author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Nelson Bunker HUNT and W. Herbert Hunt, Defendants-Appellees.
    No. 74-1142.
    United States Court of Appeals, Fifth Circuit.
    Dec. 23, 1974.

      Frank McCown, U. S. Atty., Fort Worth, Tex., Richard Stephens, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellant.
    Philip J. Hirschkop, Alan J. Oilman, •Alexandria, Va., Ralph B. Shank, Dallas, Tex., Travis D. Shelton, Lubbock, Tex., for defendants-appellees.
    Before RIVES, GEWIN and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case presents a troublesome question of standing to contest the legality of a police search and seizure of certain instruments of electronic surveillance allegedly employed by brothers Nelson Bunker Hunt and W. Herbert Hunt against a group of their own relatives and some employees of their father, H. L. Hunt. After indictment on charges of wilfully, knowingly and unlawfully intercepting and endeavoring to intercept wire communications of certain persons in violation of 18 U.S.C. §§ 2511(1) (a) and (2), defendants filed a motion to suppress the disputed evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure. After a hearing, the district court concluded that defendants had standing to contest the search and seizure and that a part of the search was in fact illegal, and accordingly granted the motion to suppress. Since we find no warrant in the Fourth Amendment for surrogate privacy, we believe that the district court erred in finding a sufficient nexus between the search and defendants’ Fourth Amendment rights to confer standing to contest the police action. We must reverse.

Sometime in late October or early November, 1969, the defendant Hunt brothers allegedly contacted one Everett, the president of a Houston, Texas, private investigation agency, regarding the possibility of employing his agency to perform electronic surveillance of certain residences in Dallas, Texas. The Hunts purportedly represented to Everett that they had been the victims of extensive embezzlement and desired to obtain information concerning suspected employees. Everett contacted McCann, an electronics expert, and asked him to travel to Dallas to make an estimate of the job requirements and costs. When McCann returned to Houston and reported his findings, Everett contacted the Hunts and the deal was consummated.

The electronic surveillance operation required the use of tape recorders and tapes, which McCann purchased at retail stores, and certain other paraphernalia, including telephone transmitters, most of which McCann manufactured himself. McCann engaged a man named Watson to install some of the electronic equipment on strategically-located telephone poles and in various rental automobiles which were parked on a rotated basis outside the target houses. McCann and Kelly, an employee of Everett’s detective agency, worked in Dallas throughout late December, 1969, and early January, 1970, rotating the automobiles which McCann and Kelly would rent, use and then return to the various rental agencies. The pair also changed the tapes when necessary, “condensed” the original tapes — edited out extraneous telephone conversations — and gave the master tapes to defendants. McCann returned to Houston on or about January 9, and at some point thereafter, Everett presented defendants with a bill for all expenses incurred by McCann, Kelly and Watson, including the cost of the equipment, auto rental fees and food and lodging expenses, and for the cost of the services of the three gentlemen. When defendants paid their bill, Everett sent them an itemized receipt. Everett later paid McCann, Kelly and Watson for their services and reimbursed them for their expenses.

The spectacle of strange automobiles appearing and remaining unattended for some hours before being removed and replaced by other strange unattended autos did not pass unnoticed in the quiet Dallas suburb of Richardson, Texas, where one of the “suspected” Hunt employees lived. An alarmed neighbor alerted the Richardson police to the unusual activity on January 9 and the police began to surveill the surveillers. On January 16, 1970, after the police investigation of the matter had turned up some very suspicious circumstances relating to the recent activities of McCann and Kelly, but before the police were able to decide whether the pair were involved in the narcotics trade, a burglary ring, or the investigation of an unpleasant divorce, a Richardson police officer observed Kelly enter a suspected auto and drive away. The officer followed and indicated to Kelly that he should pull over; Kelly promptly did so.

After a brief conversation, the officer walked over to Kelly’s vehicle, noticed a pile of newspapers on the floor, lifted the papers and discovered a tape recorder. He then arrested Kelly and the two men drove to a police station, where police officers proceeded to play one of the tapes without bothering to obtain a search warrant beforehand. The playing of the tape prompted an investigation which led to the indictment and conviction of McCann and Kelly on federal wiretap charges and to the indictment of defendants here.

The facts of the original search of Kelly’s car were recounted at length by this Court in United States v. McCann, 5 Cir. 1972, 465 F.2d 147, cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154, and need not be repeated here; suffice it to say that we found that the officer who searched the automobile had both Kelly’s consent to search and probable cause to do so. The defendants here claim that our decision in McCann suffered from a lack of certain evidence which they have now supplied — evidence which tends to indicate that Kelly did not consent to the search of the auto and that the officer had no probable cause to search the vehicle in any case. The district court below found otherwise, 366 F.Supp. 172, and concluded that the stop and search of Kelly’s auto were proper. The court also found, however, that the playing of the tape constituted a second search without a warrant, and that this search violated defendants’ Fourth Amendment rights. Applying the fruit of the poisonous tree doctrine, Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Silver-thorne v. United States, 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319, the district court ordered that “all evidence gathered as a result of the playing of the tape” be suppressed. 366 F.Supp. at 183. Since defendants have no standing to contest either search, we pretermit further discussion of the legitimacy of those searches.

I

The requirement that a litigant have “standing” to contest a particular lawsuit is based upon the metaphysical notion that, in our adversary legal system, a court must be very certain that the parties before it have “a personal stake in the outcome of the controversy,” Baker v. Carr, 1962, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663, 678, so that each side will represent its particular interests to the best of its abilities and thus afford the court a fully-informed choice between two clearly-stated alternatives. See Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. In practice, of course, things do not always work out that way; many individuals and groups who are genuinely interested in a given controversy may be unable to satisfy the traditional requirements for standing. For this reason, among others, the law of standing has been liberalized over the past decade in many areas to comport with the reality of litigant interest. See, e. g., Data Processing Service v. Camp, 1970, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184; Barlow v. Collins, 1970, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192; Flast v. Cohen, supra; Griswold v. Connecticut, 1965, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510. At the same time, the policies supporting a standing requirement have retained sufficient vitality to ensure that litigants must show more than a de minimis interest before they will be admitted into the courtroom. See, e. g., Sierra Club v. Morton, 1972, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636.

In some respects, the necessity of standing to object to unconstitutional searches and seizures is more anomalous than most standing requirements. The major rationale for the exclusionary rule, whereby evidence obtained in an unconstitutional manner may not be used in a criminal prosecution, is that only such a drastic means will effectively deter law enforcement officials from violating the Fourth Amendment rights of citizens. See Mapp v. Ohio, 1961, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. Given this premise, one might suppose that any citizen should be able to apprise the courts of unconstitutional searches and seizures; otherwise, policemen might in some cases break the law with impunity. However that may be, there is no precedent for not demanding standing to question a search. The courts have settled upon a requirement of some “standing” to contest Fourth Amendment violations, reasoning that the added deterrent effect of a “no standing” or minimal standing rule in search and seizure cases would be of slight social value in comparison with the large social cost imposed by criminals who would take advantage of such a rule. Although as an abstract proposition of law, the standing requirement might not have logical pri-mordialty, it does possess interpretative validity and solidity; it is not the case “that anything which deters illegal searches is thereby commanded by the Fourth Amendment.” Alderman v. United States, 1969, 394 U.S. 165, 174, 89 S.Ct. 961, 967, 22 L.Ed.2d 176, 187.

II

In order to determine the precise extent of the standing requirement as it applies in this case, we must first analyze just what demonstrable interests are requisite to standing; we must determine what individual rights and liberties the Fourth Amendment protects. It is often asserted that the Fourth Amendment’s function is to preserve and protect “the right of privacy” for all citizens. As is frequently the case with broad generalizations, this characterization says at once too much and too little. The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Amendment was enacted while the memory of British tyranny was fresh in the minds of the Founding Fathers. The British military had latterly become accustomed to taking whom or what they wanted at any time they wanted, and for any reason or no reason at all. This course of official conduct did not find favor with a generation of Americans which accounted the rights of personal liberty and private property as the most valuable and basic of human expectations. The rights of liberty (including the right of privacy) and of property were not as clearly differentiated in the minds of eighteenth-century Anglo-Americans as they are in modern estimation. Blackstone, for example, was of the opinion that property is the right to exclude, and American jurisprudence preserved this conceptual unity of privacy and property for Fourth Amendment purposes for a very long time.

In Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, the United States Supreme Court held that a federal statute compelling production of certain private papers was an unconstitutional “invasion of [the defendant’s] indefeasible right of personal security, personal liberty and private property” which struck at “the very essence of constitutional liberty and security”. 116 U.S. at 630, 6 S.Ct. at 532, 29 L.Ed. at 751. Boyd was an affirmation of the principle that some things cannot be searched or seized regardless of whether a proper procedure is followed, that a search of private papers is per se an “unreasonable search.” This doctrine of absolute immunity of certain types of personal property from search or seizure was not undone until 1914, when the Supreme Court, in Weeks v. United States, supra, adopted the exclusionary rule and substituted a concern for proper procedure for the former concern for the nature of the thing searched or seized. Even after Weeks, the philosophical legacy of Blackstone and Boyd was so firmly implanted in the collective consciousness of American courts that instrumen-talities of a crime could not be seized until 1921, Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, and “mere evidence” of a crime could not be seized until 1967. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.

