author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mansfield SAUNDERS, Defendant-Appellant.
    No. 72-2737.
    United States Court of Appeals, Fifth Circuit.
    April 2, 1973.

      J. V. Eskenazi, Federal Public Defender (court appointed) Miami, Fla., Richard M. Dunn, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Carol M. Anderson, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL and THORNBERRY, Circuit Judges and GROOMS, District Judge.
   THORNBERRY, Circuit Judge:

Appellant was convicted below after a non-jury trial of possessing approximately eight grams of marijuana in violation of 21 U.S.C.A. § 844(a). On appeal he contends that the warrantless search which produced the marijuana was constitutionally invalid because it was not incident to a valid arrest. We affirm.

On August 5, 1971, agents of the Bureau of Narcotics and Dangerous Drugs (BNDD) set out to arrest one Brinson pursuant to an arrest warrant. Guided by an informant’s tip, they located him at about noon near a sea-going boat, the RICKI, in Dania, Florida, in the company of Patricia Manchester and appellant Saunders. According to the informant, the three planned to depart that night on the RICKI for Jamaica. The agents kept Brinson, Manchester, and Saunders under surveillance for approximately ten hours, and during this period they decided that, in addition to executing the arrest warrant for Brinson, they would arrest Manchester and appellant Saunders as well for harboring or concealing a fugitive in violation of 18 U.S.C.A. § 1071. At about 10:30 p.m. they boarded the RICKI and made the arrests as planned. In the process of boarding the boat and securing the arrestees, they saw about four grams of apparent marijuana lying in plain view on the galley table and perceived the smell of marijuana smoke. The district court determining that, although the agents had originally intended to arrest Saunders for harboring or concealing only, they were aware of the marijuana on the galley table at the time, of the arrest. Immediately after the arrest, Saunders, Manchester, and Brinson were taken to the BNDD Regional Office, where search of appellant Saunders’. pockets produced the eight grams of marijuana which ultimately led to his conviction below. This search of Saunders’ person is the object of challenge.

The Government contends on this appeal, as it did below, that the warrant-less search was valid because it was incident to a valid arrest. Saunders concedes that the search was “incident” to the arrest, United States v. Gonzalez-Perez, 5th Cir. 1970, 426 F.2d 1283, 1287, but contends the arrest was not a valid one because it was not based on probable cause. The district court held that although there was no probable cause to arrest Saunders for harboring or concealing, there was probable cause to arrest him for possessing the marijuana on the galley table, so that the arrest and the incident search were valid. We agree that the marijuana in plain view on the galley table supplied probable cause for the arrest. We need not, and do not, reach the question of probable cause to arrest for harboring or concealing.

We note that appellant’s challenge to the validity of his arrest is quite limited in scope. He does not argue that BNDD agents were aboard the RICKI wrongfully or without justification when they saw the four grams of marijuana. Nor does he argue that the agents’ discovery of the marijuana on the boat was other than inadvertent or was in any way unlawful, cf. Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-73, 91 S.Ct. 2022, 2037-2042, 29 L.Ed.2d 564, or that the marijuana in the boat would not supply probable cause to arrest him for marijuana possession. Rather appellant presses upon us the view that since the agents in making the arrest relied on the harboring and concealing charge, an offense for which there was no probable cause, the arrest was ipso facto invalid, regardless of the agents’ awareness of the marijuana on the galley table and the marijuana smoke in the air and their belief that Saunders was committing the offense of unlawful marijuana possession.

This view is too narrow. To the extent the argument rests on the premise that the BNDD agents were unaware of the marijuana, its foundation is completely undermined by the district court’s finding to the contrary. To the extent it focuses on the agents’ subjective reliance on the harboring or concealing charge, it is foreclosed by prior decisions of this court. When an officer makes an arrest, which is properly supported by probable cause to arrest for a certain offense, neither his subjective reliance on an offense for which no probable cause exists nor his verbal announcement of the wrong offense vitiates the arrest. United States v. Bowers, 5th Cir. 1972, 458 F.2d 1045, United States v. Brookins, 5th Cir. 1971, 434 F.2d 41, cert. denied 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1972); see also Klingler v. United States, 8th Cir. 1969, 409 F.2d 299, cert. denied 396 U.S. 859, 90 S.Ct. 127, 24 L.Ed.2d 110. Since the BNDD agents had probable cause to arrest appellant for marijuana possession, the arrest and the incident search were valid, and the agents’ reliance on the harboring or concealing charge did not affect this result.

Accordingly, the judgment of the district court is

Affirmed.

      . The district court’s basis for this conclusion was:
      [Saunders] was not doing an awful lot of concealing if they were out on the dock and on the sundeck and to the grocery store and riding around in the car. That is not consistent witli the probable cause for harboring and concealing.

      . The district court summarized its findings and conclusions from the bench ns follows:
      I am going to deny your motion to suppress. I do want the record to show very clearly that 1 agree with your argument on the. harboring and concealment. I do not think probable cause existed when this defendant was arrested under a charge of harboring and concealing.
      I do believe, and my ruling is based on the fact that I think the agents had probable cause to arrest this defendant, Saunders, based upon the marijuana that was in clear, open view and the smoke that was filling the vessel or the cabin of the vessel where the people were, which at least one agent testified that to him it was obviously marijuana smoke, based on liis experience.
      Now, you put all that in the record, because if you are right, then obviously I am wrong in my ruling, and that is the basis of my ruling.
      I think the search thereafter was an appropriate and legal search in connection with a lawful arrest, but not for what lie was charged with insofar as the harboring and concealing.
      I will agree even further and state on the record that the evidence is very clear that the agents had predetermined that if he was there they wore going to arrest him and charge him with harboring and concealing. If that were all I had before me, I would grant your motion to suppress. However, I think factually it was a legal arrest and a legal search because of the marijuana that was there and was obviously being-used.

      . Appellant did not develop facts below relating to the boarding of the RICKI or the propriety of the agents’ execution of the arrest warrant, and he has not argued below or on appeal that the entry into the boat was wrongful. At oral argument counsel for appellant expressly declined to take this position. Accordingly, we do not consider the propriety of the agents’ presence in the boat under the principles announced in Miller v. United States, 1958, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed. 2d 1332, and Garza-Fuentes v. United States, 5th Cir. 1968, 400 F.2d 219.


source: Caselaw Access Project

author: GEWIN, Circuit Judge: GODBOLD, Circuit Judge

license: Public Domain

text:
    W. J. MILNER AND CO. OF FLORIDA, Plaintiff-Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 349, et al., Defendants-Appellees.
    No. 72-2120.
    United States Court of Appeals, Fifth Circuit.
    March 21, 1973.

      Albert E. Phillips, J. Alex Porter, Atlanta, Ga., Peter C. Jones, Miami, Fla., for plaintiff-appellant.
    Seymour Gopman, North Miami Beach, Fla., Kaplan, Dorsey, Sicking & Rodenberg, Joseph H. Kaplan, Miami, Fla., Thomas J. Pilacek, North Miami Beach, Fla., Robert A. Sugarman, Miami, Fla., for defendants-appellees.
    Before GEWIN, BELL and GODBOLD, Circuit Judges.
   GEWIN, Circuit Judge:

In the district court, W. J. Milner and Company brought separate actions against three labor unions pursuant to § 303(b) of the Labor Management Relations Act, 29 U.S.C. § 187(b), seeking recovery for damages incurred by reason of their allegedly unlawful secondary boycott activities. There appears to be no dispute about the fact that the conduct of the unions was unlawful. After hearing oral argument, the court, D.C., 341 F.Supp. 151, granted the union’s motion for summary judgment and dismissed Milner’s claims with prejudice on the ground that Milner did not have a federal cause of action under § 303(b). We reverse.

The pertinent facts in this case can be stated briefly. W. J. Milner and Company is engaged in the business of selling electrical supplies on a commission basis to distributors and wholesale outlets in the state of Florida. A substantial portion of Milner’s business is derived from a contractual arrangement under which it has the exclusive right in the peninsular Florida area to sell the building wire products manufactured by Southwire Company of Carrollton, Georgia. In its complaint, Milner alleged that during the three years prior to the instigation of this action, the defendant unions exerted unlawful secondary pressure against a number of South Florida electrical contractors seeking 'to persuade or induce them not to use South-wire’s building wire products on their job sites. As a result of these activities, damages were claimed by Milner for loss of commissions in the amount of $201,588.00.

