author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Columbus and Mae Frances CRENSHAW, Appellants, v. GREAT CENTRAL INSURANCE CO., a Corporation, Appellee.
    No. 72-1747.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1973.
    Decided Aug. 24, 1973.

      Preston E. Roskin, Clayton, Mo., for appellants.
    Robert A. Wulff, St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       District of Eastern Michigan, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal from an order of the District Court sustaining defendant Great Central Insurance Co.’s motion to dismiss Count I of plaintiffs’ first amended petition in an action for wrongful death pursuant to a policy of insurance affording uninsured motorist coverage. The motion was sustained on the basis that the Count I claim was barred by the Missouri statute of limitations for wrongful death. See V.A.M.S. § 537.100.

Plaintiffs in the original petition, as well as in the amended petition, are Columbus and Mae Frances Crenshaw, Gretschen Crenshaw, by and through her mother and next friend, Mae Frances Crenshaw. The original petition was filed in the Circuit Court of the City of St. Louis on September 7, 1972. It contained three counts. Count I alleged that on May 27, 1969, an automobile owned by Harry Davis and operated by Gail Martin struck and killed Dale Crenshaw, son of plaintiffs Columbus and Mae Frances Crenshaw. Count I also alleged that both Davis and Martin were negligent; that Davis and Martin were uninsured motorists as defined in a policy of insurance with defendant herein; and that Dale Crenshaw was covered by the aforementioned policy. Plaintiffs sought $10,000 damages pursuant to the policy’s uninsured motorist coverage for Dale’s wrongful death. Finally, Count I alleged that defendant herein had vexatiously, wilfully and without reasonable cause refused to pay the claim. Damages pursuant to this allegation were sought in the amount of $1,000 plus $2,500 in attorneys fees. See V.A.M.S. §§ 375.296, 375.420. On the same operative facts, Count II sought $10,000 damages for severe injury to Dale’s sister Gretschen and $3,500 damages and attorneys fees for vexatious refusal to pay the Count II claim.

Count III was a claim by the father, Columbus Crenshaw, for $5,000 in past and anticipated medical expenses in connection with Gretschen’s injuries.

On September 25, 1972, defendant filed timely petition for removal alleging diversity of citizenship and an amount in controversy of $32,000. The federal district court initially assumed jurisdiction over the case.

On October 4, 1972, defendant moved to dismiss Count I of plaintiffs’ original petition. On October 26, 1972, a pretrial conference was held. On November 16, plaintiffs’ first amended petition was filed. It contained two counts for $10,000 each. The claims for damages and attorneys fees for vexatious refusal to pay were eliminated as was the Count III claim in the original petition.

On November 17, 1972, the District Court dismissed Count I as barred by the Missouri statute of limitations for wrongful death. Sua sponte it remanded Count II on the basis that “[t]he claims under original Count II and Count III of the original petition, and Count II of the amended petition, show that under the terms of the policy recovery thereunder is limited to $10,000, to a legal certainty.” The court states:

“To defeat jurisdiction of this court once acquired, it must appear to a legal certainty that as of the time of removal, plaintiff could not recover in excess of $10,000. Durate v. Donnel-ley, supra. The claim under Count I for wrongful death of Dale Crenshaw is shown to a legal certainty to be barred by the statute of limitations. The claims under original Count II and Count III of the original petition, and Count II of the amended petition, show that under the terms of the policy recovery thereunder is limited to $10,000, to a legal certainty. The only basis for retaining jurisdiction, if any, is the claim of vexatious refusal to pay for which plaintiff Gretschen Crenshaw, by next friend, claimed $2,500 in the original petition. Under Missouri law, claimants may proceed directly against the insurance carrier for recovery of damages caused by an uninsured motorist where the injured party is covered as an insured by uninsured motorist coverage. State ex rel. State Farm Mut. Ins. Co. v. Craig, 364 S.W.2d 343 (Mo.App.1963). The liability of the insurance carrier is conditioned upon (1) the accident ‘arising out of the ownership, maintenance or use of an uninsured highway vehicle’ and (2) the right of the plaintiff to recover from such owner or operator damages on account of such accident. Neither of these conditions is presumed in the law, and the defendant insurance carrier is entitled to have these issues adjudicated before its refusal to pay can be considered willful or vexatious.”

An order of remand is, of course, not appealable. See 28 U.S.C.A. § 1447(d). The only appeal here is from the order of dismissal of Count I.

Plaintiffs urge two grounds for reversal: (1) that the same or similar reasoning which led to a remand of Count II should have been applied to remand, rather than dismiss, Count I; and (2) that even if Count I should not be remanded, the District Court erred in its holding that the Count I claim was barred by the Missouri statute of limitation for wrongful death. Plaintiffs’ second ground for reversal is based on its argument that the Missouri contract, rather than wrongful death, statute of limitations is applicable to this suit.

For the reasons which follow, we agree with plaintiffs’ first contention that Count I should be remanded to the state court rather than dismissed and reverse with instructions to remand Count I to the state court from which it was removed. We do not reach the second issue based on the statute of limitations.

The Count I claim in plaintiffs’ petition at the time of removal sets forth facts which prima facie establish the jurisdictional amount. This amount is determinative of the jurisdictional amount in controversy with one basic exception here applicable: if it appears to a legal certainty that plaintiffs cannot recover in excess of $10,000 then the amount actually claimed may be ignored. 1 Barron & Holtzoff, Federal Practice & Procedure § 104; 1A Moore’s Federal Practice If 0.157 [6], at 259; St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Sanders v. Hiser, 479 F.2d 71 (8th Cir. 1973).

Whether it is a legal certainty that plaintiffs cannot recover is determined by state law, here the Missouri vexatious refusal to pay statutes previously cited and the cases decided pursuant thereto. Horton v. Liberty Mutual Insurance Co., 367 U.S. 348, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961). Under the Missouri cases, “[i]t is a well settled rule of law, where there is an open question of fact or law determinative of the insured’s liability, that the insurer, acting in good faith, may insist on a judicial determination of such question without being penalized therefor.” Cohen v. Metropolitan Life Insurance Co., 444 S.W.2d 498, 506 (Mo.App.1969).

There has been some confusion regarding the scope and proper application of the legal certainty test. The appropriate standards are well stated in Nelson v. Keefer, 451 F.2d 289 (3d Cir. 1971). As to Count II, the trial court found the 'requisite certainty in the mere possibility that the insurer’s refusal to pay might, reasonably and in good faith, have been on the basis that the accident did not arise out of the use of an uninsured vehicle or on the basis that the plaintiffs could not have recovered from the owner or operator of the uninsured vehicle. The same two reasons cited by the District Court as support for this conclusion are equally applicable to Count I.

With respect to Count I, there is a third factor which offers additional support for the conclusion that, to a legal certainty, there could have been no Count I recovery for vexatious refusal to pay. From the pleadings, motions, briefs and admissions before the District Court, it appears that the defendant in fact bases its refusal to pay the Count I claim on the bar to claims set forth in the Missouri statutes of limitations for wrongful death. The trial court upheld such defense. The question of whether that statute of limitations, rather than the contract statute of limitations, applies to the instant case is, under present Missouri cases, clearly “an open question . . . law determinative of the insured’s liability . ” Cohen v. Metropolitan Life Insurance Co. supra. There are compelling arguments on both sides of the question. See Annot., 28 A.L.R.3d 580 (1969); Cox, Uninsured Motorist Coverage, 34 Mo.L.Rev. 1, 35-37 (1969).

We are satisfied that the statute of limitations issue raised by the defendant is clearly an open question of law such that the refusal to pay in the instant case could not', to a legal certainty, be considered vexatious. The addition of the statute of limitations issue with respect to Count I makes a stronger case for determining to a legal certainty that no damages for vexatious delay can be awarded than do the facts stated in Count II. Thus, plaintiffs’ Count I claim was for less than the jurisdictional amount. See Nelson v. Kee-fer, pp. 292-293 of 451 F.2d.

In such case, 28 U.S.C.A. § 1447(c) provides that “the district court shall remand the case. . . .” See also 1A Moore’s Federal Practice jf 0.157 [6], at 259; Colorado Life Co. v. Steele, 95 F.2d 535 (8th Cir. 1938). This is a case “where the state court has jurisdiction, but the federal court lacks both original and removal jurisdiction.” 1A Moore’s Federal Practice jf 0.169 [1], at 1431. Dismissal is inappropriate in such a case.

