source: Caselaw Access Project

author: TALBOT SMITH, Senior District Judge.

license: Public Domain

text:
    MID-AMERICA TRANSPORTATION COMPANY, INC., Appellant, v. NATIONAL MARINE SERVICE, INC., and M/V NATIONAL PROGRESS, Her Engines, Boilers, etc., Appellees.
    No. 73-1347.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 10, 1973.
    Decided June 12, 1974.
    Rehearing and Rehearing En Banc Denied July 10, 1974.

      Joseph A. Murphy, St. Louis, Mo., for appellant.
    James W. Herron, St. Louis, Mo., for appellees.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

Mid-America Transportation Company, Inc. invoked the admiralty and maritime jurisdiction of the district court, pursuant to Fed.R.Civ.P. 9(h), to recover for damage to its barge MAT-75, and the cargo carried therein, allegedly caused while in the tow of the M/V National Progress, a tug owned by National Marine Service, Inc., en route from St. Paul, Minnesota to St. Louis, Missouri on the Mississippi River. The court found for National Marine Service, and Mid-America appeals from the judgment entered. For convenience we will hereinafter refer to the barge owner as the plaintiff or the “barge,” and to the appellees, both the Motor Vessel National Progress and its owner and operator National Marine Service, Inc. (the interests of which are identical), jointly as the defendant or the “tug.”

On September 25, 1970 the fully loaded MAT-75 was placed in the tow with eight other barges of the M/V National Progress at St. Paul, Minnesota. The barge was in level trim, drawing nine feet, and remained so until the early morning hours of September 30. At midnight September 29, when the tug and its tow were just upstream of Lock 19 on the Mississippi, all was normal; the Captain went off duty and turned the helm over to Pilot Crawford. One or one and a half hours later (some four or five miles downstream) Captain Self was alerted that the MAT-75 was taking water. It had taken so much water, in fact, that one of its buoyancy tanks was filled to the level of the river and its stern was awash whenever the tow moved forward. From this evidence, and that of the damage to the hull, the trial court inferred that a grounding had occurred. No evidence was introduced, however, to show that specific acts of negligence had caused the grounding, or that it occurred out of the channel or on a known obstruction.

The defendant’s principal witness was Captain Self, who was in his cabin at the time in question and could offer no testimony as to the time, place or cause of the grounding. He speculated that a rock from a dike may have been pulled into the channel by the current and struck by the barge, but he admitted that the channel was sought to be maintained by the Corps of Engineers at a minimum depth of twelve feet. No unusual conditions of current, wind or weather were shown to exist at the general time and place of the occurrence. Captain Self was the only member of the tug’s crew to testify at trial.

The crew of the National Progress attempted to pump out the barge, but by morning they had made no headway on the water level with their small pumps; the tug’s salvage crew was called and by 7:00 P.M. September 30 the buoyancy tanks had been pumped and repaired, and the downriver journey continued. The MAT-75 was delivered to the Universal Barge Company in St. Louis at 5:30 A.M. October 2; insubstantial amounts of water were then in the buoyancy tanks. On October 5, however, a salvage crew hired by the barge pumped five feet of water out of one buoyancy tank, three feet out of another, and made further repairs. The grain was removed October 9 and transferred to another barge; two conical columns of wet grain were left standing in the cargo hopper. These extended from the floor of the hopper to deck level. Wet grain also covered the aft floor of the hopper, inclining toward the stern.

The trial court concluded that the MAT-75 was grounded and damaged while in the tow of the National Progress some time between midnight on September 29, 1970, and 1:00 A.M. to 1:30 A.M. on September 30. But the court was “unable to determine the object on which the barge was grounded, [or] the specific time and the location of the grounding.” In addition the court further found that it was “unable to determine either the cause or source of the water which damaged the grain or the time at which such damage occurred,” and, consequently, “that plaintiff has not proven that the damage to the grain * * * was caused by” the negligence of the tug. The opinion of the trial court is reported at 356 F.Supp. 1358 (E.D.Mo.1973).

We will consider separately the damage to the barge and that to the grain. With respect to liability for damage to the barge the case is mi generis. The testimony does not disclose where, when, or how the barge grounded. In this situation the plaintiff-barge relies heavily on an asserted presumption, namely, that from the grounding of the barge while in tow “a presumption of negligence arose on the part of the Defendant.” The defendant-tug, on the other hand, asserts that “[n]o presumption of negligence arose from proof that the [b]arge * * * struck a submerged object or ‘grounded’ while in * * * tow * * *.” No proofs of specific negligence on the part of the tug were made by the barge; and the trial court, rejecting the argued “presumption of negligence” on the part of the tug, and finding as well that the tug was not under a duty, in the circumstances presented, to “explain away any presumption of negligence on its part,” held for the defendant on the issue of liability for damage to the barge. After careful review of the record we conclude that the court’s finding, that there was not sufficient evidence that the circumstances surrounding the grounding required the tug to explain the grounding, was clearly erroneous. We reverse on this issue.

The law concerning contracts of towage has been settled in an abundance of eases. The tug, neither an insurer nor a common carrier, is under a duty to exercise the reasonable care and maritime skill that prudent navigators employ in performing similar services, and the burden of proving negligence is on the party that asserts it. Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 76 L.Ed. 699 (1932); Hart v. Blakemore, 410 F.2d 218 (5th Cir. 1969).

With respect to the grounding cases, the position of the grounded vessel at time of striking is, without more, of paramount importance. If she is outside the channel she has left it at her peril, and her grounding will not be excused on the argument that, possibly, her obstruction was unknown. If she is inside the channel and strikes an unknown obstruction it is equally settled that she is not presumed to be negligent but, per contra, if the object in the channel be known, and nevertheless struck, her negligence may be presumed.

The tug concedes as much. It contends, however, that “a presumption of negligence arises only if the evidence shows: (1) The grounding occurred outside the channel, or (2) occurred on a known obstruction in the channel.” It argues that “[ajbsent such proof, the mere fact of grounding gives rise to no presumption.”

What is overlooked here is that the circumstances presented may be such as to require the tug to show a reasonable explanation for the accident. The rule was expressed at least as early as in The Steamer Webb, 81 U.S. (14 Wall.) 406, 20 L.Ed. 774 (1871). The Shooting Star was under tow from Portsmouth, New Hampshire to New York City and went aground in a fog 31/3 miles south of the proper course. The Court held:

The burden is always upon [the plaintiff] to show * * * that there has been negligence * * *. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. * * * But there may be cases in which the result is a safe criterion by which to judge of the character of the act which has caused it. Had the ship in this ease been towed upon a shoal ten miles [off-course], it cannot be doubted that the fact of the stranding at such a place, would, in the absence of explanation, be almost conclusive evidence of unskilfulness or carelessness in the navigation of the tug. * * * At least [it] would be sufficient to cast upon the claimants of the tug the burden of establishing some excuse * * *
In the present case the departure from the true course was not so great, but it was enough to devolve upon the tug the duty of explanation.

81 U.S. at 414.

The same thought i. e., the duty of coming forward with explanation, has found expression in many cases, but in none perhaps more clearly than in Bisso v. Waterways Transportation Co., 235 F.2d 741 (5th Cir. 1956), wherein it was held as follows:

This brought into play the sensible rule that, even though the engagement is in contract so that the duty of the tug toward the tow is that of due care only, with the consequent burden on the tow of establishing negligence [citing cases], a stranding which occurs under circumstances which ordinarily results in no such casualty puts on the tug the obligation of some satisfactory explanation. “When an accident occurs to the tow the action is ex delicto and the burden is on the tow to show negligence on the part of the tug. However, circumstances may create a strong presumption of negligence. In that event the burden is on the tug to rebut the prima facie case or, at least, to show a reasonable excuse for the accident other than its own negligence.”

