author: CAMPBELL, Circuit Judge.

text:
    AMERICANS UNITED FOR SEPARATION OF CHURCH AND STATE et al., Plaintiffs-Appellees, v. Newell J. PAIRE, as Commissioner of Education of the State of New Hampshire, et al., Defendants-Appellants.
    No. 72-1353.
    United States Court of Appeals, First Circuit.
    Argued Jan. 5, 1973.
    Decided March 16, 1973.
    Howard B. Myers, Asst. Atty. Gen., with whom Warren B. Rudman, Atty. Gen., was on brief, for appellants.
    Walter C. Wright, with» whom Kenneth E. Scott, Washington, D.C., was on brief, for appellees.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

This is an appeal from a district court decision, 348 F.Supp. 506, that a lease and so-called dual enrollment agreement between the Holy Infant Jesus School of the Roman Catholic Bishop of Manchester (“Holy Infant”) and the Nashua School District No. 42 (the “Nashua School District”) violate the Establishment Clause of the First Amendment. Because we conclude that a single district judge was without jurisdiction to decide the matter, we do not reach the merits but remand for further proceedings.

The plaintiffs-appellees (hereinafter “plaintiffs”) are a non-profit corporation chartered in the District of Columbia (with many of its members residing in New Hampshire), and twelve individuals who are New Hampshire citizens, residents and taxpayers. Seven of the latter are Nashua residents; five reside in other New Hampshire cities and towns. All allege that they regularly pay “local and state taxes, which in turn support public school districts throughout the state.” They purport to sue not only individually but as class representatives for all citizens, residents and taxpayers similarly situated who are interested in or affected by the subject matter.

The defendants-appellants (hereinafter “defendants”) are the New Hampshire Commissioner of Education, the State Treasurer, and the Chairman of the Board of Education of Nashua School District No. 42. All three defendants are represented by an assistant attorney general of the State of New Hampshire. The Roman Catholic Bishop of Manchester, New Hampshire, was permitted to intervene.

The complaint, a stipulation, and the district court’s opinion show a full-scale assault, on constitutional grounds, upon a form of school aid extended by the State of New Hampshire pursuant to statutory enactments and regulations of its Department of Education. Specifically challenged are a lease and written agreement relating to the 1971-72 school year under which the Nashua School District rents from Holy Infant five contiguous classrooms and an office on the second floor of the building of the Holy Infant Jesus School. Therein, through teachers in its exclusive employ, the Nashua School District conducts classes in secular subjects for the benefit of students enrolled at the Holy Infant. Funds for rental of the rooms and for the cost of teachers’ salaries, textbooks, and other costs are provided by the state.

The plaintiffs in substance allege, and it was stipulated, that the contractual relations between Holy Infant and the Nashua School District are “typical of contracts entered into between other church schools and other school districts in the State of New Hampshire.” The Nashua lease and contract are drawn in strict and obvious compliance with detailed regulations promulgated by the New Hampshire State Department of Education (“Guidelines for Applying for Dual Enrollment and Child Benefit Services Grants.” 6/12/70; “Added Guidelines,” 1/26/71; “Additional Guidelines,” 5/10/71; and “Dual Enrollment Program Instructions, 1971-72,” 8/13/71). These latter were, in turn, promulgated under authority of two New Hampshire statutes. The Nashua School District has applied to the New Hampshire Department of Education, on forms prepared by the state, for a Dual Enrollment grant to cover the costs made reimbursable under the statute and implementing regulations.

It is both apparent and undisputed that the Nashua agreement and lease were prepared to take advantage of the statewide grant program, the latter having been established and funded by the legislature and implemented by regulations of general application put out by the state Board of Education. Thus the question of the constitutionality of the Nashua agreement and lease cannot be separated from the question of the constitutionality of New Hampshire’s statutory and regulatory scheme. If the former are unconstitutional, so are the latter, at least as applied to church schools.

Given these facts, and the further fact that the plaintiffs pray for broad, permanent injunctive relief against the two state defendants which would prevent them from any further expenditure of funds under dual enrollment agreements and from further performance either under the Nashua agreement or similar agreements, we are faced with a jurisdictional problem under 28 U.S.C. § 2281, providing:

“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges. . . .”

The district court recognized the problem, stating in an opinion footnote, “Neither party requested the convening of a three-judge court. At the preliminary pretrial conference, the plaintiffs waived their request for a temporary restraining order.” However, the three-judge requirement is jurisdictional; jurisdiction of a ease otherwise within § 2281 may not be conferred upon a single judge by consent or waiver. Stratton v. St. Louis S. W. Ry., 282 U.S. 10, 18, 51 S.Ct. 8, 75 L.Ed. 135 (1930); United States v. Griffin, 303 U.S. 226, 229, 58 S.Ct. 601, 82 L.Ed. 764 (1938); United Low Income, Inc. v. Fisher, MD., 470 F.2d 1074 (1st Cir. 1972); Borden Company v. Liddy, 309 F.2d 871, 876 (8th Cir. 1962). See Goosby v. Osser, 409 U.S. 512, 522, footnote 8, 93 S.Ct. 854, 861, 35 L.Ed.2d 36 (1973).

A better argument against three-judge jurisdiction might exist were it true that plaintiffs had entirely withdrawn all claim for injunctive relief, leaving only a request for declaratory judgment. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); Flemming v. Nestor, 363 U.S. 603, 607,'80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). At least if the relief sought, by whatever name denominated, merely called into question the constitutionality of a state statute or regulation but “did not seek affirmatively to interdict the operation of a statutory scheme” (Flemming v. Nestor, supra at 607, 80 S.Ct. at 1371), our analysis would be different.

Here, however, we are faced precisely with an attempt to interdict a statewide statutory scheme. While the plaintiffs waived their request for preliminary injunctive relief, they have not waived their request for permanent injunctive relief against both the Nashua program and other similar ones. In its opinion, the district court said:

“Although the plaintiffs originally asked for a preliminary injunction, they agree that if this opinion were not issued prior to the start of the school year, they would not seek an immediate injunction but would wait for the case to run its appellate course. No injunction will issue, therefore, pending appeal. If no appeal is taken, the Clerk is directed to schedule an early conference of counsel so that the judgment of this court can be put into effect without jeopardizing unduly the education of the children already involved in the dual enrollment agreement for the current school year.” [Emphasis supplied.]

In due course, we may assume that the district court, if its decision were to be affirmed, would issue an injunction, at least in the absence of a suitable stipulation of voluntary compliance. We see no way to avoid the conclusion that the object of the lawsuit remains the effective disruption of the enforcement by a state of its statutes and of regulations promulgated thereunder. See Spencer v. Kugler, 454 F.2d 839, 844 (3rd Cir. 1972).

