author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert FONSECA, Defendant-Appellant.
    No. 73-2875.
    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.

      Joseph Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Robert Fonseca was indicted and convicted on two counts of knowingly and intentionally importing and possessing, with intent to distribute, 50 pounds of marihuana, in violation of 21 U.S.C. §§ 841(a)(1) and 952(a). Fonseca appeals, and we affirm.

On May 9, 1973, Customs Inspector Armijo was on duty in the primary lane at the Cordova Bridge (now known as the Bridge of the Americas) at El Paso, Texas. At approximately 11:15 p. m., Robert Fonseca, appellant, driving a 1966 Chevrolet, approached the bridge from Juarez, Mexico. As Fonseca drove into the primary lane, Agent Armijo punched the vehicle’s license number into a CADPIN (Customs Automated Data Processing Intelligence Network) machine, now known as TECS (Treasury Enforcement Communications System). The machine registered a positive hit. Fonseca was questioned and he said that he was an American and had nothing to declare from Mexico. At this time Agent Armijo looked at the CADPIN machine and it read, “Escort to Secondary. Refer to Secondary.” He then immediately directed Fonseca into the secondary lane. A search of the vehicle revealed what appeared to be approximately 42 pounds of marihuana contained in a sack with Mexican markings on it. Customs Inspector Clark, on duty at the secondary lane, reiterated that Fonseca declared nothing. Clark approached the car and asked Fonseca to step out and open the trunk, which he did. Clark looked inside and saw a white bag. Fonseca made no comment when asked about the contents of the bag. Clark instructed him to pull the bag out. As he did one brick of marihuana fell out. Fonseca was subsequently placed under arrest by Customs Agent Henry and advised of his constitutional rights. The vehicle which appellant was driving when arrested had been purchased by his brother, Celso Fonseca, was registered in Celso’s name, but was used almost exclusively by appellant and another brother and sister.

Appellant’s defense is that he did not know that the marihuana was concealed in his vehicle. He did not testify; however, the assertion of his unawareness of the marihuana was elicited through cross-examination of Customs Agent Henry who questioned Fonseca at the time of his arrest.

Appellant seeks a reversal of his conviction on several grounds. He contends that the trial court erred in:

1. Failing to grant a mistrial and in permitting the prosecutor to show the jury the following:

A. That twice on January 18, 1973, marihuana seeds were found in two different vehicles and at two different times by customs inspectors during border searches at the Mexican border crossing at El Paso when Carlos Jimenez and unnamed individuals were in said vehicles, and Fonseca was not present, notwithstanding that at the end of the trial the trial judge withdrew such evidence from the consideration of the jury.
B. That on April 25, 1973, petulia oil and what appeared to be marihuana seeds and cigarette papers were found in a vehicle by a customs inspector during a border search at the Mexican border crossing at El Paso when Fonseca and Carlos Jimenez were in the vehicle.

2. Failing to sentence Fonseca under the Youth Corrections Act.

3. Giving an “Allen” charge to the jury.

Appellant further contends that:

4. The mere driving by defendant of a vehicle in which marihuana is found is insufficient to authorize a conviction of an accused who denies knowledge of the marihuana.

Defense counsel filed a motion in lim-ine requesting, inter alia, that the trial court prohibit admission of evidence of three bridge-crossing incidents which occurred prior to May 9, 1973, as well as evidence showing that appellant was involved with any CADPIN machine “hit.” The trial judge denied the motion, based on his belief that the series of transactions could have a bearing on the knowledge and intent of defendant. Defense counsel was granted a continuing objection and a promise by the court that the jury would be -instructed in regard to the limited purpose of the evidence to be received.

The three bridge-crossings prior to that of May 9, 1978:

1. Customs Inspector Cox testified that on January 18, 1973 he was on duty when an individual by the name of Carlos Jimenez, then driving a blue 1963 Chevrolet Impala, with Texas License No. CTZ 917, was referred to the secondary lane for inspection. Marihuana residue was found in the automobile. Jimenez was accompanied by a person other than defendant. A report was made of the search.

2. Customs Inspector Stewart testified that on the evening of January 18, 1973 he conducted a search 'of a green 1963 Chevrolet Biscayne which had been referred to the secondary lane for inspection. The search revealed a few marihuana seeds beneath the back seat and about 100 to 150 marihuana seeds in the trunk. The vehicle was driven by Carlos Jimenez who was accompanied by a passenger other than defendant. A report was also made of this search.

3. Customs Inspector McCarty testified that on April 25, 1973 appellant Fonseca, accompanied by passenger Carlos Jimenez, arrived at the bridge in a blue 1966 Chevrolet Impala, License No. CXW 325, the same car involved in the present case. A substance known as pe-tulia oil (described as cologne with a fragrance similar to that of marihuana) and what appeared to be marihuana seeds and papers used to roll cigarettes were found in the vehicle. Jimenez made a false claim of citizenship and was referred to Immigration authorities. Fonseca denied any knowledge of the marihuana seeds or residue and was allowed to leave. The incidents were reported.

Customs Agent Henry explained the operation of the CADPIN machine. The system is used with computer hook-ups throughout the country, in order to put other customs employees on notice of a suspicious vehicle, aircraft or person who might be carrying contraband. Henry was present in the courtroom during the testimony of Inspectors Cox, Stewart and McCarty. The information they had compiled relating to searches on January 18 and April 25, 1973 had been fed into the computer machine. Under the system, as a vehicle approaches the port of entry, the license number of the vehicle is queried in the TECS system.' An inspector types the number into the machine, pushes an access button and asks the machine, “Do. you have any information on this particular identifying characteristic?” The machine will respond, “Yes” or “No.” If the response is “Yes” it is called a hit. The machine might also alert an inspector by indicating “Armed and Dangerous” if that information had been fed into the computer. If not, it would say, “Escort to Secondary.” In this particular case, the machine registered only, “Yes, yes, yes, Escort to Secondary.” Another machine is kept at the Head House in the vicinity. It is a hard copy printout that starts printing out the minute the number comes back as a hit. That is given to the inspector for any special instructions he is not aware of at that time. The following information might appear on the printout: the vehicle license and identification number, the description of the vehicle and the names and descriptions of the persons associated with the vehicle,' special instructions such as whether to search the individuals, hold them, notify the agents, release them, or arrest them on the spot if they are fugitives. On objection by defense counsel, Agent Henry was not allowed to testify to the particular information which appeared in the printout on May 9, 1973, and said only that he was advised “that they had the marihuana and they gave me the print-out. And I placed the defendant under arrest at that time.” Agent Henry further testified that the marihuana which was seized from defendant was worth between $16,000 to $20,000.