Milner contends that the district court’s denial of a right of recovery on the basis of United Mine Workers v. Osborne Mining Co., 279 F.2d 716 (6th Cir. 1960) was improper. This argument rests on legislative history and post-Osborne decisions construing § 303(b) which are said to recognize a broader concept of standing than that adopted in Osborne. Milner urges that standing should be extended to those persons whose business or property is so closely related to the product, which is the subject of the boycott activity, that it is reasonably foreseeable that such business or property will be injured thereby. The unions, on the other hand, assert that the Osborne decision is still viable; that it was approved by this circuit in Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) and that it was properly held by the district court to be dispositive of the instant case. Rejecting Milner’s forseeability test as overbroad, they maintain that standing under § 303(b) has been consistently limited either to the actual objects of the secondary boycott or to persons whose interests are inseparably identified with those of the actual objects by virtue of a financial or controlling relationship.

In order to resolve this issue, we must fathom some meaning from the broad wording of § 303(b) which confers a right of action upon persons injured in their business or property by reason of a secondary boycott. While not commanded by a literal reading of the statute, our analysis in this case proceeds upon the general premise, suggested in the legislative history and adopted by a number of courts, that Congress intended to create some limitation on standing to sue under § 303(b). Therefore, what we must decide in the instant case is where this limitation begins. Although neutral and primary employers have been granted standing to sue under § 303(b), the right to sue of third parties who are neither neutrals nor primaries has never been clearly articulated.

The seminal case interpreting § 303 is United Brick & Clay Workers v. Deena Artware, 198 F.2d 637 (6th Cir. 1952), cert. denied, 344 U.S. 897, 73 S.Ct. 277, 97 L.Ed. 694. The relevance of that decision to the case at hand lies not in its recognition of a right of recovery under § 303 for primary as well as neutral employers, but rather in the court’s explanation of its holding. In flatly rejecting the union’s position that this section protected only innocent third party employers (neutrals), the court pointed out § 303’s broad language and suggested that if Congress had intended to limit recovery thereunder, it could easily have done so.

Almost a decade later, the Sixth Circuit was presented with the issue not before the court in Deena Artware: whether a person who was neither' a primary nor a neutral employer could recover under § 303. In United Mine Workers v. Osborne Mining Company, 279 F.2d 716 (6th Cir.), cert. denied, 364 U.S. 881, 81 S.Ct. 169, 5 L.Ed.2d 103 (1960), this question was answered in the negative. There one of the plaintiffs, Love & Amos Coal Company, was a coal sales agency under contract with the primary employer in the labor dispute to sell its coal on a commission basis. Love & Amos claimed damages against the union for the commissions it would otherwise have received had the illegal secondary boycott activity not caused a reduction in the primary employer’s coal productivity. Although Love & Amos contended that some of the union’s illegal activities were directed at it and not solely at the primary employer, the court found that recovery was not sought on this theory. It observed that Love & Amos’ cause of action instead was based upon the destruction of the primary employer’s business and that the damages claimed to have been suffered arose solely from the contractual relationships with the primary employer. In denying Love & Amos’ standing to sue, the court held that the damages alleged were incidental and too remote for recovery under federal law. United Mine Workers v. Osborne Mining Co., 279 F.2d 716, at 729.

After Osborne, several cases were decided recognizing a cause of action under § 303 in favor of third party plaintiffs who were neither the neutral nor primary objects of secondary boycott activity. In Gilchrist v. United Mine Workers, 290 F.2d 36 (6th Cir. 1961), the third party was a partnership which had been engaged in the mining and sale of coal for a number of years. It had a close relationship with the primary object of the secondary boycott, G. & R. Coal Company, a closed corporation whose principal officers, directors and shareholders were also members of the partnership. They were parties to a contract under which the partnership agreed to furnish certain coal mining land and mining equipment to the coal company. In return, the coal company agreed to stripmine the coal and load it for shipment and ultimate sale by the partnership. In determining that the partnership had standing to sue, under § 303, the court went to some lengths to distinguish Osborne. It found that the partnership had an integrated coal business in which the actual mining was delegated to an instrumentality (G. & R. Coal Company) controlled entirely by partnership members. This was thought to give the partnership the status of a principal and not an agent as was true of the third party in Osborne. The court further noted that the partnership’s physical property was damaged and that its coal business was disrupted and destroyed. The damages sustained thereby were deemed to be direct and not remote or incidental as in Osborne where the damage sought arose solely as a consequence of the destruction of the primary employer’s business.

It was evident at this point that § 303’s broad language was not going to be carried to its literal limits to confer a cause of action upon all persons suffering damage as a result of secondary boycott activity. Yet, it was still somewhat unclear from Gilchrist which considerations were essential to its limitation of Osborne and a recognition of standing to sue: the integrated character of the partnership’s business enterprise or the directness of the physical injury to its property. An answer to this question was hinted in Wells v. International Union of Operating Engineers, Local 181, 303 F.2d 73 (6th Cir. 1962) where the employees of a primary employer were permitted to recover damages under § 303. Although the court failed to give adequate explanation for this conclusion, it is implied from the opinion that these employees were considered to be the object of the secondary boycott just as much as the primary employer was because they were the very individuals sought to be organized by the union. Thus, even though these employees received damages based on their contractual relationship with the primary employer, this decision in light of Gilchrist’s direct injury test did not come into conflict with the Osborne rationale.

Pennsylvania Railroad Co. v. National Maritime Union, 206 F.Supp. 797 (E.D. Pa.1962) was another decision in the series of cases dealing with standing under § 303 to embrace the Gilchrist line of reasoning. The third party there, Pennsylvania Railroad, owned certain dockside ore unloading facilities which it leased to Tidewater Company, the neutral employer as far- as the secondary boycott activity was concerned. The railroad claimed damages against the union because the boycott resulted in the loss of certain payments in the nature of a commission it was entitled to receive under the agreement with Tidewater. The district court denied the union’s motion to dismiss. It held that Osborne was not controlling because the railroad owned the unloading facilities where the secondary activity took place. The union’s conduct, therefore, represented a direct interference with the railroad’s business and property. The court apparently did not consider it significant that the railroad and Tidewater Company were not part of an integrated business enterprise.

The only Fifth Circuit case which has dealt with the issue now before this court is Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) which recognized a cause of action under § 303 in favor of the organizer and manager of a corporation in his individual capacity. Comparing the case to Gilchrist because of its factual similarities, the court concluded that the plaintiff was in effect the alter ego of the corporation he formed and thus was entitled to recover damages suffered as a result of the secondary boycott activity. Once again the Osborne decision was limited to its own peculiar facts.

From the preceding discussion, it is clear that a third party can recover damages under § 303 if he can establish the existence of some combination of the following circumstances: (1) an integrated business enterprise which includes the third party and either the primary or the neutral employer; (2) direct injury to the third party’s property; and (3) a principal-agent relationship between the third party and the primary employer. Even though we are unable to say that the instant case fits precisely within any of these circumstances, it does not follow that Milner is precluded from recovering damages against the unions under § 303.

There are several reasons for our conclusion in this regard. First, in our opinion, the Gilchrist line of cases does not enumerate an exclusive set of circumstances under which a third party has a cause of action under § 303. Those circumstances were brought to light primarily to distinguish Osborne and to circumvent the vague remoteness of injury test which Osborne recognized as setting an outer limit on the right of third parties to recover. Second, even if Oáborne is conceded to be factually analogous to this case, we do not think that the Abbott decision has committed this circuit to the Osborne rationale. Indeed, from our reading of Abbott the most that can be said is that this circuit has approved the restrictions placed on Osborne by the Gilchrist case. Third, Milner’s right to recover under § 303 if it can prove the allegations of the complaint ultimately involves a policy determination. None of the decisions that we have discussed undertook a specific analysis of this issue in light of the purposes and policies of the Labor Management Relations Act. The deficiencies of Osborne and the Gilchrist line of cases in this connection makes them less persuasive than they might have been.

In determining whether Milner has a right to recover under § 303 the fundamental question in our estimation is whether such a result if followed in all similar situations would threaten or undermine legitimate union interests. While we would readily agree that so-called unlimited liability under § 303 might produce financial disaster for unions and inhibit the exercise of the right to strike, we do not think that recognizing a right to recover in favor of Milner if supported by adequate proof raises the specter of such dire possibilities. Though the unions’ boycott in this case was intended ultimately to bring pressure to bear only upon Southwire, Milner was directly in its line of fire. Milner, in effect, was the sales arm of Southwire in the peninsular Florida area. In that market, the financial fortunes of the two companies were closely intertwined. From the union’s point of view, in order to be effective against Southwire, Milner would have to be hindered or prevented from selling Southwire’s products to its South Florida customers.

