author: JAMESON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jesus PEREZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Casimiro ROCHIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Maria Creselda LOMBERA, Defendant-Appellant.
    Nos. 73-2007, 73-2157 and 73-2008.
    United States Court of Appeals, Ninth Circuit.
    Jan. 21, 1974.

      Earl L. Hanson, Mitchell W. Egers (Argued), of Hanson & Egers, Los Angeles, Cal., for Jesus Perez.
    John K. Van de Kamp, Federal Public Defender, Kenneth L. Collins, Deputy Federal Public Defender, Los Angeles, Cal., for Maria Creselda Lombera.
    David C. Marcus (Argued), Los Angeles, Cal., for Casimiro Rochin.
    William D. Keller, U. S. Atty., Darrell W. MacIntyre, Asst. U. S. Atty. (Argued), Los Angeles, Cal., for plaintiff-appellee.
    Beforé ELY and TRASK, Circuit Judges, and JAMESON, District Judge.

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

   JAMESON, District Judge:

This is a consolidated appeal by defendants-appellants Jesus Perez, Casimiro Rochin, and Maria Creselda Lombera from their jury convictions for conspiracy to possess and distribute heroin, in violation of 21 U.S.C. § 846, and possession with intent to distribute and distribution of heroin, in violation of 21 U.S. C. § 841(a)(1).

Statement of Facts

The evidence, viewed in the light most favorable to the Government, may be summarized as follows:

On December 5, 1972 Sergeant Jose Villalba of the Los Angeles Police Department met in Oxnard, California with Alvaro Lombera, who was indicted, but not tried, with appellants. Villalba, acting in an undercover capacity, indicated that he was interested in buying a large quantity of heroin. Lombera informed him that “their” supply was low and that “they had only eight ounces available.” Lombera agreed to sell Villalba one ounce of heroin, as a sample, for $1,000.

Lombera instructed Sergeant Villalba to remain at their meeting place, stating that he would return in a half hour. Lombera went to his residence, which was then under police surveillance, and was met there by appellant Rochin. A few moments later Lombera drove Rochin’s automobile to the place where Sergeant Villalba was waiting. Lombera sold Villalba one ounce of 74.3% heroin for $1,000 and stated that by the following Wednesday he would be able to sell him 20 ounces for $950 per ounce.

On December 14, 1972 Sergeant Villalba telephoned Lombera that he was still interested in purchasing heroin. They arranged another meeting in Oxnard, at which Lombera agreed to sell Villalba 15 ounces of heroin for $950 per ounce on December 17, 1972.

Villalba and Lombera met at the intersection of Fifth and Ventura in Oxnard on December 17. The intersection was under surveillance by Officer Quinn of the Ventura County Bureau of Narcotics Enforcement and Detective Sergeant Thomas of the City of Port Hueneme.

Quinn was stationed in a parked automobile in a Sav-On Drugstore parking lot adjacent to the intersection. He testified that at about noon he saw appellant Perez inside a car parked directly in front of the drugstore “in a position where he could observe Sergeant Villalba meeting with Mr. Lombera.” Quinn also observed Rochin in a vehicle parked in a parking lot directly across the street, in a position where he could observe Villalba and Lombera. Quinn testified that it is a normal procedure for those dealing in large quantities of heroin to post lookouts to watch for police or Government agents.

Originally the heroin sale was to have taken place at the intersection, but Lombera told Sergeant Villalba that there had been a change in plans, and that he was to follow Lombera to a flower ranch where Lombera and his wife, appellant Maria Lombera, were employed. They drove directly to a ranch located about two to two and one-half miles from the intersection, followed by Rochin.

Officer Quinn left his surveillance post to follow Rochin, and as he drove by Perez he noticed that “Mr. Perez was turned around looking over his right shoulder. Mr. Rochin turned left on Fifth, proceeded up Fifth. At that time Mr. Perez looked around and followed his [Rochin’s] vehicle in his [Perez’] line of sight up Fifth.”

Upon arriving at the ranch Lombera entered a greenhouse. About ten seconds later he came out of the greenhouse with his wife, appellant Lombera, who was carrying a black purse and a shopping bag. Mrs. Lombera handed the purse to her husband. He opened it and removed four packages containing 16 ounces of 82.4% heroin. Lombera placed the heroin in the trunk of Sergeant Villalba’s vehicle. Mrs. Lombera then returned to the greenhouse carrying the shopping bag. Villalba arrested Lombera.

A few moments later Rochin drove into the driveway of the ranch and parked his vehicle. He approached Sergeant Villalba, saying, “Is the thing good?” Villalba replied, “Yes, it’s good”, and arrested Rochin. Located behind the driver’s seat of Rochin’s vehicle was a bag containing about two pounds of maltose sugar, which Villalba testified is a common ingredient used to cut heroin.

Another officer then entered the greenhouse, arrested Mrs. Lombera, and seized the shopping bag she had previously carried to and from the greenhouse, which was located about 20 feet from where she was standing. The bag contained in packages 13 ounces of 83.-5% heroin.

Detective Thomas, who was stationed in a hamburger stand at the intersection, also observed Perez in the parking lot. He had known Perez for about a year and a half. He saw Perez leave, headed in the direction of the road leading to the ranch. When Thomas arrived at the ranch approximately three to five minutes later Perez was there and attempting to leave at a speed of 20 to 25 miles an hour. Thomas, who had been in radio contact with a surveillance helicopter, blocked Perez’ exit and placed him under arrest. Located on the floorboard in the back seat of Perez’ vehicle was a hat in which 1.5 grams of 27.7% cocaine were found concealed in the hatband.

Pursuant to a warrant a search of Rochin’s residence was conducted on the evening of December 17. Contained in an attache case in Rochin’s bedroom was $5,150, including ten marked $100 bills which Sergeant Villalba had used to purchase the sample ounce of heroin from Lombera on December 5.

Contentions on Appeal

(1) All appellants contend that the evidence was insufficient to sustain their convictions; (2) Perez and Rochin contend that the court erred in admitting evidence of Perez’ possession of cocaine; (3) Rochin argues that hearsay statements of Lombera with respect to the heroin transactions of December 5 and 17 should not have been admitted; (4) Rochin and Mrs. Lombera claim that the prosecutor subjected her to improper cross-examination; (5) Mrs. Lombera contends that the Government’s rebuttal evidence and evidence with respect to the contents of her shopping bag were improperly admitted; and (6) all appellants complain of improper remarks by the prosecutor in his opening statement and closing arguments to the jury.

Sufficiency of the Evidence (a) Mrs. Lombera

Mrs. Lombera argues that the evidence was “insufficient to establish that [she] knowingly participated in a conspiracy, consciously maintained dominion and control over the sealed packages of heroin, or intended to distribute that heroin.” We find no merit in this contention. She carried a purse and a shopping bag, each containing a large quantity of heroin, from the greenhouse to the Villalba vehicle. She handed the purse to her husband, who removed the heroin from the purse and placed it in the trunk of the Villalba car. Mrs. Lombera returned to the greenhouse with the shopping bag. Possession may be joint as well as several, constructive as well as actual. Mrs. Lombera had dominion and control over both the purse and shopping bag. Under the circumstances, this was persuasive evidence of both actual and constructive possession, as well as “a potent circumstance tending to prove knowledge of the presence” of the narcotics. Evans v. United States, 257 F.2d 121, 128 (9 Cir. 1958), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). Intent to distribute may be inferred from the large amount of heroin involved. See United States v. Mather, 465 F.2d 1035, 1037-1038 (5 Cir. 1972), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 672 (1972).

