert. denied, 402 U.S. 1010, 91 S.Ct. 2196, 29 L.Ed.2d 433 (1971). The backlog of such cases in Kings County increased 60% during the year 1972 alone. People ex rel. Franklin v. Warden, Brooklyn House of Detention for Men, 31 N.Y.2d 491, 341 N.Y.S.2d 604, 294 N.E.2d 199 (N.Y.Ct. of Appeals, Feb. 16, 1973). Report to the New York State Bar Association by its Special Committee on the Administration of Criminal Justice, Jan. 23, 1973, at 6.
      The increase in the backlog of cases involving jailed detainees awaiting trial in Kings County is attributed to the increase in the number of arrests and the limited number of cases that can be disposed of by the existing 21 Trial Parts and supporting facilities. During the period from November 1, 1971, to December 1, 1972, for instance, the already overburdened Kings County Supreme Court, using its facilities to the maximum, was able to dispose of only 575 cases by trial. Report of the Management Planning Unit of the Judicial Conference of the State of New York, Statistical Summaries and Com-parsions for New York, Bronx, Kings and Queens Counties, Table II and Appendix 1C (Jan. 2, 1973). Since the State’s practice is to bring defendants to trial according to the sequence of presentment of their cases to the grand jury as reflected by the index numbers on their respective indictments, a defendant in Thorne’s position must wait for his trial until those detainees indicted before him are tried. The delay may be as long as 16 months. Although preferences have been granted to a few, see, e. g., People ex rel. Franklin v. Warden, supra, preferences are not assured as a matter of right, constitutional or otherwise. Indeed, with a limited number of Trial Parts available in Kings County, a preference granted to one defendant prejudices the rights of those scheduled to be tried ahead of him under the foregoing system, since they must wait that much longer until the “preferred” case is tried. It is also apparent that if more preferences were granted they would become less effectual in assuring early trials to those receiving them.


source: Caselaw Access Project

author: SPRECHER, Circuit Judge. SWYGERT, Chief Judge

license: Public Domain

text:
    UNITED STATES of America,. Plaintiff-Appellant, v. Stanley ROBINSON, Defendant-Appellee.
    No. 73-1445.
    United States Court of Appeals, Seventh Circuit.
    Argued May 25, 1973.
    Decided June 5, 1973.
    Rehearing Denied June 21, 1973.
    Swygert, Chief Judge, dissented and filed opinion.
    James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellant.
    Edward M. Genson, William J. Stevens, Chicago, 111., for defendant-appel-lee.
    Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This is an appeal by the government under 18 U.S.C. § 3731 from the order entered May 15, 1973 granting defendant’s motion to suppress certain items named in a search warrant issued on July 27, 1972, namely: a clip for a .45 caliber automatic pistol, rounds of .45 caliber and other ammunition, and knives. We reverse.

I.

In the affidavit for search warrant the affiant, Special Agent Roy M.Mitchell of the FBI, stated that an informant who had provided reliable information over a period of years informed him on May 18, 1972 that in the evening of the preceding day Stanley Robinson, a Chicago Police Department Sergeant, had arrested one Jeff Beard on the street in Chicago for an alleged armed robbery, had handcuffed Beard, and then had driven him to a location in Gary, Indiana and there shot him with a .45 caliber automatic pistol and cut his throat with a knife, killing him. The affidavit also stated that Mitchell went with the informant to that place and found a body, which proved to be that of Jeff Beard. The throat was cut and a .45 caliber bullet was found in the body.

The affidavit further recited that several days later Mitchell came into possession of the .45 caliber automatic pistol “reportedly used by Stanley Robinson in the kidnap-murder of Jeff Beard,” but it did not say how he got it or the source of the information that it was the murder weapon.

The affidavit further recited that “on June 21, 1972, Kelly Fox, apartment # 14, 808 Lakeside Street, Chicago, informed affiant that . . . Robinson resides with her and their daughter on the average of two or three nights per week, and has done so over the past 7 years,” and that Robinson kept “his personal belongings in the closet.” It is recited that on July 18 and 19 affiant again talked with Kelly Fox at her apartment and that she stated that “items left by Robinson shortly before his disappearance on June 26, 1972 are contained in two suitcases and two cardboard boxes in the closet just off the living room in her apartment. She stated that affiant could look at these items since they were left in her care, but would not allow seizure of any items without a search warrant.” The affidavit then recited that affiant “observed a clip for a .45 caliber pistol and miscellaneous rounds of ammunition, including .45 caliber ammunition and other calibers, as well as miscellaneous knives, including a switchblade knife.” The affiant, the affidavit went on to recite, had no way of knowing whether the clip observed was the clip from the pistol reported to be the murder weapon, and an examination by the FBI laboratory in Washington was necessary.

A search warrant was issued on July 27, 1972, authorizing the seizure of the clip, the ammunition, the knives, “and other evidence.” The warrant was executed by the seizure of the articles named therein and also miscellaneous papers and some photographs.

II.

After an evidentiary suppression hearing, the district judge found that the reliability of the informer’s information “was corroborated by the fact of the slaying, the identity of the victim, the location of the body, the infliction of the bullet wound, the infliction of the knife wound, and that Robinson had in his possession and stored in a closet in an apartment he shared with his paramour a clip for a .45 automatic, .45 caliber ammunition and knives capable of inflicting the knife wound.” He concluded that “[a] 11 this constituted sufficient probable cause for the issuance of the warrant authorizing seizure of the clip, the .45 caliber ammunition and the knives.”

However, the district judge further concluded that the warrantless searches of the boxes on June 21 and July 18 were unlawful and that therefore the search warrant based in material part on information gained in those searches must be held invalid. We disagree with the latter conclusion.

III.

Evidence adduced at the suppression hearing supported in substantial detail the facts recited in the search warrant. The hearing further disclosed that Kelly Fox also had belongings in the apartment closet off the living room; that men’s and women’s clothing hung from a rack in the closet, about two-thirds of it being women’s clothing; that nothing was seized from the two suitcases; that the two cardboard boxes were about I1/2' xl^'x T, one being a little larger than the other; that “one didn’t have a top and the other one’s top wouldn’t close because it was too full;” that most of the contents of the boxes consisted of papers, including letters, bills, police reports, police bulletins, class notes and pieces of paper with license numbers written on them; and that also in the boxes but apparently not visible until papers were removed, were the .45 caliber clip, the ammunition and the knives.

The hearing also revealed that Agent Mitchell had been accompanied by FBI Agent Roten and a Chicago police officer on June 21 and by Agent Roten on July 18, 1972 when the Fox apartment was searched; that on both occasions Kelly Fox served coffee to the men; and, as expressly found by the district judge, that “as the agents testified, she purported to authorize the search and made no protest as it was going on.”

Between the June 21 and the July 18 searches, Robinson had disappeared and a warrant had been issued for his arrest. He had taken a metal box and some other items with him when he disappeared.

IV.

It is clear that “where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert. denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954); United States v. Stone, 471 F.2d 170, 173 (7th Cir. 1972), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973). A defendant’s paramour may give valid consent to the search of premises they jointly occupy. United States v. Airdo, 380 F.2d 103, 106-107 (7th Cir.), cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L. Ed.2d 260 (1967). The rule is not based on principles of agency but rather on the “reasonableness, under all the circumstances, of a search consented to by a person having immediate control and authority over the premises or property searched. Cf. Roberts v. United States, [332 F.2d 892,] 896-897 (8th Cir. 1964)].” Id. The rule is not based upon the joint possessor’s right to waive the other’s constitutional rights but on her “own rights to authorize entry into the premises where she lives and of which she had control.” Roberts v. United States, supra, 332 F.2d at 897.

The district court found that in this case “as in Airdo, the paramour ‘lived in the apartment and therefore had authority to consent to a search of it,’ including the foyer closet where the boxes were kept. She jointly used the unlocked closet.” The consent given by Fox was voluntary. The question is whether a search of the two cardboard boxes was permissible.

At the outset it is obvious that this question is not solved by those cases where a defendant-tenant claims exclusive occupancy to a specified portion of larger premises occupied by a consenting landlord. United States v. Mattlock, 476 F.2d 1083 (7th Cir. 1973). Here no landlord-tenant relationship existed between Kelly Fox and the defendant, nor does the defendant claim exclusive dominion and control over a specific room or portion of a room or particular area of the apartment. Cf. United States v. Wixom, 441 F.2d 623, 625 (7th Cir. 1971), where Judge Kiley said: “Each had equal rights to the use and occupation of the premises at the time of the search, and either could give consent to the search, the fruit of which would be admissible against the other party.”

The question must be approached in the light of several policy considerations : First, the Fourth Amendment protects against search areas “where, like a home ... a person has a constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). If a spouse does not have complete expectation of privacy in his own home in view of the possibility of his mate’s consent, the casual lover who drops in at his convenience can hardly expect more when he turns his part-time home over to the full-time dominion of his paramour and then places his belongings in unlocked, uncovered cardboard boxes in a closet frequented by her. Here the defendant also impliedly disavowed any expectation of privacy in the cardboard boxes when he disappeared with a metal box and other belongings but ignored the cardboard boxes.

