author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Andrew Carmen MENICHINO, Defendant-Appellant.
    No. 73-2511.
    United States Court of Appeals, Fifth Circuit.
    July 29, 1974.

      Gerald A. Messerman, Cleveland, Ohio, for defendant-appellant.
    Robert W. Rust, U. S. Atty., Barbara E. Vicevich, Asst. U. S. Atty., Samuel Sheres, Sp. Atty., Dept, of Justice, Miami, Fla., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   WISDOM, Circuit Judge:

Andrew Menichino appeals his conviction and the sentence imposed after a jury brought in a verdict of guilty against the defendant on charges of conspiracy and importing and possessing with intent to distribute a Schedule II narcotic controlled substance (cocaine). Menichino first asserts that several incriminating statements he allegedly made after he was arrested were allowed in evidence in violation of the strictures set out in Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and its progeny. Menichino next contends that an out-of-court statement linking him to the purchase of cocaine was admitted in violation of his right to confront the witnesses against him and without sufficient independent evidence of his participation in a conspiracy to justify the government’s invoking the co-conspirator exception to the hearsay rule. Finally, the appellant maintains that the disparity between his sentence and that imposed on his co-defendant is violative of his rights to the equal protection of the laws and to trial by jury, and that his severe sentence may have resulted from the improper use of an erroneous presentence report. We find all of these contentions to be without merit. We affirm.

I.

On February 2, 1973, Menichino’s co-defendant, Stephen Thomas Brown, and a friend named Taron Caine left the United States for Bogota, Colombia, to start a clothing business. On February 14, 1973, Caine told Brown that before leaving the United States he had received ten thousand dollars from a person whom Brown had met, but knew only as “Andy”. As Andy had instructed, Caine related, he had used the money to purchase 3.3 pounds of cocaine, which he and two unnamed Colombians had secreted in a suitcase. Caine asked Brown to take the suitcase to Grand Rapids, Michigan, to call “Andy”, and to give him the cocaine. Brown agreed, and flew from Bogota to Miami with the contraband, but upon his arrival at the Miami Airport, the cocaine was discovered in a routine customs inspection and Brown was arrested. After his arrest, Brown agreed to cooperate with customs authorities, and to deliver the cocaine as Caine had directed.

On February 19th, Brown and a special customs agent flew to Detroit, drove to Grand Rapids, and, after they had been joined by other customs agents with recording equipment, called the telephone number given Brown by Taron Caine. They recorded a brief conversation with a woman who gave them the number of a pay telephone, at which they could reach Andy “in twenty minutes”. Brown made the second call, which was also recorded, and a meeting was arranged between Brown and Andy at the cocktail lounge of a nearby Howard Johnson’s restaurant. At the restaurant, “Andy”, who was identified as the defendant-appellant Andrew Menichino, asked Brown how much cocaine he had with him, and remarked that he could sell it all within a week to ten-day period. A handbag containing some cocaine (and several pounds of dextrose which had been substituted for the bulk of the shipment) was exchanged, and Menichino left, but was apprehended as he drove from the restaurant parking lot. On the seat of the car was the handbag containing the cocaine which Menichino had received from Brown.

Upon arrest, Menichino was advised of his rights. He stated that he understood them, and was taken to a police station for processing. When he arrived, a written form advising him of his rights was read to the appellant, and he again stated that he understood his rights, but declined to make a statement or sign the waiver or rights form and requested that he be permitted to call his attorney. He was told that he could call his attorney as soon as the “biographical” was taken, a process during which he would be fingerprinted, photographed, and asked to provide such information as his name, address, and social security number for police records. Menichino agreed. During this period there was no interrogation about the crime by police officers or customs agents.

Nonetheless, several statements introduced at trial were volunteered by Menichino during this period. While the biographical information was being obtained, Menichino asked what charges would be filed against him. He was told that he would be charged with smuggling narcotics, illegal importation of narcotics, and possession of narcotics with intent to distribute. Menichino then said, “I don’t know if you guys got me on those smuggling charges, but you sure have me on possession.” Later, another agent entered the room, remarked that he had been inventorying Menichino’s automobile, and asked him a question about it. Menichino said, “I was lucky I was driving the Olds, you don’t think I want you guys driving my Jaguar.” Menichino also asked an agent, “How long have you had my phone tied up?” He apparently made two further statements, again without prompting from the agents or other law enforcement officers present: “You guys just got the small load, you missed the big one”; and “You guys have a good time on that stuff, that stuff is good.” Even after these statements were made, no follow-up questions were asked by the agents, and once the booking process was complete, Menichino called and spoke to someone whom he identified as his attorney. He was then taken to the county jail.

Menichino was charged in a three-count indictment with (1) illegally importing cocaine into the United States in violation of 21 U.S.C. § 952 and 18 U.S.C. § 2, (2) possessing cocaine with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, and (3) criminal conspiracy to violate 21 U.S.C. § 952(a). Brown was similarly charged. Both defendants pleaded not guilty, but on the day the trial commenced, May 22, 1973, Brown withdrew his not guilty plea, submitted a plea of guilty to the conspiracy count, and the other charges were dropped. Menichino was then tried alone, and Brown testified for the prosecution. Menichino was found guilty on all three counts. At sentencing, Meniehino’s attorney asked to see the defendant’s presentence report. This request was complied with, and Menichino then received concurrent seven-year sentences on each of the three counts, and a three-year special parole term as well. Brown was sentenced to two years probation, plus a three-year special parole term which was suspended.

II.

The appellant’s first contention compels us to examine four of our post-Mircmda decisions: United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129, cert. denied 1973, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041; United States v. Ramos, 5 Cir. 1971, 448 F.2d 398; United States v. Phelps, 5 Cir. 1971, 443 F.2d 246; and United States v. Hopkins, 5 Cir. 1970, 433 F.2d 1041, cert. denied 1971, 401 U.S. 1013, 91 S.Ct. 1252, 28 L.Ed.2d 550. Each of these decisions concerns, in a slightly different context, the problem that confronts us here: the interplay between Miranda’s requirement that law enforcement officers unequivocally advise suspects that they have a right to consult counsel immediately, before undergoing custodial interrogation, and its caveat that statements vplunteered by a suspect may be admitted against him at trial. Here, when counsel was requested, interrogation as to the defendant’s involvement in criminal activity ceased; but counsel was not immediately provided, and apparently the defendant made voluntary but incriminating statements during the interim.

Although the parties do not really contest the context in which the statements were made, they vigorously dispute its significance. Thus, Menichino contends not only that his statements were improperly admitted at trial, but that the affront to Miranda was twofold. First, although he was advised of his right to counsel and his right to remain silent, the warning was a qualified one, since he was told that counsel would be available only after the “biographical” was taken and processing was complete. Such a warning, Menichino maintains, indicating that counsel would be available only in the future, runs afoul of Miranda’s requirement that counsel be. made available “here and now.” See Lathers v. United States, 5 Cir. 1968, 396 F.2d 524, 535. Second, once he had indicated a desire to remain silent and to consult an attorney, the officers nonetheless continued to interrogate him, and during this interrogation incriminating statements were elicited. Miranda will not countenance the admission of such statements at trial, the appellant concludes, and reversal is therefore required. Many of the appellant’s assertions, at least as general principles, are unassailable, and are not in fact contested by the Government. Rather, the government’s point is a limited one: the admission of Meniehino’s statements is not forbidden by Miranda, since they were made voluntarily and were not the product of custodial interrogation. To determine whether admitting the statements was proper, then, we turn first to Miranda.

Central to the thrust of the Miranda decision is the right of a suspect to consult with an attorney before he is questioned and to have counsel present at any in-custody interrogation. 384 U.S. at 470, 86 S.Ct. at 1626, 16 L.Ed.2d at 721. Once warned, a suspect may waive his right to counsel, but if he indicates at any time before or during questioning that he wishes to remain silent or desires an attorney, questioning must cease, at least until an attorney is present. 384 U.S. at 473-474, 86 S.Ct. at 1627, 16 L.Ed.2d at 723. This does not mean, the Court was careful to point out, that each police station must have a “station house lawyer” at the ready to consult with each suspect as soon as he is apprehended. Nor does Miranda teach that the police may do nothing concerning the investigation of a crime until counsel is provided. What is prohibited is custodial interrogation absent counsel or proper waiver. 384 U.S. at 474, 86 S.Ct. at 1628, 16 L.Ed.2d at 724.

