author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred MOSLEY, Defendant-Appellant.
    No. 73-3336.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.

      J. D. Quinlivan, Jr., Mobile, Ala. (Court-appointed), Ian Frederick Gas-ton, Mobile, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., ■Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala.,, for plaintiff-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   BELL, Circuit Judge:

In a jury trial, appellant was convicted for distributing and possessing with intent to distribute heroin in violation of 21 U.S.C.A. § 841(a)(1). His sole defense was entrapment.

Because the district court did not present the Bueno-type issue to the jury, we reverse and remand for a new trial.

The salient consideration concerns the role of the government undercover agent in the case, a Deborah Reaves, an admitted heroin user. While in the company of Ms. Reaves on January 6, 1973, Larry Carver, an agent of the Bureau of Narcotics and Dangerous Drugs (B.N.D.D.) negotiated the purchase of .093 grams of heroin from appellant at a restaurant in Mobile, Alabama. This sale was the substance of the offense for which appellant was tried and convicted.

The sum of appellant’s contention is that Ms. Reaves furnished appellant the heroin sold to Carver. Appellant said she induced him to sell it to a boyfriend with whom she claimed she lived and to whom she owed money (who turned out to be Agent Carver and who was advancing Ms. Reaves money for living expenses for the Government). Appellant testified that at the time of this purported inducement, Ms. Reaves and appellant were “making love most of the time” in a motel room. Ms. Reaves denied that she furnished the heroin to appellant and testified she and appellant were in the motel cutting the heroin down into individual dosage units. She said that she first met the appellant on that day when he came to her apartment with a friend, and while there he sold single dosage “hits” to Ms. Reaves and others present.

We have examined the record in detail and find that the evidence was sufficient to warrant jury instructions on the issue of entrapment. See United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142. The burden is on the defendant to offer evidence sufficient to raise the issue for consideration by the jury “. . . that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it.” Pierce v. United States, 5 Cir., 1969, 414 F.2d 163, 168. Once such an issue is raised the burden is on the Government to prove beyond a reasonable doubt that the accused was predisposed to commit the crime charged. United States v. Workopich, supra; Pierce v. United States, supra. The district court charged the jury on the basic question of entrapment, that is, of appellant’s predisposition to commit the crime. The jury apparently resolved the conflicting evidence in favor of the Government and concluded the appellant was predisposed to commit the crime. There the matter would normally end. E. g., United States v. Mitchell, 5 Cir., 1974, 493 F.2d 9.

This Circuit, however, held in United States v. Bueno, 5 Cir., 1971, 447 F.2d 903, that when a defendant testified that he obtained the contraband from a government undercover agent, the Government must produce the undercover agent to contradict the defendant’s allegations in order to take the case to the jury. Ms. Reaves, the undercover agent, did in fact testify in this case. Then the jury must find beyond a reasonable doubt that the defendant did not obtain the contraband in question from the undercover agent. That question was not submitted to the jury here.

The Government contends that Bueno’s vitality was eroded in United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. The majority in Russell, 411 U.S.. at 434, 93 S.Ct. at 1644, 36 L.Ed.2d at 373, said they were “content to leave” the law of entrapment “where it was left” by the Court in Sherman v. United States, 1958, 356 U. S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848:

“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.’ ”

The Court in Russell held that entrapment does not exist as a matter of law when the Government furnishes the accused a legal and obtainable material that is used by the accused to manufacture contraband. Russell did not involve the Government’s supplying the contraband itself. While this Court’s decision in Bueno, swpra, was noted by the majority in Russell, Bueno was not overruled.

Our view that Bueno is still binding as precedent is in accord with dictum in two decisions in this Circuit since Russell. In United States v. Workopich, 5 Cir., 1973, 479 F.2d 1142, 1144-1145, the Court observed that the Government in Russell supplied the defendant an ingredient that was itself legal, harmless and lawfully obtainable but was used to manufacture contraband. In Bueno, the unrefuted testimony was that the Government supplied the contraband itself. Since in Workopich the Government furnished United States currency that was legal in itself, the court determined that Russell rather than Bueno controlled.

In United States v. Oquendo, 5 Cir., 1974, 490 F.2d 161, the Court reversed and remanded as a result of an error in the charge. The district court there attempted to give an instruction on a Bueno-type issue, but error was committed in casting the jury’s ultimate determination whether to convict or acquit in terms of a mere credibility choice between the undercover agent and the defendant. 490 F.2d at 165. The Court observed that the facts may require submission to the jury as separate concepts both the standard entrapment defense and a Bueno-type issue. Id. at 164-165, n. 8. Thus the law of this Circuit is that a defendant, where entrapment is an issue, may be acquitted for lack of predisposition, or, even though disposed, where the undercover agent supplies him with the contraband.

We therefore hold the facts sufficient in the instant case to warrant the dual instruction. It was error to deny the request for a Bueno-type instruction.

Because a newtrial is thus required, we reach only one of appellant’s other contentions. As a matter of guidance for the subsequent trial, it should be noted that by waiving the defense of insanity at the time of the offense, a defendant'-does not necessarily waive the relevance of his mental competency on the question of predisposition. Appellant, attempted to introduce evidence that he had a head injury and' brain surgery sometime prior to the time of this offense and as a result of this had a changed personality and was more easily swayed by others. All such evidence was excluded by the trial court. The district court ruled that appellant waived at a pretrial omnibus hearing the defense of insanity at the time of the offense. The difficulty of proving a defendant’s predisposition has been widely observed and the courts have generally approved the admission of hearsay evidence, including hearsay reputation evidence, to prove a defendant’s predisposition to commit the crime. United States v. McKinley, 5 Cir., 1974, 493 F.2d 547; United States v. Simon, 5 Cir., 1973, 488 F.2d 133. We cannot say that a head injury, a changed personality, and a resulting tendency to be easily swayed by others are not relevant factors to be considered on the issue of predisposition. This is not the same as attempting to prove insanity at the time of the offense under the Blake formulation, Blake v. United States, 5 Cir., (en banc), 1969, 407 F.2d 908. In fact, on the same court-provided form where appellant circled that he would not rely on a defense of insanity at the time of the offense appellant or his counsel also circled that the general nature of the defense was a “lack of mental responsibility.” Evidence relevant to appellant’s predisposition, one way or the other, should go to the jury for resolution with proper instructions.