235 F.2d at 744.

In the situation before us we have a tug, with the tow, routinely proceeding down a depth-maintained channel in the Mississippi river until a short time before evidence of grounding appeared. We take judicial notice of the fact that this channel is navigated daily in complete safety by many vessels. The Captain of a tug, this or other, is under a continuing duty to know where his vessel is at all times, and he, or those under him, are (or should be) in possession of all other pertinent facts relating to the voyage. Under these eircumstances, not present in Soriano or other like cases relied upon by the tug, upon proof of grounding it is the duty of the tug to come forward to establish that she was in the channel and did not hit a known obstruction therein or to furnish other exculpatory explanation (e. g., act of God) for the grounding. In so holding we do no violence to Stevens v. The White City, supra. The burden of proof has not shifted, but the tug is charged with the duty of producing evidence that her fault did not cause the grounding. In so apportioning the burden we chart no new course. “It is often a controlling factor,” as Judge Learned Hand put it, “in deciding where to throw the burden of producing evidence — and obviously it ought to be— that the proper party to charge is he who alone could discover the truth.”

On the facts before us we think the tug has not discharged its duty to produce evidence. Because the matter is one of first impression in this circuit, however, we will not direct entry of judgment for the plaintiff-barge. There will be further proceedings at which the tug will be given an opportunity (subject to rebuttal by the barge) to carry such burden. If it fails to do so, the District Court may draw an inference of fact unfavorable to it. On the other hand, if the tug does come forward with evidence sufficient to cast doubt upon the validity of the inference arising from the facts, the barge will not have sustained the burden of ultimate persuasion resting upon it from the start.

In addition to the damage to the barge, some 221,000 pounds of the grain cargo were found to have been damaged by moisture. It is the principal claim of the plaintiff-barge that this damage was caused by careless placement of pumps used in pumping out the water taken aboard due to the grounding, in that the pumps were so placed as to discharge directly onto the hatch covers, from whence the water entered the cargo compartment. The conical shape of damaged grain supported in part this theory, as well as the hearsay (though properly rejected) statement of one Goskie, a member of the tug’s salvage crew. The tug, on the other hand, presented eye-witness testimony that its pumps were so placed that, rather than discharging onto the hatch covers, they actually discharged over the side. Also, with respect to the circumstantial nature of the conical shape of the damaged grain, evidence was presented that in the interval after the barge had left the tow of defendant’s vessel it had had substantial pumping by the D. J. Marine Service, hired by plaintiff for such purpose. In addition to the circumstantial and eye-witness testimony, both sides employed the testimony of marine surveyors who, in general, utilizing as well the position of other water-damaged grain, presented their respective theories. It would serve no precedential or other purpose to point out the various conflicts in the evidence, or the various inferences that might be drawn therefrom. The District Judge, after hearing and considering the evidence, concluded that the plaintiff had not carried its burden of proof, that “Due to the lack of competent evidence the Court is unable to determine either the cause or source of the water which damaged the grain or the time when such damage occurred.” We agree,

For the reasons indicated the judgment of the District Court with respect to the issue of liability for damage to the barge MAT-75 is reversed and the case remanded for further proceedings consistent herewith. The judgment with respect to grain damage is affirmed.

      . Fed.R.Civ.P. 52(a); McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Mid-America Transp. Co. v. Rose Barge Line, Inc., 477 F.2d 914 (8th Cir. 1973).

      . The Steamer Webb, 81 U.S. (14 Wall.) 406, 20 L.Ed. 774 (1871); The Arlington, 19 F.2d 285 (2nd Cir. 1927); see Humble Oil & Ref. Co. v. Tug Crochet, 422 F.2d 602 (5th Cir. 1970); Bisso v. Waterways Transp. Co., 235 F.2d 741 (5th Cir. 1956); The Anaconda, 164 F.2d 224 (4th Cir. 1947); Mid-America Transp. Co. v. Rose Barge Lines, Inc., 347 F.Supp. 566 (E.D.Mo.1972) (%rds out of channel).

      . The Pierrepont, 42 F. 687 (N.D.N.Y.1890).

      . Gypsum Packet Co. v. Horton, 68 F. 931 (S.D.N.Y.1895) (dictum).

      . E.g., The Anaconda, 164 F.2d 224, 228 (4th Cir. 1947); The Evelyn v. Gregory, 170 F.2d 899, 901 (4th Cir. 1948); Humble Oil & Refining Co. v. Tug Crochet, 422 F.2d 602, 606 (5th Cir. 1970).

      . United States v. Soriano, 366 F.2d 699 (9th Cir. 1966).

      . The burden of proof in a litigation, wherever the law has placed it, does not shift with the evidence, and in determining whether petitioner has sustained the burden the question often is, as in this case, what inferences of fact he may summon to his aid. In answering it in this, as in others where breach of duty is the issue, the law takes into account the relative opportunity of the parties to know the fact in issue and to account for the loss which it is alleged is due to the breach. Since the bailee in general is in a better position than the bailor to know the cause of the loss and to show that it was one not involving the bailee’s liability, the law lays on him the duty to come forward with the information available to him. [citing cases] If the bailee fails it leaves the trier of fact free to draw an inference unfavorable to him upon the bailor’s establishing the unexplained failure to deliver the goods safely, [citing cases]
      Whether we label this permissible inference with the equivocal term “presumption” or consider merely that it is a rational inference from the facts proven, it does no more than require the bailee, if he would avoid the inference, to go forward with evidence sufficient to persuade that the non-existence of the fact, which would otherwise be inferred, is as probable as its existence. It does not cause the burden of proof to shift, and if the bailee does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start, [citing cases]
      Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 110-111, 62 S.Ct. 156, 161, 86 L.Ed. 89 (1941).
      Although the above was held with respect to a bailment situation, the principle therein enunciated is not so narrowly confined. See 9 J. Wigmore, On Evidence §§ 2487-89 (3rd ed. 1940) and cases therein cited.

      . Sternberg Dredging Co. v. Moran Towing & Transp. Co., 196 F.2d 1002, 1006 (2nd Cir. 1952).


author: FERGUSON, District Judge: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernest Raymond BASURTO et al., Defendants-Appellants.
    Nos. 72-2781, 72-2612, 72-2679.
    United States Court of Appeals, Ninth Circuit.
    May 10, 1974.
    Rehearing Denied July 19, 1974.

      Mickey L. Clifton (argued), Phoenix, Ariz., for defendants-appellants in 72-2781.

      David S. Hoffman, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee in all three cases.
    John J. Flynn (argued), Michael D. Kimerer, Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for defendant-appellant in 72-2679.
    Ronald W. Sommer (argued), Tucson, Ariz., for defendant-appellant in 72-2612.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and FERGUSON, District Judge.

       Honorable Warren J. Ferguson, United States District Judge, Central District of California, sitting by designation.

   FERGUSON, District Judge:

Appellants and 14 others were charged in a one-count indictment with conspiring to import and distribute marijuana, in violation of 21 U.S.C. §§ 176a, 841 and 952. The conspiracy was alleged to have'occurred between February 1, 1971 and December 4, 1971, and to have involved smuggling marijuana from Mexico into the United States by airplane. Following the denial of motions to suppress evidence and to dismiss the indictment, appellants were convicted of the charged offense after a jury trial. We reverse.

The issues presented by these appeals include: (1) the duty of the prosecuting attorney following pre-trial disclosure of perjury before the grand jury; (2) the nature of “exigent circumstances” which will make the warrantless search of a home constitutionally permissible; (3) the applicability of the “harmless error” rule set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); (4) the search of a wallet; and (5) the sufficiency of the evidence to sustain a conviction.

Perjury By A Witness Before The Grand Jury

William Barron was named in the indictment as a co-conspirator but not a defendant. He testified as to appellants’ activities in the conspiracy before the grand jury which brought the indictment. Prior to the commencement of trial, Barron informed the Assistant United States Attorney prosecuting the case that he had committed perjury before the grand jury in important respects. In particular, he told the prosecutor that all his grand jury testimony relating to his knowledge of appellants’ activites in the conspiracy prior to May 1, 1971, was untrue. That date is significant, because effective then 21 U.S.C. § 176a was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. 91-513, 84 Stat. 1236, 21 U.S.C. § 801 et seq., Persons convicted of narcotics offenses under 21 U.S.C. § 176a were subject to a mandatory minimum sentence of five years, while those convicted .under the new statute were not subject to such inflexible sentencing.

The only witness other than Barron to testify before the grand jury as to appellants’ activities in connection with the conspiracy prior to May 1, 1971, was Thomas Waddill, a Customs agent. Both Barron’s and Waddill’s testimony was unrecorded. The parties dispute whether Agent Waddill, at the time of his grand jury appearance, had any knowledge of appellants’ activities prior to May 1, 1971, other than what Barron had told Waddill.

