author: BELL, Circuit Judge:

text:
    Robert H. NORTHINGTON, Trustee and the First National Bank of Midland, Texas, Plaintiffs-Appellants, v. The UNITED STATES of America et al., Defendants-Appellees.
    No. 72-2702.
    United States Court of Appeals, Fifth Circuit.
    March 26, 1973.

      Reagan H. Legg, Midland, Tex., for Northington.
    Wm. Monroe Kerr, Midland, Tex., for First Nat’l Bank.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Gary R. Allen, Park T. Zimmerman, Gray Allen, Attys., Tax Div., Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., San Antonio, Tex., for defendants-appellees.
    Before BELL and THORNBERRY, Circuit Judges, and GROOMS, District Judge.
   BELL, Circuit Judge:

Section 6324(a)(1) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6324(a)(1), imposes a pre-assessment tax lien on the gross estate of any decedent whose property is subject to estate tax. The lien attaches at death. This appeal presents questions concerning the circumstances in which property, otherwise subject to the lien of § 6324(a)(1), may be divested of the lien prior to the assessment and payment of estate tax.

The decedent died testate on October 31, 1964. His will was admitted to probate in Midland County, Texas, and letters testamentary were issued to his son, who was named in the will as the independent executor of the estate, pursuant to § 145 of the Texas Probate Code. 17A Vernon’s Texas Civil Stat.Ann. § 145.

Under the Texas system of independent administration an executor may proceed with the administration of an estate, without seeking court approval of specific dispositions, once the will has been probated and the inventory, appraisement, and list of claims of the estate have been approved by the court. 17A Vernon’s Texas Civil Stat.Ann. § 145. In the present case the executor proceeded in this fashion. On August 24, 1965, he sold, to himself, a building which was formerly owned by his father and now was in his father’s gross estate. The sale price was $50,000.00. To finance the purchase, he borrowed $50,000.00 from the First Savings and Loan Association of Midland. This loan was secured by his personal note and by a deed of trust. As executor, he received a net consideration from the closing agent of $49,100.92 and this was deposited in the bank account of the decedent’s estate on August 26,1965.

The executor filed a federal estate tax return on January 24, 1966. The return reflected a tax liability of $392,347.81. The executor elected to discharge this liability in ten annual installments pursuant to § 6166 of the Code. After receiving partial payment, the Service assessed a small deficiency on May 19, 1967. Additional partial payments followed. At the time this action was brought, $205,445.48 remained unpaid, and payment was due.

On July 16, 1971, the son conveyed the property which he had purchased from the estate to Robert H. Northington, trustee. The consideration given by Northington was, in part, the assumption by him of the note and deed of trust which the son had given to the First Savings and Loan Association. The note and deed of trust were then renewed and purchased by the First National Bank of Midland.

At that point the Service took steps to insure the payment of the unpaid tax. On September 21, 1971, a revenue officer served Northington with notice of a levy on the property which Northington, as stated, had purchased from the son. Northington and the First National Bank of Midland then brought this action to enjoin the levy.

Because the property did not belong to the estate at the time the estate tax return was filed, the government could not rely with assurance on the general tax lien that attached against property in the estate at the time the executor failed to pay the tax, after it was assessed and due. See 26 U.S.C.A. § 6321. Thus the suit to enjoin the levy presented the question: Was the contested property subject to the special estate tax lien, which under § 6324(a)(1) attached to all property in the gross estate at the time of the decedent's death? The district court held that the special estate tax lien did attach to the property levied upon here; that the property has not been divested of the lien; and that the lien continues in force. We agree.

The appellants contend that the lien has been divested by operation of law. They rely on the express language of § 6324(a)(1):

Unless the estate tax imposed by chapter 11 is sooner paid in full, or becomes unenforceable by reason of lapse of time, it shall be a lien upon the gross estate of the decedent for 10 years from the date of death, except that such part of the gross estate as is used for the payment of charges against the estate and expenses of its administration, allowed by any court having jurisdiction thereof, shall be divested of such lien. (Emphasis added)

The appellants argue that their property was divested of the lien because it was used by the executor for the payment of “charges against the estate”, within the meaning of § 6324(a) (1).

We must reject this argument. The district court held that the property had not been divested of the lien because it found that the proceeds of the sale of the property were not used to discharge any obligation of the estate. We cannot say, on our reading of the record, that this finding was clearly erroneous.

The proceeds of the sale were paid to an account maintained for the benefit of the estate. Two days later the executor drew a check upon that account in the amount of $50,000.00. This amount was equivalent to the amount of the proceeds of the sale. The check was paid to the Jones Exploration Company, an individual proprietorship operated by the executor, but formerly a partnership operated by decedent and his son, the executor.

The estate was under no net obligation to the Jones Exploration Company, and the payment to the Company was not itself in satisfaction of an obligation of the estate. The fact was that the estate was indebted to Jones Exploration Company but, on the other hand, Jones Exploration owed a larger amount to the estate. But the appellants contend, nevertheless, that the company was simply a conduit through which other debts and obligations of the estate were ultimately discharged. They contend that all of the $50,000.00 was in fact used by the company for that purpose. This may well have been true but the record does not so reflect. The showing they made in this regard in the district court fell short of the careful tracing which is necessary to persuade a court that the proceeds of a sale of estate property were actually used to satisfy the obligations of an estate. Cf. United States v. Security-First National Bank, 30 F.Supp. 113 (S.D.Cal., 1939), appeal dismissed, 113 F.2d 491 (9th Cir., 1940). The sole justification for divestment of a tax lien under § -6324(a)(1) is the purpose for which the divested property is used; namely, the payment of the charges against the estate and the expenses of administration. The appellants have not shown that this justification is present in this case.

Affirmed.

      . Because we decide the case on this ground, we find it unnecessary to determine (1) whether the obligations which were allegedly satisfied by the proceeds of the sale were in themselves “charges against the estate” within the meaning of § 6324 (a)(1), or (2) whether the obligations which were allegedly satisfied by the proceeds of the sale were, in the context of the Texas system of independent administration, “allowed by any court having jurisdiction thereof” within the meaning of § 6324(a)(1).


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Nelson JONES, Defendant-Appellant.
    No. 72-2261.
    United States Court of Appeals, Fifth Circuit.
    March 20, 1973.
    Rehearing Denied April 12, 1973.

      Robert Glass, New Orleans, La., (court appointed) for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Harry R. Hull, Jr., Mary Williams Cazalas, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before MORGAN, CLARK and IN-GRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Lloyd Nelson Jones appeals from his conviction by a jury of robbing a federally insured bank. 18 U.S.C. § 2113. We affirm.

On January 9, 1970, the National American Bank in New Orleans was robbed by three men. After two of the alleged robbers had been arrested and were in custody, FBI agents investigating the case concluded that Lloyd Nelson Jones was the third member of the robbery team. A warrant for his arrest was accordingly obtained by the FBI office in New Orleans. Jones was subsequently traced to Cleveland, Ohio. The agents in New Orleans then notified the FBI office in Cleveland that Jones was probably at his wife’s residence in Cleveland.

Agent Thomas H. Kirk appeared before a United States Magistrate in Cleveland on January 19, 1970, and on the basis of his affidavit was issued a warrant authorizing the search of the residence in which Jones was supposedly located. The following morning at 8 A. M. approximately ten FBI agents went to 11506 Whitmore Street in Cleveland to search the residence and to arrest Jones if he were there. Mrs. Jones answered the agents’ knock at the door and was told that they had a search warrant authorizing a search of her home and were going to arrest Jones. She replied that her husband was not there. The agents entered the apartment, and while Agent Kirk talked with Mrs. Jones the other agents looked for the defendant and found him asleep in a back bedroom. The agents recovered a pistol from beneath his pillow, told him he was under arrest for the New Orleans bank robbery, gave him Miranda warnings, and placed him in handcuffs. By the time Agent Kirk reached the bedroom, Jones had already been given his warnings, was under arrest and in handcuffs. Agent Don Gordon then asked Jones where the money was, and Jones answered that it was in the suitcase, indicating a suitcase located about a foot and one-half away from the head of the bed.

When the agents opened the suitcase, they found $1,190 in a cigarette carton. The serial numbers of three $20 bills matched those of the stolen money. A used airline ticket bearing the name of I. Levy and showing that it was purchased in Houston for a flight to Cleveland was also found in the suitcase. At the trial the money recovered from the suitcase, including the marked $20 bills and the airline ticket, were admitted into evidence over defendant’s objections. Jones’s signed confession, as well as diagrams of the robbery and several oral statements not reduced to writing, were also admitted.

As usual, the issues on appeal turn on the legality of the search and seizure of the physical evidence and on the admissibility of defendant’s statements, which allegedly flowed from the illegal search. Jones contends: (1) that the search warrant was invalid; (2) that the search of the suitcase was not incident to his arrest; (3) that he did not consent to the search; and (4) that his statements were fruits of the illegal search and thus inadmissible.

I.

We turn first to the validity of the search warrant, because if it is good then we do not need to consider defendant’s other allegations of error.

