source: Caselaw Access Project

author: ELY, Circuit Judge. WILLIAM M. BYRNE, Sr., District Judge CHOY, Circuit Judge:

license: Public Domain

text:
    Kermit Nello BURTON, Appellant, v. UNITED STATES of America, Appellee.
    No. 26070.
    United States Court of Appeals, Ninth Circuit.
    Feb. 28, 1973.
    On Rehearing Sept. 6, 1973.

      Kermit Nello Burton, in pro. per.
    Richard K. Burke, U. S. Atty., Joseph S. Jenckes, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
    Before ELY and CHOY, Circuit Judges, and BYRNE, District Judge.

       Honorable William M. Byrne, Senior United States District Judge, Central District of California, sitting by designation.

   ELY, Circuit Judge.

Burton originally pleaded not guilty to a single-count indictment charging conspiracy, 18 U.S.C. § 371, and interstate transportation of an implement fitted for counterfeiting federal securities, 18 U.S.C. § 2314. On November 4, 1968, he appeared with counsel, changed his plea to guilty, and was thereafter sentenced to prison for a term not to exceed two years.

The entire colloquy between Burton and the court concerning acceptance of the guilty plea is as follows:

•» * *
MR. DE LEON [Burton’s attorney] : Your Honor, the defendant wishes to change his plea to guilty, from not guilty to guilty.
THE COURT: Mr. Burton, you have heard your counsel’s statement. You previously pleaded not guilty to this charge, involving a violation of Title 18, United States Code, Section 371 and Section 2314. The cause has been set for trial. Is it your present desire to change your plea from not guilty to guilty?
THE DEFENDANT: Yes, sir.
THE COURT: Are you pleading guilty, Mr. Burton, because you are guilty and for no other reason?
THE DEFENDANT: Yes, sir. That’s right.
THE COURT: Has anybody made any threats to you in order to encourage you to plead guilty to this charge? [Emphasis supplied]
THE DEFENDANT: No, sir.
THE COURT: Has anybody made any promises of leniency or otherwise to encourage you to plead guilty to this charge? [Emphasis supplied]
THE DEFENDANT: No, sir.
THE COURT: Are you pleading guilty freely and voluntarily ?
THE DEFENDANT: Yes, sir.
THE COURT: Have you talked this over with your attorney, Mr. De Leon?
THE DEFENDANT: Yes, sir.
THE COURT: Are you satisfied with his counsel and advice?
THE DEFENDANT: Yes, I am.
THE COURT: Is this plea in accord with your best judgment, Mr. De Leon?
MR. DE LEON: Yes, it is, sir.
THE COURT: Very well. The plea of guilty will be received, and time for sentencing set for Monday, November 18, at two o’clock, p.m. * * * ”
On Monday, November 18, there occurred the following exchange:
“THE CLERK: Case No. C-18167, United States of America vs. Kermit Nello Burton, for sentence, and C-17912, for further proceedings.
MR. MALINSKY: Is your true name Kermit Nello Burton?
THE DEFENDANT: That’s right.
MR. MALINSKY: Are you represented by your attorney, Armando De Leon?
THE DEFENDANT: Yes, that is correct.
MR. MALINSKY: Mr. Burton, you have previously entered a plea of guilty to a charge of violating Title 18, 371 and 23H, conspiracy to transport counterfeit tools in interstate commerce. [Emphasis supplied] Do you wish to stand on your plea of guilty on November 4, 1968?
THE DEFENDANT: Yes.
MR. MALINSKY: Do you understand, Mr. Burton, that on the plea of guilty to this charge you can-be sentenced up to $10,000, imprisoned up to five years, or both ?
THE DEFENDANT: Yes.
MR. MALINSKY: You still wish to stand on your plea ?
THE DEFENDANT: Yes.
THE COURT: Mr. Burton, I will repeat what the United States Attorney said. On November 4 you entered a plea of guilty to a charge of conspiracy to transport counterfeit tools in interstate commerce, actually in violation of two federal statutes. The charge was only in one count.
As I understand it, you desire to stand on your plea of guilty as you have entered it on November 4.
THE DEFENDANT: Yes, sir.
THE COURT: You know you don’t have to. If you prefer to have the matter tried, you can withdraw your plea and enter a plea of not guilty. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: But you don’t want to do that?
THE DEFENDANT: No. I may as well stand on the plea.
THE COURT: Have you talked this over with your attorney, Mr. De Leon?
THE DEFENDANT: Yes, sir.
THE COURT: You are satisfied with his counsel and advice ?
THE DEFENDANT: Yes, I am.
THE COURT: You are satisfied, are you, Mr. De Leon, that this is the appropriate procedure for Mr. Burton?
MR. DE LEON: Yes, sir.
THE COURT: Mr. Burton, now is the time for the Court to pass sentence upon you. Do you have anything to say in your own behalf before sentence is pronounced ?
THE DEFENDANT: Well, only that I ask the Court to show me leniency, because the matter of this conspiracy consisted of actually five of us. It is my understanding that two others have pled guilty, also. So that I think the matter is probably a question of degree of guilty, which I must also stand on. But as far as investigation by the probation officer, I am sure he has turned up information that probably doesn’t do my record too much good. So I just ask the Court to show as much leniency as possible.”

On August 28, 1969, appellant moved the District Court, pursuant to 28 U.S.C. § 2255, to vacate the conviction and to allow him to plead anew contending, inter alia that his plea was not voluntarily entered. It is from the denial of that motion that Burton appeals.

Rule 11, Fed.R.Crim.P., provides:

“A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.”

From the foregoing record, there is no indication that the trial court undertook sufficiently to satisfy itself that there was a factual basis for the guilty plea. The short statement by the accused that “Well, only that I ask the Court to show me leniency, because the matter of this conspiracy consisted of actually five of us. It is my understanding that two others have pled guilty also . . .,” was not a sufficient foundation upon which to find a factual basis for the plea. At most, that statement merely reflects Burton’s unlearned explanation and is the very kind of unskilled conclusion that the trial court must carefully examine.

The prosecution emphasizes that Burton twice assured the trial judge that he was satisfied with the advice and assistance of his appointed counsel. We have long held, however, that assistance of counsel is but one factor to be considered and is far from conclusive. Moreover, mere presence of counsel in the case at hand is particularly inconclusive, for the record rather clearly suggests that defense counsel himself was not even certain of either the charge or the possible penalty.

The prosecution also contends that Burton admitted to the presentence probation officer that he had sent a check cashing machine to one of his co-defendants, and that this contention, if true, provides a factual basis for the plea. This argument also fails. First, since the alleged admission occurred subsequent to the acceptance of the guilty plea, no reliance upon it could have been placed by the court in making the prior Rule 11 determination. In Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), we emphasized:

“It is contemplated by that Rule, and is the holding in Johnson v. Zerbst [304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461], that the fact that a plea was intelligently entered and that counsel was intelligently waived must be ascertained at the time of arraignment or of waiver and not after the fact. When this is done the facts can be made to appear of record; the understanding of the defendant can actually be accomplished and its accomplishment demonstrated beyond dispute. When the ascertainment is subsequently made after disputes have arisen, a degree of uncertainty is bound to creep in since, in the resolution of disputed facts, problems of credibility and of reliability of memory cannot be avoided.”

Id. at 55.