Reversed and remanded.

      . United States v. Bueno, infra, 5 Cir., 1971, 447 F.2d 903.

      . “Now, in regard to the question of entrapment, 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 commitment in order that they may prosecute.
      In the event the evidence establishes that this is what the government did, then the defense of entrapment will lie. However, the fact that officers or employees of the government merely afforded opportunities or facilities for the commission of the offense does not defeat its prosecution, nor does the mere fact of the use of deceit in securing the commission of the crime by government officials or otherwise defeat the prosecution of the commission of such act, for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the government’s deception actually implants the criminal design in the mind of an innocent defendant that the defense of entrapment comes into play.
      Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.
      On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment, for example, when the government suspects that a person is engaged in the illicit sale of narcotics it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to purchase narcotics from such suspected person.
      If then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit the crimes such as charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.
      On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the government, then it is your duty to acquit him.”

      . The Government at oral argument contended that this Circuit’s decision in United States v. Mitchell, 5 Cir., 1974, 493 F.2d 9, is contrary to the Bueno rationale. Mitohell did not discuss Bueno simply because no Bueno question was presented.
      There is some indication that other Circuits may consider claims that an undercover agent furnished contraband or claims of other kinds of governmental “creative activity” as evidence to be weighed by the jury in determining the issue of predisposition. Following Russell, the Supreme Court vacated the Seventh Circuit’s decision in United States v. McGrath, 7 Cir., 1972, 468 F.2d 1027, vacated and remanded, 412 U.S. 936, 93 S.Ct. 2769, 37 L.Ed.2d 395, for further consideration in light of Russell. On February 26, 1974, the Seventh Circuit cited Russell as controlling and affirmed the conviction as to both counts. 14 Crim.L.Rep. 2488. Initially in McGrath the Seventh Circuit had reversed a conviction for possession of counterfeit currency and conspiracy to produce and pass counterfeit obligations where the government had taken charge and supervised a counterfeiting operation after the defendant had initially produced counterfeiting materials and had attempted to locate a willing printer. See also United States v. Rosner, 2d Cir., 1973, 485 F.2d 1213; United States v. Johnson, 9 Cir., 1973, 484 F.2d 165, 167, cert. denied, 414 U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739; Note, Entrapment; Sorrells to Russell, 1974, 49 Notre Dame Law. 579, 582 n. 40; 1974, 42 Fordham L. Rev. 454, 462; Note, Elevation of Entrapment to a Constitutional Defense, 1974, Journal of Law Reform 361, 384.

      . The acts of the informer are imputed as in concert with the Government. Sherman v. United States, 1958, 356 U.S. 369, 373-375, 78 S.Ct. 819, 2 L.Ed.2d 848.

      . Appellant contends the district court unduly restricted his cross-examination of the government undercover agent Ms. Reaves. A full cross-examination into relevant matters is a right. See Grant v. United States, 5 Cir., 1966, 368 F.2d 658, 661. Restricting cross-examination should be considered by a trial court in the face of this general rule.
      Nor do we reach here the question and applicability of Williamson v. United States, 5 Cir., 1962, 311 F.2d 441, on the Government’s fee arrangement with its informer Ms. Reaves.

      . See United States v. Russell, supra, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, 380 (J. Stewart dissenting); Note, The Supreme Court, 1972 Term, 1973, 87 Harv.L. Rev. 1, 247; Note, Entrapment-Sorrells to Russell, supra, 1974, 49 Notre Dame Law. 579, 583.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge: TUTTLE, Circuit Judge BY THE COURT:

license: Public Domain

text:
    NAMED INDIVIDUAL MEMBERS OF the SAN ANTONIO CONSERVATION SOCIETY et al., Plaintiffs-Appellants, v. The TEXAS HIGHWAY DEPARTMENT et al., DefendantsAppellees.
    No. 74-1231.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Rehearing Denied Aug. 29, 1974.
    Limited Rehearing Granted Aug. 29, 1974.

      John W. Vardaman, Jr., Washington, D. C., for plaintiffs-appellants.
    William S. Sessions, U. S. Atty., Edward M. Johnson, Asst. U. S. Atty., San Antonio, Tex., Larry F. York, Lynn Taylor, Asst. Attys. Gen., Samuel D. McDaniel, Austin, Tex., Leonard Sehaitman, Judith S. Feigin, Dept, of Justice, App. Sec., Civ. Div., Washington, D. C., for defendants-appellees.
    Hubert W. Green, San Antonio, Tex., amicus curiae, for Greater San Antonio Chamber of Commerce.
    Crawford B. Reeder, City Atty., San Antonio, Tex., amicus curiae, for City of San Antonio.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges:
   AINSWORTH, Circuit Judge:

This much litigated and important environmental case has been in the courts for more than six years and is now before us for the second time. The complaint seeks to enjoin the construction of an expressway which would pass through parklands in the City of San Antonio, Texas. Plaintiffs are named individual members of the San Antonio Conservation Society, and defendants are The Texas Highway Department, an administrative agency of the State of Texas, acting by and through the Texas Highway Commission, consisting of DeWitt C. Greer, Herbert C. Petry, Jr., and Garret Morris, and the State Highway Engineer, J. C. Dingwall, termed “State defendants”; and The Federal Department of Transportation, an administrative agency of the United States of America, acting by and through John A. Volpe, Secretary of Transportation; F. C. Turner, Administrator, Federal Highway Administration; R. R. Bartlesmeyer, Director, Bureau of Public Roads; A. C. Taylor, Regional Administrator, Federal Highway Administration ; and J. F. Cary, Division Engineer, Bureau of Public Roads, termed “federal defendants.”

The question for decision is whether the congressional enactment of section 154 of the Federal-Aid Highway Act of 1973, severing all federal connection with the San Antonio North Expressway, removes that project from the necessity for compliance with the provisions of the National Environmental Policy Act (NEPA) (42 U.S.C. § 4331 et seq.) and section 4(f) of the Department of Transportation Act (49 U.S.C. § 1653(f)).