Upon learning of Barron’s perjured grand jury testimony, the prosecuting attorney informed opposing counsel. He did not, however, notify the court or the grand jury. In his opening statement at trial, he made reference to Barron’s perjury before the grand jury, but sought to minimize its scope and importance:

“Mr. Barron did testify at the Grand Jury, but part of his testimony was a lie. Mr. Barron will take the stand and tell you that today, or excuse me, when he takes the stand. He will tell you he lied about where he met Buddy Wilson, Buddy Waggoner, the man seated here in the brown suit. He will tell you that the reason he told this lie is he was protecting a friend of his in Seattle, Washington. He will tell you that other than minute details which he has since recalled, such as a change in a date or a change in possibly who was present at exactly a particular moment, other than those details this is the only material lie that he told before the Grand Jury, but it was a lie. He will tell you that when he takes the stand in this trial he will tell the truth.”

The conduct of the prosecutor in this case reinforces the expression by Professor Moore that, over the years, the government prosecutor has gained substantial influence over the grand jury, and subsequently that institution has lost much of its former independence. See 8 J. Moore, Federal Practice, ¶[6.02[1].

The Fifth Amendment provides that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The purpose of that requirement is to limit a person’s jeopardy to offenses charged by a group of his fellow citizens acting independently of either the prosecutor or the judge. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).

It is clear, however, that when a duly constituted grand jury returns an indictment valid on its face, no independent inquiry may be made to determine the kind of evidence considered by the grand jury in making its decision. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956). To do so would further invade the independence of the grand jury. The holding reached by this court does not affect that established rule.

Today, the grand jury relies upon the prosecutor to initiate and prepare criminal cases and investigate which come before it. The prosecutor is present while the grand jury hears testimony; he calls and questions the witnesses and draws the indictment. With that great power and authority there is a correlative duty, and that is not to permit a person to stand trial when he knows that perjury permeates the indictment.

At the point at which he learned of the perjury before the grand jury, the prosecuting attorney was under a duty to notify the court and the grand jury, to correct the cancer of justice that had become apparent to him. To permit the appellants to stand trial when the prosecutor knew of the perjury before the grand jury only allowed the cancer to grow.

As we have noted above, the perjury before the grand jury was material because of the change in the law; all of Barron’s grand jury testimony relating to the appellants’ activities before May 1, 1971 was perjured. The grand jury, if it returned an indictment, might have done so under the Comprehensive Drug Abuse Prevention and Control Act of 1970, supra, had it known of the perjury.

We also note that jeopardy had not attached at the time the prosecutor learned of the perjured testimony, nor had the statute of limitations for the offenses charged run. Under Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066 35 L.Ed.2d 425 (1973), if the prosecutor had brought the perjury to the court’s attention before the trial commenced and the indictments had been dismissed, the Double Jeopardy Clause of the Fifth Amendment would not have barred trial under a new indictment.

We hold that the Due Process Clause of the Fifth Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and when jeopardy has not attached. Whenever the prosecutor learns of any perjury committed before the grand jury, he is under a duty to immediately inform the court and opposing counsel — and, if the perjury may be material, also the grand jury —in order that appropriate action may be taken.

We base our decision on a long line of cases which recognize the existence of a duty of good faith on the part of the prosecutor with respect to the court, the grand jury, and the defendant. While the facts of these cases may not exactly parallel those of the instant case, we hold that their rulings regarding the consequences of a violation or abuse of this prosecutorial duty must be applied where the prosecutor has knowledge that testimony before the grand jury was perjured. See Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Hysler v. Florida, 315 U.S. 411, 62 S.Ct. 688, 86 L.Ed. 392 (1942); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942).

In Napue v. Illinois, supra, the Supreme Court reaffirmed the principle stated in many of its prior decisions that

“a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment, [citations]. The same result obtains when the State, although not soliciting false evidence, allows it to go uncorreeted when it appears. [Citations.]” .360 U.S. at 269.

The Court reiterated “[t]he principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty . ” Id. See Giles v. Maryland, supra, at 74.

The Court held in Napue that the prosecution’s use of known false testimony at trial required a reversal of the petitioner’s conviction. The same result must obtain when the government allows a defendant to stand trial on an indictment which it knows to be based in part upon perjured testimony. The consequences to the defendant of perjured testimony given before the grand jury are no less severe than those of perjured testimony given at trial, and in fact may be more severe. The defendant has no effective means of cross-examining or rebutting perjured testimony given before the grand jury, as he might in court.

In Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956), while a review of the petitioners’ convictions was pending in the Supreme Court, the Solicitor General informed the Court of indications he had just received that one of the government’s witnesses at trial had testified falsely in other proceedings. While the government believed that the witness’ testimony at trial “was entirely truthful and credible,” it suggested a remand to the district court for a determination of the credibility of the witness’ testimony. Solely on the basis of the government’s representations, the Supreme Court reversed the convictions and directed that petitioners be granted a new trial. The Court stated, inter alia, that

“Mazzei [the witness], by his testimony, has poisoned the water in this reservoir, and the reservoir cannot be cleansed without first draining it of all impurity. . . . Pollution having taken place here, the condition should be remedied at the earliest opportunity.
“ ‘The untainted administration of justice is certainly one of the most cherished aspects of our institutions. Its observance is one of our proudest boasts. . . . [F]astidious regard for the honor of the administration of justice requires the Court to make certain that the doing of justice be made so manifest that only irrational or perverse claims of its disregard can be asserted.’ Communist Party v. Subversive Activities Control Board, 351 U.S. 115, 124, 76 S.Ct. 663, 668 [100 L.Ed. 1003].”

352 U.S. at 14.

Permitting a defendant to stand trial on an indictment which the government knows is based on perjured testimony cannot comport with this “fastidious regard for the honor of the administration of justice.”

Because the prosecuting attorney did not take appropriate action to cure the indictment upon discovery of the perjured grand jury testimony, we reverse appellants’ convictions.

While this ground alone requires reversal of the convictions, other issues raised on appeal are sufficiently important to merit consideration.

Search of Basurto’s Home Following his Arrest

Appellant Basurto was arrested in front of his home by two Customs agents. After he was placed under arrest, Basurto turned toward the house and yelled, “It’s the police.” Immediately, Agent Waddill, who did not have a search warrant, ran to the front door, opened it and entered the house. He testified that he entered the house to see if anyone was inside, and to see if anyone inside had any weapons. The purpose of the entry, according to Agent WaddilPs testimony, was to protect himself, his fellow agent, and Basurto. At the time of the intrusion, Agent Waddill knew that Basurto had been in possession of a weapon during November or December of 1970 while trying to board an airplane at Tucson International Airport.

Upon entering the house, the agent observed someone in the living room. A search of that person and of the room revealed no weapons. Agent Waddill testified that he observed some papers lying on a table in an adjoining kitchen with the figures “1,000 lbs.” and “$30,000” on them, which he seized. He then searched other rooms in the house, seizing other items of evidence but finding no one else present.

The record indicates that while being transported to the county jail, Basurto was advised of his rights and was shown the papers seized from the kitchen table, and that he then made statements about various persons involved in narcotics smuggling activities.

Prior to trial, Basurto moved to suppress the items seized in the search of his house and his statements derived therefrom. The district court denied the motion to suppress the papers taken from the kitchen table but granted it as to all other items seized. As to the documents on the kitchen table, the court ruled:

“I find that Officer Waddill was justified in promptly going into the house when he had noticed that there might be somebody there who could surprise them, and that he was justified in going into the kitchen also for the same purpose, and that the document or writing found on the kitchen table was in plain view.”

The court ruled that any statements made by Basurto with reference to any of the items ordered suppressed were to be suppressed as well.