Fonseca bases his laek-of-knowledge- and-intent defense on Agent Henry’s testimony on cross-examination. This testimony shows that after Henry advised Fonseca of his constitutional rights he asked Fonseca if he wished to explain where he got the marihuana and where he was going to deliver it. Fon-seca told him that he had no knowledge of the marihuana, that he had been in Juarez drinking with some friends and that he had lent his car to an individual. Agent Henry did not remember whether Fonseca told him the name of that individual. In response to the question of whether Fonseca had mentioned the name of Raul Valascas or had given a description of Valascas, Henry said that he could not recall. He agreed that it was possible for the narcotics to have been “planted” in Fonseca’s car, but conversely was aware that it was common for people arrested at the bridge with a considerable amount of marihuana to claim that they had no knowledge of it. He was asked further, “Well, smugglers don't put it in the trunk like that — that obvious?” and answered, “Yes, sir, they do.” , He said that while this was not ordinary, in the past he has found as much as 500 pounds of marihuana concealed in a trunk of a vehicle.

Prior to the close of the Government’s case, the trial judge reversed his former ruling and instructed the jury not to consider any testimony relative to the first two crossings on January 18 in which Jimenez but not Fonseca was in the car. The evidence relating to the April 25 crossing by Fonseca accompanied by Jimenez was not ordered stricken. Appellant contends that evidence of all three crossings should have been excluded. The trial judge gave the following instructions at this point in regard to these three incidents:

“Members of the jury, I believe the evidence in this case up to this time does show that there was evidence [of] two crossings in which inspections were made of vehicles in this case, one of which Mr. Jimenez was stopped. I believe there is evidence to that effect, and that his car did have some evidence of marihuana seeds or something to that effect. And then the evidence later shows that Mr. Jimenez and the Defendant in this case, Mr. Fonseca, were together when a similar inspection took place and where there were seeds found. And of course this information according to the witnesses went into the CAD-PIN computer.

“I’m going to instruct you that with reference to the first crossings involving only Jimenez in which Mr. Fonseca was not in the car, that you are not to consider that testimony as any evidence of guilt whatsoever, and you are to totally disregard that particular evidence of that particular incident and that particular search. Anything they found with reference to the automobile which was being driven at the time by Mr. Jimenez that is entirely to be disregarded by you. As far as I’m concerned, it is absolutely no evidence of the guilt of this particular Defendant and it cannot be used by you as any evidence whatsoever.

“Now, with reference to the second crossing in which there is evidence that Mr. Jimenez was in the automobile with Mr. Fonseca, the Defendant in this case, and where there was found evidence in the vehicle of marihuana seeds, and you’ve heard exactly the testimony, that that testimony and that evidence with reference to that second search in which Mr. Jimenez and Mr. Fonseca were both in the car, it is admitted solely for the purpose of showing, if it does, the knowledge of the Defendant of the marihuana contained in the trunk of the vehicle he was driving on May the 9th, 1973 which was searched at the Port of Entry, and for no other purpose whatsoever.”

The trial judge further instructed the jury:

“All right. On April the 25th. Well, with reference to the crossing by Mr. Jimenez in which Mr. Fonseca was not actually a passenger in the car, I’m instructing you, ladies and gentlemen of the jury, that this is not competent evidence for you to consider in this case, and you are to disregard that evidence for all purposes. With reference to the crossing which Mr. Fonseca and Mr. Jimenez were in the car together, you are at liberty to consider that for the sole purpose of establishing knowledge, if any, beyond a reasonable doubt and no other reason.”

In response to appellant’s contention that the evidence pertaining to the bridge crossings on January 18 should have been excluded (as it was by the district judge in instructions,to the jury), the Government contends that it was admissible to show knowledge and a continuous transaction by appellant. We do not agree. The evidence was irrelevant, having no connection with appellant. Moreover, Government counsel informed the jury in his opening statement of his intent to prove knowledge of defendant by the incidents on January 18 and later by introducing that evidence through the testimony of Customs Inspectors Cox and Stewart. Nevertheless, the error was cured by the instructions of the trial judge admonishing the jury to disregard that evidence in its entirety. Unlike the cases relied on by appellant, this is not a case where testimony of prior crimes of the defendant was admitted for improper purposes. Nor is it a case in which the testimony is so highly prejudicial that no instruction could erase the harm done. In essence the jury was informed that Carlos Jimenez, not appellant, was involved in certain questionable conduct related to the transportation of marihuana. It is doubtful that this evidence influenced the jury in its verdict, The thorough and emphatic instructions of the trial judge effectively removed any prejudice. In view of the curative instructions, and the overwhelm-jng evidence of guilt, the error was harmless.

The April 25 bridge crossing is in a different category, however, and we find no error by the trial court in admitting evidence pertaining thereto. It was appellant this time who drove the vehicle, the same vehicle which was stopped on the day he was arrested. As on the day of his arrest, there was evidence of marihuana in the vehicle: “What appeared to be marihuana seeds and cigarette papers” were found. Admissibility of evidence is a matter within the broad discretion of the trial court, United States v. Abshire, 5 Cir., 1972, 471 F.2d 116; United States v. Gonzalez, 5 Cir., 1972, 466 F.2d 1286. While it is clearly established that such discretion would be abused if evidence of prior crimes or misconduct were permitted for the purpose of showing either the criminal character of a defendant or his propensity to commit crime, if the incident is closely related in time and nature to the crime charged, it is admissible for the purpose of showing intent or knowledge. See United States v. Kasouris, 5 Cir., 1973, 474 F.2d 689; Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6; and United States v. Dryden, 5 Cir., 1970, 423 F.2d 1175, 1178, where we quoted with approval language from the Second Circuit which is pertinent here:

Where, as here the evidence is susceptible of the interpretation that the acts alleged to constitute the crime were innocently performed and the vital issues of knowledge and intent are keenly disputed, it is well within the trial judge’s discretion to permit the Government, on a properly limited basis, to introduce evidence of prior similar offenses demonstrating the unlikelihood that the defendant was a mere innocent, unknowing bystander. For in such eases the jury must be relied upon not to convict the defendant solely because he is an evil fellow with a propensity towards criminal behavior in general * * * but because of the sheer improbability that a person with his familiarity and experience with the specific criminal conduct charged might have been unaware that a crime was being committed or might have performed the acts with an innocent and lawful intent.

United States v. Klein, 2 Cir., 1965, 340 F.2d 547, 549.

Appellant relies on United States v. Broadway, 5 Cir., 1973, 477 F.2d 991, in which we reversed a conviction of a defendant at whose trial the district judge erroneously admitted evidence of other related offenses even though limiting its use for the purpose of showing intent and guilty knowledge. Broadway was charged with transporting and causing to be transported in interstate commerce a falsely made and forged security [Travelers Express Money Order No. 939] in violation of 18 U.S.C. § 2314, under which statute proof of guilty knowledge is requisite for a conviction. Broadway’s defense was that he did not know that the money order was stolen or forged. In an attempt to prove guilty knowledge, the Government put in evidence two other money orders, Nos. 864 and 873, from the same series as Money Order No. 939. There was proof that all three money orders had been negotiated at about the same time, all were payable to Broadway, and all bore similar endorsements. The Government also presented proof that Money Order No. 939 had been cashed and caused to be put into interstate commerce by Broadway; however, it failed to present similar proof in regard to Money Orders Nos. 864 and 873. In applying the principle that proof of similar offenses introduced for the purpose of showing intent and guilty knowledge must be “plain, clear and conclusive,” 477 F.2d at 995, we found that there was no proof of similar offenses, as the requisite element of transporting or causing to be transported in interstate commerce of Money Orders Nos. 864 and 873 was lacking. We held:

[W]hen proof of an assertedly similar offense is tendered to establish necessary intent, the other offenses proved must include the essential physical elements of the offense charged, and these physical elements, but not the mental ingredients of the offenses must be clearly shown by competent evidence.