The trial court’s order does not clearly disclose the basis upon which it determined it had jurisdiction over Count I. Defendant’s removal petition asserts that the cause of action stated in the three counts amounts to $32,000. Such sum is obviously arrived at by aggregating the amount claimed in the prayer of each count.

Federal courts have only such jurisdiction as is conferred upon them by statute. It is the duty of this court to satisfy itself as to the trial court’s jurisdiction. Jurisdiction absent jurisdictional amounts cannot be established by waiver or consent.

We read the first portion of the trial court’s order, which has hereinabove been quoted, as accepting the contention that the amounts claimed in the three counts can be aggregated. The court apparently then holds that jurisdiction as to Count II has been defeated by the court’s determination that it has been shown to a legal certainty that Count I is barred by the statute of limitations; that the claim of the injured daughter involved in Counts II and III of the original petition is limited under the policy to a maximum of $10,000 in damages sustained by one person as a result of one accident, and that no damage for vexatious delay can be established and thus the plaintiff cannot possibly recover a sum in excess of $10,000 on Count II which would be the only count remaining.

There are two separate and distinct plaintiffs involved in this action. The plaintiffs in the wrongful death' claim set out in Count I are Mr. and Mrs. Crenshaw. They are proper plaintiffs on the Count I claim by virtue of V.A. M.S. § 537.070, subd. 1 [3]. The plaintiff with respect to Count II is the injured daughter Gretschen. The action for recovery of damages with respect to Gretschen is brought in Gretschen’s name by her mother as next friend. The well settled applicable rule stated by Judge Tuttle in Eagle Star Insurance Company v. Maltes, 313 F.2d 778, 780 (3d Cir. 1963), is:

“To aggregate claims of several plaintiffs the plaintiffs must have a ‘common and undivided interest,’ though it may be separable as between themselves. But where their interests are distinct, and their only relationship is that ‘they form a class of parties whose rights or liabilities arose out of the same transaction, or have a relation to a common fund or mass or property sought to be administered, such distinct demands or liabilities cannot be aggregated. . . . ’ Clay v. Field, 138 U.S. 464, 11 S.Ct. 419, 34 L.Ed. 1044 (1891).”

To like effect, see 1 Moore’s Federal Practice ¶ 0.97 [3]; Thomson v. Gaskill, 315 U.S. 442, 62 S.Ct. 673, 86 L.Ed. 951 (1942).

In Clark v. Paul Gray, Inc., 306 U.S. 583, 589, 59 S.Ct. 744, 748, 83 L.Ed. 1001 (1939) the Supreme Court holds:

“It is a familiar rule that when several plaintiffs assert separate and distinct demands in a single suit, the amount involved in each separate controversy must be of the requisite amount to be within the jurisdiction of the district court, and that those amounts cannot be added together to satisfy jurisdictional requirements.”

The rule just stated forecloses the aggregation of the claims of the separate and distinct plaintiffs for the purpose of determining subject matter jurisdiction.

The reasons assigned by the trial court for determining that vexatious delay, damages and attorneys fees are not allowable under the facts of this case to a legal certainty as to Count II apply at least equally as to Count I. Accordingly, it is established to a legal certainty that Columbus and Mae Frances Cren-shaw could not in any event recover more than $10,000 on their Count I wrongful death claim, and that the court should have remanded the ease to the state court by reason of lack of subject matter jurisdiction.

A salutory, incidental effect of this conclusion is to allow the Missouri state courts to decide the open question of Missouri state law presented by this case.

The order of dismissal is vacated and this case is remanded to the District Court with instructions to remand Count I to the state court from which it was removed.


source: Caselaw Access Project

author: WIDENER, Circuit Judge:

license: Public Domain

text:
    CLIFTON D. MAYHEW, INC., Appellant, v. BLAKE CONSTRUCTION COMPANY, INC., Appellee.
    No. 73-1135.
    United States Court of Appeals, Fourth Circuit.
    Argued May 9, 1973.
    Decided July 26, 1973.

      Mark P. Friedlander, Arlington, Va. (Friedlander, Friedlander & Brooks, Arlington, Va. on brief), for appellant.
    Jack Rephan, Washington, D. C. (Danzansky, Dickey, Tydings, Quint & Gordon, Washington, D. C., on brief), for appellee.
    Before WINTER, FIELD, and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This is a diversity case tried under Virginia law brought by Mayhew, Incorporated against Blake Construction Company. Blake was the prime contractor for the construction of United States Federal Office Building No. 7 in the District of Columbia. Blake subcontracted with Mayhew for the latter to perform the painting, finishing, and wall covering work on Building No. 7.

Article 3 of the subcontract provided that Mayhew would receive $140,000 for its work, subject, however, to additions and deductions for changes in the work according to the other provisions of the contract. Article 4(a)(1) provided that partial payments to the subcontractor shall be made within 5 days after the contractor received payment from the owners. Article 4(f) provided that Mayhew would not be entitled to final payment until forty-five days after the completion and acceptance of the entire project. Article 23 provided that Blake, without invalidating the contract, could require changes, additions, and/or omissions in the work, upon written orders to Mayhew. Mayhew was to present an itemized estimate of the value of the work involved and to perform the work if so ordered by Blake. Then, upon determination, by Blake, of the value of the work involved, Blake was to issue a change order to Mayhew, adjusting the contract amount accordingly. Furthermore, Mayhew was obligated to perform all work pertaining tó the project as Blake should direct. Article 28 provided that if any legal action arose between Blake and the United States and which concerned work performed by Mayhew, then Blake could select counsel of its own choosing to represent both parties’ interests in any such action.

During the performance of the subcontract, a dispute arose as to whether or not the painting of certain concrete floors was covered by the contract or whether it was extra work. The work was completed around July, 1967. Mayhew contended that it was extra work and that it should receive extra compensation for such work. The government contracting officer said it was covered by the contract. Mayhew then received Blake’s permission to prosecute an appeal in Blake’s name to the General Services Administration Board of Contract Appeals. The Board rejected Mayhew’s claim on November 30, 1967. Reconsideration of the decision was denied on October 24,1969.

Subsequent to the Board’s refusal to reconsider its decision, Mayhew sought Blake’s permission to file a suit, in Blake’s name, in the Court of Claims, contesting the Board’s ruling. Alternately, Mayhew sought to have Blake include Mayhew’s claim in any action Blake might bring in the Court of Claims concerning Building No. 7. Blake did institute an action in the Court of Claims regarding Building No. 7, but it refused to include Mayhew’s claim in its suit. Blake also refused to allow Mayhew to use Blake’s name so that it could institute its own suit in the Court of Claims. Mayhew then instituted the present action.

Mayhew’s complaint here sought a mandatory injunction against Blake, requiring Blake to amend its complaint in the Court of Claims so as to include ^ayhew’s claim for extra work, or, in the alternative, sought damages from Blake for such work.

The district court denied the mandatory injunction sought by Mayhew. The court said that neither the contract nor equitable principles required Blake to assert Mayhew’s claim before the Court of Claims. It said Mayhew could have insisted on a protective provision in the contract had it wanted to assure itself of an avenue of relief against the government. The court further held that Article 28 of the contract was not such a protective provision, but simply pertained to the right to select counsel and the sharing of costs in the event litigation should occur. It held the contract did not require litigation to be commenced at the request of the subcontractor.

We are of opinion that Mayhew has failed to demonstrate that Blake owed it any duty to assert its claim before the Court of Claims. Accordingly, we affirm the district court’s denial of the mandatory injunction. Blake had no contractual duty to assert Mayhew’s claim in the Court of Claims, and there is no such obligation imposed by law.

The district court also denied May-hew’s alternative claim for damages. It held that the claim for damages was actually a claim against the prime contractor for the alleged extra work; that any such claim Mayhew may have against Blake for this work arose in July, 1967 when the extra work had been completed; and that such claim was barred by the five-year Virginia statute of limitations, Va.Code of 1950, § 8-13, the present suit having been commenced on November 6, 1972.

We do not agree with the holding of the district court with respect to the statute of limitations.

In Virginia, the statute of limitations on a contract begins to run from the time payment is due. Of necessity, the due date depends upon the terms, either expressed or implied, of the contract in issue. Furthermore, the burden is upon the party pleading the statute of limitations as a defense to show by a preponderance of the evidence that the cause of action arose more than the statutory period before the action was instituted. The course of dealings between the parties may show their intent. Columbia Heights Sec. 3, Inc. v. Griffith-Consumer Co., 205 Va. 43, 135 S.E.2d 116 (1964); Quackenbush v. Isley, 154 Va. 407, 153 S.E. 818 (1930).