The procedural revolution begun in Weeks has taught us that the Amendment builds no impermeable barrier between an individual’s person, house, office, automobile or strongbox and the outside world. If law enforcement officials follow the proper procedures to ensure that they can demonstrate sufficient interest in a particular person, place or thing, then they may seize and examine the object of their investigation.

Perhaps the fact that policemen can now, under the proper conditions, search and seize anyone or anything has compelled the courts to make a careful study of which search procedures are repugnant to those widely-held concepts of personal security and dignity which have been subsumed into the “right of privacy.” It is this study which led to Justice Stewart’s comment in Katz v. United States, 1967, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576, 582, that “the Fourth Amendment protects people, not places.” This part of the Fourth Amendment inquiry has required a determination, not of what privacy is —for everyone assumes agreement on that point — but of whether a given individual in a given situation could have a reasonable expectation of privacy in the particular place or thing searched. So it was that in Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the Supreme Court determined that an invitee had a cognizable privacy interest in preserving the apartment in which he was a guest from unlawful intrusion by the police. In Katz v. United States, supra, the Court ruled that an individual has a significant privacy interest in insulating his own telephone conversations from electronic monitoring, whether he makes his calls from his own home or from a public telephone booth.

If modern Supreme Court interpretations of the Fourth Amendment are dominated by the concept of the right of privacy, the Court has not foresworn an examination of property rights in order to determine the presence or absence of privacy interests. Although the Court announced in Warden v. Hayden, supra, that “[t]he premise that property interests control the right of the Government to search and seize has been discredited,” 387 U.S. at 304, 87 S.Ct. at 1648, 18 L.Ed.2d at 790, that same Court determined two years later in Alderman v. United States, supra, that an individual’s property interest in his own home was so great as to allow him to object to electronic surveillance of conversations emanating from his house, even though he himself was not a party to those conversations.

In summary, although the right of privacy has been the major theme of modern Fourth Amendment jurisprudence, the property rights rationale cannot be ignored altogether. Perhaps it would not be too much to say that the continuing concern with property rights is prompted by the realization that an individual often has a very reasonable expectation of privacy in his private property, and that it is this expectation which the Fourth Amendment protects. There may be a cognizable Fourth Amendment interest in the absence of a traditional property right, but it is almost certainly true that property rights cannot support a Fourth Amendment claim in the absence of a reasonable expectation of privacy in the property involved. Such an analysis would go far in explaining the Court’s tendency in the last fifteen years to discard traditional property concepts in search and seizure cases where, as in Jones, Hayden and Katz, those concepts seem no longer to reflect modern expectations of privacy in the place or thing in question, and the willingness of the Court to rely on those same property concepts where, as in Alderman, the common law continues to reflect modern ideas of personal dignity and security.

Ill

We have discussed the logical and constitutional bases of the standing requirement in Fourth Amendment cases; we now address ourselves to an examination of the case law on the subject. Since this action comes to us in the posture of an appeal of an order suppressing evidence pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, we begin with an exposition of that Rule, which provides in pertinent part that:

A person aggrieved by an unlawful search and seizure may move the district court . . . for the return of the property and to suppress for the use as evidence anything so obtained on the ground that (1) the property was illegally seized without a warrant .

The Supreme Court held in Jones v. United States, supra, that in order to qualify as a “person aggrieved by an unlawful search and seizure” for purposes of Rule 41(e), “one must have been a victim of a search and seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” 362 U.S. at 261, 80 S.Ct. at 731, 4 L.Ed.2d at 702.

Since Jones, the development of the law of standing in Fourth Amendment cases has turned on whether the defendant in question was a “victim” of the search, the “one against whom the search or seizure was directed.” Generally, a defendant satisfies the standing requirement if he has an adequate possessory interest in the place or object searched to give rise to a reasonable expectation of privacy. Ownership usually constitutes such an interest, United States v. Banks, 5 Cir. 1972, 465 F.2d 1235, cert. denied, 409 U.S. 1062, 93 S.Ct. 568, 34 L.Ed.2d 514, but a reasonable expectation of privacy in the enjoyment of a place or object may attach where there is little or no proprietary interest. In Jones, for example, the defendant was present as a common law “invitee” in the apartment of a friend, when police performed an illegal search of the apartment. The Court awarded the defendant standing even though his common law possessory interest did not amount to much, because he was legitimately on the premises, and thus had a privacy interest in the apartment. The Jones Court merely enunciated the unremarkable proposition that an individual may have a reasonable expectation of privacy in a place other than his own home. In this tradition, in Mancusi v. DeForte, 1968, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154, the Supreme Court found that an individual could reasonably expect freedom from governmental intrusion into his working area, even though he shared parts of an office with others. Conversely, a defendant cannot claim standing if he neither has a cognizable property interest in the place or thing searched, nor was present at the time of the search. United States v. McConnell, 5 Cir. 1974, 500 F.2d 347; United States v. Palazzo, 5 Cir. 1974, 488 F.2d 942; United States v. Sullivan, 5 Cir. 1973, 488 F.2d 138.

In Jones, the Court also created the doctrine of “automatic standing,” whereby, in a case where possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge admission of the evidence.

One of the most significant aspects of the law of standing in search and seizure cases, and one that clearly reflects the intensely personal nature of Fourth Amendment rights, is the rule that interpersonal relationships cannot make a “victim” of one who is not otherwise “one against whom the search or seizure is directed.” Generally speaking, the Fourth Amendment protects the “I” but not the “thou.” So it is that one spouse may not complain if the other is searched. United States v. Altizer, 5 Cir. 1973, 477 F.2d 846; but see Alderman v. United States, supra, 394 U.S. at 193-194, 89 S.Ct. at 977, 22 L.Ed.2d at 198 (Harlan, J., concurring in part and dissenting in part). Nor may one business partner assert an interest in the search of another partner solely on the basis of the partnership relation. United States v. Frick, 5 Cir. 1973, 490 F.2d 666. Finally, Alderman v. United States, supra, dictates that co-defendants and co-conspirators may not assert the Fourth Amendment rights of their alleged partners in crime solely on the basis of their interpersonal association, because Fourth Amendment rights are personal ones. See United States v. Sullivan, supra; Granza v. United States, 5 Cir. 1967, 377 F.2d 746. Since co-defendants and co-conspirators can often make out some semblance of a property right in the sorts of things that might be searched and seized from their cohorts, Alderman demonstrates once again the primacy of privacy in the modern Fourth Amendment schema.

The Supreme Court has recently restated the law of standing in search and seizure eases, in Brown v. United States, 1973, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208. In Brown, two defendants were convicted of conspiring with a third individual to transport stolen goods in interstate commerce. Evidence obtained from an allegedly unlawful search of the co-conspirator’s premises was admitted in the separate trial of the other two defendants. The Court, relying on Alderman, concluded that the disputed evidence was rightfully admitted against defendants, who alleged a pos-sessory interest in neither the premises searched nor the merchandise seized:

[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) had no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure . . . ” 411 U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed.2d at 214.

Although the rule of standing applied to the specific facts of Brown might appear at first glance to be somewhat more restrictive than previous formulations with respect to the search and seizure of objects, the Court’s later remark that defendants “failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized,” 411 U.S. at 229, 93 S.Ct. at 1569, 36 L.Ed.2d at 214 (emphasis added), clearly indicates that Brown conforms to the general rule of standing, and that the Court has not neglected the language in the Fourth Amendment concerning “papers, and effects.” See United States v. Groner, 5 Cir. 1974, 494 F.2d 499, cert. denied,U.S. -, 95 S.Ct. 331, 42 L.Ed.2d 285. Brown concisely states the rule of standing in Fourth Amendment cases: defendants must demonstrate a “legitimate interest” of some kind in the premises searched or the objects seized. That interest may or may not be founded on some common law proprietary interest; the decisive factor in determining whether a search or seizure is “reasonable” for Fourth Amendment purposes is whether the complaining party’s reasonable expectations of privacy have been unreasonably disturbed.

IV

Defendants here were not present at the search in question, nor are they charged with a possessory offense, so that they cannot claim either of those bases for standing. Rather defendants contend that they may contest the search on three other grounds: 1) their posses-sory interest in the seized tape recorders and tapes; 2) their agency relationship with McCann and Kelly; and 3) the prohibitions of the Texas search and seizure statute, coupled with the federal policy giving full effectuation to state exclusionary rules. We will examine these contentions in turn.