(b) Rochin

We find ample evidence to sustain Rochin’s conviction On the conspiracy charge. He met Lombera on December 5, 1972 minutes before Lombera delivered, in Roehin’s car, the first ounce of heroin sold to Villalba. At the time of his arrest Rochin had in his bedroom the $1,000 paid to Lombera by Villalba for this heroin. Rochin acted as a lookout at the meeting between Lombera and Villalba at the intersection on December 17, followed Lombera and Villalba to the ranch where the heroin was sold, and then approached Villalba and asked him, “Is the thing good?” In addition, two pounds of maltose, a common ingredient used to cut heroin, was found in Rochin’s car at the time of his arrest.

It is true, as Rochin contends, that the case against him is based upon circumstantial evidence. However, circumstantial evidence “is not inherently less probative than direct evidence”, United States v. Nelson, 419 F.2d 1237, 1239 (9 Cir. 1969), and as we recognized in Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9 Cir. 1966), the nature of a conspiracy is such that it can rarely be proved in any other way.

(c) Perez

The evidence of Perez’ participation in the conspiracy is less conclusive. The jury could properly find, however, that he was acting as a lookout at the street intersection where final plans for the heroin sale were made. There was evidence that it is a normal procedure for those dealing in large quantities of heroin to place lookouts to watch for police and Government agents. Perez was observed in his automobile in a position where he could watch Lombera and Villalba. He also watched Rochin, another lookout, and followed Rochin to the ranch where the heroin was sold. He attempted to leave the ranch shortly after the sale and the arrest of the Lomberas and Rochin.

It is true that Perez’ presence at the ranch immediately after the sale and his attempted flight would not be sufficient to establish his guilt. There is evidence, however, of his active participation in the conspiracy through acting as a lookout. As this court said in United States v. Knight, 416 F.2d 1181, 1184 (9 Cir. 1969): “It is sufficient if the acts and. conduct of a defendant were of such character that the minds of reasonable men could conclude therefrom that an unlawful agreement or understanding existed, and that the defendant, with knowledge of the existence of the unlawful enterprise, acted to further it.”

Possession of Cocaine

Perez and Rochin claim prejudicial error in admitting evidence that 1.5 grams of cocaine were found concealed in a hat in the back seat of Perez’ automobile. The district court made it clear to counsel that this evidence was admitted against Perez only and against him only to show knowledge, intent and motive.

As a general rule evidence of other offenses is not admissible; but this court has recognized that, “Proof of other crimes has * * * been held admissible * * * to establish motive or intent, or absence of mistake or accident, * * * or when the acts proved are so inextricably mixed or connected with the crime charged as to tend to prove it * Parker v. United States, 400 F.2d 248, 252 (9 Cir. 1968), cert. denied, 393 U.S. 1097, 89 S.Ct. 892, 21 L.Ed.2d 789 (1969).

At oral argument counsel placed heavy reliance on Enriquez v. United States, 314 F.2d 703 (9 Cir. 1963), where it was held that evidence of prior use and possession of marihuana was not admissible to show an intent to transport and sell heroin. Enriquez is distinguishable. Perez was charged, inter alia, with possession and conspiracy to possess heroin. The cocaine was found in his possession at the time the offense charged was committed. Both heroin and cocaine are “narcotic drugs” under 21 U.S.C. § 802(16) and possession of either with intent to distribute is a criminal offense under the same section, 21 U.S.C. § 841(a)(1).

We agree with the district court that evidence of possession of the cocaine at the time of the offense tended to show knowledge, intent and motive. It is true, as Perez argues, “that evidence which discloses the commission of another offense should be excluded, even though relevant, if the value of the evidence is limited and the danger of prejudice from its use is great.” DeVore v. United States, 368 F.2d 396, 398 (9 Cir. 1966). We cannot say that the district court abused its discretion in deciding that the tendency of the cocaine evidence to prove the essential element of knowledge outweighed its potential prejudicial effect upon the accused.

Hearsay Statements of Lombera

Rochin complains of the admission of the testimony of Sergeant Villalba relating to statements made by Lombera to Sergeant Villalba with respect to the heroin transaction of December 5 and 17. It is well settled that an out-of-court statement of one conspirator against his fellow conspirators is admissible if the statement was made in the course of and in furtherance of the conspiracy, and there is independent proof of the existence of the conspiracy. Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Carbo v. United States, 314 F.2d 718, 735 (9 Cir. 1963). It is clear that the statements here were made in furtherance of the conspiracy, and Rochin’s participation in the conspiracy was adequately established by independent evidence.

Improper Cross-Examination

Mrs. Lombera argues that the prosecutor subjected her to improper cross-examination in asking the following question:

“Q. All right. Now, Mrs. Lombera, from about June of 1972 till December of ’72 you were sending money orders to Mexico in the amounts of $500 and $1,000, were you not ?”

Mrs. Lombera was permitted to answer, over counsel’s objection. She answered in the negative. The question was repeated several times, with the same response, until the court sustained an objection for repetitive questioning.

On rebuttal the Government offered to prove that money orders in amounts of $100 to $150, cumulatively amounting to $1,000, had been sent to a joint bank account of the Lomberas in Mexico late in 1969. The court properly held this evidence inadmissible for impeachment purposes. The jury was instructed :

“A question is never evidence except as it supplies meaning to its answer. For example, a question was asked Mrs. Lombera regarding certain money orders, and this question is not evidence except as it supplies meaning to its answer.”

When the court offered to give this instruction, counsel expressly agreed that it should be given. No objection was interposed when the instruction was given ; nor did counsel at any time request any clarifying or additional instruction. While we do not approve of the prosecutor’s conduct in asking the question, it was not so prejudicial as to require reversal in view of the curing instruction and other evidence against Mrs. Lombera.

Rebuttal Evidence and Evidence of Contents of Shopping Bag

Mrs. Lombera contends that the Government’s rebuttal evidence and evidence that her shopping bag contained heroin were improperly admitted.

Mrs. Lombera had denied any knowledge of her husband’s possession and sale of heroin. In rebuttal Sergeant Villalba testified that he telephoned the Lombera residence on December 10, 1972, and was informed by Mrs. Lombera that her husband was not there. Several minutes later he called again and stated to Mrs. Lombera, “Don’t hang up. I have a lot of money tied up in a deal with your husband and I want to talk with him, and I would like for him to call me * *

He gave Mrs. Lombera his number, and about 45 minutes later she telephoned him and said, “Wait. Wait a minute.” Her husband then came on the telephone and Sergeant Villalba informed him that he had a lot of money tied up and was waiting for the transaction to take place.

Questions as to the propriety of rebuttal evidence “are generally subject to the sound discretion of the trial court”, and, in the absence of abuse, this discretion is not reviewable. Lelles v. United States, 241 F.2d 21, 25 (9 Cir. 1957), cert. denied, 353 U.S. 974, 77 S.Ct. 1059, 1 L.Ed.2d 1136 (1956). We find no abuse of discretion in admitting the rebuttal testimony of Sergeant Villalba.

We find no merit in Mrs. Lombera’s contention that the court erred in admitting testimony that her shopping bag contained heroin. Delgado v. United States, 327 F.2d 641 (9 Cir. 1964), upon which she relies, is distinguishable. There marihuana was found in a drawer of a night stand in a room occupied by two people, and the court found insufficient evidence that either had possession. Here Mrs. Lombera carried her purse and the shopping bag to the Villalba car, where the heroin was taken from her purse and placed in the car. She returned to the greenhouse with the shopping bag minutes before she was arrested and the heroin found in the bag.