Our prior decision (446 F.2d 1013 (1971)) reversed a summary judgment in favor of defendants and held that there had been a failure to comply with the provisions of NEPA and section 4(f) before proceeding with construction of the Expressway. We remanded the case with directions to the district court that it be held until 'the Secretary of Transportation had complied with his statutory responsibilities after which the district court was to conduct a full review of the matter. In the meanwhile, we ordered that “[c] (instruction shall not proceed until there has been full compliance with the law.” Id., at 1029.

The San Antonio North Expressway has been projected since 1959. The disputed segment is approximately six miles long, running about north and south through the middle of the City of San Antonio, and extends between Interstate Loop 410 and Interstate Highway 35. The controversy arises out of the fact that it will traverse portions of the Braekenridge-Olmos Basin Parklands. Its proponents stress the imperative need to solve serious traffic problems of the city; its opponents do not wish it to go through the beautiful Parklands in mid San Antonio. Some time after our initial decision in this case, Congress enacted the Federal-Aid Highway Act of 1973. Section 154 of that Act is directly applicable to the Expressway here, and reads in full as follows:

(f) It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development, and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. After August 23, 1968, the Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof, or any land from an historic site of national, State, or local significance as so determined by such officials unless (1) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park, recreational area, wildlife and waterfowl refuge, or historic site resulting from such use.
Sec. 154. (a) Notwithstanding any other provisions of Federal law or any court decision to the contrary, the contractual relationship between the Federal and State Governments shall be ended with respect to all portions of the San Antonio North Expressway between Interstate Highway 35 and Interstate Loop 410, and the expressway shall cease to be a Federal-aid project.
(b) The amount of all Federal-aid highway funds paid on account of sections of the San Antonio North Expressway in Bexar County, Texas (Federal-aid projects numbered U 244(7), U 244(10), UG 244(9), U 244(8), and U 244(11)), shall be repaid to the Treasurer of the United States and the amount so repaid shall be deposited to the credit of the appropriation for “Federal-Aid Highways (Trust Fund)”. At the time of such repayment the Federal-aid projects with respect to which funds have been repaid and any other Federal-aid projects located on such expressway and programed for expenditure on such project, if any, such be canceled and withdrawn from the Federal-aid highway program. Any amount so repaid, together with the unpaid balance of any amount programed for expenditure on any such project shall be credited to the unprogramed balance of Federal-aid highway funds of the same class last apportioned to the States, respectively. The amount so credited shall be available for expenditure in accordance with the provisions of title 23, United States Code, as amended.

It is undisputed that in conformity with section 154 the State of Texas has returned to the Federal Government all federal-aid funds which it received on account of the Expressway and that it will receive no other federal funds in the future to aid in its construction. All funds received have been restored to the Federal Government and reapportioned among the States. By congressional enactment the Expressway is now entirely a state-financed project.

Upon the passage of section 154 the Federal Government and the State of Texas both moved the district court to dismiss plaintiffs’ suit on the ground that removal of all federal funding by Congress exempted the project from compliance with the environmental provisions of NEPA and section 4(f). Plaintiffs contended, however, that passage of section 154 did not exempt the Expressway from the requirement that state and federal officials comply with federal environmental statutes specifically designed to protect parklands, especially NEPA and section 4(f). Plaintiffs argued that these statutory requirements are still applicable (1) because the Expressway would traverse an area in which U. S. Army Corps of Engineers’ approval would be required, thus constituting a “major federal action” under 42 U.S.C. § 4332(2) (C) and necessitating an environmental impact statement; (2) because the Expressway was only a small portion of a larger federal-aid network and inextricably related thereto; (3) because it would cross the San Antonio River said to be navigable and for which a U. S. Coast Guard permit would be required, another “major federal action”; and (4) if section 154 did exempt the project, it violated the due process clause of the U. S. Constitution.

The district court ruled adversely to the plaintiffs on all of these issues and held that the San Antonio North Expressway was exempt from the requirements of the federal environmental laws by virtue of the congressional enactment of section 154, which was not unconstitutional. Summary judgment was granted in favor of defendants and plaintiffs bring this appeal. A large volume of evidence, affidavits, depositions, and exhibits was filed by the parties in connection with the motions, and there does not appear to be any serious dispute as to the facts. It is the law as to which the parties have stressed their principal arguments and on which they differ.

We stayed the district court order pending consideration of this appeal.

I.

Plaintiffs contend that section 154 does not in its terms specifically exempt the North Expressway from NEPA, section 4(f) or any other federal law, and the fact that the North Expressway is now exclusively a Texas state highway project is not dispositive of the environmental issues. They argue that if Congress intended this result it should have expressly stated it in section 154.

Following this premise the plaintiffs urge that the Expressway will pass through the San Antonio Channel Improvement Project over which the Army Corps of Engineers has jurisdiction, such as, for example, the Olmos Dam and Reservoir situated in the Olmos Basin Parklands which they aver are portions of the Channel Improvement Project. Plaintiffs contend that the State Highway Department must obtain the Army Corps’ approval for the Expressway to cross the San Antonio River at Josephine Street and also to traverse the Olmos Dam and Reservoir area. They aver that the prior 1968 approval thereof by the Army Corps is outdated because there have been material changes in the design of the Expressway since that time. Finally they' contend that the Army Corps' approval will constitute a “major federal action” and thereby trigger the provisions of NEPA relative to furnishing an environmental impact statement. The defendants, Federal and State Governments, respond that the plain language of section 154 as well as the legislative history make it clear that Congress intended to exempt the North Expressway from the environmental requirements of federal law. They contend that Army Corps’ approval of the project insofar as the river crossing at Josephine Street and traversing the Olmos Dam and Reservoir are concerned is not required by statute, regulation, or otherwise and that the Corps has no authority to approve or disapprove the Expressway.

