author: ALDRICH, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Robert BISHOP, Defendant-Appellant.
    No. 73-1269.
    United States Court of Appeals, First Circuit.
    Submitted Nov. 5, 1973.
    Decided Nov. 20, 1973.
    Dennis E. Curtis, New Haven, Conn., pro hac vice on brief, for defendant-appellant.
    James N. Gabriel, U. S. Atty., and Wayne B. Hollingsworth, Asst. U. S. Atty., on brief, for appellee.

      Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

This is an appeal from a resentencing on the ground that the second sentence was an impermissible increase over the first, in violation of the rule laid down in North Carolina v. Pearce, 1969, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. Procedurally, the case comes before us as the result of the denial of a F.R. Crim.P. 35 motion asserting that the second sentence was illegal as matter of law.

The facts are these. Defendant was convicted on two counts for distributing heroin in violation of 21 U.S.C. § 841(a)(1). Asserting that he was an addict, he requested that he be sentenced under Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S.C. §§ 4251-4255 [hereinafter NARA]. The court, because section 4251(f)(4) made the act inapplicable to a defendant having two or more prior felony convictions, felt obliged to impose sentence, instead, under 21 U.S.C. § 841(a)(1) for a period of five years imprisonment, with the additional special mandatory parole term of three years under 21 U.S.C. § 841(b)(1)(A). Defendant appealed. His claim that heroin addiction was a total bar to prosecution for violation of 21 U.S.C. § 841 was rejected, but we upheld his alternative claim that the provisions excluding recidivists was unconstitutional and remanded the case for reconsideration of his eligibility under NARA. United States v. Bishop, 1 Cir., 1972, 469 F.2d 1337. Thereafter, upon consideration of the factors outlined in the act, the district court committed defendant “to the custody of the Attorney General or his authorized representative for an indeterminate period pursuant to the provisions of Title 18, U.S.C., Section 4253 of the Narcotic Addict Rehabilitation Act.”

Section 4253(a) reads as follows.

“§ 4253. Commitment

(a) Following the examination provided for in section 4252, if the court determines that an eligible offender is an addict and is likely to be rehabilitated through treatment, it shall commit him to the custody of the Attorney General for treatment under this chapter except that no offender shall be committed under this chapter, if the Attorney General certifies that adequate facilities or personnel for treatment are unavailable. Such com-mittment shall be for an indeterminate period of time not to exceed ten years, but in no event shall it exceed the maximum sentence that could otherwise have been imposed.”

We agree with the defendant that his sentence provides for the ten year maximum term. His position is that the final clause of section 4253(a) should have been looked to in the light of Pearce and that the maximum should have been limited to the term of the sentence originally imposed. The district court denied this motion, in part because the ten year sentence is mandatory and “being for treatment subject to the conditional release provisions of section 4254 is not harsher than the original sentence. Hence North Carolina v. Pearce, 1969, 395 U.S. 711 [89 S.Ct. 2072, 23 L.Ed.2d 656] does not apply.”

Nothing in Pearce warrants the government’s suggestion that Pearce is a procedural rule, to be avoided by the fact that the resentencing was by a different judge. See also, Marano v. United States, 1 Cir., 1967, 374 F.2d 583, 585. Nor do we think the court could rule as matter of law that commitment under NARA was less harsh than defendant’s original sentence; the two sentences do not seem sufficiently comparable to permit such a flat statement. Cf. Baughman v. United States, 8 Cir., 1971, 450 F.2d 1217, cert, denied, 406 U.S. 923, 92 S.Ct. 1791, 32 L.Ed.2d 123; Freeman v. United States, 9 Cir., 1965, 350 F.2d 940. But assuming that, since the later sentence is of longer potential duration, it is to be considered more severe, it does not follow that Pearce would be applicable. On the contrary, we hold that it is not.

In North Carolina v. Pearce the Court held that after a conviction had been reversed on the ground of error committed in the course of trial, the court, follow-, ing retrial, could not impose a longer sentence than the one imposed originally. The Court did not make this an absolute rule, but held that due process required the elimination of the appearance of any possible “vindictiveness” or “retaliatory motivation” in the resentencing lest the fear of such deter defendants from prosecuting meritorious appeals. The Court stated that such possibility could be sufficiently rebutted, for example, if the court found that after the original sentencing, defendant’s subsequent conduct warranted a longer sentence. 395 U.S. at 726, 85 S.Ct. 2072. That eliminating the possibility of vindictiveness, rather than prohibiting any increase in sentence as such, is the basis of the Pearce rule was recently emphasized by Chaffin v. Stynchcombe, 1973, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, which upheld a longer sentence imposed on retrial by a jury unaware of the first one.

The complexities that may occur in this area are obvious. We see none, however, in the present case. The new sentence was not some collateral consequence visited upon the defendant following the assertion of error in the first conviction. Rather, it is precisely what defendant had sought from the trial court in the first place. If the court had accepted defendant’s view, it would have been obliged to impose precisely the sentence of which he is now complaining. Baughman v. United States, ante; United States v. Watkins, D.D. C., 1971, 330 F.Supp. 792, aff’d without opinion, 1973, 154 U.S.App.D.C. 309, 475 F.2d 419. To think that in now doing what it should have done before the court was moved in any respect by vindictiveness would be astonishing.

Defendant is neither equitably entitled to the windfall he is seeking, nor legally. Even assuming that we accept his hypothesis that the second sentence is harsher because possibly longer than the erroneous first sentence, absent the stricture that defendant would seek from Pearce, 18 U.S.C. § 4253 required its imposition. If, through error, a court has imposed a sentence that is less than the statutory minimum, it is not only lawful to revoke the initial sentence and substitute the longer one that should have been imposed, it is obligatory to do so. Bozza v. United States, 1947, 330 U.S. 160, 166-167, 67 S.Ct. 645, 91 L.Ed. 818; Pollard v. United States, 1957, 352 U.S. 354, 361, 77 S.Ct. 481, 1 L.Ed.2d 393. We find this appeal singularly unmeritorious, and affirm under Local Rule 12.

      . We describe the commitment order authorized by this act as a sentence without concerning ourselves whether, strictly, some less opprobrious word might be considered more appropriate.

      . “§ 4254. Conditional release.
      An offender committed under section 4253(a) may not be conditionally released until he has been treated for six months following such commitment in an institution maintained or approved by the Attorney General for treatment. The Attorney General may then or at any time thereafter report to the Board of Parole whether the offender should be conditionally released under supervision. After receipt of the Attorney General’s report, and certification from the Surgeon General of the Public Health Service that the offender has made sufficient progress to warrant his conditional release under supervision, the Board may in its discretion order such a release. . . . ”

      . The Pearce opinion uses the words “harsher,” “longer,” and “more severe.”


source: Caselaw Access Project

author: DYER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Connell COX, Defendant-Appellant.
    No. 73-1822
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    Arthur I. Ungerman, Dallas, Tex. (Court-appointed), Fred Time, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Richard Stevens, Asst. U. S. Atty., Ft. Worth, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al„ 5 Cir. 1970, 431 F.2d 409, Part I.

   DYER, Circuit Judge:

Cox appeals from his jury conviction of using a telephone to willfully threaten to damage or destroy property by means of an explosive in violation of 18 U.S.C. A. § 844(e). He urges that four errors by the court below require reversal: (1) that Cox’s confession given to United States Special Agents was erroneously admitted due to its involuntary nature; (2) that the court erred in refusing to grant a mistrial following prejudicial testimony of a Government witness to the effect that Cox was a convicted felon; (3) that the trial court’s failure to specifically instruct the jury to disregard the prejudicial portion of the Government witness’ testimony constituted error; and (4) that the court erroneously overruled an objection to the testimony of another Government witness regarding a previous telephone threat made by Cox. Finding each objection unmeritorious, we affirm.

On April 3, 1972, the switchboard operator at the Reserve Life Insurance Company in Dallas, Texas, received a telephone call conveying an ominous message: “A bomb will go off in one hour if you don’t get rid of Connie Pate.” Fortunately, the threat proved to be a hoax. On the morning of April 6, 1972, two Special Agents went to the Dallas City jail to interview David Cox, the defendant, in connection with an unrelated offense involving a violation of federal firearms regulations. At the outset of this interview, the agents advised Cox of his rights and obtained from him a signed waiver. The ensuing interrogation related exclusively to the alleged firearms violation, and no reference was made to the telephone threat of April 3. At approximately 5:00 P.M. on the same day, the two agents returned to Cox’s cell and questioned him concerning the bomb threat. At this time, the officers again advised Cox of his rights and obtained a signed waiver, which was subsequently lost or destroyed. During the course of this interview, Cox confessed that he made the unlawful call.

At the time of the second interview, Cox appeared nervous and restless to the interrogators, which prompted Special Agent Arnold to inquire whether the defendant was perhaps “strung out.” Cox apparently indicated to the agents that he had been under medication for asthma and that his arrest had prevented further access to prescribed drugs. However, Cox at no time during the interrogation indicated any desire to terminate the interview, nor did he complain of any discomfort except to inform the agents as they were leaving that he was cold. The agents were persuaded that Cox was coherent and rational since he was fully able to carry on a lengthy conversation after having expressly waived his rights.