A second policy consideration surfaces when the defendant is absent from his dwelling by reason of flight or hiding from law enforcement officers for fear of arrest, at which time a strong case for third party consent is presented. United States v. Stone, 471 F.2d 170, 177 (7th Cir. 1972) (Swygert, J., dissenting), cert. denied, 411 U.S. 931, 93 S.Ct. 1898, 36 L.Ed.2d 391 (1973); Wade v. Warden, Maryland Penitentiary, 278 F.Supp. 904 (D.Md.1968). In the present case, the defendant had fled prior to the July 18 search.

Finally, there are the policy considerations posed by Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), where Mr. Justice Marshall delivered the opinion for a unanimous Court. A duffel bag was being jointly used by defendant and his cousin Rawls and it had been left in Rawls’ home. Both Rawls and his mother consented to the search. Defendant argued that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments, in one of which the officers found some of defendant’s belongings. The Court said at 394 U.S. 740, 89 S.Ct. 1425:

“We will not, however, engage in such metaphysical subleties in judging the efficacy of Rawls’ consent. Petitioner [defendant], in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this ease.”

The police might be deterred from employing consent searches altogether if they were required to ascertain the ownership or possession or custody of every article or space on the premises searched. The metaphysical subleties would be endless and consent searches would be lost from the law enforcement arsenal.

This case is quite similar to White v. United States, 444 F.2d 724 (10th Cir. 1971), where a paramour gave permission to officers to search a motel unit occupied jointly by her and the defendant, leading to the search of a small, cloth zipper bag owned by the defendant. The court concluded that the paramour’s consent to the motel search extended to the defendant’s bag.

The case relied upon by the defendant and the district court in this case, United States v. Poole, 307 F.Supp. 1185 (E.D. La.1969), is distinguishable. Poole was an overnight guest in Dickson’s apartment and had left his overnight bag in the hall closet. When the officers obtained Dickson’s consent to the search at 1:15 A.M. in the morning, Poole was present in the bedroom and his consent was neither given nor sought. Since evidence obtained in a search is inadmissible against a person having equal rights in the premises if he is present at the time of the search and does not consent, Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1968), the Poole case does not detract from the interspousal consent doctrine of Sferas, Airdo and Stone.

The portion of the order of May 15, 1973, granting defendant’s motion to suppress the clip for a .45 caliber automatic pistol, rounds of .45 caliber and other ammunition and knives is reversed.

SWYGERT, Chief Judge

(dissenting).

I respectfully dissent. With all due deference to my colleagues, I believe that impermissible inferences are drawn from the record, certain findings made by the trial judge are overruled without holding them to be clearly erroneous, my dissent in United States v. Stone, 471 F.2d 170 (7th Cir. 1972), is misread, and Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L.Ed.2d 684 (1969), is extended to the point of creating a grievous inroad on protections heretofore guaranteed by the fourth amendment.

The majority characterizes Robinson as a “casual lover” who, having turned “his part-time home over to the full-time dominion of his paramour,” dropped in thereafter “at his convenience.” The findings of the trial judge do not support this view. The judge did not find that Robinson had given up possession of his home; he found merely that Robinson had disappeared from police view. Nor can Robinson be called a “casual” lover. The names “Fox-Robinson” were displayed on the doorbell-mailbox of the apartment in question, and the district judge credited the testimony of Fox that she had known Robinson for seven years and had had a daughter by him who lived with her in the apartment. There is another bothersome aspect of the view taken by the majority. If Robinson had turned over his “part-time” home to the “full-time dominion of his paramour,” why need the majority rely so heavily on cases which authorize consent by a joint possessor? A similar inquiry must be made with reference to the majority’s theory that Robinson had relinquished possession of the boxes by abandonment upon his disappearance. Neither question, I submit, has an answer.

A more basic error of the majority is their failure to recognize that Robinson’s disappearance occurred after the Government agents had once gone through his boxed possessions and had discovered the items eventually listed in their request for a warrant. The FBI first came into contact with Fox on June 21, 1972, when they obtained and acted upon her consent to search the boxes on the closet floor. Robinson disappeared five days later. On July 18, the FBI reappeared at the request of Fox and again searched the boxes with her consent after inquiring whether the items were still on the premises. The trial judge held, on the authority of Sil-verthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1942), that if the warrantless search of June 21 was illegal, all subsequent activity by the agents, even if otherwise legal, was thereby tainted, requiring the suppression of the items seized by warrant on July 27. This holding could have been based only on the presupposition that the search of July 18 would probably not have occurred but for the search of June 21. This factual inference cannot be overruled unless clearly erroneous. The majority does not so characterize the finding, nor can I, particularly in light of the fact that the agents asked Fox, on July 21, “whether the boxes were still” in her apartment, (emphasis added).

This same error inheres in the majority’s theory that Robinson abandoned the boxes, as well as in their “flight” rationale borrowed from my dissent in Stone. Both the flight and the supposed abandonment occurred after the agents had made their initial search on June 21. I take issue with the abandonment theory on the additional ground that it has, at best, sketchy support in the record. When a person is in flight from law enforcement officers, he does not relinquish his rights under the fourth amendment. To hold that that property which he has left behind ceases to enjoy the protection of that amendment simply because he has chosen to take a few other possessions with him is to deprive him of a legitimate right to privacy. I might add in passing that the Government has made no attempt to argue abandonment.

As to the majority’s reliance on the fact that Robinson was in hiding from law enforcement officials, neither my dissent in Stone nor Wade v. Warden, Maryland Penitentiary, 278 F.Supp. 904 (D.Md.1968), support them. Stone dealt with a consent to search obtained from a suspect’s wife only minutes after he had been taken into custody. I took the view that search by consent of third parties is reasonable under the fourth amendment only where well defined exigent circumstances exist, one of which might be the absence of a suspect by reason of flight or hiding. This was not the case in Stone since Stone could have been asked for his consent at the time of search. Neither the majority nor I reached the issue of the proper scope of search given a valid consent; our sole focus was upon whether any search by consent would lie. Wade is similarly distinguishable.

Having dissented in Stone, I accept the rule of this circuit that “where two persons have equal rights to the use or occupation of premises, either may give consent to a search,” United States v. Sferas, 210 F.2d 69, 74 (7th Cir.), cert, denied, 347 U.S. 935, 74 S.Ct. 630, 98 L. Ed. 1086 (1954). As the very statement of the rule suggests, however, a question in every case such as this must be whether the third party who consents is in fact or in appearance a joint possessor. In United States v. Mattlock, 476 F.2d 1083 (7th Cir. 1973), cert, granted, 412 U.S. 917, 93 S.Ct. 3006, 37 L.Ed.2d 1000, this circuit held that a defendant’s “constitutional rights could be waived only if it was proved [by the Government] that reasonable appearance of authority to consent existed and, also, that just prior to the search, facts existed showing actual authority to consent.” On this authority, the Government’s failure of proof is beyond dispute. And even if apparent authority were the sole criterion, the Government could not maintain its position. How can it be argued that Fox was the apparent joint possessor of Robinson’s boxes when she told the FBI on June 21 that the boxes belonged to Robinson? The argument becomes more unreasonable when note is taken of the trial judge’s finding that Fox, in referring to the boxes, told the agents on July 18 that “Robinson didn’t like for her to go through his things.” (emphasis added).

Nevertheless, the majority upholds her consent, declining to engage in “endless . metaphysical subtleties.” The authority for their reticence is comprised of two cases, Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), and White v. United States, 444 F.2d 724 (10th Cir. 1971), both of which are distinguishable. The Court in Frazier concluded that the defendant, “in allowing Rawls [consenting party] to use the bag and in leaving it in his house,” took the risk that Rawls would allow a search. 394 U.S. at 740, 89 S.Ct. at 1425. In this case the preponderance of evidence showed no joint use and the trial judge so found. Robinson cannot be said to have assumed the risk that Fox would permit others to search his personal belongings, having told her that he “didn’t like for her to go through his things.” The agents were apprised of Robinson’s statement before they made the second search, unlike the situation in Frazier, where Rawls made no mention of the fact that the bag belonged to someone else. Rawls thus had at least apparent authority to consent. The same may be said of White, where the paramour made no assertions that property searched and seized was not hers.

The distinction is important. The Government argues in its brief: “The constitutional rights of a defendant should not depend on the accident of whether or not his spouse describes their property arrangements to searching officers.” I am in agreement, though not as the Government would have it. The requirement that apparent authority exist for a consent to search reflects the need to hold police officers to what they hear and observe. If a man tells police he is a janitor and admits them to the room of a tenant, they cannot thereafter claim that they thought him to be the lessee. But when the consenting party says nothing, as in White, a search is often upheld. No longer, however, may the Government rely on silence; Mattlock effectively places upon the police the burden of determining whether a person encountered at the door has the authority to consent.

Another contention of the Government, set forth in its brief, is that the conclusions of the trial court are contrary to the purpose of the exclusionary rule and opposed to the interests of law enforcement:

The drastic sanction of the exclusionary rule was designed to deter official misconduct in the perpetration of unreasonable searches and seizures. How are officers to be deterred by facts which they do not know? The “expectations of privacy” between joint occupants of an apartment would not be readily apparent. It is true that the trial court emphasizes the fact that Miss Fox told the officers the boxes belonged to Robinson. But this cannot be the basis of a rule, or else third party consent searches would disappear altogether. In every such situation, it is made clear that it is precisely the property of the absent defendant which the officers want to search.