In our opinion, these consequences were reasonably foreseeable by the unions. Indeed, from what we can discern from the record, the unions had a full appreciation of the economic real-ties of the Milner-Southwire relationship. Their strategy appears to have been predicated entirely on the assumption that a decline in Milner’s sales would eventually be felt by the primary object of the boycott, Southwire. The unions apparently accomplished what they set out to do. The damage suffered by Milner was the substantial equivalent of the result which would have been produced if Milner had been the primary object of the union’s secondary activity. In light of these circumstances, which must be assessed on a case by case basis, it is our conclusion that on the precise facts alleged in this case the district court erred in dismissing Milner’s claim for failure to state a federal cause of action.

We do not make the slightest intimation or suggestion as to how the ease should be decided on the merits; we only hold that under the allegations of the complaint a dismissal was inappropriate. The plaintiff should be given an opportunity to prove its allegations and to fully develop all pertinent facts alleged in the complaint. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957); Equity Capital Co. v. Sponder, 414 F.2d 317 (5th Cir. 1969). The determination of these issues is the normal function of the district court. Accordingly, we reverse the judgment below and remand the case for further proceedings not inconsistent with this opinion.

Reversed and remanded.

GODBOLD, Circuit Judge

(specially concurring):

I concur in the result. The courts have recognized that the phrase in § 303(b), “whoever shall be injured in his business or property, cannot refer to injury in a “cause in fact” sense, else, as was pointed out on the floor of Congress, the section might give a cause of action to millions of persons for the same union activity. Recognizing that some rational limiting standard was intended by Congress, the courts have sought to articulate such a standard. Osborne, Gilchrist and Pennsylvania R.R. have expressed a standard consisting of analysis of the existence of a nexus or relationship between the plaintiff and the primary object of the secondary boycott, in the form of contractual or business arrangements and of physical congruence of facilities. The nexus was present in Gilchrist and sufficiently alleged in Pennsylvania R.R., but not present in Osborne.

The relationship or nexus test is not entirely satisfactory as a rational limitation on “whoever.” And at least some voices in Congress view with a jaundiced eye the efforts of the courts to prescribe a workable limitation. The method of analysis of the Sixth Circuit cases and of Pennsylvania R.R. is not binding upon us, and I have no objection to attempting to spell out for this circuit a standard more satisfactory than the “relationship” standard. The difficulty is that I am unable to understand what standard is being proposed. The majority opinion mentions “line of fire,” foreseeability of consequences, and threatening or undermining legitimate union interests.

Because I am unable to perceive with assurance what is the test of § 303(b) liability proposed in the majority opinion I must, and do, concur only in the result.

      . The three unions are Locals 323, 349 and 728 of International Brotherhood of Electrical Workers.

      . 29 U.S.C. § 187(b) provides:
      Whoever shall be injured in his business or property by reason or (sic) any violation of subsection (a) of this section may sue therefor in any district court of the United States subject to the limitations and provisions of section 185 of this title without respect to the amount in controversy, or in any other court having jurisdiction of the parties, and shall recover the damages by him sustained and the cost for the suit.

      . During the three years prior to this suit, the proportion of Milner’s sales attributable to Southwire products was 74%, 79% and 81% respectively.

      . Although the defendants moved for summary judgment on the basis that the plaintiff was not entitled to recover any damage, the court found it unnecessary to rule on such motion and concluded :
      [T]hc Court finds that this plaintiff does not have a federal cause of action under the statutory sections which he has plead and further consideration of the defendants’ Motion for Summary Judgment is not necessary.
      Thereupon the court entered a final judgment dismissing the plaintiff’s actions with prejudice.
      1. 93 Cong.Rec. 4872-3 (1947) (remarks of Senator Morse).
      2. U. M. W. v. Osborne Mining Co., 279 F.2d 716 (6th Cir. 1960).
      3. Gilchrist v. U. M. W., 290 F.2d 36 (6th Cir. 1961).
      4. Pennsylvania R. R. Co. v. National Maritime Union, 206 F.Supp. 741 (E.D.Va. 1961).

      . At times the cases have discussed whether plaintiff’s damages were too remote or incidental. E. g., Osborne, 279 F.2d at 729. This is a statement of an ultimate conclusion, the reason for which is that the precise relationship or nexus between the relevant parties, which the Osborne court had explored earlier in its opinion, id. at 727-728, is too far attenuated.

      . See 1959 U.S.Code Cong. & Adm.News pp. 2382-2383.

      . Abbott v. Local Union No. 142, 429 F.2d 786 (5th Cir. 1970) decided by this circuit, is a unique case of little assistance in o nr ¡iroblem. The nexus or relationship between the prime contractor (Abbott, Inc.) and the subcontractor (Moore), operating at the same construction site, was such that the union did not contest on appeal the corporation’s cause of action for damages but only the calculation of damages. It did, however, contest the rig-lit of tiie president, manager and alter ego of the corporation to damages suffered by him individually. The discussion of Osborne and Gilchrist did not concern the relationship between the neutral (Abbott, Inc.) and the primary employer (Moore) but the question of whether Abbott individually had such a close relationship to the corporation — in effect, he was the corporation, or stood in its shoes — that lie was within the ambit of the relationship between Abbott, Inc. and the subcontractor.

      . Foreseeability may define far too wide a scope of exposure to liability. Presumably a union would never engage in an illegal secondary boycott for no reason at all but only with the expectation that impact will occur. Thus it would be unusual for damage to occur in a cause in fact sense and yet not be reasonably foreseeable. Additionally, a foreseeability standard seems to me much broader than the “direct line of fire.” While I am not certain of what is meant by the latter, I am inclined to think it is a much narrower gauge than the former.

      . A union might be subjected to a claim for $1,000 damages for illegal secondary activity, which it might survive, but could it be subjected to a claim by another person similarly situated for $1,000,000 damages, which might destroy the union or render it impotent to pursue its legitimate objectives? Or do dollars have any relevance?


author: PER CURIAM.

text:
    In re Noble James BARRET et al. Appeal of Louis Herbert HOLLINGSWORTH and Claude Lee Simpkins.
    No. 72-1111.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 26, 1973.
    Decided April 3, 1973.

      Gerald G. Fuchs, Evansville, Ind., for appellants.
    Stanley B. Miller, U. S. Atty., Richard L. Darst, Asst. U. S. Atty., Indianapolis, Ind., for appellee.
    Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.
   PER CURIAM.

Appellants Louis Herbert Hollingsworth and Claude Lee Simpkins appeal from the denial of their petitions for the return of $5133 which FBI agents allegedly seized from each of them during a raid on a gambling house in Evansville, Indiana, where they worked.

FBI agents raided the establishment on August 9, 1969 and seized gambling devices and the money they found on the gambling tables, at a cashier’s window, and in the house safe. After appellants invoked the fifth amendment at grand jury hearings, the government gave them the following grant of immunity pursuant to 18 U.S.C. § 2514:

None of the respondents shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he is compelled, after having claimed his privilege against self-incrimination, to testify or produce evidence, nor shall testimony so compelled be used as evidence in any criminal proceeding against him in any court, Federal or State; ....

Testifying under this immunity, appellants told about the operations of the gambling house at a trial which led to the convictions of Charles Lee, Jr. and Ray Metcalf, who allegedly operated the house.

On March 9, 1970, appellants petitioned for the return of their share of the money which the FBI agents seized during the raid. After an evidentiary hearing, the district court found that appellants had not proven their ownership of the money they claimed, and that any attempt to prove ownership would result in reliance upon an illegal gambling contract which the court could not enforce. Accordingly, the court denied the petitions. On this appeal Hollingsworth and Simpkins argue that any withholding of their money amounts to a forfeiture which the language of the grant of immunity to them clearly forbids. They deny that an illegal gambling agreement is involved, and contend that they are merely trying to get their money back from the government.

Unless the appellants can prove that they had a legal title or right to the money they claim on this appeal, no question arises whether the government has caused a de facto forfeiture of it.

The record does not contain sufficient evidence that the money claimed by the appellants was actually “theirs.” The record clearly indicates that appellants did not have possession of the money at the time the FBI agents raided the gambling establishment. Nor had steps been take to identify the money as belonging to the appellants. Appellant Hollingsworth testified that, at the time of the raid, his and Simpkins’ share of the money was or should have been in the possession of the house, and that most of their money was usually kept in the house safe with other money. Although Hollingsworth claimed that he and Simpkins turned in their money with instructions that their shares be kept separate and identifiable, the evidence indicates that no such segregation was effected. Hollingsworth also admitted that he and Simpkins did not have access to the safe.