During the course of Cox’s trial, the two agents testified with respect to the defendant’s jail-cell confession over the objection that the statement was rendered involuntary by Cox’s drug-influenced condition. Further, during cross-examination, Agent Griffin stated that the first interview with Cox on April 6 was in connection with the offense of “Possession of a Firearms [sic] By a Convicted Felon.” This description erroneously related the exact nature of the pending charge against Cox, since the relevant offense did not pertain simply to possession of firearms by convicted felons. Cox’s prompt objection to that portion of the testimony concerning the defendant’s being a convicted felon was sustained by the court, and the jury was instructed upon counsel’s request to disregard the statement. The defendant thereupon moved unsuccessfully for a mistrial on the grounds of the prejudicial nature of the statement.

Later in the trial, the Government called Mrs. Mattie Evelyn Carson, Connie Pate’s mother, who testified that the defendant had previously telephoned her and threatened to kill several persons, including Connie. This testimony was allowed over Cox’s objection that Mrs. Carson was relating an account as to “extraneous acts” which were highly prejudicial to the defendant.

Admissibility of Cox’s Confession

On appeal, Cox invokes a wholly inapplicable principle of law in attacking the court’s finding of voluntariness. He contends that the Government failed to prove with “unmistakable clarity” that the confession was voluntary, as required by Sims v. Georgia, 1967, 385 U. S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593. Sims is singularly inapposite to the case sub judice inasmuch as that decision simply required that the judge’s conclusion of voluntariness appear with unmistakable clarity on the record. 385 U.S. at 544, 87 S.Ct. 639.

Sims aside, t'he relevant standard governing proof of voluntariness was enunciated by the Supreme Court in Lego v. Twomey, 1972, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618, which held that the Government’s burden in such cases is to prove voluntariness by a preponderance of the evidence, not beyond a reasonable doubt. 404 U.S. at 489, 92 S.Ct. 619.

Turning to the evidence adduced at trial, three pertinent facts are somewhat supportive of Cox’s position. Unlike the results of the first interview with the defendant on April 6, the Government was unable to produce the written waiver of rights which Cox signed at the outset of the afternoon interview. Second, and more importantly, Cox appeared nervous and restless during the interview, causing one agent to inquire of Cox whether he was “strung out.” Finally, certain details, e. g., the cost of the telephone call, related by Cox in his confession were not substantiated by the Government, and, indeed, considerable doubt as to their accuracy was raised at trial.

The Government’s evidence, on the other hand, showed that Cox was fully informed of his rights and signed the waiver form. Throughout the lengthy interview, which Cox' never sought to terminate, the defendant appeared fully coherent and rational. Moreover, Cox at no time complained of nervousness or incapacity or that his restlessness affected his comprehension.

Under the Lego standard, it seems clear that the Government carried its burden. Cox’s apparent nervousness was not so severe as to prevent his coherent participation in the interview or even to elicit a complaint from the defendant concerning his state of mind. In this regard, this Court recently held in a similar case that the defendant’s complaint to FBI interviewers of mild symptoms resulting from withdrawal from methadone did not support a conclusion that the defendant was so incapacitated as to render his statement involuntary. United States v. Harvey, 5 Cir. 1973, 483 F.2d 448. Moreover, even assuming the falsity of certain details related by Cox, these inaccuracies could have been intentional, or could have stemmed simply from a faulty recollection of specific details. It strains credulity to suggest that such immaterial discrepancies as the cost of the telephone call contained in a detailed confession strongly indicates the involuntary nature of the statement.

Testimony of Agent Griffin

When, during cross-examination, Agent Griffin stated that Cox had previously been charged with “Possession of a Firearms by a Convicted Felon,” defense counsel promptly interposed an objection, which the court sustained. Moreover, upon counsel’s request, the court immediately instructed the jury to disregard the contested statement. This instruction, despite Cox’s protestations on appeal, was sufficient to accommodate' counsel’s request. Indeed, counsel failed to move for more specific instructions after the court’s charge, electing instead to move for a mistrial. In any event the mistaken response was clearly “invited by appellants’ own counsel. .” United States v. Pentado, 5 Cir. 1972, 463 F.2d 355, 362, and if there was error we are firmly convinced that the court’s immediate instruction to the jury to disregard the contested portion of Griffin’s statement sufficiently cured the testimony of any prejudicial effect.

Testimony of Mrs. Carson

Finally, Cox contends that the court erred in overruling the objection to the testimony of Mrs. Carson regarding Cox’s previous threats against Connie Pate, among others, made to the witness in a telephone conversation. The defendant argues that this testimony related to “extraneous offenses” inasmuch as Cox was threatening to commit homicide in his conversation with Mrs. Carson, whereas during the call which is the subject of the present charge Cox made a false bomb threat. This argument will simply not withstand scrutiny.

Although otherwise inadmissible to prove criminal propensities or character, evidence of similar acts by a defendant is properly allowed where the proffered testimony tends to demonstrate intent, motive, or a pattern of conduct. See United States v. Goldsmith, 5 Cir. 1973, 483 F.2d 441; United States v. Gossman, 5 Cir. 1972, 455 F. 2d 967; United States v. Pittman, 5 Cir. 1971, 439 F.2d 906. In this case, Mrs. Carson’s testimony tended to prove a pattern of conduct by Cox in engaging in threats by telephone, which is, of course, the basis of the offense charged against him by the Government. Moreover, as the court below properly noted, Mrs. Carson's testimony also tended to prove Cox’s intent or motive in making the bomb threat, a necessary inquiry since 18 U.S.C.A. § 844(e) expressly prohibits only willful misconduct. Consequently, despite its probative dangers, the testimony was properly allowed.

The judgment of the district court is affirmed.

      . The exact charge pressed against Cox, although not entirely clear from the record, was apparently “Unlawful possession or receipt of firearms.” Appellant contends that the only act proscribed by the United States Code resembling the alleged offense attributed by Griffin to Cox is “Firearms possessed by a convicted felon,” 18 U.S.C.A. § 3611, and that the section is completely inapplicable to the circumstances in Cox’s case. Hence, appellant argues that the agent’s reference to “convicted felon” was completely unnecessary and erroneous.

      . Our conviction is reinforced by the fact that disposition of a motion for a mistrial is a matter entrusted to the sound discretion of the trial court. United States v. Prit-chard, 5 Cir. 1969, 417 F.2d 327, 328. We cannot agree that the court’s failure to grant the appellant’s motion constituted an abuse of discretion under the circumstances of this case.


author: PER CURIAM.

text:
    UNITED STATES of America Plaintiff-Appellee, v. Robert Carl ADCOCK, II, and Lawrence H. Newell, Defendants-Appellants.
    No. 73-1224.
    United States Court of Appeals, Sixth Circuit.
    Submitted on briefs Oct. 3, 1973.
    Decided Nov. 16, 1973.

      E. W. Rivers, Melton & Rivers, Padu-cah, Ky., on brief, for defendants-appellants.
    George J. Long, U. S. Atty., James H. Barr, Asst. U. S. Atty., Louisville, Ky., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and McCREE and MILLER, Circuit Judges.
   PER CURIAM.

This is a direct appeal by two young Vietnam veterans who became addicted to heroin during their tours of duty in Southeast Asia. On May 3, 1972, appellants were charged in a six-count indictment charging violation of federal narcotics laws. Count one charged both defendants, under the conspiracy provision, 21 U.S.C. § 963, with having conspired to smuggle heroin knowingly and intentionally into the United States in violation of 21 U.S.C. § 952(a). Count two charged them, under the conspiracy provision 21 U.S.C. § 846, with having conspired to possess heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Newell was also charged individually with three substantive offenses in separate counts, and Adcock, with one. Newell was convicted on counts one, two, three and five, and Ad-cock, on counts one and two. Newell received concurrent sentences of seven years on counts one, two and three, and of four years on count five, and a special parole term of three years on counts one, two and three. Adcock received concurrent sentences of three years on counts one and two and a special parole term of three years on both counts.

On appeal, appellants charged five assignments of error: (1) that the district court erred in not entering a judgment of acquittal for Adcock on counts one and two of the indictment; (2) that the district court erred in not giving an instruction explicitly outlining Newell’s defense that if the jury believed that he was an addict and possessed heroin only for his personal use and not for the purpose of selling or distributing it to others, then the jury could not find him guilty of counts two, three, and five of the indictment; (3) that the district court erred in failing to enter a judgment of acquittal for Newell on count three of the indictment which charged him with knowingly and intentionally possessing heroin with intent to distribute it to others; (4) that the district court erred in sentencing both appellants on both conspiracy counts of the indictment because the evidence showed that only a single conspiracy existed; and (5) that the district court abused its discretion in sentencing appellants because the sentences imposed upon them were excessive.