477 F.2d at 995.

Here the charges on which Fonseca was found guilty contained the physical elements of importation and possession. The assertedly similar conduct tendered to establish intent or knowledge also contains the physical elements of importation and possession. In each instance, on April 25 and on May 9, Fonseca was in the act of possessing and importing marihuana when he was stopped at the bridge.

In Broadway, however, the physical elements to be proved were: (1) transporting or causing to be transported in interstate commerce (2) a falsely made (3) and forged security. The asserted “similar” offense lacked proof of one of the elements — the transportation element. Broadway merely emphasizes the principles to which we have always adhered, that in order to prove intent or guilty knowledge other offenses offered in evidence for that purpose must be similar. And Broadway, of course, is based on its own peculiar facts.

There was no error in the trial court’s failure to find explicitly, before sentencing Fonseca (then 19 years old) as an adult, that he would not benefit from the rehabilitative treatment of the Youth Corrections Act, 18 U.S.C. § 5005 et seq. The transcript of the sentencing proceedings shows that the trial judge commented extensively on his reasons for not sentencing Fonseca under that Act. Whether the trial judge must make such findings is an open question. We pretermit the issue here inasmuch as the court’s comments were tantamount to a finding that Fonseca would not benefit from a sentence imposed under the Youth Corrections Act.

There likewise was no error in the so-called “Allen” charge given by the district court. In United States v. Bailey, 5 Cir., 1973, 480 F.2d 518, this Court, en banc, approved the Allen charge within the limitations delineated in the panel opinion, United States v. Bailey, 5 Cir., 1972, 468 F.2d 652. The supplemental jury charge given here is well within the confines of Bailey.

There is no merit to appellant’s final contention that the mere driving of a vehicle in which marihuana was found is insufficient for conviction under the evidence here. The evidence of guilt was obvious and overwhelming. Fonseca was caught red-handed, crossing from Mexico to the United States, with 50 pounds of marihuana worth between $16,000 to $20,000 concealed in a vehicle driven by him and carrying no other passenger. Appellant offered no direct evidence to substantiate his theory of innocence. Counsel’s attempt to establish this defense by eliciting from Agent Henry appellant’s disavowal of knowledge, obviously had no more effect on the jury than it had on Agent Henry in his encounter with appellant. Viewing the evidence in the light most favorable to the Government, we are convinced that it was sufficient to support the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1940).

Affirmed.

      . Agent Armijo explained what he meant by a positive hit: “If there is any intelligence on the license number of any vehicle, the machine will register. It goes yes. If it is no, it will just say no. There is no sound. If it is a positive, it makes a noise and goes ‘Yes, yes, yes.’ It repeats over and over. And there is a telephone that rings, a bell goes off and we know we have some information on this car.”

      . See Boyd v. United States, 142 U.S. 450, 12 S.Ct. 292, 35 L.Ed. 1077 (1891), a murder trial, at which proof of robberies committed by defendant was held erroneous; Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), in which introduction of a constitutionally infirm prior criminal conviction for the purpose of enhancing punishment was held erroneous.

      . See Odom v. United States, 5 Cir., 1967, 377 F.2d 853, which involved testimony by an officer that he had seen the accused come in and out of jail; McMillian v. United States, 5 Cir., 1966, 363 F.2d 165, a liquor laws vio-latiou case involving hearsay testimony of a Government agent to the effect that he recognized an automobile in the vicinity of defendant’s house to be the same as one described by an informer which had been used in other illicit whiskey operations.

      . The evidence “shrinks into insignificance when compared with the properly admitted” evidence of 50 pounds of marihuana, thus supporting the conclusion that the error was harmless beyond a reasonable doubt. See United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225, 230; United States v. Bankston, 5 Cir., 1970, 424 F.2d 714.

      . The elements of knowledge and intent present in the indictment against the defendant are subjective or mental and do not require direct proof. “Knowledge, intent and the like are typical mental elements. These may be inferred by the trier of fact, from the totality of the circumstances, in the same manner in which the trier of fact is entitled to infer such elements in determining guilt or innocence of the offense on trial.” United States v. Broadway, 5 Cir., 1973, 477 F.2d 991, 995 n. 5.

      . See, e. g., United States v. Sanchez, 5 Cir., 1973, 482 F.2d 5, 8: “We are not persuaded that the charge against appellant of assault on a bartender is evidence of an intent to forcibly assault, resist, oppose, impede and interfere with a federal officer, . . . . ” ; and United States v. Jaqua, 5 Cir., 1973, 485 F.2d 193, 195: “There is no similarity or discernible pattern between the transactions inquired into [alleged striking of a lady and destruction of property] and the offense charged [assault of a federal officer],

      . 18 U.S.C. § 5010(d) reads as follows:
      “If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.”

      . In imposing sentence the trial judge said:
      “I did consider Youth Correction in this case but based upon the evidence in the case and the information contained in the pre-sentence report, he has had associations that suggests to me a possible prior involvement with marihuana. Sweepings and residue in the car with people he was associated with, one of which is at large which would indicate that he has been connected with the marihuana traffic. Furthermore, he was given the benefit of a bond and while on bond he violated it.”
      “This was a ease where possession, constructive possession at least of this defendant was pretty well assured by the fact that the 50 pounds of marihuana was found in the car which this particular defendant was driving. I am very well aware of the defense he has asserted, but I’m also alive to the suspicious circumstances that surrounded his arrest after he had been given the benefit of bail and before it had been revoked for that reason by Judge Guinn.”
      “I want you to know that I considered very carefully Youth Correction both (a) and (b). Under these circumstances, I just cannot bring myself to do it, Mr. Calamia. And I have considered it very carefully.”
      “Well, I think I’ve given you those reasons. I have carefully considered Youth Corrections both (a) and (b). And I have given you the reasons why I have denied it.”
      “Well, I have considered it and I have given you the reasons why I feel like it would not be appropriate in this case.”
      “I don’t say that it isn’t appropriate in some narcotic cases or where convictions are involved, convictions of this type of controlled substance of narcotic drugs. But this is one I just don’t feel like is the proper case for the reasons I have given you.”

      . United States v. Dover, 5 Cir., 1974, 489 F. 2d 688. Cf. United States v. Schenker, 5 Cir., 1973, 486 F.2d 318. See also United States v. Bamberger, 3 Cir., 1972, 456 F.2d 1119; United States v. Jarratt, 9 Cir., 1973, 471 F.2d 226; Cox v. United States, 4 Cir., 1973, 473 F.2d 334; United States v. Dorszynski, 7 Cir., 1973, 484 F.2d 849, cert, granted, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548; contra, United States v. Coefield, en banc 1973, 155 U.S.App.D.C. 205, 476 F.2d 1152.

      . Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    John Mario DeGAGLIA, Petitioner-Appellee, v. Edward J. STACK, as Sheriff of Broward County, Florida, Respondent-Appellant.
    No. 73-3053
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 6, 1974.

      Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Nelson E. Bailey, Thomas M. Carney, Asst. Attys. Gen., West Palm Beach, Fla., Phillip S. Shailer, State’s Atty., 7th Judicial Circuit of Fla., Bro-ward, Fla., Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, Fla., for respondent-appellant.
    Jerome M. Rosenblum, Hollywood, Fla., Fred. A. Jones, Martin Blitstein, Miami, Fla., for petitioner-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

Stack, the sheriff of Broward County, Florida appeals from the district court’s grant of DeGaglia’s petition for writ of habeas corpus. In July 1971, DeGaglia entered a negotiated plea of nolo con-tendere in state court to possession of heroin. The state court sentenced him to one year in the county stockade. The negotiations for the plea had focused on a sentence of probation rather than of incarceration. Contending that the state had not kept the promise of probation and had thus invalidly obtained the nolo plea, DeGaglia appealed and lost in the state courts (fully exhausting his state remedies) and then brought this petition in federal district court.

The district court concluded that the defendant had been unintentionally misled by a comment of the state judge in the course of his interrogation of the defendant to ascertain whether his plea was knowing, intelligent and voluntary. This colloquy is set out in the margin. The statement on which the district court based its conclusion was the state judge’s remark, “Of course, the Court gives great weight to the recommendations of the State.” Additionally, the district court concluded that DeGaglia’s plea was not fully voluntary because he had not been informed of the maximum sentence which could have been the consequence of his plea.

From the record of DeGaglia’s pleading proceeding and the evidentiary hearing held by the district court, it is apparent that the prosecutor promised only a recommendation of probation and fully complied with that promise. No Santobello question of prosecutorial reneging exists. The court below concluded, however, in view of the right of the defendant to withdraw his no-contest pleading at any time prior to its acceptance, that the “great weight” comment of the trial court misled DeGaglia into an involuntary relinquishment of his right to a trial. With all respect for the conscientious approach of the district court, and despite the deference due his understanding and conclusions about the circumstances of DeGaglia’s guilty plea, we are unable to agree.

Before the comment was made, a rather full interrogation of the defendant had already been accomplished by the state judge without any indication of a want of knowledge or of intelligent and voluntary consent on the part of the defendant. The comment of the court came rather late in the process of the interrogation. At the outset of the interrogation, defendant’s counsel had remarked, and later replied to a question of the court, both times in the presence and hearing of the defendant, that the bargain struck with the prosecutor was for a recommendation only; and the defendant had affirmed that he understood that the only promise made was for a recommendation. All of this had transpired prior to the remark on which the district court focused. Finally, at the conclusion of the entire interrogation, the court, again in the presence and hearing of the defendant, ordered a pre-sentence investigation. In the light of this order, the defendant could not reasonably have thought that the court regarded the question of his sentence as concluded by any bargain or that the court would have put the Florida Parole Commission to the trouble of such an investigation if the court had already determined to grant probation and intended the investigation to be a mere mummery.

We in no sense retreat from our recognition in United States v. Frontero, 452 F.2d 406 (5th Cir., 1971), that the possibility of a misunderstanding is inherent in the plea bargaining process. We simply hold, consistent with Frotvtero, that DeGaglia has not shown a bargain based on a misunderstanding which acted as an inducement for his plea and destroyed the requisite voluntariness.

In addition, the district court judge granted the petition on the ground that the state judge had not informed DeGaglia of the maximum possible sentence under the charge. Petitioner has never presented this claim to the Florida courts, and the court should not have considered it. We vacate the court’s decision on this issue and remand for a dismissal without prejudice of this claim.

Reversed in part; remanded in part.

      . [Defense Counsel] : This is on John DeGaglia, Case No. 71-3135, the defendant having previously pled not guilty and has had the pretrial hearing.
      The prosecutor and I have had an opportunity to confer in this case and we have agreed on certain matters and certain recommendations to be made to the Court.
      In consideration of those matters, the defendant at this time will withdraw his previously entered plea of not guilty to the charge of possession of heroin and enter a plea of nollo [sic] contendere thereto.
      We do not request the State to prove any of the facts in this proceeding.
      THE COURT: You are John DeGaglia?
      THE DEFENDANT: Yes.
      THE COURT: How old are you ?
      THE DEFENDANT: 25.
      THE COURT: Did you understand everything your attorney has just said, sir?
      THE DEFENDANT : Yes, sir.
      THE COURT: Do you understand that a plea of no contest to the offense of possession of heroin is equivalent to a plea of guilty to that offense? Do you understand that?
      THE DEFENDANT: Yes.
      THE COURT: And do you understand that based on that plea you could be sentenced to the State penitentiary ? Do you understand that?
      THE DEFENDANT: Yes, sir.
      THE COURT: And do you also understand that, based on that plea, you are waiving your right to a jury trial in this case?
      THE DEFENDANT: Yes, your Honor.
      THE COURT: Has anything been promised you in return for that plea?
      [Defense Counsel] : The only thing that has been promised, your Honor, is the prosecutor has agreed to recommend to the Court that the defendant be placed on a term of probation for IS months to two years; that the money that was seized by the police as evidence in the case be returned to the defendant.
      I explained to John even though the prosecutor does make such a recommendation, the final decision still rests with your Honor, but I feel that John has made it. He is gainfully employed in the carpet installing business, if my memory serves me correctly.
      He is not bloodsucking society, so to speak. He was in another home at the time this arrest was made and that’s where the stuff was.
      THE COURT: Is that your understanding and is that the reason that you entered the plea?
      THE DEFENDANT: Yes.
      THE COURT: And you understand that, while the State may make such a recommendation, the Court is not absolutely bound by it? Of course, the Court gives great weight to the recommendations of the State. Do you understand that?
      THE DEFENDANT: Yes.
      THE COURT: Outside of that, has anything else been promised you?
      THE DEFENDANT: No, sir.
      THE COURT: Has anybody forced you to enter that plea?
      THE DEFENDANT: No, sir.

