author: FEINBERG, Circuit Judge:

text:
    In the Matter of R. HOE & CO., INC., Debtor. In proceedings for the Reorganization of a Corporation ABARTA CORP. (d/b/a Press Publishing Co.), Claimant-Appellant, v. James B. KILSHEIMER, III, and Robert M. Corrao, as Trustees, Appellees.
    No. 121, Docket 74-1493.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 15, 1974.
    Decided Dec. 17, 1974.

      Theodore Gewertz, New York City (Wachtell, Lipton, Rosen & Katz, Leonard M. Rosen, Charles I. Poret, New York City, on the brief), for claimant-appellant.
    A. Edward Grashof, New York City (Winthrop, Stimson, Putnam & Roberts, Marie L. McCann, New York City, on the brief), for appellees.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   FEINBERG, Circuit Judge:

Abarta Corp., doing business as Press Publishing Co., appeals from a decision of the United States District Court for the Southern District of New York, Sylvester J. Ryan, J., disallowing Abarta’s claim of $177,028 as an administration expense or, alternatively, as a general unsecured claim in a Chapter X proceeding for the reorganization of R. Hoe & Co., Inc., debtor. The amount claimed represents the difference between the original contract price for a printing press ordered by Abarta from the debtor prior to the Chapter X proceeding and the increased price Abarta eventually paid the debtor’s trustee, appellee before us, to obtain delivery of the press. We hold that, on the unusual facts of this case, Abarta’s claim as a general unsecured creditor is valid. Accordingly, we reverse the order of the district court.

I

In November 1968, appellant was the publisher of a newspaper in Atlantic City, New Jersey, and Hoe was a manufacturer of rotary printing presses and other machinery. At that time, the parties contracted in writing for the manufacture and sale by Hoe of a printing press to Abarta for a price of $886,679. The press was designed for Abarta’s specific needs and contained features Abar-ta could not have obtained from other manufacturers. Delivery was anticipated during the following summer. The contract called for installment payments and by July 7, 1969, Abarta had paid Hoe over $595,000. On that date, Hoe filed a petition for reorganization under Chapter X of the Bankruptcy Act.

Shortly thereafter, the petition was approved by Judge Ryan and a trustee was appointed. As is frequently the case in Chapter X proceedings, the trustee was immediately confronted with a cash crisis; the debtor needed several million dollars to enable it to continue in operation. If the immediate crisis could be met, however, prospects for reorganization did not seem out of the question. To generate cash immediately, the trustee proposed that the debtor use its principal efforts to complete the manufacture and delivery of printing presses for those customers who agreed both to prepay balances still due under their contracts and also to pay additional amounts over the contract price.

Over 70 customers of the debtor, including Abarta, were affected by this proposal, on which hearings were held that same month. Not unexpectedly, the hearings were well attended and spirited. Most of the creditors seemed willing to cooperate, apparently assuming that the alternative of liquidation might not be very satisfactory, particularly for those who had already paid substantial amounts on their contracts. The creditors were concerned with a number of aspects of the proposal. Considerable attention was given to the status of any sums to be prepaid on balances due or to be paid as premiums if the trustee thereafter could not complete and deliver the presses. Some creditors also suggested that, even if the machines were delivered under the new arrangement, the extra amount paid over the contract price be considered as a loan to the trustee, eventually to be repaid by him. Others, as will be seen below, were content to accept the status of general unsecured creditors for the amount of this premium.

On July 22, 1971, the judge signed an order authorizing the debtor to work principally on the presses of nine customers scheduled for delivery before September 8, upon their prepayment of the balance due under their contracts with the debtor, and to deliver the presses upon payment of an additional ten per cent of the original contract price. Until delivery, any amounts prepaid were to be treated as administration expenses, secured by non-interest-bearing trustee’s certificates. The order was silent on what the status of any premium would be after a press had been delivered, although, as will be seen below, this issue had been raised at the hearings. The order also authorized the trustee to negotiate with other customers whose orders had scheduled delivery times after September 8 “to determine the amount of prepayment and additional sum to be paid to the trustee.”

Abarta was in this second group, and in the ensuing months the trustee negotiated with it as well as with others. The discussions culminated in an order on November 3, 1969, which was similar to the earlier blanket order. Under this later order, the debtor would “devote its principal efforts” to work on Abarta’s machine upon payment of $423,493, of which $342,787 would be protected by a trustee’s certificate until delivery of the press. It is stipulated by the parties that $177,028 of this sum represented “an increase ... in the purchase price of the press.” The press was subsequently delivered, and Abarta filed its proof of claim for $177,028, relying on two theories. The first was that this sum was allowable as an administration claim, because

[t]he payment of said premium over and above the contract price constitutes actual and necessary expenses of preserving the Estate of the Debtor subsequent to the filing of the petition herein.

Abarta’s alternative theory was that the $177,028 should be allowed as a general unsecured claim, because

the payment of said premium constitutes damages to the claimant arising from what was in substance the rejection by the Trustee of an executory contract between the Debtor and the claimant.

The trustee objected to the claim, arguing that Abarta had renegotiated its original contract with the debtor and no longer had any rights under it. Judge Ryan appointed United States Magistrate Harold J. Raby as special master to hear and report upon this claim, along with others. After a hearing, the special master reported in March 1971. The master first pointed out:

The importance of this claim lies, not only in the intrinsically substantial amount of the claim itself, but also in the fact that this claim constitutes a “test case”, upon the ultimate determination of which will depend the propriety of a number of substantial claims of similar nature.

The master recommended that Abarta’s claim be allowed in full, but only as a general unsecured claim. The master rejected the trustee’s argument that the later agreement eliminated any claim for breach of the original contract, concluding that:

From the colloquy between counsel for the various claimants whose position was identical to that of this claimant . . ., it seems quite clear to me that, contrary to the position of the trustee, the claimants did not agree to relinquish their right to file a claim against the debtor for breach of its original contract.

The trustee thereafter moved before the district judge to reject that part of the master’s report favorable to Abarta. In a memorandum decision, dated January 10, 1974, the judge accepted the trustee’s contentions and disallowed the claim in full. The heart of the court’s reasoning was as follows:

At the date of the reorganization petition, claimant faced the loss of more than a half million dollars previously paid for a press that Debtor could not deliver; more important to [Abarta], it faced non-delivery of its much needed equipment, which it could not receive if the Trustee had no funds to complete the manufacture. Claimant was faced with a business decision: (1) either to pay no more and to assert an unsecured claim for the money it had paid on account to the Debtor; or (2) to agree with the Trustee to pay immediately the balance of the purchase price plus an additional negotiated amount to enable the Trustee to complete the press. [Abarta] chose the latter alternative. It cannot now have the benefit of its choice to acquire its press and, at the same time, assert a claim for the money it agreed to pay to enable the Trustee to manufacture it.

To support this result, the judge also referred to two statements made at one of the July 1969 hearings in the district court.

II

On this appeal, Abarta argues principally that the refusal of the trustee to deliver the press ordered by Abarta at the original price was a breach of contract entitling Abarta to damages, which its later agreement to pay a premium for delivery, even if valid, did not eliminate. Abarta also contends that its rights under the original contract could not be destroyed by the later agreement because it was a product of “economic duress.” Finally, Abarta argues that its claim for $177,028 should have been allowed as an expense of administration. In response, the trustee claims that as a matter of law he did not breach the debtor’s contract with Abarta and that, even if he did, the later agreement, which was perfectly valid, extinguished any claim by Abarta, no matter how denominated.

We find the case to be a troublesome one, but after a careful review of the record and the applicable law, we believe that Abarta’s claim should have been allowed as a general unsecured claim, as the special master recommended. As Abarta points out, ordinarily an unjustified failure to perform all or any part of what is promised in a contract — here, delivery of the press at a specified price — is a breach for which the aggrieved party is entitled to compensatory damages. The law is also clear that a repudiation of a contract' communicated from a seller to a buyer, prior to the time for delivery by the seller, is a breach which creates an immediate right of action. N.Y. Uniform Commercial Code § 2-610 and Official Comments thereto (McKinney’s Consol.Laws, c. 38, 1964). But as the trustee correctly replies, a Chapter X proceeding is not an ordinary case. In this context, the trustee argues, the prerequisites to a successful claim for breach of an executory contract are express rejection following a hearing on notice to the parties and permission of the court to reject. None of these elements, according to the trustee, is present here.

On the unusual facts of this case, we believe this last contention is erroneous. It is true that judicial action is necessary for rejection of an executory contract in a Chapter X proceeding, and that the formalities must ordinarily be complied with. Cf. In re American Nat’l Trust, 426 F.2d 1059, 1064 (7th Cir. 1970); Texas Importing Co. v. Banco Popular, 360 F.2d 582 (5th Cir. 1966); In re Childs Co., 64 F.Supp. 282 (S.D.N.Y.1944). But the record of these proceedings discloses an in-court coalescence of repudiation by the trustee with approval by the court. The judge made clear that the choice of creditors whose presses had been ordered and paid for in part, but not yet delivered, was to pay more on the original contract or to look to liquidation. While the trustee occasionally said he was not rejecting the original contracts, the effect of what was happening was precisely that. The court obviously gave its blessing to the increases in contract price, and authorized the trustee to give priority to completing the work under the new arrangements. We believe that this satisfied the requirements of sections 116 and 202 of the Bankruptcy Act that the court “permit” the rejection of an executory contract. This conclusion is fortified by various colloquies in open court with respect to the status of the premium payments. The judge repeatedly stated that creditors like Abarta, who made such payments, would have the right to file claims for them as general unsecured creditors under their original contracts. Such a right could logically be pressed only on the theory that their original contracts had been breached by Hoe’s refusal to perform at the original price.