Balanced against this principle in cases such as the present controversy is another tenet, for Miranda, by its terms, is not designed to exclude statements freely given by a suspect after he has been properly advised of his rights:

Any statement given freely and voluntarily without compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today. [Emphasis added.]

384 U.S. at 478, 86 S.Ct. at 1630, 16 L.Ed.2d at 726. As an examination of the four decisions of this Court cited above will illustrate, it is this second principle that is the proper fulcrum for our decision here.

The earliest of the four, United States v. Hopkins, involved a defendant who, like Menichino, refused to sign a form waiving his rights to silence and counsel. When the agent questioning him then attempted to terminate the interrogation, however, Hopkins initiated a second conversation, during which he made an incriminating statement. The Court there held that since there was no evidence that the agent persisted in interrogating Hopkins after his refusal to sign the waiver form, the Government had met its “heavy burden” of demonstrating true waiver. To the Court, this situation was analogous to “those instances where the accused voluntarily confesses prior to questioning”. 433 F.2d at 1044.

Two 1971 decisions, United States v. Phelps and United States v. Ramos, further refined the principles outlined in Hopkins. In Phelps, a successful motion to suppress was vacated and remanded because the initial hearing on the motion did not reveal whether the questions which elicited the incriminating statements were “the result of voluntary conversation initiated by Phelps” or “were initiated by the officers themselves without any instigation by Phelps”. If the statements were officer-initiated, the Court held, Hopkins mandates exclusion; if Phelps’s state-' ments were truly voluntary, however, they properly could be admitted. 443 F.2d at 249-250. In Ramos, no remand was required since the record,

clearly reveal [ed] that neither of the defendants voluntarily initiated further conversations subsequent to their refusal to sign a waiver form. Rather, the Government agent himself initiated further questioning without any instigation by either defendant. Therefore, under our decision in Phelps, we hold that the agent’s refusal in this case to terminate each interview violated the Supreme Court’s mandate in Miranda and that the defendants’ incriminating statements were thereby rendered inadmissible.

448 F.2d at 399.

United States v. McDaniel involved a defendant who was apprehended while transporting burlap bags containing marihuana in the trunk of his car, and thereafter made incriminating statements. We declined to exclude the statements, since they “were not made in response to any questions by the agents that solicited any information regarding the contents of the trunk”. [Emphasis added]. Like Menichino, McDaniel had been given full Miranda warnings, but had declined to sign a waiver form.

From these decisions, we can distill a standard against which to judge the admission of the statements here; Incriminating statements elicited by law enforcement officers through questions relating to the criminal activity itself, during an interrogation fairly characterized as custodial and after a refusal to sign a waiver form or a request for counsel, may not be admitted at trial. So viewed, the statements challenged here are admissible. Menichino was at least twice advised of his rights. He twice stated that he understood them, and on the second occasion, refused to sign a waiver of rights form and asked to call his attorney. Once this desire was expressed, the agents present asked no further questions about Menichino’s involvement in criminal activity, and told him that he could telephone his attorney as soon as some biographical information was obtained from him. Menichino agreed, and during the course of the questioning, fingerprinting, and photographing process, he volunteered the incriminating statements. In these circumstances, neither Miranda, nor this Court’s decisions interpreting it, requires exclusion of Menichino’s statements.

The appellant, however, would have us rely on the District of Columbia Circuit’s decision in Procter v. United States, 1968, 131 U.S.App.D.C. 241, 404 F.2d 819. In Procter, incriminating statements made by a defendant during the booking process and before an attorney was available were held to be protected by Miranda, and the case was remanded to determine whether a valid waiver of Miranda rights had occurred. Quoting Mallory v. United States, 1957, 354 U.S. 449, 454, 77 S.Ct. 1356, 1359, 1 L.Ed.2d 1479, 1483, the court held that,

“* * The arrested person may, of course, be ‘booked’ by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements . . . .” 404 F.2d at 821 [emphasis by D.C. Circuit].

We decline to follow Procter for two reasons. First, the biographical questions asked here did not “lend [themselves] ... to eliciting damaging statements . . . .” The interrogation appears to have been a straightforward attempt to secure biographical data necessary to complete booking, and the questions asked did not relate, even tangentially, to criminal activity. McDaniel suggests that such inquiry is permissible, a suggestion we endorse here. Moreover, and more importantly, in Procter, the incriminating statement was made in response to one of the questions asked Procter during the booking procedures. Thus, the court concluded, “ [h] is answers . . . cannot be considered voluntary in the sense required by Miranda”. 404 F.2d at 821. In considering Menichino’s statements, we have reached an opposite conclusion. Had his statements been made as answers to officer-initiated inquiries, we would have to decide whether to follow Procter and exclude such non-voluntary utterances. Here, however, Menichino volunteered the statements incriminating him, and their admission constitutes no affront to Miranda.

III.

Next the appellant challenges the admission of Stephen Brown’s testimony at trial to the effect that Taron Caine told him that Meniehino had given him [Caine] ten thousand dollars to purchase cocaine in Colombia. This testimony was hearsay, the appellant asserts, and to admit it was error, both because the proper foundation was not laid to admit it under the co-conspirator’s exception to the hearsay rule, and because it denied Meniehino the right to confront the witnesses against him. Also challenged is a preliminary instruction by the trial court concerning the manner in which the jurors should view the testimony of an alleged co-conspirator. None of these objections requires reversal, however.

We turn first to Menichino’s contention that there was not sufficient independent proof of a conspiracy to invoke the co-conspirator’s exception to the hearsay rule. The appellant does not quarrel with the long-standing maxim that the statements of one conspirator to a third party are admissible against, his co-conspirator at trial if there is independent proof of the existence of the conspiracy and the co-conspirator’s participation in it. See Lutwak v. United States, 1953, 344 U.S. 604, 617, 73 S.Ct. 481, 489, 97 L.Ed. 593, 603; Glasser v. United States, 1942, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680, 701. Rather, Meniehino argues that since the Government offered no evidence (other than the challenged statement) of any communication or meeting between him and Taron Caine, there is no evidence establishing the “likelihood of an association for illegal purposes” among Brown, Caine and Meniehino. Thus there was no independent proof of Menichino’s participation in a conspiracy, and the hearsay statement was improperly admitted.

We cannot agree. To establish the existence of a criminal conspiracy all that need be proved is an agreement between two or more people to commit an offense, followed by an overt act by at least one of them in furtherance of the plan’s illegal end. United States v. Falcone, 1940, 311 U.S. 205, 210, 61 S.Ct. 204, 207, 85 L.Ed. 128, 132. On the face of Brown’s testimony, an agreement was shown among Caine, Brown, and the unnamed Colombians to smuggle cocaine into the United States and to transfer it once there. Certainly Caine’s concealment of the narcotic in Brown’s suitcase and Brown’s attempt to enter the United States with the drug are sufficient to fulfill the overt act requirement. Nor can Meniehino argue that if a conspiracy existed the evidence was insufficient to weave him to its web. On the basis of uncontroverted non-hearsay testimony, it is apparent that Brown called a Grand Rapids telephone number given him by Caine, and was told to telephone “Andy” in twenty minutes at another number. Once Brown placed the second call, a meeting was arranged at which Meniehino inquired, without prompting from Brown, about the quality and quantity of the “stuff” in Brown’s possession, discussed his plans for its distribution, and accepted delivery of the cocaine. Although it is true that an individual’s mere presence at the scene of a crime or mere association with persons involved in a criminal enterprise is not sufficient to prove participation in a conspiracy, United States v. Owen, 5 Cir. 1974, 492 F.2d 1100, 1103-1104, much more has been shown here. Menichino was at the scene of the transfer not by chance but by design; his was the role not of a mere observer but of that of the mastermind of the criminal transaction. His actions are consistent only with the hypothesis that he was the knowing and willing terminal link in a chain forged in Colombia. Once, as here, a conspiracy has been demonstrated, such substantial circumstantial evidence will suffice to prove a defendant’s participation in it, and to sanction the admission of hearsay testimony from his co-conspirators. Lopez v. United States, 5 Cir. 1969, 414 F.2d 909, 911.