Defendants claim that their proprietary interest in the tape recorders and tapes is sufficient to bring them within the well-established rule conferring standing upon individuals having a possessory interest in the place or object searched or seized. Because their bill from Everett included the cost of every item seized, defendants claim title to every tape recorder and tape used in the operation. They point to the testimony of McCann and Everett at the suppression hearing below, to the effect that the equipment “belonged to . the Hunts,” as irrefutable evidence of their possessory interest in the electronic surveillance equipment. Finally, defendants rely on our recent decision in United States v. Banks, supra, for the proposition that legal title to an object always conveys standing to complain of a search thereof.

The first major difficulty with defendants’ argument is that their claim of ownership is a very tenuous one. The record demonstrates that Everett and McCann occupied a contractual position in relation to the Hunts that is very-close to the common law notion of an “independent contractor.” Defendants contacted Everett about doing a job for them; Everett consulted McCann, who determined how the job could best be completed and how much it would cost; the defendants agreed to the price proposed by Everett, and had no more to do with the operation until they paid the bill. Everett had already retained Kelly as an employee of his detective agency; McCann hired Watson as a specialist. McCann and Kelly purchased every item of equipment with their own financial resources, paid for every rental car, every motel room, every meal with their funds, and were reimbursed by Everett upon completion of the project. Defendants never saw any of the equipment, either during or after the operation, except for certain master tapes, none of which were taken in the disputed search and seizure.

Whether an individual is a servant or an independent contractor depends upon whether the employer has a right to control the details of the work, Strangi v. United States, 5 Cir. 1954, 211 F.2d 305; Newspapers, Inc. v. Love, Tex.1964, 380 S.W.2d 582, and the record does not show that the defendants at any time had any desire to interfere or could have interfered with the operation as planned by McCann and Everett and enacted by McCann, Kelly and Watson. The nature of the contractual relationship between Everett and McCann on the one hand and defendants on the other, makes defendants’ claim to ownership of the tape recorders and tapes a diaphanous one at best.

Whatever title defendants may possess in the disputed evidence, we cannot help but reflect that this discussion of master and servant law and legal title has taken us very far from the substance of Fourth Amendment rights. As we have indicated above, the constitutional right of protection against unreasonable searches and seizures attaches only when an individual’s reasonable expectation of privacy is shattered by illegal Government intrusion. Whatever minimal possessory interest defendants may have in the seized equipment, we have been unable to discern the slightest privacy interest that defendants could reasonably assert in objects which they have never seen and of whose particular existence they were unaware until after the disputed search and seizure. If Jones, Katz, Alderman and Brown teach us anything, they indicate that common law notions about proprietary relations offer no per se rules in search and seizure cases; a naked assertion of possessory interest may be indicative but cannot be dispositive of the existence of a cognizable privacy interest in the place or thing searched. In the absence of a demonstrable expectation of privacy in the tape recorders and tapes, defendants can have no standing to protest the search and seizure. They may not vicariously assert the Fourth Amendment rights of McCann and Kelly.

There is nothing in our Banks ease which confers standing upon defendants. In that case, Adams, Banks, Moody and George operated a counterfeiting ring. Banks purchased the printing press and certain other equipment; Moody furnished a garage to house the press; Adams, Banks and George operated the press; George distributed the counterfeit currency; Adams, Banks and George took equal shares of the proceeds. George was apprehended in the act of distributing some of his artwork, and gave information that led to the issuance of a warrant to search Moody’s garage, which search led to the discovery of the press, the arrest of Adams and Banks, and the claim of the latter two individuals that the warrant was unconstitutionally defective. We held that Adams had no standing to object to the search, because he was not present at the time of the search and had no possessory interest either in Moody’s garage or in the printing press. On the other hand, we found that Banks certainly had standing to object to the seizure of a press which he had purchased directly with his own funds (for which he had not been reimbursed by his partners in crime) and which he had operated in the course of the common criminal scheme. There was in Banks no dispute as to the full measure of Banks’ title to the press, nor any controversy as to his direct and enduring relationship to the machine. In short, there was in Banks that affirmative showing of reasonable expectation of privacy in the seized equipment that is so lacking here.

A case which is much more analogous to the present controversy than Banks is United States v. Johnson, 5 Cir. 1972, 456 F.2d 295. In Johnson, defendant had paid one Langner $450 to travel to Mexico, purchase marijuana from a prearranged contact and return the marijuana to him in the United States. Langner was stopped on his return to this country, the marijuana discovered and seized, and Johnson arrested. We found that Johnson had no standing to challenge the search for want of a sufficient privacy interest in the marijuana; he was not the individual at whom the search was aimed. Johnson’s possessory interest in the seized marijuana was arguably greater than that of defendants here in the disputed electronic equipment because Johnson had arranged all the details of the operation and expected to receive the marijuana upon Langner’s safe return; none of these things can be said about defendants in this case.

Defendants also argue that they must be awarded standing of the Jones variety in order to prevent the Government from contending on the one hand that defendants are responsible as principals for the violations by their agents Mc-Cann and Kelly of the federal wiretapping statute, while avowing on the other hand that this same principal-agent relationship does not suffice to confer standing upon defendants to contest a search of their agent Kelly’s auto and electronic equipment. There is no merit in this argument.

This is not a case, as Jones was, where the Government’s contradictory allegations create a cruel dilemma whereby a defendant accused of a possessory offense must either incriminate himself at the suppression hearing or waive his opportunity to have illegally-obtained evidence suppressed. Defendants here are placed in no such dilemma by unfair prosecutorial tactics. There is in fact nothing contradictory about the United States’ argument in this case; a principal-agent relationship sufficient to imply culpability may certainly fall short of conferring standing for Fourth Amendment purposes. Defendants’ contention flies directly in the face of Alderman, where the Supreme Court held that co-defendants and co-conspirators do not possess standing to object to searches of their compatriots solely on the basis of their criminal relation.

Although there may well be cases in which a principal may object to a search of his agent’s papers or effects, this is not one of them. Fifteen years of Supreme Court decisions stand squarely in the way of defendants’ attempt to create a rule of per se standing for parties in a principal-agent relationship. This claim of privacy by agency is just the sort of vicarious assertion of Fourth Amendment rights that Alderman and Brown forbid. If we were to adopt the position urged by defendants, any criminally-inclined individual could earn a double dividend by hiring private investigators to complete his schemes: not only could the principal disassociate himself from any physical unpleasantness or risk involved in the criminal activity and at the same time cover his own tracks, but he could claim a privacy interest in any instrumentalities of the crime, no matter whether he had the slightest idea of the existence of such instrumentalities before the unpleasant epiphany of arrest.

Finally, defendants claim standing by virtue of Texas law and the Supreme Court’s decision in Elkins v. United States, 1960, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669, to forbid federal courts to utilize evidence which would be excluded in state courts by operation of a state exclusionary rule. Article 38.23 of the Vernon’s Ann.Texas Code of Criminal Procedure provides that:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. .

As defendants correctly point out, Article 38.23 is a broad state exclusionary rule. See Mapp v. Ohio, supra. Defendants argue that the disputed evidence here was illegally obtained, so that it would be inadmissible in Texas courts, and that the rule of Elkins forbids federal courts to admit evidence that state courts would thus exclude:

[W]hen a federal court sitting in an exclusionary state admits evidence lawlessly seized by state agents, it not only frustrates state policy, but frustrates that policy in a particularly inappropriate and ironic way. For by admitting the unlawfully seized evidence the federal court serves to defeat the state’s effort to assure obedience to the Federal Constitution. . . . 364 U.S. at 221, 80 S.Ct. at 1446, 4 L.Ed.2d at 1680.

Defendants contend that Texas is so desirous of deterring its law enforcement officers from making illegal searches and seizures that Article 38.23 minimizes, if not eschews, standing requirements in state cases. From this premise, defendants conclude that Elkins prevents federal courts from requiring standing in Texas search and seizure cases where, as here, Texas officers are involved.

Defendants cite us no Texas cases in support of their novel proposition, and with good reason: Texas law requires standing in search and seizure matters, and this state requirement differs in no material respect from the federal law of standing as outlined above. Stiggers v. State, Tex.Cr.App.1974, 506 S.W.2d 609; Clemons v. State, Tex.Cr.App.1973, 501 S.W.2d 92; Booth v. State, Tex.Cr.App.1973, 499 S.W.2d 129. Texas law confers no standing upon defendants here.

We have carefully examined the record and considered the defendants’ various arguments. Neither the one nor the others convince us that defendants enjoyed a reasonable expectation of privacy in the disputed evidence. Under the rule of Johnson, and of Jones, Katz, Alderman and Brown, the Hunts cannot be said to be “aggrieved” by the searches of Kelly's automobile and the tapes; neither search was in any way directed at the defendants. To hold otherwise would stand these precedents on their heads. Fourth Amendment guarantees partake of a privateness which is not subject to barter or bailment. There is no standing room for persons positioned as defendants under the Fourth Amendment as elucidated in the exegesis of our judicial forebears.

Reversed and remanded.