We hold that the evidence does not support appellants’ sentences on both conspiracy counts. It is clear that when a single agreement is entered, “[t]he one agreement cannot be taken to be several conspiracies because it envisages the violation of several statutes rather than one.” Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942). And here the evidence demonstrates that only a single conspiracy existed, “however diverse its objects.” Frohwerk v. United States, 249 U.S. 204, 210, 39 S.Ct. 249, 63 L.Ed. 561 (1919). See also May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994 (1949); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert, denied, 372 U.S. 959, 83 S.Ct. 1015, 10 L.Ed.2d 12 (1963). Like this case, Agueci involved the importation of narcotics into this country for the purposes of distribution to others. The court there found that only a single conspiracy existed among defendants, despite the fact that the evidence showed that some defendants acted as importers, some as “wholesalers,” and others as “retailers” of the narcotics. Similarly, in this case, despite the fact that the defendants may have had more than one illegal objective, both the importation and the distribution of narcotics, only a single agreement existed among the defendants and the other conspirators to commit these unlawful acts.

The cases relied upon by the government, particularly Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L. Ed. 306 (1932), and its progeny, do not compel the conclusion that two separate conspiracies existed in this case. In those cases, the courts upheld convictions of appellants upon multiple substantive counts stemming from a single act. Thus, in Blockburger, appellant, who had made a sale of a narcotic drug, was held to have violated two separate substantive laws: one prohibiting the sale of narcotics except in or from the original stamped package, and the other prohibiting the sale of narcotics not pursuant to a written order of the person to whom the drug is sold. That case did’ not involve, as. does this case, a single conspiracy having as its ultimate purpose the violation of more than one substantive offense.

Moreover, because only a single conspiracy in fact existed, (it is irrelevant that the government charged the appellants under two separate conspiracy provisions. United States v. Mori, 444 F.2d 240 (5th Cir. 1971). Unlike the case in American Tobacco v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), we are not presented here with conspiracies that are “distinguishable from and independent of each other.” Id. at 788, 66 S.Ct. at 1129. The evidence in the record does not support the conclusion that appellants here engaged in more than one conspiracy. Accordingly, we determine that the defendants may not be sentenced on both conspiracy counts.

We hold, however, contrary to appellants’ contentions, that there existed evidence sufficient to permit a jury to find that Adcock was a member of the single conspiracy, and that Newell knowingly ■ and intentionally possessed heroin with intent to distribute it. Moreover, the district court did not err in not giving an explicit instruction to the jury outlining Newell’s defense to three counts of the indictment. First, it appears that no such instruction was requested at trial. Second, Newell’s rights were sufficiently protected by the court’s instruction to the jury that it must find that Newell knowingly and intentionally possessed heroin with intent to distribute it to others before it could find him guilty of the substantive offenses with which he was charged.

Moreover, we find that the district court did not abuse its discretion in the sentences it imposed on Newell and Adcock. We have previously held that “[t]he exercise of that discretion will not be disturbed on appeal, except upon a plain showing of gross abuse.” United States v. Stubblefield, 408 F.2d 309, 311 (6th Cir. 1969), citing Livers v. United States, 185 F.2d 807, 809 (6th Cir. 1950). We observe, nevertheless, that under Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. § 35 (Supp.1970), appellants have 120 days from the date of the mandate from this court in which to move for a reduction of sentence. The district court may decide, in light of our direction for vacation of the sentence on one of the conspiracy counts and in light of appellants’ good record prior to the events that are the subject of this appeal and their asserted self-rehabilitation while on bail after conviction, to exercise its discretion to reduce the sentences previously imposed.

In accordance with the foregoing, the judgment of the district court is vacated to permit resentencing on only one of the two conspiracy counts. In all other respects the judgment below is affirmed.


author: HOLLOWAY, Circuit Judge.

text:
    EDINA STATE BANK, Plaintiff-Appellant, v. MR. STEAK, INC., and Central Bank and Trust Company, Defendants-Appellees.
    No. 72-1291.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 20, 1972.
    Decided Sept. 14, 1973.
    As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1974.

      E. John Abdo, Minneapolis, Minn. (Benjamin E. Sweet, Denver, Colo., on the brief), for plaintiff-appellant.
    Sanford B. Hertz, Denver, Colo. (Robert W. Hite, Denver, Colo., on the brief), for defendants-appellees.
    Before PHILLIPS, SETH and HOLLOWAY, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Appellant Edina State Bank (the bank) sued Mr. Steak, Inc. (Mr. Steak) as the corporate issuer of stock and its transfer agent, Central State Bank and Trust Co. (Central), for damages for refusal to register transfer of pledged shares of Mr. Steak stock which the bank attempted to sell under its rights as pledgee. Central refused to register the transfer due to advice by Mr. Steak that the shares had been purchased for investment purposes and without a view to redistribution. Mr. Steak also had instructed Central that no transfer could be made without notice to it and aii opinion of counsel that the transfer would not violate the Securities Act of 1933 (the Act). No legend of any restriction on transfer appeared on the Mr. Steak certificates and the bank had been advised by Price, the pledgor, when it made the loans that there were no restrictions.

The bank relies on the provision of § 8-204 of the Uniform Commercial Code that a restriction on transfer imposed by the issuer is ineffective unless conspicuously noted on the security, except against a person with actual knowledge of the restriction. The trial court found that the bank relied on Price’s statement that there was no restriction and thereby suffered the loss. In ruling against the bank the court concluded that the Securities Act pre-empted the field and governed instead of the Code provisions; that the federal act required no legend as to the restriction; that also as between the bank and Mr. Steak as innocent parties, a duty of inquiry should be imposed on the bank because it knew of Price’s recent employment by Mr. Steak; and that such inquiry to Mr. Steak was not made by the bank. The trial court denied recovery for the bank’s loss. We are unable to agree.

First, we turn to § 8-204 of the Uniform Commercial Code which we feel supports the bank’s right to recover damages for its loss since Mr. Steak as issuer failed to note any restriction on the certificates and the bank had no actual knowledge of a restriction.

The facts as they apply under the statute are mostly without dispute. In July, 1968, Mr. Steak issued 200 shares of its no par common stock to Price who was its employee. At that time and until April, 1969, no Mr. Steak shares had been registered with the Securities and Exchange Commission under § 5 of the Act, 15 U.S.C.A. § 77e. The shares involved in this suit were never registered. In July, 1969, a stock split occurred and Price was issued an additional 2400 shares. Neither certificate had any notation of any restrictive legend. Mr. Steak did not request an investment letter from Price when either certificate was issued. However, the trial court found that the stock was received by Price with knowledge it was restricted and being received for investment purposes only as an exemption stock. See 15 U.S.C.A. § 77d(2). The trial court concluded that since the issuer, Mr. Steak, had made this clear to Price, it had fulfilled its obligation to Price and the public.

The loan transactions with the bank that followed present the aspect of this case bringing § 8-204 of the Code into play. On March 5, 1969, the bank made a loan to Price of $15,000 which was secured by a pledge of Price’s 2400 shares of Mr. Steak stock. The trial court’s findings accepted the bank President’s testimony that he inquired of Price whether there was any restriction and that Price said it was not restricted. The trial court found that the bank relied on Price’s statement and referred to the bank as an innocent party, as it also described Mr. Steak.

In April, 1969, Price executed another note for a $6,600 loan, secured by the same stock. Again on May 5, 1969, Price obtained an additional $5,155.60 loan from the bank and it consolidated the loans and Price signed a note for $27,000, secured by the same stock. Price later defaulted in payment of the loans.

On about June 3, 1969, the bank, attempting to secure its position, submitted 1,000 shares to a broker for sale for its account. The brokerage house made two 500-share sales. The proceeds of $36,739.34 received by the bank were credited to Price’s checking account, and the account was debited for $27,000 to pay the loans. Price used the balance in his restaurant business.

However, when the brokerage house requested registration of transfer to the purchaser, the transfer agent refused. Central said that Mr. Steak had advised it that the shares were purchased for investment and without a view to redistribution and that no transfer of the shares could be made without notice .to Mr. Steak or its counsel and without an opinion of counsel that the transfer would not violate the Securities Act. Since the sale was forestalled the bank repaid the brokerage house in full and called on Price for the funds, which he could not repay. The bank then obtained a new note from Price for $37,000 to cover all the funds advanced to Price, again secured by the stock which the bank of course then knew was restricted.

§ 8-204 of the Code provides:

“Unless conspicuously noted on the security, a restriction on transfer imposed by the issuer even though otherwise lawful is ineffective except against a person with actual knowledge of it.”

The comments on this section of the Code emphasize that it imposes a strict requirement for notice on the issuer. See Official Comment 1, 7A C.R.S.1963, § 155-8-204. This duty is similar to that imposed by § 15 of the Uniform Stock Transfer Act. Since there was no legend conspicuously noting the restriction on transfer and no actual knowledge of it by the bank, we are persuaded the bank is entitled to recover under § 8-204 of the Code, as the court was under the similar provision of the Uniform Stock Transfer Act in Prudential Petroleum Corp. v. Rauscher, Pierce & Co., 281 S.W.2d 457 (Tex.Civ.App.) (ref.n.r.e.). See also .General Development Corp. v. Catlin, 139 So.2d 901, 902 (Fla.App.); Haas v. Haas, 35 Del.Ch. 392, 119 A.2d 358.