It is evident that the district court’s finding that the papers on the kitchen table were “in plain view” does not by itself make the search and seizure of those papers constitutionally permissible. As the Supreme Court stated in Coolidge v. New Hampshire, 403 U.S. 443, 465, 468, 91 S.Ct. 2022, 2037, 2039, 29 L.Ed.2d 564 (1971):

“[I]n the vast majority of cases, any evidence seized by the police will be in plain view, at least at the moment of seizure. The problem with the ‘plain view’ doctrine has been to identify the circumstances in which plain view has legal significance rather than being simply the normal concomitant of any search, legal or illegal.
* * -X- -x- * -X-
“[Pjlain view alone is never enough to justify the warrantless seizure of evidence. . . . ”

Only if Agent Waddill was lawfully in Basurto’s house at the time of the search, and then only if the papers on the kitchen table were in plain view, were those papers and Basurto’s statements derived from them lawfully admitted into evidence. As the Court pointed out in Coolidge, supra:

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. . . .” 403 U.S. at 466.

The question therefore becomes whether there was a sufficient prior justification for Agent Waddill’s entry into the home after Basurto yelled, “It’s the police.”

We hold that the agent’s entry into Basurto’s home violated the Fourth Amendment, and that therefore the papers found on the kitchen table, and any statements made as a result thereof, should have been suppressed.

The Fourth Amendment provides, in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .”

The difficulty in Fourth Amendment cases, of course, has been to determine which searches and seizures are “unreasonable” and which are “reasonable.” In United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the Supreme Court emphasized that “ [i]t is unreasonable searches that are prohibited by the Fourth Amendment,” and held that the test of reasonableness “depends upon the facts and circumstances — the total atmosphere of each case.” 339 U.S. at 60, 66. The Rabinowitz standard was expressly overruled, however, in Chimel v. California, 395 U. S. 752, 764-768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The Court in Chimel held that “the facts and circumstances” of the Rabinowitz test must be evaluated with the emphasis upon “established Fourth Amendment principles” rather than upon the pragmatics of police conduct. The Court stated that the government’s “reasonableness” argument was

“founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. . . .” 395 U.S. at 764-765.

The sentence of the Chimel opinion following that quoted above relates to the fact situation of the instant case:

“It is not easy to explain why, for instance, it is less subjectively ‘reasonable’ to search a man’s house when he is arrested on his front lawn — or just down the street — -than it is when he happens to be in the house at the time of arrest. . . . ” Id., at 765.

Under Chimel and Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970), the entry and search in the instant case cannot be justified as being incident to a lawful arrest.

The government contends that the warrantless entry and search of Basurto’s home was justified since “exigent circumstances” existed which “required the officers, if they were to act reasonably, to enter the house for the protection of the prisoner and themselves.” The district court implicitly agreed with the government’s position in finding that Agent Waddill was “justified” in entering the house and going into the kitchen.

The government specifically contends that exigent circumstances such as those present in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18. L.Ed.2d 782 (1967), were present in the instant case. But in that case, as the Supreme Court pointed out in Vale v. Louisiana, supra, 399 U.S. at 35, the officers were “in hot pursuit of a fleeing felon,” and the warrantless search of the house was justified as an attempt to apprehend the missing felon and his weapons. In Warden v. Hayden, the Court detailed the circumstances which made the search reasonable in that case:

“The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.” 387 U.S. at 298-299.

While the officers in Warden v. Hayden were seeking a missing armed suspect who had been reported to have entered the house that was searched, in the instant case Basurto was not missing but was in fact already in police custody in front of his home. Since the particular facts which justified the search in Warden v. Hayden are completely lacking here, that case lends no support to the government’s position.

In Vale v. Louisiana, supra, the Court detailed the types of circumstances which qualify as sufficiently “exigent” to justify a warrantless search of a home, stating that

“our past decisions make clear that only in ‘a few specifically established and well-delineated’ situations, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576, may a warrantless search of a dwelling withstand constitutional scrutiny, even though the authorities have probable cause to conduct it. The burden rests on the State to show the existence of such an exceptional situation. Chimel v. California, supra, at 762, 89 S.Ct. 2039; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59; McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153. . . .” 399 U.S. at 34.

The circumstances considered “exigent” were stated to include responding to an emergency; the hot pursuit of a fleeing felon; the ongoing destruction of the goods ultimately seized; and the removal of those goods from the jurisdiction.

The facts of the instant case do not constitute “exigent circumstances” sufficient to justify the search. The factual bases relied upon by Agent Waddill in entering the house were that Basurto had had a weapon in his possession while attempting to board an airliner in the past and that he had yelled “It’s the police” in the direction of the house after being placed under arrest. Neither of these facts provided any indication to the agents that there was anyone in the house who might harm them or that weapons were in the house. The government has not argued that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is applicable here, nor should this be occasion for widening the scope of that decision. Basurto himself was under arrest and had been found not to have a weapon. His yelling “It’s the police” strikes us as a normal and not unexpected response to his being placed under arrest. It is not unreasonable for an individual to call into his house to his friends or relatives that he is being taken away, so as to indicate to them the reason for his detention and sudden absence.

Since the facts and circumstances surrounding Agent Waddill’s entry into the house do not fall within any of the exceptions which make a warrant-less search of a dwelling constitutionally permissible, and since, under Vale, the government has the burden of proving the existence of such an exceptional situation, we hold that the entry into the home and the search of any part of it (including the kitchen table) violated the Fourth Amendment. The government concedes that under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), if the seizure of the documents on the kitchen table was illegal, then any statements made by Basurto prompted by or regarding those documents must be suppressed. Accordingly, it was error to admit the papers seized from the kitchen table and Basurto’s statements derived therefrom.

This determination does not end our inquiry, however. Under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), a governmental violation of a defendant’s constitutional rights does not require a reversal of the conviction if the violation constitutes “harmless error.” The Court in Chapman adopted the test of Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), to determine whether an error is harmless: “ ‘The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.’ ” 386 U.S. at 23. The Court concluded that “[a]n error in admitting plainly relevant evidence which possibly influenced the jury adversely to a litigant cannot, under Fahy, be conceived of as harmless,” and placed the burden on “the beneficiary of the error” (the government here) to prove beyond a reasonable doubt that the improperly admitted evidence did not contribute to the conviction. 386 U.S. at 23-24.

The record before us indicates that the papers seized from the kitchen table contained the figures “1,000 lbs.” and “$30,000”; and that while en route to the county jail, and after having been advised of his rights, Basurto made statements about certain persons involved in narcotics smuggling activities. The district court made the following ruling with respect to the admissibility of Basurto’s statements to the agents:

“I believe that the statements that he made to the agents were voluntary with this reservation: That as to any statements made by Mr. Basurto with reference to any items that [were ordered excluded] . . . any statements made by him with respect to those items . . . any statements made regarding those items are inadmissible as being produced as the result of the illegal search in the baby’s room, the bedroom and the bedroom closet.”

The following colloquy then ensued between the prosecutor and the court:

“[THE PROSECUTOR:] Your Honor, I have spoken with Mr. Wad-dill in conjunction with the Court’s ruling and showed him the statements made . . . apparently none of those statements were made in conjunction with any of the items seized and suppressed by the Court.
“THE COURT: Well, I don’t know, but I am laying out the ground rules accordingly.”

The standard used by the court and the prosecutor to determine which statements should be suppressed was erroneous. The court ordered the exclusion of any statements “with reference to,” “with respect to,” or “regarding” the items it had ordered suppressed ; the prosecutor stated that none of the statements made by Basurto “were made in conjunction with” any of those items. Under Wong Sun v. United States, supra, however, any statements that were the fruits of any evidence wrongfully seized should have been excluded. The Supreme Court in that case held that

“verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest ... is no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion. . . .” 371 U.S. at 485. (Footnote omitted.) [Emphasis supplied]

The Court relied upon Justice Holmes’ statement in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920), that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. .” Thus, the test that should have been used in this case is that any statements made by Basurto that related to or were prompted by any inadmissible evidence, or that would not have been made but for the possession of such evidence by the government agents, were the “fruits” of, were derived from, such evidence and should have been excluded.

The government admits that “[t]he documents which the appellant Basurto contends were erroneously admitted into evidence and which were, in fact, the subject of his admissions, were seized from a table inside his home at the time of his arrest and also from a wallet and address book that were found on his person at the time of his arrest.” Government’s brief at 18. (Emphasis supplied.)

Therefore, at least some of the admissions made by Basurto related to or were prompted by the documents seized from the kitchen table, which we have determined were erroneously admitted by the trial court. Since the government has not proven beyond a reasonable doubt that these statements did not contribute to Basurto’s conviction, under Chapman v. California, supra, the unconstitutional seizure of the papers on the kitchen table cannot be said to have resulted in harmless error. Therefore, the illegal search of Basurto’s house furnishes an independent ground for reversing his conviction.