These comments by the court lead to the trustee’s equally troublesome contention that the new arrangement operated as a “novation” or “substituted contract,” which eliminated any rights under the original contract. According to this theory, Abarta has no valid claim because the later agreement was performed in full. There is no doubt that the relevant orders are silent on the status of any claim regarding the premium payments, once the machines were delivered. But the following analysis appears useful. Let us assume a situation in which a solvent seller tells a buyer that because of increased costs the seller will not be able to manufacture and deliver goods without an additional payment and that unless the buyer makes or agrees to make such a payment, the seller will stop work, knowing that he will be subject to a successful suit. If the buyer agrees in writing to pay the additional sum without any reservation of rights, then, in the absence of economic duress, the buyer surely cannot maintain a suit against the seller after delivery of the goods. N.Y. Uniform Commercial Code § 2-209 (McKinney 1964). If, on the other hand, the buyer agreed with the seller that he would make the payment but that upon delivery of the goods he would sue for its recovery, a solvent seller would generally decline to proceed.

The situation differs, however, when the seller is insolvent. In such a case, a trustee for the seller might well decide to go ahead in the face of a reservation of rights by the buyer because of the desirability of getting funds with which to keep the venture alive and because of his knowledge that in all probability the buyer would not realize 100 cents per dollar on his general unsecured claim for damages for breach of the original contract.

The question thus becomes whether the buyer here effectively reserved its right to damages for the premium paid to obtain delivery. We conclude that the purchasers, including Abarta, reserved their right not merely to place a piece of paper in the files of the district court but to have the claim embodied in it sustained (if it was otherwise valid), free from any contention that they had merely entered into substitute contracts. While some of the statements at the hearings were ambiguous, a fair reading of the transcript as a whole persuades us that Abarta’s rights were preserved. The extracts cited by the judge in his memorandum opinion do not support a contrary conclusion. The opinion described Abarta’s options in response to the trustee’s proposal as, on the one hand, to pay no more and assert an unsecured claim for the money already paid to the debtor, or, on the other hand, to agree with the trustee to pay both the balance due and a premium to get the press. We believe that the description of the second option was too limited; it should also have included the right to recover part of the additional premium by filing a proof of claim in the proceeding. Abarta took the latter course only after press creditors were told “50 times,” see note 14 supra, that their right to do so was preserved. Under the circumstances, it was improper to deny Abarta the substance of that right at a subsequent stage in the proceedings.

While Judge Ryan is to be commended for his skillful handling of the reorganization proceeding at a particularly difficult time, we believe that the special master’s recommendation should have been followed. Accordingly, we hold that it was error to disallow and expunge Abarta’s claim as a general unsecured creditor. We agree with the special master and the judge, however, that the claim was not entitled to administration status.

Case remanded with directions to allow Abarta’s claim in accordance with this opinion.

      . The actual order appealed from was signed by Judge Harold R. Tyler, Jr., to whom the proceeding had been assigned after Judge Ryan’s decision.

      . At the time, there was only one trustee of the debtor. Although there are now two trustees, we will use the singular for convenience.

      . There was a later, minor upward adjustment of the contract price.

      . Order No. 5.

      . Order No. 29.

      . The record is not clear why the entire $423,-493 was not so protected.

      . Stipulation of Historical Facts, f| 8.

      . Id. at TT11.

      . Id.

      . For example, the judge told the attorney for a press customer, which had still not reached an agreement with the trustee on the premium to be paid for completion:
      [E]ither you are going to wind up in this case filing a claim as a creditor for non-delivery of the machine, or you are going to get a machine and a press that works.
      You [must] have money in your hands and you [must] be willing to pay it. Otherwise, you can’t get your machines.
      Otherwise, you are going to be a creditor, rather than a purchaser. It is as simple as that.
      Transcript of hearing, Oct. 8, 1969.

      . Thus, Order No. 5 stated that the trustee “is authorized to direct the Debtor to devote its principal efforts to the manufacture and delivery of presses” to those customers who had consented to prepay the balances due and to pay the 10% premium before delivery. Order No. 29 contains the same “principal efforts” language.
      At one of the hearings, the judge told the customers whose machines were scheduled for delivery before September 8:
      If you do not want to consent [to Order No. 5] don’t consent.
      Your machines will not be worked on [if you do not consent]. If they are worked on they will not be delivered. You have such remedies as might be available to you in law.
      Transcript of hearing, July 17, 1969.
      A few minutes earlier he had said, in a similar vein:
      Now that in a nutshell is the story; either you want these machines or you don’t want them.
      If you want the machines we have to have the money to complete them; we have to have the money to keep the plant going.
      I do not intend that we make any profit on this but I don’t know how we are going to work out and renegotiate these matters on these uncompleted machines other than the way we have enumerated that here.
      If your clients don’t want these machines, don’t take them, don’t make the payment. It is as simple as that.
      Id.

      . We do not understand the argument of the trustee that there was no hearing on notice to the parties. While Order No. 29, see note 5 supra, was entered on consent, Order No. 5, which approved the basic procedure after extensive hearings recites that notice was given to “press customers” and that “various . . . interested parties . . participated and presented their views.”

      . E. g., the following interchange occurred at the July 22, 1969, hearing:
      Mr. Wesely [counsel for the trustee]: To make it completely clear, your Honor, [at the time of delivery of the press] we would expect back the certificate issued for the prepayment of the balance due.
      The Court: But even if you turn back that certificate, they would still have a claim, whether or not it would be sustained or not, as an administration claim, they would still have a general claim, whether or not it would be sustained or not, a general claim as to additional amounts to be paid to get the machine over and above the contract price. That is my understanding of the law.

      . When an attorney for several press customers said his clients would be willing to pay the 10% premium if it were treated as a loan to the trustee repayable by him, the judge replied:
      That was discussed and it cannot be received under that condition:
      No. 1, I want to point something out to you, that your creditors or your clients would have a claim against the estate as a general creditor for any additional amount they paid for their machines over and above the contract price.
      Transcript of hearing, July 17, 1969.
      Shortly thereafter, the judge re-emphasized the point in response to another attorney’s question, and the following colloquy with counsel for the trustee ensued:
      The Court: No, I said that even though you had made this payment of an extra 10 per cent, that would not be considered as a waiver on the part of any purchaser of his right to claim this additional 10 per cent payment as an item of damage in the performance of the contract and file a claim in the event as he so selects as a general creditor for that amount.
      Mr. Wesely: . . . However, upon receipt of the press there would be no administration claim, no trustee obligation of any sort.

        The Court: Except that they would have a right to file and claim as a general creditor for alleged breach of contract.
      Id.
      At the final hearing on Order No. 5 several days later, an attorney for a press customer suggested that an express reservation of his client’s right to claim the additional amount as damages be included in the order so that there could be no conceivable question of waiver of those rights. Judge Ryan replied that while he did not see any objection to having such a provision in the order, “it might complicate things” and that “this order primarily is designed not to cover that but to cover completion and to cover the issuance of the trustee’s certificate.” Thus, the following colloquy then took place:
      The Court: Proof of claim of what?
      Mr. Gould: On the additional amount.
      The Court: You have that right. You want it in. If you want it in here I will put it in. But you have a right to file a claim for alleged brief [sic] of contract as a general creditor.
      Judge Ryan expressly declared that there would be no waiver, in the following colloquy applicable to all press customers who chose to pay the additional premium:
      The Court: .
      . I say that as a matter of law if you don’t waive your right, you have it and I have been careful not to have you waive your right.
      Mr. Gould: It is understood we are not waiving any rights.
      The Court: I said that 50 times. I say it again.
      Mr. Gould: We have it on the record. It is clear.
      The Court: It is on the record as far as I remember for our last three meetings.
      Mr. Gould: Fine. In those circumstances McClatchy will go along.
      Transcript of hearing, July 22, 1969.

      . One was the remark by counsel for the trustee, quoted in note 14 supra, which was immediately modified by the judge to reserve the right at issue here. In any event, counsel’s remark was clearly limited to the status of the payments as administration expenses and would not be controlling. The other extract was a remark of the judge, which can best be construed to the same effect.

      . On this disposition, it is unnecessary to deal with Abarta’s argument alleging economic duress.


source: Caselaw Access Project

author: CHAMBERS, Circuit Judge:

license: Public Domain

text:
    Joe VILLARREAL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1811.
    United States Court of Appeals, Ninth Circuit.
    Dec. 9, 1974.

      S. Thomas Pollack, Deputy Federal Public Defender, Los Angeles, Cal., for petitioner-appellant.
    Leslie E. Osborne, Asst. U. S. Atty., Los Angeles, Cal., for respondent-appel-lee.
    Before CHAMBERS, Circuit Judge, BALDWIN, Judge, and WALLACE, Circuit Judge.