      . 18 U.S.C. § 2511 provides, in pertinent part:
      (1) Except as otherwise specifically provided in this chapter any person who—
      (a) wilfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication . . . shall be
      fined not more than $10,000 or imprisoned not more than five years, or both. [Section two lists various exceptions to the general rule of section one.]

      . The original tapes were erased and reused after their contents, as edited, had been transferred to the master tapes.

      . For a lengthy critique of the deterrent efficacy of the exclusionary rule, see Oaks, Studying the Exclusionary Buie in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970) ; see also the dissent of Chief Justice Burger in Bivens v. Six Named Unknown Agents, 1971, 403 U.S. 388, 411, 91 S.Ct. 1999, 29 L.Ed.2d 619.

      . “There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man exercises over the external things of the world, in total ex-elusion of the right of any other individual in the universe.” Blackstone, Commentaries, Book II, Chapter I. See also the famous opinion of Lord Camden in Entick v. Carrington, 1765, 19 How.St. Trials.

      . Justice Stewart defines the “general right of privacy” as an individual’s “right to be let alone by other people.” Katz v. United States, supra, 389 U.S. at 350-351, 88 S.Ct. at 511, 19 L.Ed.2d at 581. See Fried, “Privacy,” 1968, 77 Yale L.J. 475.

      . Justice Harlan objected strenuously to this reliance on the property underpinnings of the Fourth Amendment, and would have preferred to rely on the “substantive principles developed in Katz.” 394 U.S. at 191, 89 S.Ct. at 976, 22 L.Ed.2d at 197.

      . As Justice Black noted in dissent in Gris-wold v. Connecticut, sxipra, “ [t] lie average man would very likely not have his feelings soothed any more by having his property seized openly than by having it seized privately and by stealth. ...” 381 U.S. at 509, 85 S.Ct. at 1695, 14 L.Ed.2d at 530.

      . Many standing cases since Jones have concerned themselves with the phrase “legitimately on the premises.” For example, an individual who has paid for his hotel room has a reasonable expectation of privacy in that room, Garza-Fuentes v. United States, 5 Cir. 1968, 400 F.2d 219, cert. denied, 1969, 394 U.S. 963, 89 S.Ct. 1311, 22 L.Ed.2d 563; one who hides from the police in a hotel room for which he has not paid, however, has no standing to contest a search of the room. United States v. Gregg, 6 Cir. 1968, 403 F.2d 222, aff’d, 1969, 394 U.S. 489, 89 S.Ct. 1134, 22 L.Ed.2d 442. Although this distinction might seem to turn on a comparison of the property interests involved, the property interests are really only indicators of the various expectations of privacy peculiar to each situation. See Baker v. United States, 1968, 131 U.S.App.D.C. 7, 401 F.2d 958.

      . The Court adopted the Jones rule in order to eradicate the unseemly practice whereby prosecutors would deny at the suppression hearing that a defendant charged with a possessory offense actually owned the disputed evidence, thereby forcing the defendant to claim ownership; the prosecutor would then confront the hapless defendant at trial with his claim of ownership made at the suppression hearing. Jones enabled a defendant in such a case to contest a search without admitting ownership. In Simmons v. United States, 1968, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, however, the Court held that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt. Although Simmons appears to have removed much of the opportunity for the sort of abuse at which the Jones rule is aimed, and although the Court has recently c^st some doubts on the continued vitality of Jones, Brown v. United States, 1973, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208, the rule is still the law.

      . For an exposition of the conflicting and confusing development of independent contractor law, see Comment, “Risk Administration in the Marketplace: A Reappraisal of the Independent Contractor Rule,” 1973, 40 U.Chi.L.Rev. 661.


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    Malcolm M. GAULTNEY, Jr., Plaintiff-Appellant, v. Caspar WEINBERGER, Secretary of Health, Education & Welfare, Defendant-Appellee.
    No. 74-1594.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      David A. Webster, Atlanta, Ga., Sidney L. Moore, Jr., Macon, Ga., for plaintiff-appellant.
    William J. Schloth, U. S. Atty., Ronald T. Knight, H. Palmer Carr, Jr., Asst. U. S. Attys., Macon, Ga., Carl H. Harper, Harry F. McDonagh, Dept, of HEW, Atlanta, Ga., for defendant-appellee.
    Before BROWN, Chief Judge and AINSWORTH and DYER, Circuit Judges.
   DYER, Circuit Judge:

Malcolm M. Gaultney, Jr., suffers pain, but there are no clinically observable causes. He appeals the denial of Social Security disability benefits by the Secretary of Health, Education and Welfare. The district court granted the Secretary’s motion for summary judgment. Gaultney asserts on this appeal that the Administrative Law Judge’s finding of non-disability was not supported by substantial evidence and that he applied an improper legal standard. Gaultney urges that the decision be either reversed or remanded for the taking of further evidence. Confined, however, by the scope of our review, we affirm the district court’s grant of summary judgment.

The Administrative Law Judge’s findings, approved by the Appeals Council, became the Secretary’s findings, and, as such, are conclusive if they are supported by substantial evidence. 42 U.S.C.A. § 405(g); Payne v. Weinberger, 5 Cir. 1973, 480 F.2d 1006; Williams v. Finch, 5 Cir. 1971, 440 F.2d 613. The role of the reviewing court is severely limited. Williams v. Finch, supra; Richardson v. Richardson, 5 Cir. 1970, 437 F.2d 109. We do not re-weigh the evidence; we simply determine whether there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 1970, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842. As we have previously suggested, determinations which are not supported by substantial evidence are unusual, even rare. Payne v. Weinberger, supra, 480 F.2d at 1008; Williams v. Finch, supra, 440 F.2d at 615.

In this case, there is substantial evidence to support the Secretary’s finding. Both the Administrative Law Judge and the district court summarized the evidence in some detail; we will not do so here. Basically, the finding of non-disability is supported by the testimony of several qualified experts: an orthopedic surgeon, a physician certified in rehabilitation, a psychiatrist, a neurologist also certified in psychiatry, and a vocational expert. The physician who served as medical advisor, Dr. Arthur M. Pruce, evaluated all the medical reports in this case and concluded from them that Gaultney’s impairments did not meet nor equal in severity the list of impairments in the Social Security Regulations. 20 C.F.R. Appendix to Sub-part P at 326 ff. Therefore, although there is conflicting evidence, and although we might have reached a different conclusion had we been the initial trier of fact, we hold that there is substantial evidence to support the Secretary’s determination.

Gaultney next asserts that the Administrative Law Judge applied an improper legal standard in reaching his decision in that he failed to take into account the subjective testimony of Gaultney, his friends, and members of his family regarding the pain he suffers. If this claim were well founded, it would justify reversal or remand. Hayes v. Celebrezze, 5 Cir. 1963, 311 F.2d 648. It is well settled that pain alone can be disabling, even where its existence is unsupported by “objective medical, clinical or laboratory evidence.” Prewitt v. Gardner, 5 Cir. 1968, 389 F.2d 993. Furthermore, we have often held that the judge must consider subjective evidence of pain as testified to both by the claimant and by other lay witnesses. DePaepe v. Richardson, 5 Cir. 1972, 464 F.2d 92, 94, 99-100; Hayes v. Celebrezze, supra. However, we have never suggested that the subjective evidence should take precedence over conflicting objective medical testimony; nor have we ever held that all pain is disabling. The Ninth and Tenth Circuits have properly held that the inability to work without incurring some pain or discomfort is not necessarily disability. Mark v. Celebrezze, 9 Cir. 1965, 348 F.2d 289; Dvorak v. Celebrezze, 10 Cir. 1965, 345 F.2d 894. Therefore, the question of how much pain is disabling is for the Administrative Law Judge, whose task it is to resolve conflicts in the evidence. Richardson v. Perales, supra. Gaultney asserts that the Administrative Law Judge ignored the evidence of pain. ' However, we see no reason to question the Judge’s statement that he

considered and weighed all of the demonstrative medical evidence, considered the diagnoses and expert medical opinions, weighed the testimony of the claimant as to his pain and discomfort on movement and activity, and the lay testimony from witnesses who testified at the hearing.

Further, the Judge acknowledges that “[i]t has been held that pain alone can be disabling.” But he properly states that a claimant’s assertion that he is disabled by his pain does not foreclose attack on his credibility. It is not necessarily inconsistent to find that a claimant suffers pain in fact, and yet is not so severely impaired as to meet the stringent test for disability imposed by the Act. This is precisely the finding of the Administrative Law Judge, which we now affirm.

Gaultney’s last argument is that the case should be remanded for the taking of further evidence on the question of the possible psychiatric disorder which may account for his pain. He relies on Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916, in which the court exercised its power to remand under § 205(g) of the Act (42 U.S.C.A. § 405(g)) for the taking of further evidence on the question of the claimant’s inability to engage in any substantial gainful activity. In that case, however, the claimant was not represented by counsel, and the evidence on employability was “exceedingly unsatisfactory,” such that the court considered that there was no substantial evidence to enable the Secretary to make a reasonable determination as to employability. See also Byrd v. Richardson, D.S.C. 1973, 362 F.Supp. 957; Roman v. Secretary of Health, Education and Welfare, D.P.R.1972, 355 F.Supp. 646.