In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), three-judge jurisdiction was sustained in a case involving attack upon federal funding of instruction and educational materials for use in religious and sectarian schools. The argument against three-judge jurisdiction was that appellants wished to forbid only specific local programs in New York City religious schools, not to enjoin the operation of the broad range of programs available under the federal statutory scheme. The Court held, however, that allegations in the complaint making specific reference to New York City schools were to impart “specificity and focus to the issues in the lawsuit”, not to limit the impact of the constitutional challenge. Id. at 89, 88 S.Ct. at 1947.

“The injunctive relief sought by appellants is not limited to programs in operation in New York City but extends to any program that would have the unconstitutional features alleged in the complaint. Congress enacted § 2282 [the federal counterpart of § 2281] ‘to prevent a single federal judge from being able to paralyze totally the operation of an entire regulatory scheme ... by issuance of a broad injunctive order’. . . . If the District Court in this case were to rule for appellants on the merits of their constitutional attack on New York City’s federally funded programs, that decision would cast sufficient doubt on similar programs elsewhere as to cause confusion approaching paralysis to surround the challenged statute. Therefore, even if the injunction which might issue in this case were narrower than that sought by appellants, we are satisfied that the legislative policy underlying § 2282 was served. . . .” Id. at 89-90, 88 S.Ct. at 1947.

The district court states, it is true, that the plaintiffs do not challenge the constitutionality of the New Hampshire statutes but “have concentrated their attack on the lease and dual enrollment agreement.” (A similar distinction could have been drawn between Titles I and II of the Elementary and Secondary Education Act of 1965 considered in Flast, supra, and the limited program there attacked.) The New Hampshire statutes must be read, however, with the regulations of the Department of Education and the Nashua lease and agreement (which are stipulated to be typical of contracts entered into by other church schools and school districts and which are plainly drawn in compliance with the statutes and regulations). So read, they delineate a specific state policy; it is against the enforcement of that policy, not merely against a locally-drawn contract, that the plaintiffs seek to interpose the Constitution. See Phillips v. United States, 312 U.S. 246, 251, 61 S.Ct. 480, 85 L.Ed. 800 (1941). We would be fooling no one, not even ourselves, were we to pretend otherwise. The possibility of so attempting is furthermore removed by the breadth of the plaintiffs’ allegations and prayers, by the stipulation, and by the obvious fact, appearing from every page of the lease and dual-enrollment agreement, that what is sought to be prevented is a major state program, authorized and funded by the legislature, and executed by state officers, two of whom are defendants.

We conclude that the district court, consisting of a single judge, was without jurisdiction to hear and resolve the issue before it. Since it was without jurisdiction, we are without jurisdiction to resolve the substantive issues on appeal.. The judgment of the district court is vacated, and the ease remanded for reference to a district court of three judges.

So ordered.

      . Holy Infant JeSus School is a Roman Catholic parochial elementary school. Its students attending the classes conducted by the Nashua School District also spend part of the day attending classes in other subjects given by the nine nuns who make up Holy Infant’s own faculty. The courses given by the Nashua School District at Holy Infant are Language Arts, Science, Math, Music and Physical Education. All students enrolled in the program attend Holy Infant.

      . The Nashua dual enrollment agreement and lease both recite that they are authorized by NI-I RSA 193 :l-2 (supp).

      . NH RSA 193:1-a (supp) Dual Enrollment. Notwithstanding any other provision of the law, the full-time attendance requirement may be met by attendance at more than one school provided the total time spent in the schools is equivalent to full-time attendance and further that the attendance .at more than one school may include attendance at a nonpublic school provided that the school district and the state board of education have given prior approval to the detailed dual enrollment agreement, which is to be effectuated for this purpose.
      NH RSA 198:21 (supp) Grants.
      I. Any school district which has in operation an approved dual enrollment agreement under the provisions of RSA 193:l-a shall be granted for the first school year that such agreement is in operation the full operational costs of implementing such agreement, exclusive of any part of the cost and carrying charges of any capital improvements; and for the next succeeding school year, if such operation is then continued, one half of such costs.
      II. Application for any such grant shall be submitted by a district to the state board of education no later than the July first preceding the start of the school year for which it shall be applicable, provided that the board may, for good cause shown, accept any such application up to but not later than the start of the applicable school year.
      III. The board shall determine what costs shall be allowed in computing the amount of any grant, and shall make payments of such grants from the funds appropriated therefor.
      IV. In the event that for any year insufficient sums are available to pay grants in full as provided by this section to all qualified applying school districts the state board of education shall prorate such grants so that all such districts receive the same proportion.
      V. No pupil counted by any school district for the purpose of calculating the amount of a grant to be paid pursuant to this section shall for the same school year by the same district be included in average daily membership for the purposes of foundation aid or counted for the purposes of grants pursuant to USA 198:22.

      . The district court stated: “Although the stipulation does not expressly so state, Roman Catholic schools are the only churcli schools in the state to enter into such agreements with the school districts.” The court further stated that the “dual enrollment statute, the guidelines promulgated pursuant to it . . are the direct result of the current financial crisis in Roman Catholic grammar and high school education . . .”

      . While we accept the district court’s statement that no request was made, we note that the plaintiffs refer in their complaint to § 2281 as being one of the statutes under which jurisdiction is claimed.

      6. The commendable restraint of the district court, in the present case, in withholding relief until after appeal, while removing the paralysis-by-one-judge worry, does not cure the jurisdictional problem. Moreover, § 2281, of course, affords not only a three-judge district court but a direct appeal therefrom to the Supreme Court.

      . For purposes of § 2281, the regulations of the Department of Education are the “delegated legislation of an ‘administrative board or commission’.” See Phillips v. United States, supra at 251, 61 S.Ct. 480.


source: Caselaw Access Project

license: Public Domain

text:
    Ana Lillian TORRES, Representing Luis A. Dávila, Plaintiff, Appellant, v. SECRETARY OF HEALTH, EDUCATION, AND WELFARE, Defendant, Appellee.
    No. 72-1073.
    United States Court of Appeals, First Circuit.
    Heard Feb. 5, 1973.
    Decided March 23, 1973.

      Luis F. Abreu Elias, Rio Piedras, P. R., for appellant.
    James C. Hair, Jr., Atty., Dept, of Justice, with whom Harlington Wood, Jr., Asst. Atty. Gen., Julio Morales-Sanchez, U. S. Atty., Kathryn H. Baldwin, and Jean A. Staudt, Attys., Dept, of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

Appellant’s husband (hereinafter “claimant”) was recently found by the appellee to be entitled to disability insurance benefits under Section 223 of the Social Security Act, 42 U.S.C. § 423 (the “Act”). She now seeks, on his behalf, to recover benefits retroactively under a previous claim of his which had been denied. The Secretary has ruled, under his regulations, that reopening is time-barred; and the sole question is whether claimant’s alleged mental disability should relieve him of the time limitations in the regulations. The district court, reviewing the Secretary’s determination under § 205(g) of the Act, 42 U.S.C. § 405(g), affirmed the Secretary and dismissed the complaint. Without expressing any opinion on the merits of claimant’s contention, we remand to the Secretary for further proceedings.