Secondly, Burton stresses that he accompanied the alleged statement with repeated protestations of innocence based upon the absence of either his knowledge of any illegal use to be made of the machine, or of his intent to participate in the crime. This denial of guilt, even if combined with an admission of some involvement, should, we think, have prompted the court to pursue further inquiry.

Having concluded that there was a failure to heed the strict requirements of Rule 11, we now consider the appropriate remedy. We are urged both to vacate the District Court’s Order denying the section 2255 motion and to set aside Burton’s convictions for violation of 18 U.S.C. §§ 371, 2314, thus affording him a new opportunity to plead.

In Castro v. United States, 396 F.2d 345, 348 (9th Cir. 1968), which reaffirmed Heiden v. United States, supra, our court declared:

“Under Heiden, it was held that the facts necessary for a determination that the defendant voluntarily and intelligently pleaded guilty must appear in the record at the time the plea is accepted. If the record indicates that this procedure was not followed, and the defendant later asserts facts which indicate that he did not voluntarily and intelligently enter his plea, and a proper examination of the defendant by the judge at the time the plea of guilty was received would have disclosed such facts, Heiden holds that prejudice to the accused is established when he is later required to prove or disprove his state of mind at the time of his plea. To avoid this prejudice, according to Heiden, the defendant is, under these circumstances, entitled to have his conviction and sentence set aside, and is given a new opportunity to plead to the indictment.” (Footnote omitted).

The aim of the Heiden court was apparently to encourage trial courts to follow the mandate of Rule 11, and, in the absence of such compliance, to protect defendants from any resulting prejudice.

“If, by its [Rule ll’s] disregard, issues of fact are permitted to arise the defendant has suffered prejudice in being required to resort to the relatively uncertain business of their resolution.”

Heiden, 353 F.2d at 55. The proper construction of our rule was adopted in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1968):

' “We are persuaded that the Court of Appeals for the Ninth Circuit has adopted the better rule. From the defendant’s perspective, the efficacy of shifting the burden of proof to the Government at a later voluntariness hearing is questionable. In meeting its burden, the Government will undoubtedly rely upon the defendant’s statement that he desired to plead guilty and frequently a statement that the plea was not induced by any threats or promises. This prima facie case for voluntariness is likely to be treated as irrebuttable in cases such as this one, where the defendant’s reply is limited to his own plaintive allegations that he did not understand the nature of the charge and therefore failed to assert a valid defense or to limit his guilty plea only to a lesser included offense. No matter how true these allegations may be, rarely, if ever, can a defendant corroborate them in a post-plea voluntariness hearing.”

394 U.S. at 469, 89 S.Ct. at 1172.

Thus, under established principles, Burton was undeniably prejudiced by the court’s failure wholly and fully to comply with the specific mandates of Rule 11. Were we to simply remand this cause with instructions to conduct a hearing to determine whether appellant knowingly and voluntarily entered his plea, and whether there was, at the time of pleading, a sufficient factual basis upon which to accept the plea of guilt, Burton would be put to the very burden which, under Heiden, those in his position were sought to be spared.

Finally, we conceive it to be our duty, exercising our supervisory power, to assure that there be the strictest compliance with the requirements of Rule 11. That this court has such supervisory power is hardly deniable. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the United States Supreme Court held that “ . . . supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.” Id. at 259-260, 77 S.Ct. at 315. Moreover, this pronouncement by the Nation’s supreme judicial authority has been reaffirmed by every Court of Appeals, including our own, that has confronted the issue. In a very recent opinion of this court, Guam v. Camacho, 470 F.2d 919 (9th Cir. 1972), Chief Judge Chambers' acknowledged the existence of the “supervisory power” of this court. See also United States v. Thomas, 146 U.S.App. D.C. 101, 449 F.2d 1177 (1971) (en banc); United States v. Daniels, 446 F. 2d 967 (6th Cir. 1971); In re Ellsberg, 446 F.2d 954 (1st Cir. 1971); United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971) ; Dellinger v. Mitchell, 143 U.S. App.D.C. 60, 442 F.2d 782 (1971); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S. Ct. 2869, 33 L.Ed.2d 766 (1972); United States v. Butera, 420 F.2d 564 (1st Cir. 1970); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U. S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969) ; United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970) ; Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc); United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627, 637 (1968) (rehearing en banc); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3d Cir. 1967); Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); Tate v. United States, 123 U.S. App.D.C. 261, 359 F.2d 245 (1966); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965); United States v. Inman, 352 F.2d 954 (4th Cir. 1965); Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (en banc); Smith v. Katzenbach, 122 U.S.App.D.C. 113, 351 F.2d 810; Natural Resources, Inc. v. Wineberg, 349 F.2d 685 (9th Cir. 1965), cert. denied, 382 U.S. 1010, 86 S.Ct. 617, 5 L.Ed.2d 525 (1966); Jones v. United States, 119 U.S.App.D.C. 284, 342 F.2d 863 (1964) (en banc); United States v. D’Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L.Ed.2d 61 (1961); Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959) (Burger, J.); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); Helwig v. United States, 162 F.2d 837 (6th Cir. 1947).

Accordingly, the District Court’s Order is reversed. Upon remand, the judgments of conviction will be vacated and Burton will be allowed a new opportunity to plead to the charges of the indictment.

Reversed and remanded.

WILLIAM M. BYRNE, Sr., District Judge

(dissenting):

I respectfully dissent.

The majority, insensitive to the District Court findings, weighs the facts and concludes “that there was a failure to heed the strict requirements of Rule 11.”

Not only did the District Court, meticulously question Burton on November 4, 1968, before determining that his plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea, but the interrogation was repeated on November 18th, at which time the court even offered to permit the accused to withdraw his plea and enter a plea of not guilty. Surely this period must be considered a part of “the time the plea is accepted.”

To support its view that no reliance could have been placed by the court on Burton’s admissions to the probation officer, the majority cites Heiden v. United States, 353 F.2d 53 (C.A. 9, 1965), where this court stated, “the fact that a plea was intelligently entered— must be ascertained at the time of arraignment or of waiver and not after the fact. When this is done the facts can be made to appear of record; . . . When the ascertainment is subsequently made after disputes have arisen, a degree of uncertainty is bound to creep in . . . .” (Emphasis supplied.)

It is clear that Heiden was distinguishing the period when the accused is seeking to enter a plea of guilty and the subsequent period “after disputes have arisen,” and the accused is claiming that his plea, or (as in the case of Heiden) his waiver of counsel, was not voluntary. The interval prior to Burton’s sentence on November 18th, when he was again fully questioned and given the opportunity to change his plea, certainly must be included in the period when Burton was seeking to enter a plea of guilty. That is the teaching of Heiden.

To further support the view that no reliance could be placed on Burton’s admissions, the majority states, “Secondly, Burton stresses that he accompanied the alleged statement with repeated protestations of innocence based upon absence of either his knowledge of any illegal use to be made of the machine, or of his intent to participate in the crime.” Although the appellant makes a statement to that effect in his brief filed with this court, the record is devoid of any such protestations when he appeared for sentencing, subsequent to the statement and alleged protestations of innocence, there was no protest or declaration of innocence, but on the contrary further admissions of guilt.

McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), is clearly distinguishable from the instant case. In McCarthy, unlike the instant case where the court so meticulously questioned Burton to determine if his plea was voluntary, the District Judge merely advised McCarthy of the maximum penalty and, when requested by the prosecutor, inquired as to whether his plea was the product of threats or promises.