As noted the trial, court concluded that since both the bank and Mr. Steak were innocent parties, . it was proper to impose more of a duty to inquire than the bank undertook. The Court’s findings point out that no inquiry was made of Mr. Steak, although the bank inquired of Price and was found to have relied on his representation that there was no restriction. Ap-pellees also point to admissions by the bank President that he made no inquiry of the Commission or of any brokers; that he knew that the stock was privately held and had no market and was “going to go public;” and that he did not know whether the Price shares were to be included in the registration statement. They say the record establishes a lack of due diligence. However, we think the Code provision in § 8-204 applies and that it clearly placed the duty on Mr. Steak as issuer to note the restriction eonspiciously on the certificate, not on the bank to inquire. And the statute’s protection was extended to all against an unnoted restriction except those with “actual knowledge of it.” Those who are only on inquiry notice are not denied protection by the "Code.

The trial court’s view was that since the restriction had been made clear to Price, Mr. Steak had fulfilled its obligation to him and the public. We are convinced, however, that § 8-204 required more — that the issuer conspicuously note the restriction on the certificate for the protection of others. The bank as pledgee was among the persons protected generally by § 8-204 against a restriction not' conspicuously noted on the security, except as to a person with actual knowledge. The wrongful refusal to transfer gave rise to a right to sue as for conversion by the bank as transfer- or. See Holly Sugar Corp. v. Wilson, 101 Colo. 511, 75 P.2d 149; Official Comment 1 to § 8-204; see also Case v. Citizen’s Bank of Louisiana, 100 U.S. 446, 25 L.Ed. 695; Annotation, Remedy for refusal to transfer stock, 22 A.L.R. 2d 12, 34. We conclude that under the facts as found and shown by this record, the state law in § 8-204 of the Code supports the bank’s right to recover against the issuer which failed to comply with the strict requirement of the statute.

Second, we consider the trial court’s views concerning the Securities Act and arguments of Mr. Steak and Central related to them. The court concluded that the federal statute preempted the field and that to the extent there is any conflict between it and the Code, the federal Act will prevail. And the court held that Congress had not required a legend on the certificate as to restrictions on transfer so that its absence did not make the appellees liable for refusal to register the transfer.

The Securities Act of 1933, as amended, 15 U.S.C.A. § 77a et seq., does not impose a requirement for such a legend. It is recognized by the Commission’s Releases Nos. 33-5121, 17 C.F.R. §§ 231.-5121 and 33-5223, 17 C.F.R. § 231.5226, that the presence or absence of an appropriate legend will be regarded as a factor in considering whether the circumstances surrounding the offering are consistent with the exemption for a non-public offering. Section 4(2) of the Act, 15 U.S.C.A. § 77d(2). The use of the legend was urged in the Releases, but is not required by the statute or regulations.

We cannot agree that the absence of a requirement for a notation of the restriction in the federal statute overrides § 8-204 under the doctrine of preemption. As further discussed below we feel that this important provision of the Code may be read in harmony with the federal statute. Both regulations can be enforced without impairing federal superintendence of the field and thus the state statute need not give way. Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248; Huron Cement Co. v. Detroit, 362 U.S. 440, 446, 80 S.Ct. 813, 4 L.Ed.2d 852. We feel the Securities Act shows no intent to prevent such significant regulation by state law. See New York Dept. of Social Services v. Dublino, 413 U.S. 405, 417, 93 S.Ct. 2507, 2515, 37 L. Ed.2d 688 (Slip Opinion p. 8) (6/21/73). Congress itself adopted the Code provision in § 8-204 for the District of Columbia some time after its enactment of the Securities Act. See D. C.Code, §§ 28:8-101, 28:8-204 (1967 ed.), 77 Stat. 732, 735. We are satisfied the federal statute should not be held to override § 8-204.

The appellees argue that the federal prohibitions against transfer of unregistered stock required and entitled them to refuse to register the transfer here, relying on Securities and Exchange Commission v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert, denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49, and similar cases. The argument is that, if the transfer had been made, appellees might well have been charged as aiders and abettors to a violation of the Securities Act themselves. Thus they say the federal statute is a valid defense against liability for damages for refusal to register the transfer of the stock involved here.

We find no ground for defense to the damage claim in this theory. If the sale of the pledged shares would violate the federal statute, perhaps it could be enjoined by the Commission as in SEC v. Guild Films Co., supra, but we need not reach this question. In any event we think that the prohibition of the federal statute against carrying out certain transfers does not defeat the bank’s right to damages under § 8-204 of the Code. We need not decide whether the bank here as a bona fide pledgee could enforce specifically the transfer of 'the collateral to the purchaser. We have only the question whether the bank is entitled to damages when the issuer asserts its own restriction which was not conspicuously noted on its stock certificate as a ground for refusing to register a transfer. We are persuaded that in these circumstances the bank is entitled to damages for its loss and that the recovery of them is not violative of the federal prohibition against transfer. See Prudential Petroleum Corp. v. Rauscher, Pierce & Co., 281 S.W.2d 457 (Tex.Civ.App.) (ref. n. r. e.). The possible unavailability of one remedy need not defeat the injured party’s right to another.

Third, we consider appellees’ argument that they followed the provisions of § 8-401 of the Code in refusing to register transfer of the stock and are, therefore, free from liability. The theory is based on § 8-401 (e), providing in substance that the issuer is under a duty to register a transfer if it is in fact “rightful” or to a bona fide purchaser. Appellees say that the transfer would not have been “rightful” under the Securities Act and that the bank cannot come within the definition of § 8-302 of a bona fide purchaser in view of its terms and the definition of notice in § 1-201(25).

We need not determine whether the bank failed to come within these general provisions and definitions of the Code. The specific provisions of § 8-204 are controlling in our opinion, affording protection against a restriction not conspicuously noted on a certificate except as to a person with actual knowledge of it. And, as discussed earlier, the bank qualifies for this protection under § 8-204.

J [5] Lastly appellees say that the judgment in their favor should be affirmed for failure of the bank to mitigate damages in any event. The contention is that during a period when the value of the stock continued to decline, the bank failed to furnish an opinion of counsel concerning the validity of transfer under an exemption from registration which would have permitted the transfer and avoided the loss.

We feel the argument is without merit. It is based on an alternative requiring an opinion of counsel to deal with legal questions raised by Mr. Steak’s assertion of the restriction on transfer not noted on its certificate. This again involves reliance by Mr. Steak as issuer on its unnoted restriction which is made ineffective as to the bank by § 8-204. The bank is entitled to protection against the unnoted restriction by § 8-204 and this argument against recovery for the loss is untenable in view of the Code provision.

The appellant asks that we direct the entry of judgment for its damages. The facts necessary for a judgment appear to be covered by the stipulation and proof in the record. However, in view of its ruling on liability the trial court did not reach the damages question or consider it under the applicable state law. We feel that the trial court should determine the proper recovery.

Accordingly the judgment is reversed and the case is remanded for further proceedings and entry of judgment which the trial court finds to be proper.

      . No question is raised as to the applicable law and both parties cite § 8-204 and other portions of the Code which has been adopted in both Colorado and Minnesota, respectively the place of incorporation and principal place of business of Mr. Steak; and the place of incorporation, principal place of business and site of the loan transactions of the bank. See 7A C.R.S.1963 § 155-8-204 and 210 Minn.Stat.Ann. § 336.8-204. Under the Code provisions the law of Colorado, the jurisdiction of organization of the corporation whose stock is involved, governs. U.C. C. § 8-106.

      . No issue has been raised as to the right of the bank to proceed as it apparently did before maturity of the $27,000 note, except the objections based on the restriction on transfer discussed in this opinion. See U.O. C. § 9-207 (1) and (4) as to the rights of the pledgee respecting the collateral.

      . The Uniform Stock Transfer Act made un-noted restrictions invalid without the exception as to persons having actual knowledge of them.

      . As commentators have noted, Article 8 of the Uniform Commercial Code reveals a clear intent on the part of the draftsmen to confer “full negotiability” upon investment securities. See, e.g., Folk, Article Eight: A Premise and Three Problems, 65 Mich.L. Rev. 1379 (1967) ; Israels, Investment Securities As Negotiable Paper — Article 8 of the Uniform Commercial Code, 13 Bus.Law. 676, 677-78 (1958) ; Stop Transfer Procedures And The Securities Act of 1933 — Addendum to the Uniform Commercial Code — Article 8, 17 Rutgers L.Rev. 158 (1962) ; Lee, Impact of the Uniform Commercial Code on Colorado Law, 42 Den.L.J. 67, 101 (1965) ; Wick-ersham, Investment Securities under the Uniform Commercial Code, 1 B.C.Indust. and Comm.L.Rev., 37, 38; Comment, The Status of an Investment Security Holder, 33 Ford .L.Rev. 466, 467, 482 (1965). See also, Guttman, Article 8 — Investment Securities, 17 Rutgers L.Rev. 158 (1962). And with respect to U.C.C. § 8-104, another commentator has observed that the Code “is consistent with a general modern trend which prevents corporations from taking advantage of their own lack of authority in their dealings with parties who are outside the internal framework of the organization.” Carring-ton, Banking, Commercial Paper and Investment Securities Under the Uniform Commercial Code, 14 Wyo.L.J. 198, 217 (1960).