We agree with defendants. Section 154(a) clearly states that “Notwithstanding any other provisions of Federal law or any court decision to the contrary, the contractual relationship between the Federal and State Governments shall be ended . . . and the expressway shall cease to be a Federal-aid project.” (Emphasis added.) If Congress had not intended to exempt the Expressway from the environmental statutes, there would have been no purpose in passing the legislation. We cannot believe that Congress intended a vain and useless act. Any doubt about the matter, however, is fully resolved by the legislative history which shows without question that Congress drew the bill with the evident purpose of exempting the Expressway from the provisions of federal environmental laws including NEPA and section 4(f). The debates in the Senate and House disclose this unmistakably, as do the reports of the Senate and House Committees. Federal control and involvement thus came to an end with enactment of section 154.

Nor was approval of the Expressway by the Army Corps of Engineers necessary so as to constitute a “major federal action” and trigger the provisions of NEPA relative to the requirement of an environmental impact statement before the Expressway can proceed. The Olmos Dam and Reservoir areas and the Josephine Street crossing area are not within Corps jurisdiction or authority. No rights of way have been acquired in the area. As the Corps’ witness testified, it would not be able to approve the Expressway plans because there is no Corps project there at the moment. The Corps’ opinion was sought by the Texas Highway Department as to whether the project would cause any adverse effect on flood control, and the state was informed that there was no objection though it was not something within the right of the Corps, to approve or disapprove. It does not appear that there is any legal requirement that the state obtain Corps’ approval.

Thus this case differs from those cited by plaintiffs where federal official approval was necessary, being required by statute, such as Citizens Committee for Hudson Valley, S.D.N.Y.1969, 302 F.Supp. 1083, aff’d 2 Cir., 425 F.2d 97, cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970), and Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971), where Army Corps of Engineers’ approval was statutorily required; also, as in Davis v. Morton, 10 Cir., 1972, 469 F.2d 593, where the Secretary of the Interior was required by statute to ratify or reject leases on Indian reservations. In those cases the Federal Government’s role was one of control — or primary jurisdiction — unlike the present case. We find no merit, therefore, in this contention of plaintiffs.

II.

Plaintiffs’ second contention is that the Expressway is only a small portion of a larger federal-aid highway network and that even though this segment is to be constructed exclusively with state funds, NEPA must still be complied with by the state. Plaintiffs contend that practically every vehicle using the Expressway will enter or exit from the federal-aid route. Therefore, they argue that the North Expressway is basically a part of one federal-aid highway. Nevertheless, we cannot ignore the fact that Congress, by section 154, specifically determined that the North Expressway was not to be a federal project. The court below also held that the North Expressway has an independent utility of its own. The Federal Government argues that the congressional enactment of section 154 answers and disposes of this issue since there has now been an express congressional determination that the North Expressway is not a part of a larger federal project. It is true that the Expressway connects with other federal interstate highways at the north and south ends thereof, but defendants point out that virtually every road in the country crosses or interchanges with federal-aid highways, and that there are many state-constructed roads which do not form a part of the federal network. The independent utility of the Expressway is found in its connection of downtown San Antonio with the airport and in its primary purpose to relieve the serious traffic problem in central San Antonio. Accordingly, we hold that the Expressway is properly considered independently of the interstate routes with which it connects.

We approve, therefore, the conclusion of the district court (Judge Roberts), well expressed in this regard as follows:

While the North Expressway will, coincidentally, provide a link in the interstate highway system in San Antonio, this is not to be its major function. Indeed, a primary reason for the perseverance of the State in its efforts to build the North Expressway is the interest the people of San Antonio have in the completion of this project, an interest which derives not from the coincidental function of the North Expressway as a link in the interstate highway system, but rather from the perceived need for the North Expressway as a major artery of intra-urban transportation. Thus, the North Expressway has an “independent utility of its own,” Id., which justifies its consideration separately from surrounding projects for purposes of NEPA. The undisputed facts are that this project is to be financed with non-federal funds, designed and built without federal approval or authorization, and to serve primarily local needs. We cannot conceive this project to be a “major Federal action” within the contemplation of 42 U.S.C. § 4332(2) (C). We conclude, therefore, that no environmental impact statement is necessitated by the relationship of the North Expressway to the interstate highway system.

III.

The issue posed by plaintiffs on the navigability vel non of the San Antonio River is now moot. The Army Corps of Engineers made its determination on March 8, 1974 in which it concluded that the San Antonio River at the points involved in this ease should not be regarded as a navigable water of the United States. Plaintiffs' contention that U. S. Coast Guard approval is required for a bridge to cross the river must, therefore, fail.

IV.

Plaintiffs finally contend that if Congress’ enactment of section 154 did exempt the North Expressway such action violates the due process clause of the U. S. Constitution by arbitrarily discriminating against plaintiffs and depriving them of rights under federal environmental statutes. They argue that such fundamental federal rights are available to all other citizens in the nation in similar circumstances and that Congress has without any justification deprived them of such rights. They aver that there is no basis for treating the Expressway any differently “from any other federal-aid highway that threatens urban parklands.” (Appellants’ brief, p. 40.)

The short answer to this contention is that by virtue of section 154 the North Expressway is no longer a federal-aid highway and that the same Congress which enacted the environmental statutes to which plaintiffs refer, concluded to exempt this segment of highway from these laws. The federal-aid highway program was established by Congress and there is no reason apparent why it cannot decide which roads of the nation shall be included in the system. The environmental statutes were designed to apply to federal projects. The Expressway is now a state highway, not a federal highway. Its former federal status has been terminated by act of Congress. Congress having spoken in the matter, we see no reason to attempt to override the solemn expression of its will found in the enactment of section 154.

V.

Plaintiffs have also sought an award of attorneys’ fees in this case. They were successful in reversing the judgment of the district court when we first considered the case on appeal and remanded it. After passage of the Federal Aid Highway Act of 1973, they have been unsuccessful both in the lower court and in this court by our decision herein. They request, however, as a minimum that they be awarded attorneys’ fees through the first appeal. Obviously such an award would be substantial, considering the circumstances of this litigation.