The District Court advised Burton that “on November 4 you entered a plea of guilty to a charge of conspiracy to transport counterfeit tools in interstate commerce, actually in violation of two federal statutes.” Anyone who understands the English language understands the meaning of the words “conspiracy”, “transport”, “counterfeit”, and “tools”. Burton certainly showed the meaning was clear in his mind when pleading for leniency he stated “this conspiracy consisted of actually five of us.” He may not have known all of the intricacies of the law of conspiracy, but he knew the facts. He knew that he and four others conspired to transport counterfeit tools in interstate commerce. That knowledge together with knowledge of the consequences of his plea which he repeatedly asserted to be free and voluntary, was all that was required.

Nothing in the record impeaches Burton’s plea or suggests that his admissions in open court were anything but the truth. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

Assuming that there was a “failure to heed the strict requirements of Rule 11,” which I have attempted to show was not the situation here, it would not avail Burton as his plea was accepted in 1968. The Supreme Court in Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), issued the following fiat: “We hold that only those defendants whose guilty pleas were accepted after April 2, 1969, are entitled to plead anew if their pleas were accepted without full compliance with Rule 11.” (Emphasis supplied.)

This court decided Norman v. United States, 429 F.2d 1310 (9 Cir., 1970) under the rule of Halliday. This case should be disposed of in the same manner.

After concluding that the District Court committed prejudicial error by “failure to wholly and fully comply with the specific mandates of Rule 11,” the majority adds a paragraph of dictum relating to the assumed “supervisory powers” of this court.

Until 1943, in the Anglo-American system of justice, the rule that appellate courts could reverse lower courts only when error was present, was never questioned. In McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), the Supreme Court announced the new doctrine that, as the court of ultimate review, it had supervisory powers over lower courts which permitted the reversal of judgments even in the absence of error. The McNabb court explained :

“In holding that the petitioners’ admissions were improperly received in evidence against them, and that having been based on this evidence their convictions cannot stand, we confine-ourselves to our limited function as the court of ultimate review of the standards formulated and applied by federal courts in the trial of criminal cases.” (Emphasis supplied.)

A court of appeals is not “the court of ultimate review” and its province as a court is limited to reversing district courts only when prejudicial error is found. This being so, and the court having decided the case on what it deems to be prejudicial error, why the dictum ?

If the purpose of the embellishment is to chide the district court judges of the Circuit, it is redundant because they know they must not only comply with Rule 11, but with all of the Federal Rules of Criminal Procedure. This is so because it is the law which they have taken on oath to abide by, and not because of any assumed “supervisory power” pronouncement. If they commit error they want the Court of Appeals to correct it and they expect the higher court to follow the law in doing so.

I would affirm.

OPINION ON REHEARING

CHOY, Circuit Judge:

The government’s petition for rehearing is granted.

The district court’s denial of Burton’s motion to vacate his conviction on a plea of guilty and to allow him to plead anew is affirmed.

I acknowledge that the majority opinion previously entered in this appeal, in which I joined, misconstrued Rule 11, F.R.Crim.P. as requiring the district court to be satisfied that there was a factual basis for a guilty plea at the time the plea was made, and without reliance upon any of the appellant’s admissions made to the presentence probation officer. As the government points out in its petition for rehearing, Rule 11 in pertinent part provides:

“The court shall not enter judgment upon a plea of guilty unless it is satisfied there is a factual basis for the plea.” (Italics supplied.)

And the advisory committee notes found at the end of Rule 11, F.R.Crim.P. say:

“The court shall satisfy itself, by inquiry of the defendant or the attorney for the government, or by examining the presentence report, or otherwise, that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has peladed guilty. (Italics supplied.)

It seems clear, therefore, that Rule 11 requires the court to determine that there is a factual basis for a plea prior to entry of judgment and not just at the time the plea is accepted.

While I agree that this court does have supervisory power over the district courts of this circuit, I do not agree with my brother Ely that this case warrants its exercise.

Except for its discussion of this court’s lack of supervisory power, with which I disagree, I concur in Judge Byrne’s opinion that the requirements of Rule 11 were met in this case.

Affirmed.

      . There were two charges, alleged in the same count, not a simple “this” charge.

      . See footnote 1, supra.

      . Only § 371 pertained to conspiracy.

      . Burton’s statement, in response to one of the Court’s inquiries, to the effect that he was pleading guilty “because [he was] guilty,” goes to the question of the volun-tariness of his plea but is not significantly relevant, in the whole context, to the question of whether this Court, upon the record and in the concluding words of Rule 11, “satisfied [itself] that there [was] a factual basis for the plea.” (Emphasis supplied.)

      . Gomez v. United States, 396 F.2d 323 (9th Cir. 1968) ; Munich v. United States, 337 F.2d 356 (9th Cir. 1964).

      . “MR. DE LEON [Burton’s attorney] : Excuse me. The charge is on conspiracy, is it not?

      MR. MALINSKY: There is a one-count charge which alleges a violation of
      Title 18, 371 and 2314, both in the same count.
      MR. DE LEON: I just have a question. Is the maximum governed by Section 371 — five years?
      MR. MALINSKY: Your Honor, there is a violation of two provisions of the Code alleged in the single count, and there is a different penalty for each violation.
      I think that the maximum possible sentence that could be imposed is imprisonment up to ten years, because that is the penalty for violation of Title 18, Section 2314.
      THE COURT: That’s probably true, but as long as you join them both, I would take the low one.
      MR. DE LEON: Your Honor, the defendant wishes to change his plea to guilty, from not guilty to guilty.” (Emphasis supplied).

      . Our recent decision in United States v. Sherman, 474 F.2d 303 (9th Cir. 1973), is clearly distinguishable. In contrast to our case, the appellant there “ . discussed the details of the crime at some length” with the trial judge thus providing the court with the required factual basis for acceptance of the plea. Id. at 307.

      . Our dissenting Brother characterizes our comments concerning the supervisory power of this court as “dictum.” The majority does not intend that it be so interpreted. The overwhelming body of authority which the majority has cited establishes, beyond doubt, that supervisory power is vested in the courts of appeal, and it is most assuredly appropriate for that power to be exercised in a case such as this. We recognize, of course, that the McCarthy holding is not retroactive, but long before the opinion in McCarthy was issued, this court’s opinion in Heiden had become, and, as expressly approved by the Supreme Court in McCarthy, remains viable. Thus, the majority, mindful of Heiden’s controlling principle, has relied upon the existence of this court’s supervisory power in reaching its dispositive conclusion.

      . See also Lego v. Twomey, 404 U.S. 477, 479 n.1, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).

      . See quotation from Castro v. United States in majority opinion.