The warrant was issued on the basis of an affidavit prepared by Thomas H. Kirk, an FBI agent in Cleveland. The entirety of Kirk’s affidavit is as follows:

BEFORE CLIFFORD E. BRUCE, 223 U.S. Court House, Cleveland, O. The undersigned being duly sworn deposes and says:
That he has reason to believe that on the premises known as 11506 Whit-more, Cleveland, Ohio, a second and third floor apartment in a white 3 story frame 2 family dwelling located on the south side of the street in the northern District of Ohio there is now being concealed certain property, namely U.S. currency, weapons, or other fruits and instrumentalities which are in violation of T. 18, Sec. 2113(a) (d).
And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: that on 1/9/70 Lloyd Nelson Jones accompanied by Calvin E. Williams and Pleasant Jones, Jr., robbed the National American Bank, Parkchester Branch, 4764 Paris Avenue, New Orleans, Louisiana. All subjects were subsequently identified by bank employees and Calvin E. Williams & Pleasant Jones Jr. were arrested and some bank loot money was recovered. Investigation by FBI, New Orleans, Louisiana, indicates Lloyd Nelson Jones fled to Louisiana to visit his wife, Alice Jones McDade and 3 children who reside at 11506 Whitmore, Cleveland, Ohio.
Thomas H. Kirk
Signature of Affiant,
S/A FBI
Official Title, if any.

On its face this affidavit appears to support the issuance of the warrant. The problem is that testimony developed at the suppression hearing conclusively established that Lloyd Nelson Jones was not identified by bank employees as the affidavit states. On the contrary, no one at the bank was able to identify defendant Jones as one of the robbers immediately after the robbery.

The government’s brief is devoted almost exclusively to arguments in support of the warrant. It is unnecessary for us to comment on them because of this court’s holding in United States v. Upshaw, 448 F.2d 1218 (5th Cir., 1971). Faced with the question of the validity of a search warrant procured under circumstances almost identical to those, present in the instant case, the court held the warrant invalid. Judge God-bold’s opinion in Upshaw more than adequately disposed of the validity issue, and it is therefore appropriate to quote at length from his opinion.

“Purged of its erroneous statements, the affidavit was wholly lacking in facts tending to show that Davis was printing checks or identification documents or that any of the documents were on the premises of the print shop. Stripped of its incorrect assertions, the affidavit became like that in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), consisting of nothing more than the bare statement of affiant’s belief and cause to suspect that items were in a specified location. Mere affirmance of belief or suspicion is not enough. Id. at 47, 54 S.Ct. at 13, 78

L.Ed. at 162. See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

“It is not necessary in this case for us to reach the question of whether a defendant is entitled to a hearing to test the underlying factual validity of the affidavit on the basis of which a warrant has been issued (as opposed to the affidavit’s sufficiency if taken as true). And, it is equally unnecessary to decide what preliminary requirements, if any, a defendant must meet after he requests a hearing in order to demonstrate that there is an authentic issue of fact which will justify such a hearing. These questions have been neither considered by the District Court nor briefed to us on appeal. In this instance the court held a hearing, appropriately convened, on the issue of probable cause. We are called upon to review the consequences of that hearing, after the facts have come out. The evidence, fully explored at the hearing, revealed that what was said in the affidavit was in vital respects erroneous, and that the facts, when truly and correctly stated, would not support the issuance of a warrant.

* * * the warrant must contain allegations that go beyond the affiant's mere suspicion or his repetition of another’s mere suspicion. The warrant is a check upon the officer’s zeal in ‘the often competitive enterprise of ferreting out crime,’ and hence it must be tested against objective facts presented to a detached magistrate.
Gonzales v. Beto, 425 F.2d 963 (5th Cir. 1970).
“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion. The judicial system cannot be a party to the use of tainted evidence on the basis that, arguably, the defendant was not entitled to bring to the attention of the court what the court has come to know anyhow.”

As in Upshaw, when the affidavit in question here is purged of its erroneous statement, it consists of nothing more than Agent Kirk’s bare statements of belief and cause to suspect that the fruits of the bank robbery were in the residence at 11506 Whitmore Street. “Mere affirmance of belief or suspicion is not enough.” Nathanson v. United States, supra, 290 U.S. at 47, 54 S.Ct. at 13. We hold that the search warrant issued to Agent Kirk was invalid. Therefore, it cannot be used to justify the search and seizure of the evidence introduced at defendant’s trial.

Having concluded that the search and seizure here cannot be sustained on the basis of a search warrant, we must determine if there is another theory upon which to uphold the search.

II.

Because .the search here must now be characterized as warrantless, the government must establish that it is within one of the exceptions to the warrant requirement. Defendant concedes that his arrest was lawful. The issue then is whether the search of the suitcase located a foot and one-half away from the head of his bed was incident thereto. Both the government and the defendant recognize that Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) is dispositive of this issue.

In Chimel the Supreme Court clarified the standard applicable in the “search incident to arrest” situation.

“ * * * When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession ' of a weapon or destructible evidence.”

Under these principles the question whether the search here was incident to defendant’s arrest is narrowly drawn. Was the suitcase within the area of Jones’s immediate control such that he reasonably could have been expected to have gained possession of a weapon or destructible evidence from inside the suitcase?

The answer to this question is obviously dependent on the factual setting at the time of the search. Jones was in handcuffs when the agents opened the suitcase. The record is unclear whether his hands were cuffed in front or behind his back and does not reveal the defendant’s location in relation to the suitcase at the time of the search. Both of these facts are relevant to a determination of access to weapons or destructible evidence which is the crucial factor in the Chimel analysis.

For example, if defendant’s hands were cuffed in front and he were in close proximity to the suitcase, then the search here could probably be justified under Chimel. Even with the presence of numerous FBI agents in the room, we cannot say that it would be unreasonable to believe that Jones might attempt to lay his hands on a weapon located inside the suitcase. But if defendant’s hands were cuffed behind him in such a manner that he was denied access to the suitcase, then the search could not be upheld under Chimel because the suitcase would not be within his immediate control or within an area from which he might gain possession of a weapon or destructible evidence.

It might seem anomalous for the validity of a search to depend on the position of a defendant’s hands. Nonetheless, the Chimel analysis requires just this sort of an examination of the facts. In essence, the approach to a claim that a search was incident to an arrest is for the court to examine the facts and make an objective determination of a rather subjective question: could the law enforcement officials on the scene reasonably expect the arrested person to gain hold of a weapon or evidence in the area searched? For, as the Chimel Court stated:

“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The ‘adherence to judicial processes’ mandated by the Fourth Amendment requires no less.”

If the legality of the search here rested on a resolution if the search incident question, we would, therefore, have to remand for additional evidence. The district court concluded, however, that Jones consented to the search of his suitcase. We agree and uphold the search here on that basis alone.

III.

“The line between an accused’s voluntary consent and his involuntary submission to police authority is often difficult to draw.” United States v. Como, 340 F.2d 891 (2nd Cir., 1965). And, “when a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968). Consent to search cannot be lightly inferred; the government must establish by clear and convincing evidence that the consent was voluntarily given and was not coerced, either physically or psychologically. Phelper v. Decker, 401 F.2d 232 (5th Cir., 1968).

The trial court found that Jones’s statement concerning the location of the money was voluntarily given. Implicit in this finding is the conclusion that Jones consented to the search. Once the trial court determines that the prosecutor has met his burden of showing that a defendant’s consent was freely and voluntarily given, we cannot overturn that finding unless it is clearly erroneous. United States v. Resniek, 455 F.2d 1127, 1133 (5th Cir., 1972). This is because “whether consent to search has been given is a question of fact.” Hoover v. Beto, 467 F.2d 516 (5th Cir., 1972) [en banc]; United States v. Mather, 465 F.2d 1035 (5th Cir., 1972); Landsdown v. United States, 348 F.2d 405 (5th Cir., 1965). We are not persuaded that the trial court’s finding of voluntary consent was clearly erroneous.

Jones relies on Bumper v. North Carolina, supra, as primary support for his position that he did not voluntarily consent to the search. In Bumper the police gained entrance to the premises by announcing that they had a search warrant. To the state’s argument that defendant’s grandmother consented to the search, the Supreme Court replied:

“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion — albeit colorably lawful coercion. Where there is coercion there cannot be consent.”

Defendant contends his statement that the money was in the suitcase “was a product of resigned inevitability,” because he knew that “he had no right to resist the search.” Bumper, supra.

Defendant’s reliance on Bumper is misplaced. First, even though the FBI agents here told Mrs. Jones they had a warrant to search the residence, they also told her that they were going to arrest Jones if he were present there. It is not disputed that at the time the agents went to the residence in Cleveland there was a valid outstanding arrest warrant for Jones. The agents’ entry into the premises was therefore justified for the. purpose of arresting Jones. Conversely, in Bumper the police officer’s entry into the grandmother’s home was an unjustified intrusion, gained only by reliance on an invalid or non-existent search warrant. Secondly, the agents did not tell Jones that they had a search warrant. For this reason Jones cannot claim that his consent was “no more than acquiescence to a claim of lawful authority.” Bumper, supra, 391 U.S. at 549, 88 S.Ct. at 1792. There had been no claim of lawful authority under the search warrant. Hence, Bumper does not furnish a basis for holding that Jones’s consent to the search of the suitcase was involuntary,

Jones also asserts that the circumstances under which he made the statement preclude the conclusion that he voluntarily consented to the search. He points out that at the time he made the consensual statement there were at least five to seven FBI' agents present in his room, that he was under arrest and in handcuffs, and that he was awakened by the agents and thus not fully aware of what was happening. We agree that under these circumstances consent to search should not be easily assumed. We cannot agree, however, that the existence of these facts precludes as a matter of law the conclusion that Jones consented to the search.