Menichino also argues, however, that even if Caine’s statement to Brown was properly received under an exception to the hearsay rule, admitting it was error since the confrontation values implicit in the Sixth Amendment were violated by its admission. California v. Green, 1970, 399 U.S. 149, 155, 90 S.Ct.1930, 1933-1934, 26 L.Ed.2d 489, 495, made it plain that although the confrontation clause protections and the hearsay rule overlap, they are not coextensive. Thus even statements properly admitted under hearsay rules may be examined by the court to assure that “the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement”. Dutton v. Evans, 1970, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213, 227, quoting California v. Green, 399 U.S. at 161, 90 S.Ct. at 1936, 26 L.Ed.2d at 498. Read together, Green and Dutton instruct that a case-by-case analysis is necessary to determine

whether, under the circumstances, the unavailability of the declarant for cross-examination deprived the jury of a satisfactory basis for evaluating the truth of the extrajudicial declaration.

United States v. Adams, 9 Cir. 1971, 446 F.2d 681, 683, cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257. If so, and if the challenged testimony is “crucial” to the prosecution or “devastating” to the defense, it must be excluded.

Several Court of Appeals have avoided the necessity of the case-by-case analysis in some federal prosecutions by discerning a congruence between the Confrontation Clause and the federal co-conspirator rule that the Supreme Court did not find in Dutton’s analysis of the more wide-ranging Georgia co-conspirator exception. We need not yet call this Court to that muster, however, since it is apparent here that the challenged testimony was neither “crucial” nor “devastating”. As we pointed out above, there was ample evidence to establish the existence of a conspiracy — • and Menichino’s membership in it— without Caine’s statement that “Andy” had given him ten thousand dollars to purchase cocaine. The same evidence was ample to convict him on the illegal importation count. And, plainly, the statement objected to by the appellant could have had no impact on the possession with intent to distribute count. Despite Menichino’s protestations, then, the statement was neither “crucial” to the prosecution’s case, nor was its admission “devastating” to the defense. Thus Dutton and Green do not require its exclusion.

Menichino also challenges an instruction delivered to the jury by the court immediately following Brown’s testimony concerning the out-of-court declarations by Taron Caine:

THE COURT: Ladies and gentlemen of the jury, the conversations of persons who are members or who there is some evidence in the record to indicate are members of a conspiracy may be considered by the jury in determining whether or not the Government has proven the case beyond and to the exclusion of all reasonable doubt with respect to a conspiracy charge. A conspiracy is charged in Count I. Conspiracies are not charged in Counts II and III of this indictment.
Therefore, you will not consider— and you will be instructed at the conclusion of the trial — the statements that the witness just made with respect to his conversations with Taron Caine when you are considering Counts II and III.
You may consider and give sucn weight as you think appropriate the conversations that have just been related with Taron Caine when you are considering Count I.
You see, normally hearsay testimony is not admissible except when you are dealing with a conspiracy.
So, you may only consider the hearsay testimony just related by the witness when you are considering Count I. You may not consider it when you are considering Counts II and III. You will be further instructed on this at the conclusion of the case.

Although the defense made no immediate objection to this instruction, at the commencement of proceedings the morning after it was given, Menichino’s attorney asked that the jury be instructed that in giving the previous day’s charge, the court had not intended to voice an opinion as to the existence or non-existence of a conspiracy involving the defendant. The court agreed, and at the close of trial, in addition to rendering a full and proper exposition of the weight to be given a co-conspirator’s testimony, the court delivered a curative instruction disavowing any opinion, express or implied, as to the facts of the controversy. Menichino now contends that the challenged instruction left the jury with the impression that the court believed a conspiracy existed. Even were we to read the special instruction as does the appellant — and we do not— any harm done by the charge was vitiated by the later proper and curative instructions.

IV.

In his final series of contentions, the appellant attacks his sentence, three concurrent seven-year terms and a special parole term of three years. First, Menichino cites the fact that Brown, who was charged in the same indictment as the appellant but pleaded guilty to a single count, received only two years probation and a three-year parole term. Not only does this disparity deny him the equal protection of the laws, Menichino contends, but “it is perfectly evident that appellant was penalized for his insistence upon the right to a trial”. Challenges to a sentence within the statutory maximum must be viewed against the backdrop of countless decisions by this Court resting the determination of sentence in the hands of the district judge; only if the district court has abused its discretion will the sentence be disturbed on appeal. E. g., Finch v. United States, 5 Cir. 1974, 493 F.2d 455, 456; United States v. McGhee, 5 Cir. 1974, 488 F.2d 781, 786, petition for cert, filed. Thus, although the appellant cloaks his contentions in constitutional guise, it is only an abuse of discretion that we must look for, since it is patent that the imposition of a sentence within the statuory limit “does not ascend to the orbit of a constitutional violation”. Castle v. United States, 5 Cir. 1968, 399 F.2d 642, 652.

So viewed, it is apparent that this sentencing decision reveals no abuse of discretion. Menichino’s contention that he received a harsher sentence than Brown because he failed to plead guilty is belied by the relative roles the two men played in the narcotics enterprise. Menichino was the moving force, the man whose money gave the impetus to the entire operation. Without the ten thousand dollars he gave Taron Caine, the Colombian “connection” could never have taken place. Moreover, if, as Menichino boasted, the customs agents “just got the small load, [but] missed the big one”, the district judge properly could have inferred that Menichino’s involvement in illegal narcotics importation was both extensive and direct. Stephen Brown, on the other hand, was a mere courier, and when apprehended by the customs officials, he agreed to assist the Government in capturing Menichino, the apparent chieftain of the operation. He testified against Menichino at trial. The judge did not abuse his discretion in imposing a relatively lenient sentence on Brown, in light of his minor role in the scheme, and his cooperation with customs officials.

Finally, Menichino alleges due process violations in the district court’s use of a presentencing report which contained “anonymous accusations of criminal conduct against the accused”. The appellant’s attorney asked at the time of sentencing to see the report and, after examining it, denied its implication that Menichino was involved in criminal activity which had not been the basis of any formal charge. He neither objected to the imposition of sentence at that time, nor sought a continuance of the sentencing hearing. We have examined the transcript of the sentencing hearing and are convinced that there was no denial of due process as a result of the use of the presentencing report. Counsel for the defendant made an able and effective argument for leniency, and his client received a sentence less than the statutory maximum. Since he did not ask that sentencing be delayed, he cannot now object to its result.

For the reasons outlined above, the conviction and sentence appealed from are

Affirmed.

      . In oral argument, counsel for the Government pointed out that this final statement was made after Menichino had spoken by telephone to someone whom he identified as his attorney. Neither the appellant nor the appellee contends that this fact alters the impact of Miranda here, however, and it is undisputed that Menichino’s attorney was not present when the statement was made.

      . We do not understand the appellant to argue that “booking” a suspect without counsel present is a per se violation of Miranda.

      . This position is also adopted by Tentative Draft No. 6 of the American Law Institute’s Model Code of Pre-Arraignment Procedure. Article 140 of the Code, which carefully defines the permissible conditions of in-custody investigation and interrogation, specifically exempts non-investigative interrogation from its stringent safeguards:
      (5) Non-investigative Questioning: As used in this Code, ‘questioning’ refers to questioning designed to investigate crimes or the involvement of the arrested person or others in crimes. Compliance with the procedures set forth in this Article 140 is not required in connection with other conversation between the arrested person and law enforcement officers.
      ALI Model Code of Pre-Arraignment Procedure § 140.8(5) (Tent. Draft No. 6, 1974). In explaining this provision, the Code’s Reporter observes that “[t]his subsection makes it explicit that the word ‘questioning’ is meant to cover investigative questioning”. [Emphasis in original]. ALI Model Code of Pre-Arraignment Procedure § 140.8, Note (Tent. Draft No. 6, 1974), at 44. In an instance of non-investigative interrogation such as that presented here, then, like Miranda, the ALI Model Code would not require exclusion of volunteered statements.

      . Q Mr. Brown, what conversations, if any, did you have with Taron Caine concerning the money to be paid for the cocaine?
      A I was told that the money was already paid, that it was given to him before he went with me to Columbia and it was given to him by Andy.
      Q Now, when you say he, who told you?
      A Taron Caine.
      Q Specifically what did he tell you about the money?
      A He told me that it was given to him by Andy for the purchase of cocaine.
      Q Approximately how much money was involved ?
      A Ten thousand dollars.
      Q When did Taron Caine tell you tljis?
      A The Wednesday — the day that he bought the cocaine.