      . The majority apparently holds the view that the Supreme Court in La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290, endowed courts of appeals with the MdNaVb “supervisory power.” It is not clear just what Mr. Justice Clark meant when writing for the majority he stated, “We believe that supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system. The All Writs Act confers on the Courts of Appeals the discretionary power to issue writs of mandamus in the exceptional circumstances existing here.” However, it is clear that it was not intended to mean that the Courts of Appeals had supervisory power to reverse a District Court in the absence of prejudicial error.
      To read the opinion and the opinion of the Court of Appeals in La Buy (i. e., 7 Cir., 226 F.2d 703) is to refute any such contention. The Court of Appeals decided the case on the error of the District Court, stating “We can only conclude that the orders complained of are beyond the permissive scope of the rule, [Rule 53(b) F.R.Crim.P.] and constitute an abuse of discretion.” The Court of Appeals did not even mention the term “supervisory powers.” The Supreme Court in a 5 to 4 decision stated: “Certainly, as the Court of Appeals found here, there was a clear abuse of discretion.” Incidentally, the four dissenting Justices never even mentioned the term “supervisory power.” Mr. Justice Clark could only have been referring to the power of Courts of Appeals to reverse District Courts when prejudicial error is present.


author: WIDENER, Circuit Judge:

text:
    Barbara Jean DAWKINS and Jacqueline Denise Dawkins, a minor by her mother and next friend, Barbara Jean Dawkins, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Clifton M. CRAIG, Individually and as North Carolina Commissioner of Social Services et al., Defendants-Appellants.
    No. 72-2460.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1973.
    Decided Sept. 12, 1973.
    Robert S. Weathers, Asst. Atty. Gen., North Carolina (Robert Morgan, Atty. Gen., North Carolina, on brief), for defendants-appellants.
    Donald S. Gillespie, Jr., Charlotte, N. C., for plaintiffs-appellees.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WIDENER, Circuit Judge.
   WIDENER, Circuit Judge:

The parties to this appeal agree that the sole issue is whether the District Court properly ordered the State of North Carolina to make retroactive payments in the program called Aid to Families with Dependent Children. It is contended by appellant that such order is in contravention of the Eleventh Amendment to the United States Constitution.

Plaintiff Dawkins is a resident of Mecklenburg County, North Carolina and is the mother of Jacqueline Daw-kins, who was 14 years of age at the time the complaint was filed and who resides with her mother. The defendants are the state personnel and the state administrative agencies responsible for administration of the North Carolina public assistance programs which relate to this appeal.

During July, 1970, plaintiff applied to the Mecklenburg County Department of Social Services for Aid to Families with Dependent Children (AFDC) benefits on behalf of herself and her daughter Jacqueline Dawkins. On August 12, 1970, she received a notice from the county director which said that her “application for public assistance was not approved for payment because of refusal to file a warrent [sic] against the deserting parent.” She noted an administrative appeal from the action taken by the county director, and her appeal was heard on August 25, 1970 before a hearing examiner representing appellant State Commissioner. On September 25, 1970, Dawkins received a “Notice of Fi-' nal Decision” from the State Commissioner dated September 21, 1970, which stated that the county director’s decision was correct because it was in accordance with § 2210 of the North Carolina Financial Services Manual which provides that “if it is established that a parent (or parents) has deserted or abandoned his children, the applicant or recipient payee should agree to institute non-support action against the deserting parent (or parents) where the applicant or recipient can identify the parent (or parents).”

On October 13, 1970, Dawkins filed a civil action in the District Court. The complaint alleges that appellants have construed the above regulation so that the filing of a non-support action against a deserting parent is a prerequisite to eligibility for AFDC benefits. The complaint alleges that the regulation is unconstitutional and prays not only for declaratory and injunctive relief but also for payment of sums allegedly wrongfully withheld.

On May 8, 1972, the parties filed a stipulation which indicated that the regulation in question had been revised and amended, to the satisfaction of the plaintiffs, so that there no longer existed the necessity for any prospective relief. The stipulation further recited that the only issues left for determination were the propriety and extent of class action relief and the propriety and extent of retroactive payments to plaintiffs. The District Court ordered that the case was properly maintainable as a class action and defined the class. The defendants have not challenged such action. We are thus faced with the issue of whether the District Court’s order that payments be restored retroactively contravenes the Eleventh Amendment.

The Eleventh Amendment to the United States Constitution provides as follows:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

The Eleventh Amendment was declared to have been ratified on January 8, 1798. The amendment was proposed to the several states on March 4, 1794 as a consequence of the Supreme Court’s decision in Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). In Chisholm, the Supreme Court held that a State could be sued by a citizen of another State in assumpsit. The amendment on its face does not speak to the situation where, as here, a State is sued by one of its own citizens. However, the Supreme Court has ruled that an unconsenting State is immune from suits brought in federal courts by its own citizens, as well as by citizens of another State. Employees of the Department of Public Health & Welfare v. Department of Public Health & Welfare, 411 U.S. 279 at 280, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1899) ; Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); see Great Northern Ins. Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 88 L.Ed. 1121 (1944). In Employees, etc., supra, 411 U.S. at 286, 93 S.Ct. 1614, the court made it clear that, where the suit is by a citizen against his own State, the constitutional constraint imposed by the Eleventh Amendment upon the judicial power of the United States is invoked. See also Hans, supra, 134 U.S., at 15, 10 S.Ct. 504, and Ex parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The amendment covers not only suits brought against a State by name but those also against its officers, agents and representatives, where the State, though not named as such, is nevertheless the only real party against which, in fact, relief is asked, and against which the judgment operates. In re Ayers, 123 U.S. 443, 505-506, 8 S.Ct. 164, 31 L.Ed. 216 (1887); Ex parte Young, 209 U.S. 123, 150, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Cf. Employees, etc., supra. Of course, it has long been the law that the Eleventh Amendment is no bar to a suit brought to direct a State officer to bring his conduct into conformity with federal law. In re Ayers, supra; Ex parte Young, supra; Employees, etc., supra, 411 U.S. at 293, n. 9, 93 S.Ct. 1614. Thus, while the Eleventh Amendment may have been no bar to the jurisdiction of the court below insofar as the suit sought to require North Carolina officials to act in accordance with the constitution, the order to make retroactive payments is a different matter. Such relief looks directly to the payment of public funds out of the State treasury. See N.C. Const. Art. V. § 7. Such an order, in our opinion, is contrary to the Eleventh Amendment. In re Ayers, supra, 123 U.S., at 505, 506, 88 S.Ct. 164; Rothstein v. Wyman, 467 F. 2d 226 (2nd Cir. 1972); Francis v. Davidson, 340 F.Supp. 351, 370 (D.Md. 1972, three-judge court), aff’d, 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972); Like v. Carter, 353 F.Supp. 405 (E.D.Mo.1973); contra Jordan v. Weaver, 472 F.2d 985 (7th Cir. 1973). See also Williams v. Dandridge, 297 F.Supp. 450 (D.Md.1968), rev’d. on other grounds, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491.

Appellees urge that the Supreme Court has decided this issue by affirming several decisions which ordered retroactive payments, although none of the cases in that court mentions one word about the Eleventh Amendment. Sterrett v. Mothers and Children’s Rights Organization, 409 U.S. 809, 93 S.Ct. 68, 34 L.Ed.2d 70 (1972); State Dept. of Health and Rehabilitative Services v. Zarate, 407 U.S. 918, 92 S.Ct. 2462, 32 L.Ed.2d 803 (1972); Wyman v. Bowens, 397 U.S. 49, 90 S.Ct. 813, 25 L.Ed.2d 38 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). We do not agree with the reasoning of the Seventh Circuit in Jordan, supra, that such cases require a holding that the Eleventh Amendment for some reason does not apply to this situation. We believe that the most that can be said for these cases is that the issue was not discussed. Accord Rothstein, supra. We also believe that plaintiffs’ argument that such cases are pertinent to the Eleventh Amendment issues is without merit because, most recently, the Supreme Court, in Employees, etc., supra, which squarely dealt with the Eleventh Amendment, made no mention of those district court cases relied on in Jordan. We note also that the Supreme Court affirmed Francis v. Davidson, supra. Francis expressly noted that the Eleventh Amendment bars the type of relief sought herein. 409 U.S. 904, 93 S.Ct. 223, 34 L.Ed.2d 168 (1972).