        THE COURT: And have you talked that plea over with your attorney, [defense counsel]?
      THE DEFENDANT: Yes ; I have.
      THE COURT: Are you satisfied with the advise that [defense counsel] has given you?
      THE DEFENDANT: Yes; I am.
      THE COURT: Do you feel that the advice that [defense counsel] has given you is in your best interest?
      THE DEFENDANT: Yes.
      THE COURT: Mr. DeGaglia, is there anything that you don’t understand about what is going on here this morning in court?
      THE DEFENDANT: No.
      THE COURT: And have you understood everything that I have said to you?
      THE DEFENDANT: Yes.
      THE COURT: And all your answers have been true and correct?
      THE DEFENDANT: Yes, sir.
      THE COURT: I understand that the State is making that recommendation?
      [Prosecutor] : Based on a presentence investigation, your Honor, we will make that recommendation, as I indicated to [defense counsel].
      THE COURT: I will accept the plea of no contest to the offense of possession of heroin and defer adjudication and the imposition of sentence until July the 30th, at 10:00 A. M.
      I will order a presentence investigation by the Florida Parole Commission, and you are allowed to remain out on the same bond.


text:
    Mary Angel GONZALES, a widow, etc., Plaintiff-Appellant, v. Raymond G. VOWELL, Commissioner of Public Welfare for the State of Texas, Defendant-Appellee.
    No. 73-2368.
    United States Court of Appeals, Fifth Circuit.
    March 1, 1974.

      Robert M. Helton, Wichita Falls, Tex., for plaintiff-appellant.
    John L. Hill, Atty. Gen. of Texas, Robert Gauss, Asst. Atty. Gen., State of Texas, Austin, Tex., for defendant-ap-pellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   PER CURIAM:

This appeal presents the question whether a state must provide a hearing and appointed counsel to a welfare recipient before reducing welfare benefits to which the recipient is no longer entitled. In the district court, Mary Angel Gonzales sought a judgment that the State of Texas had unconstitutionally deprived her of certain welfare benefits and had denied her appointed counsel at a subsequent hearing on the alleged deprivation. The district court denied the requested relief. We affirm.

Mrs. Gonzales, a widowed mother of four, applied simultaneously for financial aid under the federally-assisted Aid to Families with Dependent Children program (AFDC) and the Federal Old Age, Survivors and Disability Insurance Benefits program (OASDI), shortly after the death of her husband. She began receiving monthly benefits under both of these programs in August 1971, $171.00 in AFDC benefits and $429.00 in OASDI benefits. After a chance conversation with a caseworker for the Texas Department of Public Welfare, she was informed that since the OASDI funds alone represented more than her family’s “recognizable needs”, she was ineligible for state-administered AFDC benefits. The AFDC benefits were thereafter discontinued without additional notice to Mrs. Gonzales and without a prior hearing. Later, upon application by Mrs. Gonzales, the State Department of Public Welfare held a hearing, but it was entirely devoted to a discussion between the hearing officer and Mrs. Gonzales’ attorney, who insisted that he be “appointed” as her counsel. The Department held a second hearing on February 8, 1972, and upheld the termination of AFDC benefits.

Mrs. Gonzales then filed the instant action in the United States District Court for the Northern District of Texas, urging that she had been denied a pre-reduction hearing, contrary to the requirements of Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, and that she had been deprived unconstitutionally of the assistance of appointed counsel. Goldberg held that when welfare benefits are discontinued, only a pre-termination hearing on the discontinuance will meet the requirements of procedural due process. Here the district court found, however, that unlike the recipient in Goldberg, Mrs. Gonzales was not “eligible” for AFDC benefits at the time of the reduction, and that accordingly the Goldberg standards were inapplicable. The district court also concluded that since both AFDC and OASDI benefits were Social Security Act payments, the action taken by the State of Texas was merely a reduction in the amount of aid received, rather than a termination of benefits, and a Goldberg-type hearing was not required. Finally, the district court held that neither Goldberg nor any state or federal regulation requires Texas to furnish and compensate counsel for Mrs. Gonzales in these proceedings.

A substantial portion of the appellant’s argument is concerned with the question whether Mrs. Gonzales was “eligible” for the AFDC benefits and whether they were, therefore, a “statutory entitlement” as were the benefits terminated in Goldberg. It is not necessary to resolve this issue to affirm the district court, however, since this Court has held that when welfare benefits are reduced rather than discontinued, the Goldberg requirements apply only to that limited class of cases in which the effect of reduction closely approximates that of complete termination. Merri-weather v. Burson, 5 Cir. 1971, 439 F.2d 1092, 1093 (per curiam).

Such an approach is reasonable in light of Goldberg’s express intent to provide protection to welfare recipients faced with a possible loss of benefits, lest they be denied the “very means by which to live”, while contesting the potential deprivation. The danger to the unprotected welfare recipient in such a case is clear: “Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.” 397 U.S. at 264, 90 S.Ct. at 1018-1019, 25 L.Ed.2d at 297. That these dangers confront the welfare recipient whose payments are reduced rather than terminated, is by no means clear; during the same term in which Goldberg was decided the Supreme Court indicated that Goldberg’s requirements are not necessarily applicable to reducee cases. Daniel v. Goliday, 1970, 398 U.S. 73, 90 S.Ct. 1722, 26 L.Ed.2d 57 (per curiam). The test, therefore, that this Court has outlined to invoke the Goldberg standards in reduction, as opposed to termination, cases, requires the district court to determine “whether reducees [in the case at bar] were subjected to the potential burdens found in Goldberg to require a pre-termination hearing.” Merriweather v. Burson, supra, 439 F.2d at 1093.

It is impossible to conclude that Mrs. Gonzales meets the Merriweather standard. While it requires little understanding of economics to observe that a widowed mother of four will be hard-pressed financially on the $5148 that the OASDI benefits will provide her family annually, her situation is still far different from that of the recipient whose benefits have been discontinued altogether. It is to the plight of the latter that the language of Goldberg speaks. Indeed, only the Congress and the Texas legislature can alter the economic realities for Mrs. Gonzales; she as much as admits in her brief that the cancellation of her AFDC benefits was inevitable under the current standards, even had a Goldberg-style pre-reduction hearing been afforded. We cannot conclude, then, that one was required.

We are unconvinced that the State of Texas was required to appoint and compensate counsel for Mrs. Gonzales for her post-reduction hearing. The district court correctly concluded that Section 32(1) of Article 695c, Vernon’s Texas Revised Civil Statutes Annotated (1969) is precatory as to the provision of funds for legal assistance in welfare hearings. We adopt the findings and conclusions of the district court on this question and also endorse its determination that the HEW regulations cited by the appellant are optional and do not require a state to make provision for the payment of the legal fees of an aggrieved recipient appearing before a state welfare agency.

The judgment is affirmed.

      . In the view of the district court, Goldberg speaks in terms of providing hearings to eligible welfare recipients, those for whom welfare is a matter of “statutory entitlement”. Since Mrs. Gonzales was informed at the time of her application that she might not be eligible for AFDC benefits if her OASDI payments were too large, the district court concluded that she was never “eligible” and cannot complain of the denial of a pre-reduction hearing. 361 F.Supp. 1230, 1233-1235.

      . Merriweather construes Daniel v. Goliday as requiring an evidentiary hearing on the weight of the burden on the recipient resulting from a reduction of benefits. Although the district court entered no specific findings on this question, it is clear that its decision was rendered after a full and fair hearing. It is also certain that the reduction of Mrs. Gonzales’ benefits to $429 per month does not cause a burden commensurate with termination.