      . As later discussed, since only damages for the loss to the bank are being sought, no question arises as to whether carrying out the sale of the pledged securities would violate the Securities Act.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Carroll P. REED et al., Plaintiffs-Appellees, v. Robert W. MESERVE et al., Defendants, Robert W. Meserve, Trustee, etc., Defendant-Appellant.
    No. 73-1147.
    United States Court of Appeals, First Circuit.
    Argued Sept. 7, 1973.
    Decided Nov. 15, 1973.
    Sidney Weinberg, Boston, Mass., for appellants.
    Frederic K. Upton, Concord, N. H., with whom Upton, Sanders & Upton, Concord, N. H., was on brief, for Carroll P. Reed and William Levy, appellees.
    Charles H. White, Jr., Atty., I. C. C., with whom Fritz R. Kahn, Gen. Counsel, Washington, D.. C., was on brief, for I. C. C., appellee.
    Before COFFIN, Chief Judge, KIL-KENNY  Senior Circuit Judge, and CAMPBELL, Circuit Judge.

       Of the Ninth Circuit sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

Meserve, trustee of the bankrupt Boston & Maine Corporation (B & M), appeals from a district court order requiring him to sell 8.5 miles of rail trackage in New Hampshire to appellee, North Conway Depot Company (Depot). Depot, a partnership, has since 1965 owned the B & M’s former depot, turntable, engine house, and sundry railroad properties in the Village of North Conway. It also owns a steam locomotive and passenger cars, and wishes to purchase the 8.5 miles of track in order to operate a passenger-carrying scenic or excursion railroad.

The disputed trackage is the northerly tip of the Conway Branch on which, until recently, the B & M had provided freight rail service. In 1969 the B & M and, after bankruptcy, its § 77 trustees, petitioned the ICC for a certificate of public convenience and necessity allowing it to abandon the 31 mile Branch. In the summer of 1972, following proceedings before both an Administrative Law Judge and Division 3 of the ICC, the ICC issued a certificate allowing the railroad to abandon the northernmost 19 miles. Permission was “conditioned upon resale .' . to any responsible person for the purpose of continued operation within 60 days from the date of issuance of a certificate.” The trustee took no exception to any part of the final order and has since discontinued all service on the part of the line where abandonment was allowed.

Depot, claiming to be a responsible person desirous of acquiring the 8.5 mile segment for continued operation, sought to negotiate with the trustee during the prescribed 60 day period. The trustee, however, refused to recognize Depot as a prospective purchaser for continued operation and declined to afford it prior negotiating rights. Since no others purporting to be beneficiaries of the condition came forward within the 60 days, the trustee issued a public invitation for sealed bids. The segment in question attracted a $90,000 offer from a bidder proposing to dismantle the tracks and resell the real estate. Depot then brought this suit, obtaining a temporary order restraining the sale. At a hearing, the district court ruled that Depot “would be a ‘responsible person’ acquiring said line ‘for the purpose of continued operation’.” It was granted “preferential consideration for a period of sixty days” from the date of decision before the trustee could “proceed with the free transfer of title of the 8.5 mile segment.” Reed v. Meserve, 353 F.Supp. 141, 148 (D.N.H.1973). Sale was enjoined to allow “good faith negotiations” between the trustee and Depot.

In the ensuing 60 days Depot offered to match the $90,000 bid. The outside bidder then made a counteroffer of $101,000, which the trustee communicated to Depot in a letter requesting a matching bid. Depot, believing that this procedure violated the spirit of the injunction, requested the court to extend the injunction and order the trustee to cease the “auction” process and bargain exclusively with Depot and any others entitled to priority. The court, after a hearing, ordered negotiations to proceed and extended the injunction for 30 days. The ICC appeared for the first time at that hearing. Its answer, filed on the same date, conceded the court’s jurisdiction and emphasized that the order in question had created prior rights in favor of “any” responsible persons for the purpose of continued operation — a reminder seemingly irrelevant, since no prospective purchaser other than Depot was claiming to be a beneficiary of the condition.

After another month of fruitless negotiations the court finally cut the Gor-dion knot. It found that $101,000 was the highest offer to date and that Depot had offered to meet it. It ruled that, because of Depot’s preferential status, it was entitled to buy at that price. The trustee was ordered to sell to Depot.

The trustee has conceded that Depot is a “responsible person” within the meaning of the condition, but he denies that Depot would be acquiring for “continued operation.” Depot’s status under the condition is illuminated by the evolution of the final language. The Administrative Law Judge, who first heard the abandonment petition, found that Depot and B & M were then “engaged in negotiations for the sale and purchase of a portion of the track and right of way at the northern end of the line for operation of an excursion railroad line which would be of economic benefit to the area.” He proposed to exempt that segment from an order directing sale of the remaining tracks to the State of New Hampshire, within 60 days from the date of the abandonment certificate, at a price not less than “fair net salvage value.” The Administrative Law Judge apparently believed that a sale to Depot would be more desirable than a sale to the State; because a sale to the State would be for “the public use including the possible operation of a short-line railroad,” one might infer that the Judge conceived of Depot’s scheme not only as a kind of public use but as involving a type of continued operation of the line.

The Administrative Law Judge’s proposed order was in large measure affirmed by Division 3, notwithstanding appeals from shippers and New Hampshire. The conditions were, however, reworded. The requirement of a sale within 60 days to New Hampshire was deleted. In its initial order of April, 1972, Division 3 noted that there was no indication that negotiations with Depot “have been finalized or will . be successful; . . . other persons may be interested in purchasing the portion of rail line; ... accordingly, the condition should be modified to provide for resale to any responsible person for the purpose of continued operation; . . . ” The reworded provision was obviously meant to place all purchasers for continued operation on an equal footing. And while Division 3 plainly meant to open the preferred group to “other persons,” there is nothing to suggest that it meant to close it either to Depot or the State, the only two parties .which, all along, had expressed some interest in purchasing for a railroad-type usage.

Against this history we are not impressed with the trustee’s argument that the proposed excursion passenger service would not amount to operation of a “railroad” nor constitute, technically, a continuation of the B & M’s prior service, which had been devoted to hauling freight. Depot represents that it will afford regular service, that it will be regulated as a railroad by the New Hampshire Public Utilities Commission, and that it stands ready to contract for freight service with any short haul freight operator. There was ample support for the district court’s conclusion that,

“the purpose of the condition was an attempt to keep the abandoned segment intact as a railroad line and to prevent its dismantlement. The plain meaning of the words ‘continued operation’ is to continue the operation of a railroad over the abandoned line. If the Commission intended the phrase ‘continued operation’ to mean a freight and passenger operation, these words could have been used . . . . ” 353 F.Supp. at 148.

The ICC itself offers no contrary interpretation of its order. Given that posture, and the absence of any appeal from the district court’s judgment by the ICC, there is no reason for us to consider, as suggested at one point by ICC’s counsel, remanding to the agency for clarification. The district court, for the reasons it set forth, properly decided that this was no longer a matter within the primary jurisdiction of the ICC. Id. at 144-145. Remand would only waste time and money.

The trustee also urges that the condition, if construed to include Depot, would exceed the jurisdiction of the ICC and should not, therefore, be so construed and enforced. The Interstate Commerce Act, 49 U.S.C. § 1(20), grants to the ICC the authority to “attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require.” The trustee argues that ICC itself his limited its authority under this section to the imposition of conditions that advance some facet of interstate transportation. The cases do not, however, support such,a narrow view. The ICC has often imposed conditions redounding to the benefit of the locality, particular shippers, or the railroad’s employees, regardless of whether these conditions were a direct boon to interstate transportation. United States v. Lowden, 308 U.S. 225, 60 S.Ct. 248, 84 L.Ed. 208 (1939); Colorado v. United States, 271 U.S. 153 (1926); Nebraska ex rel. Nebraska State Ry. Comm’n v. United States, 255 F.Supp. 718 (D.Neb.1966). The ICC itself, in Proposed Abandonment by Boston & Maine R. Co., 105 I. C.C. 13, 16 (1925), announced a policy of balancing and considering, along with the effects on transportation, the effect of an abandonment on the communities immediately affected. Cf. C. Cherington, The Regulation of Railroad Abandonments 125-36, 172-79 (1948). In the present instance, the ICC was entitled, as the Administrative Law Judge did, to take account of the local economic benefit of an excursion railroad, which might be expected to attract tourists.