Plaintiffs also urge that any protection which the Eleventh Amendment might provide has been waived by the State. Of course, the immunity of the Eleventh Amendment may be waived. Parden v. Terminal Ry. Co., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964); see Employees, etc., supra. North Carolina has not, by any formal act, waived its immunity. Nor do any of the AFDC provisions condition federal funding upon a State’s waiver of its immunity. It is argued that the mere participation by a State in the AFDC program constitutes at least an implied waiver of the protection of the Eleventh Amendment. We cannot agree. As pointed out by Mr. Justice Marshall, concurring in Employees, etc., supra, waiver of a constitutional protection is not to be inferred lightly. And, we do not think that mere participation in the AFDC program constituted a waiver. Rothstein, supra; Like, supra. The petitioners, in Employees, etc., supra, were employees of State health facilities. They brought suit for overtime pay due them under § 16(b) of the Fair Labor Standards Act, and the district court dismissed the action on the basis of the immunity provided by the Eleventh Amendment. The Supreme Court affirmed the district court’s dismissal of the action. The court turned first to Parden v. Terminal Ry. Co., supra. Parden involved a State owned railroad operating in interstate commerce, and the claims were those of employees under Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq. In Parden, the court concluded that the broad definition of carrier under FELA included State owned railroads and that a State, by operating in interstate commerce, waived its immunity under the Eleventh Amendment. The court, in Employees, etc., concluded that a State was a covered employer under the Fair Labor Standards Act but that the Par-den ease did not control. Parden was distinguished on the grounds that it involved a State enterprise operated for profit in the congressionally controlled area of interstate commerce, where private persons and corporations normally operate. Employees, etc., on the other hand, was viewed as involving a State enterprise not operated for profit and thus not proprietary. The close connection with interstate commerce involved in Parden was found to be lacking in Employees. We believe that the distinction drawn in Employees should equally apply here. North Carolina’s purpose in operating an AFDC program is purely humanitarian, not proprietary as was the railroad in Parden. We note also that while there has been a tremendous increase in involvement by the federal government in the area of public health and welfare, that area is still the primary domain of the State governments. In any event, the connection with interstate commerce, which was a substantial factor in the outcome in Parden, is lacking here.

Of like effect is this court’s decision in Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001 (4th Cir. 1968), in which the court reasoned that Virginia waived State sovereignty by seeking and obtaining admission into an exclusive federal realm, interstate and foreign commerce. Noting that the State had petitioned for permission to occupy navigable waters with bridges and tunnels, the court stated:

“Necessarily, the State recognized that she built in the Bay only by sufferance of the Federal government. This acknowledgment is conclusively evidenced by her petition for permission pursuant to the act of Congress, 33 U.S.C. § 401 et seq., to occupy navigable waters with bridges and tunnels. The supplication of the State, and her reception into the Federal domain, meant surrender, pro tanto and pro tempore, of State sovereignty and submission to the paramount overlord-ship of the' United States during the tenancy.” Chesapeake Bay Bridge and Tunnel District, at 1003.

Parden, supra, and Chesapeake Bay Bridge and Tunnel District involved entry into the federal realms of interstate and foreign commerce. In the instant case, as in Employees, etc., supra, we find no such involvement, proprietary or otherwise, into an exclusively federal realm. Accordingly, we are of opinion that there has been no waiver by North Carolina of its immunity from suit in this case.

On the whole case, we are of opinion the Eleventh Amendment, or the want of judicial authority of the United States under Article III of the Constitution, however it may be phrased, (Cf. Ex parte Young, 209 U.S. at p. 150, 28 S.Ct. 441, with Duhne, supra, and the concurring opinion in Employees, supra), prohibits this suit for retroactive AFDC payments.

The judgment of the district court is accordingly

Reversed.

      . Three-fourtlis of the States had ratified the amendment by 1795.

      . As noted by the Supreme Court in Hans, the furor created by the Chisholm decision did not turn upon any distinctions of whether a State could be sued by its own citizens or citizens of another State but was caused by judicial recognition that the State could be sued at all. The Federalist, No. 81, (Hamilton) and the Chronicles of the Virginia Convention, 3 Elliot’s Debates, reveal that there was indeed apprehension that the language in Article III, “the judicial power shall extend to all controversies between a State and citizens of another State, . . .might be construed to allow a State to be sued in the federal courts by an individual. Hamilton, Mason and Patrick Henry all voiced this concern. These objections were answered by Madison and Marshall, who stated that the language was intended to allow a State to sue an individual in federal courts. Marshall’s comment is particularly apt: “I hope that no gentleman will think that a State will be called at the bar of the Federal court . . .” Against this background, it is not difficult to understand the unrest created by the Chisholm decision which did precisely what Marshall and Madison assured would not happen. Chisholm itself involved a suit against a State by a citizen of another State. Since the Eleventh Amendment was directed at correcting the Chisholm decision, it is not surprising to find the language there expressed in terms of the facts in the Chisholm case, that is, suits involving citizens of another State. It is interesting to note that the Eleventh Amendment did not simply bar such suits; its language was pointedly directed at the courts. The language of the amendment is that the judicial power of the United States “shall not be construed to extend. . . . ” [Emphasis added]. Thus, the Eleventh Amendment, a result of the Chisholm case, was specifically enacted to bar any construction of Article III which would obtain the result readied in Chisholm. There was no need to word the Eleventh Amendment to bar suits other than those brought by a citizen of another State because, under no circumstances, could Article III have been construed to extend the judicial power to a suit brought by a citizen of the State sued. As the Supreme Court noted in Duncan, Article III was not intended to allow suits which were unknown and forbidden at common law. Nevertheless, it lias been argued on occasion that because the Eleventh Amendment only specifically barred suits brought by citizens of another State, suits brought by citizens of the State sued were not barred. This argument ignores the historical aspects of the whole matter and was rejected by the Supreme Court. As stated by Chief Justice White in Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920) : “. . . it has been long since settled that the whole sum of the judicial power granted by the constitution of the United States does not embrace the authority to entertain a suit brought by a citizen against his own state without its consent.” Duhne at 313, 40 S.Ct. at 154. It is clear from Duhne that whether the question be viewed as the' extent of the grant of power under Article III, or the extent of the bar imposed by the Eleventh Amendment, the answer is the same — suits brought by a citizen of the State sued are barred in the same manner as are suits against a State by a citizen of another State.

      . Of. Petty, Admx. v. Tennessee-Missouri Bridge Commission, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959).


author: INGRAHAM, Circuit Judge;

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Glynn BYRD, Defendant-Appellant.
    No. 73-1426
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 7, 1973.
    As Modified Nov. 8, 1973.

      Warren Heagy, Odessa, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert G. Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431 F.2d 409.