       Honorable Phillip B. Baldwin, Associate Judge, United States Court of Customs and Patent Appeals, sitting by designation.

   OPINION

CHAMBERS, Circuit Judge:

In 1965, Villarreal pleaded guilty to two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and was sentenced to consecutive prison terms of ten and twenty years. Starting in 1967, he filed petitions under 28 U.S.C. § 2255 to vacate these sentences on the grounds that he had lacked understanding of the consequence of his plea and that the plea had been induced by representations from his counsel that his total sentence would not exceed fifteen years. In Villarreal v. United States, 461 F.2d 765 (9th Cir. 1972), we held that an evidentiary hearing must be conducted on these allegations. After conducting the hearing the district court reaffirmed its earlier opinion that the allegations were without merit. We affirm.

At the time the plea was entered, Villarreal stated that he knew he could receive a maximum sentence of twenty-five years and fine of $10,000 “on each count.” He was thus effectively aware that consecutive sentences totalling fifty years could be given. Hinds v. United States, 429 F.2d 1322 (9th Cir. 1970). There was more than ample evidence to support a finding by the district court that no promise was made by the Government that the sentence would be limited to fifteen years. Villarreal’s guilty plea is not rendered involuntary merely because his attorney told him that the court would “probably” give him such a lesser sentence. Ballinger v. United States, 470 F.2d 739 (9th Cir. 1972).

Villarreal’s final argument on appeal is that he had a right to be present at the evidentiary hearing. We think, however, that in view of the numerous affidavits filed in this case, the district court was correct in concluding that the facts could be fully investigated without requiring Villarreal’s presence. See Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).


author: HEANEY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Nick JOHN, Appellant; UNITED STATES of America, Appellee, v. Victor PADRATZIK, etc., Appellant. UNITED STATES of America, Appellee, v. Charles BERNSTEIN, etc., Appellant. UNITED STATES of America, Appellee, v. Steve LEKOMETROS, etc., Appellant.
    Nos. 72-1565, 72-1566, 72-1581 and 72-1594.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1973.
    Decided Jan. 6, 1975.
    Rehearing and Rehearing En Banc Denied in No. 72 — 1565 Jan. 30, 1975.
    Application for Stay Denied Feb. 18, 1975.
    See 95 S.Ct. 1115.

      Irl Baris, Newmark & Baris, St. Louis, Mo., and Merle L. Silverstein, Clayton, Mo., for appellants.
    Mervyn Hamburg, Atty., App. Section, Crim. Div., Dept, of Justice, Washington, D. C., for appellee.
    Before Mr. Justice CLARK, HEANEY, Circuit Judge, and SCHATZ, District Judge.

       TOM C. CLARK, Associate Justice, Retired, United States Supreme Court, sitting by designation.

       ALBERT G. SCHATZ, District Judge, District of Nebraska, sitting by designation.

   HEANEY, Circuit Judge.

Victor Padratzik and Charles Bernstein were found guilty of violating 18 U.S.C. § 1952 and of a conspiracy to violate the statute. Nick John and Steve Lekometros were found guilty of a conspiracy to violate the same statute. Evidence obtained pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520) was essential to the government’s case. Thirteen points of error are assigned on review; each will be discussed separately. We affirm.

I. THE CONSTITUTIONALITY OF 18 U.S.C. § 1952.

Appellants assert, without supporting argument, that 18 U.S.C. § 1952 is violative of the First, Fifth, Sixth and Tenth Amendments to the United States Constitution. This naked assertion of unconstitutionality is insufficient to warrant judicial review. United States v. Phillips, 433 F.2d 1364, 1366 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). Moreover, we have upheld the constitutionality of the section in prior cases. See, e. g., United States v. Nichols, 421 F.2d 570 (8th Cir. 1970); Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Bass v. United States, 324 F.2d 168 (8th Cir. 1963).

II. THE CONSTITUTIONALITY OF 18 U.S.C. §§ 2515-2518.

Appellants also attack the constitutionality of §§ 2515-2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. They invite us to reconsider United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), where we found Title III to be constitutional. We decline the invitation.

III. WHETHER THE GOVERNMENT’S FAILURE TO CORRECTLY IDENTIFY THE OFFICER WHO IN FACT AUTHORIZED APPLICATIONS FOR WIRETAP ORDERS PURSUANT TO 18 U.S.C. § 2518(l)(a) REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

This issue was decided adversely to the appellants in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974). Here, as in Chavez, the application for the order authorizing the interception of wire communications misidentified the officer authorizing the application in violation of 18 U.S.C. § 2518(l)(a). At trial, it was established, by affidavit, that then Attorney General John Mitchell was the officer who in fact gave the authorization to apply for the order. The Supreme Court in Chavez held that the initial misidentification, although improper, did not render the interceptions conducted under the order unlawful and subject to suppression. It reasoned that § 2518(l)(a) does not play a role in the regulatory scheme of Title III sufficient to justify the remedy of suppression when its provisions are violated. United States v. Chavez, supra, 416 U.S. 578-580, 94 S.Ct. 1857-1858, 40 L.Ed.2d at 394-395. See also United States of America v. Eugene Schaefer, et al., 510 F.2d 1307 (8th Cir. 1974); United States of America v. Steve Thomas, et al., 508 F.2d 1200 (8th Cir. 1974); United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. Cox, supra.

Appellants request further that the case be remanded for an evidentiary hearing to challenge Mr. Mitchell’s sworn statement that the authority to apply for the wiretap order was given before the order issued. We deny the request. We have held that the Supreme Court has approved the procedure followed here. See United States v. Brick, supra, 502 F.2d at 227 (Bright, J., concurring).

IV. WHETHER THE POSTPONEMENT OF THE SERVICE OF THE NOTICE AND INVENTORY PURSUANT TO § 2518(8)(d) OF THE ACT REQUIRES SUPPRESSION OF THE WIRETAP EVIDENCE.

During the course of the government’s investigation between January 8, 1971 and May 14, 1971, four orders authorizing the interception of wire communications were issued. The investigation terminated with the arrest of the appellants on June 19, 1971. Only the first order, issued January 8, 1971, became subject to the notice and inventory requirements of 18 U.S.C. § 2518(8)(d) before the investigation terminated. In order to preserve the effectiveness of the continuing investigation, the government applied for and received on April 22, 1971 and May 21, 1971, two successive orders of postponement of the service of the notice and inventory for the first wiretap order. The appellants assign this as error.

We emphasize that the inventory requirements were not ignored here. See United States v. Eastman, 465 F.2d 1057 (3rd Cir. 1972). Post-use notice must always be given by the issuing judge. United States v. Wolk, 466 F.2d 1143, 1146 (8th Cir. 1972). The notice here was received by the appellants after their arrest. Issue is taken only with the postponement of the notice and inventory which caused the service to occur more than ninety days after the termination of the first wiretap order.

Title III requires that an order of postponement be based upon “good cause.” 18 U.S.C. § 2518(8)(d). Here, the postponement was found by the District Court to be necessary for the continued effectiveness of the government’s investigation. This reason has been held sufficient to satisfy the “good cause” requirement. United States v. Manfredi, 488 F.2d 588, 602 (2nd Cir. 1973), cert. denied, 417 U.S. 936, 94 S.Ct. 2651, 41 L.Ed.2d 240 (1974); United States v. Lawson, 334 F.Supp. 612, 616 (E.D.Pa.1971). See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance, “Approved Draft 1971” at 161.

* * * On an ex parte showing of good cause, the serving of the inventory may be, not dispensed with, but postponed. For example, where interception is discontinued at one location, when the subject moves, but is reestablished at the subjects new location, or the investigation itself is still in progress, even though interception is terminated at any one place, the inventory due at the first location could be postponed until the investigation is complete. * * *

Senate Report No. 1097, 2 U.S.Code Cong. & Admin.News, p. 2194 (1968).

Moreover, we are satisfied, after reviewing the record, that the court below did not err in finding the facts sufficient to support the reason given. At least one of the persons affected by the first wiretap order was also affected by the other wiretap orders. It was probable that notice of the first order would have undermined the effectiveness of the subsequent orders. The completed wiretaps had produced evidence of a large scale gambling operation. Also, the preservation of the integrity of the subsequent orders was likely to result in the continued interception of incriminating communications. The postponement here was not improper.

V. WHETHER THE GOVERNMENT’S EXECUTION OF THE WIRETAP ORDERS DISREGARDED THE MINIMIZATION MANDATE OF § 2518(5) OF THE ACT.

Appellants challenge, for the first time, the manner in which the government executed the wiretap orders. They assert that the government’s continuous surveillance of the home telephones without regard to whether the persons suspected of illegality were on the premises was violative of the minimization requirements of 18 U.S.C. § 2518(5). The government does not contest the factual assertions; it justifies its procedure thusly:

* * * A similar condition [to minimize surveillance] placed upon appellants’ private lines would have been inappropriate because it would have prevented the agents from conducting a surveillance of pertinent calls actually intended for appellants, and because it would have impaired their rightful task to ascertain the identity of others believed to be involved in the conspiracy and the full extent of the bookmaking scheme.