Prosecutor’s Argument to Jury

Finally, all appellants contend that the prosecutor in his opening statement and closing arguments made a number of prejudicial remarks which deprived appellants of a fair trial. No objections were made to any of these statements, either during the argument or thereafter, and there was no request for a corrective instruction. It is well established that in the absence of an objection or request for a corrective instruction, there must be plain error to afford a basis for reversal. See United States v. Memoli, 449 F.2d 160 (9 Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972). We have examined the prosecutor’s opening statement and closing arguments and conclude that the claimed prejudice is clearly not plain error.

Moreover, most of the remarks of the prosecutor questioned by appellants were clearly within the scope of the evidence properly before the jury, and the claims of prejudice are too insubstantial to constitute reversible error, even if an objection had been made. See Orebo v. United States, 293 F.2d 747, 749 (9 Cir. 1961), cert. denied, 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 389 (1962). We do question the propriety of the prosecutor’s conclusion in his opening argument:

“What we have is a common understanding among four people, one of which is obviously so guilty that he’s not on trial in front of you, a common understanding to continue and operate an illegal activity. You have enough heroin in this case to supply probably all the people that live in parts of the Valley in this town. You can imagine the quantity of heroin involved in this case that is taken out of the hands of little children in this town by the work of these narcotic agents.”

We recognize that it is difficult to draw a fine line between what is permissible and what is impermissible in closing arguments. It is clear, however, that a prosecutor “should refrain from argument which' would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury’s verdict.” While we conclude that the prosecutor exceeded the bounds of propriety in this argument, it was not sufficiently prejudicial to constitute reversible error, particularly in the absence of objection or request for a corrective instruction.

Each judgment of conviction is affirmed.

      . This officer had followed Villalba from the street intersection to the ranch and observed Mrs. Lombera with the purse and bag and the delivery of the heroin by Lombera to Villalba.

      . Since the sentences imposed upon’ Rochin run concurrently it is unnecessary to consider his contention that the evidence was insufficient to sustain convictions on the other counts. United States v. Moore, 452 F.2d 576, 577 (9 Cir. 1971).

      . Testifying in his own behalf, Perez denied that he was present at the intersection, stating that he left a bar where he was employed at 12:16 P.M. and went directly to the ranch. His credibility was a question for the jury. It is obvious that the jury did not believe his story and accepted the testimony of the two surveillance officers.

      . The court offered to instruct the jury that this evidence “was admitted against Perez only and against Perez only to show knowledge, intent, and motive, and not to show his criminal propensity or that he committed another offense or anything else.” Counsel for all defendants advised the court that they did not wish to have this instruction given.

      . The district court recognized that a different question would be presented if Perez’ possession involved “something like marihuana” and not a “narcotic drug”.

      . In his brief Rochin “adopts” this argument of counsel for Mrs. Lombera. It is unnecessary to consider whether Rochin has standing to complain of this alleged error.

      . In advance of closing arguments the court went over all proposed instructions with counsel and following the charge expressly asked each counsel whether he had an objection to any of the instructions. Each answered in the negative.

      . In denying a motion for mistrial the district court found “general good faith on the part of the government in asking that question * * *.”

      . Arellanes v. United States, 302 F.2d 603, 606-607 (9 Cir. 1962) is likewise distinguishable. There the husband had exclusive control or dominion over the drugs, and the court held the wife’s presence and association, without more, with the person having control was insufficient.

      . See also Harris v. United States, 131 U.S.App.D.C. 105, 402 F.2d 656 (1968) where the court said in part:
      “In short, Appellant invoked none of several possible methods for bringing these remarks to the attention of the trial judge who was best able to assess their effect on the jury and to undertake corrective measures. The problem of raising objections to improper argument of either counsel presents obvious practical difficulties. Counsel may, of course, object during the argument, but unless the departure from the proprieties is egregious neither the court nor the jury is likely to look favorably upon such an interruption at that stage. The more usual treatment is for counsel to approach the bench at the conclusion of the summing up. and request an immediate instruction to correct the impact of objectionable material. In the gravest situation it may be his duty to raise the issue of a mistrial. However, since none of these avenues was pursued here, we find no basis for reversal.”

      . American Bar Association Standards for Criminal Justice, The Prosecution Function, § 5.8(d).


source: Caselaw Access Project

author: PER CURIAM. McCREE, Circuit Judge

license: Public Domain

text:
    Thomas E. FOSTER and Georgie Lee Foster, Plaintiffs, Church of Our Father, Baptist, Inc., Intervenor Plaintiff-Appellant, v. Mark HERLEY, Director of Detroit Housing Commission; Detroit Housing Commission, City of Detroit, Michigan, Defendants-Appellees.
    No. 73-1084.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided Jan. 23, 1974.

      Irving B. Ackerman, Alan T. Ackerman, Detroit, Mich., on brief, for appellant.
    Alvin R. Davidson, Detroit, Mich., for appellees; Michael M. Glusac, William J. Coughlin, Thomas J. O’Dowd, Detroit, Mich., on brief.
    Before PECK and McCREE, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

In 1950 the City of Detroit (hereinafter “the City”) filed a condemnation action in an area of the City designated “Mich. 1-11” with the stated intention of establishing a public housing project. The project languished for a decade, however, and in 1960 the City discontinued the condemnation proceedings begun in 1950. With the aid of federal funding the City resurrected the planned project and filed a new condemnation suit in the same area in 1962. A class action suit was filed against the City in 1961 by residents of the “Mich. 1-11” area sustaining injuries due to the manner in which the City conducted the condemnations. The District Court dismissed the action, Foster v. Herley, 207 F.Supp. 71 (E.D. Mich. 1962), but this Court reversed on the grounds that a cause of action had been stated. Foster v. Herley, 330 F.2d 87 (6th Cir. 1964). The District Court found that the plaintiffs had been injured by the dual condemnation proceedings and appointed a Special Master to determine membership in the class and damages. Foster v. City of Detroit, 254 F.Supp. 655 (1966). This Court affirmed that decision. 405 F.2d 138 (6th Cir. 1968).

Appellant herein, Church of Our Father Baptist, Inc., pursuant to the District Court’s opinion, filed suit asking for inclusion in the aggrieved class and for damages. The Special Master appointed to determine membership in the class of property owners in the “Mich. 1-11” area subjected to dual condemnation by the City found that appellant was not a member of that class and was not entitled to additional compensation. The District Court affirmed the Master’s findings. The appellant has perfected this appeal from that judgment.

Appellant is one of three churches in the “Mich. 1-11” area which filed claims with the Master seeking membership in the Foster v. Herley class and additional compensation. In each instance the claim was denied and the denial was affirmed by the District Court. This is the second appeal to reach this Court. In Clinton Street Greater Bethlehem Church v. City of Detroit, 484 F.2d 185 (6th Cir. 1973), we affirmed the District Court’s judgment on two alternative grounds: First, the Bethlehem Church had not been subject to the 1950 condemnation proceedings and thus, had not been subject to dual condemnation; and secondly, the Bethlehem Church had voluntarily accepted a negotiated settlement of its claim against the City. For the reasons announced in Clinton Street Greater Bethlehem Church v. City of Detroit, supra, we conclude that appellant is not entitled to the relief requested.

Appellant was exempt from the 1950 condemnation brought by the City. Although appellant did notify the City in 1956 of its desire to be included in the original suit, the City took no action against the church property under the 1950 suit. Appellant’s property was condemned, however, under the second condemnation action instituted in 1962. In spite of appellant’s expressed desire, it was not subject to the 1950 suit, and was not, therefore, subject to dual condemnation.