It is significant that we are not faced with an illegal entry by the agents, nor with consent given after an illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In short, the government does not have the even heavier burden of proving that the consent to search was voluntary, notwithstanding the taint of an illegal arrest. See, e. g., Phelper v. Decker, supra, Bretti v. Wainwright, 439 F.2d 1042 (5th Cir., 1971). See generally, Coolidge v. New Hampshire, 403 U.S. 443, 473-490, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

The fact that Jones was under arrest is indeed a factor militating against a finding of consent because after arrest a subject is more susceptible to possible duress or coercion. United States v. Richardson, 388 F.2d 842 (6th Cir., 1968). We have previously recognized, however, that even though consent obtained after arrest may be suspect, the fact of arrest does not necessarily vitiate what otherwise appears to be a valid consent. The question of consent remains one of fact for the trial court in the first instance. United States v. Elrod, 441 F.2d 353 (5th Cir., 1971). See also United States v. Mitchell, 322 U.S. 65, 69-70, 64 S.Ct. 896, 88 L.Ed. 1140 (1944). In any arrest there is present a degree of duress. The question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain the consent. In other words, was there a use of coercive tactics by the arresting officers such that the duress present in a particular case exceeds the normal duress inherent in any arrest? Bretti v. Wainwright, supra. There is no claim of coercion by the FBI agents, and the record here contains no evidence of such coercion.

Moreover, the absence of intimidation, threats, abuse (physical or psychological), or other coercion is a circumstance weighing in favor of upholding what appears to be a voluntary consent. E. g. Cockerham v. Wainwright, 444 F.2d 438 (5th Cir., 1971); Bretti v. Wainwright, supra, United States v. Thompson, 421 F.2d 373 (5th Cir., 1970); United States v. Boukater, 409 F.2d 537 (5th Cir., 1969); United States ex rel Harris v. Hendricks, 423 F.2d 1096 (3rd Cir., 1970). Additionally, we are not convinced that defendant’s will was overborne by the number of FBI agents present when the arrest was made and the statement given. United States v. Thompson, supra. See United States v. Savage, 459 F.2d 60 (5th Cir., 1970); United States v. Alexander, 431 F.2d 83 (5th Cir., 1970). Thus, a defendant under arrest or in custody may voluntarily consent to a search, and a finding of its voluntariness by the trial court will not be disturbed on appeal as clearly erroneous unless it appears that the defendant’s consent was physically or mentally coerced by actions of the arresting officers which went beyond the normal duress inherent in any arrest.

Another factor which weighs in favor of sustaining the trial court’s conclusion as to voluntariness is that Jones was given his Miranda warnings prior to the time his statement was made. Although the giving of Miranda warnings will not insulate the government from claims that consent was coercively obtained, it is a circumstance properly considered in determining whether consent was freely given. See Bradford v. United States, 413 F.2d 467 (5th Cir., 1969); United States v. Boukater, supra, United States v. Noa, 443 F.2d 144 (9th Cir., 1971). Jones had been told that he did not have to speak and that anything he said could be used against him. Absent a showing of coercive activity on the part of the agents, we are not persuaded, as he argues, that his answer to the question concerning the location of the money was given because he knew that a search would be conducted no matter what he said.

Finally, after Miranda warnings have been given, it is not necessary for a law enforcement officer to affirmatively state that he will not search if permission is refused. United States v. Resnick, supra, 455 F.2d at 1133. It follows that the officer does not have to ask permission to conduct a search, although if he does ask and receive permission this is another circumstance bearing on the voluntariness of the consent. See, e. g., Cockerham v. Wainwright, supra, Bretti v. Wainwright, supra, United States v. White, 431 F.2d 84 (5th Cir., 1970); cert. den. 400 U.S. 998, 91 S.Ct. 476, 27 L.Ed.2d 448. If Miranda warnings have been given, specific warnings of Fourth Amendment rights are not necessary to validate a search conducted after an otherwise voluntary consent. United States v. Canseco, 465 F.2d 383 (5th Cir., 1972); White v. United States, 444 F.2d. 724 (10th Cir., 1971); United States v. Goosbey, 419 F.2d 818 (6th Cir., 1970); Government of Virgin Islands v. Berne, 412 F.2d 1055 (3rd Cir., 1969); cert. den. 396 U.S. 837, 90 S.Ct. 96, 24 L.Ed.2d 87; Gorman v. United States, 380 F.2d 158 (1st Cir., 1967). See also, United States v. Resnick, supra, Hoover v. Beto, supra.

We hold that the district court was not clearly erroneous in its conclusion that Jones voluntarily made the statement telling the agents where the stolen money was located, thereby consenting to the search of the suitcase. Our conclusion that the trial court’s finding was not clearly erroneous is bolstered by recent decisions from other circuits finding consent to search in circumstances almost identical to those present in the case at bar. See United States v. Candella, 469 F.2d 173 (2nd Cir., 1972); United States v. Rothberg, 460 F.2d 223 (2nd Cir., 1972); United States v. Wheeler, 148 U.S.App.D.C. 204, 459 F.2d 1228 (D.C.Cir., 1972); United States v. Jiminez-Badilla, 434 F.2d 170 (9th Cir., 1970).

Because we have concluded that Jones consented to the search of the suitcase, the money and the airline ticket taken from his suitcase, as well as his written confession, oral confession and diagrams of the robbery, cannot be characterized as fruits of illegal police activity. The trial court did not err therefore in failing to suppress this evidence.

We have considered appellant’s other allegations of error and find them without merit. The conviction is therefore Affirmed.

      . The pertinent portion of Agent Kirk’s testimony from the suppression hearing is as follows:
      “Q And, when you set forth this information that all the subjects were subsequently identified by the bank employees, who gave you that information?
      “A At the time I thought I had obtained it from Mr. Hensel. We had talked on the telephone following receipt of a teletype from his office and it was him giving me some background information as to the case.
      “Q Did Mr. Hensel tell you that they were identified by the bank employees?
      “A No, he did not.
      “Q Well, did you receive that information from any other source other than Mr. Hensel?
      “A Well, Mr. Hensel was discussing the background with me and he mentioned that he had been identified by one of the other subjects in the case when he was arrested. I said how about the bank employees, and he said no, they had masks on.
      “Q So, when you submitted this information as contained in this affidavit that certain individuals were identified by the bank employees, that was incorrect?
      “A That’s correct, X didn’t realize it at the time it was being incorporated.”

      . A situation could develop, of course, in which a defendant with his hands cuffed behind him would nevertheless have access to weapons or evidence.

      . It would have been better practice for the court to enter findings of fact and conclusions of law after the suppression hearing. United States v. Montos, 421 F.2d 215 (5th Cir., 1970). If such findings had been made, we would be required to accept them unless they were clearly erroneous. See 3 C. Wright, Federal Practice and Procedure, § 675 at 130 (1969). Rule 41(e) of the Federal Rules of Criminal Procedure contemplates a pretrial hearing on suppression questions in order to avoid the delay resulting from such questions being raised at the trial. The trial court allowed a partial rehash of the pretrial suppression hearing to be conducted at the trial. While this is clearly within the court’s discretion, findings of fact and conclusions of law entered prior to trial would have precluded this waste of time unless the defendant developed additional evidence between pretrial and trial; this was not the case here as a comparison of the trial record, made out of the presence of the jury, closely parallels that made at the suppression hearing and discloses no new facts. At any rate, the court ruled at the trial that Jones’s statement was freely and voluntarily given. We believe that this finding is entitled to be reviewed under the clearly erroneous standard, but even if it were not an independent review of the record discloses clear and convincing evidence of voluntary consent.

      . Appellant’s brief at 12.

      . We note that defendant does not claim that his statement was the product of trick or deception practiced by the FBI agents. Compare United States v. Bailey, 447 F.2d 735 (5th Cir., 1971), with Alexander v. United States, 390 F.2d 101 (5th Cir., 1968), and United States v. Payne, 429 F.2d 169 (9th Cir., 1970).


author: LEWIS, Chief Judge.

text:
    Ascension VIALPANDO for herself and her minor child, Sabrina Vialpando, and both on behalf of all others similarly situated, Plaintiff-Appellee, v. Con F. SHEA, Individually and as Executive Director of the Department of Social Services, State of Colorado, et al., Defendants-Appellants.
    Nos. 72-1218, 72-1345.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 18, 1972.
    Decided March 22, 1973.

      Charles B. Lennahan, Sp. Asst. Atty. Gen., Denver, Colo. (Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., and Douglas D. Doane, Sp. Asst. Atty. Gen., Denver, Colo., with him on the brief), for defendants-appellants, except Melvin Pobanz.
    James W. Kin, El Paso County Legal Services Office, Colorado Springs, Colo. (Tom W. Armour, El Paso County Legal Services Office, Colorado Springs, Colo., and Kenneth Neiman, Steven J. Cole, and Henry A. Freedman, N.L.S.P., Center on Social Welfare Policy and Law, New York City, of counsel, with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   LEWIS, Chief Judge.

In its present posture, this is a private action brought by appellees, Colorado welfare recipients, against state officials administering the Colorado welfare program. The appeal is from a judgment requiring appellants to implement a modification of the Colorado Division of Public Welfare Manual, § 4313.13 to comply with 42 U.S.C. § 602(a)(7) in determining a family’s need under the Aid to Families with Dependent Children (AFDC) program. No party raises any question concerning the nature of the relief granted below.

The AFDC program is financed largely by the federal government on a matching fund basis and is administered by the states. An AFDC grant is computed by comparing a family’s income and resources to a standard of need statistically determined by the state. The family income used in this comparison is gross family income less certain exclusions mandated by 42 U.S.C. § 602(a)(7), an employment expense provision, and 42 U.S.C. § 602(a)(8), an income disregard provision. On July 1, 1970 the Colorado Board of Social Services promulgated section 4313.13 of the Colorado Division of Public Welfare Manual. This regulation limits employment expenses under 42 U.S.C. § 602(a)(7) to a standardized $30.00 figure plus mandatory payroll deductions and child care expenses. The $30.00 standardized figure is an average based on a statistical survey and is meant to cover “employment expenses such as transportation, special clothing, union dues, special education or training costs, telephone, additional food or personal needs . . . .” The Colorado method of treating employment expenses embodied in section 4313.13 was approved by the Department of Health, Education and Welfare.