We are not entirely satisfied with the justification given by the government. It may open the door wider than the Fourth Amendment permits. We do not decide in this case, however, whether the minimization requirements of 18 U.S.C. § 2518(5) have been exceeded because the appellants failed to raise the issue below and such failure precludes review of this Court. Brooks v. United States, 500 F.2d 103, 105 (8th Cir. 1974); 18 U.S.C. § 2518(10)(a). Moreover, because the attendant facts were not fully developed below, review pursuant to our discretionary power to recognize plain error is impossible. See United States v. Wright, 466 F.2d 1256, 1259 (2nd Cir. 1972), cert. denied, 410 U.S. 916, 93 S.Ct. 973, 35 L.Ed.2d 279 (1973). Whether the minimization requirements of Title III have been disregarded is a question that can be answered only after a review of the facts and circumstances of each case. What is excessive in one case may be appropriate in another. United States v. Cox, supra, 462 F.2d at 1300. See United States v. Manfredi, supra; United States v. Lanza, 349 F.Supp. 929 (M.D.Fla.1972). We leave to the appropriate occasion review of this question.

VI. THE GOVERNMENT’S FAILURE TO RECORD THE ENTIRETY OF EACH COMMUNICATION INTERCEPTED.

The appellant’s second attack on the government’s execution of the wiretap orders is also raised for the first time in this Court. They charge that the government violated 18 U.S.C. § 2518(8)(a) which requires, inter alia, that the recording of the intercepted communications “shall be done in such a way as will protect the recordings from editing.”

The record shows that the government agents listened to the entirety of each communication intercepted but recorded only those parts that “pertained to gambling.” “Private coversations” were not recorded. Whether this procedure failed to protect the recordings from editing in violation of the statute is a question we do not here decide. The appellants were aware of the procedure used before trial but did not move for suppression pursuant to 18 U.S.C. § 2518(10)(a), nor do they claim they were denied the opportunity to do so. Neither did they challenge the admission of the recordings on the ground of questionable authenticity. See United States of America v. Eugene Wesley Howard, 504 F.2d 1281, 1287 (8th Cir. 1974), United States v. Knohl, 379 F.2d 427 (2nd Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). The failure to raise the issue below forecloses review.

VII. WHETHER THE COURT ERRED IN PROVIDING THE JURY TYPED. TRANSCRIPTS OF THE COMMUNICATIONS INTERCEPTED WHILE THE TAPES THEREOF WERE BEING PLAYED TO THE JURY.

The trial court provided the jury with a typed transcript of each intercepted recording offered into evidence by the government. The appellants argue that this violated the best evidence rule, the rule against improper emphasis and repetition and the rule against hearsay.

The use of typed transcripts as visual aids to the jury in listening to the playback of the recorded communications is a matter within the sound discretion of the trial judge. United States v. Carson, 464 F.2d 424, 437 (2nd Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972); Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. denied, Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); United States v. Hall, 342 F.2d 849, 853 (4th Cir.), cert. denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965).

In the exercise of his discretion, the judge below reviewed the transcripts and found that they were prepared with care and accurately reflected the recorded communications. He also determined that the transcripts were necessary to enable the jury to intelligently follow the recorded conversations which contained gambling language unfamiliar to the jurors. Before distributing the transcripts, the court carefully instructed the jury on their limited use. It directed the jury to use the transcripts only as aids in listening to the recordings and to base its verdict upon what was heard and not upon what was read. Further, the jurors were directed to listen carefully to the declarant’s manner and emphasis of speech so as to understand the meaning of what was said. Finally, the transcripts were not made available to the jury during its deliberation. We cannot say that this careful and considered use of the typed transcripts was an abuse of discretion.

VIII. THE INSTALLATION OF PEN REGISTERS.

In conjunction with each order authorizing the interception of wire communications, the District Court issued an order authorizing the installation of a pen register on the telephones involved. The appellants’ contention that this was improper rests upon a two-pronged argument: Title III of the Act does not authorize the use of pen registers, and further, their use is specifically prohibited by 47 U.S.C. § 605.

Our decision in United States v. Brick, supra, explains the error in appellants’ argument. Neither Title III nor 47 U.S.C. § 605, as amended, prohibit the use of pen registers.

* * * In this situation it has been held that a pen register order based upon a showing of probable cause, even if considered to be a “search” is not constitutionally offensive * * *.

United States v. Brick, supra, 502 F.2d at 223.

The propriety of their use depends entirely upon compliance with the Fourth Amendment. United States v. Giorda-no, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341, 375 (1974) (Powell, J., concurring and dissenting).

Up*n review of the government’s affidavits submitted to the court in application for the orders authorizing the interception of wire communications, we are in agreement with the court below that there was probable cause for the installation of the pen registers. The affidavits contained detailed accounts of the personal observations of agents of the FBI, as well as information supplied by reliable unnamed informants, that linked the appellants to bookmaking. The informants’ reliability had been established by previous dealings, and the information supplied here was based on firsthand knowledge. Each informant was actively engaged in gambling activities in the St. Louis, Missouri, area. The orders authorizing the installation of pen registers were constitutionally proper.

IX. WHETHER THE COURT ERRED IN REFUSING TO STRIKE THE TESTIMONY OF FBI AGENT WILKISON BECAUSE OF THE GOVERNMENT’S FAILURE TO RECORD AND PRODUCE HIS GRAND JURY TESTIMONY IN LIGHT OF THE FACT THAT THE TESTIMONY OF OTHER GRAND JURY WITNESSES WAS RECORDED.

During the grand jury proceedings resulting in the indictment of the appellants, the government recorded .some, but not all, of the testimony presented. For example, the testimony of Aaron Singer, a codefendant who had pleaded guilty, was recorded, while the testimony of FBI Agent Wilkison, who was one of the agents principally in charge of the investigation of the appellants, was not'recorded. The appellants assign as error the unfairness of the government’s action which made discovery pursuant to the Jencks Act (18 U.S.C. § 3500(e)(3)) impossible. They argue that the testimony of Agent Wilkison at trial should not have been admitted. It is important to nofte that the appellants do not contend that the grand jury was used abusively as a vehicle for discovery. See United States of America v. Pasquale Sellaro, 514 F.2d 114 (8th Cir. 1973).

While the recording of all grand jury testimony is the desirable procedure, it is not mandatory. United States v. Franklin, 429 F.2d 274, 276 (8th Cir.), cert. denied, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed.2d 387 (1970); F.R.Crim.P. 6. Moreover, the selective recording of grand jury testimony has been held not to be offensive to due process. United States v. Arradondo, 483 F.2d 980, 984 (8th Cir. 1973). While we are sympathetic to the appellants’ complaint and recognize the limited nature of the relief sought, this Court is without power to amend Rule 6 of the Federal Rules of Criminal Procedure. The power lies with the Congress.

X. WHETHER REVERSIBLE ERROR RESULTED FROM THE INTRODUCTION INTO EVIDENCE OF A NEWSPAPER ARTICLE PREJUDICIAL TO THE APPELLANTS.

The government introduced, and had read to the jury, the contents of a newspaper article which FBI agents had observed appellant Lekometros read to appellants Padratzik and John. It was admitted for the purpose of proving the guilty knowledge of the appellants. The relevancy of the newspaper article is not contested. The appellants argue, rather, that the prejudicial effect of its introduction into evidence outweighed the probative value. They assert that the verbatim reading of the newspaper article attacked their character and intimated they were part of a more heinous conspiracy than the one charged. We agree that the article should not have been read, but find the error harmless.

The court instructed the jury, immediately after the newspaper article was read, to consider only the fact that Mr. Lekometros had read the article to Messrs. Padratzik and John, and not to consider the article as proof of any fact stated therein. The government’s testimony which followed also was limited to the relevant issue of scienter; the prejudicial nature of the article was not emphasized either during trial or in'closing argument. This isolated intrusion of prejudicial evidence in a record strongly-supporting the verdict of the jury had but slight, if any, effect and must be judged as harmless. See United States v. Oliver, 492 F.2d 943 (8th Cir. 1974); United States v. Harpel, 493 F.2d 346 (10th Cir. 1974).

XI. WHETHER THE ADMISSION INTO EVIDENCE OF THE RECORDED STATEMENTS OF PERSONS NOT DEFENDANTS AT TRIAL VIOLATED THE RULE AGAINST HEARSAY.

The appellants objected to twenty of the thirty-five recorded communications admitted into evidence on the ground that they contained statements of persons not defendants at trial. The appellants contend that the admission of these recordings violated the rule against hearsay.

A well recognized exception to the rule against hearsay provides:

* * * [0]ut of court statements made by a conspirator can be admitted against both declarant and his cocon-spirator if there is independent evidence of the conspiracy and if the statements were made during the pendency of the conspiracy in furtherance of the conspiracy itself.

United States v. Overshon, 494 F.2d 894, 898 (8th Cir. 1974).

The exception is not limited to the statements of conspirators who are made defendants at trial. United States v. Richardson, 477 F.2d 1280, 1283 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973).

The statements of Eugene Hanon, Aaron Singer and David Goldberg, if hearsay, were within the exception to the rule and properly admitted. There is independent evidence in the record to indicate that they were coconspirators and that their statements were made during the conspiracy and in furtherance of it. Because we find no independent evidence that Joe Samuelson, Ben Cohen and Mark Hanon were coconspirators, a closer review of their statements is necessary.