This argument assumes too much. The police may search for and seize property of a suspect so long as they limit their entry to areas in which the consenting party has rights of joint tenancy and so long as the items seized have at a minimum some ostensible relevance to their investigation. Here a murder investigation was underway. Had the police seen the weapons and ammunition lying on a kitchen table, I entertain no doubt that those items could properly have been seized. But the items were not in plain view; they were concealed in a box of Robinson’s personal belongings. To allow Robinson his privacy in that box would not, as the majority assumes, require the police “to ascertain the ownership or possession or custody of every article or space on the premises searched.” They need only be certain that their examination is confined to spaces jointly shared by the tenants or within the sole dominion of the consenting party. To require less is to say that no person sharing a home with another enjoys a right to privacy free of his co-tenant’s discretion.

The Government cites numerous cases where courts have approved a third party consent search of containers exclusively used by defendants but found on shared premises. Yet few of these cases deal with the scope of search, and in none was there an express disavowal of joint possession. Cases which have dealt directly with the scope of a third party consent search are largely contrary to the Government’s position.

A typical case is State v. Evans, 45 Haw. 622, 372 P.2d 365 (1972), where the Hawaii Supreme Court accepted the joint control rule but found the search unreasonable because the consenting wife had allowed the search to include not only common areas of the house, but her husband’s personal effects, namely, some jewelry hidden in a cuff link case located in a bedroom bureau drawer. The court held:

Clearly, one in joint control of the premises, at least when no objection is made by the other occupant, may admit police officers to the house, and the question of coercion aside it also is clear that no illegal search is involved as to what is in plain sight when the police officers are so admitted. See People v. Howard, 166 Cal. App.2d 638, 334 P.2d 105. We are not prepared to say how much further the officers may proceed or whether we agree with the above-cited cases on their facts. None of them goes so far as to hold that a wife in joint occupancy of the home can permit a search of her husband’s personal effects to discover jewelry hidden in a cuff link case in a bedroom bureau drawer. The wife has no such right. 372 P.2d at 371-372.

For other cases accepting this view, see Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968), cert, denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969); Roberts v. United States, 332 F.2d 892, 897 (1964) (both of which note that the search did not extend to the “personal effects” of the appellant); United States v. Poole, 307 F.Supp. 1185 (1967); People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957) ; State v. McCarthy, 20 Ohio App.2d 275, 253 N.E. 789 (1969); People v. Gonzalez, 50 Mise. 2d 508, 270 N.Y.S.2d 727 (1966); see Reeves v. Warden, 346 F.2d 915 (4th Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955); Cass v. State, 124 Tex.Cr.R. 208, 61 S.W.2d 500, 504 (1933).

I would affirm the suppression order of the district court.

      . The district judge further found: “I do not credit . . . [Kelly Fox’s] testimony to the effect that she asked them on . [both occasions] not to go through the boxes because they contained Robinson’s things, or that she did not give her consent to the search of the closet and the boxes.”

      . It is patent that Robinson did much more than drop in “at his convenience” before lie disappeared on June 26. The district judge found:
      They [FBI Agents] asked her [Fox] how often lie was at the apartment. She said he stayed there two nights a week, according to her testimony, or three or four, according to the agents. She said he worked 5 nights a week and was there during the daytime hours almost every clay on which he was on night duty.

      . The majority states:
      Here the defendant also impliedly disavowed any expectation of privacy in the cardboard boxes when he disappeared with a metal box and other belongings but ignored the cardboard boxes.

      . The findings of the trial judge included these:
      The contents of the boxes were, in the Fourth Amendment’s phrase, “papers and effects,” and principally papers. Apart from the snapshots, which are discussed below, the contents of the boxes were exclusively Robinson’s papers and effects and not Kelly Fox’s. It is true that the boxes were not sealed, and one had no top and the other was not completely closed because it was too full; but that circumstance, while it gives the government its strongest argument, relates only to whether Robinson had reasonable expectations of privacy in, exclusive control over, and the right to exclude others from, the boxes. The condition of the boxes perhaps shows carelessness on Robinson’s part but under all the circumstances hardly deprives them and their contents of their status as his personal papers and effects or negatives a reasonable expectation that others would not go through them without his permission.

        The only evidence that the boxes contained anything belonging to Kelly Fox is Agent Roten’s and Officer Tobin’s testimony that certain snapshots, at least one of which she said was hers, were found in one of the boxes. It turned out that the snapshot she referred to, showing, inter alia, an American Indian in native dress, was a copy of one which, with other snapshots, was in a dresser drawer she shared with Robinson in a bedroom in the apartment. She testified that the snapshots the agents said came from the boxes in fact came from the dresser drawer. The evidence that the snapshots were found in one of the boxes rather than in the dresser drawer is not convincing to me. The best that can be said for Officer Tobin’s testimony is that he did not appear to remember the pertinent facts. I am not convinced that Agent Roten remembered where the snapshots were found, although he thought he did. It must be recalled that he was not aware, even at the time he testified, that Officer Tobin had searched the dresser drawers in the bedroom, where many snapshots admittedly were kept. Since last summer, recollection and surmise may well have merged concerning a point apparently thought to be of little significance. But assuming the snapshots were in one of the boxes, this is scant evidence, absent any indication of how they came to be there. It appears unlikely, considering all the other facts and circumstances, that Kelly Fox ever used the boxes or looked into them. The government has the burden of proving facts which would justify the warrantless search.

      . Stone is just such a case. It is also distinguishable in that the green tackle box was itself an important piece of evidence, having been previously observed by numerous witnesses, and was lying in plain view of an area where the officers had a right to be under United States, v. Airdo, 380 E.2d 103 (7th Cir.), cert, denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed. 2d 260 (1967). . The boxes here had no evidentiary value; the important matter was concealed therein.

      . The majority distinguishes Poole in this fashion:
      Since evidence obtained in a search is inadmissible against a person having equal rights in the premises if he is present at the time of the search and does not consent, Lucero v. Donovan, 354 E.2d 16 (9th Oir. 1968), the Poole case does not detract from the inter-spousal consent doctrine of Sferas, Airdo and Stone.

      I cannot reconcile this distinction with our recent holding in Stone.


author: BRIGHT, Circuit Judge.

text:
    ON-LINE SYSTEMS, INC., and Conversational Systems, Inc., Plaintiffs-Appellees, v. Robert B. STAIB et al., Defendants-Appellants.
    Nos. 78-1070, 73-1085.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 13, 1973.
    Decided May 31, 1973.
    Rehearing Denied June 25, 1973.
    William E. Davis, Davenport, Iowa, for defendants-appellants.
    Ralph D. Sauer, Davenport, Iowa, for plaintiff s-appellees.
    Before MEHAFFY, BRIGHT, and ROSS, Circuit Judges.
   BRIGHT, Circuit Judge.

Robert B. Staib, an electronics engineer, owned, controlled, and worked for Conversational Systems, Inc. (CSI). In 1970, he contracted to sell the capital stock of CSI to On-Line Systems, Inc., a Pennsylvania corporation engaged in the business of selling computer time to industry. A part of that agreement provided that Staib was not to be employed in any business competitive to the business of CSI for a period of three years.

Within the three-year period, Staib left CSI to work for a competitor of On-Line and CSI, which resulted in OnLine and CSI bringing an action against Staib and others for breach of the non-competition clause of the agreement. During the course of the litigation, OnLine and CSI applied for a preliminary injunction enjoining Staib’s employment with firms competing with the plaintiffs. The district court granted this injunction on January 2, 1973, and Staib promptly brought this appeal. For reasons enunciated below, we find it neees-sary to vacate the injunction and remand the case for further proceedings.

Paragraph 20 of the July 31, 1970, agreement between Staib and On-Line provided:

The selling shareholder agrees that for a period of three (3) years after the closing date he will not, directly or indirectly, own, manage, operate, control or be employed or associated with any business competitive to the business of CSI except that he may own securities listed and traded on the New York or American Stock Exchanges.

At oral argument the parties agreed that the law of Pennsylvania governs the construction of this clause of the agreement. Appellant-Staib appears not to have directly challenged the validity of the noncompetition clause under Pennsylvania law in opposing the motion for a temporary injunction, but he has raised the issue in his brief on appeal by arguing that the injunction was overly broad in affording more protection than necessary to protect OnLine’s competitive position. Oral argument and questioning from the bench raised a substantial question as to the validity of this clause under Pennsylvania law. The courts of Pennsylvania do enforce reasonable covenants not to compete, but reasonableness is measured by appropriate limitations on duration (a point not here questioned) and geographic area. The Pennsylvania law seems aptly summarized in Certified Laboratories of Texas, Inc. v. Rubinson, 303 F.Supp. 1014, 1022-1023 (E.D.Pa. 1969):

In Pennsylvania the law of covenants not to compete ancillary to employment agreements has been reduced to cant. We learn that such covenants are restraints upon trade and as such are not viewed with favor; that they are subject to a more stringent test than those ancillary to the sale of a business; and that they are prima facie enforceable if “reasonably limited in duration of time and geographical extent.” Morgan’s Home Equipment Corp. v. Martucci, 390 Pa. 618, 628, 136 A.2d 838, 844 (1957). Accord, Jacobson & Company, Inc. v. International Environment Corp., 427 Pa. 439, 235 A.2d 612 (1967); Capital Bakers, Inc. v. Townsend, 426 Pa. 188, 231 A.2d 292 (1967); Barb-Lee Mobile Frame Co. v. Hoot, 416 Pa. 222, 206 A.2d 59 (1965). “General covenants are reasonably limited if they are ‘within such territory and during such time as may be reasonably necessary for the protection of the employer * * * without imposing undue hardship on the employee * * * ’. Restatement Contracts, § 516(f) (1932).” Morgan’s Home Equipment Corp. v. Martucci, supra, 390 Pa. at 628, 136 A.2d at 844. The burden of proving that a covenant is not reasonably necessary for the protection of legitimate business interests and an undue hardship upon the employee is upon the convenantor. Jacobson & Company, Inc. v. International Environment Corp., supra, 427 Pa. at 451, 235 A.2d 612.