      . 45 C.F.R,. §§ 205.10, 220.25 (1969).

      . See 361 F.Supp. at 1235.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stanley DURKA, Defendant-Appellant.
    No. 73-1553.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 4, 1973.
    Decided Dec. 28, 1973.
    Stanley Durka, pro se.
    James R. Thompson, U. S. Atty., William T. Huyck, Martin B. Lowery, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before SWYGERT, Chief Judge, KI-LE Y, Circuit Judge, and POOS, Senior District Judge.

       Senior District Judge Omer Poos of the Southern District of Illinois is sitting by designation.

   PER CURIAM.

Defendant and eighteen other persons were indicted on February 19, 1972 for violations of 18 U.S.C. §§ 1341, 1343, 2314 and 371. At his arraignment the defendant requested and received court-appointed counsel to represent him. The case proceeded to trial culminating in a jury verdict of acquittal of the defendant on January 15, 1973. Approximately three months after the defendant’s acquittal the district court entered an order, on April 9, 1973, directing the defendant to pay $3,250 in reimbursement for the services rendered and expenses incurred by his court-appointed counsel during the course of defendant’s ease. The district court’s order provided that:

If [defendant] fails to pay that sum on or before April 30, 1973 . the United States Attorney is directed to institute contempt proceedings against him.

The defendant’s challenge to the district court’s order raises two issues in this appeal: (1) whether a federal district court can order an acquitted defendant to pay part of the costs of such defendant’s defense by court-appointed counsel, where such order is entered almost three months following return of verdict and discharge of the defendant; and (2) whether such an order may be entered without affording defendant a hearing and an opportunity to be heard.

Addressing ourselves to the first issue, we hold that the district court possessed jurisdiction to enter an order affecting the defendant’s property rights despite the passage of three months from the rendition of judgment and defendant’s discharge. See Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 23, 6 L.Ed. 253 (1825); Field v. United States, 193 F.2d 86, 90 (2d Cir. 1951). Having determined that the district court had jurisdiction to enter an order of payment, we further rule that 18 U.S.C. § 3006A vests in the district court broad authority to issue such an order. Subsections (c), (d), and (f) of 18 U.S.C. § 3006A provide:

(c) . . . If at' any time after the appointment of counsel the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate. . [T]he court may, in the interests of justice, substitute one appointed counsel for another at any stage of the proceedings.
(d) . . . The court shall fix the compensation and reimbursement to be paid to the attorney or to the bar association or legal aid. agency or community defender organization which provided the appointed attorney. .
(f) . . . Whenever . . . the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney, to the bar association or legal aid agency or community defender organization which provided the appointed attorney, to any person or organization authorized pursuant to subsection (e) to render investigative, expert, or other services, or to the court for deposit in the Treasury as a reimbursement to the appropriation, current at the time of payment, to carry out the provisions of this section.

It is not an abuse of authority if within a reasonable time after judgment the district court directs a defendant found financially able to obtain counsel or to make partial payment to pay for services rendered or expenses incurred by appointed counsel. In view of the complexity of the criminal ease with its multiple defendants, it cannot be said that three months was an unreasonable time within which to ascertain the expenses of defendant’s representation and to order reimbursement. Accordingly, we hold that the district court had jurisdiction to enter an order of payment and that the court’s authority to order payment was exercised within a reasonable time after judgment of acquittal.

Defendant next contends that the failure to provide him a hearing on the matter of reimbursement prior to the entry of the order of payment was a violation of due process. We do not agree. The fixing of compensation and reimbursement pursuant to 18 U.S.C. § 3006A(d) is a matter within the exclusive discretion of the district court and is not such an event that requires the procedural safeguards of an adversary hearing. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). We are aware that defendant was denied the opportunity to assert his claimed defenses to payment prior to the district court’s issuance of the order of payment. Nor do we dispute defendant’s contention that the defenses— namely, (1) that he received no services from his court appointed counsel; (2) that the amount fixed for services rendered and expenses incurred was excessive; and (3) that he is financially unable to meet the court’s payment order —are relevant to a determination of reimbursement. We find, however, that if the defendant refuses to comply with the district court’s order and contempt proceedings are recommended in accordance with local Rule 18(a) of the District Court for the Northern District of Illinois, the defendant will be 'entitled to a hearing pursuant to local Rule 18(b) at which time he may assert his defenses to payment.

The order of the district court is affirmed.

      . Local Rule 18(b) provides:
      If the alleged contemnor puts in issue his alleged misconduct or the damages thereby occasioned, he shall upon demand therefor, be entitled to have oral evidence taken thereon, either before the court or before a master appointed by the court. When by law such alleged contemnor is entitled to a trial by jury, he shall make written demand therefor on or before the return day or adjourned day of the application; otherwise lie will be deemed to have waived a trial by jury.


author: WIDENER, Circuit Judge:

text:
    AMERICAN SECURITY AND TRUST COMPANY, Trustee in Reorganization of Parkwood, Inc., Appellant, v. Keith N. FLETCHER, Appellee.
    No. 73-1335.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1973.
    Decided Jan. 21, 1974.

      John S. Hoff, Washington, D. C. (Robert E. Lieblich, William W. Koontz, Alexandria, Va., and Leva, Hawes, Sym-ington, Martin & Oppenheimer, Washington, D. C., on brief), for appellant.
    Bolling R. Powell, Jr., Washington, D. C. (Powell, Horkan & Powell, Washington, D. C., on brief), for appellee.
    Before CRAVEN, BUTZNER and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

The question here is whether the defendant, Keith N. Fletcher, may be liable to the plaintiff, American Security and Trust Company (acting as a trustee in bankruptcy), on account of Fletcher allowing one Bruce Noland, a real estate speculator, to use his (Fletcher’s) financial statement to present to the bankruptcy court for its consideration in deciding whether or not to sell certain land to Noland. The issues presented are whether certain of the district court’s findings of fact were clearly erroneous and must be set aside, and whether Fletcher’s actions in allowing his financial statement to be used by Noland in support of Noland’s offer to purchase makes Fletcher liable as a purchaser. We find in favor of the trustee on both issues, and we reverse.

The trustee is a District of Columbia corporation which had acquired title as trustee to the properties of Parkwood, Incorporated, under the terms of Chapter X of the Bankruptcy Act. One of the major properties involved was two adjoining tracts of land located in Fau-quier County, Virginia, and known as the North Wales-Ullman property. This property was subject to various secured debts totaling approximately $1,322,000 as of December 31, 1966. The trustee determined that the property should be sold and solicited offers. The best offer it had received as of February 15, 1967 was Noland’s offer of $1,665,000.

Noland’s offer of $1,665,000 was included in a sales contract dated February 15, 1967, which provided that the offer would be accepted upon the bankruptcy court’s approval of the contract, and that before approval there would be opportunity to receive higher bids. The judge of the bankruptcy court referred the matter for hearing to the referee in bankruptcy as a special master by order entered March 6, 1967. At the special master’s hearing on March 30, 1967, additional bids were received for the property. Noland again was the high bidder, offering $1,900,000, with a $5,000 deposit and 30-day closing. The special master, at this hearing, advised the bidders that he desired financial statements of the principals responsible for the bidding to be submitted within a week.