On July 9, 1963, claimant applied for benefits, asserting disability from February, 1963, because of asthma. The original application and a requested reconsideration were both denied on the ground that he was insufficiently disabled. Although notified of his right to request a hearing, he pursued the matter no further.

Not until October of 1968 did he file another such application, resulting in the present proceedings. Besides asth-. ma, claimant this time asserted “nerves” as a disabling factor. His claim was first denied; but he requested and was granted, on October 14, 1969, a hearing before a Hearing Examiner. Appearing without counsel, he testified that he had not worked since February, 1963; that besides the asthma he could not sleep “even for one hour” and was always bursting into tears. The hearing was terminated when he began to weep. Doctors’ certificates and records of outpatient treatment at a Veterans Administration facility were received. Based on the October, 1968, application, the Examiner found him to be entitled to a period of disability commencing on February 28, 1963, and to disability benefits.

In December, 1969, claimant was sent a Certificate of Social Insurance Award showing entitlement to benefits as of October, 1967. He sought review by the Appeals Council of the Social Security Administration, asserting a right to recover benefits from February 28, 1963, and when this was denied, commenced an action in the district court.

The Secretary’s position, which correctly interprets § 223(b) of the Act and his own regulations, is that retroactive recovery under the 1968 claim is limited by § 223(b) to a period of one year before the filing of that claim. To the contention that the favorable second determination (finding a period of disability going back to early 1963) should be viewed as reopening the unsuccessful 1963 determination, the Secretary responds that the time limitations set forth in his regulations are a bar. The determination denying benefits under the 1963 claim became final in 1964. 20 C.F.R. 404.916. It could be reopened as of right only within one year, and for cause only within four years, after the date of the notice of the initial determination. 20 C.F.R. 404.957. Claimant’s second claim was filed more than four years after the date of such notice.

Claimant contends, however, that the time limitations for reopening should not apply to a mentally incapacitated person. The Secretary’s regulations make no exception for individuals who may be prevented from pursuing their rights by mental disability.

We are not now prepared to decide whether and when a person suffering from major mental disability may be entitled to relief from the four-year limitation. The Secretary’s regulations must be consistent with the Act, necessary or appropriate to carry out its provisions, and reasonable. 42 U.S.C. § 405(a). Statutes of limitations have “generally” exempted from their operation plaintiffs who are subject to legal disability such as insanity. Developments in the Law — Statutes of Limitations, 63 Harv.L.Rev. 1177, 1229 (1950). The policy, however, has not been uniform, and may depend upon the nature of the rights affected. The Secretary may be able to persuade us, even if this claimant could establish long-standing incompetency of requisite degree, that an exception therefor would be administratively unsound given the peculiar features and requirements of the Act. Yet, we think claimant’s contention cannot be rejected out of hand and without further consideration. Further weighing in his favor is the line of authority holding that one insured against accident or ill-health may be excused from giving notice and proof within the period stipulated in the policy if he is prevented from so doing by reason of his insanity or other mental condition rendering the giving of notice and proof impossible. Annot., 142 A.L.R. 852 (1943). See Couch on Insurance 2d § 32:42; J. A. Appleman, Insurance Law and Practice, § 11632 (1963).

While abstractly the question raised by claimant is not insubstantial, we are unable to resolve it on the record before us. No specific findings were made by the Secretary showing the effect, if any, of claimant’s mental condition from 1963 to 1968 on his ability to understand and pursue his remedies. As the district court correctly noted, the general finding of disability made on evidence of both asthma and nerves, tells us merely that he was occupationally disabled within the meaning of the Act; one may be so disabled and yet retain the awareness and mental capacity to understand and pursue one’s right. See Couch on Insurance, 2d § 32:42 at p. 257.

The district court undertook to remedy the silent record by reviewing the raw medical data and making its own determination — which was that the claimant had not been shown during the “critical period of 1963-67” to have been unable to comprehend rights which he was otherwise bound to know. In so doing, the court erred. A district court may not, under the Act, make findings of fact to supplement those of the Secretary. 42 U.S.C. § 405(g). See Snyder v. Ribicoff, 307 F.2d 518, 520 (4th Cir. 1962). Its function is to review the Secretary’s findings, which must stand if supported by substantial evidence and if not contrary to law. Where, as here, the Secretary did not receive evidence or make findings on a material issue, the remedy is to return to the Secretary.

Both the Secretary’s failure to make findings and the district court’s attempt to make its own are understandable given the novelty of the question. It is this very novelty, and the potential impact of a final resolution on the Secretary’s regulatory scheme, which leads us to withhold judgment on the ultimate legal issue until the facts are adequately developed. It may yet be, as the district court believed, that claimant will not be shown to have suffered from mental impairment so serious as even to present the difficult legal question of to what extent, if any, the Secretary’s regulations must be relaxed.

But we think the claimant must be given full opportunity to present the issue administratively. It must be remanded to the Secretary for a further hearing, at which evidence may be received, and findings made, on the extent of claimant’s mental impairment at relevant times in each of the years 1963-68, and on whether or not such impairment prevented the timely pursuit of his remedies. In light of such findings, the Secretary may render such conclusions as he believes appropriate on the issue of claimant’s right to reopen the 1963 claim. The Secretary’s findings and conclusions will be subject to further review in the district court at which time, if the findings and conclusions so necessitate, the broad issue of whether and to what extent claimant’s mental condition may entitle him to relief from the regulatory time limitations can be further considered.

The case is remanded to the district court, with directions to remand to the Secretary for further action consistent herewith.

      , On the issue of “nerves”, one physician certified to having rendered ambulatory psychiatric treatment to claimant as early as 1954 and 1955. A Veteran’s Administration physician, in 1966, noted insomnia, the hearing of voices, fits of depression and crying, and recommended hospitalization (which apparently never occurred). From May 27, 1969, to June 18, 1969, claimant was hospitalized at the Hato Rey Psychiatric Hospital. He was diagnosed by his physician as having “Anxiety reaction, chronic, severe, with marked depression and bronchial asthma” and by another physician (in 1969) as “Psychotic, depressive reaction, chronic, severe. . . . ”

      . They do, however, afford such a person a measure of protection by permitting an application for benefits to be made by another on his behalf. 20 C.F.R. 404.603 (e). The present court proceeding, we note, was instituted by claimant’s wife, whom he married in 1968. The 1963 claim was brought directly by claimant at a time when a divorce was pending between his first wife and himself.

      . In so defining the findings to be made, we should not be understood as precluding the Secretary from making any other findings of fact which he believes to be germane to the issue of reopening the 1963 claim.


author: TALBOT SMITH, District Judge.

text:
    UNITED STATES of America, Appellee, v. Harold Edward BURTON, Appellant.
    No. 72-1412.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 11, 1973.
    Decided March 19, 1973.

      Edward W. Mullen and Deacy & Deacy, Kansas City, Mo., for appellant.
    J. Whitfield Moody, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before MATTHES, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       Hon. Talbot Smith, Senior United States District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, District Judge.