Prior to the effective date of section 4313.13, Colorado excluded from family income all expenses reasonably attributable to the earning of such income. The effect of the new regulation which allows only a standardized exclusion for employment expenses other than mandatory payroll deductions and child care expenses was to reduce appellees’ excludible employment expenses to such an extent that their net income after the exclusions was greater than Colorado’s standard of need. As a consequence, appellees were ineligible for AFDC grants and they initiated this action seeking damages and declaratory and injunctive relief. The district court held that the standardization of employment expenses in the new Colorado regulation did not comply with 42 U.S.C. § 602(a)(7) and granted the relief sought.

42 U.S.C. § 602(a)(7) requires that a state AFDC plan must “provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children . . . as well as any expenses reasonably attributable to the earning of any such income.” (Emphasis added.) We interpret the words “any expenses” to mean all actual expenses. Thus 42 U.S. C. § 602(a)(7) requires the states to consider all actual expenses reasonably attributable to the earning of income in determining need. See Amos v. Engelman, D.N.J., 333 F.Supp. 1109, 1119 (three-judge court), modified on other grounds, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143. This interpretation is consistent with the congressional intent that the states should “take these [employment] expenses fully into account.” S.Rep.No. 1589, 87 Cong., 2d Sess., 1962 U.S.Code Cong. & Admin.News, pp. 1943, 1960 (emphasis added). The use of a standardized employment expense exclusion does not take into consideration all actual expenses when a family’s expenses exceed the standardized allowance. Cf. Amos v. Engelman, supra. In the instant case the appellees’ actual employment expenses consistently exceeded the $30.00 standard exclusion. Consequently, Colorado’s application of the standardized allowance in determining the appellees’ needs does not comply with 42 U.S.C. § 602(a)(7). Campagnuolo v. White, D.Conn., Civil No. 13968; Adams v. Parham, N.D.Ga., Civil No. 16041.

The appellants maintain that the words “take into consideration” in 42 U.S.C. § 602(a)(7) sanction the use of a standardized employment expense exclusion in determining need in all cases. Their reasoning is that these words do not dictate a specified method for treating employment expenses and that the use of a standardized allowance is one acceptable way of taking into consideration expenses of employment. The phrase “take into consideration” is flexible and by itself does not require a particular treatment of employment expenses. However, when considered in the statutory framework of 42 U.S.C. § 602(a)(7), these words assume a particular meaning. It should be noted that the phrase “take into consideration” modifies both “income” and “expenses”. Consequently, Congress intended employment expenses to be treated in the same manner as income. Since consideration of each family’s income must necessarily be based on actual rather than average figures, expenses attributable to the earning of such income must be taken into consideration in the same manner.

Appellants also contend that the Supreme Court in Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1057, 25 L.Ed.2d 353, approved the principle underlying the use of a standardized employment expense allowance. The Rosado case involved 42 U.S.C. § 602(a) (23) and sanctioned the use of statistical averages in computing a standard of need to be applied in the states’ administration of their AFDC programs. The Supreme Court has continually stressed the states’ “undisputed power” to determine this standard of need. King v. Smith, 392 U.S. 309, 334, 88 S.Ct. 2128, 20 L.Ed.2d 1118; Dandridge v. Williams, 397 U.S. 471, 478, 90 S.Ct. 1153, 25 L.Ed.2d 491. Congress itself did not encroach upon this undisputed power until the passage of 42 U.S.C. § 602(a) (23) in 1967. Nevertheless, 42 U.S.C. § 602(a)(7) is indicative of congressional reluctance to give the states the same unfettered discretion to determine the needs of a particular family. Thus, Supreme Court approval of the use of statistical averages in determining the standard of need is not a mandate for judicial approval of such averaging in determining the needs of a particular family under 42 U.S.C. § 602(a)(7). But see Amos v. Engelman, D.N.J., 333 F.Supp. 1109, 1119 (three-judge court), modified on other grounds, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143.

Additionally, an understanding of the manner in which a state’s standard of need and the computation of a particular family’s available income and resources under 42 U.S.C. § 602(a)(7) complement each other illustrates the incongruity of Colorado’s standardized employment expenses allowance in the instant case. The standard of need is a dollar amount representing the costs of those items which a state has determined to be necessary to maintain a hypothetical family at a subsistence level. Such an estimate by its nature is susceptible to computation through the use of statistical averages and it was thus fitting for the Supreme Court to approve the use of an averaging system in Rosado. A state must compare its standard of need to the income and resources actually available to the particular family in order to establish financial eligibility and the amount of an AFDC grant. 45 C.F.R. § 233.20(a) (3) (ii) (a) and (c). 42 U.S.C. § 602(a) (7) requires that the computation of income and resources available to the particular family must take into consideration any expenses reasonably attributable to the earning of income. To uniformly apply a standardized employment expense allowance rather than consider actual expenses in this computation would render meaningless the process of comparing a particular family’s available income and resources with a hypothetical family’s standard of need.

The problem with the Colorado system is not its use of a standardized allowance but the intransigent adherence to this standard when a particular family’s expenses of employment exceed the allowance. In such cases, Colorado’s standard allowance operates as a maximum allowance which we also consider to be inconsistent with 42 U.S.C. § 602(a)(7). Williford v. Laupheimer, E.D.Pa., 311 F.Supp. 720 (three-judge court). Nevertheless, a reasonable interpretation of the statute permits “a state to use a standard deduction for [employment] expenses in the interest of efficient administration of the [AFDC] program, provided the allowance is adequate to cover all actual expenses.” Amos v. Engelman, D.N.J., 333 F.Supp. 1109, 1119 (three-judge court), modified on other grounds, 404 U.S. 23, 92 S.Ct. 181, 30 L.Ed.2d 143. (Emphasis added.)

Our interpretation of 42 U.S.C. § 602(a) (7) is consistent with the statutory history and the explicit congressional purpose of providing AFDC families with an incentive to seek employment. S.Rep.No. 1589, 87 Cong.2d Sess., 1962 U.S.Code Cong. & Admin.News, pp. 1943, 1960. Although appellants present numerous policy reasons for a different result, it is not within our realm to legislate social policy. Jefferson v. Hackney, 406 U.S. 535, 541, 92 S.Ct. 1724, 32 L.Ed.2d 285; Dandridge v. Williams, 397 U.S. 471, 487, 90 S.Ct. 1153, 25 L.Ed.2d 491; Rosado v. Wyman, 397 U.S. 397, 422, 90 S.Ct. 1057, 25 L.Ed.2d 353. One specific policy argument deserving comment even in the context of our limited role is the appellants’ contention that our decision will compel states to consider unnecessary expenditures. Such fears should be allayed by the statute itself which requires that the subject expenses be reasonably attributable to the earning of income.

Appellants emphasize the approval of section 4313.13 of the Colorado Division of Public Welfare Manual by the Department of Health, Education and Welfare and maintain that this approval should be accorded substantial weight as a statutory interpretation by the department responsible for the administration of the Social Security Act. This principle, however, is inapplicable when a departmental interpretation is inconsistent with the controlling statute. Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 30 L.Ed.2d 448. Equally without merit is appellants’ contention that under 42 U.S.C. § 604(a)(2) states need only substantially comply with federal statutory requirements. See Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1057, 25 L.Ed.2d 353; King v. Smith, 392 U.S. 309, 316-317, 88 S.Ct. 2128, 20 L.Ed.2d 1118. 42 U.S.C. § 604(a)(2) provides an administrative procedure whereby the Secretary of Health, Education and Welfare may cease funding state programs in order to compel substantial compliance with federal statutory requirements. This statute is inapposite in suits by prospective recipients against state agencies responsible for the administration of the AFDC program.

Affirmed.

      . When considering the 1962 amendment which added the employment expense provision, Congress specifically recognized that ‘‘all income of recipients is taken into .acepunt ... in determining need.” S.Rep.No.1589, 87 Cong., 2d Sess., 1962 U.S.Code Cong. & Admin. News, pp. 1943, 1959. (Emphasis added.) Thus Congress intended that all employment expenses also be considered. See 45 O.F.R. § 233.20(a) (7) (i).

      . In Rosado the Court said: “We do not, of course, hold that New York may not, consistently with the federal statutes, consolidate items on the basis of statistical averages. . . . Providing all factors . . . are accounted for and fairly priced and providing the consolidation on a statistical basis reflects a fair averaging, a State may, of course, consistently with [42 U.S.C. § 602(a) (23)] redefine its method for determining need. . New York is not foreclosed from accounting for basic and recurring items of need . by an averaging system.” Rosado v. Wyman, 397 U.S. 397, 419-420, 90 S.Ct. 1207, 1221, 25 L.Ed.2d 442.

      . 42 U.S.C. § 602(a) (23) required the states to adjust their standards of need by July 1, 1969 in order to reflect cost of living increases.


author: PER CURIAM:

text:
    Debra MILLENSON, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. The NEW HOTEL MONTELEONE, INC., Defendant-Appellee.
    No. 72-3131
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.
    Rehearing and Rehearing En Banc Denied May 9, 1973.
    Arthur Scheuermann, New Orleans, La., for plaintiff-appellant.
    Arthur L. Ballin, Frank C. Dudenhefer, New Orleans, La., for defendantappellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

On May 18, 1972, Ms. Debra Millenson filed the present action seeking declaratory and injunctive relief against the New Hotel Monteleone (hotel) to enjoin its operation of a restaurant, “The Men’s Grill”, and declaring its “males only” admission policy unconstitutional. On August 23, 1972, the district court denied Millenson’s motion for summary judgment and granted the hotel’s motion to dismiss. Millenson appeals from the judgment of the district court. We affirm.