They seek such an award against the state defendants. The Texas Highway Department, an administrative agency of the State of Texas, acting by and through the Texas Highway Commission, consisting of DeWitt C. Greer, Herbert C. Petry, Jr., and Garret Morris, and the State Highway Engineer, J. C. Dingwall. It is conceded that the federal defendants are immunized from an award of attorneys’ fees by provisions of 28 U.S.C. § 2412.

The claim for attorneys’ fees is asserted under the so-called “private attorney general” theory in that plaintiffs contend they were effectuating important congressional policy by prosecuting this suit. Plaintiffs do not contend that their efforts in this environmental case have been made inordinately difficult by actions of defendants taken in bad faith or for oppressive reasons. There is, accordingly, no indication of unreasonable or obdurate obstinacy or vexatious or groundless conduct.

The state defendants respond that sovereign immunity of the State of Texas by virtue of the Eleventh Amendment to the Constitution has also immunized them from an award of attorneys’ fees. The recent case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, decided by the Supreme Court on March 25, 1974, is cited by the state defendants in support of this contention. It is apparent that any award for attorneys’ fees must be paid from the general revenues of the State of Texas. Under the Edelman rationale “the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.” Edelman, supra, 415 U.S. at 663, 94 S.Ct. at 1356. Cases in which attorneys’ fees were awarded because of bad faith or obdurate obstinacy, or under the private attorney general theory against non-state defendants, are clearly inapposite. The claim for attorneys’ fees, even if limited to services through the first appeal of this case, is, therefore, barred.

Conclusion

This controversy has now “been resolved in the Halls of Congress, which is the proper place in our system of Government for priority decisions to be made.” 446 F.2d at 1024. We therefore defer to the will of Congress and give effect to its solemn enactment. Here the litigation should end.

Affirmed.

TUTTLE, Circuit Judge

(concurring in part and dissenting in part):

While I concur fully with the opinion with respect to the claim on the merits, I respectfully dissent with respect to the disposition of the issue of attorneys’ fees. Since the trial court did not enter any order with respect to the claim for attorneys’ fees, I would remand that issue to the trial court to enable it to determine first the extent to which any award might be a charge against state revenues as distinguished from being merely a charge against the individual named defendants.

ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

BY THE COURT:

A member of the Court in active service having requested a poll limited to the question of the allowance of attorney’s fees requested in this case, and a majority of the Judges in active service having voted in favor of granting a rehearing en banc solely on this issue, IT IS ORDERED that this issue of the request for attorney’s fees shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed.

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc on the remaining issues [Rule 35 F.R.A.P.; Local Fifth Circuit Rule 12], the petition for rehearing and suggestion of rehearing en banc in all other respects is denied.

      . Each of said persons is also defendant herein as an individual, for acts outside the authority delegated to that defendant, respectively, by the State of Texas and by the United States of America.

      . Section 102 of the National Environmental Policy Act, 42 U.S.C. § 4332, provides in pertinent part:
      * * * [A]ll agencies of the Federal
      Government shall- — •
      * * * * *
      (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,

        (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

      . 49 U.S.C. § 1653(f) reads as follows :

      . The Olmos Reservoir is not included in the Channel Improvement. See H.R.Doc.No. 344, 83d Cong., 2d Sess. 46, 49 (1954). The Expressway therefore passes through the San Antonio Channel Improvement Project only at the crossing of the San Antonio River and Josephine Street, and there is no project right of way in this area.

      . Section 4(f) requirement is no longer in the case since section 154 eliminated all federal funds on the Expressway and approval of the Secretary of Transportation is thus no longer required. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 407, 411, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

      . See the Majority Report, Senate Public Works Committee, in pertinent part as follows :
      TERMINATION OF FEDERAL-AID RELATIONSHIP, SAN ANTONIO FREEWAY
      The San Antonio North Expressway would be terminated as a Federal-aid project and Federal funds programed for the State of Texas for that project would be returned to the United States Department of Transportation for reapportionment among the States. While congressional termination of Federal involvement in such projects is not unprecedented, the Committee recognizes that this is an unusual action and believes it is warranted only because of unusual circumstances.
      The project involves a non-interstate urban expressway located wholly within the limits of the City of San Antonio which was planned and requested by that city in 1959. The State obtained initial route approval from the Federal Highway Administrator, purchased all rights-of-way, and completed all relocation with approximately $7 million in State and local funds prior to changes in Federal law which later involved it in legal controversy.
      The Secretary approved the letting of construction contracts prior to recent Federal court decisions defining the standard by which the administrative approval was to be reviewed. Thus the project has been affected twice by subsequent changes in Federal law and procedures preventing its completion as a Federal-aid project.
      As a result, $4 million in construction has been deteriorating and contractors have claimed an additional $4.5 million in damages against the State of Texas. Since the State and municipality have indicated the desire to complete the project with wholly local financing, the Committee believes that it would be proper to allow them to do so.
      The Committee’s recommendation is not intended to be an adverse comment on the Fifth Circuit Court of Appeals decision of August 5, 1971, setting forth the administrative procedures required of the Secretary of Transportation in approving Federal-aid projects, nor would it prevent -future litigation in State court. Its only effect would be to ratify the action of the Secretary of Transportation in accepting the Federal funds already returned by the State and to terminate the Federal-State relationship on the project.
      The Committee heard extensive evidence about the project, studied the proposed route and is satisfied that it would not involve significant damage to recreational areas.
      S.Rep.No.93-61, 93d Cong., 1st Sess. 23, 54-56 (1973).

        (See also Senator Buckley’s individual views in opposition to passage of the bill added to the Senate Report in which he urges rejection because it would have an effect on NEPA and section 4(f).)
      The reports of both the Senate and House Committees on Public Works in 1972 when the bill was pending are to the same effect. They contain the following significant language :
      Prior to granting such approval the Committee studied the proposed route and is satisfied that it does not involve significant damage to recreational areas. S.Rep.No.92-1081, 92d Cong., 2d Sess. 42, 43 (1972) ; II.R.Rep.No.92-1443, 92d Cong., 2d Sess. 33 (1972).