As previously stated, Mayhew contended that the painting of certain concrete floors was an extra for which it should be compensated under the contract. When the contracting officer issued his decision that such painting was a contract requirement, and not extra work under the contract, Mayhew requested and received Blake’s permission to prosecute an appeal, in Blake’s name, from the contracting officer’s decision to the Board of Contract Appeals. The Board denied Mayhew’s appeal on November 30, 1967. It has not been alleged, nor are we willing to assume, that Blake would have allowed Mayhew to use its name to assert a spurious claim before the Board of Contract Appeals. Therefore, of necessity, so far as the action before the Board of Contract Appeals was concerned, both Blake and Mayhew maintained the position that the painting of the floors in question was an extra under the contract and that the contract price should be' raised to pay for it. The earliest Blake could have withdrawn from this position was November 30, 1967, when the Board rejected the contention that the painting was an extra for which Blake and Mayhew-were entitled to extra compensation under the contract. Apparently, Blake later did withdraw from this position because it subsequently refused to allow Mayhew to use its name to litigate the matter in the Court of Claims or to include May-hew’s claim in its suit against the government in the Court of Claims. Had Blake complied with Mayhew’s request to include the disputed painting claim in its suit in the Court of Claims, or allowed Mayhew to litigate in its name m that court, then Mayhew could have received a judicial determination of its claim for extra work and, almost certainly being in privity with Blake, would have been bound by the result. See Brunner v. Cook, 134 Va. 266, 114 S.E. 650 (1922); Patterson v. Saunders, 194 Va. 607, 74 S.E.2d 204 (1953); DuPont v. Sylvania, 122 F.2d 400 (4th Cir. 1941); Simon v. Maryland Casualty Co., 353 F.2d 608 (5th Cir. 1965). Blake, however, is now attempting to' deny Mayhew its right to receive a judicial determination in any forum of its claim for extra work. This, on the narrow questions we consider, it may not do on the record here presented, however scanty it may be, because it does not show Mayhew’s claim is barred by the statute of limitations.

Mayhew’s claim on the record before us is not so barred because it could not have sued Blake any earlier than November 30, 1967. If Mayhew had attempted to sue Blake prior to November 30, 1967, the positions of Blake and Mayhew until that time being synonymous, it would have been met with the valid defense that no cause of action could accrue to Mayhew, even though the disputed work had been completed pursuant to Blake’s order, until final payment was due it under Article 4(f) of the contract, or partial payment was due it under Article 4(a)(1). Since both Blake and Mayhew were contending that the contract price should be adjusted upward because the painting was extra work under the contract, the amount of the final, or a partial, payment for such work could not have been determined any earlier than the Board’s decision on November 30,1967.

We are accordingly of opinion that November 30, 1967 is the earliest May-hew could have brought suit against Blake, and must vacate the decision of the district court on this point and remand the case for further proceedings not inconsistent with this opinion.

Affirmed in part, vacated and remanded in part.

      . A subcontractor cannot sue the United States in its own name because there is no privity of contract between the two parties. The subcontractor can only sue the United States by suing it through the prime contractor. See United States v. Cleveland Electric Co. of South Carolina, 373 F.2d 585 (4th Cir. 1967).

      . The general contract is not a part of the record. We presume, as is common in the construction industry, that the payment and partial payments referred to in Article 4(a)(1) of the subcontract are those received from the owner and general contractor on account of estimates submitted at various stages of construction. The government not having agreed that the disputed work performed by Mayhew was to be extra work under the contract, no partial payment could have been made for it by the government prior to November 30, 1967.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Wilford JACKSON, Appellant.
    No. 73-1093.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided Aug. 9, 1973.
    Paul F. Festerson, Omaha, Neb., for appellant.
    Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before CLARK, Associate Justice, and HEANEY and BRIGHT, Circuit Judges.

       The Honorable Tom C. Clark, Retired Associate Justice of the United States Supreme Court, sitting by designation.

   PER CURIAM.

Appellant, Wilford Jackson, appeals his conviction for aiding and abetting one Ronald Yarpe in the distribution of cocaine to a government agent in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Appellant was tried by jury, found guilty, and sentenced to ten years imprisonment. We affirm the conviction.

On this appeal, Jackson raises the following issues: (1) Was the evidence sufficient (a) to establish the prerequisite intent on the part of the defendant and (b) to establish that defendant did actually aid and abet in the distribution of a controlled substance? (2) Did the government fail to establish an adequate chain of custody of the purchased substance and its container so that neither the container nor testimony identifying the questioned substance as cocaine should have been admitted into evidence? (3) Did the evidence establish that defendant was the procuring agent for government investigators so that the trial judge should have either acquitted him or given an instruction to the effect that a government buyer cannot be convicted of aiding and abetting ?

Since the thrust of defendant’s arguments pertain to the nature and sufficiency of the evidence, a somewhat detailed discussion of the facts produced at trial is necessary. Officers Frazier and Ryan are government undercover agents who at the time of the events in question were investigating drug traffic in Omaha, Nebraska. Jewell Hutton, Jr., is an informer who is frequently paid by the government for infiltrating the drug market and then introducing government agents to people selling illegal drugs.

On the night of October 31, 1972, Hutton, who was then living in Omaha, called Frazier and Ryan, telling them that he could arrange for them to make a purchase of cocaine. Frazier and Ryan, posing as “cross-country robbers,” joined Hutton at the Miller Hotel where they met a Ken Malo who in turn called defendant-Jackson, telling him he had some buyers for cocaine. Jackson went to the hotel where he met with Hutton and the agents and then took them to the apartment where he was living. At the apartment, Jackson made a phone call to Ronald Yarpe, telling him that he had a buyer for some cocaine. Jackson arranged to meet with Yarpe at Veys’ Parking Lot on 42nd and Sunshine Drive. Agent-Frazier and defendant-Jackson then left the apartment to drive to the meeting place. While enroute, Jackson suggested to Frazier that he (Jackson) be given the money for the cocaine since Yarpe did not want to meet Frazier. Frazier told Jackson he did not trust him and refused to turn over the money for the drugs. Frazier and Jackson drove around the area of 42nd and Monroe for approximately ten minutes. This street is about a block from Veys’ Parking Lot. Yarpe, a prosecution witness, stated that he arrived at the parking lot about 15 minutes after Jackson’s call and waited there for about 15 minutes.

Jackson and Frazier did not make contact with Yarpe so they returned to the apartment, where, according to both agents, Jackson made a second phone call. Both agents and Hutton overheard portions of this phone call in which Jackson mentioned a red Volkswagen and 42nd and Monroe. At this point, the agents were suspicious of being set up for a robbery so they and Hutton left the apartment and drove to 42nd and Monroe where they saw a red Volkswagen. Frazier hailed it down and subsequently purchased a foil packet containing a white substance, later identified as cocaine, from the driver, Yarpe.

I.

In passing on questions of the sufficiency of the evidence, we do not determine credibility nor weigh conflicting evidence. The evidence must be viewed in the light most favorable to the prosecution and the court must determine whether there is substantial evidence to support the verdict. United States v. Ammons, 464 F.2d 414 (8th Cir. 1972), cert. denied, 409 U.S. 988, 93 S.Ct. 343, 34 L.Ed.2d 253 (1972), and cases cited therein; see United States v. Atkins, 473 F.2d 308 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973).

Jackson does not complain of the specific instruction given by the court that the government must prove that the defendant aided and abetted the distribution of a controlled substance and did so knowingly and intentionally. However, he contends that the evidence showed that he merely intended to “rip off” the undercover agents, i. e., steal their money and disappear, and thus he did not aid or abet nor intend to aid or abet the agents in procuring the cocaine. Although some evidence suggests that Jackson intended to “rip off” Frazier if Frazier had been foolish enough to fall for the ploy of giving his money to Jackson, the evidence strongly indicates that Jackson’s purpose in meeting with Frazier and in contacting Yarpe was to arrange a sale of illegal drugs. The record discloses that Jackson brought the prospective drug purchasers to his apartment, that he made an actual contact with a drug dealer, and that his contact, Yarpe, actually possessed narcotics. Thus the evidence was sufficient for the jury to conclude that Jackson intended to arrange a sale of illegal drugs between the agents and Yarpe, and that, largely due to his efforts, such a sale was indeed consummated. Moreover, the “rip-off” motive offered by Jackson as a basis for his participation does not negate a concurrent motive to aid and abet the' distribution of cocaine in the event that Frazier would not give his money to Jackson.