      . As the First Circuit has phrased it:
      The federal co-eonspirators rule, deeply embedded in usage, grounded on the presumed reliability of admissions against interest, and safe-guarded by the requirement of a prima facie agreement, does not violate the confrontation clause.
      United States v. Clayton, 1 Cir. 1971, 450 F.2d 16, 20, cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250; accord, United States v. Cox, 10 Cir. 1971, 449 F.2d 679, 688-689, cert. denied, 1972, 406 U.S. 934, 92 S.Ct. 1783, 32 L.Ed.2d 136; United States v. Weber, 3 Cir. 1970, 437 F.2d 327, 339-340, cert. denied, 1971, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867.

      . MR. MESSERMAN: Your Honor, before the jury is brought in I have a motion for you to rule upon.
      First, Your Honor, yesterday the Court overruled the objection to the co-conspirator statement and the Court instructed the jury that the statement was coming in under the co-conspirator exception to the hearsay rule stating that this is an exception to the hearsay rule.
      I think, Your Honor, that the instruction, the statement that was given, although I appreciate the fact the Court indicated that it would be instructed more fully concerning that question, implied the existence of a conspiracy and I would ask Your Honor that the jury be instructed at this point that the Court by admitting that testimony did not intend to indicate any opinion concerning the existence or non-existence of the conspiracy and the Court will charge the jury more fully concerning the manner in which this evidence is to be considered at the conclusion of the case.
      THE COURT: All right.

      . The court instructed :
      In determining whether or not a defendant or any other person, was a member of a conspiracy, the jury are not to consider what others may have said or done. That is to say, the membership of a defendant, or any other person, in a conspiracy must be established by the evidence in the case as to his own conduct what he himself wilfully said or did.
      Whenever it appears beyond a reasonable doubt from the evidence in the case that a conspiracy existed, and that a defendant was one of the members, then the statements thereafter knowingly made and the acts thereafter knowingly done by any person likewise found to be a member, may be considered by the jury as evidence in the case as to the defendant found to have been a member, even though the statements and acts may have occurred in the absence and without the knowledge of the defendant, provided such statements and acts were knowingly made and done during the continuance of such conspiracy and in furtherance of some object or purpose of the conspiracy.
      Otherwise, any admission or incriminatory statement made or act done outside of court, by one person, may not be considered as evidence against any person who was not present and did not hear the statement made, or see the act done.

      . The court cautioned :
      The function of the jury is to determine the facts. This should be done without prejudice, sympathy, fear or favor, and solely from a fair consideration of the evideuce. The evidence should be considered and viewed by the jurors in the light of their own observations, experience and common sense. If during the trial, the Court has intimated any opinion as to the facts of this case, the jury should entirely disregard such intimation, since you, the jurors, are the sole and exclusive judges of the facts.


source: Caselaw Access Project

author: KRAFT, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred WILBURN, etc., Defendant, Antonio Salinas, etc., et al., etc., Defendants-Appellants.
    No. 73-3554.
    United States Court of Appeals, Fifth Circuit.
    July 29, 1974.
    Oscar Spitz, J. A. Tony Canales, Corpus Christi, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Jack Shepherd, Acting U. S. Atty., William L. Bowers, Jr., Asst. U. S. Atty., Morton Hollander, Houston, Tex., Bruno A. Ristau, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before DYER and' MORGAN, Circuit Judges, and KRAFT, District Judge.
   KRAFT, District Judge.

Appellants, Antonio Salinas (Salinas), Clerk of the District Court of Duval County, Texas, and Israel Saenz (Saenz), Sheriff of the same county, appeal from a preliminary injunction ordered by the United States District Court for the Southern District of Texas, which, in very broad terms, prohibited them from “issuing any process of any nature . . . for any consular personnel or any subpoenas for the production of documents which are any part of the consulate records of the Consul of the Republic of Mexico in Corpus Christi, to Ernestina Fernandez Picazo or any other member of the consulate staff . . . .”

The genesis of the ultimate injunction was the issuance by Salinas, on August 13, 1973, of a subpoena, which directed that the executing officer summon Mrs. Ernestina Fernandes, Mexican Counsel (sic) to appear before the District Court of Duval County at 10 A.M., August 15, 1973 to testify in a cause there pending, to wit: Archer Parr v. Jody Martin Parr and to bring with her and produce an application of Jody Martin Parr, dated May 2, 1973. It is conceded that the application sought was one for an ordinary tourist’s card to visit Mexico and similar to applications obtainable for like use at Mexican airline ticket offices in the United States.

The subpoena was transmitted on August 14, 1973 to a Constable Wilburn, who gave it to Deputy Constable Gonzalez for service. Sheriff Saenz does not appear to have been involved in any way. The deputy constable made two efforts on that day to serve the subpoena at the residence of Mrs. Ernestina Fernandez, who is conceded to have then been Vice Consul. Both attempts at service failed, because the Vice-Consul indicated she was ill in bed and could not come to the door. The deputy constable abandoned his efforts to serve the subpoena and on the same day made his return on the subpoena “not executed”. It was so filed by Salinas’ office on August 15, 1973 at 9:20 A.M.

On the same day, August 15, the complaint in this action, together with an ex parte application for a temporary restraining order, was filed in the court below, which forthwith entered a temporary restraining order and set August 21st for a hearing on an application for preliminary injunction. Following a hearing on August 21st, the preliminary injunction appealed from was entered.

The appellee’s complaint, expressly bottomed on Articles 28 through 35 of the Vienna Convention on Consular Relations, asserts a complete immunity from State process for consular officials, records and premises from seizure, subpoena or arrest. Appellants, correctly pointing out that only a State subpoena is involved here, urge that, in these circumstances, whatever immunity may exist is specifically qualified under Article 44.

Examination of Articles 28, 29, 30, 32, 34 and 35 discloses no relevance to the present controversy.

Article 31 provides that authorities of the host State shall not enter that part of the consular premises which is used exclusively for the work of the consular post, except with the consent of designated persons. No such entry was made, attempted or threatened by appellants.

Article 33 provides that the consular archives and documents shall be inviolable at all times wherever located. “Consular archives” is defined by Article l(k) to include all the papers, documents, correspondence, books, films, tapes and registers of the consular post together with the ciphers and codes, the card-indexes and any article of furniture intended for their protection or safekeeping. Whether the application for a tourist’s card filed by Mrs. Parr is, per se, a “consular archive or document” is not immediately clear, particularly in light of the provisions of Article 44, entitled “Liability to give evidence”:

“1. Members of a consular post may be called upon to attend as witnesses in the course of judicial or administrative proceedings. A consular employee or a member of the service staff shall not, except in the cases mentioned in paragraph 3 of this Article, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him.
2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of his functions. It may, when possible, take such evidence at his residence or at the consular post or accept a statement from him in writing.
“3. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence and documents relating thereto . . . .”

The court below failed to give consideration to Article 44 and thereby fell into error. The carefully drawn distinctions, evident upon analysis of Articles 1 and 44, must be given due effect. The Vice-Consul was, as a “consular officer,” a “member of the consular post” and, so, under Article 44 § 1 was eligible to be called upon to attend as a witness in the State judicial proceeding, as were “consular employees” and “members of the service staff”. The issuance and attempted service of the subpoena did not contravene the treaty.

If subpoenaed, the Vice-Consul as a “consular officer” would have had the right to elect whether to testify or to decline to do so, and in the latter event was subject to no sanction. On the other hand “consular employees” and “members of the service staff” had no such option, except in the cases mentioned in § 3 of Article 44. The order of the court below, which prohibited the issuance and service of any subpoena, relieved the Vice-Consul of all possibility of being called upon to make an election and precluded the State court from ascertaining the election made by the Vice-Consul. The court below could not justifiably assume that the State court would ignore or misapply the treaty provisions.

As a “consular officer” and, so a “member of the consular post”, the Vice-Consul, under Article 44 § 3 was under no obligation to give evidence concerning matters connected with her consular functions or to produce any official correspondence or documents relating thereto — nor was she prohibited from so doing. Again, it was the province of the Vice-Consul, not the court below, to determine whether the application of Mrs. Parr sought by the subpoena, was a document relating to the exercise of consular functions. If the Vice-Consul decided it was such a document, she would be under no obligation to produce it nor would she be prohibited from doing so. The option was the Vice-Consul’s, not that of the Texas court or the court below.