The statements of Ben Cohen and Mark Hanon were not hearsay. Their statements were received into evidence for the fact that the statements were made and not for the truth or falsity of the matters asserted. The statements of Joe Samuelson, with a few exceptions, were properly received on the same basis. The remaining statements were received by the court on the government’s offer of proof that he would be shown to be a coconspirator. See United States v. Reed, 446 F.2d 1226, 1231 (8th Cir. 1971). Moreover, the court instructed the jury that before it could use the statements against anyone but the declarant, it to find that Mr. Samuelson was a coconspirator. There is nothing in the record to indicate that the jury did not follow that instruction. We also note that no motion to strike Samuelson’s testimony at the close of the evidence was made.

XII. THE SUFFICIENCY OF THE EVIDENCE.

A. THE SUBSTANTIVE OFFENSE.

Appellants Padratzik and Bernstein challenge the sufficiency of the evidence to support the verdict of the jury finding them guilty of violating 18 U.S.C. § 1952 as a principal or an aider and abettok under 18 U.S.C. § 2. Section 1952 requires proof: (1) that a facility in interstate commerce was used by the defendants, (2) with intent by them to carry on or facilitate the carrying on of an unlawful activity in Missouri, and (3) thereafter they committed an act or attempt in furtherance of the unlawful activity. Spinelli v. United States, supra, 382 F.2d at 893. The aiding and abetting statute requires proof of some affirmative participation which at least encourages the perpetrator. United States v. Atkins, 473 F.2d 308, 310 (8th Cir.), cert. denied, 412 U.S. 931, 93 S.Ct. 2751, 37 L.Ed.2d 160 (1973).

The appellants concede the sufficiency of the evidence of use of a facility in interstate commerce — the telephone. They challenge the sufficiency of the evidence to support the second and third elements. We view these challenges in the light most favorable to the jury verdict with all evidentiary conflicts resolved in favor of that determination. United States v. Simone, 495 F.2d 752, 753 (8th Cir. 1974).

In this light, we hold that the jury could find the requisite intent from the recordings of the conversations between appellant Padratzik, in Missouri, and appellant Bernstein, in Las Vegas. The interstate telephone calls were used to pass line information from Bernstein to Padratzik with knowledge on the part of both that the line information would be used in a bookmaking operation by Pa-dratzik and others in Missouri.

The jury finding of the subsequent overt act in furtherance of an activity violative of state law turns upon the requirements of Mo.Rev.Stat. §§ 563.350 and 563.360. The appellants argue that the evidence is insufficient to show a violation of either statute because there is nothing to show that they recorded or registered bets. Such a showing would prove the violation of state law. Mo. Rev.Stat. § 563.360, however, prohibits more than the act of recording bets or wagers. United States of America v. Pasquale Sellaro, supra, 514 F.2d at 120.

The evidence shows that appellant Pa-dratzik distributed to Missouri bookmakers the line information received from Las Vegas by telephone. Moreover, the gambling paraphernalia seized at the arrest of appellants Padratzik and John supports the conclusion that they too recorded bets or wagers. The jury conclusion that Padratzik acted in violation of 18 U.S.C. § 1952, and that Bernstein, who supplied the line information necessary to the gambling operation, was at the very least an aider and abettor punishable as a principal is supported by the record.

B. THE CONSPIRACY OFFENSE.

All appellants challenge the sufficiency of the evidence to support their conviction of conspiracy. Appellant John argues further that even if the evidence shows the existence of a conspiracy, his participation therein was not violative of federal law.

The record shows a concert of action among the appellants. Padratzik received the line information from his Las Vegas contact, Bernstein, and then directed his employee, John, on the use of that line information. John, in turn, would report to Padratzik on the bets received. Appellant Lekometros also maintained a Las Vegas contact, David Goldberg, for the receipt of line information. Padratzik and Lekometros would compare and discuss the line information received from their respective sources. Together with appellant John and others, they would also meet together to discuss the operation of the bookmaking business. Other meetings were held in Las Vegas with Padratzik, Leko-metros, Bernstein and Goldberg for the same purpose.

John’s contention that his participation in the conspiracy was not violative of federal law rests upon his asserted lack of knowledge of use of an interstate facility. He relies on United States v. Barnes, 383 F.2d 287 (6th Cir. 1967), cert. denied, 389 U.S. 1040, 88 S.Ct. 780, 19 L.Ed.2d 831 (1968). The reliance is misplaced, for the record supports the conclusion that John knew the telephone was used by Padratzik in Missouri to obtain line information from a Nevada source.

A conspiracy is rarely proved by direct evidence. The proof usually rests upon circumstantial evidence and inferences drawn from the relationship of the parties. Koolish v. United States, 340 F.2d 513, 523 (8th Cir.), cert. denied, 381 U.S. 951, 85 S.Ct. 1805, 14 L.Ed.2d 724 (1965). Here, the jury could conclude from the meetings attended by John, where gambling was discussed and telephone calls attempted, that he knew of the Las Vegas contact.

XIII. WHETHER SUBMISSION OP THE CASE TO THE JURY ON THE THEORY OF ONE CONSPIRACY WAS CORRECT.

The jury was instructed that before it could find the appellants guilty of conspiracy, it had to find beyond a reasonable doubt that a conspiracy existed and that each appellant was a member thereof. The appellants assert that the evidence showed not one but several conspiracies and argue that the failure of the instruction to conform to the evidence requires reversal. They cite Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).

The facts here, however, are dissimilar to those presented in Kotteakos, for the evidence establishes' the existence of but one conspiracy.

The answer to the question whether there is a single conspiracy * * * depends on whether there is a single agreement. There may be an undertaking to commit one crime or several crimes. If there is but one agreement, there is but one conspiracy. A test whether the activities of the defendants constitute a single conspiracy is whether there is a common purpose underlying the separate acts, whether the same objective is being pursued in each instance, and whether there is concerted action to achieve this end.

Koolish v. United States, supra, 340 F.2d at 524, citing from United States v. Speed, 78 F.Supp. 366, 368 (D.D.C.1948). The facts recited in section XII show that each appellant acted with the others to promote the operation of the gambling business. The fact that they may have also acted as independent bookmakers does not preclude their participation in the single conspiracy. United States v. Hanon, 428 F.2d 101, 108 (8th Cir. 1970), cert. denied, 402 U.S. 952, 91 S.Ct. 1608, 29 L.Ed.2d 122 (1971).

Affirmed.

      . § 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises.

      (a) Whoever travels in interstate * * * commerce or uses any facility in interstate * * * commerce, * * * with intent to—
      (1) to distribute the proceeds of any unlawful activity; or
      ******
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, and thereafter performs or attempts to perform any of the acts specified in subpara-graphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling * * *.

      . § 2518. Procedure for interception of wire or oral communications.

      (1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant’s authority to make such application. Each application shall include the following information:
      (a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application!.]

      . The affidavit of Attorney General Mitchell read as follows:
      I held the office of Attorney General of the United States from January 21, 1969, through March 1, 1972.
      On January 8, March 10, April 19, and May 13, 1971, I personally initialed memo-randa authorizing applications for interception orders in this case. Copies of these memoranda are attached.
      Each memorandum also constituted a notification to the Assistant Attorney General of the Criminal Division that I had performed the discretionary act of authorizing an application to a judge of competent jurisdiction for the specified interception order.

      . Title III requires that:
      The Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made * * *
      18 U.S.C. § 2516(1).

      . The author agrees with Judge Bright’s concurring opinion in United States v. Brick, 502 F.2d 219 (8th Cir. 1974), that an evidentiary hearing would dispel the residual doubts as to the compliance with Title III. Section 2516(1) requires:
      * * * [Tjhat the authority * * * be exercised before the application is presented to a federal judge. * * * It would ill serve the congressional policy of having the Attorney General or one of his Assistants screening the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on the assumption that proper authorization to apply for intercept authority had been given.
      United States v. Giordano, 416 U.S. 505, 523, 94 S.Ct. 1820, 1831, 40 L.Ed.2d 341, 358 n. 12 (1974) (Emphasis included.).
      He would go a step further and remand for such a hearing, but a majority of this Court has decided that a remand is unnecessary.

      . 18 U.S.C. § 2518(8)(d) reads as follows:
      (d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518(7)(b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of—
      (1) the fact of the entry of the order or the application;
      (2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and
      (3) the fact that during the period wire or oral communications were or were not intercepted.
      The judge, upon the filing of a motion, may in his discretion make available to such person or his counsel for inspection such portions of the intercepted communications, applications and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction the serving of the inventory required by this subsection may be postponed.

      . Because we find that the orders of postponement conformed to the statutory requirements, it is not necessary to decide whether, in a particular case, the “reasonable time” language of 18 U.S.C. § 2518(8)(d) would require the service of the notice and inventory before the expiration of the outside limit of ninety days.

      . All four orders authorizing the interception of the conversations conducted on these telephones required the government to proceed in a manner likely to minimize the interception of communications not subject to the order. The appellants challenge the government’s procedure because a distinction was made between the surveillance of the home telephones and the surveillance of the pay telephones. In regard to the latter, the government was authorized to intercept the communications only when it was determined, by physical surveillance, that a suspect was using the pay telephone.
      None of the home telephones subject to the order authorizing the interception of the conversations were issued to the appellants. In view of our disposition of this issue, it is not necessary to determine whether the appellants have standing to complain.