Taking the allegations contained within the complaint as true, the following fact situation is established. On May 18, 1972, Ms. Millenson and several companions, men and women, sought service at the Men’s Grill of the Hotel. Although there were vacant tables and other parties without reservations were seated, Millenson and her party were denied service because of the presence of women in her party.

Ms. Millenson contends that the admission policies of the grill are unconstitutional because they violate the equal protection clause of the fourteenth amendment. Of course for such a claim to withstand close judicial scrutiny, it is incumbent on the aggrieved party to prove that the actions complained of were taken under color of state law. To fulfill this assigned task Millenson contends that the various licenses issued to the hotel by Louisiana so intertwine the policies of the hotel with state authority that impermissible state action is present. Accordingly, the dispositive issue in the instant case is whether the issuance of regulatory licenses to a public accommodation by a state will suffice to color the admission policies of the former with the authority and involvement of the latter.

For Millenson to succeed it is necessary for her to show that the state licensing system encourages, mandates, or affirmatively authorizes the admission policies of the grill. A cursory examination of these state licensing statutes manifestly leads one to the conclusion that they are completely unrelated to the admission policies of the licensees.

The impetus for the grill’s admission policies originated with the hotel and not with the state. Justice Rehnquist’s observations in Moose Lodge, are equally applicable and decisive of Millenson’s contentions. Justice Rehnquist stated:

There is no suggestion in this record that the Pennsylvania Act, either as written or as applied, discriminates against minority groups either in their right to apply for club licenses themselves or in their right to purchase and be served liquor in places of public accommodation.
However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.

The judgment of the district court is affirmed.

      . Ms. Millenson based her right to relief on 42 U.S.C. § 1983. Jurisdiction was asserted under 28 U.S.C. §§ 1331, 1343 (3) and 1343(4).

      . The hotel does not deny to women access to all its facilities. The coffee shop, the main dining room, and room service are made available to women on the same basis as m.en. The food and drink served in various parts of the hotel are all prepared in a centralized kitchen. The motivation for the grill’s admission policies is clearly and chauvinistically established by a hotel advertisement which reads:
      Lunch for the liberated male
      Women. Bless them. They’re the most delightful creatures on earth. But there are times when a man prefers the company of other men. To discuss business for instance, politics, sports, or, of, course . . . women.

      . “ . . . § 1 of the Fourteenth Amendment does not forbid a private party, not acting against a backdrop of state compulsion or involvement, to discriminate on the basis of race in his personal affairs as an expression of his. own personal predilections. As was said in Shelley v. Kraemer, supra [334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161], § 1 of ‘[t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful.’ ” Adickes v. S. H. Kress & Co., 398 U.S. 144, 169, 90 S.Ct. 1598, 1614, 26 L.Ed.2d 142 (1970) (citations omitted).

      . Paragraph six of Millenson’s complaint alleged:
      “The Men’s Grill has a liquor license as required by Title 26 of the Louisiana Revised Statutes. The Hotel collects sales tax on transactions in the Grill as an agent of the State of Louisiana: as provided in Louisiana Revised Statutes, Title 47, Section 306 and receives a rebate on such taxes pursuant to Section 56-43 of the New Orleans City Code.”
      Paragraph eight concluded:
      “All acts alleged in this complaint to have been done or omitted by defendants or their agents were done or omitted under color of law of the State of Louisiana and under color of defendant's position as an agent of the State under Revised Statutes 47:306 and Title 26.”
      It is apparent that Millenson’s state action argument must stand or fall under these allegations.

      . Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

      . Id. at 1972-1973.


author: CHAMBERS, Circuit Judge.

text:
    Serafin CARMONA and Manuel Venegas, Individually, and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Gilbert L. SHEFFIELD, Director of the California Department of Human Resources Development, et al., Defendants-Appellees.
    No. 71-1575.
    United States Court of Appeals, Ninth Circuit.
    April 2, 1973.
    Edward Newman (argued), Stephen Manley, Grace M. Kubota, Joel G. Schwartz, Robert A. Baines, San Jose, Cal., for plaintiffs-appellants.
    Richard L. Mayers, Atty. (argued), Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendants-appellees.
    Ricardo A. Callejo, San Francisco, Cal., for amicus curiae.
    Before CHAMBERS and CHOY, Circuit Judges, and JAMESON, District Judge.

       The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation.

   CHAMBERS, Circuit Judge.

Carmona and Venegas seek to represent a class of persons who speak, read and write only Spanish and who reside in Santa Clara County, California. They were denied unemployment benefits by the California Department of Human Resources Development. According to the complaint, “The denial of unemployment insurance benefits to plaintiffs, and the subsequent dismissal of plaintiff CARMONA’S administrative appeal, were a direct result of the failure of the San Jose office of HRD to make available Spanish-speaking employees to determine the validity of their claims, and the further failure of the defendants to send all written notices in Spanish to applicants who have evidenced an ability to understand only the Spanish language.” They sought declaratory and injunctive relief based on constitutional claims under 42 U.S.C. § 1983 and 28 U.S.C. § 2201. They also asserted a pendant claim of violation of a California statute, and they purported to raise a claim under 42 U.S.C. § 503(a)(1) (The Social Security Act).

The district court granted the state of California’s motion to dismiss the action for failure to state a claim upon which relief can be granted. Carmona and Venegas have appealed.

The district court dismissed the action because of the burden plaintiffs’ desired result would impose on administration of the California system of unemployment insurance compensation.

The due process claim is that even though notices of rights under the unemployment laws are adequate for those who speak English, the notices are no notice at all to plaintiffs. We cannot say, as a constitutional matter, that there is a relatively easy means of providing a more adequate form of notice, and we conclude that California’s approach is a reasonable one. Walker v. City of Hutchinson, 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956).

Giving notice in English to these appellants is not a denial of equal protection. Even if we assume that this case involves some classification by the state, the choice of California to deal only in English has a reasonable basis. Cf. Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970).

The federal statutory claim is two-fold. First, appellants assert that the California system is not “reasonably calculated to insure full payment of unemployment compensation when due.” 42 U.S.C. § 503(a)(1). The Secretary of Labor has certified that the California system is so reasonably calculated. California Department of Human Resources Development v. Java, 402 U.S. 121, 125, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971). We believe that the additional burdens imposed on California’s finite resources and California’s interest in having to deal in only one language with all its citizens support the conclusion of reasonableness.

The other portion of the federal statutory claim rests on the incorporation by the regulations issued under § 503 of the requirements of the due process and equal protection clauses. We have already decided these claims against appellants.

We do not reach the pendant state claims.

The judgment is affirmed.


author: PER CURIAM.

text:
    Rufus Lee SMITH, Plaintiff-Appellant, v. The CINCINNATI POST & TIMES-STAR et al., Defendants-Appellees.
    No. 72-1883.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 9, 1973.
    Decided March 21, 1973.
    Harvey B. Woods, Cincinnati, Ohio, for plaintiff-appellant.
    Harry M. Hoffheimer, Cincinnati, Ohio, for defendants-appellees.
    Before PECK and KENT, Circuit Judges, and YOUNG, District Judge.

       Honorable Don J. Young, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

This is an appeal from a summary judgment, D.C., 353 F.Supp. 1126, entered against the plaintiff-appellant in his suit brought under 18 U.S.C. § 2520, which authorizes a civil action by any person whose wire or oral communication is intercepted, disclosed or used in violation of the Federal Wiretap Laws. The appellant was a party to a telephone conversation with one Howard Wunker in which the appellant allegedly indicated that he could arrange a “fix” in a divorce case then pending in the Domestic Relations Court for Hamilton County, Ohio, where the appellant was then employed. Wunker caused this conversation to be recorded, and released this recording to the appellee newspaper, which then published its contents.

As a result of this action, the appellant brought two suits in the District Court, one against Wunker for damages allegedly arising from recording and disclosing the phone conversation, and the other against the newspaper for damages allegedly resulting from publishing the contents of that conversation. The suit against Wunker was dismissed for failure to state a claim upon which relief could be granted because the Federal Wiretap Laws do not make it a crime for a person to record a telephone conversation to which he is a party. Smith v. Wunker, 356 F.Supp. 44 (S.D.Ohio 1972). No appeal was taken from that decision, and the appellant concedes that the recording of the conversation by Wunker was not illegal.

In this suit, the appellant claimed that although the conversation was legally obtained, it was improperly disclosed to the newspaper and therefore its publication therein was improper. We cannot agree with this contention. Since the recording was not obtained in violation of the Federal Wiretap Laws, the appellant cannot seek damages from the newspaper for publishing the conversation in violation of that section. There is no authority for disregarding the language of the statute which provides that “It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication.” 18 U.S. C. § 2511(2) (d). A party to a conversation is privileged to record it. United States v. DiLorenzo, 429 F.2d 216, 219, n. 1 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120; United States v. Viviano, 437 F.2d 295, 300 (2d Cir. 1971), cert. denied, 402 U.S. 983, 91 S.Ct. 1659, 29 L.Ed.2d 149.

The appellant’s contention that the recording and subsequent newspaper publication of this conversation violated his right of privacy is not well taken. Since there is no “interception” or “eavesdropping” when a party to a conversation, or a third person acting with the consent of one of the parties to the conversation, records that conversation, (e. g., Flanders v. United States, 222 F.2d 163 (6th Cir. 1955)), and since the appellant has conceded that the recording of the conversation was not unlawful in that the recorder was a participant to the conversation, it follows that it could not in any way be wrongful for that person to later disclose the contents of that conversation. Each party to a conversation, telephonic or otherwise, takes the risk that the other party may divulge the contents of that conversation, and should that happen, there has been no violation of the right of privacy. Rathburn v. United States, 355 U.S. 107, 111, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957).