In the absence of any presumtive evidence of ownership or title to the two shares of $5133 which the appellants claim, a court must rely upon other evidence upon which the appellants seek to prove their right to the money. The appellants argue that their right to the money which was in the possession of the house arises from an oral contract among themselves and Ray Metcalf whereby each would realize a third of the proceeds of the blackjack game. Hollingsworth testified that the bankroll of the game had grown to about $15,-400, and that accordingly his and Simpkins’ shares amounted to $5133 each. But the public policy of Indiana against gambling prevents this court from accepting such an argument as a basis for dividing the commingled money. Indiana has declared that the title to money or property won at the gambling table never vests in the winner. Ervin v. State, ex rel. Walley, 150 Ind. 332, 336, 48 N.E. 249, 250 (1897). Therefore, regardless of their contract, appellants never gained title to any of the blackjack winnings and they cannot rely on any title to the money in this action. Indiana public policy also forbids any recognition of a contract for the division of gambling proceeds. Auman v. Fabiano, 132 F.Supp. 353 (N.D.Ind.1955), see also, Dorrell v. Clark, 90 Mont. 585, 4 P.2d 712 (1931). The fact that the federal government holds the money that is owed to the victorious party under the contract does not alter the policy against using the courts to further an illegal enterprise.

We conclude that appellants never actually gained title to the money won at the blackjack table which was commingled with other money belonging to the house, and that even if they had some title, a court will not enforce an illegal contract as a means of separating out the one-third shares claimed by the appellants. Plaintiffs have not suffered any de facto forfeiture of their money because they never had title to it originally. As the district court correctly observed: “Immunity does not vest in the witness rights which he did not possess prior to the grant of immunity.”

The judgment of the district court is affirmed.

Affirmed.

      . “The presumption of the law is, that the party in possession of personal property is the owner of the same; and so, also, as men usually own the personal property they possess, proof of possession is presumptive proof of ownership.” Wiseman v. Lynn, 39 Ind. 250, 259 (1872).

      . Appellants attempted at oral argument to establish that the $15,400 or so purportedly found in an envelope in the safe seized during the raid was blackjack money, of which one-third belonged to each appellant. Unfortunately, Hollingsworth’s testimony at the evidentiary hearing does not sustain such an argument, for his recollections about the existence of an envelope and the exact monetary amount of its contents were vague, and inconsistent. Even if the envelope contained the exact amount of the blackjack winnings, reference to some agreement for the division of the money would be necessary, for the envelope bore no instructions concerning whoso money was enclosed.

      . See Ind.Code § 35-25-2-2 (1971) which allows a loser of a gambling transaction to sue to recover his money, and Ind.Code § 35-25-2-4 (1971) which allows a prose-outing attorney to recover the money for the family of the loser or for the public schools if the loser does not seek recovery.

      . We are also cognizant of Indiana decisions allowing a person who lias turned over money to a stakeholder to recover this money before it has been wagered or delivered to a winner. See, e. g., Frybarger v. Simpson, 11 Ind. 59, 61 (1858). Appellants did not attempt to collect at least their original contribution to the blackjack game on this theory, and did not submit evidence sufficient to support recovery under the thesis that the house was a stakeholder. See Kearney v. Webb, 278 Ill. 17, 115 N.E. 844 (1917).

      . As appellants admitted at oral argument, the negotiations leading to the grant of immunity did not determine the disposition of the appellants’ share of the blackjack money. Counsel representing appellants would have done well to attempt to avoid the implications of earlier decisions which iiad held that forfeiture occurs at the time the property is used illegally, especially since the grant of immunity protected against only future forfeitures. United States v. Stowell, 133 U.S. 1, 16-17, 10 S.Ct. 244, 33 L.Ed. 555 (1889).

      . This decision merely leaves the parties involved in the situation in which they have placed themselves. Auman v. Fabiano, supra, 132 F.Supp. at 353. It will still be incumbent upon the government to bring forfeiture proceedings against the money seized at the gambling establishment within the statute of limitations and to return this money if the forfeiture action fails pursuant to the holding of United States v. United States Coin and Currency, 401 U.S. 715, 722 n. 10, 91 S.Ct. 1041, 28 L.Ed .2d 434 (1971), and if Indiana authorities attempt no action to obtain the money under the law of their state.


author: GEWIN, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Plaintiff-Appellant, v. NATIONAL HOTEL COMPANY and Menger Hotel, jointly and severally, Defendants-Appellees.
    No. 71-3634.
    United States Court of Appeals, Fifth Circuit.
    March 22, 1973.
    Richard F. Schubert, Sol. of Labor, Bessie Margolin, U. S. Dept, of Labor, Washington, D. C., M. J. Parmenter, Regional Sol., Truett E. Bean, Atty., U. S. Dept, of Labor, Dallas, Tex., Carin Ann Clauss, Jacob I. Karro, Atty., U. S. Dept, of Labor, Washington, D. C., for plaintiff-appellant.
    Louis J. Dibrell, Galveston, Tex., for def endants-appellees.
    Charles W. Merritt, Wendell Davis, Jr., New York City, Albert L. McDermott, Washington, D. C., amicus curiae for American Hotel and Motel Assn.
    Before GEWIN, BELL and GODBOLD, Circuit Judges.
   GEWIN, Circuit Judge:

The Secretary of Labor brought this suit under the minimum wage provisions of the Fair Labor Standards Act (FLSA) to restrain the National Hotel Company in its capacity as owner and operator of the Menger Hotel (hereinafter Menger Hotel) from continuing to withhold compensation allegedly due its tipped employees. In the face of an administrative determination to the contrary the district court decided that at all times the defendant had paid its tipped employees enough to satisfy the minimum wage requirements of the FLSA and accordingly dismissed the Secretary’s suit. We reverse, not because we necessarily agree with the administrative conclusion ultimately rejected by the district court, but because in arriving at its decision the district court did not employ the correct standard for reviewing the administrative determination before it.

§ 3(m) of the FLSA authorizes employers to take a partial credit against the minimum wage they are required to pay for amounts presumably received in tips by their tipped employees. The amount of the credit depends on the amount of tips actually received by the employees, but in no event can it exceed 50 percent of the applicable minimum wage. The statute leaves the initial determination as to the amount of tips being received to the employer but permits an employee who feels he is being shortchanged to seek a redetermination by the Secretary of Labor. Once the employee establishes to the satisfaction of the Secretary that the amount he is actually earning in tips is less than the amount the employer is taking credit for, then the employer is liable to the employee for the difference, and only this lesser amount may be added to the cash wages being paid the employee to determine whether the employer is meeting the minimum wage requirements of the FLSA.

Relying upon § 3(m), the Menger Hotel paid its tipped employees only 50 percent of the applicable minimum wage during the period in question; apparently it was confident that the remaining 50 percent of the wages to which these employees were legally entitled would be received in tips. After an investigation of the hotel’s payroll records convinced his representative that the tip wage credits being taken by the hotel were unjustified, the Secretary brought this suit to force compliance. Before the case came to trial, the district court in accordance with the provisions of § 3(m) and the regulations adopted thereunder remanded the case to the Secretary for an administrative hearing and determination on the question of how much the hotel’s tipped employees were actually pocketing in tips.

Pursuant to the remand order, a hearing examiner appointed by the Administrator of the Wage and Hour Division of the Department of Labor conducted a full adversary hearing to determine the amount of tips received by the hotel’s employees which could be credited against the minimum wages due them under the FLSA. At the hearing both parties were permitted to present whatever evidence and argument they could muster, and the American Hotel and Motel Association was allowed to appear as an interested party and file a brief in support of the defendant.

In support of its position the Secretary offered the testimony of a large number of the hotel’s tipped employees. With one exception each of these witnesses testified that at regular intervals he had made a daily record, on forms supplied by the hotel, of the amount received in tips that day and that at the end of each month in which a record was kept the total amount earned in tips that month was reported to the hotel. Each witness swore that these records and reports accurately reflected the amount of tips received. The payroll records of the hotel showed no tip receipts other than the amounts reported by its employees, and these amounts were insufficient, when added to the cash wages paid by the hotel, to equal the minimum wage required by the FLSA.