The appellant before us was tried by jury and convicted of the offense of possession of firearm traveling in and affecting interstate commerce in violation of 18 U.S.C.A. App. § 1202(a)(1).

The facts of this ease are not in dispute. Briefly, what happened was that the appellant purchased a ticket at the Kansas City Municipal Air Terminal for Minneapolis. At the same time he checked two bags for the flight. The Braniff ticket agent became suspicious. Not only did the appellant fit what is called the “highjacker’s profile” but the weight distribution of one of his bags seemed unusual. Obtaining a skeleton key, the agent opened the bag and found therein a loaded .357 magnum Smith & Wesson revolver. The U. S. Marshal on duty at the terminal was notified and when the appellant presented himself for the flight he was taken into custody and the weapon and ammunition seized. The District Court’s exhaustive opinion, 351 F.Supp. 1372, sets out the facts in more detail.

Pre-trial motion was made for the suppression of the gun, its ammunition, and certain other evidentiary exhibits, on the ground that they were the products of an unlawful search. The denial of such motion, D.C., 341 F.Supp. 302, is one of the grounds for appeal.

In this aspect of the case it is appellant’s theory that the actions of the Braniff agent amounted, in legal effect, to an illegal search by an agent of the Government. “By virtue,” be asserts, “of the broad authorities and powers of the F.A.A. [Federal Aviation Administration] over air lines, the resultant searches, including the one in question here, are inextricably intertwined with Governmental action and the directives of the F.A.A. disseminated to the air lines as shown by the evidence.” The directives relied upon are not cited to us and our independent research has disclosed none warranting the conclusion asserted.

Appellant urges that Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), is applicable precedent. Corngold, however, involved a situation in which the carrier’s agent opened a package only because the government agent asked him to do so and, indeed, participated in the search. United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y.1971), also relied upon by appellant, is even more remote from our facts. There the search was conducted by Federal agents. Here the Braniff agent conducted the search entirely on his own, no government agent so requesting or even being involved in the matter until after the carrier’s agent discovered that appellant had delivered a loaded gun to the carrier for transportation. Gold v. United States, 378 F.2d 588 (9th Cir. 1967), is more in point, confirming the essentially private character of the carrier’s search. The issue of governmental search here is without merit.

Appellant also complains that the act violates his rights under the Fifth Amendment to the Constitution and Article 4, Section 2 thereof. He bases this argument, without case support, upon the theory that the act denies those purportedly subject to it of the equal protection of the laws, in that state laws differ in their punishments for prescribed offenses, an act possibly being a felony in one state, though only a misdemeanor in another. The argument lacks merit. We have held heretofore that the Congress had a rational basis for finding that the receipt, possession or transportation of a firearm by felons affected commerce. United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds; United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). See, also Cody v. United States, 460 F.2d 34 (8th Cir. 1972). In this situation, with an established nexus under the Commerce Clause, there is no requirement of national uniformity, Schneider v. United States, 459 F.2d 540 (8th Cir. 1972), citing Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 327, 37 S.Ct. 180, 61 L.Ed. 326 (1917). Currin v. Wallace, 306 U.S. 1, 14, 59 S.Ct. 379, 83 L.Ed. 441 (1939); Secretary of Agri. v. Cent. Roig Refining Co., 338 U.S. 604, 616, 70 S.Ct. 403, 94 L.Ed. 381 (1950). The Supreme Court has also approved, in a variety of contexts, the incorporation of state laws into federal statutes. Schneider v. United States, supra, and cases therein cited. These considerations dispose, as well, of appellant’s Article 4 argument, that the statute inhibits his right to travel from one state to another. The citizen’s right to travel is subordinate to the Congressional right to regulate interstate commerce when the travel involves the use of an interstate facility for illicit purposes. Hoke v. United States, 227 U.S. 308, 33 S.Ct. 281, 57 L.Ed. 523 (1913). We note, also, that the conviction here was on the basis of the use of an interstate facility, rather than concerning interstate travel as such. There is no question that Congress may proscribe the use of an interstate facility for illicit purposes. Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963); United States v. Gerhart, 275 F.Supp. 443 (S.D.W.Va.1967).

Finally, appellant complains of the indictment. The Count before us states:

COUNT 1

“That on or about the 11th day of January, 1972, at Kansas City, Missouri, in the Western District of Missouri, HAROLD EDWARD BURTON, having been previously convicted of a felony, an offense punishable by imprisonment exceeding one year, to wit, assault with intent to kill, in the Circuit Court of Jackson County, State of Missouri, did wilfully and knowingly possess and transport in interstate commerce from Kansas City, Missouri, to Minneapolis, Minnesota, a certain firearm, to wit: a loaded .357 magnum Smith & Wesson Revolver, Serial No. S-283727, all in violation of Title 18 Appendix, Section 1202(a)(1) United States Code.”

The appellant asserts that there was no evidence to support the transportation alleged, and also that preamble of the count reciting the Kansas City venue is contradictory to the charge made. It is well established, however, that an article delivered to a common carrier for shipment to another state is in interstate commerce from the time of its delivery to the carrier until it reaches the consignee. United States v. May, 419 F.2d 553 (8th Cir. 1969); United States v. Jones, 446 F.2d 48 (4th Cir. 1971). See, also, United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947). Such was the showing here and the jury was properly instructed thereon. We find no contradiction between the allegation in the indictment that the offense occurred at Kansas City and the allegation that appellant did possess and transport a firearm in interstate commerce. There was, moreover, no possibility that the appellant was misled in any way as to the charge brought against him by the indictment.

The conviction is affirmed.


author: PER CURIAM.

text:
    James EASTMAN, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
    No. 72-1412.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 4, 1972.
    Decided March 20, 1973.

      N. C. Syracopoulos, Akron, Ohio, for plaintiff-appellant; Cherpas, Manos & Syracopoulos, Akron, Ohio, on brief.
    Thomas G. Wilson, Atty., Dept, of Justice, Washington, D. C., for defendant-appellee; Harlington Wood, Jr., Asst. Atty. Gen., Frederick M. Coleman, U. S. Atty., Kathryn H. Baldwin, Atty., Dept, of Justice, Washington, D. C., on brief.
    Before PECK, Circuit Judge, and CECIL and O’SULLIVAN, Senior Circuit Judges.
   PER CURIAM.

This is an appeal from a summary judgment entered in the appellant’s action brought pursuant to Section 205(g) of the Social Security Act to review a decision of the Secretary of Health, Education and Welfare, in which the Secretary declined to reopen a claim for old age benefits. The facts concerning the appellant’s claim are fully reported in Eastman v. Celebrezze, 240 F.Supp. 142 (N. D.Ohio 1965), and Eastman v. Gardner, 373 F.2d 481 (6th Cir. 1967). Since the merits of the appellant’s claim are not directly relevant to this proceeding, it is sufficient to observe that this Court found in the prior litigation that substantial evidence supported the Secretary’s finding that the case presented a collusive family arrangement whereby “a paper facade of ‘wages’ ” was paid to the appellant which, in reality, was an indirect return to him of portions of rentals from his own property to permit him to obtain Social Security benefits.