Alleged Variance Between Indictment and Proof

Appellants allege that there is a fatal variance between the indictment and the proof. They contend that while the indictment charged them with one conspiracy, evidence was offered at trial to prove the existence of two conspiracies — one before May 1, 1971, and another on and after that date.

We reject appellants’ contention on the authority of United States v. Noah, 475 F.2d 688 (9th Cir. 1973). In that case, the indictment contained two counts, charging conspiracies prior to and commencing on May 1, 1971. We ordered that one of the counts be dismissed, on the theory that the mere fact that an agreement to commit unlawful acts might violate different statutes “does not create separate conspiracies out of one conspiracy.” 475 F.2d at 693. It was therefore proper for the indictment in the instant case to have alleged only one conspiracy.

Effect of Repeal of 21 U.S.C. § 176a Upon Prosecution Commenced After the Repeal

Appellants contend that the indictment should have been dismissed on the ground that 21 U.S.C. § 176a was repealed effective May 1, 1971, prior to the bringing of charges against them.

As has been discussed above, § 176a was repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, supra, which became effective on May 1, 1971. Section 1103(a) of the Act, cited in a note following 21 U.S.C. § 171, provides:

“Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] . or abated by reason thereof.”

Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), requires the rejection of appellants’ contention. In that case, the Supreme Court specifically interpreted § 1103(a) to allow for narcotics offenses committed prior to May 1, 1971, to be prosecuted and sentenced according to the laws in effect at the time the offense was committed. It was therefore proper to charge appellants under § 176a for offenses committed before May 1, 1971.

Search of Waggoner’s Wallet SO Minutes After his Arrest

Appellant Waggoner was arrested by Agents Sepulveda and Waddill. At the time of his arrest, Agent Sepulveda searched him, seized a wallet from his pocket, and placed it on the dashboard of the agent’s automobile. The wallet contained incriminating writings and documents. Agent Sepulveda did not open the wallet until he arrived at the Customs Office approximately 30 minutes later, at which time Agent Waddill removed the papers from the wallet and questioned Waggoner about them. When confronted with the documents, Waggoner said that he knew “he was in trouble” and made admissions which the government introduced at trial.

Waggoner admits that the search of his person was lawful under Chimel v. California, supra, but contends that the warrantless search of his wallet 30 minutes after his arrest was unlawful. In Chimel, the Supreme Court stated that “it is entirely reasonable for the arresting officer to search for and [to] seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . .” 395 U.S. at 763. Waggoner argues that the search 30 minutes after his arrest does not come within Chimel, since the wallet at that point was “under the dominion and control” of the Customs agents.

That issue was decided to the contrary in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, 42 U.S.L.W. 4463 (1974). There the Court held “that once a defendant is lawfully arrested and in custody, the effects in his possession at the place of detention that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest . and the taking of property for use as evidence. . . .” 415 U.S. at 807 [94 S.Ct. at 1239]. An argument similar to that advanced by Waggoner was rejected by this court in United States v. Mehciz, 437 F.2d 145 (9th Cir. 1971), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971).

Sufficiency of the Evidence Against Travers

Appellant Travers contends that the evidence against him was insufficient to support his conviction. The evidence against Travers consisted of the following:

(1) Barron’s testimony that Waggoner told Barron that Travers was a “dealer.” The conversation took place at Travers’ home when Travers was not home. The prejudicial effect of this hearsay testimony was great. The prosecuting attorney stressed this statement in his closing argument, contending that “dealer” meant “dealer in marijuana”:

“The evidence shows that Mr. Travers was a marijuana dealer, a Canadian connection, if you will, who was a dealer in marijuana, who was present at the meetings of the conspiracy and who agreed with William Barron that the conspiracy was being run very loosely.”

(2) Barron’s testimony that in a conversation with Travers in an automobile, Travers told him that he “thought the thing was loose.”

(3) Four government exhibits which tended to establish Travers’ acquaintanee with some of the conspirators. Three of these exhibits were seized from a wallet located in a car at the scene of Travers’ arrest. Also found in the wallet was a driver’s license containing Travers’ name but not his picture. The wallet and driver’s license were not produced at trial, although a search warrant had been issued for them, and the district court allowed testimony concerning the driver’s license over objection. None of the exhibits introduced contained Travers’ name.

(4) The testimony of a government witness, Bernard Volz, that he saw Travers with Waggoner in Lake Tahoe in September 1971.

(5) The testimony of government witness Aubrey Taylor that he was introduced to Travers by Waggoner at Wag-goner’s house but that Travers was “just sitting there.”

Travers was charged with the crime of conspiracy. Conspiracy is “a partnership in criminal purposes. The gist of the crime is the confederation or combination of minds.” Marino v. United States, 91 F.2d 691, 694 (9th Cir. 1937). The government has the obligation to establish not only the opportunity but also the actual meeting of minds. Mere association and activity with a conspirator does not meet the test. Ong Way Jong v. United States, 245 F.2d 392 (9th Cir. 1957). Mere knowledge of the existence of a conspiracy is not sufficient to sustain a conviction. Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969).

After carefully reviewing the record, we conclude that the evidence against Travers was insufficient to support his conviction.

The judgments of convictions are reversed.

HUFSTEDLER, Circuit Judge

(concurring specially):

I concur in the result reached by the majority, but I find unsatisfactory the constitutional theory it advances to support its conclusion that the prosecutor had a duty to inform the grand jury of Barron’s perjured testimony. Unlike the prosecutors in Napue v. Illinois (1959), 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217, and Alcorta v. Texas (1957), 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9, who “did nothing to correct the witness’ false testimony” (360 U.S. at 265), the prosecutor in the case at bench notified both defense counsel and the trial court upon learning of the perjured testimony. I do not believe that the prosecutor’s failure additionally to inform the grand jury was such a breach of his constitutional duty of good faith as to constitute a violation of defendants’ due process rights.

Although the majority’s constitutional analysis is not persuasive, it would be an appropriate exercise of our power to supervise the administration of criminal justice in the federal courts to impose upon federal prosecutors the duty to notify the grand jury described by the majority. (See generally McNabb v. United States (1943), 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. An important function of our supervisory power is to guarantee that federal prosecutors act with due regard for the integrity of the administration of justice. In Mesarosh v. United States (1956), 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1, a case involving possible perjury by a witness at trial, the Supreme Court observed: “This is a federal criminal case, and this Court has supervisory jurisdiction over the proceedings of the federal courts. If it has any duty to perform in this regard, it is to see that the waters of justice are not polluted.” (352 U.S. at 14 (footnote omitted); see United States v. Poole (7th Cir. 1967), 379 F.2d 645 (supervisory power used to reverse conviction because government suppressed evidence).) Our supervisory power is not limited to control of conduct that occurs at trial; we have specifically found it to extend to matters involving the grand jury. (Bursey v. United States (9th Cir. 1972), 466 F.2d 1059, 1082.)

The grand jury serves important public interests not only through its examination into the commission of crimes but also by its ability “to stand between the prosecutor and the accused, and to determine whether the charge was founded on credible testimony or was dictated by malice or personal ill will.” (Hale v. Henkel (1906), 201 U.S. 43, 59, 26 S.Ct. 370, 373, 50 L.Ed. 652; Hoffman v. United States (1951), 341 U.S. 479, 485, 71 S.Ct. 814, 95 L.Ed. 1118; Bursey v. United States, supra at 1089-1090. See also Branzburg v. Hayes (1972), 408 U.S. 665, 686-687, 700, 92 S.Ct. 2646, 33 L.Ed.2d 626.) By failing to inform the grand jury of Barron’s perjured testimony and thus precluding the opportunity to reconsider the indictment in light of the corrected version of the defendants’ activities, the prosecutor effectively frustrated this vital function. A supervisory rule requiring a prosecutor who learns before trial that an indictment is based in some material way on perjured testimony to seek dismissal of the tainted indictment would safeguard the grand jury’s role as mediator between prosecutor and potential defendant. Such a supervisory rule would also help insure that the prosecutor fulfills his responsibility to deal with the grand jury in a way that promotes the wise exercise of its investigatory and indictment powers. (Hoffman v. United States, supra at 485.) Even though breach of that prosecutorial duty may not constitute a violation of defendant’s constitutional rights, the prosecutor is nevertheless responsible to the court for conduct that is potentially detrimental to the integrity of the judicial system. (See Berger v. United States (1935), 295 U.S. 78, 88-89, 55 S.Ct. 629, 79 L.Ed. 1314; Newman v. United States (1967), 127 U.S.App.D.C. 263, 382 F.2d 479, 481.) It is thus well within our supervisory jurisdiction to require that the United States Attorney shall move for dismissal of indictments based on perjured testimony.