   INGRAHAM, Circuit Judge;

Appellant Richard Glynn Byrd was convicted in a non jury trial of possessing with intent to distribute 300 pounds of marijuana and of carrying a firearm while committing this felony. Byrd seeks reversal of his conviction on the basis that the marijuana was discovered in a constitutionally illegal search and is therefore inadmissible as evidence against him. On the facts of this case, the warrantless search of appellant’s vehicle by roving border patrol agents forty-five miles from the Mexican border cannot be upheld. The judgment is reversed.

The facts are typical and undisputed. At 1.30 A.M. on May 9, 1972, Byrd was driving northeast on Highway 59 toward Freer, Texas. At a distance of forty-five miles from the Mexican border at Laredo, Texas, Byrd was stopped by a roving border patrol manned by Officers Esco-bedo and Lohman of the United States Immigration and Naturalization Service. After ascertaining that Byrd was a United States citizen and had a valid Texas driver’s license, Escobedo inspected the rear seat of appellant’s car to determine if he was importing illegal aliens into the country. At a time when he had the upper half of his body inside the automobile, he detected the pungent odor of marijuana emanating from somewhere within the vehicle. The officer then obtained the trunk key, opened the trunk, and found that his nose had not betrayed him; 300 pounds of marijuana was discovered in the trunk. After advising Byrd of his Miranda rights, the officers were informed that a loaded pistol was under the front seat, which they then recovered.

At trial the only issue was whether the marijuana was discovered in a constitutionally permissible search and thereby admissible as evidence. Officer Escobedo testified that Byrd’s car was stopped for a routine immigration inspection, Other than the presence of the car on the highway at an hour when few vehicles were traveling between Laredo and Freer and the officer’s knowledge that “many eases” had been made “at that time Sf morning . . . out there on that particular road,” there were no facts to arouse the officer’s suspicions that Byrd was transporting illegal aliens. Officer Escobedo said he and his partner would have been just as suspicious of any other vehicle.

The district court upheld the search on the basis of a two pronged analysis. First, the court believed that the initial intrusion, the stop, was justified by 8 U.S.C. § 1357(a) and the accompanying regulation, 8 CFR § 287.1(a)(2), which authorize immigration officials to conduct warrantless searches of vehicles for illegal aliens within one hundred miles of an international border. The court next reasoned that once a vehicle has been validly stopped for an immigration search and the immigration officers, in the course of a search for aliens, detect circumstances — the smell of marijuana for example — supporting the belief that the customs laws are being violated, the officers may then don their customs hats and complete the search to determine if illegal contraband is being transported.

The second facet of the district court’s analysis is a correct application of the principles of law relating to searches by border patrol officers. See United States v. Wright, 476 F.2d 1027 (5th Cir., 1973); United States v. Thompson, 475 F.2d 1359 (5th Cir., 1973); United States v. McDaniel, 463 F.2d 129 (5th Cir., 1972); United States v. Maggard, 451 F.2d 502 (5th Cir., 1971). Whether the search here passes constitutional muster depends, therefore, on the propriety of the initial intrusion by the border patrol agents when they stopped Byrd’s vehicle to search for aliens. To resolve this issue we must examine it against the standards established in the recent Supreme Court decision of Al-meida-Sanehez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973).

The facts there are very similar to those in the case at bar:

“ [Almeida-Sanchez] was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where the petitioner was stopped the road meanders north as well as east — but nowhere does the road reach the Mexican border, and at all points it lies north of Interstate 80, a major east-west highway entirely within the United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search — not even the ‘reasonable suspicion’ found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889], and Adams v. Williams, 407 U.S. 143 [92 S.Ct. 1921, 32 L.Ed. 2d 612].”

Id. at 267, 93 S.Ct. at 2536. The government defended the search on the basis of “§ 287(a) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a), which simply provides for warrantless searches of automobiles and other conveyances ‘within a reasonable distance from external boundary of the United States,’ as authorized by regulations to be promulgated by the Attorney General. The Attorney General’s regulation, 8 CFR § 287.1, defines ‘reasonable distance’ as ‘within 100 air miles from any external boundary of the United States.’ ” Id. at 268, 93 S.Ct. at 2537.

The Court first noted that the search could not be justified on the basis of the automobile search exception to the Fourth Amendment’s warrant requirement because there was not probable cause to believe that Almeida-Sanchez was violating any law. Although warrantless searches of automobiles may sometimes be necessary as a result of exigent circumstances, e. g. Carlton v. Estelle, 480 F.2d 759 (5th Cir. 1973), such searches must nevertheless be founded on probable cause. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925). See Carlton v. Estelle, supra; United States v. Soriano, 482 F.2d 469 (5th Cir. 1973) [No. 72-1520, July 2, 1973]. “Automobile or no automobile, there must be probable cause for the search.” Almeida-San-chez v. United States, 413 U.S. at 269, 93 S.Ct. at 2537. It is readily apparent, and the government does not argue to the contrary, that the search in question here does not fit within the narrow automobile search exception to the warrant requirement.

After holding that the search was not supported by cases dealing with administrative inspections, the Court was faced with the issue whether “the statute that purports to authorize automobiles to be stopped and searched, without a warrant and ‘within a reasonable. distance from any external boundary of the United States,’ ” id. at 272, 93 S.Ct. at 2539, was a constitutionally sufficient basis upon which to predicate the border patrol’s stop and ensuing search of Almei-da-Sanchez’s vehicle.

The Court began by distinguishing between a border search, meaning a search at the border or its functional equivalent, and a search which occurs near a border. This distinction is significant because the analysis it mandates will ultimately determine the standard for measuring the constitutionality of a particular search. The Court reasoned that searches at the border or its functional equivalent were not governed by normal Fourth Amendment principles. The federal government’s undoubted power to exclude aliens “can be effectuated by routine inspections and searches of individuals or conveyances seeking to cross our borders.” Id. at 272, 93 S.Ct. at 2539. “When a person or vehicle is detained at the border just after entering the country, the agent’s statutory authority to search is virtually unfettered except perhaps as to due process concerning the manner, not the cause, of the search. E. g., Lane v. United States, 5 Cir., 1963, 321 F.2d 573; Blackford v. United States, 9 Cir., 1957, 247 F.2d 745; King v. United States, 5 Cir., 1958, 258 F.2d 754.” United States v. Storm, 480 F.2d 701, at 704 (5th Cir. 1973) (Emphasis added). Carroll v. United States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925), provides the rationale for searches of this nature:

“It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in.”

As a result of this reasoning it will be necessary for the courts to make an initial determination of whether a search is a border search as that term was narrowly defined by Almeida-Sanchez. This will be a somewhat different methodology than that required in the usual case where the rule is that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few well-delineated exceptions,” with “the burden ... on those seeking the exemption to show the need for it.” Coolidge v. New Hampshire, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). See United States v. Soriano, supra, 482 F.2d at 472, n. 3. The special nature of a search at the border or its equivalent, however, renders the usual approach inappropriate; if a court decides that a search is a border search, it will not be required to determine whether the search is justified on the basis of a legally sufficient warrant or, if not, whether it is nonetheless proper under one of the exceptions to the warrant requirement. Moreover, the conclusion that a search is a border search will also answer the question concerning the constitutional principles applicable in determining the constitutionality of the search. It is therefore essential that lower courts, as did the Supreme Court in Almeida-Sanchez, first address the question whether a particular search is a border search.