In February of 1971, the appellant’s petition to reopen the case to present new material was denied on the grounds that the request was untimely since it was made more than four years from the date of the initial determination and because nothing could be found which would otherwise permit a reopening of the case. The appellant then sought a review of this determination in the District Court pursuant to 42 U.S.C. § 405(g). In his complaint, he alleged that the hearing examiner placed evidence in the record bearing on an issue which the parties agreed not to present in the prior litigation. The District Court held that regardless of what may or may not have been understood by the parties during the prior litigation up to and including the District Court level, the appellant certainly was aware that this issue was in this case when it was previously considered by this Court in 1967; accordingly, the Secretary’s motion for summary judgment was granted.

At the outset, we note that the threshold issue of whether or not the Secretary’s determination not to reopen a claimant’s application for benefits is subject to judicial review has recently been determined by this Court in Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972). In that case, which was decided subsequent to the briefing of this case, this Court held that the Secretary’s decision not to reopen a claim is subject to judicial review. Accord: Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); contra: Filice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963). Accordingly, the only issue for our determination is whether the refusal to reopen was an abuse of the Secretary’s discretion.

The appellant asserts that his case should be reopened for the presentation of new evidence. The regulations of the Secretary provide that a party may have his case reopened before the Secretary within one year from the date of the notice of the initial determination for the presentation of new evidence or within four years from that date if the claimant can show good cause for such a reopening. 20 C.F.R. 404.957(a) and (b). Since the claimant’s motion for reopening for good cause was filed almost ten years from the notice of the initial determination on March 16, 1961, the request was properly denied under this section. The appellant’s contention that the four year period ran from February 13, 1967, the date of this Court’s affirmance of the Secretary’s initial determination, is without merit, Pasquale v. Finch, 418 F.2d 627 (1st Cir. 1969). There is nothing in the facts of this case or in 20 C.F.R. § 404.957(b) which would justify a departure from the rule that the period of the statute of limitations begins to run from the date of the notice of the initial determination.

In the alternative, the appellant contends that he may reopen the case under 20 C.F.R. § 404.957(c) which provides that an initial determination may be reopened at any time when that determination was procured by fraud. The alleged acts of fraud by the Secretary include the general contention that the appellant was fraudulently prevented by the Secretary from presenting evidence on the issue of whether or not the money he received during the years in question constituted wages. This contention is based on the fact that the hearing examiner on April 5, 1963, set out three issues which were to constitute the case to be heard, the third of which was “whether and in what amounts such remuneration constituted ‘wages’ for employment.” The appellant now contends that the Examiner eliminated this issue from the case in his opening statement, and that he did not present evidence on this issue because he thought that the issue had been “dropped” or “removed.” H$ contends that the examiner inserted evidence into the record pertaining to this issue which he was not allowed to rebut. We cannot agree with this contention. The issue of whether the remuneration received by the appellant constituted wages could never have been removed from the proceeding because that issue was necessarily contained in the other two issues agreed to by the appellant. Those two issues were whether the appellant rendered services as an employee for his stepsons and whether the appellant received remuneration from his stepsons. The record shows that the third issue as expressed by the hearing examiner was not “removed,” but was recognized by all parties at the time as merely expressing the application of the statutory definitions to the two factual determinations to be made at the hearing.

In addition, even if the appellant and his counsel were under a misimpression in this regard at the time of the hearing, the record indicates that the appellant was fully aware that this issue was still in the case when the matter was before this Court on the previous appeal, where these contentions were not raised. In fact, the appellant conceded in the District Court that the issue of fact upon which he seeks to reopen his claim was encompassed within this Court’s previous ruling.

Since the appellant had an opportunity to raise the issue of fraud before this Court and did not do so, and failed to raise it for almost four years from the date of this Court’s decision and almost ten years from the date of the initial determination, we cannot say that the Secretary’s decision not to reopen the case for further determinations was an abuse of discretion.

The decision of the District Court is affirmed.


author: JOHN R. BROWN, Chief Judge:

text:
    Fred Arispe CRUZ et al., Plaintiffs-Appellants, v. W. B. (Bill) HAUCK, Sheriff of Bexar County and Jesse Dobbs, Chief Jailer, Bexar County Jail, Defendants-Appellees.
    No. 72-2878
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 8, 1973.
    Rehearing Denied April 24, 1973.

      Frances T. F. Cruz, Houston, Tex., for plaintiffs-appellants.
    Ted Butler, Cr. Dist. Atty., Lucien B. Campbell, Asst. Cr. Dist. Atty., Bexar County, Crawford Martin, Atty. Gen., Austin, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, 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.

   JOHN R. BROWN, Chief Judge:

This Section 1983 suit involves the constitutional propriety of restrictions on prisoners’ access to legal materials. Acting upon the clear mandate of the United States Supreme Court, Cruz v. Hauck, 1971, 404 U.S. 59, 92 S.Ct. 313, 30 L.Ed.2d 217, we previously remanded petitioners’ case to the District Court for reconsideration in light of the principles enunciated in Younger v. Gilmore, 1971, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142, affirming Gilmore v. Lynch, N.D.Calif., 1970, 319 F.Supp. 105.

On remand the District Court, 345 F.Supp. 189, adopted, over the objection of and without hearing from the petitioners, three broad-brush regulations offered by the Government. The petitioners strenuously object to the implementation of these regulations and urge that they will still serve to curtail petitioners’ rights to equal access to the courts.

Federal courts are not prison managers. Ordinarily we accord great deference to the internal administrative decisions of prison officials. Royal v. Clark, 5 Cir., 1971, 447 F.2d 501; Krist v. Smith, 5 Cir., 1971, 439 F.2d 146; Haggerty v. Wainwright, 5 Cir., 1970, 427 F.2d 1137; Granville v. Hunt, 5 Cir., 1969, 411 F.2d 9. But where, as here, a prisoner alleges that a particular restriction imposed upon him by the prison officials impinges upon his exercise of constitutionally guaranteed rights, it is incumbent upon us to carefully scrutinize the effect of the restrictions. Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Williams v. Wainwright, 5 Cir., 1972, 461 F.2d 1080; Campbell v. Beto, 5 Cir., 1972, 460 F.2d 765; Neal v. Georgia, 5 Cir., 1972, 469 F.2d 446 [1972], It is clear that ready access to the courts is one of, perhaps the, fundamental constitutional right.

While the petitioners here have no right to usurp the regulatory powers of the prison officials, they certainly have standing to interpose objections to the promulgation of rules which will stifle the exercise of their constitutional rights. The court below failed to address itself to the specific objections offered by petitioners to the new regulations.

Clearly it is not our function to formulate proper rules for the prisons. But in view of the fact that the trial court failed, as far as we can tell from the record, to confront the objections, we must reverse and remand for an evidentiary hearing to be followed by specific findings of fact and conclusions of law on the merits of petitioners’ objections and the Government’s justifications for the rules. In order to guide the trial court in its inquiry — and hopefully bring an end to this chronicle without need for further proceedings— we make several very general comments regarding the nature of petitioners’ claims.