In this case, on the other hand, Gaultney was at all times represented by counsel. The judge held three hearings, heard the testimony of numerous witnesses, and read the written reports of others. The burden of proving disability is clearly upon the claimant. Kirkland v. Weinberger, 5 Cir. 1973, 480 F.2d 46; DePaepe v. Richardson, supra. The fact that there may, on unusual occasions, be “good cause” for remand does not relieve the claimant of this burden. Here, Gaultney originally claimed that a back injury was responsible for his pain. The medical evidence, though not unanimous on the point, did not establish that fact. Gaultney then turned to a psychiatric theory, but brought forward no psychiatric evidence of his own. Indeed, the Board-certified psychiatrist, Dr. Merton B. Berger, who did examine Gaultney, reported that there were no emotional components to his pain, and that he feels as much pain when he is at home worrying as when he is out having a good time. The psychiatrist could find no signs to indicate either mental or emotional disturbance which would cause or aggravate Gaultney’s symptoms.

There may be, as Gaultney argues, a gap in the evidence as to the possible emotional source of his pain. If there is such a gap, however, it is to be laid at the door of him who bore the burden of proof, Gaultney himself. There was no duty on the Administrative Law Judge to explore further the psychiatric theory. Furthermore, as we have already stated, the Administrative Law Judge did not find that Gaultney was not in pain; he found that he was not disabled within the meaning of the Act. Whether the pain is organic or psychiatric in origin would therefore be immaterial.

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Albert Lee WILLIAMS, Appellant.
    No. 74-1475.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1974.
    Decided Oct. 29, 1974.
    Thomas M. Bradshaw, Asst. Federal Public Defender, W.D.Mo., Kansas City, Mo., for appellant.
    Bert C. Hurn, U. S. Atty., and J. Whitfield Moody, First Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, BRIGHT, and ROSS, Circuit Judges.
   PER CURIAM.

A jury returned a verdict of guilty against the appellant, Albert Lee Williams, for possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). The court sentenced him to ten years imprisonment with a special parole term of six years pursuant to 21 U.S.C. § 841(b)(1)(A).

Williams appeals from his conviction on two grounds. First, he contends that the court erroneously instructed the jury on the standard of reasonable doubt. Second, he contends that the court’s comments on the evidence prevented the jury from acting impartially. We find no merit in either contention and, accordingly, affirm.

Williams urges us to reverse his conviction because the trial court defined reasonable doubt for the jury in terms of willingness to act. It is true that we held in United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971), cert. denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972), that reasonable doubt is best defined in terms of hesitation, rather than willingness, to act. Id. 446 F.2d at 1222. But the instant case differs significantly from Dunmore. Whereas in Dunmore the court’s instruction was framed only in terms of “willingness to act,” in this case the “willingness to act” definition is counterbalanced by an accompanying “hesitation to act” definition. The proper question, therefore, is whether the “willingness to act” definition so vitiated the “hesitation to act” definition as to constitute prejudicial error. Viewing the instruction as a whole, as we must, we conclude that this combination of definitions falls far short of error that would require reversal. See Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Fallen, 498 F.2d 172, 177 (8th Cir. 1974); Scurry v. United States, 120 U.S.App.D.C. 374, 347 F.2d 468, 469-470 (1965), cert. denied, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179 (1967). Although we reject appellant’s claim of error under the circumstances presented in this case, we think it appropriate to call once again to the attention of the trial courts in this circuit that “the definition of reasonable doubt should be phrased in terms of hesitation to act[.]” United States v. Dunmore, supra, 446 F.2d at 1222.

Williams further contends that the court’s instructions to the jury contained improper comments on the evidence, exceeding constitutional bounds and thereby denying him a fair trial. We have carefully reviewed this contention by reference to the transcript of trial. We have found nothing that supports it; the record nowhere discloses that the court acted as an advocate for the prosecution. Cf. Quercia v. United States, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Even if we assume that certain of the court’s remarks do constitute error, we would have to hold that they are harmless only. The Government's case was strong, the trial brief, and the issues few and uncomplicated. Moreover, the court scrupulously cautioned the jury that it alone bore responsibility for deciding questions of fact. In this setting, we find no error requiring reversal. See United States v. Cole, 453 F.2d 902, 907-908 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); United States v. DePugh, 434 F.2d 548, 555 (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971); Ray v. United States, 367 F.2d 258, 262-263 (8th Cir. 1966), cert. denied, 386 U.S. 913, 87 S.Ct. 863, 17 L.Ed.2d 785 (1967); Franano v. United States, 310 F.2d 533, 538-539 (8th Cir. 1962), cert. denied, 373 U.S. 940, 83 S.Ct. 1545, 10 L.Ed.2d 694 (1963). The circumstances here differ markedly from those in United States v. Brandom, 479 F.2d 830 (8th Cir. 1973); United States v. Dunmore, supra, 446 F.2d at 1216-1219; and Boatright v. United States, 105 F.2d 737 (8th Cir. 1939), where we determined that the court’s comments interfered with the exercise of the jury’s prerogative as factfinder.

Affirmed.

      . Now, members of the jury, the law presumes every defendant to be innocent of crime and this defendant, although accused, begins the trial with a clean slate, with no evidence against him, and the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after a careful and impartial consideration of all the evidence in the case. It is not required that the Government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A doubt based — a reasonable doubt is a doubt based upon reason and common sense. The hind of doubt that would make a reasonable person hesitate to aot.

      Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely upon and act upon it unhesitatingly in the most important of your own affairs. The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Reasonable doubt exists, however, if after a careful and impartial consideration of all the evidence in the case jurors do not feel convinced to a moral certainty that the defendant is guilty of the charge. So if the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence and the other of guilt, juries should, of course, adopt the conclusion of innocence. (Emphasis added).


author: PER CURIAM:

text:
    In re Royal D. ADAMS, Appellant.
    No. 74-2900
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Royal D. Adams, San Antonio, Tex., pro se.
    William S. Sessions, U. S. Atty., Wayne F. Speck, Asst. U. S. Atty., San Antonio, Tex., for appellee.
    Before GEWIN, GODBOLD and CLARK, 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, Part I.

   PER CURIAM:

Appellant, an attorney, was appointed by a United States magistrate to represent an indigent defendant. Papers confirming a telephonic notification of the appointment were received in appellant’s office on April 24, 1974. Typed on the bottom of a form letter accompanying the appointment papers was a notice of a preliminary hearing to be held before the magistrate at 10:00 a. m. on May 6, 1974. When appellant did not appear at the designated time, the magistrate cited him for contempt and certified these facts to the district court. At the hearing to show cause why he should not be held in contempt, appellant explained that his absence had not been intentional. He testified that he had seen the papers that accompanied the notice of appointment when they came to his office but that he did not remember whether he saw the notice of the hearing. He further stated that under his normal office procedure, responsibility for noting court appearances on his desk calendar fell to his secretary. For some reason notation of this hearing had not been made, so that when he checked his calendar on the morning of May 6 he had no reason to believe he needed to be in court. After hearing his explanation, the district court concluded that appellant had demonstrated “reckless disregard” of the magistrate’s notice to appear. The court found that appellant’s conduct had been contumacious, adjudged him guilty of a criminal contempt and imposed an unconditional 100 dollar fine as a penalty.

The record discloses that the appellant had never before missed a court appearance, and no evidence was offered which demonstrated or inferred that he did not simply overlook the notice of hearing when he examined the papers sent to his office. Such negligence is not to be condoned. It would have justified the imposition of a reprimand, warning, or remedial sanction. However, the finding that this single incident demonstrated reckless disregard of an order of the court sufficient to support an adjudication of criminal conduct and the imposition of a punitive fine is clearly erroneous.

The judgment of the district court is vacated and the cause remanded with directions to remit the penalty imposed. This action is without prejudice to further disciplinary proceedings related to this matter not inconsistent with this opinion.

Vacated and remanded, with directions.

      . The repetition of negligent behaviour increases the potential for interference with the orderly discharge of judicial functions. The failure to adequately guard against its reoccurrence well could warrant criminal penalty. That is not the case before us.


text:
    Leon Reyes CALDERON, Plaintiff-Appellant, v. UNITED FURNITURE COMPANY, Defendant-Appellee.
    No. 74-1608.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      Virgil Howard, Thomas D. McDowell, Corpus Christi, Tex., for plaintiff-appellant.
    Harry H. Dobbs, Jr., Corpus Christi, Tex., for defendant-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   PER CURIAM:

This appeal of the dismissal for lack of subject matter jurisdiction is the third time in almost as many months that we have been called upon to rule on the constitutionality of the self-help provision of the Uniform Commercial Code. In James v. Pinnix, 5 Cir., 1974, 495 F.2d 206 we upheld the constitutional validity of the Mississippi version of this provision and in Brantley v. Union Bank & Trust Co., 5 Cir., 1974, 498 F.2d 365 we held the same for that of Alabama. In each case we found the statutes to be free from Federal due process scrutiny in a civil rights action for lack of requisite state action. This finding is in line with that of other Circuits. As the Texas statute involved in this appeal is identical to those of Mississippi and Alabama, we hold so again today.