The hotel willingly admitted that it paid its tipped employees no more than 50 percent of the applicable minimum wage in spite of the fact that their monthly reports plainly indicated that they were not receiving enough in tips to justify the tip wage credit being taken. In defense the hotel took the position that self-interest, engendered by the manifold advantages to be derived from understating tip income, rendered tipped employees incapable of reporting their tips honestly and that in recognition of this fact the hotel properly disregarded the purportedly unreliable reports turned in by its employees in deciding how much to pay them. To illustrate the alleged incredibility of these reports the hotel introduced exhibits showing what percentage of his gross sales the tips reported by each employee equalled and, by comparison, what percentage of sales the tip credits taken by the hotel equalled. It cited tax cases and a Department of Labor survey to support its theory that while the employees’ tip reports were inordinately low as a percentage of sales, the tips it had credited them with earning represented a reasonable percentage of sales and were comparable to what employees in similarly situated hotels were receiving. In addition it produced written statements, signed by the employees at the hotel’s request and disavowed by them at the hearing, in which they admitted that they had not understood the necessity of reporting tip income accurately and that they had in fact earned as much in tips as the hotels had taken in tip credits. In this fashion the hotel urged the hearing examiner to find as fact that the presumption that its tipped employees were earning at least 50 percent of the requisite minimum wage in tips was justified and to ignore their reports to the contrary.

Upon this record the hearing examiner found that the amount of tips reported monthly by each of the hotel’s employees was in fact the amount he received and that the hotel could take credit for no more than this amount in computing the cash wages it was required to pay its tipped employees under § 3(m). The hearing examiner’s findings were adopted by the Administrator of the Wage and Hour Division of the Labor Department and certified by him to the district court. On cross-motions for summary judgment the district court reviewed the entire record as developed before the hearing examiner, drawing its own conclusions as to what evidence was entitled to great weight and what testimony was credible. In effect the standard of review applied, though not articulated, by the district court was that if the preponderance of the evidence supports a conclusion contrary to that reached by the administrative body in question, then the administrative determination must be ignored. Guided by this standard of review, the trial court decided that at all times the defendant’s employees did receive tips in amounts sufficient, when added to the cash wages paid them by the defendant, to satisfy the minimum wage requirements of the FLSA. On this basis the Secretary’s suit was dismissed.

Although the standards by which the judiciary reviews administrative fact determinations vary, ranging all the way from absolute unreviewability to complete substitution of judicial judgment, the one courts most often articulate and apply is the substantial evidence rule. Congress expressly adopted the substantial evidence rule as the standard best delimiting the boundaries of judicial review of administrative action when it enacted § 10(e) of the Administrative Procedure Act which authorizes reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be (E) unsupported by substantial evidence . . . .” This standard of judicial review was not manufactured out of thin air, and its widespread acceptance is not accidental. It was conceived by reviewing courts in response to their need to free themselves from the time-consuming, frequently exasperating task of weighing the evidence, a task for which reviewing courts are particulary unsuited because in performing it they are confined to the cold record and have no opportunity to test the credibility of the witnesses by personal observation. Under this standard the reviewing court refrains from substituting its own judgment as to the correct resolution of factual questions for that of the administrative agency. Instead the agency’s factual determination is accepted unless there is no substantial evidence in the record as a whole to support it. Thus when properly applied, the substantial evidence rule enables the judiciary to give due respect to the expertise and experience of the administrative tribunal without abdicating its responsibility to rectify administrative indulgence in caprice, whim or fancy.

The meaning of the substantial evidence formula is admirably captured in the words of Chief Justice Húghes: “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Substantial evidence is enough evidence to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury. It is something less than the preponderance of the evidence, then, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence. In short, under the substantial evidence rule administrative findings are reviewed in the same manner as courts review jury verdicts.

In this case the district court chose to remand the critical question of how much in tips was actually being received to the Secretary of Labor for an administrative determination. But once the administrative findings were returned, the district court proceeded to ignore them and instead conducted its own de novo review of the entire record. In this respect it erred.

We hold that tip wage determinations of the kind made in this case by the Secretary of Labor should be reviewed under the substantial evidence formula. § 3(m) itself specifies that, once the question is rased, the initial determination as to whether tip credits being taken by an employer are deserved is to be made by the Secretary. We seriously doubt that in committing this task to the Secretary Congress intended for him to be restricted to the role of an examiner who merely hears the evidence and reaches a conclusion that remains tentative until it is either approved or rejected by a court. If such were the case, any esoteric knowledge of tipping customs the Secretary might have gained from his experience in overseeing the application of § 3(m) would be wasted.

Furthermore the credibility determination made by the examiner who actually sees and hears the witnesses would be needlessly downgraded, and in cases such as these where the dispute centers upon how much was being earned in tips, the credibility of the complaining employees will often decide the outcome. For these reasons we conclude that a § 3(m) determination by the Secretary of Labor should be accepted unless there is no substantial evidence in the record as a whole to support it.

While we do not decide the issue of whether there is substantial evidence in this record to support the conclusion reached by the Secretary, we are inclined to believe that a review of his findings under the substantial evidence standard will very likely result in a different conclusion from that reached under the standard of review initially employed by the district court. In any event, because the district court did not apply the correct standard of review, its judgment is vacated, and the case is remanded to it for further proceedings not inconsistent with this opinion.

Vacated and remanded.

      . 29 U.S.C. § 201 e.t seq. (1964 ed.).

      . 29.U.S.C. § 203(m) provides in pertinent part as follows : »
      “In determining the wage of a tipped employee, the amount paid such employee by his employer shall be deemed to be increased on” account of tips by an amount determined by the employer, but not by an amount in excess of 50 per centum of the applicable minimum wage rate, except that in the case of an employee who (either himself or acting through his representative) shows to the satisfaction of the Secretary that the actual amount of tips received by him was less than the amount determined by the employer as the amount by which the wage paid him was deemed to be increased under this sentence, the amount paid such employee by his employer shall be deemed to have been increased by such lesser amount.”

      . 29 C.F.R. § 531.7 (1972). Because this suit was initiated in the district court by the Secretary of Labor, the district court had a choice of either holding its own evidentiary hearing to determine what tips were being received or remanding the case to the Secretary for an administrative determination of the question. Either course of action is proper. In this case it was Judge Guinn who made the decision to remand while Judge Wood received the findings certified by the Secretary, reviewed them, and rendered the final judgment now before us on appeal.

      . These written statements wore initially prepared sometime after the hotel was investigated by the Labor Department officials. The affected employees were then summoned individually to meet with hotel officials and received the impression that they had to sign the statements in order to retain their jobs. At the hearing all employees testified that they had not understood the import of the statements and that the statements were inaccurate.

      . For those months in which some of the employees had failed to compile tip reports, the hearing examiner concluded that they had nevertheless received in tips an amount equal to that averaged in comparable months during which tip reports had been compiled.

      . As an alternative basis for its decision the district court held that in paying its tipped employees no more than 50 percent of the applicable minimum wage the defendant had properly relied upon an administrative regulation promulgated under § 3(m) by the Department of Labor and so had established a “good faith” defense to any suit brought under the FLSA. § 10 of the Portal-to-Portal Act of 1947, 29 U.S.C. § 259, immunizes employees from suits brought under the FLSA if the act complained of was done in good faith in reliance upon an administrative regulation adopted by the Administrator of the Wage and Hour Division of the Department of Labor. This ruling is plainly erroneous because the regulation in question, 29 C.F.R. § 531.59 (1972), clearly advises the employer that he can take credit only for the amount of tips actually received by the employee and that he is liable to the employee for the difference between the amount of tips he has taken credit for and the amount of tips actually received.

      . See 4 Davis, Administrative Law Treatise, § 29.01, p. 114 (1958).

      . 5 U.S.C. § 706(2) (E) (1964 ed.).

      . Universal Camera v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; Watson v. Gulf Stevedore Corporation, 400 F. 2d 649, 651 (5th Cir. 1968).

      . Id.

      . Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938).

      . NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939).

      . Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L. Ed.2d 131 (1966).

      . Watson v. Gulf Stevedore Corporation, 400 F.2d 649, 652 (5th Cir. 1968).


author: SIMPSON, Circuit Judge:

text:
    Marvin FARMER, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Georgia State Prison, Reidsville, Georgia, Respondent-Appellee.
    No. 72-2250.
    United States Court of Appeals, Fifth Circuit.
    March 23, 1973.

      Samuel M. Davis, Asst. Professor of Law, University of Georgia, Athens, Ga., Court-appointed for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

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

   SIMPSON, Circuit Judge:

Marvin Farmer appeals from the district court’s decision denying habeas corpus relief under Title 28 U.S.C. Section 2254. We affirm.