Noland first talked to Fletcher concerning the property on April 12, 1967, and Fletcher gave Noland his financial statement on. that date. Noland, on or before April 10, 1967, also had obtained a financial statement from one G. R. Naylor, Jr. By letter dated April 12, 1967, filed in the bankruptcy court on April 13, 1967, Noland submitted his own financial statement and those of Fletcher and Naylor as those of the “principal[s] involved ... as well as my own financial statement.” Noland also attached a paper showing a “total net worth” of $5,143,964 for Fletcher, Naylor and Noland, and two documents purporting to be copies of letters from Noland to Naylor and to Fletcher requesting them as “principals” to furnish their financial statements for forwarding to the bankruptcy court. Both Naylor and Fletcher denied ever receiving the letters.

A hearing was held before the special master concerning creditors’ objections to the sale of the North Wales-Ullman property on April 13, 1967. The special master acknowledged that he had received the financial statements of Fletcher, Naylor and Noland, but only Noland was present at the hearings. On May 8, 1967, Noland submitted an additional letter to the bankruptcy court in which he referred to his submission of the financial statements of the “prospective purchasers” as showing assets in excess of $5,000,000. The special master, on May 9, 1967, recommended to the judge that the proposed sale to Noland be approved, and he included with his report, without comment, the financial statements of Noland, Fletcher and Nay-lor. The report states the special master had “directed” the filing of the financial statements. On May 24, 1967, the bankruptcy court entered its order authorizing the sale of the North Wales-Ullman property to Noland; neither Naylor nor Fletcher was mentioned by name in this order. Also, it is undisputed that neither the bankruptcy court, the special master, nor the trustee had investigated the financial statements of Naylor or Fletcher, nor had they made any inquiry as to Naylor or Fletcher’s position in the purchase of these properties. Both the special master and the judge, however, did state they relied on Fletcher’s financial statement in recommending and approving the sale.

The closing date of the sale was set for June 23, 1967, at which time Noland defaulted. The trustee agreed to extend the closing until June 29, 1967 if Noland would increase his deposit from $5,000 to $100,000; however, Noland never increased his deposit, and a draft agreement extending the closing was never executed. On June 28, 1967, the trustee’s report on account of the default was submitted to the bankruptcy court.

On June 30, 1967, the trustee wrote identical letters to Naylor and Fletcher, enclosing a copy of the report of default and a copy of a letter sent this same date to Noland. The letter to Noland had his $5,000 deposit enclosed, and stated that the trustee has determined to avail itself of its legal and equitable rights rather than retain the deposit as liquidated damages. At no time prior to the aborted closing did Noland or the trustee ask Fletcher to produce any of the purchase price, and Fletcher was not notified of the closing date. The trustee’s letter of June 30, 1967 was its first communication with Fletcher, but it is noted this was only two days after the trustee reported the default. The trustee filed an application for specific performance and damages against Noland, Naylor, and Fletcher in the bankruptcy court on July 11, 1967.

The bankruptcy court, on September 19, 1967, entered an order in response to a new bid solicited by the trustee for the properties. The order referred the trustee’s application for approval of the new contract of sale to the special master for hearing, and notice of the proposed hearing and resale was sent to several persons, including Fletcher. The hearing was held on October 5, 1967. Fletcher was not present at the hearing, and no other bids were received. By order dated October 27, 1967, the bankruptcy court approved the sale of the property to the successful bidder, National Land Company, for $1,700,000.

On February 12, 1971, a summary judgment was entered in the bankruptcy court in favor of the trustee against No-land in the amount of $246,354.54, which has not been satisfied. Fletcher was dismissed from that action because of lack of summary jurisdiction. A third party complaint against Fletcher was also dismissed to preserve Fletcher’s right of trial by jury. The trustee then brought this diversity action against Fletcher as a copurchaser with Noland.

The trustee’s first contention is that certain of the findings of fact made by the district court are clearly erroneous and must be set aside. F.R.C.P. 52(a). The district court found that: (1) there was nothing in the record indicating that the bankruptcy court relied on the financial statement of Fletcher, and that the court was unable to tell whether the special master had so relied in recommending that Noland’s offer be approved, (2) there was “no evidence that Noland had any authority to use Fletcher’s name or credit in re his bid to purchase the property in question,” (3) there was no evidence that anyone thought Fletcher had any interest therein until some time after the resale to National Land Company, (4) Fletcher had received no notice of default prior to the entry of suit against him in the bankruptcy court on June 11, 1967. These findings of fact are clearly erroneous. Indeed, the written terms of the Noland-Fletcher agreement and the stipulations filed are to the contrary of each of them. The special master stated at a hearing September 27, 1967 he made the recommendation to the judge on the strength of the statements, and his report states his direction they be filed and their inclusion to the judge. The order of the judge entered June 9, 1970 recites its reliance on the financial statement of Fletcher. .The Noland-Fletcher agreement itself is evidence of Noland’s authority to use Fletcher’s name and credit in the purchase of the property. The trustee notified Fletcher of the default on June 30, 1967, and instituted action against him for damages on July 11, 1967. Fletcher was notified of the resale offer and hearing thereupon. Again, the district court’s finding that there was no evidence that anyone thought Fletcher had an interest until after the resale is clearly erroneous because the special master stated he had relied on Fletcher’s statement, and the trustee had notified him of Noland’s default, had sued him, and he had been notified of the resale and the hearing thereupon; all of these events transpiring at least weeks prior to the order approving resale.

In this diversity case, the forum being Virginia, and nothing to the contrary appearing in the record, the law of Virginia should apply. Klaxon Co. v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Moreland v. Moreland, 108 Va. 93, 60 S.E. 730 (1908); Waggaman v. General Finance Co., etc., 116 F.2d 254 (3rd Cir. 1940).

Under Virginia law, it is clear that Fletcher should be estopped to deny that he was a co-purchaser of the properties. Construing the evidence most favorably to Fletcher would indicate that Noland duped him into believing that he would be a mere straw man in the transaction, and would be paid $50,000 only for allowing Noland to use his (Fletcher’s) financial statement (to misrepresent the facts to the court in order to buy the land), and (by purchase from Noland) to put the land temporarily in his (Fletcher’s) name. Noland also promised Fletcher that he would not be obligated in any way. However, none of this changes the fact that Fletcher knew his financial statement would be used in purchasing the properties, it “will be presented ... to the Referee in Bankruptcy,” and knew the statement did not state any restriction on such use. Noland, of course, for obvious reasons, did not present the Fletcher agreement to the bankruptcy court.

In Virginia, the necessary elements of estoppel are: (1) there must have been a false representation or concealment of material facts; (2) the representation must have been made with the knowledge of the facts; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with the intention that the other party should act upon it; and (5) the other party must have been induced to act upon it. E. g., Coleman v. Nationwide Life Insurance Company, 211 Va. 579, 179 S.E.2d 466 (1971).