II.

In regard to the chain of custody issue, the following additional evidence is material. After Officer Frazier received the tinfoil packet from Yarpe containing a white, powdery substance, he kept it in his possession until he took it to the Drug Bureau in Omaha where he weighed it and put it into a lock-seal plastic bag. He placed this plastic bag inside of a lock-seal manila envelope which could not be opened without destruction of the envelope. Frazier and Ryan initialed and dated the envelope, and then Frazier locked it in the Omaha Bureau safe where it remained until he personally transported it to Kansas City, Missouri, and then locked it in the Drug Abuse Law Enforcement safe. Later he removed the envelope from this safe, checked to see if the seals were intact, placed it in a mailing envelope, and sent the envelope by registered, special delivery, air mail to the Bureau of Narcotics and Dangerous Drugs Regional Laboratory in Chicago, Illinois. At the trial Frazier identified the lock-seal manila envelope (Exhibit No. 1) as the one he had initialed and in which he had placed the plastic bag containing the packet and its contents obtained from Yarpe. He also identified the mailing envelope (Exhibit No. 2).

Rasmussen, a forensic chemist for the Regional Laboratory in Chicago, testified that the registered, air mail package was received at the laboratory in Chicago, Illinois, on November 8, 1972. He stated that Exhibit No. 1, the lock-seal manila envelope, arrived sealed with the lock-seals still intact. He opened the envelope on December 6, 1972. At that time he made a notation on the envelope of the date and his initials. He stated that he found the zip-lock plastic bag and the foil packet inside the manila envelope. He analyzed the contents of the foil packet, then returned the contents to the packets, and placed them in the original plastic bag. He placed this bag into a new lock-seal envelope. He brought this envelope to the trial with the seal still intact where he initialed, dated, and opened it while on the witness stand.

Although the defendant raises several objections to the above-described procedure, suffice it to say that we find the chain of custody and the identification of the foil packet and its contents meticulous and exacting. The prevention of tampering with or misidentification of evidence is vital to the admissibility of that evidence at trial. Here the government has taken the reasonable and necessary precautions to avoid any tampering with or misidentification of the substance purchased by Frazier from Yarpe. While the government might have provided further information as to who had access to the safes in Omaha and Kansas City and on the receiving and storing procedures at the laboratory in Chicago, we do not find these omissions significant. The substance and its containers were sufficiently identified and verified to justify their admission into evidence. See Gal-lego v. United States, 276 F.2d 914 (9th Cir. 1960).

III.

Defendant primarily relies on United States v. Moses, 220 F.2d 166 (3d Cir. 1955) to support his contention that he served as a procuring agent for government investigators and, as such, was en-. titled to the following instruction:

You are instructed that one who assists the purchase of a controlled substance only as an accommodation for the alleged buyer cannot be convicted of aiding and abetting the distribution of a controlled substance. If you find that the defendant acted solely on behalf of Government Agents in assisting a purchase of a controlled substance, and not on behalf of himself or on behalf of the alleged seller, whether or not the defendant knew that the buyers were Government Agents, you cannot convict him.
The prosecution has the burden of establishing to your satisfaction beyond a reasonable doubt that the defendant was acting on behalf of or for the benefit of the alleged seller or himself in the distribution, and not on behalf of or as the agent of the Government Agents.

Aside from the fact that the charges in Moses were brought under a previous drug control statute while the present charge arises under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq., Moses is otherwise distinguishable on its facts. In Moses, the defendant did not actively seek out or assist the seller, although she was charged in connection with the crime of selling. Moses, supra, 220 F.2d at 168. In the present case the defendant is charged with aiding and abetting Yarpe in the distribution of a controlled substance, and his activities clearly indicate affirmative action on his part in contacting the seller and in bringing the buyer and seller together. Without retreading the evidentiary grounds already discussed, it is evident that the affirmative involvement of Jackson in the consummation of the sale to the agents was clearly more extensive than that of the defendant in Moses. Cf. Atkins, supra, 473 F.2d 308. Additionally, we note that the trial judge properly gave the jury the standard aiding and abetting instruction formulated from Judge Hand’s opinion in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). Judge Hand’s definition of aiding and abetting was adopted by the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949). We find no error in the district court’s rejection of the proposed instruction.

The conviction is affirmed.

      . The Act involved in Moses treated buying and selling as separate and distinct offenses. The new statute provides:
      (a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; * * [21 U.S.C. § 841(a)(1) (emphasis added).]


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ricardo CHAVEZ et al., Defendants-Appellants.
    No. 72-3726.
    United States Court of Appeals, Fifth Circuit.
    Aug. 1, 1973.
    John L. Fashing, El Paso, Tex., on appeal for defendants-appellants.
    Victor Arditti, El Paso, Tex., (Court-appointed) for Chavez.
    Paul C. Moreno, El Paso, Tex., (Court-appointed) for Barraza-Acevedo.
    Larry Victorson, El Paso, Tex., (Court-appointed) for Campos.
    Joseph A. Calamia (Court-appointed), John L. Fashing, El Paso, Tex., for Esco-bedo.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, El Paso, Tex., Asst. U. S. Atty., for plaintiff-appellee.
    Before WISDOM, GEWIN and CLARK, Circuit Judges.
   WISDOM, Circuit Judge:

This case concerns the sufficiency of an affidavit to support the issuance of a search warrant. The four defendants were convicted of possessing, with intent to distribute, marijuana, a schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). Customs agents found 526 pounds of marijuana during a search of defendant Jose Barraza-Aceve-do’s residence. The four defendants rest their appeal primarily on the ground that the affidavit on which the warrant authorizing this search was based was insufficient to show probable cause to search defendant Bar raza-Acevedo’s home. We agree that the affidavit was insufficient, and accordingly we reverse the convictions of the four defendants.

Some time on or before July 27, 1972, Agent Herbert P. Hailes of the U. S. Customs Agency had a conversation with a confidential informant which led him to place Barraza-Acevedo’s residence at 7501 Acapulco Avenue in El Paso, Texas, under surveillance. On July 28, Agent Hailes obtained a warrant from a federal magistrate to search the premises at that address. This warrant was never executed, and was returned three days after it was issued. On the day following its return, August 1, Hailes had a second conversation with the informant. After this conversation, the federal agents sought and were issued a second search warrant for Barra-za-Acevedo’s residence. The affidavit for this warrant was sworn to by Special Agent Phillip DeHoyos of the Customs Agency. It alleged grounds for believing there was cause to search as follows:

Information received from a confidential source of proven reliability. The source of the information, stated below, previously has furnished information on four occasions and pursuant to the information furnished by the source, large quantities of Schedule I controlled substances were seized by law enforcement officers. As a result of the information furnished by the source on the previous occasions mentioned above, warrants of arrest for six defendants were issued by competent courts of jurisdiction. The source of the information, stated below, is familiar with traffickers in controlled substances within the El Paso area. The source of information has informed the affiant that a large quantity of a Schedule I controlled substance, namely marijuana, will be moved from the premises of 7507 Acapulco Avenue, El Paso, Texas, within the next twenty-four hours.

After the second warrant was issued, the agents placed the house under renewed surveillance. Then, at about 2:30 p. m. that same day, Hailes and De-Hoyos, accompanied by at least seven other customs agents, went to 7507 Acapulco to execute the warrant. When the agents entered the house, they found five men — Ricardo Chavez, Ricardo Es-cobedo, Jose Barraza-Acevedo, Ignacio Campos, and Manuel Reyes — in the living room of the home. They found 224 bricks of marijuana in the kitchen, two bricks in a storage room, and four more in a bedroom. In the course of their search they discovered and seized a number of other incriminating items later introduced into evidence at the trial. These included two fully loaded pistols and a fully loaded revolver, two marijuana roaches and one marijuana cigarette, a crumpled dollar bill in which a quarter gram of cocaine was wrapped, some cigarette wrapping paper, and a weighing scale.

After their indictment each of the five defendants filed a motion to suppress the evidence seized during the August 1 search. The trial judge denied these motions. The case was tried on Thursday, -October 26. On October 30, the jury, after a day and a half of deliberation, returned with verdicts of guilty for the four defendants who are appealing here. The jury reported that it could not reach a verdict on the fifth defendant, Manuel Reyes. The four convicted defendants were sentenced on November 29.