Appellant maintains that although not technically part of the 1950 action, the deterioration of the “Mich. 1-11” area caused by the City’s actions resulted in lowered property values and constituted a taking sufficient to meet the criteria for membership in. the aggrieved class. The same claim was raised in the Bethlehem Church case and rejected because the alleged de facto taking did not stem from inclusion in the 1950 condemnation suit.

In Woodland Market Realty Co. v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970), this Court was confronted with a similar problem involving an alleged de facto taking. A market exempted from surrounding condemnations claimed a constitutional taking in that its property was of less value due to isolation and the absence of customers. Similarly, appellant complains that it lost its congregation. In the above case we held that alteration of a neighborhood by condemnation proceedings does not give rise to a claim for the depreciation in the value of surrounding property. We conclude that, “other alleged damage notwithstanding, the appellant was not a proper member of the class . . . . ” Clinton Street Greater Bethlehem Church v. City of Detroit, supra, 484 F.2d at 188.

The alternative reason for this Court’s decision in the Bethlehem Church case, the existence of a negotiated settlement, applies with equal validity in this ease. Appellant, represented by counsel, accepted a settlement of $139,-000. The attorney who represented appellant in the settlement negotiations testified that he had recommended a rejection of that figure because he thought that a greater sum could be obtained by taking the matter before a jury. In spite of the professional advice of its own attorney, appellant chose to accept the offer. As we stated in Bethlehem Church, supra at 189, “Such a settlement is as binding, conclusive and final as if it had been entered in a judgment.”

The City misplaced or lost its appraisal reports on the church property. Appellant introduced evidence from various sources indicating that the value of the property was substantially greater that $139,000. Thus, appellant argues, since the City couldn’t show the basis for its appraisals, the figures offered by appellant should be taken at face. This argument overlooks the fact that appellant accepted, of its own volition, a settlement of $139,000. The acceptance of the City’s offer does not bespeak conviction in the greater worth of the property. In the absence of mistake, fraud or unconscionable advantage, none of which are urged by appellant, we hold that appellant is bound by the terms of the settlement.

The last point raised is that the Master erroneously based his finding of the property’s worth on 1948 construction cost estimates instead of the value at the time of the taking. The record reveals, however, that appellant’s own witness testified that by the method used to estimate cost of construction the 1948 figures would have been $95,000. The Master assigned a value of $133,000 to the church building. We find no validity in this argument.

For the reasons stated herein, we affirm the judgment of the District Court.

McCREE, Circuit Judge

(concurring).

I concur, not because I am persuaded that the decision in Clinton Street Greater Bethlehem Church v. City of Detroit, 484 F.2d 185 (6th Cir. 1973), is correct but because I have been unable to persuade a majority of the court to adopt the views I expressed in my dissenting opinion in that appeal.


author: McWILLIAMS, Circuit Judge.

text:
    Joan NICHOLS, Surviving Wife and Next of Kin of Raymond L. Nichols, Deceased, Plaintiff-Appellee, v. Herbert A. MARSHALL, Administrator of the Estate of Frank W. Frombaugh, Deceased, Defendant-Appellant, and Allstate Insurance Company, a corporation, Garnishee-Appellant.
    No. 73-1423.
    United States Court of Appeals, Tenth Circuit.
    Submitted Nov. 14, 1973.
    Decided Feb. 8, 1974.

      John E. Shamberg, Kansas City, Kan. (Charles S. Schnider, Lynn R. Johnson, Kansas City, Kan. and Clearly, Krigel, Nee & Teasdale, Kansas City, Mo., on the brief), for plaintiff-appellee.
    Frank Saunders, Jr., of Wallace, Saunders, Austin, Allen, Brown & Enochs, Overland Park, Kan., for defendant-appellant and garnishee-appellant.
    Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
   McWILLIAMS, Circuit Judge.

Joan Nichols, the surviving wife of Raymond L. Nichols, brought a wrongful death action against Herbert A. Marshall, the administrator of the estate of Frank W. Frombaugh, in the United States District Court for the District of Kansas. Frombaugh, Raymond Nichols and the latter’s mother-in-law were all killed as the result of an automobile collision of tragic proportions on the Kansas Turnpike. Jurisdiction was based on diversity, Joan Nichols, as well as her deceased husband at the time of his death, being a citizen and resident of Missouri and Frank Frombaugh at the time of his death having been a citizen and resident of Shawnee County in the state of Kansas. Trial by jury resulted in the entry of a judgment in favor of Joan Nichols and against Marshall, the administrator, in the sum of $37,550.43. No appeal from that judgment was taken.

Thereafter, Joan Nichols instituted garnishment proceedings against Allstate Insurance Company, said company having issued an automobile liability insurance policy to Frank Frombaugh which was in force and effect as of the date of the accident here in question. Allstate was served with a garnishee summons, and in due time filed its answer. In its answer, Allstate admitted the existence of a policy of insurance having policy limits of $100,000 for each person injured and $300,000 for all injuries sustained in any one accident in which its insured, Frank Frombaugh, was involved. However, it was the basic position of Allstate, as set forth in its garnishee answer, that the insurance policy and any proceeds collectible thereunder were a part of the probate proceedings then pending in the probate court of Shawnee County in Kansas and not subject to garnishment in a federal district court proceeding.

In this general regard, Allstate further alleged in its answer that the probate court of Shawnee County not having ordered Marshall to satisfy the judgment entered in the wrongful death action in the federal district court, the latter was without jurisdiction over the subject matter, i. e., the proceeds obtainable under the insurance policy, and was without jurisdiction to enter a garnishee judgment against Allstate. Allstate suggested, alternatively, that the garnishment proceeding in the federal court be stayed until such time as the probate proceedings were concluded. The federal district court declined to stay the garnishment proceedings and proceeded to hear the matter on its merits. Such hearing resulted in a judgment in favor of Joan Nichols and against Allstate in a total amount of $39,094.15. Allstate now appeals, with Marshall, the administrator, being also designated as an appellant. We affirm. Some background material must be developed if the issue here involved is to be viewed in context.

This case arises out of an accident occurring on the Kansas Turnpike on August 10, 1969, wherein Frank Frombaugh was the driver of one vehicle and the Nichols family was riding in the other vehicle. Frombaugh, a citizen and resident of Shawnee County, in Kansas, was killed in the accident. Raymond Nichols was also killed as a result of the collision, as was a Mrs. Elva L. Brock-man, the mother of Joan Nichols, who was also an occupant of the Nichols vehicle. Joan Nichols herself suffered severe personal injuries. The two Nichols children were also in the car, but they somehow escaped serious injury. The Nichols family were citizens and residents of Missouri, though Mrs. Brockman, Joan’s mother, was a citizen and resident of Kansas.

On November 26, 1969, the attorneys for the Nichols family petitioned the probate court of Shawnee County, Kansas, to open an estate for Frank Frombaugh, and to appoint an administrator. In that petition, Joan Nichols, as the petitioner, alleged that she was a creditor of the estate by virtue of her claim for personal injuries and damages arising out of the automobile accident of August 10, 1969. An affidavit of counsel filed in support of the petition stated that the only known asset of the estate was the liability insurance policy issued Frombaugh by Allstate. On January 21, 1970, the probate court of Shawnee County ordered an estate opened and appointed one Herbert Marshall as administrator.

Claims were filed in the probate proceedings for the wrongful death and the survival action of Mrs. Elva Brockman, which claims, pursuant to Kansas probate practice, were transferred to the state district court of Shawnee County, in Kansas, for trial. These claims were ultimately settled by representatives of Allstate for $38,063.00. This settlement, incidentally, we are advised, was effected while the claims were pending in the state district court without resort to the probate proceedings in Shawnee County. Such may perhaps be illustrative of the correct Kansas procedure in a situation of the type with which we are here concerned.