The appellant’s reliance upon 47 U.S.C. § 605 is similarly misplaced, since that section is violated only when a person both intercepts and divulges a communication, which is not the case in regard to this defendant. Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023, 1027 (6th Cir. 1968), cert. denied, 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969).

The judgment of the District Court is affirmed.


text:
    Richard P. DORAN, Plaintiff, Appellee, v. UNITED STATES of America, Defendant, Appellant.
    No. 72-1330.
    United States Court of Appeals, First Circuit.
    Argued Feb. 8, 1973.
    Decided March 22, 1973.
    Morton Hollander, Atty., Dept. of Justice, with whom Harlington Wood, Jr., Asst. Atty. Gen., Julio Morales Sanchez, U. S. Atty., and Michael Kimmel, Atty., Dept, of Justice, were on brief, for defendant, appellant.
    Juan R. Torruella, Hato Rey, P. R., with whom Pieras & Torruella, Hato Rey, P. R., was on brief, for plaintiff, appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

The government, successful in defending an admiralty suit, filed a substantial bill of costs three months after judgment. The plaintiff objected, in part because the bill was not filed within ten days of judgment as required by a rule of the district court dated July 9, 1952. The government claimed that it had relied on a 1946 edition of the district court rules, which contained no time limitation, that the U. S. Attorney’s office had no knowledge of the later rule, and that the order had not been published in a manner reasonably designed to put attorneys on notice. The district court held that the rule “has been a well known and established practice” and denied the bill of costs as untimely filed.

It appears from the government’s affidavits and brief that the 1952 rule was furnished to the Supreme Court in accordance with Rule 83 F.R.Civ.P., but that neither the current United States Attorney taking office since the filing of the bill of costs nor his office, since he assumed his duties, was aware of the 1952 rule; and that, according to the affidavit of a long-time employee of the office, a copy of the 1952 rule was never received by the office. We note that this affidavit did not aver the absence of knowledge by that office over the years.

Taking these sparse allegations as true, the government must lose. There was no evidence that the office of the U. S. Attorney prior to the present occupant had no knowledge of the rule over the past twenty years, or that the United States Attorney at the time of filing the bill had no knowledge, or that former occupants of the position generally had no such knowledge. There was no evidence, which might have been ascertained from case records, that the rule was more honored in the breach than in the observance. The government at argument sought remand for a full hearing, but that opportunity has long since passed.

Even such evidence would not advance the government’s case. Its argument is based on the presence of the word “promulgation” in the second sentence of Rule 83, F.R.Civ.P. which directs that copies of the rules and their amendments “shall upon their promulgation be furnished to the Supreme Court.” It claims that “The promulgation must be reasonably designed to put all practicing attorneys on actual or constructive notice.” Even accepting this interpretation, we fail to see how proof that a particular individual or office, however important or frequent a litigant, did not receive written or acquire actual notice of the rule would establish the unreasonableness of the promulgation. The government has not shown that the means of promulgation did not meet its own proposed standard. It has not shown that the common understanding of practitioners was contrary to that which the court stated.

The government points out the need for “uniform, systematic and periodic publication of . rules affecting the rights of litigants.” We agree with that broad principle and even with the government’s suggestion that district courts should publish either a complete compilation of their rules or cumulative supplements, at least more often than every twenty-five years. It would indeed seem to us to be both a sound and efficient practice for the district courts to re-compile their rules whenever exhaustion of the existing stock of copies requires re-ordering, or when substantial revisions are effected. Moreover, it is incumbent upon those courts, both under Rule 83 and their obligation to act fairly towards all those affected by their actions, to develop effective means of promulgation and distribution. Whether promulgation be effected by a general mailing of all new editions and additions to all those admitted to the bar of the court or by distribution of a copy at the commencement of each suit or by other, similarly effective means, we need not now decide either as a matter of law or under our supervisory power. For here, the U. S. Attorney’s office, no tyro itself, has come forward with no evidence that the means of making known the 1952 rule was deficient.

The government also argues that denial of its costs under the circumstances was an abuse of discretion, since it had no actual knowledge of the rule, its bill was filed within a reasonable time, and plaintiff had shown no prejudice. Rules of the nature of that involved here serve the purpose of permitting a losing party to know the extent of his obligations and decide whether or not to appeal, either to secure reversal or a settlement. Woods Construction Co., Inc. v. Atlas Chemical Industries, Inc., 337 F.2d 888 (10th Cir. 1964). The court was well within its discretion in refraining from probing into plaintiff’s decision-making processes.

Affirmed.

       While appellee contends that these affidavits were not received in evidence, we have assumed for purposes of decision that they were. Conversely, we have not relied on a post-judgment affidavit of the district court clerk as to the established practice of mailing copies of new rules to frequently appearing practitioners and to the Department of Justice.


author: ELY, Circuit Judge:

text:
    Gregory L. PORTER, Appellant, v. GUAM PUBLICATIONS, INC., et al., Appellees.

    No. 72-1514.
    United States Court of Appeals, Ninth Circuit.
    March 15, 1973.
    Douglas F. Cushnie (argued), of Arriola, Bohn, Cushnie & Stevens, Agana, Guam, for appellant.

      Thomas J. Nolan (argued), Walter S. Ferenz, of Barrett, Ferenz, Bramhall & Klemm, Agana, Guam, for appellees.
    Before CHAMBERS, ELY and WALLACE, Circuit Judges.

      . The names of two others, originally designated as appellees, have, by this court’s Order of November 14, 1972, been removed from the caption.

   ELY, Circuit Judge:

This libel action arises out of a newspaper article published by appellees describing appellant’s arrest for the theft of a cash box. In factual contrast, the warrantless arrest stemmed from an unsworn and assertedly false complaint that appellant had stolen an automobile. The District Court concluded that the publication was privileged and granted appellees’ motion for summary judgment.

To overcome the traditional defense of newspaper privilege, appellant cites Guam Civil Code § 47, which provides in relevant part:

“A privileged communication is one made . . . [b]y a fair and true report, without malice, in a public journal, of ... a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued.”

Appellant argues under this statutory authority that the publication was not privileged because (1) the report was unfair and untrue, (2) the complaint leading to his arrest was not verified, (3) a warrant had not been issued, and (4) the newspaper had been motivated by malice.

It is axiomatic that although a statute may bestow a privilege not otherwise available, a statute cannot constrict a privilege that is constitutionally conferred. Since Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), and New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) demonstrate that the newspaper account in this case was constitutionally privileged, we reject appellant’s argument that the Guam statute delimits the entire scope of privileged publications of police arrests.

Rosenbloom, St. Amant and Sullivan establish that in the absence of reckless or calculated falsehood, damages are not available for a newspapér’s defamatory publication of an individual’s involvement in events of public or general interest. Appellant’s arrest was an event touching the community’s “vital interest in the proper enforcement of its criminal laws.” See Rosenbloom, supra at 43, 91 S.Ct. at 1819. The constitutional protection afforded the report of such an event must necessarily, although perhaps unfortunately, extend to “some erroneous publications as well as true ones.” St. Amant, supra at 732, 88 S.Ct. at 1326. That the arrest was warrantless and predicated upon an unverified complaint is irrelevant to the compass of this privilege.

Damages would be available against the appellees only if the falsity of the news report were attributable to reckless or calculated conduct. As manifest in St. Amant v. Thompson, supra at 731, 88 S.Ct. at 1325, this standard of malice would be satisfied only if the publisher “in fact entertained serious doubts as to the truth of his publication.” There is nothing in the appellant’s allegations that raises, with adequate factual specificity, a genuine, triable issue in this respect.

Accordingly, the judgment of the District Court is

Affirmed.


text:
    Faye Baggett JACKSON, Administratrix of the Estate of Edwin Baggett, Plaintiff-Appellant, v. Charles CROCKARELL et al., Defendants-Appellees.
    No. 72-1884.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1973.
    Decided March 28, 1973.
    Tyree B. Harris, Nashville, Tenn., James C. Cunningham, Clarksville, Tenn., Hooker, Keeble, Dodson & Harris, Nashville, Tenn., on brief, for plaintiff-appellant.
    R. Price Nimmo, Nashville, Tenn., Dale Quillen, Nashville, Tenn., on brief, for defendants-appellees.
    Before WEICK, PECK and MILLER, Circuit Judges.
   PER CURIAM.

The appellant, as administratrix of the estate of her deceased husband, brought this action in the District Court against the Sheriff of Stewart County, Tennessee, his deputy and the sureties on his official bond, pursuant to 42 U.S. C. § 1983, to recover damages for his alleged wrongful killing by the Sheriff. The undisputed facts show that the deceased Edwin Baggett, while under the influence of alcohol or an unidentified drug, knocked on the door of a private home and asked to be admitted. The lady of the house refused to admit him, and he returned to his car which was parked by the curb. Ten minutes later, she sent her son next door to call the police and summon them to the scene. When the Sheriff arrived, he attempted to awaken Baggett and remove him from the car. An altercation ensued, and when the Sheriff became wedged between the automobile and its open door, he shot and killed Baggett.

The appellant brought this action in the District Court alleging that the Sheriff deprived her deceased, husband of his rights in violation of 42 U.S.C. § 1983. The case was tried to a jury, which found for the Sheriff, and this appeal followed.