As indicated in Certified Laboratories, Pennsylvania courts are apparently more amenable to enforcing noncompetition covenants ancillary to the sale of a business than those ancillary to employment contracts. Appellant argues that the noncompetition agreement here was ancillary to an employment agreement and therefore should not be enforced due to its lack of geographic restrictions. While the agreement may have been ancillary to the sale of a business in form, the district court’s discussion in its rulings on the preliminary injunction seem to indicate that it regarded Staib as an employee of On-Line, despite the existence of the CSI corporate form. Thus at least arguably the noncompetition agreement was in effect made in connection with an employment agreement. However, we need not decide that issue here. Since the noncompetition clause contains no geographic limitation whatever, we have serious doubts as to whether the clause is sustainable under either theory. See Plunkett Chemical Co. v. Reeve, 373 Pa. 513, 95 A.2d 925 (1953). Although, as suggested by On-Line, the district court may properly reduce the geographic area of a too broad covenant, Jacobson & Company, Inc. v. International Environment Corp., 427 Pa. 439, 235 A. 2d 612 (1967), the district court has not so restricted its injunctive relief. Accordingly, we set aside the injunctive order.

Reversed and remanded. No costs are awarded.

      . The preliminary injunction permitted Staib to continue his present employment with defendant, Applied Kinetics, Inc. (AKI), only “if AKI does not in any manner directly or indirectly, sell, compete or solicit sales of systems competitive to On-Line and does not do any work on computer programs or computer hardware for customers * *


text:
    UNITED STATES of America, Appellee, v. Joseph POLLARD, Appellant.
    No. 73-1006.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 17, 1973.
    Decided May 18, 1973.
    Leonard J. Frankel, Clayton, Mo., for appellant.

      Frederick J. Dana, Sp. Atty., Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.
    Before MATTHES, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   ORDER

This cause, having been duly briefed and argued, was submitted to this court on May 17, 1973.

A contention relied upon most heavily by the appellant is that since his convictions are for sales of heroin in transactions arranged by and participated in by a paid government informer, Richard Armstrong, whom the government apparently has used in this role in other eases, and since appellant's defense is entrapment, and since his two attempts to subpoena Armstrong as the sole witness to corroborate his allegations of entrapment were unavailing, the burden then rested upon the government “to expend every reasonable effort” to produce its employee so the defense could call him as a witness. Velarde-Villarreal v. United States, 354 F.2d 9 (9th Cir. 1965). The appellant moved the trial court to order the government to produce Armstrong, but this motion was denied.

“[S]ince the government chooses to utilize such agents, with the attendant risk of entrapment, it is fair to require the government which uses this inherently dangerous procedure to take appropriate precautions to insure that no innocent man should be punished.
If [the informer] is available for hire, he should be available to come and testify . . . [and] [w]e think whether there was a failure to expend every reasonable effort to obtain the witness is a question of fact for the trial judge.” 354 F.2d at 13.

Therefore in accordance with the teachings of Velarde, we remand the cause

“to the trial court for the [limited] purpose of holding a further hearing at which the Government shall be given the opportunity of proving if such be the case that it was genuinely unable through reasonable efforts to produce [Armstrong] and also, if such be the case, that the Government did not take steps to see to it that [Armstrong] would be or become unavailable as a witness. The burden of proving these things should be on the government.” Id.

The court upon remand may hear such evidence as it deems necessary and proper, and then shall certify its findings to this court.


author: PER CURIAM:

text:
    Mrs. Geraldine STEWART et al., Plaintiffs, Mary K. McKague et al., Plaintiffs-Appellees-Cross Appellants, v. ATLANTIC PIPE LINE COMPANY et al., Defendants-Appellants-Cross Appellees, v. TEXAS GENERAL INDEMNITY COMPANY, Intervenor-Appellee.
    No. 72-1543.
    United States Court of Appeals, Fifth Circuit.
    May 11, 1973.

      Dale Dowell, Beaumont, Tex., for Atlantic Pipe Line Co.
    Walter Umphrey, Port Arthur, Tex., for Mary K. McKague.
    John G. Tucker, Beaumont, Tex., for Texas Gen. Indemnity Co. and others.
    H. P. Wright, Port Neches, Tex., for Geraldine Stewart.
    Before TUTTLE, WISDOM and GOD-BOLD, Circuit Judges.
   ON PETITION OF ATLANTIC PIPE LINE COMPANY, ET AL FOR REHEARING AND ON THE PETITION OF THE McKAGUE PLAINTIFFS FOR AN AMENDMENT TO THE MANDATE HERETOFORE ENTERED BY THE COURT

PER CURIAM:

As indicated in our opinion entered December 12, 1972, the trial court erred by entering a remittitur in the sum of $30,000 of the $50,000 awarded to each child, after a jury verdict for $50,000 in favor of each. The law of this circuit requires that in the event the trial court concludes that a jury verdict for damages so far departs from the evidence as to warrant his granting a new trial with respect to the amount of damages, it should simply grant a new trial on the damage issue or it should give the winning party an option of having a new trial or agreeing to a remittitur of a part of the amount found in the jury verdict. See Gorsalitz v. Olin-Mathieson Chemical Corporation, 5 Cir., 429 F.2d 1033 (1970).

The appropriate action for this court to have taken, therefore, was to reverse the judgment of the trial court and to remand the case to that court for further proceedings not inconsistent with the opinion, instead of remanding the case to the trial court for the entry of a judgment in the full amount found by the jury to be due.

Although the petition for rehearing did not expressly call our attention to this disposition by our mandate, the subsequent petition by the McKague heirs for a modification of the mandate has caused us to read it more carefully, and we conclude that the error must be corrected.

The last paragraph of the opinion is, therefore, stricken and the following is substituted therefor:

“The judgment is affirmed on the principal appeal, and it is reversed on the appeal of the minor children and remanded to the trial court for further proceedings not inconsistent with this opinion.”

The mandate heretofore issued is recalled and this mandate is substituted therefor.


author: COFFIN, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Patrick J. O’SHEA, Appellant.
    No. 73-1142.
    United States Court of Appeals, First Circuit.
    Submitted May 7, 1973.
    Decided May 21, 1973.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Petitioner, Patrick J. O’Shea, was convicted in early 1967 of bank robbery and assault with a dangerous weapon, 18 U. S.C. § 2113(a) and (d), and sentenced that same year to twenty years in prison. Before imposing sentence, the court stated that “[i]n deciding upon the sentence, I consider as elements against you your previous records, which are serious, your having served time in state prison, the seriousness of the offense here, and all of the circumstances. The only factor which I consider to be in your favor is that this was not as aggravated an armed robbery as some are [and thus] not a case for imposition of the maximum sentence, which is recom-' mended by the government.” Petitioner’s conviction was affirmed by this court in an unpublished memorandum and order in March 1971.

Apparently desirous of voiding his sentence, in late 1972 petitioner moved in forma pauperis in the district court for a copy of the pre-sentence report considered by the judge 'before pronouncing the twenty-year sentence and for a transcript of the sentencing proceedings, alleging conclusorily that the report contained “false and untrue information”. He seemingly relied upon our recent decision in United States v. Picard, 464 F. 2d 215 (1st Cir. 1972), in which we held that, subject to certain restrictions, the sentencing court must make known to a defendant the substance of a pre-sentence report, to the extent it is relied upon. In denying petitioner’s motions, the district court here distinguished Picard on the grounds that petitioner’s trial counsel never. requested a copy of the pre-sentence report and that “the court did not place general reliance upon the pre-sentence report as is more frequently the case when conviction is based upon a plea of guilty or a trial of short duration.” Treating the district court’s ruling as a denial of a § 2255 motion, we affirm its decision, but on the different ground that Picard does not apply to sentences imposed prior to the date of its decision.

When procedural rights are sought to be applied retroactively, “the criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement officials on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967,1970, 18 L.Ed.2d 1199 (1967). Cf. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). This test applies whether the rights be viewed as constitutional, see e. g., DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968), or as emanating from other sources, see, e. g., Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L. Ed.2d 212 (1968). See also Desist v. United States, 394 U.S. 244, 256 n. 1, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting). Measured by this yardstick, our holding in Picard must be said to be of no avail to petitioner.