      . 18 U.S.C. § 2518(5) reads as follows:
      No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.

      . Because the orders authorizing the installation of pen registers satisfied the probable cause requirement of the Fourth Amendment, it is not necessary to decide whether their use constitutes a “search.” See United States v. Giordano, supra, 416 U.S. at 375 n. 4, 94 S.Ct. 1820; United States v. Brick, supra at 223.

      . Rule 6 of the Federal Rules of Criminal Procedure has been severely criticized for not requiring the government to record all grand jury testimony. See e. g., United States v. Arradondo, 483 F.2d 980, 984 n. 4 (8th Cir. 1973); United States v. King, 478 F.2d 494, 507 (9th Cir. 1973), cert. denied, Light v. United States, 414 U.S. 846, 94 S.Ct. 111, 38 L.Ed.2d 94 (1974); Wright, Federal Practice and Procedure, § 103 at 161.

      . 18 U.S.C. § 1952 requires, as an element of proof, the knowing involvement in an unlawful activity.

      . Mr. Goldberg was severed from the trial and the charges against him were later dismissed by the government.


text:
    UNITED STATES of America, Appellee, v. David BOHN, Appellant. UNITED STATES of America, Appellee, v. Vernon J. KLEVE et al., George M. Patterson and Max Weisberg, Appellants. UNITED STATES of America, Appellee, v. Dick RANDAZZA and Joseph Sierbinski, Appellants.
    Nos. 73-1271, 73-1299, 73-1182 and 73-1183.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Jan. 3, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1676.
    See also 8 Cir., 465 F.2d 187.

      Ronald I. Meshbesher, Minneapolis, Minn., for appellant, Bohn.
    Ronald L. Haskvitz, Minneapolis, Minn., for appellants, Kleve, Patterson, and Weisberg.
    George R. Ramier, Minneapolis, Minn., for appellants, Sierbinski and Randazza.
    Thorwald Anderson, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   HEANEY, Circuit Judge.

Vernon Kleve, George Patterson, Max Weisberg, Joseph Sierbinski, Dick Ran-dazza and David Bohn were convicted by the court of conspiring and of engaging with five or more persons in conducting, financing, managing, supervising and directing an illegal gambling business from February 18, 1971 to June 18, 1971, in violation of 18 U.S.C. §§ 1955 and 371.

Kleve and Patterson were sentenced to eighteen months on each count; Bohn was sentenced to one year on each count; and Weisberg, Sierbinski and Randazza were sentenced to six months on each count. The judge ordered that the sentences of each defendant be served concurrently.

Numerous common issues are raised by the defendants. Many of these issues have been answered adversely to the defendants in recent opinions of this Court. We have held in cases factually similar to this one that the government’s failure to correctly identify the officer who in fact authorized application for wiretap orders pursuant to 18 U.S.C. § 2518(l)(a) does not require suppression of evidence obtained through wiretapping, United States of America v. John et al., 508 F.2d 1134 (8th Cir. 1974); United States of America v. Schaefer et al., 510 F.2d 1307 (8th Cir. 1975); United States of America v. Thomas et al., 508 F.2d 1200 (8th Cir. 1975); United States v. Brick, 502 F.2d 219 (8th Cir. 1974); United States v. Cox, 462 F.2d 1293 (8th Cir. 1972), that it is not necessary to remand cases to the District Court to test whether Attorney General Mitchell in fact authorized the application for the wiretap order, United States of America v. John et al., supra; United States v. Brick, supra, and that absent a clear showing of prejudice, a failure to comply with the notice and inventory requirements of 18 U.S.C. § 2518(8)(d) does not require suppression of wiretap evidence, United States v. Wolk, 466 F.2d 1143 (8th Cir. 1972). We follow those decisions here, and hold that similar contentions raised by the appellants here are without merit.

It is not necessary for us to consider whether it was proper to convict each defendant of conspiracy as well as the substantive offense, because all defendants were given concurrent sentences on each count and no showing has been made that adverse consequences will flow from the application of the concurrent sentences.

Appellants Kleve, Patterson and Weisberg challenge the constitutionality of 18 U.S.C. § 1955. They contend that the term “conduct,” which identifies those persons to be included within the “five or more” requirement of the statute, is ambiguous and violative of due process on the ground of vagueness. The Third and Ninth Circuits have upheld that constitutionality of 18 U.S.C. § 1955 against this challenge. We agree with the results there reached. See United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Riehl, 460 F.2d 454 (3rd Cir. 1972).

There is no merit to the contention of Randazza and Sierbinski that the trial court’s special findings of fact were inadequate under Federal Rule of Criminal Procedure 23(c). While the special findings made at their request are sketchy, they are sufficiently complete to satisfy the minimum requirements of the rule. We can discern therefrom the legal and factual basis of the trial court’s verdict. Moreover, we are convinced, notwithstanding their conclusory allegations to the contrary, that the appellants’ ability to appeal all assignments of error was not impaired. See United States v. Livingston, 459 F.2d 797, 798 (3rd Cir. 1972) (en banc).

There is little merit to the contentions of Kleve, Patterson and Weisberg that the affidavits in support of a warrant to search Apartment 103, University Apartments, 1414 Third Street, South, Minneapolis, Minnesota, and in support of a warrant for their arrest, failed to state facts sufficient to establish a probable violation of § 1955. The affidavits in support of the search and arrest warrants were signed on June 21, 1971, by George Anderson, a Special Agent of the Federal Bureau of Investigation. The affidavits were presented to the same magistrate. When read together, the affidavits clearly show probable cause for believing that Kleve, Patterson and Weisberg operated a “book,” and that Evelyn Kleve worked with them in the operation of the book. The affidavits also set forth probable cause for believing that the “Kleve book” received and exchanged “line information” and accepted wagers and layoff bets from other bookmakers, including Randazza and Bohn. Anderson recited that he had obtained this information from personal observation, from court-approved telephonic interceptions, see United States v. Kleve, 465 F.2d 187 (8th Cir. 1972), and from informants who had furnished reliable information to him in the past on gambling matters and who had personally used the telephone to place bets with the Kleve book in the period immediately preceding the request for the warrants. The affidavits thus gave probable cause to believe that five or more persons were conducting a gambling operation in violation of § 1955 in Apartment 103. It follows that the search and arrest warrants were clearly valid as to those who directly conducted the Kleve book, i. e., Kleve, Patterson and Weisberg.

There is more of a question with respect to Bohn. We believe that the affidavits, when read together, show probable cause for arresting him for violating § 1955. They can reasonably be read as stating that Bohn was a bookmaker, who received “line information” from the Kleve book and placed layoff bets with that book on May 12, 1971. For these reasons, Bohn would, under the theory adopted by the court below and hereinafter approved by this Court, be considered as one of five or more persons conducting and financing an illegal gambling business within the meaning of § 1955.

There is more than sufficient evidence to sustain the convictions of Kleve, Patterson and Weisberg on the substantive count. They were admitted bookmakers who engaged in every activity common to that occupation. Their claim on appeal is that their bookmaking business was not so extensive as to be prohibited by § 1955, since that statute covers only businesses involving five or more persons. Specifically, they challenge the government’s theory that otherwise independent bookmakers who “layoff” bets and exchange line information with their book can be counted in determining whether a gambling business involving five or more persons was being operated. They also claim that the government has failed to establish that the “Kleve book” in fact laid off bets with other bookmakers or exchanged line information with other bookmakers.

The challenge to the government’s theory must fall. This Court, with Judge Lay dissenting, recently held that:

The interdependence of the various individual components, including the sharing of line information and the exchanging of profits through layoff betting, outweighs the “independent businessmen” theory urged by appellants and satisfies us that there was one “illegal gambling business” here for the purposes of 18 U.S.C. § 1955. * * *

United States of America v. Schaefer et al., supra, 510 F.2d at 1312 (Footnote and citations omitted.).

The claim of Kleve, Patterson and Weisberg that the book they operated did not deal with at least two other bookmakers must also fall because the evidence shows that they dealt with Bohn and Randazza, who also operated books.

There is more than sufficient evidence to sustain the conviction of Bohn on the substantive count. The wiretap transcripts reveal that Bohn received line information and placed layoff bets by telephone with the Kleve book on May 11 and 12, 1971. These conversations, according to the testimony of a government expert on cross-examination, were typical of those between bookmakers. When Bohn was arrested, two documents — a marked bottom sheet and a marked sports program of coming events — were found in his possession. Both documents, according to the same government expert witness, were records of the type commonly kept by bookmakers. Records found in the Kleve book supported this expert testimony.

There is also more than sufficient evidence to support the conviction of Randazza on the substantive count.

There is not sufficient evidence to sustain the conviction of Sierbinski on either the substantive or the conspiracy count. Giving the government the advantage of every permissible inference, it simply failed to make out its case. The only evidence with respect to Sierbinski is that he called the Kleve book on three occasions. During these calls, no line information was exchanged and no bets, layoff or otherwise, were made. All of the conversations concerned the payment by Sierbinski to the Kleve book of a sum of $168.00. While it can be inferred from the record that this money was owed because of one or two bets which Sierbinski had placed with the Kleve book, the conversations were not specifically categorized by the government’s expert as being those of a bookmaker laying off his bets with another bookmaker. None of the terminology symbolic of layoff betting was used by Sierbinski or the Kleve book in any of the conversations. The government argues that the conversations indicate that at least $50.00 of the bet was placed with the Kleve book by Sierbinski for another party. They would have us hold that this single fact is sufficient to classify Sierbinski as a bookmaker and to sustain his conviction on the basis of this classification. We are unwilling to go that far.