The appellant’s single contention on this appeal is that the District Court instructed the jury on a theory of defense which was not set out in the answer of the defendant, or in the pre-trial order, and upon which no evidence was introduced. The answer of the defendant admitted that he shot the plaintiff’s decedent, but alleged:

“that he drew his pistol and fired into the body of the said Edwin Baggett in order to protect his own life, after the said Baggett drew a large knife and cornered the defendant, Charles Crockarell, and put him in fear for his life, whereupon Charles Crockarell, in order to protect his own life, fired into the body of the said Edwin Baggett, who died a short time later.”

Under the practice of the District Court for the Middle District of Tennessee, a pre-trial order is entered in all civil cases setting forth the issues to be tried and the theories of the parties, and providing that all pleadings in the case are treated as being amended to comply with the pre-trial order. An order was entered in this case which set out, in accordance with the defendants’ pleadings, the defense that the Sheriff shot the deceased in self-defense.

At trial, upon the conclusion of final argument of counsel for the parties, the District Judge began his instruction of the jury, but then interrupted his charge and asked the attorneys if they would state to the jury their theories of the case. Counsel for the appellant declined this unusual invitation; counsel for the appellee accepted and stated to the jury that the defense theory was first, that the shooting was a necessary incident to making an arrest of Edwin Baggett for the commission of a felony and, second, that' the shooting was in self-defense and therefore justified. In accordance with this first stated theory, the Court then instructed the jury concerning the circumstances under which an officer may make an arrest for the alleged commission of a felony, gave a definition of burglary, charged that burglary and attempted burglary constitute felonies, and outlined the circumstances under which an officer might kill in making an arrest of a felon.

A review of the record of this case indicates that the statements of counsel in setting out his theory of defense and the charge of the Court to the jury on these points goes well beyond the theory of defense as set out in the pleadings and the pre-trial order. The pleadings under which this ease was tried did not raise the defense of the right to kill to prevent the escape of a felón. Since the practice deprives the opposing party of an opportunity to present evidence to counter the new theory, it is reversible error for a court to give instructions concerning an issue not raised by the pleadings. Carpenter v. Baltimore & Ohio R.R., 109 F.2d 375 (6th Cir. 1940); Black, Sivalls & Bryson, Inc. v. Shondell, 174 F.2d 587 (8th Cir. 1949).

The appellees’ reliance upon Federal Rule of Civil Procedure 15(b) is misplaced. That rule provides that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings, and that the failure to amend a pleading to conform to the evidence does not affect the result of the trial on these issues. This rule is, by its terms, not applicable where the evidence does not support the theory upon which the Court charged the' jury. In this ease, although' there was inconclusive evidence concerning a broken door latch, there was no direct evidence that the decedent had committed a felony, or that he was attempting to escape. (To the contrary, the evidence showed that the decedent pursued the Sheriff, rather than fled from him.) It is reversible error for the court to give instructions which leave the way open for a jury to consider a question that has been suggested or mentioned during the trial which is not at issue or is not supported by the evidence. Fleming v. Husted, 164 F.2d 65 (8th Cir. 1947).

The judgment of the District Court is reversed and the cause is remanded for a new trial consistent with this opinion.


text:
    Anthony T. LEE et al., Plaintiffs, United States of America, Plaintiff-Intervenor and Amicus Curiae-Appellant, National Education Association, Inc., Plaintiff-Intervener, v. MACON COUNTY BOARD OF EDUCATION et al., Defendants, Troy City Board of Education et al., Defendants-Appellees.
    No. 72-1040.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Ira DeMent, U. S. Atty., Montgomery, Ala., David L. Norman, Acting Asst. Atty. Gen., Solomon S. Seay, Montgomery, Ala., John Scott, Brian K. Lands-berg, U. S. Dept, of Justice, Washington, D. C., for appellant.
    Oliver Brantley, Troy, Ala., for appellees.
    Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

A desegregation plan for the public school system in the City of Troy, Alabama, was approved by a three judge district court on June 12, 1970, and affirmed on appeal to this court. Lee v. City of Troy Board of Education, 5 Cir., 1970, 432 F.2d 819. Under the provisions of this plan, there were to be three elementary schools: (i) Troy Elementary with grades 1-4; (ii) the Laboratory School, formerly an appendage of Troy State University, with grades 1-4; and (iii) Oakland Heights, an all-black elementary school located “deep in the heart of a predominantly Negro residential area” for grades 1-3.

At the time of our first decision in this case we were aware of the fact that the city’s use of the Laboratory School facility was only temporary. See 432 F.2d 821 n. 7. When Troy State University reclaimed its facilities at the end of the 1970-71 school year, it became necessary for the school to be housed in the Old Troy Junior High building, which happened to be within the attendance zone for Oakland Heights. Because of this overlapping of schools, the United States moved the district court for supplemental modification of the plan.

Due to the temporary nature of the use of this building, the district court below declined to further modify the plan. The United States appealed. We affirm.

Our review of the case convinces us that the City of Troy Board of Education is moving expeditiously to relocate the Laboratory School within its original attendance zone under the requirements of the plan which we previously approved. It also plans to raze the current Troy Elementary school building and rebuild a new facility on the same site.

Construction of these new facilities has been too long delayed by this impending litigation. By affirming the order of the court below, which merely declined to tamper with a plan which had already survived the rigors of an industrious three judge district court and a panel of this court on review, we express our hopes that the progress of education in the City of Troy will hereafter be swift and unimpeded. With a fair and viable unitary school system functioning, perhaps the people of Troy can now be free to focus on the salutary and unitary duty of providing a quality education for all of their children.

Affirmed.

      . AH three of the contingent sites for the school are adjacent to the campus of Troy State University and clearly within the attendance zones established by the plan.

      . Most — if not all — of the costs of these new facilities are to be defrayed by a generous grant from the estate of former Alabama Governor Charles Henderson. Haste is required in the disposition of the matter, however, since the funds must — according to the terms of the will— be utiHzed in calendar 1973 or forfeited. We lament our overly-long delay in handling the case. We hope that the new educational facilities can now be constructed without further delay or complications.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HOOKER CHEMICAL CORPORATION, Respondent.
    No. 72-1736.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 13, 1973.
    Decided March 15, 1973.
    R. Bruce McLean, N. L. R. B., for petitioner-appellant; Peter G. Nash, Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Robert A. Giannasi, Atty., N. L. R. B., Washington, D. C., on brief.
    Robert A. Kennedy, Garden City, N. Y., for respondent-appellee; Doran, Colleran, O’Hara & Dunne, Garden City, N. Y., on brief.
    Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and MCALLISTER, Senior Circuit Judge.
   ORDER.

This is a petition for enforcement of an order of the National Labor Relations Board which should never have been brought to the attention of this Court. We are at a loss to conceive of any reason why the time of this Court and, in fact, the time of the Board should have been required to accomplish a result which the Respondent accomplished before the exceptions to the Trial Examiner’s decision were filed with the Board.

The facts are simple. By unilateral action the Respondent eliminated the 1969 Christmas bonus at six units in five of its plants. An unfair labor practice complaint was filed. On June 10, 1970, a Trial Examiner for the NLRB found that Respondent had violated Sections 8(a)(5) and (1) of the Act, 29 U. S.C. §§ 158(a)(5) and (1). It is undisputed that after the decision and before exceptions were filed Respondent paid the 1969 Christmas bonus, and even before the decision of the Trial Examiner it had, during the course of contract negotiations, bargained with the appropriate representatives and eliminated the Christmas bonus as a subject of future bargaining at all except one of the plants. There were other reasons for exceptions to the Trial Examiner’s decision since that decision required the payment of the Christmas bonus to pensioners, retirees and employees in the Armed Services.

The Board’s order was modified subsequent to the decision of the United States Supreme Court in Chemical Workers v. Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), and those issues are not now before us.

The only issue before us and the only reason why this petition for enforcement was filed is because the Board’s order required the posting of a Notice to Employees couched in the future tense although the bonus had already been paid and the Company had negotiated or was negotiating the issue. The Respondent now agrees that it will comply with an order to post appropriate notices and in its brief has set forth what this Court considers to be appropriate notices.

Although we still consider that this matter could well be resolved without an order for enforcement since the Respondent agrees to post modified notices it is ordered that the order of the Board be modified to require the posting of notices in the form described, and as modified the order is enforced.

      . The Board’s decision and order is reported at 186 NLRB No. 49.

      . WE DID, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, restore to our employees in the bargaining unit described below, the bonus program we had before 1969;
      WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, paid to our employees in the bargaining unit described below the 1969 Christmas bonus, plus six (6) per cent interest;
      WE HAVE, in accordance with an order of the NATIONAL LABOR RELATIONS BOARD, bargained with (indicating name of appropriate bargaining unit for employees in each of the aforementioned plants) regarding the elimination of such Christmas bonus, and, as a result of such negotiations, the Christmas bonus has been eliminated as part of the compensation of the employees in this bargaining unit.
      WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, restored to our employees in the Niagara Hooker Employees Union, the bonus program we had before 1969;
      WE HAVE, pursuant to an order of the NATIONAL LABOR RELATIONS BOARD, paid to all eligible employees in such unit the 1969 Christmas bonus, plus six (6) per cent interest;
      WE WILL NOT refuse to bargain with the Niagara Hooker Employees Union by changing or eliminating the Christmas bonus unilaterally in the future.


text:
    Jesse ROOTS, Plaintiff-Appellant, v. J. A. CALLAHAN, Inspector in Charge Of Post Office Department, Defendant-Appellee.
    No. 72-3589
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 20, 1973.
    Jesse Roots, pro se.
    John L. Briggs, John D. Roberts, Asst. U. S. Attys., Jacksonville, Fla., j. A. Callahan, Postal Inspector in Charge, Atlanta, Ga., for defendant-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

Jesse Roots, a prisoner of the State of Florida, filed a pro se complaint in the district court seeking a declaratory judgment against J. A. Callahan, Inspector in Charge, United States Postal Service. Roots sought an order to compel Callahan to investigate interference with his postal service.