To be sure, the purpose to be served by requiring limited disclosure of the pre-sentence report is salutary and important. The opportunity for allocution may be meaningless in many cases if little is known of the information which might influence the court’s imposition of sentence. The role of the appellate courts in the sentencing process, presently consisting generally of review for abuse of discretion, consideration of improper factors or failure to consider appropriate ones, cf. United States v. Walker, 469 F.2d 1377 (1st Cir. 1972), depends, for its restricted but proper fulfillment, upon the identification of factors affecting the imposition of sentence. And perhaps most important, the deprivation of liberty inherent in any sentence should not be magnified as the result of any false data which may have infested the pre-sentence report. But the extent to which the soundness of the sentencing process and the right of allocution have been affected by clandestinely viewed, and perhaps somewhat erroneous, pre-sentence reports is a “question of probabilities”. Stovall, supra, 388 U.S. at 298, 87 S.Ct. 1967. Thus, while our holding in Picard is “justified by the need to assure the integrity and reliability of our system of justice, [it] undoubtedly [would] affect cases in which no unfairness [was] present” if it were to be retroactively applied. Id. at 299, 87 S.Ct. at 1971.

Moreover, the extent of the reliance by our district courts on the old rule that pre-sentence reports may be withheld from a defendant was significant. Our holding in Picard was not foreshadowed, and it evidenced a departure from tradition, including what we viewed in Picard, supra 464 F.2d at 218-219 n. 4, as an overly broad reading of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949) and Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516, reh’g denied, 359 U.S. 956, 79 S.Ct. 737, 3 L.Ed.2d 763 (1958).

Perhaps most relevant here, however, is the fact that if Picard were to be applied to sentences imposed before the date of its decision, it “would have an impact upon the administration of [the] criminal law so devastating as to need no elaboration.” Tehan v. Shott, 382 U.S. 406, 419, 86 S.Ct. 459, 467, 15 L.Ed. 2d 453 (1966). It would mean, quite simply, the re-sentencing of virtually all those previously sentenced.

In similar situations where the purpose of a ruling was to avoid a harm, the existence of which is merely problematical, where past reliance was extensive, and the anticipated consequences for the administration of our laws would be disastrous, the Supreme Court has recognized that we “may in the interest of justice make the rule prospective . . . ” Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601 (1965). See also Johnson v. New Jersey, 384 U.S. 719, 726-727, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan, supra, 382 U.S. at 410, 86 S.Ct. 459; Stovall, supra 388 U.S. at 297, 87 S.Ct. 1967; De Stefano, supra. In accordance with these principles, we refuse to apply Picard to instances in which sentencing occurred before the date of our decision.

Affirmed.

      . While procedural rights relating to imposition of sentence do not affect the integrity of the fact-finding process which determines guilt or innocence, we feel that retroactive application of these rights is properly analyzed in accordance with principles concerning the trial process. Cf. Morrissey v. Brewer, 408 U.S. 471, 480, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . This, of course, is not to say that a due process violation could not be made out by specific allegations and proof of sufficiently serious reliance on false information.

      . In Stovall, for example, the Court recognized that “a conviction which rests on a mistaken identification is a gross miscarriage of justice”, id. 388 U.S. at 297, 87 S.Ct. at 1970, yet refused to apply retroactively the exclusionary rules set forth in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967). In DeStefano, the Court noted that contempt tried before a jury rather than before the judge who was the object of the contemptuous behavior “would be more fairly tried”, id. 392 U.S. at 634, 88 S.Ct. 2093, yet refused to apply retroactively Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968).


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Frances Felicia STITH, Appellant.
    No. 72-1621.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 10, 1973.
    Decided April 27, 1973.

      Ray H. Williams, St. Louis, Mo., for appellant.
    J. Patrick Glynn, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before GIBSON, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

This is an appeal from the conviction of Frances Felicia Stith under a one count indictment charging her with embezzlement of funds from a federally insured bank in violation of 18 U.S.C. § 656. We affirm the judgment of conviction.

Miss Stith was a teller at the Citizens Bank of University City in St. Louis County, Missouri. On June 16, 1972, the bank discovered a shortage in her drawer of $260.00. She was relieved of her job at the time but offered no explanation of the shortage. On June 21, 1972, she was interviewed by an agent of the FBI after being advised of her rights and after having signed the usual waiver of rights form. During this interview, conducted at the bank, Miss Stith confessed to taking the $260.00. The confession was later used at the trial. Miss Stith testified in her own behalf and denied taking the money, although she admitted signing the confession and the waiver of rights form.

On this appeal counsel for Miss Stith has raised the following issues:

1. Defendant was denied a preliminary hearing before a magistrate and thus was denied the right to discover the case against her at an early time prior to trial.
2. The indictment upon which Miss Stith was tried was based “solely upon illegal and incompetent evidence.”
3. The indictment was “materially” changed by the Government without resubmitting it to the grand jury.
4. The confession was involuntary because of failure to give the proper Miranda warnings.
5. Failure of the trial court to grant the request of the defendant for transcripts of testimony of two witnesses who testified at the hearing on the motion to suppress was error and prejudicial to the defendant.
6. That the trial court erred in limiting defense counsel in the voir dire examination of the jury panel.
7. That the trial court erred in admitting into evidence the FDIC certificate issued to the bank several years prior to the embezzlement, together with checks to FDIC dated January 26, 1972, and July 26, 1972, to prove that the bank was a member of FDIC on June 15, 1972.

We have carefully examined each of the alleged errors and find them to be completely without merit and we will limit our comments to points 1, 3, and 4.

The preliminary hearing was scheduled for Miss Stith for July 3, 1972. At that time the hearing was continued until July 12, 1972, over the objection of counsel for defendant. On July 10, 1972, Miss Stith was indicted by a federal grand jury and the scheduled preliminary hearing was never held.

This Court rejected the argument advanced by appellant relating to the preliminary hearing, in Spinelli v. United States, 382 F.2d 871, 887 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed. 637 (1969), when the Court stated as follows:

Though the preliminary hearing provided for in Rule 5(c) may be a practical tool for discovery by the accused, the only legal justification for its existence is to protect innocent accuseds from languishing in jail on totally baseless accusations. Therefore, before the accused may be held for grand jury presentment Rule 5(c) requires the government to justify its incarceration by proving in a preliminary hearing before a judicial officer that there is probable cause to believe the accused committed the charged offense, Barrett v. United States, 270 F.2d 772, 775 (8 Cir. 1959). If the grand jury returns a true bill prior to the time a preliminary hearing is held, the whole purpose and justification of the preliminary hearing has been satisfied.
In the same light, we do not see anything inherently inequitable with continuing a preliminary hearing for a short period of time to allow intervening grand jury action. Though appellant might well have enjoyed the discovery benefits that flow from a preliminary hearing, he has no absolute right to these benefits if the underlying purpose of the preliminary hearing is supplanted. (Emphasis supplied.)

The argument that the Government “materially changed’’ the indictment prior to trial is without substance, The only change made was one which showed the bank to be in St. Louis County rather than the City of St. Louis No possible prejudice could have resulted to the defendant by making this change since there was no doubt as to which bank was the victim of the embezzlement. This change was certainly a matter of form rather than substance and comes within the exception to the rule as set forth in Russell v. United States, 369 U. S. 749, 770, 82 S.Ct. 1038, 8 L,Ed.2d 240 (1962).

Counsel for Stith claims that the Miranda warnings were insufficient because, according to Miss Stith, the FBI agent failed to advise her that she was entitled to have a lawyer present at the interrogation, even though she could not afford to retain one, but instead told her a lawyer would be appointed in the event of prosecution by a U. S. Magistrate. The FBI agent testified and the trial court found that Miss Stith read the form and signed it, and that it was read to her by the agent. The printed form signed by Miss Stith and read to her by the agent met the requirements of the Miranda decision. She was an intelligent person with three years of college, and the trial court properly found that she made an intelligent and knowing waiver of her right to counsel and of her right to remain silent at the interrogation.

The judgment of conviction is affirm-e(j_


text:
    John J. WILLIAMS and Elizabeth M. Williams, his wife, Appellants in No. 72-1600, v. INTERNAL REVENUE SERVICE. Joseph M. DONLON and Catherine Donlon, his wife, Appellants in No. 72-1601, v. INTERNAL REVENUE SERVICE.
    Nos. 72-1600 and 72-1601.
    United States Court of Appeals, Third Circuit.
    Argued April 30, 1973.
    Decided May 30, 1973.

      Robert E. Schlusser, Murdoch, Longo-bardi, Schwartz & Walsh, Wilmington, Del., for appellants.
    Richard S. Halberstein, Scott P. Crampton, Dept, of Justice, Tax Division, Washington, D.C., for appellee.
    Before HUNTER, and WEIS, Circuit Judges, and NEWCOMER, District Judge.
   OPINION OF THE COURT

PER CURIAM:

Appellants seek to overturn the granting of summary judgments by the District Court in favor of the Internal Revenue Service denying appellants’ requests for injunctive relief pursuant to the Freedom of Information Act, 5 U.S.C. § 552. Specifically, appellants sought to enjoin the Internal Revenue Service from withholding certain identified records related to the determination of appellants’ tax deficiencies presently under question in the United States Tax Court.