Whether measured by the supervisory rule I have suggested or the constitutional duty imposed by the majority, the response of the prosecutor in the case at bench to the discovery that a witness had perjured himself before the grand jury was inadequate. I therefore agree with the result reached by the majority in the first section of its opinion. I concur in the majority’s treatment of the other issues raised by these appeals.

      . It is not necessary that the dispute be resolved, since it does not affect the holding of this court. The issue here is not one relating to the sufficiency of evidence before a grand jury to sustain an indictment, but rather, the duty of a prosecutor when he becomes aware that perjury as to a material matter has been committed.

      . Basurto also moved unsucessfully to suppress items taken from his person after his arrest. He does not appeal from the denial of his motion to suppress those items.

      . The district court’s findings as to the plain view issue are not precise. The district court did not specifically find that the papers on the kitchen table were in plain view from the room into which Agent Waddill entered the house, although there was testimony by Agent Waddill to this effect. Rather, the court’s finding was that the papers were in plain view once Agent Waddill entei’ed the kitchen, and that his entry into the kitchen was justified. We assume, without deciding, that the papers on the kitchen table were in plain view of Agent Waddill from the room into which he entered the house.

      . See note 3, supra.

       Because this duty is owed to the court and grand jury and not to the defendant, the strategic decision of the defendant not to challenge the indictment cannot affect the prosecutor’s obligation to seek dismissal of the indictment.


author: ADAMS, Circuit Judge.

text:
    Joseph FIDTLER, Appellant, v. A. T. RUNDLE, Supt. State Correctional Inst. at Graterford Pa., et al. and Edward T. Hendricks.
    No. 73-1668.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 8, 1974.
    Decided May 13, 1974.
    As Amended May 24, 1974.

      Gilbert E. Geldon, Law Student, Indigent Prisoner Lit. Program, Philadelphia, Pa., for appellant; Ralph S. Spritzer, Supervising Atty., Indigent Prisoner Lit. Program, Philadelphia, Pa., of counsel.
    Michael Minkin, Asst. Atty. Gen., Chief, Civ. Lit. Eastern Regional Office, Philadelphia, Pa., for appellee Alfred T. Rundle.
    Wanda P. Chocallo, Asst. City Sol., Philadelphia, Pa., for appellee Edward T. Hendricks.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The issue presented in this appeal is whether the district court erred in holding, on the basis of the record before it, that the superintendent of the State Correctional Institution at Graterford (Graterford), cannot be held liable for damages in a suit brought by a prisoner under 42 U.S.C. § 1983. The district court’s conclusion that appellee Alfred T. Rundle, the superintendent, could not be held personally liable for damages prompted it to grant Rundle’s motion to dismiss and also to dismiss appellant Joseph Fidtler’s action against appellee Edward T. Hendricks, former superintendent of the Phildelphia County Jail (Holmesburg). The district court held no hearing and made no findings with respect to the nature of the duties of Rundle and Hendricks, “nor did it conduct evidentiary proceedings with respect to the good faith defense.”

The following facts concerning Fidtler’s confinement may be extracted from the various submissions constituting the record in the case. Sometime in 1968, Fidtler was charged with the state crime of aggravated robbery. Because he was unable to post the bond necessary to secure release pending a determination of guilt or innocence, he was incarcerated at Holmesburg. Fidtler objected to being required to perform work while unconvicted and unsentenced, and instituted a civil rights action against Hendricks. On October 31, 1968, the district court, with the consent of the parties, entered a preliminary injunction which, by its terms, “restrained [Hendricks] from compelling [Fidtler] to work until such time as he may have been sentenced.”

In December, 1968, Fidtler was convicted of aggravated robbery. Pending sentence, bail was set at $10,000 and since Fidtler was unable to post this amount his confinement at Holmesburg continued. On June 12, 1969, however, Fidtler, still unsentenced, was transferred to Graterford in order to relieve the overcrowded conditions at Holmes-burg. Rundle, the superintendent at Graterford, assigned Fidtler to work in the prison laundry. Fidtler worked in the Graterford laundry until April 3, 1970, when he was returned to Holmes-burg. On May 1, 1970, Fidtler was sentenced to a term of not less than four years nor more than ten years.

The gravamen of Fidtler’s complaint centers upon his enforced toil in the Graterford laundry between June 12, 1969 and April 3, 1970. He seeks compensatory damages, computed on the basis of the prevailing hourly wage rate for laundry-type labor in the Philadelphia area, and also punitive damages.

Fidtler asserts that compelling him to perform labor in the prison while he remained unsentenced constituted “involuntary servitude,” which is proscribed by the thirteenth amendment. Furthermore, intertwined with Fidtler’s contentions with respect to the thirteenth amendment seems to be a postulate, as yet undeveloped, that Rundle, in requiring Fidtler to work while unsentenced, was performing an exclusively judicial function, i. e., sentencing persons convicted of crimes, in violation of the due process clause of the fourteenth amendment. It is on the basis of these alleged violations of his civil rights that Fidtler invokes section 1983.

The district court did not reach the merits of Fidtler’s constitutional claims in granting the pretrial motions of Rundle and Hendricks. Instead, the district court held that since Rundle, in requiring Fidtler to work, was heeding the command of a Pennsylvania statute which had not been held invalid, he was insulated, apparently because of the good faith defense, from damage liability under the language of the Supreme Court’s decision in Pierson v. Ray for acts transgressing the constitutional rights of Fidtler. Further, the district court concluded that Hendricks’ failure to notify Rundle, on the occasion of Fidtier’s transfer to Graterford, that an injunction was outstanding forbidding Hendricks to compel Fidtler to toil until he had been sentenced, was “of no moment.” Rundle, the district court reasoned, could not be ordered by a court, assuming that the injunction would run against Rundle, to disregard his statutory duties.

On appeal, Fidtler reiterates his constitutional claims. As already indicated, the district court did not reach the merits of these constitutional claims, and for reasons set forth infra we also do not address them. For the purposes of this appeal, two additional contentions of Fidtler are to be considered. First, he asserts that the district court erred in construing the Pennsylvania statute to obligate Rundle to require him to work while incarcerated, although still unsenteneed. Second, he contends that, apparently in response to the claims of the appellees, the district court did not correctly discern and apply the standards relating to immunities and defenses available to state officers in section 1983 actions.

Rundle, on the other hand, asserts that, on the basis of Pierson, he “was immune from suit,” and, in effect, maintains that the district court properly dismissed the complaint without further proceedings.

At oral argument, counsel for Fidtler stated that Fidtler sought reversal of the district court judgment only insofar as it resulted in dismissal of the complaint against Rundle and that he was not pressing his claim against Hendricks. We, therefore, need decide only whether the district court was warranted in dismissing the complaint as to Rundle.

Further, we shall deal solely with Fidtier’s contention that the district court erred with respect to its treatment of Rundle’s claim that common law immunities and defenses foreclose Fidtier’s section 1983 suit; for, as will be shown, the district court did not treat correctly these claims asserted by Rundle and, for this reason, reversal is required.

I. THE AVAILABILITY OF COMMON LAW IMMUNITIES AND DEFENSES IN SECTION 1983 SUITS.

The law of immunities and defenses available to public officials in section 1983 suits is complicated. This is so because the legal principles emerge from attempts to strike a balance between two important, but often conflicting public policies. On the one hand there is the public interest in vindicating individual rights sought to be protected by the Civil Rights Act. On the other hand, there exists a strong public policy in promoting spirited service by public servants, a goal thought to be placed in jeopardy by the threat of private damage suits for official actions.