The district court, construing the complaint as an action under 42 U.S.C. § 1983, felt that the alleged interferences were within the institution and that therefore an action against the Inspector would not lie since he relinquished custody and control of the mail when delivered to the prison. Roots filed a pro se petition for rehearing, in which he reemphasized his contention that the abuses were being committed outside the confines of the institution in which he was incarcerated. The district court denied the petition for failure to establish grounds for recovery.

A pro se petition should not be dismissed unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

We are of the opinion that the district court erred in construing the complaint as a civil rights action. The gravamen of the complaint was the refusal of the postal inspector to conduct an investigation into alleged mail obstructions occurring outside the prison walls, not a claimed abuse of censorship by the prison officials. Nonetheless the dismissal must be affirmed.

While jurisdiction could be grounded on 28 U.S.C. § 1339 and 39 U.S.C. § 409, a writ of mandamus would not lie to compel the postal inspector to perform a discretionary duty of investigation.

The judgment of the district court is affirmed.

      . It is settled that a suit will not lie under 42 U.S.C.A. § 1983 against a federal official acting under color of federal law. See Norton v. McShane, 332 F.2d 855, 862 (5th Cir., 1964); Betha v. Reid, 445 F.2d 1163, 1164 (3rd Cir., 1971); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir., 1971).

      . The record indicates that the inspector exercised his initial nondiscretionary duty by notifying Roots of his decision not to investigate.


author: PICKETT, Circuit Judge. LEWIS, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Dale PATMORE, Defendant-Appellant.
    No. 72-1402.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 15, 1972.
    Decided March 26, 1973.
    Edward H. Funston, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U, S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.
    Thomas M. Dawson, Leavenworth, Kan., for defendant-appellant.

      Before LEWIS, Chief Judge, and PICKETT and MCWILLIAMS, Circuit Judges.
   PICKETT, Circuit Judge.

While imprisoned at the Leavenworth, Kansas, federal penitentiary, Patmore was accused of stabbing another inmate. He was indicted in federal court for aggravated battery in violation of Kan. Stat.Ann.1971 Supp. 21-3414(c), a class C felony, through the Assimilative Crimes Act, 18 U.S.C. § 13, (1970). During the course of the trial Patmore entered a plea of guilty to aggravated assault, a lesser included offense and a violation of Kan.Stat.Ann.1971 Supp. 21-3410(a). He was sentenced to serve a three to ten year sentence under Kan. Stat.Ann.1971 Supp. 21-4501 (d).

Patmore’s only contention on appeal is that there is a federal assault statute, 18 U.S.C. § 113(c) (1970), that defines the same offense as the Kansas statute to which he pleaded guilty, and that he should have been sentenced under the federal statute, which provides for a maximum penalty of five years. Patmore’s “Motion to Correct Excessive Sentence” was overruled. The trial court held that the state and federal statutes were not identical since the federal statute required proof of specific intent to do bodily harm, whereas the Kansas statute made no mention of specific intent. We hold that the precise acts to which Patmore pleaded guilty were made penal by the federal statute defining assault, 18 U.S.C. § 113(c) (1970), and cannot be redefined by application of the Assimilative Crimes Act.

The crime of assault is defined in Kan.Stat.Ann.1971 Supp. 21-3408 as “an intentional threat or attempt to do bodily harm to another. . . .” This language, when read in conjunction with Kan.Stat.Ann.1971 Supp. 21-3410(a), is the equivalent'of 18 U.S.C. § 113(c) (1970) .

The purpose of the Assimilative Crimes Act, 18 U.S.C; § 13 (1970), is to supplement the Criminal Code of the United States by adopting state criminal statutes relating to acts or omissions committed within areas over which the federal government has exclusive jurisdiction and which are “not made punishable by any enactment of Congress.” The Act has no application if such acts or omissions are made penal by federal statute. United States v. Sharpnack, 355 U.S. 286, 78 S.Ct. 291, 2 L.Ed.2d 282 (1958); Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946); Dunaway v. United States, 170 F.2d 11 (10th Cir. 1948); Fields v. United States, 438 F.2d 205 (2d Cir. 1970), cert. denied, 403 U.S. 907, 91 S.Ct. 2214, 29 L.Ed.2d 684 (1971) . In the instant case, Patmore pleaded guilty to unlawfully assaulting or striking at another with a deadly weapon, which is a class D felony under the Kansas statute. AÍthoügh the crime may be within the definition of the Kansas statute, it is punishable under the provisions qf 18 U.S.C. § 113(c) (1970), which prevail. Hockenberry v. United States, 422 F.2d 171 (9th Cir. 1970). A federal criminal statute -may not be enlárged or diminished by a state statute. Williams v. United States, 327 U.S. 711, 718, 66 S.Ct. 778, 90 L.Ed. 962 (1946).

The judgment and sentence is set aside, and the cause remanded for sentencing under 18 U.S.C. § 113(c) (1970).

LEWIS, Chief Judge

(concurring in the result).

I concur in the result reached by the majority opinion but only because the penalty for assault under 18 U.S.C. § 113(c) is less severe than the penalty under Kan.Stat.Ann. §§ 21-3410(a), 21-4501 (d). The relief given is appropriate under the posture of the case as presented to us and consistent with fundamental fairness. However the rationale of the main opinion would appear to require imposition of the federal sentence in any case where a plea (as here) or a conviction occurs for a state defined included offense that falls within the bounds of a federal statutory offense. I would hold open for future consideration the nature of appropriate relief or sentence when and if a case arises where the federal sentence is more severe.

      . The charging language of the indictment is that Patmore “wilfully, unlawfully and feloniously committed an act of aggravated battery against and upon John Wesley Fuller by means of a deadly weapon, to-wit: a knife, in violation of 18 U.S.C. §§ 7, 13, and K.S.A. 21-3414 (c).”

      . 18 U.S.C. § 113(c) (1970) :
      “Whoever ... is guilty of an assault shall be punished as follows :
      (c) Assault with a dangerous weapon, with intent to do bodily harm, and without just cause or excuse, by imprisonment for not more than five years.
      Kan.Stat.Ann.1971 Supp. 21-3410 (a) :
      “Aggravated assault is:
      (a) Unlawfully assaulting or striking at another with a deadly weapon. . . .”

      . This analysis does not consider the possible imposition of a fine up to $1,000.00 under 18 U.S.C. § 113(c).


author: CHOY, Circuit Judge:

text:
    WESTERN COACH CORPORATION, an Arizona corporation, Plaintiff-Appellee, v. Leroy SHREVE, dba Lee’s Refrigeration, and Wilson D. Palmer, Clerk of the Superior Court of the State of Arizona, in and for the County of Maricopa, Defendants, Leroy Shreve, dba Lee’s Refrigeration, Defendant-Appellant.
    No. 72-2534.
    United States Court of Appeals, Ninth Circuit.
    March 6, 1973.
    Edward Crehan Rapp, of Tupper, Rapp, Salcito & Schlosser, Phoenix, Ariz., for defendant-appellant.
    Henry Jacobowitz, Phoenix, Ariz., for plaintiff-appellee.
    Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.
   CHOY, Circuit Judge:

Shreve brought a civil action against the Western Coach Corp. (Western) and sought to attach Western’s bank account under Arizona’s garnishment laws. Western thereafter instigated a declaratory judgment action asking that the garnishment laws of the State of Arizona, A.R.S. §§ 12-1571 to 12-1595, be declared unconstitutional insofar as they permit pre judgment garnishment without providing adequate notice and an opportunity for a hearing. The district court, 344 F.Supp. 1136, relying on Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) ruled that the statutes were unconstitutional in that they violated the due process clause of the Fourteenth Amendment of the United States Constitution. We affirm.

In Sniadach the Supreme Court decided that a Wisconsin prejudgment wage garnishment statute violated a debtor’s right to procedural due process by sanctioning the taking of his property without affording him prior notice and a hearing. Since that decision the validity of various summary pre judgment remedies has been questioned. Some courts have construed Sniadach as setting forth general principles of procedural due process and have struck down such remedies. See Fuentes, supra at 72, Fn. 5, 92 S.Ct. 1983. “Other courts, however, have construed Sniadach as closely confined to its own facts and have upheld such summary pre judgment remedies, [citations omitted]” Fuentes, supra at 73, Fn. 5, 92 S.Ct. at 1990.

But any doubts about the reach of Sniadach have been eliminated by the decision in Fuentes, in which the Court held that Florida and Pennsylvania prejudgment replevin statutes were invalid because they did not provide for a hearing prior to the deprivation. The Court made it clear that Sniadach stood for a general principle that the right to notice and a hearing must be granted at a time when the deprivation can still be prevented. Fuentes, supra at 81, 92 S.Ct. 1983. Moreover, the fact that the state provided remedies that permitted a later recovery of seized property or damages for wrongful deprivation does not eliminate the need for a prejudgment hearing. Fuentes, supra at 81-2, 92 S.Ct. 1983.

The Court also noted that while its prior rulings involved necessities such as wages and welfare benefits, “[i]n none of those cases did the Court hold that this most basic due process requirement is limited to the protection of only a few types of property interests.” Fuentes, supra at 89, 92 S.Ct. at 1998.

While there are some extraordinary situations that justify postponing notice and an opportunity for a hearing, the instant case does not present such an unusual situation. See generally, Fuentes, supra part VI.

The Arizona garnishment laws do not comply with the constitutional due process requirement.

Affirmed.