The District Court granted summary judgment on the grounds that (1) the data compiled in connection with an audit of an individual’s income tax liability constitutes an “investigatory file compiled for law enforcement purposes” within the meaning of 5 U.S.C., § 552 (b) (7); (2) the exception clause found in § 552(b) (7) which provides for disclosure “to the extent available by law to a party other than an agency” does not include availability under the discovery provisions of the Federal Rules of Civil Procedure; and (3) even if the exception clause found in § 552(b) (7) was construed to allow discovery under the Federal Rules of Civil Procedure, those provisions would not apply in this ease because the parties are presently involved in litigation before the United States Tax Court and not the United States District Court.

After carefully considering the briefs, oral argument and the District Court Opinion, we conclude that the District Court correctly granted summary judgment in favor of the appellee, the Internal Revenue Service, and we agree with the reasoning of the learned District Court Judge which is set forth in his Memorandum Opinion filed March 7, 1972.

Accordingly, the judgment of the District Court will be affirmed.


text:
    Herbert CLAY, Petitioner-Appellant, v. Harold BLACK, Warden, Kentucky State Reformatory, Respondent-Appellee.
    No. 72-2055.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1973.
    Decided June 1, 1973.
    Melvin L. Wulf, Lawrence G. Sager, American Civil Liberties Union, New York City, Robert Allen Sedler, Lexington, Ky. (argued), for petitioner-appellant on behalf of the Kentucky Civil Liberties Union; Richard N. Rose, Lexington, Ky., on brief.
    Douglas E. Johnson, Sp. Asst. Atty. Gen., for respondent-appellee; Ed W. Hancock, Atty. Gen., Frankfort, Ky., on brief.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

The habeas corpus petition of Herbert Clay is before this court for a second time. The facts are detailed in our prior opinion. 455 F.2d 667 (1972). After the evidentiary hearing ordered by this court, the District Court denied the application for the writ. This denial is appealed. We reverse.

Petitioner was convicted in a State court of Kentucky of wilful murder and sentenced to life imprisonment. The alleged murder took place outside a Harlan County tavern. Soon after the shooting, the petitioner turned himself in to local authorities, stating that he had been involved in a shooting. He did not discuss the incident further with police. An eyewitness to the shooting claimed that the petitioner had taken the decedent out of the petitioner’s car, placed him up against the car and shot him. At trial, the petitioner claimed that the two had been struggling inside the car when the gun went off.

The day after the shooting, the Kentucky State police removed red stained cotton fibers from the upholstery in the front seat of the car. An FBI report was received about three weeks later, identifying the stain as human blood of the same type and group as the decedent. This was approximately five months before petitioner’s trial. The appointed defense counsel was never made aware of the existence of the report and, therefore, did not request its production before trial.

Defense counsel learned of the existence and contents of the report sometime during the trial. He then sought to introduce it. The trial court refused to admit it, apparently because there was no showing of the chain of possession of the car for the intervening fourteen hours between the shooting and the taking of the blood sample.

The petitioner alleges that the failure of the prosecution to make the test results available to him before trial denied him his right to due process of law. The test results were part of the investigative file from which the prosecution prepared its case. They contradicted the testimony of the State’s only eyewitness to the alleged crime. As the District Court stated, “[t]he effect of the blood stain on the upholstery would have been to corroborate Clay’s version of the shooting. . . .” The introduction of the test results could have raised a serious doubt in the minds of the jury as to the guilt of the petitioner.

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), recognized a duty on the part of the prosecution to disclose evidence favorable to the defendant. In that case, defense counsel prior to trial had asked to examine the exculpatory statements made by the defendant’s companion. In Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967), while expressly reserving any further delineation of the extent of the prosecutorial duty to disclose, the Court remanded a case for further proceedings where no demand had been made by the defense for examination of specific evidence in the prosecutor’s possession.

We hold, on the specific facts of this case, that the nondisclosure of this material FBI report deprived petitioner of his right to due process of law. If the report had been disclosed prior to trial, defense counsel would have had time to make it admissible by establishment of a chain of possession of the car.The absence of a pre-trial request is not determinative in this case, where the defense was not even aware of the taking of the sample and the testing of it. See Barbee v. Warden, 331 F.2d 842 (4th Cir. 1964); United States ex rel. Meers v. Wilkins, 326 F.2d 135 (2d Cir. 1964); Note, Brady v. Maryland and the Prosecutor’s Duty to Disclose, 40 U.Chi.L.Rev. 112, 115-117 (1972).

This holding does not require, as the State claims, “a generalized sweeping duty on the part of the state to disclose its entire case to the defense prior to trial”. It merely requires the State, with its extensive fact-gathering apparatus, to operate fairly. It has a duty to disclose evidence in its possession which contradicts the testimony of the only eyewitness to the alleged crime.

The case is remanded with directions that the writ be granted unless the State commences re-trial proceedings within a reasonable time.


author: PRATT, Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Jeffrey GREENWALD, Defendant-Appellant.
    No. 72-2117.
    United States Court of Appeals, Sixth Circuit.
    June 1, 1973.

      Harry E. Youtt (Court Appointed), Cleveland, Ohio, James London of counsel, for defendant-appellant.
    Joseph T. McGinness, Asst. U. S. Atty., Frederick M. Coleman, U. S. Atty., Joseph T. McGinness, Asst. U. S. Atty., Cleveland, Ohio, on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and PRATT , District Judge.

       Honorable Philip Pratt, United States District Judge for the Eastern District of Michigan, sitting by designation.

   PRATT, Judge.

The defendant, Steven Jeffrey Green - wald, was convicted by a jury for a violation of Title 18, United States Code, Section 2314, transporting in interstate commerce “goods, wares, merchandise, securities or money, of the value of $5,-000 or more, knowing the same to have been stolen, converted or taken by fraud.” The crucial issue presented by this appeal is whether secret chemical formulae, or formulations, fall within the statutory language of “goods, wares or merchandise.”

The facts are essentially undisputed. Researchers of Pearsall Corporation, defendant’s employer, discovered a substitute for antimony oxide, a rare and expensive chemical used in fire retardation processes. The uniqueness of Pearsall’s formulations provided an appreciable competitive advantage and it chose not to reveal its discovery but to utilize it in the manufacture of its own products. The number of documents containing the formulations, therefore, was highly restricted but one set was disseminated to the defendant, a chemical engineer employed in the sales department.

The uncontradicted testimony of an officer of Pearsall Corporation and the President of Dover Chemical Company, both experienced and knowledgeable in the workings of the chemical industry, demonstrated that there is an established market, even among competitors, of chemical formulae and formulations. While there is, in addition, a commerce in finished products or components, it is not uncommon, according to that testimony, for chemical manufacturers to exchange formulae and formulations either by outright sale or through licensing agreements. Significantly, these formu-lae are treated as assets, in the same manner as machinery, equipment or accounts receivable.

It is within this context, then, that the defendant contacted a Pearsall Chemical Corporation competitor in Ohio and negotiated for the transmittal of the formulation documents that had come into his possession. After several telephone calls and a personal meeting in New Jersey, it was agreed that the competitor would pay defendant $40,000 for the documents. On August 21, 1970, by pre-arrangement, defendant journeyed to Cleveland, Ohio, and he was there apprehended in the course of consummating the sale.

While this definitional issue is one of first impression in this Court, we have no hesitancy in following the short but impressive interpretations adopted by the Third and Second Circuits in United States v. Seagraves, 265 F.2d 876 (3rd Cir. 1959); United States v. Lester, 282 F.2d 750 (3rd Cir. 1960), cert. denied 364 U.S. 937, 81 S.Ct. 385, 5 L.Ed.2d 368 (1961); American Cyanamid Company v. Sharff, 309 F.2d 790 (3rd Cir. 1962); United States v. Bottone, 365 F. 2d 389 (2d Cir. 1966), cert. denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437; In Re Carol Vericker, 446 F.2d 244 (2d Cir. 1971).

Seagraves, supra, was concerned with the theft and sale of geophysical maps relating to locations of potential oil deposits. In considering the application of 18 U.S.C. § 2314, the Court said:

“The terms ‘goods, wares, merchandise’ is a general and comprehensive designation of such personal property or chattels as are ordinarily a subject of commerce. Black’s Law Dictionary, 4th ed. 823 (1951); 1 Bouv.Law Dict. Rawle’s Third Revision p. 1365 (1914). There was evidence that maps of the type here involved are frequently sold; there was also expert testimony (other than by Gulf people) which placed the value on some of the individual maps alone at well over $5,000. Since the maps were shown without doubt to be subjects of commerce, albeit of a specialized nature, they are goods or wares or merchandise within the terms of the Act.”

In a case strikingly similar to the one at bar, the Second Circuit was concerned, in part, with the theft and sale under 18 U.S.C. § 2314 of secret processes used by a drug manufacturer. Judge Friendly, speaking for the Court, stated that there was no doubt that “. . . papers describing manufacturing procedures . . .” are within the ambit of the Act.

So, here, given an established, viable, albeit limited, market in chemical formulations, and the wrongful appropriation of original documents containing such formations, the normal, ordinary and logical import of the statutory language dictates the conclusion that the documents here are “goods, wares or merchandise” within the meaning of the Act.