The phrase “public convenience and necessity” is not, of course, infinitely elastic. The ICC may not ignore the effects of its decisions on interstate commerce or competition for traffic. The phrase “must be given a scope consistent with the broad purpose of the Transportation Act of 1920, 49 U.S.C.A. § 7 et seq.: to provide the public with an efficient and nationally integrated railroad system.” ICC v. Railway Labor Executives Ass’n, 315 U.S. 373, 376, 62 S.Ct. 717, 720, 86 L.Ed. 904 (1942). But even a tiny scenic railroad might be thought to contribute much more to such objectives than uses that would require the tracks and right of way to be destroyed. To assemble a right of way in our increasingly populous nation is no longer simple. A scarcity of fuel and the adverse consequences of too many motor vehicles suggest that society may someday have need either for railroads or for the rights of way over which they have been built. A federal agency charged with designing part of our transportation policy does not overstep its authority when it prudently undertakes to minimize the destruction of available transportation corridors painstakingly created over several generations. The ICC has in other instances imposed right of way preservation conditions even though the right of way was to be used eventually for a highway rather than a railroad. Norfolk & Western Ry. Abandonment, 193 I.C.C. 363, 368-69 (1933); St. Louis —S.F. Ry. Abandonment, 158 I.C.C. 602, 613 (1930) ; Washington & Old Dominion R. Abandonment — Virginia, 311 I.C. C. 587 (1968).

We hold that the. I.C.C. was well within its statutory authority to impose on B & M’s abandonment a condition which would include entities like Depot among those given a preference to purchase. ’

Although the ICC neither appealed nor directly challenged the district court’s interpretation of the order, it urges us, somewhat mystifyingly, to upset the district court’s judgment. It reminds us that abandonment was merely permissive and urges that, therefore, a court cannot “order” abandonment by ordering the sale of a line. This point might carry weight were it not perfectly plain that the trustee and the B & M have already abandoned. Abandonment need not involve a sale. In re Boston Terminal Co., 71 F.Supp. 472, 473 (D. Mass.1947). “Discontinuance of operations by the trustee is abandonment of operations by a carrier within the meaning of § 1(18).” Smith v. Hoboken R. Co., 328 U.S. 123, 130, 66 S.Ct. 947, 90 L.Ed. 1123 (1946). Counsel for the trustee conceded that all operations ceased at a time prior to the district court proceedings. The trustee’s solicitation of bids for purchase of the property at about the same time merely underscored the obvious.

The literal remedy for breach of the condition might be thought to be an order requiring resumption of service. But we think the district court was entitled to treat the trustee as having, by his act of abandonment, undertaken to perform any valid precondition thereto. Negotiation with, and sale to, 'responsible persons for continued operation was such a precondition. The district court could, as it did, specifically enforce it.

The trustee does not appeal concerning the adequacy of the price of $101,000. There is no evidence that the price is inadequate. It is substantially more than the scrap value figure (which includes the fair market value of the real estate) established by the Administrative Law Judge under 49 C.F.R. § 1201 and left undisturbed by Division 3. The trustee did not appeal either that valuation or the condition itself; he 'may not collaterally attack either here, and has, indeed, not attempted to do so. 3 K. C. Davis, Administrative Law Treatise § 20.06 (1958; Supp.1970). It is true that the trustee’s sole apparent reason for contesting Depot’s right to purchase is his belief, or hope, that by holding on he may be able to get more money. But the condition is meaningless unless read to require the trustee to sell to a preferred purchaser at a reasonable price if one is offered. Here we need not decide whether such a price is (as. the Administrative Law Judge’s decision suggests) scrap value, or whether it is something more. The district court ordered sale at a higher price matching the highest public bid thus far received. There is nothing to suggest that the railroad will not be adequately and fairly recompensed, at a level at least in accordance with, and probably greater than, what the ICC order contemplated.

Affirmed.

Costs for appellee.

      . “[N]o carrier by railroad . . . shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.” 49 U.S.C. § 1(18).

      . The invitation was for the entire 19 miles authorized to be abandoned, or any part thereof. A date was set therein upon which the bids were to be publicly opened and read, but the trustee reserved the right to reject “any and all bids.”

      . Suits to enforce IOC orders are authorized by 49 U.S.C. § 16(12), providing in part,
      “If any carrier fails or neglects to obey any order of the commission other than for the payment of money, while the same is in effect, the Interstate Commerce Commission or any party injured thereby, or the United States . . . may apply to any district court of the United States of competent jurisdiction for the enforcement of such order.” (Emphasis added.)
      In an agreed statement of facts, the trustee and Depot admitted to the jurisdiction of the district court under 28 U.S.C. § 1336(a).

      . The evolution of the wording of an administrative order, like the legislative history of a statute, is an appropriate aid in resolving ambiguity. The final order is, of course, controlling, cf. 5 U.S.C. § 557 (b), but prior drafts and proposed orders may shed light on what the final order means.

      . In a brief relating to this appeal, the ICC states that it does not “object to the district court’s legal conclusions.” From this and from what counsel stated at the argument, it seems that the ICC does not question that Depot would be in the category of purchaser established by its order.

      . See cases cited in text, infra. Even the quotation in Washington & Old Dominion R. Abandonment — Virginia, 331 I.O.O. 587, 589 (1968), so heavily relied upon by B & M, states only that the ICO will “consider” transportation needs. One recent case, Burlington Northern Abandonment, 342 I.C.C. 446 (1972), conditions grant of the certificate on devotion of the lands to public park use.


author: ALLEN, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Joseph STONER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joyce Lee MARTIN, a/k/a Joyce M. Teagarden, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Sherrie Ann STONER, Defendant-Appellant.
    Nos. 73-1158-73-1160.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 8, 1973.
    Decided Nov. 20, 1973.
    A. V. McDowell, Memphis, Tenn., and John C. Humpage, Topeka, Kan., on briefs, for appellants.
    William A. McTighe, Jr. and Glen Reid, Jr., Asst. U. S. Attys., for appel-lee; Thomas F. Turley, Jr., U. S. Atty., Western District of Tenn., Memphis, Tenn., on brief.

      Before PHILLIPS, Chief Judge, CECIL, Senior Circuit Judge, and ALLEN, District Judge.

       Honorable Charles M. Allen, United States District Judge for the Western District of Kentucky, sitting by designation.

   ALLEN, District Judge.

This is an appeal from judgments of conviction as to each of the defendant-appellants, finding them guilty of violating 18 U.S.C. § 2314 and 18 U.S.C. § 2.

Appellants Robert Joseph Stoner and Joyce Lee Martin were tried jointly, and appellant Sherrie Ann Stoner was granted a severance and given a separate trial after the convictions of Robert Stoner and Joyce Martin. The offense charged was the crime of transporting in interstate commerce stolen property in the value of $5,000 or more. The main issue raised on these appeals goes to the asserted invalidity of the original war-rantless search of a hotel room occupied by the Stoners, and a search executed pursuant to a search warrant issued after the warrantless search.

The evidence as developed on the motion to suppress and at the trial reveals that the appellants arrived in Memphis, Tennessee on March 15, 1971, and on that day Robert Stoner rented a 1971 Pontiac. Subsequently, the appellants went to the Ji B. Hunter store in Memphis. While at the store, appellant Martin took a bottle of perfume and then secreted a hair dryer which Robert Stoner handed her. Appellant Martin was arrested, but before her arrest occurred, she threw the hair dryer under the 1971 Pontiac. The Stoners left the store and returned to the Pontiac.

The next event which occurred was a call from James Conrad, an employee of a Memphis bonding company, to Detective Maxwell of the Memphis Police Department, informing him that Conrad had been contacted by one Bobby Clark of West Memphis, Arkansas, who requested him to make bond for Mrs. Martin. Detective Maxwell testified that he knew Bobby Clark, who had a police record, and that Bobby Clark traveled with Bill Sides, who was wanted on a postal warrant. Maxwell then conveyed •this information to Postal Inspector Holman and to the West Memphis Police, including also a description of the 1971 Pontiac.

Subsequently, Inspector Holman conveyed the information received from Maxwell to Postal Inspector Hannah and requested him to look for Sides in West Memphis. Hannah then went to West Memphis, where he was advised that the Police of that city had spotted the Bobby Clark ear at Ramada Inn. Upon receiving this information, he went to a location near the Ramada Inn and, together with Captain Gaia and Sergeant Merrill of the West Memphis Police, stopped the suspected vehicle near the Ramada Inn. The traveler initially identified himself as James Clark, then as Dean West, and then as Robert Stoner. An arrest was made by Captain Gaia of Stoner for registering at the motel under the false name of Clark. Thereupon, Stoner was taken back to the motel in Hannah’s automobile.

Captain Gaia and Inspector Hannah then went to Room 162 of the Ramada Inn, the room occupied by Mr. and Mrs. Stoner under the name of Mr. and Mrs. James Clark. Mrs. Stoner would not allow the authorities to enter the room, whereupon Hannah attempted to gain entrance by having the hotel staff ask to clean the room. Captain Gaia attempted to get into the room by using a pass key, and both his and the Inspector’s attempts were unsuccessful.

After their unsuccessful attempts to get into the room, the authorities drove the police car by the room some 10 to 15 minutes later with Robert Stoner handcuffed in the back seat. Thereupon, when Mrs. Stoner saw her husband in this position, she opened the motel room door. During the interval between the two unsuccessful attempts to get in the room and the opening of the door, there were five officers who were close to the motel room door and had their guns drawn.

When the authorities went into the motel room, they searched for Sides and ascertained that he was not there, after a minute or two. Inspector Hannah, however, remained in the room for a period of approximately 1% hours and was later joined by Inspector Holman. While in the room, the authorities discovered a rack of six suits,, two cardboard boxes and a price tag. Following this, Detective Maxwell brought employees from the clothing store to determine if the suits had been stolen, and one of them identified the suits but could not state positively that they were stolen.