The sole issue we need decide on this appeal is the sufficiency of Agent De-Hoyos’ affidavit. In a similar case, Chief Justice Burger has described the issue as “the recurring question of what showing is constitutionally necessary to satisfy a magistrate that there is a substantial basis for crediting the report of an informant known to the police, but not identified to the magistrate,” United States v. Harris, 1971, 403 U.S. 573, 575, 91 S.Ct. 2075, 2078, 29 L.Ed.2d 723, 729 (Burger, C. J., announcing judgment of the Court). To decide this case we look to three cases in which that “recurring question” was presented to the United States Supreme Court in the last decade.

Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, is the first and most important of the three decisions. The affidavit in that case had recited merely that “Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates, and other narcotics . . . are being kept at the above described premises.” 378 U.S. at 109, 84 S.Ct. at 1511. In holding this affidavit insufficient to support a magistrate’s finding probable cause, the Court established what has become the basic standard for determining when a search warrant may issue on information received from a confidential informer. The Court said:

[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citations omitted], was ‘credible’ or his information ‘reliable’.

378 U.S. at 114, 84 S.Ct. at 1514.

This test is typically referred to as “Aguilar’s two-pronged test.” Spinelli v. United States, 1969, 393 U.S. 410, 413, 89 S.Ct. 584, 587, 21 L.Ed.2d 637, 642. See United States v. Mendoza, 5 Cir. 1970, 433 F.2d 891; Gonzalez v. Beto, 5 Cir. 1970, 425 F.2d 963; United States v. Marihart, 8 Cir. 1972, 472 F.2d 809, 811; Note, The Supreme Court— 1970 Term, 85 Harv.L.Rev. 40, 55 (1971). The first “prong” requires that the affidavit disclose particular facts or circumstances which justify concluding that the informant is a reliable or trustworthy person. The second requires specific facts or circumstances tending to demonstrate that the informant, in the instance in question, had gathered his information in a reliable manner. The theory underlying these twin requirements is that they are dictated by the long-standing principle that determinations of probable cause are to be made by “neutral and detached magistrate [s],” rather than by “officer[s] engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 1948, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 2 L.Ed. 436, 440. If a magistrate accepted an affidavit which did not meet the first prong of the test, the theory went, he would abandon to the officer his constitutional function of making an independent determination; for his determination would then be entirely dependent upon the officer’s judgment of the informant’s credibility. Similarly, if he accepted an affidavit not meeting the second prong, he would abandon his function to the informant; then his determination would depend entirely upon the informant’s judgment about the facts of the case. See Aguilar v. Texas, 1964 378 U.S. 108, 114-115, 84 S.Ct. 1509, 12 L.Ed.2d 723; United States v. Harris, 403 U.S. 573, 590-591, 91 S.Ct. 2075, 2084, 29 L.Ed.2d 723, 738 (Harlan, J., dissenting).

This test was reaffirmed five years after Aguilar in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Spinelli involved the reversal of a conviction for travelling interstate with the intention of conducting gambling activities which violated state law. The description of the informant’s tip was a bald statement that a confidential informant had told police that gambling paraphernalia would be found in the premises to be searched. That statement was of course no more detailed or illuminating than the one held inadequate in Aguilar. But the affidavit had detailed other supposedly corroborating information gathered by the independent investigative efforts of the police. The Court ruled that the tip, ‘ though in itself insufficient under Aguilar to constitute probable cause, might be assessed along with other allegations in the affidavit in evaluating the magistrate’s finding. But it held that in the case before it there was nothing in the other parts of the application “which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed,” 393 U.S. at 418, 89 S.Ct. at 590, and so struck down the defendant’s conviction. The aspect of Spi-nelli most significant for our purposes is the stress it laid on the second prong of the Aguilar test, the requirement of details concerning the way the informant gathers his information. Justice Harlan’s opinion for the Court suggested that this prong was if anything more important than the first. Justice Harlan repeatedly emphasized the need for the affidavit to provide either “a statement detailing the manner in which the information was gathered,” or, failing that, a “descri [ption of] the accused’s criminal activity in sufficient detail that the magistrate may know he is relying [upon] something more substantial than a casual rumor circulating in the underworld.” 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed. at 643-644.

The final case in the trilogy is United States v. Harris, 1971, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723. In Harris the Supreme Court upheld the validity of the search. The affidavit related that a confidential informant whom the affiant regarded as “prudent” had reported that over a period of two years, and most recently within the two weeks preceding the time of the affidavit, he had purchased illicit whiskey at the premises to be searched, and that he had personal knowledge that liquor on which taxes were not paid was kept there. In Harris it was apparent that the allegations of the informant’s purchases and of his personal knowledge sufficed to meet the requirements of the second prong of the Aguilar test. The difficulty was whether the first prong, the requirement of details supporting a conclusion that the informant was credible, was met. The Court found that it was, on the basis of a cumulation of four different circumstances. These were: (1) the allegation of the affiant that he regarded the informant as “prudent”; (2) the detail provided in the tip; (3) the fact that the affidavit also alleged that the accused had a reputation for being a trafficker in nontaxpaid liquor; and (4) the fact that the information given, with the allegations of the informant’s purchases, was a declaration against the informant’s penal interest.

Given the doctrines inherited from this line of cases, it takes little strain to see why the affidavit in this case is insufficient. For the affidavit here offers virtually nothing which might meet the second prong of the Aguilar test: it, like the affidavit in Spinelli, utterly “fail[s] to set forth any of the ‘underlying ■ circumstances’ necessary .to enable the magistrate independently to judge of the validity of the informant’s conclusions.” 393 U.S. at 413, 89 S.Ct. at 587. The only two items in the affidavit which even may be called specific details — the allegation that the informant had given fruitful information before, and the allegation that he was “familiar” with El Paso narcotics traffickers — both appear to be addressed only to the question of the informant’s personal reliability; neither in any way answers questions about the way the informant acquired the particular information he related to the agents. Nor do we find in this affidavit a description of criminal activity with anything approaching the detail Spinelli and Harris suggest might suffice to meet Aguilar’s second requirement. The only detail related is that- the marijuana was to be moved within 24 hours. That can hardly be said to fit under the language in Spinelli calling for “sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld,” 393 U.S. at 416, 89 S.Ct. at 589, 21 L.Ed. at 643-644. Thus the conclusion appears inescapable to us that Officer DeHoyos’ affidavit did not meet the second prong of the Aguilar test.

Reversed.

      . Chavez, Barraza-Acevedo, Escobedo, and Campos are the four appellants here. Keyes is not a party to this appeal, because the jury was unable to reach a verdict hs to him, and he was therefore not convicted of any offense. A sixth man, Raul Salas, was found in the house at the time of the search. Salas was not with the defendants in the living room, but rather was found in the kitchen. Salas was not indicted by the grand jury which indicted the other five men on September 11, 1972, and he was not brought to trial with them.

      . See Spinelli, 393 U.S. at 415, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar, 378 U.S. at 110-111, 84 S.Ct. 1509, 12 L.Ed.2d 723. See also Byars v. United States, 1929, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Giordenello v. United States, 1957, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1509; United States v. Lefkowitz, 1931, 285 U.S. 452, 464, 52 S.Ct. 420, 423, 76 L.Ed. 877, 882.

      . The American Law Institute’s Model Code of Pre-Arraignment Procedures, Off. Draft No. 1 (1972) states the test as follows:
      Section 201 “Contents of Application. The application shall describe with particularity the individuals or places to be searched and the individuals or things to be seized, and shall be supported by one or more affidavits particularly setting forth the facts and circumstances tending to show that sucli individuals or things are in the places, or the things are in possession of the individuals, to be searched. If an affidavit is based in whole or in part on hearsay, the affiant shall set forth particular facts bearing on the informant’s reliability and shall disclose, as far as practicable, the means by which the information was obtained.” The explanatory note to this sub-section points out: “In Subsection (3) the word ‘particular’ has been added to qualify ‘facts’ and ‘practicable’ has been substituted for ‘possible.’ The second sentence embodies special requirements of particularity with respect to hearsay affidavits, in line with such decisions as Aguilar v. United States, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964) and Spinelli v. United States, 393 U.S. 410 [89 S.Ct. 584, 21 L.Ed.2d 637] (1969).” The Commentary explains: “The Bym-s case and others in its wake have indicated the Court’s disapproval of conclusory statements in the affidavits. The question of probable cause vel non must be decided on the basis of what is put before the magistrate, and he must be given enough to make up his own mind, and not have to rely on the applicant’s judgment. Hearsay evidence which would not be admissible in evidence at the trial may be considered, but in that event the affiant must set forth the grounds for treating the hearsay as credible. 1[ It is around the matter of hearsay leads or tips from ‘informers’ that the Court has recently been divided. From the opinions one may gather at least two desiderata: (1) that the affiant state the grounds for his belief that the informer is reliable, and (2) that the affiant indicate how the informer acquired his knowledge. The last sentence of Section (3) embodies those criteria.”