On February 20, 1970, the following three separate actions were instituted in the United States District Court for the District of Kansas: (1) the survival action of Raymond Nichols (#3102); (2) the wrongful death action brought by Joan Nichols (#3103), which is the action in which the present garnishment proceeding was later brought; and (3) the personal injury action of Joan Nichols (#3104). All actions named Marshall, as administrator, as the defendant. These three cases were consolidated for trial. Upon, trial, liability was admitted, and the only issue submitted to the jury was the question of damages. The jury returned the following dollar verdicts: (1) $78,095.00 in the survival action (#3102); (2) $37,550.43 in the wrongful death action (#3103); and (3) $154,375.15 in the personal injury action (#3104), and appropriate judgments were entered thereon. The judgments entered in the survival action (#3102) and the personal injury action (#3104) were appealed and affirmed by us in Nichols v. Marshall, 486 F.2d 791 (10th Cir. 1973). The issues in that consolidated appeal related to the damages fixed by the jury, and do not relate to the precise issue posed in the present appeal. As indicated, the judgment entered in the wrongful death action (#3103) was not appealed.

Before discussing the garnishment proceeding brought in the wrongful death action (#3103), which is the subject matter of the present controversy, we would first review the status of the proceedings in the probate court of Shawnee County, in Kansas. As above mentioned, Joan Nichols filed a petition to open an estate for Frank Frombaugh on November 26, 1969, and an estate was thus opened on January 21, 1970. On October 23, 1970, the time for filing a claim against the estate of Frank Frombaugh in the probate court of Shawnee County, in Kansas, expired. K.S.A. 59-2239. On December 2, 1970, counsel for the plaintiffs in the three actions then pending in the federal district court filed in the probate court a “Petition for Allowance of Amended Claim,” seeking to relate the amended claim, which was based on the several claims asserted in the three pending federal court actions, back to the date of the original petition to open an estate, namely, November 26, 1969. Over objection, this petition for allowance of an amended claim was granted. On appeal to the district court for Shawnee County, the ruling of the probate court was affirmed. A further appeal of this matter to the Kansas Supreme Court was later dismissed by that court. There is disagreement between counsel as to whether the dismissal by the Kansas Supreme Court was on the merits, or because the ruling appealed from was only interlocutory. In view of our approach to this case, the grounds upon which the Kansas Supreme Court acted is not crucial.

It was in this general setting that Joan Nichols, in her wrongful death action, which had not been appealed, instituted garnishment proceedings, naming Allstate as the garnishee-defendant. As mentioned above, Allstate, by answer, contended that the insurance policy and any proceeds collectible thereunder were not subject to garnishment but were under the aegis of the probate court of Shawnee County, and that because the probate court had not ordered payment of the judgment entered in the wrongful death case, the federal district court was powerless to proceed to satisfy its judgment through garnishment and in any event should await action in the Kansas probate court. The trial court disagreed with this contention, and so do we.

As a starting point, it is agreed that the federal district court did have jurisdiction to entertain the wrongful death action brought by Joan Nichols against Marshall, the administrator of Frombaugh’s estate. The general rule is a federal district court in a diversity case has the same jurisdiction as does the state court of general jurisdiction in the state where the federal district court is sitting. Holt v. King, 250 F.2d 671 (10th Cir. 1957), and Erwin v. Barrow, 217 F.2d 522 (10th Cir. 1954). We are advised that the present probate practice in Kansas permits the probate court, on request, to transfer to the state district court a disputed claim in excess of $500 for an original trial of the matter in the district court. K.S.A. 59-2402 (a) and (b). Prior to the enactment of the particular statute authorizing such transfer, a claim was first tried in the probate court, with the unsuccessful party then having the right to a trial de novo in the district court. That the Kansas district court had jurisdiction to hear a wrongful death action against the administrator of an estate is demonstrated by the fact that the wrongful death action of Mrs. Elva Brockman, Joan Nichols’ mother, against Marshall, Frombaugh’s administrator, was transferred from the probate court to the state district court for trial, where it was pending when settlement was effected. All of which is quite consistent with the landmark ease of Waterman v. Canal-Louisiana Bank, 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80 (1909). In Waterman, it was held that a citizen of another state may establish in federal court a debt against an estate, but the debt, once established must then take its place and share of the estate as administered by the state probate court. Stated slightly differently, Waterman stands for the proposition that though a federal court may exercise jurisdiction and enter judgments binding on a claimant and the administrator of an estate, the federal court may not exercise dominion over assets in the estate which by state law are subject to the exclusive possession of the state probate court.

If we understand the position of Allstate, it is that though the federal district' court had jurisdiction to entertain and render judgment in the wrongful death action brought by Joan Nichols against Marshall, as administrator, it had no jurisdiction to thereafter entertain a garnishment proceeding against it, Allstate, and that Joan Nichols’ remedy is to now perfect her claim in the probate court of Shawnee County by exhibiting the judgment which she recovered in the federal district court proceeding and then seek allowance of her claim by an appropriate order of the probate court. Such would apparently be the approved procedure if the policy of automobile liability insurance issued Frombaugh by Allstate be truly an asset in Frombaugh’s estate. However, and this is the nub of the entire case, counsel for Nichols contends that the automobile liability insurance policy with which we are here concerned is not truly an asset of Frombaugh’s estate. It is Nichols’ position that, because of the nature of the obligation created by the terms and provisions of the policy, the monies collectible under the policy inure to the benefit of Joan Nichols and Allstate is therefore subject to garnishment proceedings in the federal district court. We agree.

The only reported case drawn to our attention which bears directly on the narrow issue now before us is Schloegl v. Nardi, 92 Ill.App.2d 302, 234 N.E.2d 558 (1968), a case which we incidentally, find persuasive. Though the factual setting was a bit different, Schloegl did address itself directly to the question of whether a policy of automobile liability insurance is an asset of the estate of a deceased insured. In holding that such a policy was not an asset, as such, of the estate, the following pertinent comment was made:

Was the insurance policy an asset of the estate which has been administered and consequently is now no longer available to satisfy any judgment these plaintiffs might obtain? No. Section 172 of the Probate Act (Ill.Rev.Stat.1963, ch. 3, sec. 172) requires the administrator or executor to inventory the real or personal estate of the decedent. This policy was neither. It provided no funds for the payment of claims of general creditors of the estate. It was, in the language of the plaintiffs, a “unique” asset. Insofar as it provided for indemnification from harm for judgments obtained, it protected the assets of the decedent. Within its limits and insuring clause it provided a potential fund for the satisfaction of any judgment obtained by a claimant asserting a timely claim under the general statute of limitations. It was, at best, an inchoate asset of the estate of no intrinsic value which would make it subject to administration or distribution as an “asset” by the decedent’s personal representative. The refund for unearned premium which the executors obtained had no effect upon any rights or obligations incurred by virtue of the existence of this insurance prior to the decedent’s death.
The third-party beneficiary aspects of liability insurance contracts have been recognized by both the legislature and the courts. The legislature has provided that bankruptcy or insolvency of the insured shall not constitute a defense to the insurance carrier (Ill.Rev.Stat.1963, ch. 73, sec. 1000; Scott v. Freeport Motor Cas. Co., 392 Ill. 332, 64 N.E.2d 542 (1946)), that companies writing automobile casualty-coverage shall provide certain minimum amounts of coverage, and also cover all persons using a vehicle with the express or implied permission of the named insured. (Ill.Rev.Stat. 1963, ch. 95%, sec. 7-317.)
Section 7-317(f) of the Financial Responsibility Act (Ill.Rev.Stat.1963, ch. 95%, sec. 7-317(f)) provides, in part, that no policy shall be cancelled or annulled by any agreement between the carrier and the insured after the insured has become responsible for loss or damage.
The Supreme Court of Illinois has stated:
“. . . [U]nder our statutes, . liability insurance is not merely a private matter for the sole knowledge of the carrier and the insured, but is also for the benefit of persons injured by the negligent operation of insured’s motor vehicle. (Citing case.) . . . .” People ex rel. Terry v. Fisher, 12 Ill.2d 231, 238, 145 N.E.2d 588, 592-593 (1957).
The concept of a liability insurance policy as a “unique” inchoate asset of the decedent’s estate finds support in prior Illinois cases. In Furst v. Brady, 375 Ill. 425, 31 N.E.2d 606, 133 A.L.R. 558 (1941), the existence of such a policy, issued by a company licensed to do business in Illinois, which insured a nonresident who had been involved in an auto accident in Illinois and subsequently died with no other assets in Illinois, was held to be sufficient to support the appointment of an administrator in Illinois for the nonresident in order to allow an injured party to assert an injury action against the decedent here in Illinois. That decision was not based upon the concept that the insurance policy was property of the decedent subject to ordinary administration, but was bottomed on the concept that the insuring clause provided the personal representative with a chose in action with a situs in Illinois which would ripen against the insurance company in the event of judgment against the administrator in the underlying personal injury action.

Our attention has not been directed to any Kansas decision which considers the question as to whether a policy of automobile liability insurance is, or is not, an asset in the estate of the deceased insured. However, our survey of Kansas law relating to the nature of the obligation of an insurer issuing automobile liability insurance policies would seem to be in accord with the rationale of Schloegl. Let us examine some of those authorities that indicate to us that Kansas would be in general agreement with the Schloegl rule.

In Kansas, as in Illinois, an automobile liability insurance policy does constitute such an “estate” of a nonresident insured decedent as to justify the issuance of letters of administration and the appointment of an administrator of such estate in Kansas probate proceedings. In re Preston's Estate, 193 Kan. 145, 392 P.2d 922 (1964). However, such does not mean that monies recoverable under the terms of the automobile liability insurance policy must be recovered in the deceased insured’s probate proceedings. In this regard, as was pointed out in Schloegl, though the existence of an automobile liability insurance policy is sufficient to open an estate for a nonresident insured, it does not follow that the “insurance policy was property of the decedent subject to ordinary administration.” Instead, said the court in Schloegl, such right to open an estate based on the existence of an automobile liability insurance policy issued to the deceased “was bottomed on the concept that the insuring clause provided the personal representative with a chose in action with a situs in Illinois which would ripen against the insurance company in the event of a judgment against the administrator in the underlying personal injury action.”

In Schloegl, the court recognized the third party beneficiary aspects of liability insurance contracts. So, too, we feel, does Kansas. For example, in Kansas, the right to operate a motor vehicle upon a public highway is not a natural right, but a privilege, subject to reasonable regulation in the public interest. State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967). In such public interest Kansas has enacted the Motor Vehicle Safety Responsibility Act, K.S.A. 8-722 et seq., which Act, according to Finley, is designed to “promote safety on the highways by protecting the users against financially irresponsible persons . . . . ” (Emphasis added.)

As is true with most safety responsibility laws, the Kansas Act provided that if the driver or owner of a vehicle involved in an accident coming within the scope of the Act has in effect at the time of the accident a policy of automobile liability insurance, then he need not demonstrate financial responsibility as otherwise required by the Act. K.S.A. 8-728. As concerns the general nature of such a policy of insurance, K.S.A. 8-750(f) provides as follows:

(f) Every motor-vehicle liability policy shall be subject to the following provisions which need not be contained therein: (1) The liability of the insurance carrier with respect to the insurance required by this act shall become absolute whenever injury or damage covered by said motor-vehicle liability policy occurs; said policy may not be canceled or annulled as to such liability by any agreement between the insurance carrier and the insured after the occurrence of the injury or damage; no statement made by the insured or on his behalf and no violation of said policy shall defeat or void said policy. (2) The satisfaction by the insured of a judgment for such injury or damage shall not be a condition precedent to the right or duty of the insurance carrier to make payment on account of such injury or damage ....

Continuing, then, our comparison of Schloegl to Kansas law, in Schloegl mention was made that the Illinois legislature had provided that the bankruptcy" or insolvency of the insured shall not constitute a defense to the insurance carrier. So, too, in Kansas, it has been held that an action does not abate when a defendant is discharged in bankruptcy where the defendant was insured against liability. Johnson v. Bondurant, 187 Kan. 637, 359 P.2d 861 (1961). We recognize that this particular matter is primarily governed by bankruptcy law, but it does afford another basis for comparison between Schloegl and Kansas law.

Under long standing garnishment law in Kansas, once judgment has entered, the judgment creditor then takes the place of the judgment debtor and may take that which the latter could enforce. Burlington & M. R. R. Co. v. Thompson, 31 Kan. 180, 1 P. 622 (1884). So, there is no doubt but that a judgment creditor in a typical personal injury case where the tort-feasor is alive, and not deceased, may proceed by garnishment against the tort-feasor’s insurer to satisfy within policy limits the judgment obtained against the tortfeasor. And Kansas courts have gone a step farther and have held that a judgment creditor may proceed by garnishment against a tort-feasor’s insurer for the unpaid balance of the judgment which is in excess of the policy limits where the insurer refused to settle within policy limits by virtue of negligence or bad faith, the courts holding that such claim sounds in contract and is subject to garnishment even though unliquidated. Gilley v. Farmer, 207 Kan. 536, 485 P.2d 1284 (1971), and Bollinger v. Nuss, 202 Kan. 326, 449 P.2d 502 (1969).

This right to thus proceed by garnishment against the insurer for that portion of the judgment which is in excess of policy limits has been recognized, admittedly by way of dictum, where the original action was brought, as it was here, against the administrator of the estate of an insured who himself died in the accident which was the basis for the entire litigation. In re Estate of Lohse, 207 Kan. 36, 483 P.2d 1048 (1971). The Lohse case thus indicates to us that though the personal administrator of the estate of the deceased insured might himself have a cause of action against a decedent’s insurer who negligently and in bad faith failed to settle within policy limits for the unpaid balance of a judgment, the judgment creditor himself has an independent right to thus proceed by garnishment against the insurer. So, if the judgment creditor himself may proceed by garnishment against the deceased’s insurer for the unpaid balance of a judgment in excess of policy limits, it would seem to follow that he may also proceed by garnishment against the insurer for monies due that are within policy limits. The greater would seem to include the lesser.

Without further comparison of Kansas law to Illinois law, we are of the view that the Kansas courts, like the court in Schloegl, would conclude that the policy of insurance issued Frombaugh by Allstate, and more particularly the proceeds collectible thereunder, is not, as such, a part of Frombaugh’s estate subject to ordinary administration. In such circumstance, then, Joan Nichols, as judgment creditor, was entitled to institute garnishment proceedings against Allstate. The latter’s argument that its duty to respond is contingent upon an order from the probate court of Shawnee County is unavailing. When judgment was duly entered in Joan Nichols’ action against Marshall, as the administrator of the Frombaugh estate, Allstate’s contractual duty became fixed, inuring to the benefit and use of Joan Nichols, and became subject to garnishment.