Appellant urges upon us one distinction. There is evidence to indicate that in repossessing appellant’s washing machine, the repossessors, broke into his home. In Hall v. Garson we held that entry into another’s home and the seizure of another’s property was an act that possesses many of the characteristics of an act of the State. The Texas Landlord Lien statute in Hall encompassed state action because it authorized the landlord to enter into the tenant’s home and seize property that had no relationship whatsoever to the debt. This, of course, is not the case in the present appeal. Here, as in James, the property seized was the property whose purchase had created the debt and in which the seizor had a security interest.

Affirmed.

      . § 9-503 reads in pertinent part:
      § 9.503. Secured Party's Right to Take Possession After Default

      Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

      . 42 U.S.C. § 1983.

      . Turner v. Impala Motors, 6 Cir., 1974, 503 F.2d 607; Bichel Optical Laboratories v. Marquette Nat’l Bank, 8 Cir., 1974, 487 F.2d 906; Adams v. Southern California First Nat’l Bank, 9 Cir., 1974, 492 F.2d 324, cert. denied, 43 U.S.L.W. 3277.

      . 5 Cir., 1970, 430 F.2d 430.

      . Vernon’s Tex.Rev.Civ.Stat.Ann. art. 5238a, cited at 430 F.2d at 432 n. 1.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Douglas WATTS, Defendant-Appellant.
    No. 74-3073
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Rehearing Denied Jan. 29, 1975.

      Nicholas F. Maniscalco, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, U. S. Atty., James E. Baker, John Milton Turner, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appel-lee.
    Before BELL, SIMPSON and MORGAN, 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, Part I.

   PER CURIAM:

Appellant Douglas Watts was convicted after trial by jury of possession of an unregistered firearm, a sawed-off shotgun in violation of 26 U.S.C. § 5861(d). Appellant alleges as error the fact that he was tried in federal court after being acquitted in state court, thus raising a double jeopardy plea; that he was denied due process by not being allowed to present evidence of his state court acquittal; and that the court erred in not giving requested instructions. These contentions lack merit. We affirm the conviction.

Robert McGibbon testified that in the early morning hours of November 14, 1973, he was assaulted by Douglas Watts, who was brandishing a sawed-off shotgun, in a robbery attempt. Mc-Gibbon broke away from appellant and immediately reported the incident to J. C. Ward, an Atlanta policeman who was nearby. Ward located appellant and a companion, his uncle Gregory Thomas, a few blocks away. He asked them to get into his vehicle and while doing so he noticed Thomas bend down at the rear of the car “as if he was putting something under the car”. Subsequent investigation revealed the sawed-off shotgun. It was established at trial that the firearm was not registered to appellant and that there had been a proper chain of custody.

Appellant testified in his own behalf that he had never possessed the shotgun, but merely found it in a yellow bag lying in the street. He alleged he left the gun where it was found and was stopped immediately thereafter by the police.

Prior to the federal trial, appellant had been acquitted in state court on charges of aggravated assault with intent to rob and carrying a concealed weapon. The federal charges are not the same as the state ones. Georgia laws prohibits possession of a sawed-off shotgun 15 inches in length or less. Georgia Code Annotated Secs. 26-9911a, 9913a. The shotgun here had an overall length of 16y2 inches, thus no violation of the Georgia possession statute occurred. In any case, the prior Georgia prosecution and acquittal was not a bar to the subsequent federal prosecution. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).

Appellant claims that he was denied a fair trial because he was not allowed to present evidence of his state court acquittal to the jury, though there were many references throughout the trial to the state trial. The jury was informed that there were no state charges pending, and that appellant was not in state custody. A district court has wide discretion in determining relevance and materiality, and its ruling should not be disturbed in the absence of an abuse of discretion. See United States v. Allison, 5 Cir., 1973, 474 F.2d 286, 289, and the cases there cited. Here there is no showing of an abuse of that discretion. The state charges differed substantially from those before the district court and reference to them might well have resulted in confusion of the trial jury.

Finally, appellant asserts that the court erred in not giving requested charges. Appellant asked the court to charge that he had not violated any laws of the State of Georgia, that he had not committed any crime against McGibbon or any of the other witnesses against him, and that he was acquitted of assault on McGibbon in state court. The charges requested were incomplete, erroneous, and prejudicial, and their refusal was not error. United States v. Diamond, 5 Cir., 1970, 430 F.2d 688; United States v. Deaton, 5 Cir., 1972, 468 F.2d 541.

Affirmed.


text:
    Evelyn SELL and Barry Sell, Plaintiffs-Appellants, v. VOLKSWAGEN OF AMERICA, INC., et al., Defendants-Appellees (two cases). Eric SELL, Plaintiff-Appellant, v. VOLKSWAGEN OF AMERICA, INC., et al., Defendants-Appellees (two cases). Kathrine STALLWORTH, Plaintiff-Appellant, v. VOLKSWAGEN OF AMERICA, INC., et al., Defendants-Appellees (two cases).
    Nos. 74-1583 to 74-1588.
    United States Court of Appeals, Sixth Circuit.
    Nov. 21, 1974.

      James A. Tuck, Ernest Goodman, Goodman, Eden, Millender, Goodman & Bedrosian, Detroit, Mich., James F. Schaeffer, Memphis, Tenn., for plaintiff s-appellants.
    Ronald R. Pawlak, Southfield, Mich., George F. Clark, Steven L. Kreuger, Detroit, Mich., for defendants-appellees.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.
   PER CURIAM.

Plaintiffs appeal from an order denying their motion to remand these cases to the Circuit Court of Wayne County, Michigan, in which they originally were filed, and in dismissing Seaway Motors, Inc., a Michigan corporation, as a party defendant.

Seaway Motors, Inc., is a Volkswagen dealer in Detroit. Mrs. Evelyn Sell, one of the plaintiffs, had purchased two Volkswagen automobiles from Seaway, one in 1960 and the second in 1968. Prior to July 1971, Mrs. Sell moved to Austin, Texas, and purchased a 1971 Volkswagen from an authorized dealer in that city. On August 20, 1972, Mrs. Sell and the other plaintiffs were traveling on an interstate highway in Tennessee in the 1971 Volkswagen which she had purchased in Texas. A tire blew out, causing an accident and serious injuries to plaintiffs. It is alleged that the blowout resulted from uneven tread wear, which in turn was caused by a defect in the suspension system.

On July 24, 1973, plaintiffs filed this suit in the Wayne County Circuit Court against Seaway, Volkswagen of America, Inc., and the parent German Volkswagen corporation.

In dismissing Seaway as a party defendant, District Judge Charles W. Joiner entered a final judgment as to this order in accordance with Fed.R. Civ.P. 54(b), reciting “there is no just reason to delay entry of the Order of Judgment.” The case is still pending against the two Volkswagen corporations and has been transferred to the Western District of Tennessee for trial.

Plaintiffs-appellants assert liability against Seaway in spite of the fact that the automobile involved in the accident was not purchased from that agency. It is contended that when Mrs. Sell purchased her two former Volkswagen automobiles from Seaway, this Michigan dealer made representations to the effect that, in addition to its warranties, Volkswagen maintains a nationwide comprehensive servicing and maintenance program and that she relied upon these representations. Because she followed the official maintenance schedule recommended by Volkswagen, Mrs. Sell says that she felt safe in not checking the tire tread herself. She asserts that if the mechanic in Texas who last tested her car had complied with the representations made by Seaway, the worn tread would have been discovered and the accident would not have happened.

We hold that the District Court did not commit reversible error in dismissing Seaway as a party defendant. Seaway was not even remotely connected with the vehicle which plaintiffs say was defective. We see no reason why Seaway was joined as a party defendant except as a procedural tactic to destroy diversity of citizenship. The judgment dismissing Seaway as a party defendant is affirmed.

Plaintiffs-appellants also appeal from the order of the District Court in declining to remand their cases to the state court. Ordinarily this portion of the order would not be appealable. However, since the order dismissing Seaway is appealable, this court has jurisdiction to consider the appeal from the order in declining remand. Kysor Indus. Corp. v. Pet, Inc., 459 F.2d 1010, 1011 (6th Cir.), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 243 (1972). The order refusing to remand the cases to the state court is affirmed.

All other issues presented by appellants have been considered and are found to be without merit.

Affirmed. Costs are assessed against plaintiffs-appellants.


text:
    William Phillip TAYLOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-3130
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.

      William Phillip Taylor, pro se.
    Donald E. Walter, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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, Part I.