        See also Hearings on S. 502 Before Sub-comm. on Transportation of the Senate Public Works Comm., 93d Cong., 1st Sess. 372-481 (1973) ; Hearings on 1973 Highway Legislation (Future Highway Needs) Before Subcomm. on Transportation of the House Public Works Comm., 93rd Cong., 1st Sess. (1973) ; S.Rep.No.93-61, 93d Cong., 1st Sess. (1973) ; 119 Cong.Rec.S. 4934-S. 4943 (daily ed. March 15, 1973) ; 119 Cong.Rec. H. 7418 (Aug. 3, 1973).
      The Senate debate in 1972 and 1973 also revealed quite clearly that the purpose of the proposed legislation was to exempt the Expressway from environmental control. See Senator Nelson’s incorporation in the Congressional Record of memorandum of opponents’ attorney, Mr. Vardaman; 118 Cong. Rec.S. 14843 (daily ed. September 13, 1972) ; also Senator Buckley’s attempt to delete the provisions relative to the San Antonio Expressway from the Federal-Aid Highway Bill; 118 Cong.Rec.S. 14839-S. 14846 (daily ed. September 13, 1972); 119 Cong.Rec.S. 4724, S. 4726 (daily ed. March 14, 1973); 119 Cong.Rec.S. 4934-S. 4943 (daily ed. March 15, 1973). See also Hearings on 1973 Highway Legislation (Future Highway Needs) (93-5) Before the Subcommittee on Transportation of the Committee on Public Works of the House of Representatives, 93d Cong., 1st Sess. (March 19-23, 1973).

      . Cf. Ely v. Velde, 4 Cir., 1974, 497 F.2d 252.

      . Corps regulations (33 C.F.R. § 208.10 et seq.) require approval only if construction is proposed within the limits of the project right of way. Thus they are inapplicable here.

      . In the deposition of George Demeritt, Corps of Engineers, the following testimony is of interest on the question of Corps’ approval of the project:
      BY MR. ROSENBERG:
      Q. Presuming that you were to receive the final plans for the Josephine area, what would be the basis for your review in point, if you received these plans today?
      BY MR. DEMERITT:
      A. We would review them based on the latest study plan that we would have for the Corps project, which, at present, is the preliminary plans and determine whether our floodway could — they could be incorporated into our floodway plan.
      We would make any suggestions we might have that might assist us in our plan, but we would not be able to approve them, because we have no project there at the moment.

      . 28 U.S.C. § 2412 reads as follows: § 2412. Costs
      Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action. A judgment for costs when taxed against the Government shall, in an amount established by statute or court rule or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation. Payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States.
      As amended July 18, 1966, Pub.L. 89-507, § 1, 80 Stat. 308.

      . It is clear that no such claim can be properly made as to this appeal because our holding is predicated upon the carrying out of congressional policy as enunciated by the Federal-Aid Highway Act of 1973, section 154.

      . Nor would there be any difference in principle because some of the defendants are state officers rather than the state itself since the state’s Eleventh Amendment immunity would still prevail. See Edelman, 415 U.S. at 677, 94 S.Ct. at 1362. See also Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Lloyd DAVIS, a/k/a Dr. Dudley Dee Goulden, III, Defendant-Appellant.
    No. 73-2534.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Rehearing and Rehearing En Banc Denied Oct. IS, 1974.

      Robert M. Alton, Jr., Montgomery, Ala. (Court-appointed), Wendell R. Morgan, Montgomery, Ala., for defendant-appellant.
    Ira DeMent, U. S. Atty., David B. Byrene, Jr., D. Broward Segrest, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before GODBOLD SIMPSON and INGRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

Charles Lloyd Davis appeals from his conviction on each count of a four count indictment charging conspiracy, mail fraud, and the interstate transportation of a stolen motor véhicle. Davis was indicted with Ronald Wayne Harris, also known as Kenneth Ray Gibbons, who pled guilty to the indictment and was sentenced to five years confinement prior to Davis’ trial and is therefore not involved in this appeal. Appellant asserts as grounds for reversal (1) prejudicial conduct by the trial court with respect to his defense of insanity at the time the offenses occurred and (2) the trial court’s refusal to suppress evidence acquired in violation of his Fourth Amendment right to be free from unlawful searches and seizures. We find that error occurred with respect to his defense of insanity and reverse and remand for new trial. We uphold the search and seizure as lawful.

The facts leading to Davis’ arrest are uncomplicated and may be briefly summarized. The activities related spanned the period from October 10 to October 25, 1971. Appellant and Harris secured false identification and false credit cards, the alias Dr. Dudley Dee Goulden III being used by Davis. The pair rented a Plymouth Fury in Jackson, Mississippi, and headed for Texas. In Texas they acquired an additional automobile, a 1972 Pontiac and two, female traveling companions. The foursome proceeded from Texas to other southern states, including Louisiana and Alabama, where Davis and Harris periodically cashed business checks using their respective aliases. This hegira ended with their apprehension in Montgomery, Alabama, as they were leaving the Plymouth Fury in the parking lot of the Midtown Holiday Inn. A briefcase on the front seat of the car was seized, and incriminating evidence found therein was used to support a request for a search warrant for their hotel rooms. The warrant issued, and the ensuing search of the rooms uncovered additional evidence which was used against Davis at his trial.

On September 22, 1972, the lower court conducted a competency, hearing under Title 18, U.S.C. Sec. 4244, found probable cause to believe that Davis might be insane, and committed him to the Medical Center for Federal Prisoners at Springfield, Missouri, for examination and study. The medical authorities at Springfield determined that Davis was competent to stand trial and the court was so advised by the United States Attorney on November 24, 1972. After a mental competency hearing on November 27, 1972, where the testimony of Dr. Robert J. Eardley and that of Davis was received, the district court determined that Davis was not competent to stand trial, despite the recommendation from Springfield. Dr. Eardley testified that the hospital had been unable to validate any of the personal and family history of appellant. Inconsistencies in the history were noted, and Dr. Eardley raised the possibility that Davis was a malingerer. Davis sat through the hearing with toilet paper stuffed in his ears, saying this was to keep out voices he heard. The court recommitted Davis to the attorney general pursuant to Title 18, U.S.C. Sec. 4246 on November 28, 1972, recommending further effort to establish the personal background of Davis and requesting a written report within six months. This report was received and a further competency hearing was held below on June 6, 1973, Davis being returned from Springfield for such hearing. This time the court found Davis competent based upon staff reports and Dr. Eardley’s testimony. Trial of Davis on the four count indictment took place June 13-15, 1973. Prior to trial, extensive discovery was granted to appellant, including the results of all laboratory analyses and resumés of all expert or other reports, and production of all statements made by Davis. The United States was required to subpoena at government expense experts for the defense as to the sanity vel non of the defendant. Defense motions for judgment of acquittal were denied later at the close of the government’s case and again at the close of all the testimony. The defense was based on pleas of not guilty and not guilty by reason of insanity. The jury returned a verdict of guilty as to each count of the indictment.