      . The appellants assert three other grounds for reversal. They claim that certain of the prosecutor’s arguments to the jury were incurably prejudicial, that the trial judge erred in certain remarks he made in his charge to the jury, and that verdicts of acquittal should have been directed on the ground that the defendants as a matter of law could not have been held to have been in possession of the marijuana. Our holding on the question of the search makes it unnecessary for us to decide any of these points.


author: CLARK, Circuit Judge: SIMPSON, Circuit Judge ALDRICH, Senior Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lee SKIPWITH, III, Defendant-Appellant.
    No. 72-1932.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.

      Herbert P. Sterling, Tampa, Fla., Court-appointed, for defendant-appellant.
    John L. Briggs, U. S. Atty., William M. James, Jr., Asst. U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   CLARK, Circuit Judge:

As a result of an airport security search which discovered not weapons but drugs, Lee Skipwith III was charged with and convicted of the possession of cocaine in violation of 21 U.S.C. § 844(a). He contends here that the evidence should have been suppressed, arguing that the search was unconstitutional. We hold that the search was lawful and that the contraband uncovered by it was properly admitted in the court below; thus we affirm.

On May 19, 1971, the defendant presented himself for boarding at the Eastern Airlines boarding gate at the Tampa International Airport, a place at which he knew or should have known he was subject to being searched. Because he met the F.A.A. anti-skyjack profile and stated he had no identification, the Eastern boarding agent detained him and called in a deputy United States marshal. The marshal, Rodriguez, asked the prospective passenger his name. The response was “S. Jackson.” This name corresponded to the name on the ticket which the defendant presented. Upon further inquiry, the defendant informed the marshal that he had no identification. The marshal thereupon inquired as to whether a billfold-shaped bulge which was visible in the left rear pocket of defendant’s tight-fitting trousers contained any identifying papers. Defendant acknowledged that the bulge was produced by a wallet, but insisted that there were no identifying papers in it since he had left his identification in St. Petersburg. The marshal insisted that he produce the wallet. Skipwith then confessed: “That [S. Jackson] isn’t my name. That’s my traveling name. My true name is Skipwith.” With this disclosure, the marshal directed Skipwith to come with him to a private office. On the way to the office, another deputy marshal, Hardman, called Rodriguez’ attention to a visible bulge in Skipwith’s right front trouser pocket which was about three inches long and two inches thick. In the office Rodriguez examined the wallet and determined that it contained identification papers bearing the name Lee Skipwith III. According to Rodriguez’ testimony, Skipwith was very nervous and appeared to be under the influence of either alcohol or some other drug. Rodriguez then ordered Skipwith to stand up and empty his pockets. Rodriguez testified that he “was inclined to believe that he had a gun in that pocket.” Instead, the search revealed a plastic bag containing some white powder which was later determined to be cocaine.

I.

This court has recently discussed the permissible scope of airport searches in United States v. Moreno, 475 F.2d 44 (5th Cir. 1973). In that case the court held that suspicious activity by the defendant, a ticketed passenger, in the airport lounge area and en route toward a boarding gate made the security officers’ search of the defendant’s person a reasonable one. Relying on the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the court weighed the competing interests of law enforcement in the context of the present air piracy problem against the rights of individuals using the airport; it concluded that airport searches designed to protect the heavy volume of interstate and foreign travel by air could be conducted under a less stringent standard than ordinary probable cause because of the unique circumstances of time and place.

In Moreno constitutional reasonableness was found in suspicious activity by a ticketed passenger headed toward a boarding gate but still in the general airport area. Today we are called upon to apply the same standard of reasonableness to a situation factually unlike Moreno. Here the defendant, Skipwith, had actually presented himself at the boarding gate as a potential passenger. He could not have been where he was to look around, to greet friends or relatives or to say farewell. His only reason for being there had to be to board the aircraft. Because of the widespread publicity given to the government’s efforts to cope with the piracy of aircraft, it was general knowledge that citizens boarding planes were subject to special scrutiny and to weapon searches. Unlike Moreno or Legato the officer did not go to Skipwith and stop and search him at a point where such a procedure was extraordinary or unexpected. Rather, Skipwith came to the specific part of the airport where he knew or should have known all citizens were subject to being searched.

Since Skipwith exhibited characteristics which corresponded to the F.A.A.’s likely skyjacker profile, it may be that this was all that was needed to validate his detention and search here. Undoubtedly this profile, developed from a distillation of characteristics attributable to previous skyjackers, is a valuable and useful tool in the hands of the airport security officers. However, the factual matrix of the case at bar makes it unnecessary for us to decide whether an airport search based on the profile alone would satisfy the test of reasonableness in all cases.

The government contends that, in light of the magnitude of the perils created by air piracy, searches of boarding passengers are controlled by the same standard applied to customs searches at the national border — mere or unsupported suspicion. Bitter experience has taught us that the physical dangers of mass kidnapping and extortion posed by air piracy are even greater than the dangers against which the usual border search is directed. Necessity alone, however, whether produced by danger or otherwise, does not in itself make all non-probable-cause searches reasonable. Reasonableness requires that the courts must weigh more than the necessity of the search in terms of possible harm to the public. The equation must also take into account the likelihood that the search procedure will be effective in averting the potential harm. On the opposite balance we must evaluate the degree and nature of intrusion into the privacy of the person and effects of the citizen which the search entails.

lit undertaking our calculation of the weight to be accorded to these three factors in the case at bar — public necessity, efficacy of the search, and degree of intrusion — we need not reiterate what was said in Moreno about the dangers posed by air piracy; suffice it to say that there is a judicially-recognized necessity to insure that the potential harms of air piracy are foiled. The search procedures have every indicia of being the most efficacious that could be used. The group being screened is limited to persons with the immediate intention of boarding aircraft. Metal detectors, visual inspection, and rare but potential physical searches appear to this court to provide as much efficiency to the process as it could have.

On the other side of the judicial scales, the intrusion which the airport search imposes on the public is not insubstantial. It is inconvenient and annoying, in some cases it may be embarrassing, and at times it can be incriminating. There are several factors, however, which make this search less offensive to the searched person than similar searches in other contexts. One such factor is the almost complete absence of any stigma attached to being subjected to search at a known, designated airport search point. As one commentator has put it in the border search context, “individuals searched because of their membership in a morally neutral class have less cause to feel insulted. . . . ” In addition, the offensiveness of the screening process is somewhat mitigated by the fact that the person to be searched must voluntarily come to and enter the search area. He has every opportunity to avoid the procedure by not entering the boarding area. Finally, the circumstances under which the airport search is conducted make it much less likely that abuses will occur. Unlike searches conducted on dark and lonely streets at night where often the officer and the subject are the only witnesses, these searches are made under supervision and not far from the scrutiny of the traveling public. Moreover, the airlines, which have their representatives present, have a definite and substantial interest in assuring that their passengers are not unnecessarily harassed. The officers conducting the search under these circumstances are much more likely to be solicitous of the Fourth Amendment rights of the traveling public than in more isolated, unsupervised surroundings.

Our conclusion, after this tripartite weighing of the relevant factors, is that the standards for initiating a search of a person at the boarding gate should be no more stringent than those applied in border crossing situations. In the critical pre-boarding area where this search started, reasonableness does not require that officers search only those passengers who meet a profile or who manifest signs of nervousness or who otherwise appear suspicious. Such a requirement would have to assume that hijackers are readily identifiable or that they invariably possess certain traits. The number of lives placed at hazard by this criminal paranoia forbid taking such deadly chances. As Judge Friendly has stated:

Determination of what is reasonable requires a weighing of the harm against the need. When the object of the search is simply the detection of past crime, probable cause to arrest is generally the appropriate test. When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.