We conclude that the issuance and attempted service of the subpoena were lawful and that, absent any evidence of interference, or threat of interference, by the Texas court with the Vice-Consul’s rights to elect to testify or not and to produce or not to produce the application, the issuance of the preliminary injunction was error.

Reversed and remanded with directions to vacate the preliminary injunctive order.

      . We can only conjecture from the record before us why the subpoena, the complaint in this action, the temporary restraining order and the reply to the application for preliminary injunction designate the Vice-Consul as Ernestina (or Ernestine) Fernandez, while the injunctive order appealed from names her as Ernestina Fernandez Picazo.

      . The record before us does not disclose at whose instance the present action was filed with such celerity. We cannot fairly infer that it could only have been the Vice-Consul, since we were informed at bar that the Vice-Consul and Mrs. Parr, the defendant in the Duval County divorce action, were represented by the same attorney.

      . 21 U.S. Treaties 77. This was ratified by the Republic of Mexico and the United States prior to the institution of the instant action.

      . Article 1(g) defines members of the consular post to mean, inter alia, “consular officers, consular employees and members of the service staff”; and (d) of the same Article defines consular officer as any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; (e) defines “consular employee” as any person employed in the administrative or technical service of a consular post.

      . Among the consular functions delineated in Article 5(d) is the issuance of visas or appropriate documents to persons wishing to travel to the sending State, here Mexico.


author: JOHN R. BROWN, Chief Judge:

text:
    Yvonne Gwendolyn CASON, Individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. CITY OF JACKSONVILLE et al., Defendants-Appellants.
    No. 73-3102.
    United States Court of Appeals, Fifth Circuit.
    July 26, 1974.

      J. B. Stoner, Marietta, Ga., for W. Eugene Wilson.
    Ralph W. Nimmons, Jr., Frederick J. Simpson, Asst. Gen. Counsel, Jacksonville, Fla., for City of Jacksonville.
    William J. Gibbons, Deitra Micks, Lawrence J. Figur, Steven Mark Gold-stein, Jacksonville, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and TUTTLE and SIMPSON, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

The District Court entered a preliminary injunction prohibiting the City of Jacksonville from permitting the National State’s Rights Party (NSRP) — a lily-white group — from using the Little Theatre of the City’s Civic Auditorium for its annual convention “so long as [the] Party’s membership policies discriminate on the basis of race or color.” The City and NSRP each appeal. The case, simple enough to state, presents awesome problems as First and Fourteenth Amendment rights collide. We vacate and remand to the District Court with directions to (i) dismiss the City of Jacksonville as a defendant for lack of jurisdiction, (ii) allow Appellee to amend her complaint to name the appropriate City officials over whom jurisdiction would exist under 42 U.S.C.A. § 1983 and (iii) to determine and then enter specific findings of fact as to whether the meeting in issue was intended to be a purely private meeting or one open to the public at large.

The City leases the Theatre on a first come first served basis to all applicants. The City entered into an agreement to lease the Theatre to NSRP for the Party’s annual convention scheduled for June 23, 1973.

Appellee Cason brought this class action on behalf of black taxpaying citizens of Jacksonville who desired to attend the National State’s Rights Party’s meeting against the City of Jacksonville and J. M. Johns, as representative of the Party alleging that she would be denied access to the meeting in the public building on account of her race and would therefore be deprived of her right to equal protection of the laws guaranteed by the Fourteenth Amendment. She requested either that she and all members of the public be allowed to attend the Party meeting and that the City provide necessary law enforcement officers to ensure the public safety or alternatively that the City be enjoined from leasing the Theatre to NSRP.

A hearing on the preliminary injunction was held the day before the meeting was scheduled. It was stipulated that NSRP, “is a self-procliamed white racist Christian organization”, bars blacks from becoming members, the scheduled meeting would be open only to NSRP members and invited guests, invited guests are individuals who have been invited through the “Thunderbolt” (a party publication distributed by mail) and invited guests would not vote at the meeting.

Without reaching the First Amendment issues raised by NSRP, the District Court enjoined the City from permitting NSRP to use the Little Theatre on the grounds that in view of the Party’s discriminatory membership policies, such use would violate the equal protection clause of the Fourteenth Amendment and the 1960 permanent injunction entered against the City in Hampton v. City of Jacksonville, No. 4368-Civ-J, December 7, 1960, prohibiting the City from operating or leasing public recreational facilities on a discriminatory basis.

Before getting to our disposition on the merits we must, as often, face a jurisdictional problem. In Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, the Court held that the District Court did not have jurisdiction over a § 1983 damage claim against the City of Chicago since a City is not a person within the meaning of § 1983.

In Harkless v. Sweeny Independent School District, 5 Cir., 1970, 427 F.2d 319 we distinguished Monroe and held that a “municipality” — in that case a school district — was a “person” within § 1983 for the purpose of equitable relief. In justifiable reliance on Harkless, Appellee Cason based her claim for relief and jurisdiction on §§ 1983 and 1343(3) and named as defendant the City of Jacksonville rather than any of the appropriate individual City officials. Subsequent to the issuance of the preliminary injunction but prior to oral argument the Supreme Court in City of Kenosha v. Bruno, 1973, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 rejected the Harkless distinction and held that a municipality is not a person within § 1983 whether for damages or equitable relief and therefore a federal District Court does not have jurisdiction to enjoin a city pursuant to § 1983.

Since the injunction in issue runs against the City proper we must vacate for lack of jurisdiction. Even in the wake of Kenosha it is of course clear that appropriate individual city officials are persons within § 1983 and may properly be named as defendants. United Farm Workers of Florida Housing Project, Inc. v. City of Delray Beach, 5 Cir., 1974, 493 F.2d 799. Considering the posture in which the jurisdictional issue was injected into this litigation and the fact that we deem it proper to vacate and remand to the District Court for further evidence and findings, it is likewise appropriate that the District Court allow Appellee Cason to substitute the appropriate municipal officials charged with executing the duties under attack.

On the merits the case is one, or at any rate close to one, of noble principles on a collision course. See 33 U.S.C.A. §§ 146(2), 201, 341a. NSRP girds its loins with the First Amendment and its guaranteed right of freedom of association and expression of ideas — those palatable as well as obnoxious. Cason, for the class of black citizens taking as Buckler and Shield the equal protection clause of the Fourteenth Amendment, claims that permission by the state for use of public facilities by a particular race or sect and the exclusion of others for reasons of race, or color, is a denial of that right. The City, caught in the middle, presumably takes a middle ground that mandated state-action-equal-protection does not compel overriding free assembly rights of others.

In the arguments before us each undertakes to find the answer to this constitutional riddle in two cases.

The closest in factual setting is the en banc decision of the Fourth Circuit in National Socialist White People’s Party v. Ringers, 1973, 473 F.2d 1010 (en banc). The second, closer to home but further removed in fact, is ours in Gilmore v. City of Montgomery, 5 Cir., 1973, 473 F.2d 832 and, since that time, the Supreme Court’s action on certiorari, 1974, - U.S. -, 94 S.Ct. 2416, 40 L.Ed.2d-.

We do not think we should either try to draw the Equal Proteetion/First Amendment line or elucidate some principle of accommodation or in doing so embrace or reject Ringers. Before we adjudicate that problem of transcendent significance we should be certain that we are doing so in the light of a real Article III case and controversy on facts which really are, not what some one supposes or says them to be. Byer v. Byer, 5 Cir., 1958, 254 F.2d 205.

The arguments of counsel highlighted what we do not know and the likely significance one way or the other of the fact once found. What we do not know is whether this meeting was a purely private meeting or one to be open to the public.

If it were closed to all save NSRP members and specifically invited guests the result might be one thing. On the hypothesis that the meeting was in fact intended to be a bona fide private meeting it would be necessary to determine whether an organization with racially discriminatory membership policies could constitutionally be allowed to hold such a meeting in a public facility.

If, on the other hand, the Court finds that the meeting would have in fact been open to non-members but limited to the white public at large, we can say without reservation that the District Court’s injunction would be entirely proper. If the meeting was not intended to be a private meeting at all but was to be open to the public at large whether white or black, then Appellee’s request for admission to the meeting would dissolve but we would then have the problem decided by the Fourth Circuit (see note 12).