Judgment affirmed.


author: EAST, Senior District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward W. GREENBANK, Defendant-Appellant.
    No. 73-2503.
    United States Court of Appeals, Ninth Circuit.
    Jan. 28, 1974.
    Rehearing Denied Feb. 28, 1974.

      Larry L. Debus (argued), of Debus, Busby & Green, Phoenix, Ariz., for defendant-appellant.
    William C. Smitherman, U. S. Atty., Patricia Whitehead, Ronald A. Lebowitz, Thomas N. Crowe (argued), Asst. U. S. Attys., for plaintiff-appellee.

      Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

Before WRIGHT and CHOY, Circuit Judges, and EAST, Senior District Judge.

EAST, Senior District Judge:

The defendant-appellant, Edward W. Greenbank (Greenbank), William T. Laakman and Betty Rose Laakman (the Laakmans) were indicted on one count of violating 21 U.S.C. § 841(a)(1) and (b) [possession with intent to distribute a quantity of a controlled substance] and on one count of violating 21 U.S.C. § 846 [conspiracy].

Greenbank and the Laakmans were jointly tried before a jury on April 17 through 19, 1973, and Greenbank was found guilty on both counts as charged. The district court had Greenbank’s motion for judgment of acquittal for both counts under advisement, and thereupon granted the motion as to the possession count and entered appropriate order. Greenbank was sentenced to custody on the conspiracy conviction and appeals. We affirm. Greenbank’s assignments of error are consolidated as follows:

1. The district court should have granted defendant’s motion for a verdict of acquittal on the conspiracy charge because of the total enmeshment, from beginning to end, of a paid government agent in the criminal enterprise culminating in a denial of due process under the United States Constitution.

2. The cumulative effect of the numerous instances of prosecutorial misconduct throughout the trial constituted plain error and a new trial should have been granted, notwithstanding the fact that defense counsel withdrew his motion for a mistrial prior to closing argument.

3. The sentence imposed by the district court judge was invalid in that it was based on an erroneous and misleading presentence report.

Assignment of Error 1:

Greenbank candidly concedes in his briefs that the rationale and holding of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (April 24, 1973) (Russell-Supreme Court), forecloses any defense of entrapment under the facts of this case. In fact, Greenbank states “he never asserted entrapment as a defense.” Yet it is fair to note that the jury trial was had during the advent of Russell-Supreme Court and while the rationale and holding of United States v. Russell, 459 F.2d 671 (9th Cir. 1972) (Russell-Circuit Court), was viable. It is manifest from the district court’s jury instruction requested by Greenbank and objected to by the government that Greenbank’s theory of defense throughout the trial and submission to the jury was based upon the broadened Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, principle of the defense of entrapment as enunciated in Russell-Circuit Court, supra, viz:

“that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.”

That view or concept makes the essential element of the defense turn on a measuring or calibration of the type and degree of governmental involvement in the criminal venture, rather than absence on the part of the accused a predisposition to commit the crime. It was that very concept that was flatly rejected in Russell-Supreme Court. Furthermore, that authority announced “the defense is not of a constitutional dimension” and dropped “the matter where it was left by the Court in Sherman:

‘The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” ’ Id., [356 U.S.] at 372, [78 S.Ct. 819, 2 L.Ed.2d 848] quoting Sorrells v. United States, 287 U.S. at 442 [53 S.Ct. 210, 77 L.Ed. 413]”, 411 U.S. at 434 and 435, 93 S.Ct. at 1644.
“It is only when the government’s deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play” at 436, 93 S.Ct. at 1645.

It follows then that Greenbank’s position on appeal levels with the principal contention urged in Russell-Supreme Court, at 431 and 432, 93 S.Ct. at 1642, namely: “the level of [the government’s agent] involvement in the [enterprise] was so high that a criminal prosecution for the [illegal drug traffic] violates the fundamental principles of due process,” and he seeks shelter in the Court’s observation, “[w]hile we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165 [72 S.Ct. 205, 96 L.Ed. 183] (1952).”

It appears in the evidentiary record that:

One Gonzalez was a known trafficker in illegal drugs with an arrest record. He had turned informer to the government and received periodic compensation for his services;

Gonzalez had met on several occasions with parties to the enterprise, learned of a proposed $10,000 marijuana transaction and contacted an agent of the United States Customs Service;

Gonzalez infiltrated the enterprise, gave time-to-time progress reports to agents and participated therein to the extent of acting as a carrier of the contraband and money involved; however, he played no part in finding or producing the source or a purchaser of the contraband ; and

Greenbank, a Gill and a Conde were active in the enterprise before Gonzalez appeared on the scene and became active, and had not Gonzalez played the role of a carrier other persons were available for that purpose.

Gonzalez was not as Greenbank contends a governmental generated vortex which pulled an innocent into an illegal enterprise, rather he was a small disloyal cog turning within the illegal venture under the power of the predisposed mind and free hands of Greenbank and his co-conspirators. We are satisfied, as was the jury, that Greenbank “was not an unwary innocent” but, indeed, “an unwary criminal.”

“Thus in drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of apprehension; if that be so, then the [performance of a service which] the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate ‘fundamental fairness’ or ‘shocking to the universal sense of justice,’ Kinsella [361 U.S. 234, 80 S.Ct. 297, 4 L.Ed.2d 268], supra.” Russell-Supreme Court, 411 U. S. at 432, 93 S.Ct. at 1643.

We conclude that no expressed or implied concept of federal due-process was violated by the government in making use of the evidentiary fruits obtained through Gonzalez’s government countenanced infiltration and limited participation in the ongoing illegal enterprise. The assignment of error is without merit.

Assignment of Error 2:

The prosecutorial misconduct complained of can be broken down into three areas:

a. The display of a hand gun by a government witness and the government attorney in full view of the jury, and testimony of a government witness regarding the same weapon which was exhibited in a photographic exhibit.
b. The prejudicial prosecutor’s statement during trial of “fear for [Gonzalez’s] life,” and
c. Prejudicial statements during closing argument of the prosecutor in praise of Gonzalez.

Area a: The gun and photograph proved to be utterly immaterial to the charges and were refused admission in evidence. The courtroom appearance and use of the articles were the subjects of a defense motion for a mistrial. However, before a ruling thereon defense counsel advised the district court,

“I’m in a most difficult situation. I feel compelled to withdraw the motion for mistrial for the reason that the jury which we have, the complexion of the case at the present time, I think is as beneficial to my client as I could ever have it.
“However, I don’t think, although there are cases on mistrials, and not being able to refile the case and try it again, I don’t think this case is at this time in that complexion. So I have consulted with co-counsel. I have consulted with my knowledgeable law clerk, and I would ask the clerk if I may withdraw my motion for mistrial, much as I would—”
“THE COURT: Very well. The motion for mistrial is withdrawn.
“Now when it comes time to instruct the jury, do you want me to make any reference to it, and to tell them the gun has nothing to do with the ease, and that they are to disregard it entirely?”

Area b: The prosecutor’s statement of “fear for his life” entered the record during cross-examination of government witness Gonzalez as follows:

“Q. Okay. And where are you staying here while you’re here?”
“[PROSECUTOR:] Objection, your Honor. This man is an informant.”
“Q. Are you staying with Mr. Seaver? [Customs Service Agent.]”
“[PROSECUTOR:] There is possible fear for his life.”
“[COUNSEL:] I’ll withdraw it.”
“[PROSECUTOR:] I am going to object.”
“THE COURT: Sit down. Sustained.”
“[COUNSEL:] I move for a mistrial on the comments of the prosecutor your Honor.
“Your Honor, I’ll withdraw the motion for mistrial. I don’t want to go through that.”
“THE COURT: Very well, proceed.”