The government further contends that in one of the conversations, the Kleve book and Sierbinski discussed two other individuals — an “Ollie” and an “Azar.” We have read the conversations with respect to these men carefully and find nothing in them which would strengthen the government’s contention. Assuming that “Ollie” and “Azar” were bookmakers, that fact does nothing to strengthen the government’s contention that Sier-binski was a bookmaker who exchanged line information and made layoff bets with the Kleve book.

Appellant Bohn alleges error in the refusal of the trial judge to grant his motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. The motion was based on the post-conviction affidavits of Weisberg and Patterson that stated their willingness to testify that, to the best of their knowledge, Bohn was a bettor and not a bookmaker. The granting or denial of a new trial motion is a matter within the broad discretion of the trial judge that rests upon factual and credibility determinations. United States v. Stewart, 445 F.2d 897, 899 (8th Cir. 1971). On the basis of the record before us, we cannot say that the trial judge abused his discretion here.

We affirm the District Court judgment of conviction as to Kleve, Patterson, Weisberg, Randazza and Bohn. We reverse its judgment with respect to Sierbinski.

      . Neil Thomas Naftalin, Peter Cohen, John Ruberto, Vivian (Peg) E. Ruberto and Evelyn D. Kleve were also charged in the same indictment. The government dismissed the charges against Neil Thomas Naftalin and Peter Cohen. The others were found guilty of both counts of the indictment and have not appealed.

      . The activities were illegal under Minnesota law, M.S.A. § 609.76.

      . The author adheres to his dissent in United States of America v. Thomas et al., 508 F.2d 1200 (8th Cir. 1975), but accepts the decision of the Court as binding on this panel.

      . This case is, therefore, unlike United States of America v. Schaefer et al., Nos. 73-1506, 73-1526, 73-1538, 73-1577, 73-1578, 73-1611 and 73-1617, 510 F.2d 1307 (8th Cir. 1975), where consecutive sentences were given to a number of defendants. There, we reversed the conspiracy convictions on the ground that the conspiracy consisted of nothing more than an agreement which the defendants performed by the commission of the substantive offense and that, therefore, the charge was violative of the Fifth Amendment command against double jeopardy.


author: LEWIS, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Merle I. ZWEIFEL and Kenneth Roberts et al., Defendants-Appellants.
    No. 74-1087.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 11, 1974.
    Decided Jan. 14, 1975.

      Clement Theodore Cooper, Washington, D. C. (Franklin J. Smith, Cheyenne, Wyo., with him on the brief), for defendants-appellants.
    Jacques B. Gelin, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., Richard V. Thomas, U. S. Atty., and Terrence L. O’Brien, Washington, D. C., with him on the brief), for plaintiff-ap-pellee.
    Before LEWIS, Chief Judge, HOLLOWAY, Circuit Judge, and CHRISTENSEN, District Judge.
   LEWIS, Chief Judge.

Twenty-seven persons who, through Merle I. Zweifel, filed association mining claim certificates covering large tracts of public land in Wyoming, appeal from a judgment of the United States District Court for the District of Wyoming invalidating their claims and quieting title to the lands in the United States. This appeal turns on the questions whether the district court had jurisdiction over the government’s suit and, if so, whether the court could properly exercise jurisdiction in view of the government’s failure to seek a prior administrative determination of the validity or invalidity of the mining claims alleged to cloud the government’s title.

I

Zweifel advertised a claim-staking service and thereby induced the appellants and others to invest in his plan to stake association placer mining claims covering portions of the Green River Formation in Wyoming. Zweifel filed location certificates for several thousand such claims between 1965 and 1971. After filing the certificates, Zweifel communicated with firms holding coal prospecting permits or leases for the same lands; citing the Multiple Mineral Development Act, 30 U.S.C. § 526(e), he demanded survey and other information from those firms, and he requested that agreement be reached for the processing and extraction of locatable minerals commingled in the coal deposits.

On October 17, 1972, the United States brought suit against some 267 claimants, including the appellants, to invalidate claims that Zweifel purported to have located throughout nine counties of Wyoming. The government alleged that these claims constituted a cloud on its title to public lands. In a nonjury trial, the government’s witnesses included six persons who, as geologists or mining engineers, had inspected some of the lands for which Zweifel had filed location certificates. They testified that they had observed no mineral discovery or production activity, nor any posts, stakes or location notices, on any of the Zweifel claims. An official of the Wyoming Tax Department testified of the absence of any record of mineral production for purposes of assessing state ad valorem taxes on production. An official of the Wyoming Department of Environmental Quality testified of the absence of any application by Zweifel for a permit to mine, mill, or disturb the surface for discovery or development work, as required by Wyoming law. Finally, officials of the Bureau of Land Management testified that insofar as they had inspected Zweifel’s claims they had observed no development or mining activity. A BLM inspector testified that it would have been impossible for Zweifel to locate, as his filed location certificates indicated, 2,000 mining claims in one day. The appellants presented no evidence; the court took notice, however, of interrogatories tending to show that Zweifel had represented to the appellants that he or his agents had performed necessary location and discovery work on the claims.

An understanding of the court’s ruling requires a brief summary of applicable mining law. Federal law requires that mining locations be made in good faith for the purpose of mining, processing or prospecting for valuable minerals. 30 U.S.C. § 612; United States v. Nogueira, 9 Cir., 403 F.2d 816. Locations must be distinctly marked on the ground, and not less than $100 worth of labor must be performed or improvements made annually on each claim. 30 U.S.C. § 28. A locator’s failure to comply with these requirements opens the claim or mine to relocation by others just as if no location had ever been made. Id. Federal law also subjects mineral locators to such state location requirements as are not inconsistent with federal mining provisions. Kendall v. San Juan Silver Mining Co., 144 U.S. 658, 12 S.Ct. 779, 36 L.Ed. 583. Wyoming law requires the discoverer of any placer claim to file, within 90 days of discovery, in the office of the county clerk, a location certificate containing, inter alia, the date on which location work was performed. Wyo.Stat. § 30-10. Before filing the certifícate, the discoverer must have located the claim by-marking its surface boundaries with “substantial monuments.” Id. §§ 30-3, 30 — 10. Under both federal and state law, a valid mining location cannot be made without a discovery of valuable minerals within the claim. 30 U.S.C. § 23; Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350; Dean v. Omaha-Wyoming Oil Co., 21 Wyo. 133, 128 P. 881, 129 P.. 1023. See 1 Rocky Mntn. Mineral Law Foundation, American Law of Mining § 4.13 et seq. “Discovery” in this context means the actual physical disclosure of a valuable mineral deposit. Henault Mining Co. v. Tysk, 9 Cir., 419 F.2d 766. A “valuable” mineral deposit is one that “a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine”. United States v. Coleman, 390 U.S. 599, 602, 88 S.Ct. 1327, 20 L.Ed.2d 170, quoting, Castle v. Womble, 19 L.D. 455, 457.

The court below held that the challenged Zweifel claims constituted a cloud on the title of the United States to public lands and that the government had proved prima facie that the claims were invalid on the following grounds. (1) The claims were not located in good faith for mining purposes. (2) The claimants made no discovery of mineral deposits locatable under federal mining law. (3) The claimants made no discovery of valuable mineral deposits. (4) The claims were not located in compliance with federal and state procedures with respect to the fixing of notice on and designating the boundaries of each claim.

The court based its jurisdiction upon 28 U.S.C. § 1345, which vests the district courts with jurisdiction in all civil actions commenced by the United States, except as otherwise provided by Congress'. The appellants’ chief argument both at trial and on appeal is that the statutes giving the Secretary of the Interior plenary authority over the administration of public lands and the regulations authorizing the government to initiate administrative proceedings to invalidate mining claims create an exception to section 1345’s jurisdictional grant to the district courts. Appellants thus contend that the Department of the Interior has exclusive original jurisdiction over actions commenced by the government for the sole purpose of invalidating un-patented mining claims. Appellants infer that the government has attempted to obscure the jurisdiction issue by styling its action to invalidate mining claims as one to quiet title. We begin by denying that the government acted improperly in this respect.

II

A discovery of valuable minerals by a qualified locator upon unappropriated public land creates substantial rights in the locator as against the United States. If one locates, marks and records his claim in accordance with federal and state law, he has “an exclusive right of possession to the extent of his claim as located, with the right to extract the minerals . . . without paying any royalty to the United States as owner, and without ever applying for a patent or seeking to obtain title to the fee . . . .” Union Oil Co. v. Smith, 249 U.S. 337, 348-349, 39 S.Ct. 308, 311, 63 L.Ed. 635. Location and recordation of claims without actual discovery of valuable minerals, or recordation without marking the claim in compliance with federal and state law casts a cloud on the title of the United States. See Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659; Davis v. Nelson, 9 Cir., 329 F.2d 840. The authority of the Secretary of the Interior, or of the Justice Department at the behest of the Secretary, to contest the validity of mining claims on public lands is not dependent upon the assertion by the United ■ States of some contemplated use for the lands in question. “Establishment of clear title to public lands is itself sufficient justification for the action.” Davis v. Nelson, supra, 329 F.2d at 846.