   PER CURIAM:

A federal court jury convicted William Phillip Taylor of threatening the life of the President of the United States. A panel of our court affirmed Taylor’s conviction on direct appeal, United States v. Taylor, 480 F.2d 618 (5th Cir. 1973), and the Supreme Court denied certiorari, 414 U.S. 911, 94 S.Ct. 249, 38 L.Ed.2d 150 (1974). Taylor has now filed a motion to vacate his conviction and sentence under 28 U.S.C. § 2255. We affirm the district court’s denial of Taylor’s motion without a hearing as the records and files conclusively show that Taylor is not entitled to relief.

Taylor seeks to challenge the trial court’s determination of sanity at the time of the offense, its alleged denial of his right of compulsory process, and the alleged denial of his right to a speedy trial. Taylor acknowledges that he raised these claims on direct appeal, and apparently concedes that the district court could normally have refused to grant him a hearing on his claims. Although traditional notions of res judicata do not apply in habeas corpus or § 2255 proceedings, a court may still exercise judicial discretion and refuse to retry issues fully and finally litigated on direct appeal. Ugarte-Veizaga v. United States, 452 F.2d 1194 (5th Cir. 1972); Houston v. United States, 419 F.2d 30 (5th Cir. 1969); Bearden v. United States, 403 F.2d 782 (5th Cir. 1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 920, 21 L.Ed.2d 808 (1969). However, Taylor claims entitlement to a hearing in this case because of allegedly misleading statements in the government’s brief on direct appeal.

At the original trial, Taylor sought to subpoena Robert Beasley to testify on the sanity question. On direct appeal, he claimed that pretrial delays caused him to lose contact with Beasley, with a resultant denial of his right of compulsory process. In answering this contention the government’s brief stated:

The contentions that Robert Lowell Beasley could not be located and delays caused loss of contact are frivolous. No motion was filed to arrest him as a material witness. Beasley was not incarcerated with Appellant in June, 1971 or thereafter and his testimony would have been irrelevant or cumulative if he was to testify Appellant had suffered hardships.

In fact Taylor and Beasley were in jail together for a short time several months after the date of the offense.

Although technically incorrect, the statement was not sufficiently misleading to warrant reversal of the district court. The government did not misinform the panel as to the substance of Beasley’s testimony or its significance. A number of witnesses testified on the question of Taylor’s sanity at the time of the offense. Beasley’s testimony was not crucial to that inquiry. He was not an expert witness, nor was he with Taylor immediately before or after the offense. The government’s mistatement did not prevent full and fair litigation of the compulsory process claim on direct appeal. Cf. Middlebrooks v. United States, 500 F.2d 1355 (5th Cir., 1974).

Affirmed.

      . An offense under 18 U.S.C. § 871 punishable by a fine of up to $1,000 and/or imprisonment of up to 5 years.


text:
    Jose M. TORRES, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2357
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Joseph A. Calamia, El Paso, Tex. (Court-appointed), for petitioner-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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, Part I.

   PER CURIAM:

Jose M. Torres pled guilty to a charge of receiving, concealing and facilitating the concealment of a quantity of heroin, in violation of former 21 U.S.C. § 174. He was sentenced to serve seven years, and took no direct appeal. Torres now appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate his conviction and sentence. We find that the trial court failed to comply with the strict requirements of Fed.R.Crim.P. 11, and therefore reverse and remand.

Appellant Torres has a limited knowledge of the English language. At the hearing to receive the plea, the trial judge was apprised of this fact, and took appropriate action. The transcript of the proceedings shows that an interpreter translated the proceedings step by step for Torres.

At the hearing the Assistant United States Attorney stated the factual basis for the guilty pleas in English, whereupon Torres’ codefendant, Gonzales, insisted that he was not guilty. After a brief discussion the judge refused to accept Gonzales’ guilty plea, but said, “Well, I’ll take Mr. Torres’ plea.” The trial judge never asked Torres if he admitted the factual basis for the plea. The record does show that he asked both defendants in English if the United States Attorney’s recitation of the facts was a true and correct statement of what happened. But the transcript does not show that Torres made any response. According to the transcript, Torres did not say anything else during the hearing.

In McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425-426 (1969), the Supreme Court announced the applicable law :

Thus, in addition to directing the judge to inquire into the defendant’s understanding of the nature of the charge and the consequences of his plea, Rule 11 also requires the judge to satisfy himself that there is a factual basis for the plea. The judge must determine “that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.” Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.” [Footnotes omitted]

Appellant Torres was not questioned concerning the factual basis; and he avers that he did not understand what was said in English. The record shows that the statement of the factual basis for the plea was not translated for Torres, though the court found it necessary to translate the other parts of the proceedings to him. On this record, we cannot conclude that Torres knowingly and voluntarily pled guilty to the charges against him. Therefore we vacate his conviction and sentence. The judgment of the district court is reversed and the cause is remanded to allow Torres to plea anew. See McCarthy v. United States, supra; United States v. Davis, 5th Cir. 1974, 493 F.2d 502; Cooks v. United States, 5th Cir. 1972, 461 F.2d 530.

Reversed and remanded.

      . Act of Feb. 9, 1909, ch. 100, § 2(c), (f), 35 Stat. 614; Act of Jan. 17, 1914, ch. 9, 38 Stat. 275; Act of May 26, 1922, ch. 202, § 1, 42 Stat. 596; Act of June 7, 1924, ch. 352, 43 Stat. 657; Act of Nov. 2, 1951, ch. 666, §§ 1, 5(1), 65 Stat. 767; Act of July 18, 1956, ch. 629, Title I, § 105, 70 Stat. 570. The section set penalties for smuggling narcotics into the United States, conspiring to commit unlawful acts with respect to the smuggled drugs, and made unexplained possession of narcotic drugs sufficient evidence to support a conviction. It also set penalties for second and subsequent offenses. Congress repealed the section in 1970, and the offenses are now covered under 21 U.S. C. §§ 885(b), 960(a), (b), 963,965.


text:
    Royce and Mamie McBETH, Plaintiffs-Appellants, v. UNITED PRESS INTERNATIONAL, INC., Defendant-Appellee.
    No. 74-2359
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Donald V. Organ, New Orleans, La., for plaintiffs-appellants.
    Robert E. Winn, J. David Forsyth, New Orleans, La., for defendant-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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, Part I.

   PER CURIAM:

Jannas Geneva McBeth died on November 29, 1972 when she attempted to avoid the fire that had engulfed the Rault Center in New Orleans, Louisiana by jumping from the fifteenth floor of the building. United Press International (UPI) published a story on the fire that mentioned Jannas’ death. The article described Jannas as seven months pregnant, when in fact she was neither married nor pregnant at the time. Royce and Mamie McBeth, her parents, sued United Press International for defamation. They brought the action on behalf of Victor R. Vince, Jannas’ minor son. Additionally Royce McBeth sued as administrator of her estate. The District Court dismissed the complaint as to both causes of action. For the reasons outlined below, we affirm.

Louisiana law governs the disposition of this diversity case. Since that state has no statute specifically governing defamation actions, the suit arises under the general tort article, La. Civ. Code Art. 2315 (1971). That Article contains specific provisions relative to survival of tort actions. It provides: “The right to recover all other damages [other than property damages] caused by an offense or quasi offense, if the injured person dies, shall survive . in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children . . ..” The statute’s plain language shows that the defamation action does not survive to the estate of Jannas McBeth. The trial judge properly dismissed the complaint of Royce McBeth in his capacity as administrator.

The Complaint also avers that publication of the statement in question “visited great damage, embarrassment, humiliation, chagrin on Victor R. Vince ..” Thus Victor, through his grandparents, seeks to sue in his own right. Under Louisiana law, the plaintiff in a defamation action must establish four elements to prevail: (1) publication; (2) falsity; (3) actual or implied malice; (4) injury. See Fontenot v. Fontenot, 235 La. 488, 104 So.2d 431 (1958); Lazar v. Gremillion, 189 So.2d 35 (La.App.1966); Cox, Defamation: A compendium, 28 La.L.Rev. 82 (1967). UPI apparently concedes that the publication and falsity requirements are met here. Since the allegations in the Complaint must be taken as true, the damage element is also satisfied. However the Complaint fails to allege malice. Instead it asserts that UPI published the false statement “[t]hrough neglect, inattention and carelessness.” We recognize that Louisiana courts resolve doubts about the Complaint in favor of trial on the merits. Fontenot v. Fontenot, supra; Martin v. The Picayune, 115 La. 979, 40 So. 376 (1906). However where the allegedly defamatory statements are not libelous or slanderous per se, Louisiana courts require an allegation of malice. Cf. Smith v. Lyons, 142 La. 975, 77 So. 896 (1918).