Respondents’ first proposed rule prohibits the prisoners from possessing or using books with hard-bound covers. Two justifications are offered for this restriction: (i) the possibility that the hard-cover books could be used as weapons, and (ii) the fear that the importation of the books will be used as a method for smuggling contraband into the prison. Many common household items may be conceivably improvised for use as a weapon, e.g., a fork. But the possibility that a fork could be used as a weapon would not justify prison officials in forcing prisoners to eat with their fingers. “The prisoner is no longer regarded as a temporary ‘slave of the State’, and prison officials are not now such masters of their own domain as to be free of the restraints of constitutional reasonability.” Gilmore v. Lynch, supra 319 F.Supp. at 108.

The Government’s contention that items of contraband could be secreted within the covers of the book is seemingly answered by Seale v. Manson, D.Conn., 1971, 326 F.Supp. 1375, cited in the Government’s brief: “The inmate’s possession of reading materials may, of course, be preceded by a careful examination to detect contraband, and considerations of space, sanitation and orderliness may require certain limitations.” Id. at 1382.

Rules II and III should also be the subjects of the Court’s scrutiny on remand. They suggest that every prisoner will have access to legal materials —and thus, vicariously to the courts— via their attorneys. But this presupposes representation by counsel. Irrespective of the retention, appointment, or availability of counsel, it is clear that a prisoner’s free access to the Courts is a constitutional imperative. Younger v. Gilmore, supra; Johnson v. Avery, 1969, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. Indeed, the waning altruism of a public defender representing a client with an apparently frivolous appeal may not be used to limit the petitioner’s good faith prosecution of an appeal. See Lane v. Brown, 1963, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892; Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; Macon v. Lash, 7 Cir., 1972, 458 F.2d 942; Harders v. California, 9 Cir., 1967, 373 F.2d 839. Petitioners have alleged and offered to prove that by tying access to legal materials to the prisoner’s relationship with his attorney and the availability of materials from the Bexar County Law Library, Rules II and III will unreasonably impair their access to the Courts. We believe that they should be given the opportunity to make this proof.

While our disposition of this case requires further consideration by the district court, we re iterate that we do not deprive the prison officials of their prerogatives. Nor do we invest the prisoners with any special right to veto proposed prison regulations. All we hold is that prison regulations must not unreasonably invade the relationship of the prisoner to the courts, without some persuasive governmental justification.

Reversed and remanded.

      . The rules which were offered by the Government and accepted by the trial court are as follows:
      I
      That legal materials and law books are available to prisoners if they have their own material or if their attorneys supply said materials or if said treatises or texts are ordered from any publishing company by the United States mail; provided that said legal materials do not have hard-bound covers, and provided further that the storage and maintenance of said materials do not unreasonably restrict and limit floor or wall space dimensional of the jail cell block.
      II
      That whereas every prisoner in the Bexar County Jail has access to retain their court-appointed counsel and whereas every attorney has access to the Bexar County Law Library, it is proposed that every prisoner has and will have access to the Law Library through his attorney and may receive through his attorney any photostatic materials that he and his legal counsel deem necessary for the prisoner to seek his judicial remedies.
      Ill
      That the censors of the Bexar County Jail do not censor any correspondence between prisoners and their attorneys and based upon said premise such privileged communications including receipt of legal materials will be expedited through the use of the United States Mail.

      . For an example of how a fork may be used as a weapon see Perkins v. Mississippi, 5 Cir., 1972, 455 F.2d 7, 19 n. 18 (Brown, C. J., dissenting).


author: CRAVEN, Circuit Judge:

text:
    UNITED PHILIPPINE LINES, INC. as owner of the M/V PHILIPPINE PRESIDENT QUEZON, Appellee, v. The SUBMARINE USS DANIEL BOONE (SSBN629), her engines, apparel, etc., in rem, and the United States of America in personam, Appellants.
    No. 72-2083.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided March 21, 1973.
    Robert E. Kopp, Atty., United States Department of Justice (Harlington Wood, Jr., Asst. Atty. Gen., Brian P. Gettings, U. S. Atty., on brief), for appellants.
    R. Arthur Jett, Jr., Norfolk, Va. (Waverley L. Berkley, III, and Jett, Berkley, Furr & Heilig, Norfolk, Va., on brief), for appellee.
    Before CRAVEN, BUTZNER and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

Near high noon on a bright day, with visibility unlimited, the United States’ nuclear-powered submarine Daniel Boone (SSBN629) turned into collision course with M/V Philippine President Quezon. Immediately prior to collision, the submarine was proceeding at flank speed (15-16 knots) in usually congested waters (just out of Thimble Shoals Channel) and the Quezon was engaged in picking up a pilot off Cape Henry, Virginia, and was highly unmaneuverable. So found the district court, and his findings are not attacked on appeal. Rightly the district judge concluded that the negligence of the submarine was the sole cause of the collision.

Appellant United States presents us with only one issue: whether the United States in its actions below so far took the position of a private suitor as to waive any defense of sovereign immunity regardless of the reciprocity requirements of Section 5 of the Public Vessels Act, 46 U.S.C.A. § 785. We hold that the United States did waive its sovereign immunity and affirm the decision of the district court.

United Philippine Lines, Inc., the owner of the Quezon, began the litigation by filing suit in the district court. The suit filed by United Philippine Lines, Inc., a Philippine corporation, was against the USS Daniel Boone, in rem, and against the United States, in personam. Damages of $450,000.00 were sought. Jurisdiction was founded under the Public Vessels Act, 46 U.S.C. A. § 781 et seq., and alternatively under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq.

In its answer, the United States set up as a defense the lack of the reciprocity required by Section 5 of the Public Vessels Act, 46 U.S.C.A. § 785. Section 5 of the Public Vessels Act provides:

No suit may be brought under sections 781-790 of this title by a national of any foreign government unless it shall appear to the satisfaction of the court in which suit is brought that said government under similar circumstances, allows nationals of the United States to sue in its courts.

46 U.S.C.A. § 785 (1970).

After raising the reciprocity defense, however, the United States sought the joinder of the vessel M./V Philippine President Quezon as a defendant in rem. The government also filed a counterclaim reciting the collision, laying the liability therefor to the Quezon, and seeking damages of $600,000.00. To secure its counterclaim, the United States sought: the arrest of the Quezon, and if that vessel, itself, be not amenable to such attachment, then other property belonging to United Philippine Lines, Inc. be attached; that the claim of the plaintiff be dismissed; and, that judgment be entered for the United States.

The district court concluded that these actions by the United States constituted a waiver of sovereign immunity making it unnecessary to reach the question of reciprocity under Section 5 of the Public Vessels Act. We agree.