United States v. Bell, 464 F.2d 667, 675 (2d Cir. 1972) (concurring) (footnote omitted). Thus, while Moreno established that searches of certain persons in the general airport area are to be tested under a case-by-case application of the reasonableness standard, we hold that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion.

The distinction we draw between a person entering any specific area- — here the boarding gate — where searches are regularly conducted and one like Moreno who was in an airport restroom is analogous to that drawn in United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973). There the court pointed out the distinction between searches made at the nation’s borders and those which are made within the interior of the country. “Searches in this undefined zone [remote from but near the border] must be reasonable upon all of the facts, one consideration being the proximity of the search to an international border. . When acting in this expanded border search area, the customs agents must have a ‘reasonable suspicion’ that the customs laws are being violated.” 475 F.2d at 1362. Searches at the border proper, on the other hand, may be conducted “where there is a ‘mere suspicion’ of possible illegal- activity.” 475 F.2d at 1361. The logic which supports the application of this border search distinction to the standards governing airport searches is readily apparent. The public is assured that the net can sweep no wider than necessary since the broad right to search is limited to the last possible point in time and space which could protect the aircraft, the boarding gate (or secure corridor entrance). Thus, no mere passerby will be subjected to this search — only those in the act of boarding planes could be involved. The merits of Skipwith’s claim that this particular search would have been unreasonable before he passed the locus poeni-tentiae — the point at which he presented himself as a passenger for boarding— are hypothetical. There is simply no need to determine whether this search satisfied the Morewo-established standard for airport area searches, because Skipwith had presented himself as a prospective passenger at the boarding gate.

Skipwith further contends that even if some search were justified, the search actually undertaken exceeded the scope of the justification. He argues that the officer was constitutionally limited to conducting a frisk or pat-down for weapons rather than demanding that he empty his pockets. As Moreno pointed out, however, a hijacker’s arsenal “is not confined to the cumbersome gun or knife; for modern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube. A detonator planted in a fountain pen is all that is required to set it off. . . . It is in this context that we must assess the constitutionality of the search. . . .” 475 F.2d at 49. The range and variety of devices real and simulated which can be used to intimidate the crew of an aircraft when it is aloft are almost limitless. The airport security officer has to be alert for all of them. Marshal Rodriguez was justified in undertaking a search with sufficient scope to reveal any object or instrumentality that Skipwith could reasonably have used to effect an act of air piracy. Here the search object — which created a three-inch-long, two-inch-thick bulge— was clearly within that limit.

Moreover, Judge Simpson and I fully concur in that part of Judge Aldrich’s opinion which holds that Skip-with’s right-to-leave argument is devoid of merit. Thus, this court expressly declines to follow the rule announced in United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972). Cf. United States v. Legato, supra, 480 F.2d at 413 and n. 8.

II.

Skipwith contends that, even if a weapon discovered during his search could have been introduced into evidence, the cocaine should have been excluded since the search was not and could not have been conducted for the purpose of discovering illicit drugs. In light of Judge Aldrich’s dissent, it is appropriate to discuss more fully than would otherwise be indicated our holding that the product of this valid search was properly admitted into evidence.

Under the pressure of a search for truth and in light of a growing skepticism as to both its necessity and efficacy, the exclusionary rule is waning, not waxing, in the law today. See, e. g., Wright, Must the Criminal Go Free if the Constable Blunders? 50 Tex.L.R. 736 (1972). “Proper adjudication of cases in which the exclusionary rule is invoked demands a constant awareness of [its] limitations.” Terry v. Ohio, supra, 392 U.S. at 14, 88 S.Ct. at 1876; United States v. Ragsdale, 470 F.2d 24, 30 (5th Cir. 1972). The strictures of the Fourth Amendment protect the citizen from unwarranted and unreasonable intrusion by the government on his person or into his effects. The rule excluding the admission of illegally obtained evidence was designed to effectuate this purpose by removing the principal incentive to conduct illegal searches. The rule does not exist because the evidence is not probative, or to chastise errant law officers, or to benefit the accused.

While the force of Judge Aldrich’s admonition that “due process demands that the imposition on the citizen be no greater than the occasion requires” cannot be disputed, it is important to note that the imposition which must be considered is the intrusion on a citizen’s right to be free of unreasonable searches, not upon any right to be free of criminal prosecution. Certainly the imposition of a criminal penalty for possession of drugs found during an airport search will burden the one on whom it is imposed; constitutionally speaking, however, he has suffered only the same intrusion as other passengers who were searched. Although the discovery of cocaine in a search for weapons may be unexpected by the government, there is nothing in the Constitution that gives the apprehended felon a right to complain because the product of the protective action was not anticipated. Such a result cannot properly be classified as a windfall. It is the product of valid police work. The government has no duty to catch a carrier of dope sportingly or aecoi'ding to any game book rule. Nor is it material whether the circumstances leading to the discovery of the cocaine were of the defendant’s making; all that matters is that the search be legally conducted.

We are asked to exclude the evidence of crime obtained in a concededly valid seach in order to enhance the overall reasonableness of the search procedure. The basis on which we are urged to adopt this would-be exception to the general exclusionary rule is that the relaxed standards of airport searches require a different calculus in evaluating their purpose. It is said that in airport search situations, where relatively inflexible probable cause is displaced by its more mutable concomitant — reasonableness'— as the standard validating the search, the real utility of the exclusionary rule lies not in discouraging illegal searches, for there are relatively few of those, but rather in discouraging the pretextual search — that is, the search outwardly appearing to be conducted to discover weapons in the skyjacker’s arsenal which really seeks contraband or evidence for which only a warranted or probable cause search would be lawful. The basis for excluding any evidence other than skyjack weapons detected during desirable and necessary anti-piracy searches is that this exceptional exclusion will destroy the incentive for officers to conduct pretextual searches.

This argument has never been accepted by any court and it was just rejected by this court in Moreno and Legato in situations completely analogous to the one presented here. Even were the precedents not so clear, such a departure from the established rule is not justified. Assuming arguendo that a significant number of airport searches are actually conducted to discover evidence or contraband rather than skyjack weapons (a premise which has by no means been established), it does not follow that the suggested rule would be a significant deterrent of that behavior.

The exclusionary rule necessarily deters only those searches which have as their object the production of evidence for the purpose of conducting a successful criminal prosecution. The fact is, however, that searches may be and are conducted for other purposes. In the performance of their duty to apprehend, not prosecute, the searching officer may neither know nor care whether the offender is actually convicted. In addition, if we are to postulate that some significant number of pretextual airport searches are conducted, then we should also assume that officers may from time to time make searches and seizures for reasons other than those relating to criminal prosecution, perhaps to seize suspected contraband or with no purpose other than to harass certain individuals. Moreover, since the airport boarding gate search will usually be legally authorized, a declaration by the court that certain of its fruits are inadmissible will carry with it neither the moral censure nor the threat of disciplinary action or civil suit implicit in a judicial application of the conventional exclusionary rule, where the court’s adjudication that the evidence is inadmissible also amounts to a determination that the officer exceeded his authority. Thus, in reckoning what could be, it seems most likely that the proposed rule would have very little deterrent effect on a pretextual airport search. Without the slightest intent to approve any misuse of airport search authority, we must recognize that “a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule.” Terry v. Ohio, supra, 392 U.S. at 14, 88 S.Ct. at 1876, 20 L.Ed.2d 889.

Professor Wright’s observation on the efficacy of the exclusionary rule in general is particularly pertinent to its proposed application here.

[I]t can be fairly said of the Exclusionary Rule that it cannot be proved to have a significant deterrent effect and this effect is not so inherently likely that we can assume it to exist in the absence of proof.

50 Tex.L.R. at 741. Were there no societal costs in adopting the rule contended for, the speculative possibility that some undesirable searches would be discouraged might justify its imposition. The fact is, however, that the rule would allow a significant number of crimes to go unpunished though the authorities may have lawfully obtained all of the evidence necessary to establish the guilt of the offenders. The unproven potential of this variant on the exclusionary rule simply does not justify the public detriment in allowing this class of criminals to go unconvicted.

No one can gainsay that airport searches are annoying. Certainly all citizens look forward to the day when skyjackings and their sequels, airport search and security measures, cease. When the threat of air piracy disappears the standards of reasonableness which we here recognize will go with it. Until that time arrives, however, the portent for evil supplies the requisite Fourth Amendment reasonableness to justify the search of any person who presents himself at a boarding gate to enter an aircraft.