In Almeida-Sanchez the Court concluded that a search by a roving patrol on a road “that lies at all points at least twenty miles north of the Mexican border” was not a border search and thus not governed by the lesser constitutional standard attending searches at the border or its equivalent. The Court was thus left with an unconsented to search not authorized by a warrant and not fitting within any exception to the warrant requirement, a search justifiable, if at all, on the basis of the statute and regulation. Reasoning that “no Act of Congress can authorize a violation of the Constitution,” the Court returned to basic Fourth Amendment doctrine and held: “In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’ ” 413 U.S. at 273, 93 S.Ct. at 2539. The effect of this holding is that lower courts must now for the first time apply familiar Fourth Amendment principles to determine the constitutionality of searches at points near a border but not at the border or its functional equivalent.

Applying these principles to the instant appeal, we hold that the search of Byrd’s vehicle by a roving border patrol on a road forty-five miles from the Mexican border was unconstitutional. The only arguable distinction between our case and Almeida-Sanchez is that the road on which Byrd was stopped runs directly from the border to Freer, Texas. While a situation could be hypothesized in which this distinction might become significant, it does not make a constitutional difference under the facts of this case. The officers did not have a warrant authorizing the search. Nor was there probable cause to believe that Byrd was importing illegal aliens into this country. Indeed, the officers did not have any reason to believe that Byrd had even crossed the border or been in contact with anyone who had. Thus, while the search here is of doubtful constitutional validity under this Circuit’s previous decisions, e. g., United States v. Storm, supra; Marsh v. United States, 344 F.2d 317 (5th Cir., 1965), it is assuredly unconstitutional under the probable cause standard established by Al-meida-Sanchez. The district court erred in denying Byrd’s motion to suppress the marijuana and the revolver seized in the search of his vehicle.

The holding of Almeida-Sanchez is narrow, but the reliance in the plurality opinion and in Mr. Justice Powell’s concurring opinion on traditional Fourth Amendment analysis makes it clear that lower courts must assess the constitutionality of searches in border areas under standards heretofore thought inapplicable to searches of this nature. Except in those searches conducted at the border or its functional equivalent, the touchstone is probable cause.

On the basis of the preceding discussion Byrd’s conviction is Reversed.

      . 21 U.S.C. § 841(a) provides :
      (a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
      (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

      . “Whoever, with intent to commit therewith an offense punishable by imprisonment for a term exceeding one year, or with knowledge or reasonable cause to believe that an of-Jcense punishable by imprisonment for a .term exceeding one year is to be committed therewith, ships, transports, or receives a firearm or any ammunition in interstate or foreign commerce shall be fined not more than $10,000, or imprisoned not more than ten years, or both.”
      18 U.S.C. § 924(b).

       The odor of marijuana often leads to its discovery. United States v. Storm, 480 F.2d 701 (5th Cir., 1973) ; United States v. Wright, 476 F.2d 1027 (5th Cir., 1973) ; United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973).

      . The two-hat theory was explained by Judge Goldberg in McDaniel, 463 F.2d at 134, as follows:
      “It appears that Border Patrol agents wear two hats, one as an immigration officer and the other as a customs officer. The agents testified that they had planned to wear their immigration hats that night, but we find nothing in the statutes that would preclude them from later donning their customs hats during a proper border search.”
      And, Judge Roney recently outlined the legal basis for the principle that a border patrol officer may be validly authorized to act simultaneously as a customs agent in Thompson, 475 F.2d at 1362:
      “By a series of proper delegations, border patrol officers have been designated by the Treasury Secretary as customs agents. ‘[A]ny officer of the Bureau of Customs of the Treasury Department . . . or any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law or designated by the Secretary of the Treasury to perform any duties of an officer of Customs Service . . . . ’ serves as a customs agent. 19 U.S.C.A. § 1401 (i). Under Treasury Dept. Order No. 165, Revised, 19 Fed.Reg. 7241 (T.D. 53654, 1954), empowering the Commissioner of Customs to act on behalf of the Treasury Secretary, the Commissioner delegated to special agents of the Bureau of Customs th,e authority to designate border patrol officers as ‘acting Customs Patrol officers,’ without compensation. Customs Delegation Order No. 42, 36 Fed.Reg. 13410 (T.D. 71-181, 1971). By letter/order of the Assistant Commissioner of the Bureau of Customs, dated July 14, 1971, all special agents were required to designate all current border patrol officers and future appointees as acting customs patrol officers.”

      . The Ninth Circuit upheld the search relying on the statute and the regulation. 452 F.2d 459, 461 (9th Cir., 1971).

      . The Court distinguished Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). As Mr. Justice Powell said in his concurring opinion, “one who merely travels in regions near the borders of the country can hardly be thought to have submitted to inspections in exchange for a special perquisite.” 413 U.S. at 281, 93 S.Ct. at 2543.

      . “For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border seardh.”
      Almeida-Sanchez v. United States, supra, at 273, 93 S.Ct. at 2539. Under our prior decisions we have not been called upon to determine whether a particular search occurred at a functional equivalent of the border in order to determine the constitutionality of the search. And we are not faced with that problem on the record here. However, we note that one of our prior, and often cited cases, United States v. McDaniel, 463 F.2d 129 (5th Cir., 1972), involves a factual setting which illustrates perhaps another example of a functional equivalent to the border. The search in that case occurred at a permanent checkpoint located on Interstate Highway 35, which runs northeast from Laredo to San Antonio; the checkpoint was established at a point seven miles from Laredo. Because the Rio Grande River parallels Interstate Highway 35 for five of those seven miles and furnishes a readily available avenue for the entry of illegal aliens, it could be plausibly argued that searches at that checkpoint occur at the functional equivalent of the border.

      . The Court carefully avoided the common practice of labeling all searches occurring at or near a border, or involving a possible violation of tlie immigration or customs laws, as “border searches.” Compare Almeida-Sanchez v. United States, supra, with United States v. Martinez, 481 F.2d 214 (5th Cir., 1973). The Court also implicitly rejected the often articulated idea that our international borders are “elastic” and thus provide a basis for diminished constitutional protection to tfiose who travel near them.


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. PUI KAN LAM et al., Appellants.
    Nos. 888, 889, Dockets 73-1150, 73-1270.
    United States Court of Appeals, Second Circuit.
    Argued May 23, 1973.
    Decided Aug. 21, 1973.

      Alan Scribner, New York City (Albert J. Krieger and Ivan S. Fisher, New York City, on the brief), for appellants Wai Kwon Yip and Wai Kwok Yip.
    Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant Pui Kan Lam.
    Charles H. Fier, Brooklyn, N. Y., for appellant Pui Leung Lam.
    L. Kevin Sheridan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for the E. D. of New York, and Robert L. Clarey, Asst. U. S. Atty., on the brief), for ap-pellee.
    Before KAUFMAN, Chief Judge, and KILKENNY and OAKES, Circuit Judges.

       Of the Ninth Circuit Court of Appeals, sitting by designation.

   OAKES, Circuit Judge:

Following a two-week trial before the late Hon. George Rosling and a jury in the Eastern District of New York, appellants Pui Kan Lam (“Kan Lam”), Pui Leung Lam (“Leung Lam”), Wai Kwok Yip (“Kwok Yip”) and Wai Kwon Yip (“Kwon Yip”) were found guilty on one count of possessing with intent to distribute approximately three pounds of heroin. 21 U.S.C. § 841(a)(1). On this appeal all appellants claim that an electronic interception of a conversation between appellants Kan Lam and Kwok Yip was illegal and that a tape recording of that conversation was erroneously admitted into evidence during the Government’s rebuttal case. Additionally, appellant Leung Lam challenges the sufficiency of the evidence supporting his conviction. We reject all contentions of error and affirm the convictions.