The petitioner-appellant is a Georgia State Prison system inmate. He was arrested on May 25, 1969 and indicted for rape, burglary and assault with intent to murder. On July 24, 1969 he entered a plea of guilty to each of the three offenses charged and thereupon was sentenced to three consecutive terms of imprisonment of three years each for a total custodial sentence of nine years. Farmer was represented by court-appointed counsel when he tendered his guilty pleas. Nevertheless, he later filed habeas corpus proceedings in the state court pursuant to Georgia’s post-conviction relief statute, Ga.Code Ann. Section 50-127 (1971 Supp.), alleging (1) that the assistance of such counsel was ineffective, (2) that his pleas of guilty were coerced and involuntary, and (3) that the consecutive sentences imposed were invalid because they were based on a single course of conduct instead of three separate acts.

An evidentiary hearing was held at which petitioner-appellant appeared without the assistance of counsel and was his only witness. He stated that he had no other evidence to offer. The only evidence the respondent introduced was copies of the accusations and judgments under which Farmer was convicted. The state habeas court denied relief. Specifically, the court found (1) that the record did not support the allegation of ineffective assistance of counsel because petitioner-appellant accepted counsel, made no protest of the appointment, had in fact been represented by a proper and competent attorney, and failed to carry the burden of proof by offering any evidence to substantiate his contention to the contrary; (2) that from petitioner-appellant’s own testimony the pleas of guilty were voluntary because calculated on a serious thought and consideration on the part of petitioner of the possible consequences of a death sentence or a sentence to life imprisonment following a guilty verdict as opposed to nine years imprisonment as a result of his guilty pleas; and (3) that the three consecutive sentences were validly imposed because they charged three separate criminal acts, even though they may have arisen at the same time from the same course of conduct. The Supreme Court of Georgia affirmed. Farmer v. Smith, 1971, 228 Ga. 310, 185 S.E.2d 384.

Farmer thereupon filed his habeas petition in the district court below. The district court denied relief without conducting a further evidentiary hearing, relying instead solely on the transcript of the state habeas evidentiary hearing and the findings and order thereon of the state judge, together with the rather sparse record of the original convictions from the trial court, consisting of the bench notes made on a form filled out by the trial judge relative to the guilty plea proceedings. The district judge concluded that appellant had neither alleged nor established by convincing evidence that the factual determinations by the state court were erroneous in any respect, although the habeas judge gave Farmer every opportunity to make such proof. Moreover, the district judge found independently on the state record that appellant had in fact with full knowledge of his legal rights and with the assistance of counsel, purposely pled guilty to avoid the vagaries of trial and possibility of more harsh consequences.

On appeal, petitioner-appellant urges first, that the district court erred by neglecting to hold a full evidentiary hearing on the issues raised in his petition for writ of habeas corpus because (1) the merits of the factual dispute surrounding the guilty pleas were not resolved at the state hearing and (2) the fact-finding procedure employed by the state court was inadequate to afford a full and fair hearing; and, second, his guilty pleas were neither voluntary nor entered with the knowledge or the understanding of their consequences. If there is merit to either of petitioner-appellant’s contentions as to the adequacy of the state habeas proceedings an evidentiary hearing was required of the federal habeas court, Townsend v. Sain, 1963, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770, 786; Title 28 U.S.C. Section 2254. If his guilty pleas were not voluntarily and understandingly entered we would be constrained to direct that the writ be granted with directions that he be permitted by Georgia courts to plead anew to the charges. Boykin v. Alabama, 1969, 395 U.S. 238, 243-244, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-280, Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 8 L.Ed. 1461.

The federal habeas court may rely on the record in the state court in lieu of an independent hearing if the state court proceedings were full and fair. Townsend v. Sain, supra; Dillard v. Smith, 5 Cir. 1970, 430 F.2d 1294; Chisholm v. Wainwright, 5 Cir. 1970, 427 F.2d 1138; Ryan v. Wainwright, 5 Cir. 1970, 424 F.2d 198; Walker v. Wainwright, 5 Cir. 1969, 409 F.2d 1311. Furthermore, the state court’s findings are presumed to be correct, Title 28 U. S.C. Section 2254(d), and if the state court did not make express findings of fact, the district court may determine whether the state court impliedly found material facts. And if the state court failed to articulate the constitutional standards applied, the district court may presume that the state court applied correct criteria in the absence of evidence that an incorrect standard was applied. Townsend v. Sain, supra; Dempsey v. Wainwright, 5 Cir. 1973, 471 F.2d 604.

The district court reviewed the transcript of the state habeas evidentiary hearing, including the uncontradicted assertion by appellant that his pleas of guilty were coerced by the three months he spent in jail awaiting trial without visitors or a conference with his attorney, and his testimony as to the threats and abusive treatment he was subjected to by his jailers as part of an effort to induce those pleas.

Determinations of the credibility of testimony rest with the trier of facts, who is not bound to accept testimony even where it is not contradicted. Hawk v. Olson, 1945, 326 U.S. 271, 279, 66 S.Ct. 116, 90 L.Ed. 61; Lujan v. United States, 5 Cir. 1970, 431 F.2d 871, 872. Here both the state habeas and the federal district court below rejected that portion of petitioner-appellant’s testimony, electing instead to credit and accept as the actual motivation for the guilty pleas his testimony that he wanted to avoid the possibility of a punishment of death or life imprisonment if convicted by pleading guilty and hoping for a “light” sentence: (Questions by the court)

Question: But that was the reason you decided to enter your plea of guilty to .
Answer: [Petitioner] To help myself.
Question: ... to get a lesser sentence than you might .
Answer: Yes, sir.
Question: . . . would have gotten if you had gone before the Jury?
Answer: Yes, sir.

Since this finding is nowhere contradicted by the record and is not otherwise shown to be clearly erroneous, we find no error in the district court’s conclusion that these pleas were made understanding^ and voluntarily to avoid the possibility of a death sentence. Dempsey, supra; Lujan, supra. This motivation would not vitiate the pleas of guilty. North Carolina v. Alford, 1970, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162; Brady v. United States, 1970, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747; Jenkins v. Beto, 5 Cir. 1971, 442 F.2d 655, 656.

Appellant argues, however, that his pleas were void because tendered without the effective assistance of counsel. It is only to the issues of voluntariness and understanding that inquiry may be made of the role of counsel in an attempt to impeach a plea of guilty, Colson v. Smith, 5 Cir. 1971, 438 F.2d 1075, 1078, and we perceive no error in the lower court’s conclusion that the petitioner failed to meet his burden of showing his counsel was, in fact, ineffective. O’Neal v. Smith, 5 Cir. 1970, 431 F.2d 646, 647-648. The record contained in the contemporaneously made notes of the sentencing judge, the gist of the colloquy between the defendant and his court-appointed counsel and the court, and indicates that defense counsel did have a “satisfactory consultation” with the defendant. James v. Smith, 5 Cir. 1972, 465 F.2d 379 [1972], Given the motivation behind the pleas and the complete absence of proof as to the ineffectiveness of counsel we find that the record before the court below was sufficiently complete to conclude that petitioner-appellant’s pleas were not only voluntarily but also knowingly and intelligently made.

Affirmed.

      . At the time of Farmer's guilty pleas the maximum penalty for rape was death, Ga. Code Ann. § 26-2001; for burglary it was 20 years imprisonment, Ga.Code Ann. § 26-1601; and for assault with intent to murder the maximum was 10 years imprisonment, Ga.Code Ann. § 26-1302.

      . Title 28 U.S.C. Section 2254(d) provides in pertinent part:
      (d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or-an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, * * *

      . The time elapsing between arrest and arraignment was actually only two months, May 25 to July 24, 1969. The record shows that the indictment was returned, counsel was appointed and the arraignment and guilty pleas all took place July 24. The record is not entirely clear as to whether sentencing occurred that day or the following day, July 25.

      . TYe set out here in full the form filleil out by the state trial judge, Judge Harold R. Banks. The form, consisting mainly of questions to the defendant and his counsel was mimeographed with blanks left to fill in the answers. Judge Banks recorded the answers by hand, as indicated in italics :
      THE STATE CASE No.: 7-10,173

      VS. Criminal Division

        Marvin Farmer CLAYTON SUPERIOR COURT
      The defendant Marvin Farmer was arraigned in open court this date and his (appointed) counsel Robert Montgomery was present when the following questions were asked and the indicated answers given :
      1. AVhat is your name? Marvin Farmer

      2. You are charged with the offense of Rape, Burglary, Assault ivith Intent to Murder. Has your attorney discussed this offense as stated in the indictment with you? Yea.

      3. Do you understand the nature of the charge against you? Yes.

        4. Can you read and write? Yea.

      5. How far did you proceed in school? 10th.

      6. Do you understand you have the right to plead either “Guilty” or “Not Guilty”? Yea.

      7. Do you understand that if you plead “Not Guilty” you will be entitled to a trial hy jury, but in the event you plead “Guilty”, this court will impose such sentence as it feels satisfactory under the law? Yes.