When the United States comes into an admiralty court and asks the “court to complete the adjudication of a cause which was rightfully begun in that jurisdiction, we think the government is bound by the submission .” United States v. The Steamer Nuestra Senora de Regla, 108 U.S. 92, 103, 2 S.Ct. 287, 293, 27 L.Ed. 662 (1883). By asking that justice be done with regard to a maritime collision, the United States becomes subject to the rule set forth in Luckenbach Steamship Co. v. The Thelka, 266 U.S. 328, 45 S.Ct. 112, 69 L.Ed. 313 (1924)

In The Thelka a libel was filed against the Thelka by the Luckenbach Steamship Company for damages to one of its ships caused by a collision with the Thelka. The ship of the Luckenbach Company involved in the collision was under requisition to and being used by the United States at the time of the collision. Upon its own motion the United States became a party to the pending suit and stood on the libel of the steamship company.

In upholding an affirmative judgment against the United States, the Supreme Court stated:

When the United States comes into court to assert a claim, it so far takes the position of a private suitor as to agree by implication that justice may be done with regard to the subject matter.
The reasons that have prevailed against creating a government liability in tort do not apply to a case like this, and, on the other hand, the reasons are strong for not obstructing the application of natural justice against the Government by technical formulas when justice can be done without endangering any public interest. As has been said in other cases, the question of damages to the colliding vessel necessarily arose, and it is reasonable for the Court to proceed to the determination of all the questions legitimately involved, even when it results in a judgment for damages against the United States. It is said that there is no statute by which the Government accepted this liability. It joined in the suit, and that carried with it the acceptance of whatever liability the courts may decide to be reasonably incident to that act.

266 U.S. at 339-341, 45 S.Ct. at 113.

The United States is in the same position here as it was in The Thelka. In seeking dismissal of the plaintiff’s claim, an affirmative judgment on its counterclaim, and the arrest of the Quezon, the government has so far taken the position of a private suitor as to waive its sovereign immunity. This results from the peculiar “relationship characteristic of claims for collision in admiralty but entirely absent in claims and cross-claims” in other civil cases.

In view of our holding that the United States has waived sovereign immunity we need not consider whether there is reciprocity sufficient to satisfy Section 5 of the Public Vessels Act. There was, however, strong evidence presented below that the Philippine courts provide United States nationals with the reciprocity required by that section.

Nor do we decide whether without a waiver and without reciprocity an action such as this may be brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq.

Accordingly, for the reasons stated, the decision of the district court is Affirmed.

      . Perhaps because, curiously, the Mate of the Quezon happened to photograph the approach of the submarine in 8 milimeter color film beginning 45 seconds before impact.

      . United States v. The Australia Star, 172 F.2d 472 (2d Cir. 1949), cert. denied, 338 U.S. 823, 70 S.Ct. 69, 94 L.Ed. 499 (1949).

      . United States v. Shaw, 309 U.S. 495, 502, 60 S.Ct. 659, 662, 81 L.Ed. 888 (1940).

      . 3 Moore’s Federal Practice ¶ 13.27 (2d ed. 1972).

      . Section 2 of the Suits in Admiralty Act, 46 U.S.C.A. § 742, as amended in 1960, would apparently allow such a suit if the section is given a literal interpretation. A literal interpretation of a statute waiving sovereign immunity is generally required. Gulf Oil Corp. v. Panama Canal Co., 407 F.2d 24, 28 (5th Cir. 1969).


author: DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alex HARDING, a/k/a Mark Harding, Defendant-Appellant.
    No. 72-1648.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 21, 1973.
    Decided March 16, 1973.
    Rehearing Denied April 6, 1973.

      William K. Hickey, First Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Edward H. Sherman, Sherman & Sherman, P. C., Denver, Colo., for defendant-appellant.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   DOYLE, Circuit Judge.

This is an appeal from a conviction by a jury on a charge of importation of obscene matter. The indictment which was returned on August 25, 1971, charged the defendant with the offense of knowingly and unlawfully taking and receiving from an express company one twelve pound carton containing 41 obscene books and five reels of obscene or filthy motion picture films which were then being transported in commerce from Los Angeles, California to Denver, Colorado, all in violation of 18 U.S.C. § 1462.

There is little evidentiary dispute in the case, and the main issues are first, whether a search by a private person violated the defendant’s Fourth Amendment rights and, secondly, whether the element of criminal intent was adequately submitted to the jury, and also whether the evidence was sufficient to establish the defendant’s knowledge of the nature and character of the obscene materials which were transported. We have examined the several points raised by the defendant, and we conclude that the appeal is lacking in merit and that the judgment must be affirmed.

The evidence established that on January 14, 1971, the Realher Corporation delivered a twelve pound carton to Emery Air Freight in Los Angeles, California, addressed to Ace Books, 3220 Wyandot Street, Denver. It was to have been sent COD and the charges amounted to $425.00. The bill had a request “Please call this number on arrival” and gave the telephone listing for Alex Harding, a/k/a Mark Harding. The address was 3220 Wyandot. The Emery agent became suspicious that the package which showed that it contained printed matter might, in view of the $425.00 in charges, be pornography and pursuant to permission granted in the CAB Tariff examined the same. Once it was discovered that the contents consisted of what were apparently obscene materials, the FBI was notified and an agent Phinney came out. He also inspected the contents. Phinney conducted a local investigation and ascertained that a Charles A. Keller had delivered the package for shipment. After the inspection had been made the package was resealed and shipped. It was received in Denver by the Emery Company from Continental Airlines and the consignee was notified of its arrival. Meanwhile, Emery had received several calls inquiring as to whether the package had arrived. On January 19 one Valeria Stewart, who did occasional work for the defendant, according to her testimony, went to pick up the package at his instruction. The defendant had given her the money to pay for the COD. She made the trip to Emery in defendant’s automobile. When Valeria Stewart sought to pick up the package the officers who were waiting for her intercepted her effort and thereupon she, together with the package, proceeded to U. S. District Court for a hearing.

An order to show cause as to why the described package should not be delivered to the government as evidence had been issued in a separate civil proceeding. The initial ex parte order was based on an affidavit submitted by the FBI agent who had made the initial inspection in Los Angeles. A hearing was not held on the day in question. A postponement was granted at the request of the attorney who appeared. At the hearing the contention was raised that the search was unlawful; however, it was ordered that the package and contents be delivered to the government.

At the subsequent trial in May 1972, the defendant, together with his attorney, entered into a stipulation that the materials in the carton were obscene. The guilty verdict was entered on May 24, 1972.

I.

SUFFICIENCY OF THE INDICTMENT

We see no merit whatsoever in the defendant’s contention that the indictment was inadequate. This was a detailed statement of the offense charged which contained all of the elements required by 18 U.S.C. § 1462. This section prohibits knowingly taking from an express company or other common carrier “any matter or thing the carriage of which is herein made unlawful.” The statute refers to obscene, lewd, lascivious or filthy book, pamphlet, picture, motion picture film, etc. The indictment charges that the defendant did knowingly and unlawfully take and receive from an express company or a common carrier “one twelve pound carton containing 41 obscene, lewd, lascivious, or filthy books, pamphlets, or pictures, to wit. . . .” The indictment then describes in detail the material in question and continues “which were then being transported and carried in interstate commerce from Los Angeles, California to Denver, Colorado, all in violation of Title 18, United States Code, Sections 1462 and 2.”