Failure to allege malice is not the only barrier to the cause of action on behalf of Victor R. Vince. The tort action of defamation is personal to the party defamed. See W. Prosser, The Law of Torts § 111 (4th ed. 1971). The general rule precludes a person from recovering for a defamatory statement made about another, even if the statement indirectly inflicts some injury upon the party seeking recovery. See W. Prosser, The Law of Torts § 111 (4th ed. 1971); 50 Am.Jur. 2d, Libel and Slander § 311; Annot., 132 A.L.R. 891 (1941). The statement at issue here contains no direct reference to Victor R. Vince. While we have found no Louisiana cases directly covering the point, we feel that Louisiana courts would follow the general rule.

For the reasons stated above, the District Court properly dismissed the complaint for failure to state a claim on which relief could be granted.

Affirmed.

      . Our disposition of the case makes it unnecessary to consider the effect of the recent Supreme Court decision in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) on the Louisiana law of defamation relative to events of public interest. See Francis v. Lake Charles American Press, 262 La. 875, 265 So.2d 206 (1972).


author: ALDISERT, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Harold S. HALL.
    No. 74-1527.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 9, 1974.
    Decided Nov. 14, 1974.
    Richard L. Thornburgh, U. S. Atty., James V. Villanova, Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
    William C. Bartley, Pittsburgh, Pa., for appellee.
    Before ALDISERT, ADAMS and R0-SENN, Circuit Judges.
   ALDISERT, Circuit Judge.

This appeal requires us to decide whether a government agent’s failure to promptly make a search warrant return, in violation of Rule 41(d), F.R.Cr.P., necessitates suppression of the seized items and their fruits. The district court conducted a two-part suppression hearing and held that the Rule 41(d) violation infected the otherwise valid search, rendering the seized items and their fruits inadmissible in evidence. The government appealed pursuant, to 18 U.S.C. § 3731. We vacate the judgment of the district court.

Appellee is under indictment for possession of an illegal still in violation of 26 U.S.C. § 5601(a)(1) and for possession of non tax-paid distilled spirits in violation of 26 U.S.C. § 5604(a)(1). On July 20, 1973, Special Agent O’Connell of the Bureau of Alcohol, Tobacco and Firearms sought and received a warrant to search appellee’s premises, situated near Connellsville, Pennsylvania, for illicit distilling equipment, mash and distilled spirits. Several agents accompanied O’Connell during the July 23, 1973, execution of the warrant, seizing, among other things, a “copper pot type still” and “illicit distilled spirits.” Agents also took photographs of the site during their search and allegedly witnessed incriminating statements by the appellee. Chemical analysis of the seized liquid was later made.-

Upon completion of the search, the original return and a copy were filled out. O’Connell signed the copy, swearing to the accuracy of the inventory, and handed it to appellee. It is undisputed that the copy of the return received by appellee was complete. However, the original return has never been signed by any agent; nor has it been returned before the issuing magistrate. Indeed, it was not filed in the office of the Clerk of the District Court until January 17, 1974. Although the district court made no finding as to the reason for this failure to adhere to the proper return procedures, it did receive testimony, which, if credited, explained the reason for this irregularity. Agent Wallington, a participant in the search, testified that O’Connell gave him the unsigned original to take to Pittsburgh, and that he, Wallington, delivered the return, along with others, to the magistrate’s office on or before July 27, 1973. Because the magistrate was not in his office at the time Wallington arrived, and because Wallington was needed at Uniontown, Pennsylvania, he left the original return with the magistrate’s secretary.

Appellant does not dispute the district court’s conclusion that Rule 41(d) was violated in this ease. Instead, it mounts an attack on the district court’s imposition of the suppression remedy. Specifically, it argues that a Rule 41(d) violation is not a deprivation of appellee’s Fourth Amendment rights and that the Federal Rules of Criminal Procedure do not mandate suppression if appellee receives a complete copy of the return and has failed to demonstrate prejudice from the violation.

Appellee does not seriously dispute appellant’s Fourth Amendment contention. He concedes that certain failures in the return procedure do not warrant this draconian sanction; but contends that where, as here, there is an utter failure to make the return before the magistrate, both the Federal Rules of Criminal Procedure and the due process clause of the Fifth Amendment require suppression. Otherwise, argues appellee, a serious potential for abuse exists, presaging a breakdown of the rulés and the protections they afford.

Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), squarely addressed appellant’s Fourth Amendment contention. There, the Wisconsin police had failed to recite on the search warrant return that a sock and a floor mat had been seized pursuant to a search warrant. At a subsequent hearing the sheriff who had executed the warrant did not state that these two items had been seized. The Court rejected the argument that the defective return rendered the underlying search invalid under the Fourth Amendment:

The seizures of the sock and the floor mat occurred while a valid warrant was outstanding, and thus could not be considered unconstitutional .... As these items were constitutionally seized, we do not deem it constitutionally significant that they were not listed in the return of the warrant.

413 U.S. at 449, 93 S.Ct. at 2532.

Here, the district court specifically found that there was probable cause to search appellee’s premises. At the time of this seizure, appellee’s rights under the Fourth Amendment were not being infringed. The irregularity occurred only after a valid search and seizure. We hold that, under the facts of this case, such irregularity is not “constitutionally significant” under the Fourth Amendment. Therefore, the ramification of this procedural violation is a matter of federal law governed, in this case, by the Federal Rules of Criminal Procedure.

The procedural requirements of Rule 41(d) are essentially ministerial in nature. United States v. Harrington, 504 F.2d 130 (7th Cir., 1974); United States v. Kennedy, 457 F.2d 63, 67 (10th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972); United States v. Wilson, 451 F.2d 209, 214 (5th Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1298, 31 L.Ed.2d 490 (1972); United States v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971). The rule commands the officer to perform specific acts — to leave a copy of the warrant, to issue a receipt for property taken, to make a return and to prepare a written inventory in the presence of certain persons. While the rule outlines detailed procedures, it does not expressly address the remedies, if any, which flow from a failure to adhere to those procedures. Therefore, we turn to Rule 2, F.R.Cr.P. as our interpretive polestar. Rule 2 expresses values sought to be achieved by the Federal Rules of Criminal Procedure. We are commanded to give the rules a construction which secures “simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.” The manifest intent of the rules is to ensure a just determination of every criminal proceeding.

Applying these precepts to the issue before us, we do not believe that it was intended that every violation of the procedures in the rule, however insignificant and however lacking in consequences, should give rise to the remedy of suppression. If such had been the intent, we think the rules would have specifically so provided. At the same time, we do not believe that Congress would enact Rule 41(d), expressly requiring certain actions on the part of the government, and not also intend some remedy to flow from certain violations of that rule. Therefore, we conclude, along with the Sixth and Tenth Circuits, that a motion to suppress, Rule 41(f), F.R.Cr.P., should be granted by the district court only when the defendant demonstrates prejudice from the Rule 41(d) violation. We believe that this interpretation furthers the governing intent of the rules — a just determination of every criminal proceeding — and that the wholesale opportunity for abuse appellee fears simply will not materialize. The suppression remedy remains viable where a sufficient showing of prejudice is made, that is, prejudice in the sense that it offends concepts of fundamental fairness or due process.

Here it is undisputed that appellee timely received a copy of the return and that it accurately listed each item seized by the agents. Because appellee has failed to demonstrate that he was prejudiced by the Rule 41(d) violation in this case, we hold that it was error for the district court to suppress the seized items and their fruits.

The judgment of the district court will be vacated, and the proceedings will be remanded in accordance with the foregoing.

      . (d) Execution and Return unth Inventory. The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The federal magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.

      . Both the original return and the copy handed to appellee list the following property taken pursuant to the warrant:
      1 — 80 gallon copper pot type still

        1 — Vi Pint sample of mash
      2 — 1 gallon glass jugs, each containing 1 gallon of illicit distilled spirits each
      1— 1 gallon glass jug containing y¿ gallon of illicit distilled spirits
      2— 3 gallon buckets, empty
      1 — 15 gallon garbage can, empty
      3— -1 gallon plastic jugs, empty

        1 — 2y2 gallon demijohn, empty
      1 — plastic funnel

      . Mr. Villanova: * * * I take it, Mr. Bartley, one of the things you do not dispute is that Mr. Hall got a copy of the return, and the return was complete.
      Mr. Bartley: No, I don’t believe we have ever raised that or disputed that fact. Appendix at 143a.

      . Although the original return lacked the agent’s and magistrate’s signatures, it contained a complete list of the items seized, set forth the date and time of the search and listed the persons in whose presence the inventory was made.

      . Appellee filed no cross appeal from this portion of the court’s oral order.

      . We likewise reject appellee’s Fifth Amendment due process argument. Assuming that the due process clause of the Fifth Amendment is applicable to Rule 41(d) violations and that the suppression remedy is applicable to such a deprivation, the undisputed facts of this case do not rise to such a deprivation.

      . United States v. McKenzie, supra, 446 F.2d at 954.

      . United States v. Kennedy, supra, 457 F.2d at 67.

      . (f) Motion to Suppress. A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12.

      . Because we agree with appellant’s Rule 41(d) contention, we need not decide if appellee has standing to move for suppression of evidence. Cf., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).