Before specifically considering Fidtier's contention that the district court’s dismissal of the complaint against Rundle was improperly based on immunities and defenses, it is necessary to outline the nature and extent of the protection from damage liability presently afforded state officials in suits brought under section 1983. Although no protection from damage liability is expressly provided for in section 1983, federal courts, recognizing the similarities between many constitutional violations alleged in section 1983 suits and common law torts, such as false arrest and false imprisonment, have permitted defendants in some section 1983 suits to assert immunities and defenses available in common law actions.

In Pierson, the Supreme Court concluded that “[t]he legislative record gives no clear indication that Congress [in enacting section 1983] meant to abolish wholesale all common-law immunities.” 386 U.S. at 554. It pointed out that earlier, in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), the Court had held that section 1983 did not affect the common law immunity of legislators. Recently, in Scheuer v. Rhodes, the Supreme Court offered the following elaboration of the immunity available to executive officers in section 1983 suits:

These considerations suggest that, in varying scope, a qualified immunity is available to officers of the executive branch of Government, the variation dependent upon the scope of the discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with a good faith belief, that affords basis for qualified immunity of executive officers for acts performed in the course of official conduct.

In addition, Chief Judge Seitz has recently pointed out, citing Bauers v. Heisel, that “[w]hile some courts have stated that § 1983 should be read as limiting the immunity recognized at common law, this Court, sitting in banc, has ruled that § 1983 does not abrogate immunities recognized at common law.”

The Supreme Court in Pierson, of course, also allowed the good faith defense in a section 1983 action. Thus, at least to some extent, the immunities and defenses allowed at common law are available in section 1983 suits.

II. A FEDERAL COMMON LAW OF IMMUNITIES AND DEFENSES APPLICABLE TO SECTION 1983 SUITS.

Under the teachings of Scheuer, Pierson and Tenney, we must, therefore, determine whether a superintendent of a state prison, Rundle, is entitled to any of the protections provided by the common law. We note that particular legal rules regarded as part of the common law of one jurisdiction may not be followed by the courts in a second jurisdiction. Some would assert that “the common law,” in the sense of a more or less unitary set of rules, is a chimerical notion. We need not, however, enter the the philosophical fray generated by this assertion to acknowledge that the courts of some jurisdictions extend immunity to government officers in some situations whereas courts of other jurisdictions would decline to recognize immunity. As a result, federal courts may, on occasion, be faced with a conflict between a common law rule applied by state courts in suits against state officials and a common law rule applied by federal courts largely in suits against federal officials.

It may be contended that the Supreme Court in Pierson directed the federal courts to permit defendants in section 1983 suits to assert only those defenses and immunities recognized by state courts. The Supreme Court pointed out that the Court of Appeals for the Fifth Circuit had previously concluded that “under the common law of Mississippi” police officers could not be held liable for false arrest if they acted in good faith and with probable cause. The Court of Appeals had held, however, that Monroe v. Pape precluded the assertion of the good faith defense in a section 1983 suit. The Supreme Court reversed on the latter point, thereby permitting the state officers to raise the defenses available “under the common law of Mississippi.”

We do not regard the language of the Supreme Court in Pierson relating to the good faith defense as requiring that we canvass Pennsylvania law to determine which defenses and immunities are available to Rundle in this case.

First, when considering the immunity question, the Supreme Court in Tenney and in Pierson seemed to rely primarily on the “prevailing view in this country.” It referred in general terms to the veneration owed to the judicial and legislative immunities because of their roots in the English common law prior to the founding of the United States and their quick and nearly uniform adoption by the several states after independence. Thus, at least with respect to the judicial and legislative immunities, the Supreme Court seemed to apply principles that transcended state boundaries.

Second, a plaintiff in a section 1983 suit is asserting a federal cause of action for alleged infringement of federal constitutional rights. To assure that a plaintiff’s recovery does not depend upon the locale of the events resulting in the claimed injury or the state citizenship of the perpetrator, a single set of rules relating to the defenses and immunities available to the defendant state official in a section 1983 suit seems appropriate. Thus, we conclude that federal courts may be guided, but are not bound, by the vagaries of state law with respect to the immunities and defense available in section 1983 suits.

III. ' COMMON LAW PROTECTIONS AVAILABLE TO SUBORDINATE STATE OFFICIALS IN SECTION 1983 SUITS.

A. Immunities

Returning to the exact situation presented by this case, Rundle is, of course, neither a judicial officer nor a legislator so his situation is not specifically controlled by Tenney or Pierson. Since, as already concluded, we need not automatically look to Pennsylvania law to determine the defenses and immunities that Rundle may assert, we must, if we are to follow the Supreme Court’s lead in Tenney and Pierson, fall back upon general principles of the common law. Conceivably, the application of general principles in section 1983 actions should be tempered by an appreciation of the policies supporting section 1983. It appears, however, that the Supreme Court did not conclude in Tenney and Pierson that section 1983 required modification of time-honored rules.

Fortunately, the Supreme Court in cases involving federal officials has

provided guidance in the area of common law immunities generally available to subordinate executive officials. In Barr v. Matteo there was a suit by former employees of the Office of Housing Expediter against the Acting Director of the Office of Rent Stabilization for defamatory and malicious public statements. Justice Harlan, enunciating principles approved by a majority of the Court, stated that the Acting Director’s action was “an appropriate exercise of the discretion which an officer of that rank must possess if the public service is to function effectively” and was “within the outer perimeter of [the Acting Director’s] line of duty.” Therefore, he concluded that the Acting Director enjoyed immunity from a damage suit, “despite the allegations of malice.” If, on the other hand, the subordinate executive official’s duties are “ministerial” rather than “discretionary,” the federal courts have followed the prevailing common law rule and refused to clothe the official with immunity for wrongful acts. Although the language of the Supreme Court in Scheuer may be read to cast some doubt on the viability the ministerial-discretionary distinction, the Court seems to have adopted this general approach to immunity in section 1983 suits.

B. Defenses

Although an official.performing “ministerial” functions does not enjoy immunity from suit, it is hopefully not his destiny to be rendered impecunious by damage suits for inadvertent errors in the conscientious pursuit of his duties. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Second Circuit held that the defense of good faith and probable cause was available to the federal law enforcement officers, otherwise not immune, in a damage suit for violation of Bivens’ Fourth Amendment rights. Recently, in Johnson v. Alldredge, this Court utilized the principles of Barr and alluded to the availability of the good faith defense in a suit against federal prison officials performing “ministerial” duties.

IV. THE TREATMENT OF COMMON LAW IMMUNITIES AND DEFENSES IN THE CASE AT HAND.

Although Barr, Bivens, and Johnson are cases involving federal officers, there would seem to be no reason for declining to extend the principles of immunities and defenses formulated in those cases to section 1983 suits against state officers. Indeed, the Supreme Court in Scheuer recently recognized common law immunities and defenses in section 1983 suits against state officials.

This Court, in Safeguard Mutual Insurance Company v. Miller, applied the principles of both immunity and the good faith defense to a civil rights action against officials of the Pennsylvania Insurance Department. With respect to the good faith defense, Judge Gibbons, citing Bivens, indicated that the officials had the burden of pleading and proving that they had a reasonable good faith belief that their actions were lawful.

Though the district court, in the case sub judice, was correct in noting that Rundle, had he been performing a ministerial function, might well avail himself of the good faith defense, its order dismissing the complaint on the record before it was premature. In Safeguard the Court, presaging the Supreme Court’s decision in Scheuer, indicated the information that a district court should have before it when ruling on a defendant’s assertion of the good faith defense. Even if we assume that the district court treated Rundle’s pretrial motion as one for summary judgment and, therefore, considered the affidavits, admissions, and answers to interrogatories present in the record, these materials do not add to the facts alleged in the complaint any matter relating to the good faith defense of Rundle. “And since,” as Judge Gibbons stated in Safeguard, “good faith is a matter of defense, the determination of that issue as to [Rundle] must await proceedings beyond a Rule 12(b) (6) motion.”