        Death, Life, 1-20 years -Rape, 1-20, Burglary, 2 — 10 Assault with inlenf to Murder.

        8. Do you understand that the penalty for conviction of this offense is from - to--years imprisonment in the penitentiary? Yes.

      9. Do you wish to enter a plea at. this time? Yes.

      10. How do you plead, Guilty or Not Guilty? Guilty.

      11. Has anyone promised you a lesser sentence or easier treatment or threatened you in any way into making a guilty plea? No.

      12. Mr. Montgomery as attorney for the defendant, have you had a satisfactory consultation with the defendant and explained to him his statutory and constitutional rights? Yes, I have.

      13. Mr. Montgomery, after consulting with the defendant and examining the indictment, do you know of any reason that should net to prevent the defendant from entering a plea of “guilty” or this court from accepting such plea? No. I do not.

      14. Let the defendant enter his plea and I will have a presentence investigation made before sentence is imposed.
      The above questions were asked and the answers indicated given this 25 day of July, 1969.

        Harold R. Banks

      Judge, Superior Court
      Clayton Judicial Circuit
      I was present in open court and heard the above questions asked and the answers given as stated above.

        II. Eugene Broten

      Solicitor-General
      Clayton Judicial Circuit
      Sworn to and subscribed before me this day. of July, 19G.9.

        William II. Ison

      Clerk, Clayton Superior Court
      Notary Public


author: TEMPLAR, District Judge.

text:
    Milton ROBBINS a/k/a Mickey Robbins, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 72-1630.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 12, 1973.
    Decided March 30, 1973.

      Lorenzo E. Tapia, Albuquerque, N. M., for defendant-appellant.
    Victor R. Ortega, U. S. Atty. (Ruth C. Streeter, Asst. U. S. Atty., on brief), for plaintiff-appellee.
    Before HILL and HOLLOWAY, Circuit Judges, and TEMPLAR, District Judge.
   TEMPLAR, District Judge.

Appellant Milton Robbins was found guilty by a jury on Count I of a two-count indictment of having possession of a firearm consisting of a homemade incendiary bomb, alleged to be a destructive device, and not registered to him in the National Firearms Registration and Transfer Record, in violation of Title 26 U.S.C. §§ 5861(d) and 5871. He was also found guilty on Count II which charged him with possessing this same firearm which was not identified by a serial number as required by Section 5842 of Title 26, United States Code, in violation of Title 26 U.S.C. §§ 5861 (i) and 5871.

Following his conviction, a sentence of five years was imposed on Count I, followed by a suspended sentence on Count II for five years consecutive to the sentence imposed on Count I.

In his appeal Robbins complains that improper and prejudicial instructions were given, over objection, by the trial court, that his motion for a mistrial was denied when the prosecutor made comments in the jury argument inferring that defendant had not taken the stand and testified, and that the indictment was defective because the specific sections and subsections of the statute under which he was prosecuted were not cited.

Appellant insists that because the indictment fails to indicate any section or subsection of a statute in which is stated that knowledge that possession of a firearm not having a serial number and not registered is a violation of law, the indictment does not state an offense since it fails to require the element of scienter or intent to constitute a crime. He further contends that the Magistrate’s refusal at his preliminary hearing to allow him to examine prior written statements of the prosecution’s witnesses constitutes reversible error, that the statute under which defendant is charged violates the self-incrimination clause of the 5th Amendment, or in the alternative violates the equal protection clause, and lastly defendant claims the indictment is defective because he is charged with the same offense in each of the two counts and is thereby subjected to double jeopardy.

We have carefully considered the various claims of error asserted by the defendant and after a review of the record and consideration of the briefs submitted are convinced that the conviction of appellant on the two counts charged must be affirmed.

Briefly summarized, it appears that evidence offered by the prosecution disclosed that Robbins was the manager of the Jack & Queens Nightclub at Albuquerque, New Mexico, that he engaged two men to construct homemade bombs that could be used for the purpose of putting competitive nightclubs in the area out of business. One of the men so employed by appellant informed the police of the activity; a search warrant was issued for a search of his office quarters in the Jack & Queens Club. Pursuant to the search of appellant’s office, there was found a cylindrical canister with a metal top and bottom and a straw filled with gunpowder placed across the top. Alongside the canister was a glass jar containing black powder. An explosive expert from the F.B.I. Laboratory examined the items so found, conducted experiments, and at the trial expressed his expert opinion that the device would ignite certain types of combustible materials that were in contact or immediately adjacent to the device.

The prosecution was required to establish as an essential element of the case that the firearm in question had not been registered and to-establish this fact introduced a certificate of the custodian of the National Firearms Register and Transfer Record stating in effect that he had made a diligent search and had found no record of any firearms being registered to Robbins. The instruction of the trial court explained to the jury that the certificate was competent evidence to show that the item introduced in evidence was not registered to the appellant but that it was up to the jury to determine what evidence to accept and what weight they might give to any evidence presented in the case. The certificate was sufficient evidence from which the jury could find and determine, as it did, that the firearm in question had not been registered as required by the statute. Proof was established by the method authorized in F.R. Cr.P., Rule 27, adopting the provisions of F.R.Civ.P., Rule 44. The evidence was sufficient to sustain the jury’s finding. United States v. Cowley, 452 F.2d 243 (10 Cir. 1971), and see Vol. 1, Devitt & Blackmar, Federal Jury Practice & Instructions, § 34.05, p. 472. The instruction given was a correct statement.

There was substantia] evidence to prove that the destructive device found in appellant’s possession was of an incendiary nature and the jury were correctly instructed on the issue of whether it was in fact an incendiary bomb. The question was properly submitted to the jury by the trial court.

It is charged by appellant that m his closing argument to the jury the United States Attorney made an improper comment upon appellant’s failure to take the stand and testify in his own defense.

This Court has upheld the privilege of a defendant to excereise his constitutional privilege not to testify where the prosecution’s statement in that regard was direct and prejudicial. Collins v. United States, 383 F.2d 296, 302 (10 Cir. 1967), but the statement of the prosecuting attorney in this case falls far short of being prejudicial. A prosecutor may properly call to the jury’s attention that evidence before it is uncontradicted without impairing the rights of a defendant who elects not to take the stand and testify. United States v. Lepiscopo, 458 F.2d 977 (10 Cir. 1972), particularly when it is not made to appear that no other testimony was available to contradict the evidence.

Here, the comment of the prosecuting attorney came in response to defense counsel's argument in which he in effect asserted that the only evidence in the case was the testimony of one Barbour, an unbelievable associate of the appellant, who had testified for the Government (Tr. 418). It appears that the evidence referred to by the prosecutor was a tape recording of a conversation to which police officers were listening. In such a circumstance, any of the officers could have been called to dispute the correctness of the recording.

We have examined the indictment, Count I of which appellant contends is defective. This count charges in language of the statute, 26 U.S.C. § 5861(d), with the citation of the penalty provision found in 26 U.S.C. § 5871 added, that appellant did “knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.” Appellant complains that the failure to include any reference to the section of the statute which defines a firearm or says that a destructive device is a firearm and the absence of any statement that a homemade incendiary bomb has to be registered, fails to sufficiently apprise the accused of what he must be prepared to meet. This contention is without merit.

Count I of the indictment- charged possession by appellant of a destructive device, a homemade incendiary bomb, a firearm, which had not been registered to him, and in Count II, he was charged with possessing such destructive device which was not identified by a serial number as required by the applicable statute.

Rule 7(c), F.R.Cr.P., has put an end to “the rules of technical and formalized pleading.” Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240. Imperfections of form that are not prejudicial are disregarded and common sense prevails over technicalities. The sufficiency of indictments must be determined on the basis of practical rather than technical considerations and the validity of attacks on them must be considered from a broad and enlightened standpoint of right reason rather than from a narrow view of technicality and hairsplitting.

Count I of the indictment, in plain, concise and definite language, alleged the essential facts constituting an offense under the statute. Under provisions of 26 U.S.C. § 5861(d), possession of a prohibited firearm not registered to a person was made unlawful. The firearm which was allegedly possessed by appellant was referred to as a “destructive device being more particularly described as one homemade incendiary bomb.” This is a sufficient allegation to fairly notify a defendant of the charge against him. His complaint that the indictment failed to make any reference to 26 U.S.C. § 5845(a)(8) and (f), which is the definition section of the Gun Control Act, is without merit as is his contention that some reference should be made to the section of the statute, 26 U.S.C. § 5841, which requires the registration of firearms.