Greenbank concedes that the voluntary withdrawal of the motions for mistrial forecloses him of an appealable order for assigned error. However, he would fault the district judge for plain error in not sua sponte declaring a mistrial on the very grounds he had expressly abandoned during trial. We understand the reasons for hindsight judgments, but scorn such double dealing on the district court.

Area c: The tenor of some of the statements of the prosecutor during closing argument are challenged as being of high prejudicial scale. It is fair to say that in the course of the argument Gonzalez was applauded for his prior service to law enforcement officers, his effectiveness as an informer was complimented and his help in controlling drug traffic was commended. However, we are mindful that closing argument was a reply to defense counsel’s argument wherein Gonzalez was bitterly characterized as “a rat.” As most trial lawyers know, advocacy is not bound to wearing kid gloves or pulling punches.

We are content to state that the relevant evidence in the record was sufficient to support the inferences respective counsel in advocacy urged the jury to accept.

Greenbank also complains in his reply brief about the following closing argument comment:

“All you’re concerned with is whether the people here are guilty or not guilty, because counsel knows if we went into other facts concerning the activities of Gill and Conde, it would be outside the record and it would be objectionable, so we’re not going to tell you all the things we know about them because we can’t.”

Whether this reference was based upon the prosecutor’s personal knowledge apart from evidence in the record as dealt with in Orebo v. United States, 293 F.2d 747 (9th Cir. 1961), is beside the point. Manifestly, the reference is not as to probable guilt of Greenbank as it deals with conduct of Gill and Conde and not Greenbank.

We conclude that while the challenged prosecutor’s statements, tactics and conduct are seemingly unexplainable, they in compounded effect do fall short of a bane of a fair trial for Greenbank. See Todorow v. United States, 173 F.2d 439 (9th Cir. 1949); cf. United States v. Cumberland, 200 F.2d 609 (3rd Cir. 1952), and Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 169, 90 L.Ed. 1557 (1946).

To fault a district court for record plain error on an issue of law is one thing, but to fault on undisclosed and vague possible prejudicial jury exposure to irrelevant evidence and counsel’s statements is quite another. The district court has wide discretion from his ringside observation to act and conduct an orderly fair trial for an accused. We note from the record timely and direct judicious warnings and admonitions to the jury following each of the incidents. We determine from our perusal of the record that there is an abundance of evidence of Greenbank’s guilt and no substantial right of Greenbank was adversely affected as challenged and urged in assignment of error 2. The record is free of plain error.

Assignment of Error S:

The record discloses that defense counsel examined the presentence report and made independent inquiry of sources. The district court heard counsel’s objections to and explanation of reported material. The record is devoid of any fact which was not relevant in the determining of the discretionary and lawful sentence entered". The assignment is without merit.

Affirmed.


author: PER CURIAM:

text:
    WHITE MOTOR CORPORATION and White Farm Equipment Company, Plaintiffs-Appellants, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, et al., Defendants-Appellees.
    No. 635, Docket 73-2548.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 20, 1973.
    Decided Jan. 25, 1974.

      Frank C. Heath, Cleveland, Ohio (James A. Rydzel, Jones, Day, Cockley & Reavis, Cleveland, Ohio, Lawrence W. Boes and Douglas P. Catalano, Reavis & McGrath, New York City, on the brief), for plaintiffs-appellants.
    Charles Looman, Detroit, Mich. (John A. Fillion, M. Jay Whitman, Detroit, Mich., and Max D. Bluestone, New York City, on the brief), for defendants-appellees.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   PER CURIAM:

This case arises from a pension dispute between White Motor Corporation and members of the United Auto Workers in the corporation’s plants in Minneapolis and Hopkins, Minnesota. On August 14, 1972 the District Court for the District of Minnesota entered an order compelling arbitration of the dispute. On August 30, 1973 the arbitrator issued an award sustaining the union’s position. On September 10, 1973 the union commenced an action in the District of Minnesota under section 301 of the Labor Management Relations Act, 29 U. S.C. § 185 (1970), to enforce the award. On September 11, 1973 White commenced the present action in the Southern District of New York under section A01 of the LMRA and the Arbitration Act, 9 U.S.C. §§ 1-14 (1970), and moved for an order staying the union’s suit in the District of Minnesota. The district court denied the motion and granted the union’s cross-motion to stay the company’s suit pending determination of the Minnesota action. We affirm.

A party to a collective bargaining agreement may sue under section 301 of the LMRA to enforce the award of an arbitrator made under the agreement. General Drivers, Warehousemen & Helpers, Local No. 89 v. Riss & Co., 372 U.S. 517, 519, 83 S.Ct. 789, 9 L.Ed.2d 918 (1963); see Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 453-456, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); International Ass’n of Machinists and Aerospace Workers v. General Electric Co., 406 F.2d 1046, 1050 (2d Cir. 1969).

White Motor argues, however, that venue was not properly laid in the District of Minnesota. It contends that there are no specific venue provisions under the LMRA, that the venue provisions of the Arbitration Act, 9 U.S.C. §§ 9, 10 (1970), control any general provisions under which the union’s suit might have been brought, and that under the Arbitration Act only the Southern District of New York had venue of the action.

We hold that section 301(a) does provide for venue for actions under the LMRA. Section 301(e) of the Act delineates the circumstances under which the district court has jurisdiction over a labor organization. Section 301(a) states that suits under the Act “may be brought in any district court of the United States having jurisdiction of the parties.” We do not read the section, as appellants ask us to do, to refer to subject matter jurisdiction rather than venue. Since the union elected to bring its action for enforcement of the award under section 301 instead of under the Arbitration Act, the venue provisions of the Arbitration Act would have no effect on the proper venue of the action even if we held that section 301(a) did not specifically provide for venue in section 301 suits.

Venue was properly laid in the District of Minnesota and the court below correctly declined to stay the action in Minnesota. The district court did not abuse its discretion in staying its own proceedings pending resolution of the suit in Minnesota.

Affirmed.

      . White Motor bases its claim that venue is proper in the Southern District of New York on the fact that the arbitrator signed and mailed the award from New York. Section 9 of the Arbitration Act provides that in the absence of a specified court for enforcement of the award, it shall be enforced in the district court “in and for the district within which such award was made.” In view of our disposition of this case, we need not consider the union’s argument that the award was not “made” in New York simply because it was signed and mailed from New York.

      . Section 301(c) reads as follows:
      “For the purposes of actions and proceedings by or against labor organizations in the district courts of the United States, district courts shall be deemed to have jurisdiction of a labor organization (1) in the district in which such organization maintains its principal office, or (2) in any district in which its duly authorized officers or agents are engaged in representing or acting for employee members.” 29 U.S.C. § 184(c) (1970).

      . Section 301(a) reads as follows :
      “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.” 29 U.S.C. § 185(a) (1970).

      . Appellants rely on United States v. Ets-Hokin Corp., 397 F.2d 935 (9th Cir. 1968), which held that the venue provision of the Arbitration Act controlled in an action where the plaintiff had sought to invoke the Miller Act, 40 U.S.C. § 270a et seq. (1970). The court did not articulate the reasons for its decision. However, assuming that the court there was correct, we think the decision is distinguishable. The opinion refers specifically to lack of jurisdiction rather than venue. Apparently the court assumed that a party to a federal project contract may not sue under the Miller Act to vacate the award of an arbitrator. Thus jurisdiction existed only under the Arbitration Act, and the venue provisions of the Arbitration Act applied. Here the District of Minnesota did have jurisdiction under the LMRA, and thus the venue provisions of that Act should apply.