During cross-examination of Dr. Eardley, who testified for the government, appellant’s counsel attempted to introduce as evidence the court’s order of November 28, 1972, finding Davis incompetent to stand trial at that time. Counsel obviously considered this order probative of Davis’ mental condition at the time of the hearing and more importantly his mental condition at the time of the indictment offense a year earlier.

From the record it appears that government counsel was about to object when the court announced that the evidence was going to be admitted before the objection could be interposed. On redirect examination of Dr. Eardley the government offered as evidence the court’s June 6, 1973 finding Davis then competent to stand trial, presumably to offset the earlier finding already before the jury. The June 6 order was admitted without objection from the defense. When Dr. Eardley’s examination, direct and cross, was concluded, the following exchange occurred between the witness and the trial judge:

“THE COURT: All right; and then did you file a further report with the Court that triggered the June 6 hearing ?
WITNESS: Yes, sir.
THE COURT: And a copy of that order is in here—
WITNESS: Yes, sir.
THE COURT: —where the Court found that he was not competent to stand trial?
WITNESS: That is correct.
THE COURT: All right. I don’t have any other questions. I thought the jury ought to have that.”

I

The action of the district court in calling its adjudication of Davis’ competency to the jury’s attention is, urged as error, as well as the propriety of the court’s jury instructions as to the presumption of an accused’s sanity in the face of a prior adjudication of incompetency. At a re-trial the ease will probably be in a different posture when it comes time to charge the jury. In view of this fact, we do not deal in this opinion with the questions raised as to the court’s charge.

The clear but unheeded mandate of Title 18, U.S.C., Sec. 4244, is in pertinent part:

“A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.” (Emphasis added)

With no objection raised at trial we must consider the admission of the June 6, 1972 finding of competency, within the limits imposed by the “plain error” command of Rule 52(b), F.R.Crim.P. A second question is raised by the government’s brief: even if we find “plain error”, was this waived by the injection of the mental competency question by the defense when it offered the November 28, 1972 order finding Davis incompetent? We determine that plain error occurred, that it was not waived by the prior action of the defense, and accordingly reverse for a new trial.

We discern plain error affecting substantial rights of the accused because of the specific prohibition of the introduction of evidence of a court finding of mental competency written by Congress into See. 4244, supra. A finding by the trial judge one week earlier that Davis was mentally competent would have such presumptive weight with a trial jury concerned with determining sanity vel non at the time of the offenses charged as to lead inescapably to the conclusion that Davis’ right to a fair trial on this paramount issue was prejudicially affected. The violation of a statutorily granted right is usually and in most instances considered substantial. See, for example, United States v. Crowell, 5 Cir. 1971, 442 F.2d 346, 348; Amsler v. United States, 9 Cir. 1967, 381 F.2d 37, 45; cf. Mims v. United States, 5 Cir. 1967, 375 F.2d 135, 147; Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 222 F.2d 398, 404.

The government urges that Lyles v. United States, 1957, 103 U.S. App.D.C. 22, 254 F.2d 725, is factually identical to the case at bar and held that evidence of a prior finding of competency by the court, if admitted without objection, is not plain error, and that we should follow that case. We give Lyles a different reading, assuming it should guide us. In a lengthy paragraph which discusses all the facts leading to a conclusion that the appellant waived the conceded error, it is once mentioned that “the ruling of the trial court was not prejudicial error”. Lyles v. United States, supra, 254 F.2d at 732. The logical interpretation is that the lack of prejudice resulted from waiver, not from lack of plain error. Indeed, Judge Bazelon’s dissent characterizes the majority opinion as finding a “waiver by the appellant from which it concludes that the error was not prejudicial.” Id., 254 F. 2d at 741. To the extent that the majority opinion in Lyles may be read as asserting both grounds, we disagree.

The government also suggests that the error was “invited” by defense counsel’s introduction of the November 28 finding of incompetency, foreclosing objection on appeal, citing among other cases United States v. White, 4 Cir. 1967, 377 F.2d 908, cert. denied, 389 U.S. 884, 88 S.Ct. 143, 19 L.Ed.2d 180. In White the defense counsel brought out the fact that the defendant had not testified at a prior trial, and counsel for the government took that opportunity to explore the subject. The holding was that “[w]hen a' defendant, acting through competent counsel, chooses to open up constitutionally forbidden subject matter, he may not effectively complain that his own trial strategy denied him his constitutional rights.” Id., 377 F.2d at 911. Conceding that if the opening of constitutionally forbidden subjects is susceptible of “invited error”, then a fortiori the same rule applies to statutorily guaranteed rights, we find the doctrine inapplicable here. Appellant’s counsel did not open up the subject of the June 6 finding of competency. Instead he opened up the related but entirely distinct subject of the earlier finding of incompetency. This was an invitation only in the sense that, once the earlier finding was admitted, government counsel felt obliged to mitigate its impact on the jury, and the trial court evidently felt the same compulsion: “I thought the jury ought to have that.” The error occurred not because the subject opened was subject to objection as irrelevant, but because the chosen vehicle for mitigation is statutorily forbidden.

The government alternatively argues that, following Lyles, the introduction of evidence of a court finding of incompetency to stand trial, together with acquiescence in the government’s introduction of a later finding by the court of competency to stand trial, effected a waiver of the statutory proscription. The D.C. court held five to four en banc, in Lyles, that the appellant had waived the exclusionary bar of Sec. 4244 under circumstances substantially identical to those of the appellant herein. We find the strong dissent of Judge Bazelon on this point more persuasive and decline to follow the majority holding in this respect.