In light of our holdings that the search was valid and that there was no error in the admission into evidence of the contraband discovered, the conviction of Lee Skipwith III is

Affirmed.

SIMPSON, Circuit Judge

(concurring specially):

I concur in the disposition of this ease reached by Judge Clark’s opinion,, that the conviction stand affirmed.

If free to do so, I would adopt Judge Aldrich’s proposal that we refuse to permit the contraband seized to become the basis for prosecution. The protection of the travelling public from attempts at skyjacking demands that courts allow airport guards wide discretion in searching prospective passengers. Because this is so and to forestall abuse of that discretion by pretextual searches we should adopt a rule that forbids the evi-dentiary use of contraband other than weapons turned up as a by-product of such searches. In a word, I believe that Judge Aldrich’s position is both sound and salutary.

But I consider that while not directly, certainly by implication, our recent Moreno and Legato cases have rejected this approach. Moreno and Legato approve the use of contraband diseov-ered in an airport search of a prospective passenger for a weapon as the basis for conviction of possession of the contraband. Any holding that the contraband here although subject to seizure and condemnation should not have been made the basis for a conviction, is I think forbidden by Moreno and Legato.

Thus, while I would follow Judge Ald-rich’s solution if free to do so, I am constrained by Moreno to concur in the result reached by Judge Clark.

ALDRICH, Senior Circuit Judge

(dissenting) :

I recognize and approve the Fifth Circuit practice of regarding as binding precedent prior decisions of other panels. It does not, however, seem to me to forbid that I, as a visiting judge, vocalize dissent on a matter of general importance. Present day airport search affects such a large number of persons, country-wide, that I wish to record my reasons for differing with the Fifth Circuit rule announced, without discussion, in United States v. Moreno, 1973, 475 F.2d 44, and United States v. Legato, 1973, 480 F.2d 408, and followed here, that Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, authorizes the use of extraneous materials not within the purpose of the search, but fortuitously discovered in the passenger’s possession, to support a criminal prosecution. I fully agree with the court’s weighing of values to conclude that the search itself was authorized, but I feel that a more exact assessment should dictate an additional conclusion, namely, that viable use (I am not speaking of mere confiscation) should not be made of proceeds towards which the search was not, and could not have been independently, directed.

There can be no question, of course, as to the object of the search, or of the limited justification. The passenger was not under arrest, opening him to a total examination. Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. He had done nothing as an individual to afford probable cause for interfering with his right of privacy, but was merely exercising his constitutional right to travel, Shapiro v. Thompson, 1969, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600, in a manner he had a right to. As the Court has said of the Terry pat-down, “The purpose of this limited search is not to discover evidence of crime.” Adams v. Williams, 1972, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612. The general occasion justified the search, but no conduct of the defendant, and no governmental need, called for the government to receive a windfall.

In this circumstance I believe that while the peculiar nature of the social hazard justifies the search, due process demands that the imposition on the citizen be no greater than the occasion requires. We should take literally the caveat in Terry, “seizure and search [must be] reasonably related in scope to the justification for their initiation.” 392 U.S. at 29, 88 S.Ct. at 1884 (emphasis suppl.) See New York v. Sibron, 18 N.Y.2d 603, 605-608, 272 N.Y.S.2d 374, 219 N.E.2d 196 (Van Voorhis, dissenting), rev’d, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.

There is both a private and a public reason for this. As to the first, not only does it seem unfair for the government to profit from a circumstance that was none of the defendant’s making, but no hope of striking it rich should serve to lure the agent into a broader search than he would have chosen to make had hijacking materials been his maximum objective. Where special circumstances are allowed to reduce the ordinary conditions precedent to a lawful search there should be special safeguards to see that the opportunity is not abused. See New York v. Sibron, supra, 18 N.Y.2d at 605-608, 272 N.Y.S.2d 374, 219 N.E.2d 196. I believe the same prophylactic principle that dictates exclusion of property unlawfully seized, Mapp v. Ohio, 1961, 367 U.S. 643, 657-659, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Elkins v. United States, 1960, 364 U.S. 206, 217-218, 80 S.Ct. 1437, 4 L.Ed.2d 1669, should be employed to temper possibly overzealous airport searches. Such a rule would not only limit the decision to make, and the extent of, searches to what the justification permitted in the first place; it would isolate the procedure and guarantee to the public that the government is not using airport search procedure for other purposes, an offensive thought to any innocent person suffering the inconvenience.

Returning to United States v. Moreno, and United States v. Legato, supra, I cannot agree that my suggestion runs counter to Terry. In Terry the prosecution was for the sought-after weapon itself. In the companion case of New York v. Peters, 1966, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, aff’d sub nom. Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, where burglars’ tools, rather than a weapon, were found, the Court was careful not to decide the present question, pointing out that prior to the search there had been probable cause for arrest for attempted burglary, adequately justifying the seizure of the tools. It is true that I am advocating an unusual and narrow rule, but we are faced with an unusual and narrow justification for governmental interference.

Finally, if the foregoing is not to be supported, I do not accept defendant’s contention that, once he had reached the point of embarkation where inquiry and possible search procedures were openly in operation, he could choose to withdraw if he found the inquiry addressed to him not to his liking. United States v. Meulener, C.D.Cal., 1972, 351 F.Supp. 1284. The reasoning in Meulener, that if he then changed his mind, and elected to leave, “he would pose no danger to the passengers and crew on the aircraft,” 351 F.Supp. at 1289, greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts. Established search procedures are perhaps more valuable by what they discourage than by what they discover. I see no constitutional requirement, where a defendant knew by objective signs that he was incurring the possibility of a search, that he should thereafter be allowed to play- heads-I-win, tails-you-lose.

      . Even more recently this court followed Moreno in United States v. Legato, 480 F.2d 408 (5th Cir. 1973). In Legato the court held that suspicious conduct and an informer’s tip justified the airport parking lot search of one who had been to the boarding area but at the time of the search was apparently preparing to get into a car and leave the airport.

      . See United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971).

      . The fact that one is in the process of crossing an international boundary provides sufficient reason in itself to permit a search for aliens or contraband, without the presence of any other circumstances that would normally have to attend the requirements of the Fourth Amendment.
      United States v. McDaniel, 463 F.2d 129, 132 (5th Cir. 1972).

      . For example, no court has ever approved a dragnet search of all citizens in a high-crime area of any urban center, based upon the ’justification that the danger of criminal conduct would be reduced.

      . The record in this case contains no direct proof of results of such procedures, but it is a matter of general knowledge that the incidence of air piracy has dramatically decreased since the institution of stricter airport security measures at the beginning of 1973.

      . Note, Border Searches and the Fourth Amendment, 77 Yale L.J. 1007, 1014 (1968).

      . As Judge Aldrich points out in his dissent, the majority opinion in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the companion case to Terry, did not reach the issue of the admissibility of contraband seized during a Terry self-protective search. However, the three separate opinions of Justices White, 392 U.S. at 69-70, 88 S.Ct. at 1905, Harlan, 392 U.S. at 79, 88 S.Ct. at 1910, and Black, 392 U.S. at 79-80, 88 S.Ct. at 1910-1911, assumed it would have been admissible as a matter of course.

      . United States v. Moreno, 475 F.2d 44, 5 Cir. 1973.

      . United States v. Legato, 408 F.2d 480, 5th Cir. 1973.

      . While the Profile is said to be remarkably inclusive as an identifier, in camera inspection thereof suggests that many innocent persons might fit it exactly. And if the defendant revealed minor grounds for suspicion after the agent demanded his wallet, unless the demand was a priori justified it is axiomatic that the reaction to it could not supply justification ex post facto. Sibron v. New York, 1968, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917; Henry v. United States, 1959, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436.

      . See, also, The Fourth Amendment and Housing Inspections, 77 Vale L.J. 521, 535 (1968), where the same suggestion was made with respect to blanket housing inspections justified only by “group probable cause.” Camera v. Municipal Court, 1967, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.

      . As one commentator has stated, “Where the policeman claims to have felt a hard object in the defendant’s pocket which may have been a knife but, upon delving into the pocket, he discovers some other type of contraband, [it may be] difficult to prove that the initial inference was an unreasonable or dishonest one, or that, in searching for the ‘knife’, the policeman conducted too extensive a search of the pocket.” The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 185-86.