The rule relied upon by appellant defeats his right to relief. The stated violation in Count I is alleged to be 26 U. S.C. § 5861(d). The penalty section 5871 is added. Such is ample compliance with F.R.Cr.P. 7(c). The rule does not require the detailed recital in the indictment of each section of the Act describing the firearm a defendant is charged with possessing. In any event, the omission thereof has not misled the appellant here to his prejudice because the indictment otherwise fully apprises him of the charge. No prejudice appearing, such an omission furnishes no ground for reversal of a conviction. Worthy v. United States, 328 F.2d 386 (5 Cir. 1964). What has been said of appellant’s complaints as to Count I applies with equal force to his contentions relative to Count II.

As to Count II, appellant asserts additionally that this count is fatally defective because it fails to state the subsection of the statute which requires that a destructive device be identified in such a manner as the secretary may prescribe. Again, we must hold that the allegations of Count II are sufficient. The offense charged was violation of 26 U.S.C. § 5861 (i), which makes unlawful the possession of a firearm which has not been identified by a serial number as required by 26 U.S.C. § 5842. The offense charged was not that defendant had failed to have an identification mark placed on the firearm, the offense charged was that defendant had possession of a destructive device which was not identified by a serial number. Had Count II been designed to charge failure of defendant to have the incendiary bomb marked with a serial number,, a different question would be presented, but such is not the case. The charge clearly furnished the accused with a description of the charge against him, under section 5861 (i), as enabled him to prepare his defense and was sufficient to avail him of his conviction or acquittal for protection against a further prosecution for the same cause. This is all that the law requires. The indictment is not vague or indefinite.

Complaint is made that though the indictment charged defendant with “knowingly” committing the offenses described, there was no citation of the section or sections of the statute which states that knowledge of possession is a required element of the violation charged. As noted above the omission of a citation cannot be made the basis of a reversal of a conviction where the omission did not mislead the defendant to his prejudice. (Rule 7(c).) No prejudice has been shown and none appears. Furthermore, the Act requires no specific intent or knowledge that the incendiary bomb was unregistered or unidentified by a serial number. The absence of such a requirement does not violate due process requirements under the Act which is essentially designed as a regulatory statute in the area of public safety. There is no defect in the statute. Though the indictment charged that the defendant acted knowingly, it is only necessary to prove so much of an indictment as establishes that there has been a violation of the statute involved. Here, the evidence was sufficient.

The assertion of defendant that the statutes under which the defendant is charged are unconstitutional because they do not provide for intent as an essential element of the crimes defined in the statute cannot be sustained in view of the Supreme Court’s pronouncement in Freed, supra.

Appellant argues at length that his constitutional rights were violated when, at a preliminary hearing before the Magistrate and prior to the return of an indictment, he was denied the right to obtain and inspect certain statements given by prosecution witnesses for cross-examination and impeachment purposes. Appellant argues that since a preliminary hearing has been held to be a critical stage of criminal process requiring assistance of counsel, it follows that no limitation may be placed on the right of defendant’s counsel to fully cross-examine a witness and require the production of any statement the witness may have made or adopted.

The Court is bound to follow the requirements of the Jencks Act. The language of that statute is clear. The Act provides, in effect, that after a witness called by the Government has testified on direct examination, the Court shall on the defendant’s motion, order the United States to produce any statement of the witness in possession of the United States which relates to the subject matter as to which the witness has testified. The statute carefully used the words, “The Court.” A committing magistrate is not, “The Court.” The word “Court” used in the Act must be construed to mean what it says. The Act further provides that the statement or report shall not be disclosed or inspected until the witness has testified on direct examination “in the trial” of the case. A preliminary hearing can scarcely be characterized as a trial. A trial takes place only before the Court. No right of defendant was violated. There is no constitutional right to a preliminary hearing before a magistrate and the return of an indictment eliminates the need for a preliminary examination. Again, it should be observed that a preliminary hearing is not designed for the purpose of affording discovery for an accused. We decline to follow decisions of the District of Columbia Circuits which, it is contended, have held to the contrary.

Appellant complains that the statute under which he is charged in the indictment is unconstitutional in that it violates the self-incrimination clause of the 5th Amendment and it follows that because he cannot register the device, he is denied equal protection of the law. This Court has determined that the self-incrimination claim is without merit. Likewise, is the claim that the Act denies equal protection of the law. This contention has been considered and found unpersuasive. No person is required to take possession of an unregistered firearm, whether he is the maker, a finder, or a receiver. The Act makes it equally unlawful for any person to receive or possess a firearm which is not registered to him, 26 U.S.C. § 5861(d), or to possess a destructive device which is not identified by a serial number. 26 U.S.C. § 5861 (i).

Appellant insists that the indictment is defective because it, in effect, charges him twice with the same offense and that he was tried on the two counts and convicted with identical evidence thus exposing him to double jeopardy.

The well-settled rule is, that for the double jeopardy provision to apply, the offense charged and tried in the first count and the offense charged in the second count must be identical in law and fact. The test for determining whether the offenses charged are identical is whether the facts alleged in one, if offered in support of the other, would sustain a conviction. Where one count requires proof of a fact which the other count does not, the separate offenses charged are not identical, even though the charges arise out of the same acts.

Here, Count I charged possession of an unregistered firearm; Count II charged possession of a firearm not identified by a serial number. To convict defendant under Count I, no proof of lack of identification by serial number was needed but Count II did require such proof and it was established by the evidence. Defendant’s claim of double jeopardy must be rejected.

Affirmed.

      . The instruction given read :
      “Now, tile Government has introduced into evidence a Certificate of the custodian of the National Firearms Register and Transfer Record, to the effect that he has made a diligent search and has found no record of any firearms or destructive device being registered to the defendant. Such a certificate is competent evidence that the item — items introduced in this case were not registered to the defendant. However, it is up to you to determine what evidence you will accept, and what weight you may give to any evidence presented to you in this case.”

      . The comment made was :
      Now, Ladies and Gentlemen, I want to read to you the one piece of evidence in this case that cannot be refuted. It is corroboration of everything Mr. Barbour says, and that is the tape recording of Mr. Robbin’s telephone conversation with Barbour when Barbour and the police were on the other end of the line.

      . Specifically, the indictment charged :
      “COUNT I
      “On or about the 16th day of March, 1972, at Albuquerque, in the State and District of New Mexico, the defendant, MILTON ROBBINS, aka Mickey Robbins, did knowingly possess a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Title II, Gun Control Act of 1968.
      In violation of Title 26 U.S.C. 5861(d) and 5871).
      “COUNT II
      “On or about the 16th day of March, 1972, at Albuquerque, in the State and District of New Mexico, the defendant, MILTON ROBBINS, aka Mickey Robbins, knowingly possessed a firearm, that is, a destructive device being more particularly described as one homemade incendiary bomb, which was not identified by a serial number, required by Section 5842, Title 26, U.S.C.
      In violation of Title 26, U.S.C. 5861 (i) and 5871.”

      . 26 U.S.C. § 5842(c), reacts:
      “Identification of destructive device.— Any firearm classified as a destructive device shall be identified in such manner as the Secretary or his delegate may by regulations prescribe.”

      . United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588; James v. United States, 416 F.2d 467, 472, (5 Cir.), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87.

      . United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356.

      . United States v. Archer, 455 F.2d 193 (10 Cir. 1972).

      . Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

      . 18 U.S.C. $ 3500.

      . Gibson v. Halleck, 254 F.Supp. 159 (D.C.D.C.); United States v. Covello, 410 F.2d 536 (2 Cir. 1969); United States v. Montos, 421 F.2d 215 (5 Cir. 1970).

      . Sciortino v. Zampano, 385 F.2d 132 (2 Cir. 1967).

      . Jaben v. United States, 381 U.S. 214, 220, 85 S.Ct. 1365, 14 L.Ed.2d 345.

      . United States v. Conway, 415 F.2d 158 (3 Cir. 1969).

      . United States v. Cowley, 452 F.2d 243 (10 Cir. 1971); Sanders v. United States, 441 F.2d 412 (10 Cir. 1971).

      . United States v. Johnson, 441 F.2d 1134 (5 Cir. 1971).

      . Milentz v. United States, 446 F.2d 111 (8 Cir. 1971).

      . Bell v. Kansas, 452 F.2d 783 (10 Cir. 1971).

      . Bartlett v. United States, 166 F.2d 928 (10 Cir. 1948).

      . Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

      . Goldsmith v. Cheney, 447 F.2d 624 (10 Cir. 1971).