Defendant maintains that the indictment does not aver that the defendant had knowledge that the carton contained material that was of obscene character. We disagree. The words “knowingly” and “unlawfully” refer to and modify the words describing the nature and character of the material, and so it clearly requires that the defendant know the nature of the contents. Moreover, the evidence establishing this knowledge was quite adequate. The testimony of Valeria Stewart and the circumstances as a whole were amply sufficient to convince the trier of the facts and the jury that the defendant was the individual involved. Ordinarily an indictment which follows the statute and sets forth the elements contained therein is sufficient to apprise the accused of the nature of the charge and to allow him to plead and defend. This is all that is needed. See United States v. Kimball, 441 F.2d 505, 507 (10th Cir. 1971). See also Mims v. United States, 332 F.2d 944 (10th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 158, 13 L.Ed.2d 92 (1964).

II.

WHETHER THERE WAS INVALIDITY IN CONNECTION WITH THE SEIZURE OF THE MATERIALS BY THE GOVERNMENT

Defendant contends that there was no lawful authority for the procedure used; that the search was illegal and that the obscene matter was seized without prior adversary hearing on obscenity. There is no showing whatever that the employees of Emery were working in conjunction with the FBI. Moreover, Emery had a valid interest in checking the contents of the package and so this particular search was not carried out pursuant to any direction by the government.

A search and seizure by a private person not acting in collusion with federal officers does not render the subsequently seized material inadmissible in evidence. 5 Orfield, Criminal Procedure under the Federal Rules § 41:25, at 709-10. For a discussion of the admissibility in criminal cases of evidence obtained by searches by private individuals, see 36 A.L.R.3d 553 (1971). See Burdeau v. McDowell, 256 U.S. 465, 474, 41 S.Ct. 574, 65 L.Ed. 1048 (1921), an early Supreme Court decision wherein business associates of the accused actually stole certain incriminating documents. Notwithstanding the theft aspect, a majority of the Supreme Court held that it was valid for the government to introduce this illegally obtained evidence. Other decisions have gone a long way, perhaps too far, in allowing the government to use evidence obtained by private individuals. Thus, in Cohen v. United States, 36 F.2d 461, 462 (3rd Cir. 1929), cert. denied, 281 U.S. 742, 50 S.Ct. 348, 74 L.Ed. 1156 (1930), it was held that notwithstanding the existence of an illegal search and seizure, the testimony of a stranger entering the premises during the search at the invitation of the occupant was admissible.

In United States v. Ashby, 245 F.2d 684, 686 (5th Cir. 1957), joint income tax returns voluntarily turned over by a wife were admitted over the objection of the husband, the spouses being separated. See United States v. Winfree, 170 F.Supp. 659 (E.D.Pa.1959).

In United States v. Goldberg, 330 F.2d 30 (3rd Cir. 1964), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964), documents and records of a corporation of which the taxpayer was president were taken without his knowledge by former employees, but were nevertheless held to be admissible.

It has been argued that Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) has generally condemned receipt of tainted evidence and has thus undermined the authority of the cases holding that evidence obtained by private persons is admissible. However, the tendencies have been to narrowly construe Elkins and to limit its effect to seizures by state officers.

Appellant places reliance on Corngold v. United States, 367 F.2d 1 (9th Cir. 1966). It is true that in the Corngold case the airline transportation agent participated in the search and was advancing the interests of his employer in doing so. The court held that the evidence was inadmissible, but carefully pointed out that the search was a joint operation of the customs agent and the TWA employee. The court said:

When a federal agent participates in such a joint endeavor, “the effect is the same as though he had engaged in the undertaking as one exclusively his own.” Byars v. United States, supra, 273 U.S. 28, at 33, 47 S.Ct. 248 at 250, 71 L.Ed. 520.

367 F.2d at 6 (footnote omitted). The court went on to quote Justice Frankfurter in Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949) as follows:

[A] search is a search by a federal official if he had a hand in it x- -x- The decisive factor in determining the applicability of the Byars case is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means.

367 F.2d at 6.

No such federal participation, direct or indirect, in the initial search is present in our case. Consequently, the initial search was a private one and therefore there is no room for a claim that the evidence here was inadmissible. It is true that following the encounter with Mrs. Stewart at the airport the officers had a practical control over the material. At that point, however, the court had issued its initial orders, and there was probable cause growing out of the search in Los Angeles for the issuance of the search warrant and the order to show cause. The officers promptly caused the carton to be taken before the United States District Court Judge and an adversary hearing followed. After hearing the evidence that judge made extensive findings and conclusions that the material was obscene.

While it is true that expert testimony was not presented, the judge did not believe that this was necessary. He concluded that the material spoke for itself. We see no merit in the defendant’s contentions as to the manner of obtaining possession of the material and validity of the procedure followed.

III.

WHETHER THE DEFENDANT CAN REPUDIATE THE STIPULATION

Defendant joined in a written stipulation that the material in question was obscene. He now raises a question as to whether this was proper, arguing that the issue is one of law. Undoubtedly the defendant so stipulated in order to avoid submission of the material to the jury. He wished to avoid the prejudice which would flow from the jury’s examination of the written and pictorial material which was described by the trial judge as hard core. To allow the defendant to reconsider this stipulation on appeal would be indeed bad practice, for his decision to enter into the stipulation and avoid the public prejudice was undoubtedly a considered judgment. To allow him to change his mind following a verdict of guilty would be unjust to the government.

It is not accurate to say that the question is a matter of pure law. It is true that the judge must consider whether the constitutional issues enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) are satisfied. Thereafter, however, the question is one of fact for the jury. It is also clear that stipulations of fact made by the government and the defendant are binding. See Spillman v. United States, 413 F.2d 527 (9 Cir.), cert. denied, 396 U.S. 930, 90 S.Ct. 265, 24 L.Ed.2d 228 (1969) (“The appellant cannot stipulate to obscenity in order to avoid having the jury view the films and then claim they are not really obscene within the definition or meaning of the statute.”); United States v. Rodriguez, 241 F.2d 463 (7th Cir. 1957) (A stipulation pertained to identity of the substance as marijuana and eliminated the necessity of evidence.); cf. Tomlinson v. Lefkowitz, 334 F.2d 262 (5 Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965).

We are convinced that the defendant is bound by the stipulation which he entered.

IV.

The final point is whether the court erred in ruling that the government could, if the defendant testified in his own defense, ask him whether he had been convicted of a morals charge in 1953. As we view it, this matter rested in the sound discretion of the trial court. There was no apparent abuse of discretion.

We have examined carefully the defendant’s points and authorities and are of the opinion that the judgment must be affirmed.

      . Secondary questions involve legality of a stipulation as to obscenity and possible error in ruling that a prior conviction could be shown.