The reasoning of the majority in Lyles is superficially attractive. Sec. 4244 is said to be for the benefit of the accused, statutory benefits are waivable, and under the unusual facts of the introduction of an order of incompetency together with acquiescence in the introduction of a later contrary finding, a waiver is effected. Judge Bazelon’s dissent exposed the fallacy in that reasoning. We agree with Judge BazeIon that failure to object is not to be equated with waiver, relying upon the time-honored definition of waiver as “an intentional relinquishment or abandonment of a known right or privilege” in Johnson v. Zerbst, 1938, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466.

Support for this conclusion is found in a later decision of the D. C. Court of Appeals, Horton v. United States, 1963, 115 U.S.App.D.C. 184, 317 F.2d 595. There the judge himself, in responding to a defense objection, injected the fact that the appellant had been found competent to stand trial into the record, despite his defense of insanity. Recognizing the violation of Sec. 4244, the judge later instructed the jury to disregard his comment on the appellant’s competency. The Court of Appeals held that a curative instruction was inadequate under the circumstances. Had counsel for appellant Davis objected and been overruled, the case before us would appear no differently. Failure to object cannot be held to waive error if the basic error is so grievous that it is incapable of being cured by later instruction.

II

Davis seeks reversal grounded upon the introduction of counterfeiting paraphernalia over objection at the trial, attacking the validity of the search of the Plymouth Fury and his Holiday Inn room.

The facts as to search and seizure are not in dispute. Montgomery police officers were waiting for Davis and his companion as they pulled into the parking lot of the motel. An employee of a bank where Davis and Harris had passed a bad check that morning was with the officers and pointed out the suspects, Davis and Harris. The two men were arrested as they emerged from the Plymouth Fury in which they had just arrived. They were removed to police headquarters and the automobile was soon thereafter impounded and driven to the police station. A briefcase in plain view on the front seat of the Plymouth was taken into the police station and its contents inventoried. At this point no search warrant had been obtained. At trial the briefcase and some of its incriminating contents were received in evidence over timely objection. The contents formed the major factual basis for an affidavit in support of a search warrant for appellant’s motel room. The incriminating fruits of that search were also introduced at trial.

Davis attacks both the warrantless seizure and later search of the briefcase as violative of the Fourth Amendment. The receipt of evidence taken from the motel room pursuant to the search warrant is challenged also.

Davis relies primarily on Preston v. United States, 1964, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777. In Preston police arrested the occupants of a ear for vagrancy, impounded the car and drove it to the police station. Subsequently officers thoroughly searched the car, and found evidence which was used to convict the occupants for a crime other than vagrancy. The Supreme Court held the search to be unlawful absent a warrant, concluding that searches remote in time or place from an arrest are not “incident to arrest” so as to justify the absence of a warrant. Additional authority is cited from other circuits relying on Preston.

Appellant’s argument fails because it does not take into account cases refining Preston’s broad mandate since 1964. Preston’s holding relates only to warrantless searches purportedly “incident to arrest.” It has been distinguished from situations in which probable cause for a search and seizure exists at the time of arrest. Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Chambers held that in circumstances where probable cause for a search exists when a car is initially stopped, (a feature not present in Preston), then a later warrantless station house search does not violate the Fourth Amendment. Thus if the appropriation and examination of. Davis’ briefcase is viewed as a “search and seizure”, Chambers would control and there would be no constitutional infirmity.

However, there is a stronger alternative ground for validating the actions of the police department in this case. Testimony at a hearing on Davis’ Motion to Suppress with respect to the contents of the briefcase revealed that this was not a search and seizure in the sense of police accumulating evidence for later use at trial. This was what has come to be recognized as a legitimate inventory procedure. Many police departments, Montgomery’s included, catalogue an arrestee’s personal property when he or she is taken into custody. That practice was specifically approved (in a case coincidentally involving the Montgomery police) by this court in United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795, cert. denied, 1971, 401 U. S. 980, 91 S.Ct. 1213, 28 L.Ed.2d 331. There a forgery suspect was arrested in the hallway of the motel in which he was staying. A suitcase from his room was taken to the station and its contents inventoried. The contents led to further evidence which was used to convict Lipscomb, and we held the inventory and use in evidence of these objects seized to be constitutionally sound. In fact, Davis’ argument is somewhat weaker than that of Lipscomb, because his briefcase was in plain view in the car which he had just left.

Subsequent cases in this circuit have approved the validity of an inventory procedure in situations indistinguishable from that of appellant. See, e. g., United States v. Grill, 5 Cir. 1973, 484 F.2d 990 (inventory of arrestee’s suitcase held valid, and citing Lipscomb); United States v. Gravitt, 5 Cir. 1973, 484 F.2d 375 (custodial seizure and inventory search of arrestee’s auto held valid). However viewed, the acquisition in this fashion of evidence incriminating to Davis did not offend any constitutional safeguards.

We find no infirmity in the searches either of the briefcase without warrant or of the motel room pursuant to the search warrant based in part upon the fruits of the briefcase search, and affirm the trial court’s rulings to this effect.

However, because of the plain error found in Part I permitting the findings of competency at the 4244 hearing to go before the jury, we reverse the conviction below and remand for new trial.

Reversed and remanded.

      . Specifically, Davis was found guilty of conspiracy to commit mail fraud in violation of Title 18, U.S.C., Sec. 1341, conspiracy to transport a stolen motor vehicle in interstate commerce in violation of Title 18, U. S.C., Sec. 2312, and substantive violations of the mail fraud statute, Sec. 1341 and the Dyer Act, Sec. 2312. He was sentenced to two concurrent five year terms, consecutively followed by two additional five year terms, for a total of ten years confinement.

      . See 254 F.2d, pp. 741-743. We note in passing that Judge Bazelon further stated in his dissent that the Sec. 4244 proscription could not be waived, even if the appellant had intended to do so. Holding as we do that no waiver occurred under the facts of this case, we do not reach the question of the non-waivability of See. 4244.