A consideration of the facts of this case, viewed in the light most favorable to Fletcher, reveals that Fletcher is es-topped to deny his status as a purchaser of the property. It is admitted that Fletcher, for the stated consideration of $50,000, signed a financial statement knowing that it was to be used by No-land in the purchase of the property from the bankruptcy court and that it would be presented to the referee in bankruptcy. The material fact t^at Fletcher concealed from the statement was that he would not be obligated “in any way whatsoever regarding the purchase or resale” of the property; rather this was taken care of in the side agreement with Noland. Although Fletcher’s present version of the matter is at some variance with the terms of his written agreement with Noland, it is undisputed that he was to be a silent partner in the purchase (he now contends he was to take the title to the property from No-land to hold as surety for his $50,000 consideration for the use of his financial statement).

It is undenied that the bankruptcy court was ignorant of the truth of the entire matter: the side agreement between Fletcher and Noland was never presented to the court. It is apparent from the agreement itself that it was intended that the bankruptcy court act on the financial statement: “This statement will be presented, along with Roger Naylor’s and my own statement, to the Referee in Bankruptcy, John A. Bresnahan.” The bankruptcy court, in fact, was induced to act upon the statement: it approved the sale to Noland, and the special master and the judge have acknowledged their reliance on the financial statement, it having been specifically requested by the special master. Any contention that Fletcher did not intend the bankruptcy court to act upon his financial statement is patently without merit. The contract provides that if Noland was not awarded the property by the bankruptcy court, then Fletcher would not receive his $50,000 payment. This whole scheme smacks of a rather apparent device to conceal from the bankruptcy court the true facts surrounding the purchase of the property, which has resulted in a loss to the creditors. Fletcher’s position, according to the written agreement with Noland, is that for the consideration of $50,00/0 he would allow Noland to use his financial statement in the procurement of the property. If the bid were successful, he would receive $50,000 from Noland and not have any liability as to the purchase. In all events, Fletcher was to be paid, then, for the use of his statement, and if Noland misused the statement, which Fletcher had signed for a stated $50,000 consideration, Fletcher has only himself to blame and may not have the creditors of the bankrupt estate milched out of their rights in a sale believed by the court to be bona fide. Neither may he abuse the processes of the court with impunity. Had the financial statement been given by Fletcher without consideration, for example as an accommodation, the matter, would be serious enough. For a stated consideration of $50,000, his conduct is inexcusable.

The district court appears to have been impressed by the fact that the trustee did not rely on Fletcher’s statement. That facet of the case presents no difficulty for the financial statement in question was requested by the special master, not the trustee. While it is true the trustee is an officer of the court, so also is the special master, who acted here to hear and recommend to the court. Furthermore, the portion of the act applicable to corporate reorganizations specifically requires the judge’s approval of all leases or sales of the debtor’s property. The trustee, then, is at no time more than an agent of the court, and the court makes the decision on whether or not to sell the property. The failure of the trustee to rely on the financial statement is no excuse for the misrepresentation to the court, and concealment from it, of the true facts concerning the purchase.

To summarize, the trustee had solicited bids for the property, prepared a tentative agreement to sell to Noland, the highest bidder, if the court approved the offer, and then submitted the proposed agreement with Noland along with information pertaining to the other bids to the court. The court then referred the matter to the referee in bankruptcy, acting as a special master, for hearing and to receive additional bids. At this point, the matter was out of the trustee’s hands. The special master did receive other bids, forcing Noland to raise his offer, and at the end of the bidding, the special master (for the first time in the negotiations) asked for the principals’ financial statements. Noland then talked to Fletcher and acquired his financial statement, which he presented to the special master on the following day. It is a matter of record that the special master did consider Fletcher’s financial statement in recommending approval of Noland’s bid. The special master then recommended to the court that Noland’s bid be accepted, and the court, also considering Fletcher’s statement, approved the special master’s recommendation.

The special master and the court having relied on Fletcher’s statement, which he intentionally submitted for that purpose, Fletcher became estopped to deny his status as a co-purchaser of the property.

Accordingly, the judgment of the district court must be reversed with instructions to enter judgment for the plaintiff in a proper amount.

Reversed.

      . The U. S. District Court for the District of Columbia.

      . The bids at the hearing of March 30, 1967 were:

        Noland — $1,900,000 price, $5,000 deposit, 30 day closing.

        Thompson — $1,866,000 price, $15,000 deposit, 90 day closing.

        Q-lassie — $1,800,000 price, $150,000 deposit, 30 day closing.
      Financial statements were then submitted, on April 12, 1967, by Noland for himself, Naylor, and Fletcher; and by Glassie for E. DeLong Bowman and A. Smith Bowman, Jr. Thompson filed no financial statement.
      The financial statements filed in this record show the net worth of Noland to be $971,460.52; of Naylor $1,977,363; and of Fletcher $2,195,140.48.

      . The written agreement appears in full as note 2.

      . Fletcher’s agreement with Noland dated April 12, 1967, handwritten by Noland, reads as follows:
      “I, Bruce Noland, do hereby promise to pay Keith N. Fletcher $50,000 for the use of his financial statement in the purchase of the North Wales and Ullman properties located at Fauquier County, Virginia.
      “This statement will be presented along with Roger Naylor’s and my own statement to the Referee in Bankruptcy, John A. Bresnahan.

        “My use of Keith N. Fletcher’s financial statement is not intended to obligate Mr. Fletcher in any way whatsoever regarding the purchase or resale of any of the above property.
      “If for any reason the Court does not award the sale of the above property to me, then this agreement shall be null and void.
      /s/ Bruce Noland”

      . In Thomasson v. Walker, 168 Va. 247, 190 S.E. 309, 313 (1937), is found a principle equally applicable to this case: “The general rule of equitable estoppel; or, as it is frequently called, ‘estoppel in pais,’ is that when one person, by his statements, conduct, action, behavior, concealment, or even silence, has induced another, who has a right to rely upon those statements, etc., and who does rely upon them in good faith, to believe in the existence of the state of facts with which they are compatible, and act upon that belief, the former will not be allowed to assert, as against the latter, the existence of a different state of facts from that indicated by bis statements' or conduct, if the latter has so far changed his position that he would be injured thereby.” See also the language in Maryland Casualty Company v. Craig, 213 Va. 660, 194 S.E.2d 729, 732 (1973) : “One who deals with an agent and has no knowledge of any limitations upon his power may deal upon the faith of his ostensible powers, whether this agency be general or special.”

      . 11 U.S.C. § 75(a) ; 11 U.S.C. § 516(3) ; F.R.Civ.P. 53.

      . Although the record does not show how much weight the special master and the court placed on Fletcher’s statement, it is only logical to assume that they were more impressed by statements showing a total net worth of over $5,000,000 than they would have been by Noland’s net worth alone of $971,460 against a $1,900,000 bid.