The fact that we require the District Court to make a factual finding as between the two possible types of use of the facilities is not intended to suggest that our ultimate decision of the law will necessarily depend upon the distinction made by the trial court. We simply pretermit this question until the record is completed.

Although this Court will, as it always has, face up to resolution of the potential conflict between the First Amendment right to associate in a public forum and the Fourteenth Amendment right to be free from racially discriminatory state action, the very shape of the issues as well as their resolution will be dependent upon the specific facts. Accordingly, we regard an ascertainment by the District Court of the public/private character of the intended meeting as a prerequisite to further constitutional adjudication.

The judgment is vacated and the cause remanded for further evidentiary hearing, findings of fact, conclusions of law and other action consistent with this opinion.

Vacated and remanded.

      . The signer and negotiator of the lease on the Party’s behalf.

      . The NSRP membership application espouses both its political character and its beliefs:
      The National States Rights Party is by far the largest White Racist political Party in America. Both Democratic and Republican Parties have betrayed the White People of America. The NSRP is the last hope of the Whiteman to save our White Christian Civilization.
      The NSRP is the only political Party vigorously defending White Rights throughout America today. Gain the personal satisfaction of knowing that you are doing your part to bring about a better society in which to live.
      Compare our Party Platform with that of the left-wing Democratic and Republican Parties. Only within our ranks can you find the full answer to the grave problems facing the United States.
      Join the National States Rights Party and become an active part of the dynamic crusade to save our Race and Nation. Simply fill out the application blank below.

      . The Court observed that the City had complied with paragraph 8 of the Hampton order which required the City to inform all lessees of the injunction and its requirements. The City had inserted the following paragraph into its lease with NSRP :
      “20. The City is required by Judgment of the United States District Court for the Southern District of Florida, Jacksonville Division, to operate its Jacksonville Veterans Memorial Coliseum, Exhibition Hall, Auditorium and Theatre without discrimination of any kind based on race or color and Lessee must comply therewith.”
      Furthermore, in a letter to the City Director of Community Relations (which was made available to NSRP) the General Counsel for the City stated that he was of the opinion that the City could lease the Theatre to NSRP without violating the Hampton injunction so long as the meeting from which blacks would necessarily be excluded would not be open to the public at large.
      The District Court determined that NSRP’s membership policies reflected a purpose on its part not to comply with the Hampton injunction.

      . 42 U.S.C.A. § 1983

        Civil action for deprivation of rights

      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
      R.S. § 1979.

      . § 1343. Civil rights and elective franchise

      The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
      color of any State law, statute, ordinance,
      (3) To redress the deprivation, under regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States ;

      . Since there is undeniable state action in the City’s ownership and leasing of the Theatre, there is no need to equate NSRP with the state for state action purposes even though as a political party constituting a part of the electoral process state status might be attributed to it. See Terry v. Adams, 1953, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152; Smith v. Allwright, 1944, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987; Nixon v. Condon, 1932, 286 U.S. 73, 52 S.Ct. 484, 76 L.Ed. 984. Of course, Johns is a person within § 1983 and this Court obviously has appellate jurisdiction over the appeal as between him and Cason.

      . She also contends that this violates the public accommodation provisions of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000a and the Hampton injunction (see note 3, supra.).

      . We do not regard the validity or interpretation of Hampton (note 3, supra) to be in any wise drawn into question.

      . In Ringers the Fourth Circuit held that the First and Fourteenth Amendments prohibited a local school board from denying the National Socialist White People’s Party the use of a school auditorium, which had in effect been dedicated to the public as a forum for the exercise of First Amendment rights, on the basis of the Party’s racially discriminatory membership policies. The Court held that the state action doctrine of the Fourteenth Amendment equal protection cannot be applied to restrict legitimate First Amendment rights of expression. It summed up its holdings:
      “Since the first amendment prohibits the state from interfering with the expression of unpopular, indeed offensive, views, and with assembly and association for the purpose of exchanging and furthering them, we think that the first amendment protects the expression of such views in those public places dedicated to the exercise of first amendment rights by groups which implement them by restrictive membership policies. We therefore, conclude that the School Board’s denial of the use of a public forum because of the Party’s discriminatory membership policies constitutes as much of an invalid prior restraint as if it had denied the Party the use of the forum on the basis of the controversial beliefs which the Party would express at that place.
      “The Party’s discriminatory membership policy does not bring into play the state action doctrine of the equal protection clause of the fourteenth amendment.” 473 F.2d at 1016.

      . In Gilmore this Court affirmed a District Court order enjoining officials of the City of Montgomery from permitting private segregated schools from using public recreational facilities on an exclusive basis (i. e., leasing a public football stadium to a segregated school) on the grounds that such practice supports the maintenance of the segregated schools thereby undermining a Court ordered desegregation plan. However, the Court vacated a portion of the injunction which prohibited the City from permitting segregated schools from using public recreational facilities on a non-exclusive basis (i. e., field trip to the zoo).
      Of more importance to our case, the Court vacated that portion of the injunction which prohibited the City from permitting private organizations with discriminatory membership policies from using public recreation facilities solely on the basis of the membership policies. In so holding, the Court emphasized the individual’s right to associate in private organizations.
      The Supreme Court, on review, agreed that it was proper for the City to be enjoined from permitting exclusive access to public recreational facilities by segregated private schools. The Court reversed and remanded the case with directions to remand to the District Court, however, because it was unable to determine upon the record given whether the non-exclusive use of recreational facilities by private school groups or the exclusive use of such facilities by private nonschool organizations would “[involves] a government so directly .... as to warrant court intervention on constitutional grounds.” The Court pointed out that the appropriateness of the relief would depend entirely on factors such as the use the group made of the facility, the type of facility involved, the type of group involved, and whether such use was in contravention of any desegregation order. We refrain from any analysis of the Court’s holding lest it infringe in any way on the prerogative of the panel reviewing the case or the District Court on remand.

      . This Court, not counsel, must bear the responsibility for the inadequacy of the record. Emphasizing the quickness of the hearing the Appellee Cason requested this Court to remand for an evidentiary hearing on this issue. Hindsight shows that it was a mistake to deny the motion.

      . Unlike the record in Ringers ours is silent on this fact. Ringers is far from clear. At one point the Court acknowledged as to the meeting triggering the suit:
      On April 3, 1970 the Party again applied for a permit to rent the Yorktown High School auditorium, this time to hold a private meeting open only to “card-carrying members and official supporters.” 473 F.2d at 1013.
      Later, by text and note 16, it declared :
      But here, although the Party does not admit Negroes to membership, the proposed March 7 meeting was open to the public at large.16
      t6. The Party distributed leaflets which purported to invite only whites. But it is stipulated that “no member of the Negro race and/or Jewish religion has been, or would be, purposely excluded from attendance or participation in a public meeting called by the Party. Public meetings of the Party have been attended by members of the Negro race and/or the Jewish religion.”
      473 F.2d at 1018.
      Judge Butzner in dissenting took another view:
      Indeed, when the Board found that the Party had invited “the general public [excluding Jews and Negroes]” to the rally it commendably revoked the Party’s permit to use the auditorium 1
      t. The Board’s action should be judged on the facts then before it, not on the Party’s subsequent stipulation to the effect that it didn’t mean what it said. Despite its subsequent self-serving declaration that Jews and Negroes could have attended the meeting, the Party remains insistent that Negroes are barred from membership. Consequently, they can not attend the private meetings in the school that the opinion of the court authorizes. 473 F.2d at 1020.

      . Implicit in the inquiry would be whether the provision for invited guests would be so limited as to be consistent with the assertedly private character of the meeting or whether it was merely a ruse through which all interested members of the white public would be admitted while all interested members of the black public would be excluded.


author: COLEMAN, Circuit Judge.

text:
    Petition of Earl LEPPO, Movant-Appellant, In re The UNITED STATES of America, Plaintiff-Appellee, v. Martin SKLAROFF, Defendant.
    No. 73-3316.
    United States Court of Appeals, Fifth Circuit.
    July 29, 1974.

      Richard H. Gens, Martin K. Leppo, Boston, Mass., for movant-appellant.
    Marilu Marshall, Sp. Atty., U. S. Dept, of Justice, Miami, Fla., Marc P. Riehman, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   COLEMAN, Circuit Judge.

On July 30, 1973, Earl Leppo, a resident of Boston, filed a motion in the Southern District of Florida. It was dismissed and we affirm.