When Captain Gaia recited these events and swore to them in an affidavit to a municipal judge of West Memphis, a search warrant was issued and executed. As a result of the search warrant, a total of thirty-two suits were found.

Following the hearing on the motion to suppress, prior to trial, District Judge Robert McRae reached the determination that there was no consent by Mrs. Stoner to the search of the motel room. He reiterated this conclusion at the trial, and we agree with it. As stated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well delineated exceptions. Those exceptions are six in number and are set out in detail by Judge Edwards in the case of United States v. Nelson, 459 F.2d 884 (6th Cir. 1972), at pp. 887 and 888.

The evidence construed in the light most favorable to the government does not fall within any of the'six exceptions to the general requirements for a search warrant. The government contends that the initial search was valid on the grounds that it was a search for an armed fugitive, and that it was necessary to protect the lives of the search officers. This argument must fall in view of the fact that there was no evidence that Stoner, who purported to be James Clark, was in fact Bobby Clark, a friend of Bill Sides. This being the case, there was no reason for believing that Bill Sides was in the motel room. They had no information that Sides was an acquaintance of either Mr. and Mrs. Robert Stoner or Mr. and Mrs. James Clark, and in fact there was no such relationship between them and Sides.

Since we hold that the initial search was invalid, the subsequent search incident to a search warrant must fall, since there was no independent source for the fruit of this “poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L. Ed.2d 441 (1963); Silverthorne Lumber Company v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920). This being the case, the convictions of the appellants must be reversed.

We observe in passing that other contentions raised by the appellants are without merit. The contention that the government is bound by the wholesale value of the thirty-eight suits, rather than the retail value, is not convincing. See Schaffer v. United States, 362 U.S. 511, 517, 518, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); Gordon v. United States, 164 F.2d 855 (6th Cir. 1947), cert, denied 333 U.S. 862, 68 S.Ct. 741, 92 L.Ed. 1141; Husten v. United States, 95 F.2d 168 (8th Cir. 1938).

Also, the evidence introduced as to shoplifting by appellants Robert Stoner and Joyce Martin at the J. B. Hunter Store was properly admitted as ^showing prior offenses of a like nature. See United States v. Neal, 344 F.2d 254 (6th Cir. 1965), and United States v. Denton, 336 F.2d 785 (6th Cir. 1964).

Other points raised by appellants as to severance and personal examination of jurors on voir dire are likewise without merit.

The judgments of conviction are reversed.


author: FRIENDLY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank John BONANNO, Defendant-Appellant.
    No. 194, Docket 73-1852.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 11, 1973.
    Decided Nov. 20, 1973.

      Gerald L. Shargel, New York City (James M. LaRossa, New York City, of counsel), for defendant-appellant.
    Bart M. Schwartz, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. S. D. N. Y„ and Peter L. Truebner and John D. Gor-dan III, Asst. U. S. Attys., of counsel), for plaintiff-appellee.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   FRIENDLY, Circuit Judge:

Frank John Bonanno appeals from a judgment of the District Court for the Southern District of New York convicting him, on a two-count indictment, of passing, uttering and publishing and of possessing or concealing approximately 250 counterfeit $20 Federal Reserve Notes in violation of 18 U.S.C.A. § 472. The only questions raised concern the use of a tape and a transcript of a telephone conversation between Bonanno and Spiros “Gerry” Dendrinos, a former passer of counterfeit who had become an informer.

I.

The Government’s case consisted of the testimony of two Secret Service agents and of the tape and transcript of the telephone call. Agent Zaino apparently first met Dendrinos on September 6, 1972, a day after the latter was arrested for selling counterfeit money to an undercover agent. After having decided to cooperate with the Government and having evidently identified Bonanno as his source, Dendrinos arranged for Zaino to meet Bonanno. When Dend-rinos told Bonanno that Zaino had been the recipient of the counterfeit and Zaino offered Bonanno payment therefor, Bon-anno answered, “I do not know what you are talking about.” Not convinced by this, Government agents arranged for Dendrinos to make a purchase from Bonanno. On September 7 Dendrinos telephoned Bonanno from the New York City headquarters of the Secret Service. Agent Dotson, who did not testify at the trial, monitored the call which was tape-recorded and later transcribed. The tape and transcript showed that, pursuant to what was apparently a slightly less precise arrangement already existing between them, Bonanno agreed to sell Dendrinos what turned out to be $5020 in counterfeit $20 bills for $1250. He said he would pick up the bills and meet Dendrinos about 1 A.M. near a coffee shop at 43d Street and Sixth Avenue. Thoughtfully, he warned Dendrinos not to carry $1250 in the subway. Dendrinos responded to this solicitude by saying he possibly would be with his partner who had a car, but that he would not let his partner see Bonanno.

The partner, of course, was Agent Zaino. After seeing Bonanno in the coffee shop, he parked the car, allowed Dendrinos to leave, and saw Dendrinos and Bonanno enter a Cadillac. The Cadillac drove away briefly and then came back. A few minutes later Dendrinos returned to Zaino with a bag containing a “stack” of counterfeit $20 bills. Agent Zaino then handed Dendrinos $1250 in genuine bills whose numbers had been recorded. Dendrinos approached Bohan-no’s car with the money but Bonanno was arrested before this was handed to him. Zaino’s testimony was corroborated to some extent by a surveilling agent, Thomas Tully, whose testimony, however, was primarily concerned with efforts to equip Dendrinos with a radio transmitter, whose recorder malfunctioned.

Apparently on the morning of trial, defense counsel for the first time raised objections to the use of the tape recording and transcript of the telephone call. After the jury had been sworn early in the afternoon, the judge directed that the trial proceed so far as possible but agreed to hold an evidentiary hearing the next morning with respect to the tape. At this hearing the Government called Secret Service Agent Marquez, who had been present at headquarters when Agent Dotson arranged for the call from Dendrinos to Bonanno. He testified that, after having obtained Dendrinos’ agreement to having the call taped, Agent Dotson instructed a special agent to set up the apparatus. This included installing a connection of a tape recorder with the telephone receiver and an earpiece to monitor the conversation. After all this had been done, Dendrinos was brought into the room and Dotson placed identifying information on the tape recorder. Having observed the tape recorder and its installation, Den-drinos then made the call, with Dotson monitoring it. At the conclusion of Marquez’ testimony the judge found it credible and overruled a defense objection based on lack of consent by Dendri-nos.

Defense counsel protested that the judge had ruled without affording him an opportunity to call Dendrinos, who was present, under a Government subpoena, as a prospective witness at the trial. When called by the defense, Den-drinos promptly claimed the privilege against self-incrimination with respect to practically all questions and specifically those concerning the telephone call and his consent to its being monitored and recorded. The judge declined to order him to testify but suggested that he confer with the lawyer who had represented him when he pleaded guilty to a counterfeiting charge in the Eastern District of New York. Meanwhile the trial was resumed.

A robing room conference was held after the lunch recess. The lawyer reported that he had unsuccessfully urged Dendrinos to testify and thought the latter’s unwillingness was due as much to fear of physical violence as to worry about self-incrimination. On return to the courtroom, which had been cleared of spectators, the judge further interrogated Dendrinos. The latter first repeated that to tell what he had said to the Secret Service agents might involve him in a crime, only to say the opposite a moment later and then to revert to his original version. After the prosecutor had offered to investigate whether immunity could be granted, the judge, on the basis of observing the witness’ appearance, asked whether he had taken drugs recently and found that he had taken methadone that morning. The judge thereupon asked counsel for both sides to consider whether, apart from the question of privilege, any testimony by Dendrinos should be received. After a short recess, both sides agreed in an off-the-record conference in the robing room that they would not call him back to the stand. The judge thereupon repeated his ruling that the Government had shown consent.

Agent Zaino then resumed his testimony. He identified two of the three voices on the tape as those of Dendrinos and of Bonanno, whom he had heard in person at the meeting Dendrinos had arranged. The court ruled that this identification was sufficient so far as concerned the conversation between Dendri-nos and Bonanno and allowed it and the corresponding transcript to be received in evidence.

II.

Bonanno’s broadest attack is that a warrantless recording of a telephone conversation violates the Fourth Amendment rights of a non-consenting party even though the other has consented. He argues that United States v. San Martin, 469 F.2d 5, 7 (2 Cir. 1972), cert, denied, 410 U.S. 934, 93 S.Ct. 1388, 35 L.Ed.2d 598 (1973), indicated that this question was open- in this circuit and evidenced some sympathy with his contention by its approving quotation from Judge Learned Hand’s opinion in United States v. Po-lakoff, 112 F.2d 888, 889 (2 Cir.), cert, denied, 311 U.S. 653, 61 S.Ct. 41, 85 L. Ed. 418 (1940), as to the antiphonal nature of a telephone conversation and the consequent need of consent by both parties. But Judge Hand’s opinion, which dealt with § 605 of the Federal Communications Act, 47 U.S.C. § 605, which at that time was the sole basis for protecting the privacy of telephone conversations in the absence of trespass, was rejected by the Supreme Court with respect to police officers listening in on a regularly used telephone extension in Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957), and in light of that decision, by this court with respect to recording devices in United States v. Ballou, 348 F.2d 467 (2 Cir. 1965), and United States v. McGuire, 381 F.2d 306, 314-315 (2 Cir. 1967), cert, denied, 389 U.S. 1053, 88 S. Ct. 800, 19 L.Ed.2d 848 (1968). Cf. United States v. Jackson, 390 F.2d 317, 318-319 (2 Cir.), cert, denied, 392 U.S. 935, 88 S.Ct. 2304, 20 L.Ed.2d 1394 (1968).