As the appellants observe, private claimants are prohibited from seeking federal court interference with proceedings to determine the validity of claims pending before the Department of the Interior. Once the Secretary has initiated an administrative contest, the jurisdiction of the courts is withdrawn as respects suits filed by private claimants either to halt the administrative proceedings or to substitute the court’s determination of claim validity for that of the Interior Department. See Northern Pac. Ry. v. McComas, 250 U.S. 387, 39 S.Ct. 546, 63 L.Ed. 1049; United States v. Hitchcock, 190 U.S. 316, 23 S.Ct. 698, 47 L.Ed. 1074; Brown v. Hitchcock, 173 U.S. 473, 19 S.Ct. 485, 43 L.Ed. 772. These authorities, however, do not foreclose the government’s entering federal court to vindicate its title to public lands, United States v. Nogueira, 9 Cir., 403 F.2d 816. Nor do the statutes conferring upon the Secretary authority over the administration of public lands constitute, by their terms, an exception to federal court jurisdiction under 28 U.S.C. § 1345. To read into these statutes an implied exception to the general grant of jurisdiction would, in cases like the present one, pointlessly defeat the policy of the mining laws to keep the public mineral lands open to qualified locators and thereby to encourage discovery of valuable deposits. See 30 U.S.C. § 22; United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170. Were we to insist upon full administrative consideration of patently invalid claims, followed by court review of administrative action, we would needlessly prolong the period during which qualified locators would forbear from discovery work on the clouded lands.

We therefore hold that the United States may, at its election, proceed either in the administrative tribunal of the Department of the Interior or, under 28 U.S.C. § 1345, in the district court to clear title to public lands where the validity of unpatented mining claims is at issue.

Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct 379, 9 L.Ed.2d 350, is not to the contrary. There the Supreme Court held that the United States could properly resort to administrative proceedings even though it had possession of the property by virtue of a condemnation suit instituted in federal court. The Court’s decision in Best, significantly, bore upon the propriety of coordinated judicial and administrative inquiries into the government’s rights in mineral lands. Although the Court sounded general approval of district court abstention with respect to issues uniquely within the particular expertise of the Department of the Interior (see discussion infra), Best cannot be read to limit federal court jurisdiction over civil suits initiated by the government. Rather the law remains that the United States, having title to public lands, is free to vindicate its rights therein either before the Interior Department or in the courts “at its election if proceedings are initiated by it.” Kennedy v. United States, 9 Cir., 119 F.2d 564, 565. See also United States v. Schultz, N.D.Cal., 31 F.2d 764; United States v. Mobley, S.D.Cal., 45 F.Supp. 407.

Appellants’ more compelling argument is that even if the district court had jurisdiction over the government’s action, the court should nevertheless have deferred to the Department of the Interior for an administrative determination of the Zweifel placer claims’ validity. “When there is a basis for judicial action, independent of agency proceedings, courts may route the threshold decision as to certain issues to the agency charged with primary responsibility for governmental supervision or control of the particular industry or activity involved.” Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 208, 27 L.Ed.2d 203. The principal reason behind the practice of so routing certain issues to agency tribunals is the need for orderly and sensible coordination of the work of agencies and of the courts. “Whether the agency happens to be expert or not, a court should not act upon subject matter that is peculiarly within the agency’s specialized field without taking into account what the agency has to offer, for otherwise parties who are subject to the agency’s continuous regulation may become the victims of uncoordinated and conflicting requirements.” 3 Davis, Administrative Law Treatise § 19.01 (1958).

Certainly the Interior Department is charged with primary responsibility for determinations of the validity of mining claims. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 337, 83 S.Ct. 379, 9 L.Ed.2d 350. But we believe that the court below correctly refused to insist upon a prior administrative inquiry to the challenged Zweifel claims for two reasons.

First, the agency to which appellants would have the court turn was itself very much a part of this litigation, and the agency’s position with respect to the claims was clear. The suit was filed at the behest of the Secretary of the Interior. An inspector for the Bureau of Land Management testified as to the physical impossibility of Zweifel’s having located some 2,000 claims, as the location certificates indicated. Moreover, the Department of the Interior’s views as respect Zweifel’s failure to do development work on appellants’ claims should be abundantly clear from a line of the Department’s decisions spanning eighty years.

Second, the conclusion of the court below that Zweifel did not locate appellants’ claims in good faith for mining purposes did not involve a factual inquiry with respect to which courts, because of their relative inexperience in the area, must defer to the expertise of the Interior Department. The issue of good faith in filing location certificates involves an inquiry into the intent of the locator. United States v. Nogueira, supra, 403 F.2d at 823. Courts, we submit, regularly decide such questions, and the district court in the present case was fully qualified to do so. An important principle underlying the doctrine of primary administrative jurisdiction is that “in cases raising issues of fact not within the conventional experience of judges agencies created by Congress for regulating the subject matter should not be passed over.” Far East Conference v. United States, 342 U.S. 570, 574, 72 S.Ct. 492, 494, 96 L.Ed. 576. The desirability of court abstention diminishes where the court faces factual issues of the sort that it considers routinely.

III

Appellants acknowledge the established rule that in an action to contest mining claims the government bears the burden of establishing prima facie the invalidity of the claims, the burden then shifting to the claimant to prove that his claims are valid. United States v. Springer, 9 Cir., 491 F.2d 239; Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836. Appellants do not apparently dispute that the government established prima facie the invalidity of their claims. Rather they urge reexamination of the rule requiring only prima facie proof of invalidity in light of the general federal principle that the party who has pleaded the existence or nonexistence of a fact must bear the whole burden of proving the same.

In both Foster and Springer claimants sought court review of adverse rulings by the Interior Department. They argued that the rule requiring the government to make only a prima facie showing of claim invalidity in agency contests contravened provisions of the Administrative Procedure Act that require the proponent of a rule or order to bear the burden of proof, except as otherwise provided by statute. In response to this argument both courts reasoned as follows. The mining laws give a person the right to initiate a claim to public lands by means of the unilateral act of entry. After he complies with all the requirements of the law as to discovery, location, and assessment work, his entry may ripen into a claim against the United States. In a contest proceeding, therefore, the claimant rather than the government is the proponent of a ruling that he has complied with applicable mining laws. The government must go forward with sufficient evidence to establish prima facie the invalidity of contested claims, and the burden then shifts to the claimant to show by a preponderance of the evidence that his claim is valid. United States v. Springer, supra, 491 F.2d at 242; Foster v. Seaton, supra, 271 F.2d at 838.

We believe the same reasoning applies in the present quiet title action. “Were the rule otherwise, anyone could enter upon the public domain and ultimately obtain title unless the Government undertook the affirmative burden of proving that no valuable deposit existed.” Foster v. Seaton, supra, 271 F.2d at 838. We agree with the cited authorities that Congress did not intend to place this burden on the Secretary of the Interior.

We have considered appellants’ other assignments of error and believe them to be similarly without merit. The judgment of the court below is therefore affirmed.

      . The Wyoming Environmental Quality Act, Wyo.Stat. § 35-502.1 et seq., effective in 1973, requires miners and prospectors obtain a license for discovery work that disturbs the land’s surface by dozing. Wyo.Stat. §§ 35-502.30, 35-502.31. Prior law in effect since 1969 required permits for mining and milling operations only.

      . Wyoming law also requires the annual performance of $100 or more assessment work. Wyo.Stat. §§ 30-11, 30-12, 30-14.

      . 43 U.S.C. § 2 provides in part:
      The Secretary of the Interior or such other officer as he may designate shall perform all executive duties appertaining to the surveying and sale of the public lands or in anywise respecting such public lands, and, also, such as relate to private claims of land, and the issuing of patents for all grants of land under the authority of the Government.
      43 U.S.C. § 15 provides in part:
      All patents for public lands shall be issued and signed by the Secretary of the Interior in the name of the United States .
      43 U.S.C. § 1201 provides:
      The Secretary of the Interior, or such officer as he may designate, is authorized to enforce and carry into execution, by appropriate regulations, every part of the provisions of this title not otherwise specifically provided for.

      . 43 C.F.R. § 4.451-1.'

      . If mining claimants have held claims for several years and have attempted little or no development or operations, a presumption is raised that the claimants have failed to discover valuable mineral deposits or that the market value of discovered minerals was not sufficient to justify the costs of extraction. E. g., United States v. Humboldt Placer Mining Co., 8 IBLA 407 (1972); United States v. Ruddock, 52 L.D. 313 (1927); Castle v. Womble, 19 L.D. 455 (1894).

      . Appellants make the related contention that the district court improperly granted equitable relief where an adequate remedy at law — that is, agency invalidation of the claims — was available to the government. Since we are of the view, expressed above, that proceedings before the Department of the Interior would result in pointless continued impairment of the public’s rights of access to lands covered by the Zweifel claims, we believe that the government cannot be said to have had an adequate remedy at law. The law does not require needless resort to administrative proceedings as a prerequisite to equitable court intervention. Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 466 F.2d 345, 359.