The motion was brief and discussion of the appeal from the dismissal will be facilitated by copying it in full, as follows:

MOTION FOR THE DISCLOSURE OF INVENTORY OF INTERCEPTED WIRE COMMUNICATIONS PURSUANT TO 18 U.S.C. SECTION 2518(10)(a).

Earl Leppo hereby states that presumably pursuant to 18 U.S.C. Section 2516(1) an order was entered by the United States District Court for the Southern District of Florida authorizing and approving the interception of wire communications during the course of an investigation in Miami, Florida of Martin Sklaroff.

The petitioner further states that although a named party to such intercepted oral communications, he never received disclosure of the same. Such omission was in direct violation of 18 U.S.C. Section 2518(9), which provides: “The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party not less than ten days before the trial, hearing, or proceeding has been furnished with a copy of the court order, an accompanying application, under which the interception was authorized or approved”.

The petitioner further states that such intercepted oral communications were unlawfully disclosed in the Affidavit For Search Warrant of which John F. Jansen, a Special Agent of the Federal Bureau of Investigation was the affiant and which was authorized and approved by the United States District Court for the District of Massachusetts as against the person of your petitioner, whose constitutional rights were violated thereby.

The petitioner further states that as a result of such disclosures he is an aggrieved person under 18 U.S.C. Section 2518(10)(a), which provides: “Any aggrieved person in any trial, hearing, or proceeding in or before the court, department, officer, agency, regulatory body, or any authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom . . .”

Earl Leppo hereby moves this Court to direct the production and disclosure of affidavits which requested the aforementioned wiretap, the order which authorized and approved said wiretap, all documents supporting the issuance thereof, and all records and transcripts the fruits thereof.

The statutes invoked by the movant read as follows:

18 U.S.C., §2518(9).

(9) The contents of any intercepted wire or oral communication or evidence derived therefrom shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in a Federal or State court unless each party, not less than ten days before the trial, hearing, or proceeding, has been furnished with a copy of the court order, and accompanying application, under which the interception was authorized or approved. This ten-day period may be waived by the judge if he finds that it was not possible to furnish the party with the above information ten days before the trial, hearing, or proceeding and that the party will not be prejudiced by the delay in receiving such information.

18 U.S.C., § 2518(10)(a).

(10) (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that — •
(i) the communication was unlawfully intercepted;
(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
(iii) the interception was not made in conformity with the order of authorization or approval.
Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

By briefs of the parties and concessions of counsel at oral argument, it is undisputed that the order originally authorizing the interception at issue was entered on June 7, 1973 for a period of fifteen days. On June 27 it was extended until July 12. Leppo has not been indicted. He is not a defendant in any criminal proceeding. The dismissed motion did not seek in the Southern District of Florida return of the property allegedly seized in Boston [about which we express no opinion as to venue or jurisdiction]. Appellant has filed no civil action as allowed by 18 U.S.C., § 2520.

Even more decisively, on August 29, 1973 and September 19, 1973, the appellant was served with inventory notices pursuant to 18 U.S.C. § 2518(8)(d), informing him of the entry of the orders, the dates thereof, the telephone numbers intercepted, and the fact that communications were intercepted.

Thus, Leppo has received everything he sought in his motion except “all records and transcripts the fruits thereof [the interceptions]”.

As to the latter material, by the very words of 18 U.S.C., § 2518(9) the appellant would be entitled to obtain it only in the event of “a trial, hearing, or proceeding”. Congress here referred to “adversary type hearings”, such as a trial, a probation revocation proceeding, or a hearing on motion for reduction of sentence. It would not include a Grand Jury hearing. See Senate Report No. 1097, 1968 United States Code, Congressional and Administrative News, at page 2195. An application for a search warrant is, of course, not an adversary proceeding. Such applications are presented ex parte to the Magistrate, whose function it is to decide the presence or absence of probable cause.

The same rationale applies to the language used in 18 U.S.C., § 2518(10)(a).

To be sure, 18 U.S.C., § 2518(8), not invoked in the motion, does provide that the judge “may in his discretion make available * * * * for inspection such portions of the intercepted communications”. This is a part of the code section under which the government mandatorily provided the inventories on August 29 and September 19. The appellant should have filed his motion for inspection after either or both of those dates. Such a motion on July 30 was entirely premature, which is obviously the reason that appellant at that point did not seek to invoke 18 U.S.C., § 2518(8).

The judgment of the District Court is

Affirmed.


author: TALBOT SMITH, Senior District Judge.

text:
    COMMERCIAL UNION INSURANCE COMPANY, Appellee, v. CITY OF ST. LOUIS, Appellee, v. FULLGRAF STEEL COMPANY et al., Appellants.
    Civ. No. 74-1020.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1974.
    Decided June 18, 1974.
    Joseph J. Becker and David S. Purcell, Clayton, Mo., for appellants.
    Bernard A. Reinert, St. Louis, Mo., for appellee.
    Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

The sole issue before us is whether the appellants should have been permitted to intervene as a matter of right under Fed.R.Civ.P. 24(a)(2) in a suit between Commercial Union Insurance Company and the City of St. Louis.

On August 22, 1973 Commercial Union filed a complaint in the court below against the City, alleging that it was the surety on a $329,500 construction contract between the City, as owner, and Tal-Cal Construction Company, Inc., as general contractor; that as surety it had become obligated to pay and had paid over a quarter of a million dollars to various subcontractors, suppliers, materialmen and laborers who worked on the project; that the work was substantially completed by Tal-Cal; that there was an outstanding balance of $64,442.-83 owed by the City to Tal-Cal on the contract; and that “by virtue of the aforesaid suretyship * * * [it had] acceded [succeeded] to the rights of any and all parties in the contract balance remaining unpaid.” It claimed this entire amount from the City. Before the City answered, motions to intervene as of right under Rule 24(a)(2) were filed by the thirteen intervenors, all of whom claimed to have been unpaid for labor or materials they supplied on the project, seeking judgments against the City in amounts ranging from $445.00 to $7,501.50, totaling a sum in excess of $35,000.00. Orders denying such intervention were entered in due course and the matter is before us on appeal.

We think it clear from the allegations, and we do not understand Commercial Union to argue otherwise, that the intervenors have claimed “an interest relating to the property or transaction which is the subject of the action and [they are] so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest.” Both Commercial Union and the intervenors claim an interest in a fund retained by the City. The fund, we gather from the record before us, is inadequate to meet all the demands made on it. Plainly, the intervenors’ claims against the City will be effectively impaired if the surety is successful in prosecuting its claim.

Commercial Union urges, however, that the intervenors have failed to plead and prove that their interest is not “adequately represented by existing parties.” It is argued, substantially, that the City adequately represents the intervenors because it is in the City’s interest, as a matter of defense, to show that third parties, including the intervenors, have equitable rights to the fund which are entitled to priority over any right of Commercial Union. We are not pursuaded. The City’s interest in presenting this defense is merely strategic; it does not have the same vital stake as the intervenors that their claim to the fund be established. Indeed, it is evident from the City’s answer (which was filed after the court below ruled on the motions to intervene) that its primary defense at trial may be an attempt to prove its own priority of right to the retained fund based on an alleged breach of contract by Tal-Cal. The intervenors’ and the City’s interests are sufficiently different that the former cannot be adequately represented by the latter. Ford Motor Company v. Bisanz Bros. Inc., 249 F.2d 22, 27-28 (8th Cir. 1957). Intervention should have been permitted- as a matter of right.

In reaching this conclusion, we have been mindful of the considerations of judicial economy urged upon us by Commercial Union. We think, however, this is a ease where that goal can be best promoted by resolving all the conflicting claims to the retained fund in one lawsuit.

Reversed.

      . Appellants are twelve corporations and one natural person; for convenience we will hereinafter refer to them as “intervenors.”

      . Rule 24, provides in part:
      (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

      . Jurisdiction was based on diversity of citizenship.

      . Six of the intervenors also sought judgment against Commercial Union.

      . The City has not filed a brief on appeal.