Other issues raised by defendant are considered to be without merit.

Affirmed.

      . The set appropriated by the defendant was in the handwriting of a co-discoverer. Security considerations had prompted Pearsall Chemical Corporation to refrain from typing, printing or otherwise duplicating the original documents.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Homer Dias GARCIA, Defendant-Appellant.
    No. 73-1231
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 31, 1973.

      Clyde W. Woody, Houston, Tex., for defendant-appellant.
    William S. Session, U. S. Atty., James E. Bock, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

      . Also appellant gave a “No” answer to question 8(a), which was false because he was then under indictment for possession of marijuana, but the giving- of this statement was not charged as an offense. His explanation for answer 8(a) was that he did not understand the question.

   PER CURIAM:

Appellant was convicted of violation of 18 U.S.C. § 922(a) for making, in connection with the purchase of two rifles, a false statement that he had not been convicted of a crime punishable by a term exceeding one year. We affirm.

Appellant contends that the government failed to prove that he knowingly made a false statement. Joseph McBride, the person with whom appellant dealt in the gun shop, testified that he read to appellant paragraph 8(b) of Form 4473, Firearms Transactions Record (Department of the Treasury, Revised June 1970). Paragraph 8 of the form appears in the margin. Appellant answered “No” to question 8(b). McBride then asked appellant to read the statement himself and sign it. Appellant signed the form.

Appellant admitted signing the form and acknowledged that McBride read to him the questions under paragraph 8. But he testified that he thought 8(b) meant whether he “had been in prison in over a year.” He admitted to having been in prison but stated he did not know that this disqualified him from making the firearms purchases.

Earlier cases recognized the difficulties of proving that a false statement had been “knowingly” made in the purchase of a firearm, where the purchaser had signed the original version of Form 4473. That version provided for the buyer’s signature in a space on the top half of a form, directly under a certification that the signatory was not prohibited from receiving a firearm, but the persons prohibited were only listed at the bottom of the form. The first revision of Form 4473 placed the space for signature directly under a list of persons prohibited from receiving firearms. The second revision included an additional requirement that the buyer give a “yes” or “no” answer for each separate inquiry concerning each class of prohibited persons. It was this second revised form which was read to appellant and which he signed. Later cases have recognized that the revised forms eliminate much of the difficulty.

Proof of knowingly making a false statement is necessarily circumstantial in the great majority of cases. In this case the trier of fact, presented with the evidence we have described, could conclude beyond reasonable doubt that appellant’s statements were knowingly false although he testified that he only misunderstood.

Appellants’ other claims — that the status of the gun shop as a licensed dealer was not properly proved, and that the record of his prior conviction was not properly authenticated — are wholly lacking in merit.

Affirmed.

      . “§ 922. Unlawful acts. (a) It shall be unlawful—
      * * * * *
      (C) for any person in connection witli the acquisition or attemjrted acquisition of any firearm * * * from a licensed * * * dealer, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such * * * dealer, * ® * with respect to any fact material to the lawfulness of the sale or other disposition of such firearm * * * under the provisions of this chapter.”

      . “8. Certification of Transferee (Buyer)
      —an untruthful answer may subject you to criminal prosecution. Each question must be answered with a yes or no.
      a. Are you under indictment in any court for a crime punishable by imprisonment for a term exceeding one year?—
      b. Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year? (Note: The actual sentence given by the judge does not matter — a yes answer is necessary if the judge could have given a sentence of more than one year).—
      c. Are you a fugitive from justice?—
      <1. Are you an unlawful user of, or addicted to, marihuana or a depressant, stimulant, or narcotic drug?' — ■
      e. Have you been adjudicated mentally defective or have you ever been committed to a mental institution?—
      f. Have you been discharged from the Armed Forces under dishonorable conditions?—
      g. Are you an alien illegally in the United States ?—
      h. Are you a person who, having been a citizen of the United States, has renounced his citizenship?—
      “I hereby certify that the answers to the above are true and correct. I understand that a person who answers any of the above questions in the affirmative is prohibited by Federal law from purchasing and/or possessing a firearm. I also understand that the making of any false oral or written statement or the exhibiting of any false or misrepresented identification with respect to this transaction is a crime punishable as a felony.”

      . U. S. v. Squires, 440 F.2d 859 (CA2, 1971); U. S. v. Hedgecoe, 420 F.2d 458 (CA4, 1970). Hedgecoe held involuntary a plea of guilty for failure of the court to satisfy itself that there was a factual basis for the plea. Defendant had signed the original version of Form 4473, the government offered no evidence other than the form, defendant twice told the judge he did not know the purchase was prohibited by law, the government offered nothing to contradict defendant’s statements. As the court noted, defendant’s testimony, under the circumstances including the physical structure of the form, was not “inherently incredible.”

      . E. g., Cody v. U. S., 460 F.2d 34 (CA8, 1972). See also, U. S. v. Squires, 440 F. 2d 859 (CA2, 1971), at 865 and fn. 10 at 864.

      . See Cody v. U. S., supra.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony Coleman DUKES, a/k/a Hoppy, Defendant-Appellant.
    No. 73-1118
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 30, 1973.

      Nicholas F. Maniscalco, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Ass’t U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, DYER and SIMPSON, Circuit Judges.

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

   DYER, Circuit Judge:

Dukes appeals from his conviction of distributing a controlled substance in violation of 21 U.S.C.A. § 841(a)(1). He raises three points on appeal: (1) that he was entitled to an entrapment defense as a matter of law; (2) that the giving of a charge containing the words “unlawful entrapment” was reversible error; and (3) that the jury list was improper because it allegedly did not have on it, and made no - provision for, anyone between the ages of eighteen and twenty-one. We affirm.

On September 14, 1972, two undercover narcotics agents and a confidential informer were seated in a parked car at the corner of Seventh and Peach-tree Street, Atlanta, Georgia. A conversation was initiated (apparently by the informer) with Dukes, who was standing nearby and who was asked if he knew where the informer could get some heroin. Dukes said to follow him to a parking lot; he then accepted $65.00 from one of the officers, left the parking lot briefly, and returned with a quantity of heroin. On two subsequent occasions Dukes was given money by this informer and by one of the two agents, but once returned with sugar lactose and once failed to return at all.

After the Government had introduced evidence establishing the above facts and had rested, Dukes moved for a judgment of acquittal, claiming that he was entitled to an entrapment defense as a matter of law. This motion was denied and we think properly so. The agents here were perhaps aware of possible prior criminal activities of Dukes and probably initiated the request for heroin, but this solicitation without more does not constitute improper “creative activity” by the Government. Dukes offered no evidence on the question, nor did he cross examine any of the prosecution witnesses. As such, because his predisposition to commit the crime was amply shown and not rebutted, and because he failed to introduce “overwhelming evidence of entrapment,” he was not entitled to a judgment of acquittal. United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, 606, cert. denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L.Ed.2d 713. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Although the district court did not grant a judgment of acquittal on the meager evidence relating to entrapment, it did submit the question to the jury. Dukes’ second point raised on appeal is that the charge on this issue amounted to reversible error because the words “unlawful entrapment” were used several times. His position is that the concept of “lawful entrapment,” while not specifically mentioned, was created in the jury’s minds by a form of “negative pregnant” and that it is error to conjure up such a concept. It is true that the practice of using the phrases “lawful entrapment” and “unlawful entrapment” has been questioned as being “confusing and, perhaps, erroneous.” Groessel, 440 F.2d at 607. We reiterate that concern, but conclude that the charge here, which contained only the phrase “unlawful entrapment,” when read as a whole was not so misleading or confusing as to prejudice the rights of the accused. See United States v. Virciglio, 5 Cir. 1971, 441 F.2d 1295.

Dukes’ final argument is the rather vague charge that the jury list utilized in the district court denied him the right to a public trial and due process of law because it allegedly excluded all people eighteen to twenty-one years old. To the extent that this argument is of constitutional proportions, it has been presented to the court before in similar form and was rejected. United States v. McVean, 5 Cir. 1971, 436 F.2d 1120, cert. denied, 404 U.S. 822, 92 S.Ct. 45, 30 L.Ed.2d 50. Dukes has suggested no reason for retreating from that position, but has noted that since McVean, Congress passed Public Law 92-269 which provides that the minimum age for federal jurors is lowered from twenty-one to eighteen. We can perceive no way that this act would require a departure from the constitutional decision in McVean.

The primary thrusts of Dukes’ argument on this point, however, is that the Northern District of Georgia has failed to comply with the act. Public Law 92-269 was passed on April 6, 1972, and Dukes’ trial was held December 13, 1972. Consequently, Dukes’ position must be that in the intervening eight months between the act’s passage and his trial, the district court should have supplemented its master jury wheel. Section 3 of the act makes no such requirement; instead it mandates the refilling of the master jury wheel no later than September 1, 1973, and of the qualified jury wheel no later than October 1, 1973. It then states: “Nothing in this Act shall affect the composition of any master jury wheel or qualified jury wheel prior to the date on which it is first refilled in compliance with the terms of section 3.” We therefore conclude that Dukes’ challenge to the composition of the jury is without merit. See generally United States v. Gooding, 5 Cir. 1973, 473 F.2d 425; United States v. Blair, 5 Cir. 1972, 470 F.2d 331; United States v. Pentado, 5 Cir. 1972, 463 F.2d 355; United States v. Kuhn, 5 Cir. 1971, 441 F.2d 179.