The district court, presumably without intending to indicate its position as to the constitutional validity of the Pennsylvania statute, arguably requiring Rundle to assign Fidtler to work, stated that the “[d]efendant had every reason to believe that [the statute] was and is valid and it commanded him to do precisely what he did.” However, the district court did not, nor could it, without further proceedings calculated to develop the relevant facts, make any finding that Rundle did, in fact, rely in good faith on this statute. The Supreme Court’s language in Scheuer is particularly apt:

In dismissing the complaints, the District Court and the Court of Appeals erroneously accepted as a fact the good faith of the Governor. . There was no evidence before the Court from which such a finding of good faith could be properly made.

In Scheuer, the record before the district court contained merely the complaints and two proclamations of the Governor, only one of which related to the conditions of Kent State. In the case at hand, the dearth of material before the district court concerning the good faith of Rundle is similar to the sparse record present in Scheuer.

Viewing good faith as a defense creates some difficulty in this case in light of the wise tenet that constitutional questions are to be avoided when disposition on nonconstitutional grounds is proper. This is so since the defense of good faith need become an issue only after the plaintiff has established a violation of civil rights. In this case, for example, the facts on which Fidtler bases his constitutional claims do not appear to be contested. Thus, the district court might well decide the legal question — i. e., whether those facts amount to a constitutional violation — without an evidentiary hearing on the good faith defense.

If Rundle asserts the good faith defense, however, and Fidtler responds by alleging lack of good faith, evidentiary proceedings may be necessary to resolve satisfactorily the disputed factual issues. In such situation, judicial resources may be conserved by the district court’s deciding the constitutional question. This is so because if Fidtler’s constitutional claims are rejected, the need for an evidentiary proceeding with respect to the good faith defense would be obviated.

Nonetheless, in light of the salutary precept that constitutional questions are to be avoided when appropriate to do so, and especially when a state statute is at issue that has not been interpreted in a similar context by the state court, we cannot say that a district judge would, in all instances, act improperly if he should determine whether the state officer was acting in good faith before actually dealing with the constitutional issues.

The district court may not, however, be faced with the dilemma just posed, for the district court in this case apparently did not consider whether Rundle’s activities were “discretionary” and, thus, within the absolute immunity provided by Barr. It would seem to be appropriate for the district court to address the question of Rundle’s immunity before examining Fidtler’s constitutional claims. The district court must, nonetheless, keep in mind the admonition of Lasher v. Shafer relating to the information that it should have before it prior to ruling .on a claim of immunity, such as Rundle will surely assert here: “a decision that each of the appellees is entitled to some form of executive immunity is one that cannot be made on the basis of the allegations in the complaint.” In Lasher, as in Safeguard, this Court reversed district court holdings that the defendants in section 1983 suits were entitled to immunities and defenses because the records in those cases, as here, were inadequate to warrant such holdings.

Accordingly, the judgment of the district court will be reversed and the case remanded for proceedings consistent with this opinion.

      . Rundle asserts in an affidavit dated December 5, 1969 that “Joseph Fidtler . was assigned to work in the institution laundry by .the Vocational Staff.” If there should be a determination that Rundle is not otherwise protected from suit, he may nonetheless avoid liability by establishing, at a hearing on the merits of Fidtler’s allegation, that he is not the official responsible for the claimed deprivation of constitutional rights.

      . Cf. Note, Procedural Due Process at Judicial Sentencing for a Felony, 81 Harv.L.Rev. 821, 824 (1968) (“[I]t seems basic to a scheme of ‘ordered liberty,’ that whenever organized society undertakes to impose punitive physical restraint on an individual, it should do so only by regular procedures established in advance. And these procedures should be carried out under the aegis of a judge. . . . ”)

      . Pa. Stat. title 61, § 141 provides that “ . . . wardens . . . are directed to employ the convicts under their control for and in behalf of the state.” (emphasis added) The district court held that the term “convicts” referred to prisoners adjudged guilty but not yet sentenced, as well as to those who had also been sentenced. Construing the provision in this way suggests that Rundle would be under a statutory duty to demand that Fidtler work.

      . 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). The district court relied on the Supreme Court’s discussion in Pierson of the common law good faith defense to false arrest. The Supreme Court suggested that an officer would not be liable for damages if he was “acting under a statute which he reasonably believed to be valid.” Id. at 555.

      . See Scheuer v. Rhodes, - U.S. -, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

        Much of the complexity in this area of the law may be attributed to the difficult-to-grasp, and perhaps ill-conceived, distinction between “discretionary” and “ministerial” official functions. See, e.g., Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

      . The Supreme Court established in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), that an individual injured by the acts of state officials that violated his civil rights had a cause of action against those officials for damages under section 1983.

      . - U.S. -, 94 S.Ct. 1683, 40 L.Ed.2d 90 (April 17, 1974).

      . Id. at 4548, 94 S.Ct. at 1692.

      . 361 F.2d 581 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed.2d 457 (1967) (County prosecutor, not operating clearly outside of his jurisdiction, is immune) .

      . Johnson v. Alldredge, 488 F.2d 820, at 826 (3d Cir. 1973).

      . See, e.g., Prosser, Law of Torts 988 (4th ed. 1971) (pointing out that the federal courts have extended to officials other than judicial officials the absolute immunity traditionally granted at common law to such officials, while state courts have been more reluctant to widen the scope of absolute immunity) .

      . In Daye v. Commonwealth, 344 F.Supp. 1337 (E.D.Pa.1972), the district court, purporting to follow Erie R. R. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), applied the Pennsylvania law of official immunity in a suit based on federal question jurisdiction. The court pointed out that under Yealy v. Fink, 43 Pa. 212 (1962), a state official is “immune from tort liability so long as [his] act was not malicious or so wanton and reckless as to prove it was malicious.” 344 F.Supp. at 1349. Although many of the cases in which Yealy has since been applied appear to involve discretionary actions of state officials, Pennsylvania courts do not seem to have developed the distinction between “discretionary” and “ministerial” functions contained in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). See p. 800, infra. This case, therefore, may well present a situation where “the federal common law” and “the state common law” would lead to different results.

      . 386 U.S. at 555.

      . 365 U.S. 167 (1961).

      . 386 U.S. at 557.

      . 386 U.S. at 555; see Scheuer v. Rhodes, 42 L.W. 4543 (April 17, 1974).

      . “The privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries.
      “Freedom of speech and action in the legislature was taken as a matter of course by those who severed the colonies from the Crown and founded our Nation.” 341 U.S. at 372.

      . But cf. id. at 376.

      . Cf. Clearfield Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943).

      . See pp. 797-798, supra.

      . 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

      . See 360 U.S. at 592 (Stewart, J., dissenting) [“My brother Harlan’s opinion contains, it seems to me, a lucid and persuasive analysis of the principles that should guide decision in this troublesome area of the law.”). Justice Harlan was writing for a plurality of the Court.

      . 360 U.S. at 575. See Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) (L. Hand, J.), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).

      . In Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972), the court held that although the officials were acting within the outer perimeter of their line of duty, they were not entitled to immunity because they were not “engaged in the performance of the sort of ‘discretionary’ acts that require the protection of immunity.” Id. at 1343. See Prosser, Law of Torts, 989-90 (4th ed. 1971).

      . See p. 798, supra.

      . 456 F.2d 1339 (2d Cir. 1972).

      . Id. at 1347.

      . 488 F.2d 820 (3d Cir., December 12, 3973).

      . Id. at 799.

      . In Johnson, the district court, on the basis of affidavits specifically relating to the duties of the officers sued, denied their motions for summary judgment grounded upon immunity. The question of immunity was certified by the district court to this Court pursuant to 28 U.S.C. § 1292(b). Relying also on the affidavits, this Court reversed with respect to the warden of the federal prison and affirmed and remanded with respect to the prison guard.

      . Although unnecessary to its holding, the court in Bivens, citing Pierson, made the following statement: “We believe this to be the same defense held applicable to cases arising under Section 1983.” Id.

      . 472 F.2d 732 (3d Cir. 1973).

      . Id. at 734.

      . Id.

      . See Ashwander v. TVA, 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J, concurring).

      . Of course should the district court consider that the facts alleged by plaintiff would, if taken as true, not amount to a constitutional violation, the district court could properly dismiss on a motion under Rule 12(b) (6) and need not consider questions concerning immunities nad defenses. See, e.g., Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970). But cf. Scheuer v. Rhodes, - U.S. -, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

      . 460 F.2d 343 (3d Cir. 1972).

      . Id. at 348.