      . Fed.R.Civ.P. 24(a)(2).


author: PER CURIAM:

text:
    Manuel A. PALOMO and Gavina A. Palomo, Plaintiffs-Appellees, v. Akira BABA and Eulogio Declarmen, Defendants-Appellants.
    No. 73-2308.
    United States Court of Appeals, Ninth Circuit.
    May 28, 1974.
    Thomas J. Nolan (argued), W. Scott Barrett, Barrett, Ferenz, Bramhall, Paul & Klemm, Oakland, Cal., John C. Dierking, Agana, Guam, for defendants-appellants.
    Howard G. Trapp (argued), Trapp & Gayle & Co., Agana, Guam, for plaintiffs-appellees.
    Before DUNIWAY, CHOY and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

The district court entered judgment in favor of appellees, the Palomos, in their action to cancel a lease and to quiet title to a 37,000 square meter tract of land. The court found that “Inadequacy of rental consideration coupled with a consent and execution procured by misrepresentation of a material fact relied upon by persons [the Palomos] who are mentally deficient and unable to exercise rational care of their property are essential elements which, in totality, warrant such cancellation.”

Two days after Baba and Delcarmen filed their notice of appeal from the judgment, they filed a motion in the district court to vacate the judgment on the ground of newly discovered evidence pursuant to Rule 60(b), F.R.Civ.P. The newly discovered evidence was a quitclaim deed covering 40,000 square feet of the tract in question executed by the Palomos in favor of their attorney, Howard Trapp, as a contingent fee, and one, Edward S. Terlaje as a “referral fee.” The deed was to be effective only upon judgment in favor of the Palomos.

The 60(b) motion was denied, whereupon appellants filed another appeal from the denial. This court in an unpublished Memorandum affirmed as to the first appeal and dismissed the second appeal for want of present jurisdiction since the district court had no power to consider the motion to vacate judgment pending appeal from that judgment to this court. Upon the mandate being issued to the district court, appellants moved that the district court again rule on their 60(b) motion to vacate judgment. The district court again denied that motion. This appeal ensued. We affirm.

While the district court had jurisdiction to act on the Rule 60 (b) motion after its judgment had been affirmed and after it had received the mandate from this court, as to all matters encompassed by the mandate, such jurisdiction rested on conformance with the mandate. However, the district court could not have acted in a manner inconsistent with the mandate of affirmance, except with the consent of this court. See Greater Boston Television Corp. v. F.C.C., 149 U.S.App.D.C. 322, 463 F.2d 268, 280 n.22 (1971); Gulf Coast Building and Supply Co. v. International Bhd. of Electrical Workers, 460 F.2d 105, 107 (5th Cir.1972); Butcher & Sherrerd v. Walsh, 206 F.2d 259, 262 (3d Cir.1953), cert. denied, 346 U.S. 925, 74 S.Ct. 312, 98 L.Ed. 418 (1954). Here, the order denying the motion was not inconsistent with the mandate.

The elements supporting the judgment were, no bona fide purchasers, misrepresentation of a material fact and reliance by mentally deficient persons. The district court did not abuse its discretion in denying the 60(b) motion as the method by which the Palomos chose to pay their attorneys does not necessarily show ability to exercise rational care in connection with their land, nor does it negate the crucial findings of no bona fide purchasers, misrepresentation and reliance. Cf. Madsen v. Bumb, 419 F.2d 4, 6 (9th Cir.1969).

We note as an aside that the record indicates some highly questionable conduct on the part of certain members of the Bar of Guam, notably Edward S. Terlaje and J. U. Torres. An appropriate body in Guam, whether the local bar association, the Island Court or the District Court, interested in maintaining the ethics of the profession on a high level, should investigate and act as appears appropriate in that matter.

Affirmed.


author: PER CURIAM.

text:
    Peter J. BRENNAN, Secretary of Labor, Plaintiff-Appellee, v. Harry E. WHEELER et al., Defendants-Appellants.
    No. 74-1069.
    United States Court of Appeals, Seventh Circuit.
    Submitted May 8, 1974.
    Decided June 12, 1974.

      Carl E. Stilwell, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before PELL, STEVENS and SPRECHER, Circuit Judges.
   PER CURIAM.

This matter is before the court on the motion of the plaintiff-appellee to affirm the judgment of the district court in this cause without oral argument pursuant to Circuit Rule 22 of the Rules of this court.

The Secretary of Labor, United States Department of Labor, filed this civil action for injunctive relief under the Welfare and Pension Plans Disclosure Act of 1958, as amended, Title 29, United States Code, Section 301 et seq. The action was instituted to require the defendants-appellants individually and as members of the Advisory Committee of the Mitchell & Scott Machine Company, Inc., Employees’ Profit Sharing Trust to be bonded, based on the allegation that they were handling funds or other property of the trust plan as described in Title 29, United States Code, Section 301 et seq.

After the defendants-appellants filed an answer, and after depositions were taken, the plaintiff filed a motion for summary judgment. The court ruled that the members of the Advisory Committee are “administrators” of the plan within the meaning of 29 U.S.C. § 308d

and 29 C.F.R. 464.4 and the duties and activities of the Advisory Committee, and in particular those dealing with the disbursement of plan funds constitute “handling” since they present a significant risk that plan funds could be lost, within the meaning of the statute and 29 C.F.R. 464.7. It, therefore, concluded that members of the Advisory Committee were subject to the bonding provisions of the Act.

Section 13(a) of the Act (29 U.S.C. § 308d(a)) expressly provides that the bonding requirements are applicable to every administrator of an employee pension plan “who handles funds or other property of such plan.” Appellants contend that the function of the Advisory Committee is merely advisory. However, the clear wording of the trust agreement refutes that contention. The Advisory Committee approves payments, including the method of payment, to participants in the fund, and directs the Trustee to disburse funds. The Trust Agreement expressly recites that “The Trustee shall be protected in acting upon any signed written instructions of the Committee.” Since defendants have the authority to direct how funds shall be disbursed, each of them is an “administrator . . . who handles funds or other property” within the meaning of 29 U.S.C. § 308d(a). The powers given to the Advisory Committee by the agreement and in particular the powers over the disbursement of funds give rise to the possibility that fraud or dishonesty on appellants’ part will cause loss to the fund. To safeguard against such loss it is the clear intent of the Welfare and Pension Plans Disclosure Act that the bonding requirements apply to the Advisory Committee. To do otherwise would subject employees who depend upon the funds for their future well-being from the protection that is contemplated by the Act.

The testimony presented in the depositions along with the pleadings showed that there was no genuine issue as to any material fact, and the plaintiff Secretary was entitled to judgment as a matter of law.

It is ordered that the judgment for the plaintiff in this cause dated November 16, 1973 is hereby affirmed.

Affirmed.


text:
    Linlo SCOLARI, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-3548.
    United States Court of Appeals, Ninth Circuit.
    June 3, 1974.
    Thomas Elke, San Francisco, Cal., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, Richard Farber, Daniel F. Ross, Appellate Section, Tax Div., U. S. Dept, of Justice, Washington, D. C., Mead Whitaker, Chief Counsel, I. R. S., Washington, D. C., for respondent-appellee.
   OPINION

Before BROWNING, DUNIWAY and SNEED, Circuit Judges.

PER CURIAM:

Taxpayer appeals a decision of the Tax Court sustaining a deficiency assessment of $28,744.02 for 1966 and 1968.

In 1966 the United States filed a complaint in condemnation and declaration of taking of real property owned by taxpayer, depositing $65,000 as estimated compensation. Taxpayer withdrew $62,-500. His basis in the property was $15,000. In March of 1968 the parties stipulated to a judgment fixing the value of the property at $175,000. In May of 1968 taxpayer received the balance due him. In the same year he reinvested the entire amount in similar property in an attempt to meet the nonrecognition-of-gain requirement of 26 U.S.C. § 1033.

The government asserts that since the 1966 withdrawal exceeded taxpayer’s basis, he first realized gain in 1966, and the period permitted for acquisition of similar property commenced to run. Since taxpayer neither acquired similar property during the one-year period then allowed, nor requested an extension of time to do so, the requirements of section 1033 were not met, and the gain was fully taxable. Taxpayer’s position is that since he uses the accrual method of accounting, he is not chargeable with receipt of any part of the award until the total amount due became determinable with reasonable accuracy in 1968, and the time during which he must acquire similar property to gain the benefits of section 1033 began to run only then.

Taxpayer recognizes that his contention was rejected in Town Park Hotel Corp. v. Commissioner of Internal Revenue, 446 F.2d 878 (6th Cir. 1971). We choose to follow that ruling.

Affirmed.