Dukes has presented no argument that warrants reversal. The decision of the district court is in all respects

Affirmed.


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert H. BLANTON, III, Defendant-Appellant.
    No. 72-3348.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1973.
    Sidney D. Fazio, Baton Rouge, La., for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   BELL, Circuit Judge:

Appellant was convicted of possessing and transporting a silencer for a firearm in interstate commerce in violation of 26 U.S.C.A. §§ 5845(a), (i) and (j), and 5861(d). He also was charged with carrying a semi-automatic pistol equipped so as to use the silencer and a telescopic site but this charge was dismissed along with another not relevant here.

The single assignment of error is based on the denial of a motion to suppress the silencer as having been discovered by an illegal search and seizure.

Appellant’s bag was found in the unsupervised public baggage area at the Baton Rouge Airport where it had been unclaimed for several hours. An airline attendant found it necessary to open the bag to determine ownership. Unable to determine ownership from the contents of the bag, the attendant opened an at-taché case found inside the bag and discovered what appeared to him to be the silencer as well as the pistol. He called in other airline employees and they concurred in his suspicion that one of the items was a silencer. The attendant then called an airport security guard who viewed the silencer but was not certain as to just what it was. The bag was then closed by the airline employees. The security guard called local police officers to report the event and they, in turn, upon being told that one of the items found in the bag could be a silencer, directed the guard to call federal officers in New Orleans. One of the federal officers, upon being called, advised that they would leave immediately for the airport and that the bag should be held and that defendant should be detained if he attempted to claim the bag.

Meanwhile, appellant appeared at the airport to claim the bag. A security guard requested that he remain at the airport pending the arrival of the federal officer. Appellant called his lawyer and was told to cooperate. He stood by and a federal officer arrived from New Orleans shortly thereafter. The bag was turned over to the federal officer. He opened the bag, observed the silencer, and arrested appellant.

The original search was clearly by a private person and outside Fourth Amendment protection. This much is conceded. The argument is that the federal officer made a new search under circumstances where a warrant could have been obtained. Leaving aside the question of probable cause and exigent circumstances in that the defendant, as was stipulated, was free to leave, we proceed to a different basis for decision.

The government cites our case of Barnes v. United States, 5 Cir., 1967, 373 F.2d 517, in support of its position.

It is controlling. Barnes left a bag in a motel. The motel owner opened the bag and found bank checks with identical numbers made out to Barnes, numerous blank checks, and a rubber stamp for affixing Barnes’ name to checks. He became suspicious and called the police. We quote:

“ . . .By this appeal, appellant asserts that his conviction was the result of evidence gained through an illegal search in violation of the fourth amendment to the federal Constitution. The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence complained of. The search was made on the motel owner’s own initiative. Because of it, he became suspicious, called the local police, informed them of the bag’s contents, and made it available to the authorities.
“The fourth amendment and the case law applying it do not require exclu-clusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action. . . . Clearly the search complained of here did not involve governmental action and was therefore not illegal within the meaning of the fourth amendment.” 373 F.2d at 518.

This implicit basis for this holding in Barnes is that the initial search was made by a private person and the events which later transpired did not constitute a separate or additional search which could be equated with a search proscribed by the two-part test of the Fourth Amendment: (1) an unreasonable search (2) by a state or federal officer. It is not clear from our opinion in the Barnes case whether the bag was left open by the hotel owner or reopened by the police but this happenstance is insufficient to convert an otherwise private search into an unreasonable official search in the immediate circumstances which were present there and which are present here. The Barnes opinion states that the motel owner made “it”, meaning the bag, available to the officers. That is precisely what happened in the instant case.

This reasoning is buttressed by two decisions of the Ninth Circuit Court of Appeals. See Clayton v. United States, 9 Cir., 1969, 413 F.2d 297 (heroin discovered in search of air express shipment by airline employee); Gold v. United States, 9 Cir., 1967, 378 F.2d 588 (obscene film discovered in search of package by airline employee). See also Wolf Low v. United States, 9 Cir., 1968, 391 F.2d 61. These cases as well as Barnes and the case before us are to be distinguished from eases where the officers participate in or are in league with the private person in making the initial search. Cf. Corngold v. United States, 9 Cir., 1966, 367 F.2d 1. Here the federal officer had nothing whatever to do with the initial search. The bag containing the attaché case and silencer was handed to him by the private person who made the initial search and who caused the federal officer to be called in.

Affirmed.


text:
    CAPITAL BROADCASTING CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 72-1740.
    United States Court of Appeals, Sixth Circuit.
    Argued April 10, 1973.
    Decided May 31, 1973.
    Paul D. Cowden, Mt. Sterling, Ky., for petitioner; Clay, Marye & Cowden, Mt. Sterling, Ky., on brief.
    John C. Getreu, Director, Region 9, N. L. R. B., Cincinnati, Ohio, for respondent by Kenneth Hipp, N. L. R. B.; Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Patrick Hardin, Allison W. Brown, Jr., N. L. R. B., Washington, D. C., on brief.
    Before EDWARDS and CELE-BREZZE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

This case is before us on a petition for review and cross-application for enforcement of an order of the National Labor Relations Board finding that two of Petitioner’s employees were discharged because of their union activity, in violation of 29 TJ.S.C. § 158(a)(3), and that Petitioner had engaged in unlawful interrogation, threatening discharge for union activity and creating the impression of surveillance of union activities, in violation of 29 U.S.C. § 158(a)(1).

The Board found that the company’s general manager, Robert Doll, had stated to employee Richard Mix that a friend of Doll’s who owned a radio station had discharged the station’s staff because they had tried to form a union, that nothing had been done to his friend, and that Doll could do the same thing if he wanted to, but that he was not going to. The Board also found that Doll had stated that the station could not afford to pay its employees any more money, that he knew Mix was a leader in the organization activity, that he did not want the union in his radio station, and would do anything to keep it out. It was also found that Doll stated that the employees would be throwing money away on lawyers’ fees that could be used to grant raises to the employees.

The Board further found that the discharges were based at least partly on the union activity of the two employees. The company contends that the employees were discharged for cause — Mix, an announcer, because of comments made by him while giving a news report about tornado warnings and John Bowles, an engineer and part-time announcer, because he walked off his job. The company has since offered Mix reinstatement and paid him back wages. The two employees, who had been involved in union organization activity, were fired on May 28, 1971, just two days following the election which the union lost, five votes to four.

The reason given Bowles for his discharge was that he had been unavailable for duty as an announcer on the evening of May 26th and as the station’s chief engineer on the morning of May 27th. A malfunction on that morning had caused the station to be off the air for a three-hour period. Bowles stated that he had been sick on the evening of May 26th and was at his parents’ home on the 27th. The Board found that attempts to reach Bowles at the station’s transmitter, where he lived, had been unsuccessful, and that one attempt had been made to contact Bowles at the home of his parents, whose telephone number was posted at the location of the transmitter. After being discharged, Bowles returned to the transmitter to pick up his things and found that the locks had been changed.

While the testimony in the record is conflicting, the Board chose to accept the testimony of employees Mix and Bowles. Although we may have arrived at a different conclusion, a reviewing court may not “displace the Board’s choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 488, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951). Having reviewed the evidence before the Board, including the evidence opposed to the Board’s finding, we are unable to say that the Board’s decision is not supported by substantial evidence. Universal Camera Corp. v. N. L. R. B., supra, 340 U.S. at 488, 71 S.Ct. 456; See N. L. R. B. v. Walton Mfg. Co., 369 U.S. 404, 405, 82 S.Ct. 853, 7 L.Ed. 2d 829 (1962); N. L. R. B. v. Stemun Mfg. Co., 423 F.2d 737, 740-741 (6th Cir. 1970). As we have previously stated, the presence of “employer intent ‘to encourage or discourage’ union membership ... in conjunction with discharges of employees engaged in union activities will be evidence of a violation of § 8(a)(3) of the [National Labor Relations] Act.” N. L. R. B. v. Stemun Mfg. Co., 423 F.2d 737, 740-741 (6th Cir. 1970). See United States Rubber Co. v. N. L. R. B., 384 F.2d 660, 662-663 (5th Cir. 1968).

The company has contended that the statements of Doll were protected by § 8(c) of the Act. In considering this contention, we must be mindful of the language of the Supreme Court in N. L. R. B. v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969):

“Any assessment of the precise scope of employer expression, of course, must be made in the context of its labor relations setting. Thus, an employer’s rights cannot outweigh the equal rights of the employees .to associate freely, as those rights are embodied in § 7 and protected by § 8(a) (1) and the proviso to § 8(c). And any balancing of those rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear.” 395 U.S. at 617, 89 S.Ct. at 1942.

See N. L. R. B. v. Mink-Dayton, Inc., 416 F.2d 327, 328-329 (6th Cir. 1969), cert. denied, 400 U.S. 829, 91 S.Ct. 58, 27 L.Ed. 2d 59 (1970). Having applied this standard to the statements made by Doll, we do not find them to have been protected statements. Accordingly the petition for enforcement of the Board’s order is granted.