Bonanno claims all this has been altered by Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which extended Fourth Amendment protection to voice communications. We squarely held the contrary in United States v. Kaufer, 406 F. 2d 550, 552 (2 Cir.), summarily affirmed on the ground of the non-retroac-tivity of Katz, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969), with respect to listening in on a telephone conversation with the consent of one party. And United States v. Jackson, supra, which was also decided after Katz and before the Supreme Court had ruled that Katz was not retroactive, seems to have held the same with respect to the recording of a telephone conversation with the consent of one party.

There have been only two relevant subsequent developments. One is the decision in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), which affirmed the continued vitality of On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), upholding the use of recording and transmitting devices on the person, in the face of a Fourth Amendment claim based on Katz. The other is enactment of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 211, which, in providing for interception of wire communications pursuant to warrant, expressly excepted from the warrant requirement a case where “one of the parties to the communication has given prior consent to such interception,” 18 U.S.C. § 2511(2) (c) — a statute referred to with seeming approval in United States v. White, supra, 401 U.S. at 753, 91 S.Ct. 1122. These developments strengthen our previous decisions. See, accord, United States v. Puchi, 441 F.2d 697 (9 Cir.), cert, denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed. 2d 92 (1971); Holmes v. Burr, 486 F.2d 55 (Cir. 1973).

Moreover, if this circuit had not previously considered the issue, we should still reject appellant’s constitutional argument under the controlling Supreme Court decisions. Despite the dissent in Holmes v. Burr, supra, we consider the considerations set forth in United States v. White, supra, 401 U.S. at 751-53, 91 S.Ct. 1122, to be persuasive that although a person having a telephone conversation with another in regard to criminal activities generally does not expect that the latter will reveal this to the police, he has no “justifiable” expectation, see Katz v. United States, supra, 389 U.S. at 353, 88 S.Ct. 507, that the latter may not do so or may not have consented to a government agent’s listening in or making a recording. See 401 U.S. at 751-752, 91 S.Ct. 1122. There is no more reason to distinguish between the two latter cases under the Fourth Amendment than there was under § 605 of the Communications Act. The guarantee of privacy recognized in Katz was against governmental interception not reasonably ex-pectable by either party, not against governmental listening or recording with the consent of the other party. We therefore regard the doubts voiced in United States v. San Martin, supra, 469 F.2d at 7, as limited to the peculiar facts of that case where the consent to the placing of the bug was given by a person other than the one who conducted the incriminating conversation — a situation concerning which we express no opinion.

III.

Bonanno also challenges the ruling of the district court that Dendrinos consented to the monitoring and recording of the telephone conversation. The challenge is two-pronged. Bonanno relies on the judge’s apparent belief that Dendrinos was incompetent to testify at the trial and argues that the Government’s proof was deficient because of its failure to call Agent Dotson, who had obtained the consent.

We observe at the outset that the extent of proof required to show that an informer consented to the monitoring or recording of a telephone call is normally quite different from that needed to show consent to a physical search, whether by the defendant himself or by some person in a position to give an effective one. Cf., e. g., United States v. Viale, 312 F.2d 595, 601 (2 Cir.), cert, denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963); United States v. Como, 340 F.2d 891, 893 (2 Cir. 1965) ; United States ex rel. Lundergan v. McMann, 417 F.2d 519, 521-522 (2 Cir. 1969). See generally Schneekloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In cases involving physical search, the person alleged to have consented is doing something apparently contrary to his own interests or to those of another who often is in some way connected with him. An informer’s consent to the monitoring or recording of a telephone conversation is an incident to a course of cooperation with law enforcement officials on which he has ordinarily decided some time previously and entails no unpleasant consequences to him. Hence, it will normally suffice for the Government to show that the informer went ahead with a call after knowing what the law enforcement officers were about.

There is nothing to impeach the judge’s ruling under this easy test — or, for that matter, under a more stringent one. Dendrinos had earlier shown his desire to cooperate by arranging a meeting with Bonanno; there was no reason for him to alter course when the agents asked him to take the next step. After agreeing and seeing the physical arrangements, he proceeded to conduct an intelligent conversation with the defendant. His taking a dose of methadone six months later, which, in the judge’s view, made him of dubious competence as a trial witness, has no tendency to show he was in a similar condition on the night of the telephone call.

While it would have been preferable for the Government to have called Agent Dotson rather than Agent Marquez to testify to Dendrinos’ consent, there is no rule requiring the production of the best witness. Moreover, the Government’s failure was excusable. Until the morning of the trial it had no notice that an issue would be raised in regard to the admissibility of the tapes, and it expected to call Dendrinos to testify and to identify them. There was thus no apparent need for the presence of Agent Dotson, who had been allowed to go to Mexico for the protection of John F. Kennedy, Jr.

Bonanno’s remaining contentions concern the adequacy of the identification of the tapes and their use as independent evidence rather than for corroboration.

On the first contention Bonanno stresses that the identification was not made by Agent Dotson or by Dendrinos but, for reasons already stated, by Agent Zaino, who had not listened to the telephone call at the time it was made. To the extent that this argument is directed at the adequacy of the evidentiary foundation in terms of date, time, place of recording and so on, the Government rightly complains that timely objection was not raised below. And the argument that Agent Zaino was incompetent solely because he was not a contemporaneous witness to the phone conversation is without merit. Analogy may be drawn to the well-settled rule that “Identification of a voice, whether heard firsthand or through mechancial or electronic transmission or recording,” may be made “by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” Proposed Federal Rules of Evidence 901(b) (5). See McCormick, Evidence (Cleary ed. 1972) § 226, at 554 & n.81 and cases there cited. Furthermore, in view of the identity between the scenario arranged on the telephone and that subsequently enacted, the case would come within the principle of Van Riper v. United States, 13 F.2d 961, 968 (2 Cir.), cert, denied, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926), that in some instances “the substance of the communication may itself be enough to make prima facie proof.”

While the contention that a tape recording may be used only for corroboration derives some support from the concurring opinion of Chief Justice Warren in Lopez v. United States, supra, 373 U.S. at 441, 83 S.Ct. 1381, his vote was not needed for a majority and the Court’s opinion does not thus limit admissibility. Although Mr. Justice Harlan referred on one occasion to “corroborating evidence,” id. at 439, 83 S.Ct. at 1388, he concluded his constitutional discussion on the note that the defendant took the risk that his offer of a bribe “would be accurately reproduced in court, whether by faultless memory or mechanical recording.” Id. Only in discussing potential-exercise of the Court’s supervisory powers did Justice Harlan leave open even the possibility that use of recordings could sometimes be limited to purposes of corroboration. Id. at 440 n.12, 83 S.Ct. 1381. And in United States v. White, supra, 401 U.S. at 753, 91 S.Ct. 1122, while leaving Justice Harlan’s Lopez opinion intact, id. at 749 n.3, 751, 752, 91 S.Ct. at 1126, Mr. Justice White remarked that “An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent.” While a trial judge may encounter problems when a tape is of poor audibility, cf., e. g., United States v. Enten, 329 F.Supp. 307 (D.D.C.1971), or its trustworthiness is challenged, and may decide in such cases to allow a tape to be used only for corroboration, or not to allow its use at all, no such problems were presented here. Under such circumstances, the court properly allowed the tape and the transcript to be received as independent evidence.

Affirmed.

      . This reversed the holding of the Seventh Circuit, 405 F.2d 838 (1969) (ere banc), with which we expressed disagreement in Kaufer. Mr. Justice White cited the latter opinion with apparent approval, 401 U.S. at 750-751 n. 4.
      Appellant cites Bakes v. United States, 350 F.Supp. 547, 549-550 (N.D.Ill.1972), for the proposition that White’s binding effect is limited by its having produced a “4-4 split” on the major issue, with a fifth vote, that of Justice Brennan, having been attracted to the majority only on the narrow ground that Katz lacked retroactive effect. This argument misses the point that Justice Brennan was the sixth and not the fifth vote in the White majority. Justice Black concurred with the four-man plurality not on a narrow ground like that of Justice Brennan, but rather on the extremely broad one that eavesdropping by electronic means does not constitute a “search” or “seizure” within the meaning of the Fourth Amendment. White is therefore authoritative on the constitutional validity of recording and transmitting devices on the person, although not on the grounds for this. See Holmes v. Burr, 486 F.2d 55 (9 Cir. 1973).

      . Another claim, that Agent Marquez’ testimony was inadmissible hearsay, does not merit discussion.