The electronic interception occurred at Apartment IF in a small building, 43-24 42nd Street, located in Queens, New York. Apartment IF had been occupied by two males of Oriental extraction who were unrelated to appellants and who had been arrested on heroin importation charges in January, 1972.■ On June 26, 1972, the wife of the superintendent of 43-24 42nd Street called Customs agents (with whom she had become acquainted during the January investigation) to report that several young males, likewise of Oriental extraction, were attempting to gain entrance to Apartment IF.

Suspicions aroused, Customs agents visited the building, informed the tenants of Apartment IF of the narcotics-related history of the apartment, and obtained “free access” to it, including a consent to search it and to “do anything they want[ed] to.” From the occupant of the apartment over IF, the agents were told of hammering noises coming from the back wall of the bedroom heard during Christmas week, 1971. The tenants of IF were instructed that in the event the men came back seeking access to the apartment they should be told the apartment belonged to a mythical uncle and that they should return the following day between noon and 1:00 p.m. when the uncle would be there.

As luck would have it, the four Oriental visitors appeared late that very night. One of them said that the four were the former occupants of IF and wished to retrieve “immigration papers” left in the apartment. The prearranged story was recited, the night visitors departed, and Customs was called. A neighbor in the building noted the license plate number of the visitors’ car and a cheek revealed that it was registered to the father of appellants Yip.

The next morning the agents were admitted to IF after the tenants had left. A search revealed approximately three pounds of heroin stashed behind a bedroom baseboard. The agents dusted the heroin bags with fluorescent powder so as to leave a residue on the hands of anyone touching them.

The agents placed a transmitting “bug” beneath a mattress in the IF bedroom and receiving equipment in the superintendent’s apartment. They had received no prior judicial approval for these actions.

At approximately noon on the 27th the surveilling agents spotted the Yip car containing four occupants. After a stop at a nearby restaurant the four occupants walked toward the apartment. Two, Kwok Yip and Kan Lam, went into a store to purchase a screwdriver and a shopping bag, while the others waited outside. The appellants then divided up, with three heading for 43-24 42nd Street and Leung Lam (whose contentions of insufficiency of the evidence will be discussed infra) walking alone in the same general direction.

The Yips and Kan Lam were admitted to Apartment IF by a Customs agent posing as a superintendent’s helper. From a peephole jn the superintendent’s apartment and the receiving equipment placed therein the agents monitored the three appellants’ activities. Kwon Yip left Apartment IF almost immediately after entry. The monitoring equipment then picked up a conversation in Chinese (which the agents did not understand) and some ripping noises. Shortly thereafter, the two remaining appellants, Kwok Yip and Kan Lam, emerged from IF and were arrested. Kwon Yip was carrying a shopping bag which contained the heroin packages dusted by the agents. Leung Lam was also arrested. Illuminatingly, on subsequent examination the hands of Kan Lam revealed traces of fluorescent powder.

Appellants’ defense was that they intended to retrieve money hidden in IF, not heroin. Kan Lam testified that he was told of the hidden money by a somewhat mysterious “Chang” during a Chinatown conversation and was also shown a map of Queens indicating 43-24 42nd Street’s location. At the time, however, Kan Lam dismissed the whole affair as a “joke.” Later he claimed to have changed his mind and recruited Kwok Yip (who had access to a car) to help recover the “money.” According to Kan Lam, only Kwok Yip was told of the purpose of the several trips to Queens taken by appellants; the others were taken “along for the ride.” It suffices here to say that the other appellants testified along the same general lines.

After all the appellants had testified the Government introduced in rebuttal, through the testimony of a Customs agent and a Chinese interpreter, a transcript of that part of the intercepted conversation that was translatable and played the whole tape for the jury. The actual conversation introduced contained no specific references to heroin but does demonstrate that two men were engaged in conversation while the baseboard was being ripped off. This contradicted Kwok Yip’s testimony on direct examination that immediately after entry he went into Apartment lF’s bathroom and remained there until after Kan Lam removed the baseboard. The final sentence of the translated transcript of the intercepted conversation introduced was: “Next time it’s better to go out from here.” According to appellant Kan Lam, that sentence “impli[ed] that the activities of the defendants involved other and similar activities which would be going on in the future” and “undercut the joint defense, which was that the entry into the apartment was a one-time event for the purpose of getting $30,000.”

All appellants contend in varying ways that the warrantless interception of the conversation in IF was illegal under the federal statute regulating such matters, 18 U.S.C. § 2510 et seq., and the fourth amendment. Appellants’ argument of illegality is premised on the fact that there was no “consent” to the interception by one of the parties to the conversation which, under the statute, 18 U.S.C. § 2511(2) (c), is the only applicable exception to the general warrant requirement. Appellants Yip, and apparently appellant Leung Lam, argue that the interception was the principal basis for the probable cause necessary to justify the arrest of appellant Kwon Yip and the resulting seizure of the heroin. Since the interception was illegal, the argument runs, so was the seizure. All appellants additionally argue that the introduction of the tape recording in the Government’s rebuttal case prejudiced them in the ways described above.

At the threshold, appellants Kwon Yip and Leung Lam, who were not at IF at the time of the allegedly illegal interception, lack standing to challenge it under either the constitutional, see, e. g., Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), or statutory standard. 18 U.S. C. § 2510(H). To establish standing these appellants must show not that damaging evidence was introduced against them but rather that their personal rights were violated-by the allegedly illegal interception. “Coconspirators and codefendants have been accorded no special standing,” Alderman v. United States, 394 U.S. 165, 172, 89 S.Ct. 961, 965, 22 L.Ed.2d 176 (1969), in this regard. See United States v. San Martin, 469 F.2d 5, 8 (2d Cir. 1972). Since appellants Kwon Yip and Leung Lam were not in Apartment IF during the intercepted conversation, they had no legitimate interest in protecting the privacy of the intercepted conversation. They also had no interest in protecting the privacy of the premises for they had no possessory interest in them. See Brown v. United States, supra,, 411 U.S. at 223, 93 S.Ct. 1565; cf. Alderman v. United States, supra, 394 U.S. at 176-180, 89 S.Ct. 961.

Appellants Kan Lam and Kwok Yip, however, are rightfully conceded by the Government to have the necessary standing since it was their conversation that was intercepted. Their claim of illegality is nonetheless rejected, because the conversation between them did not occur in.a factual setting which legally justified any subjective expectation of privacy they may have had. As a result it was neither an “oral communication” within the meaning of the statute, 18 U.S.C. § 2510(2), nor entitled to constitutional protection against the “uninvited ear.” Katz v. United States, 389 U.S. 347, 352, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

As we have been advised, “the Fourth Amendment protects people, not places,” Katz v. United States, supra, 389 U.S. at 351, 88 S.Ct. at 511, and the statutory definition of an “oral communication” tracks this constitutional concept. The question we have before us is whether the subjective expectation of privacy violated by the allegedly illegal intrusion is one society is prepared to recognize as “ ‘justifiable.’ ” United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion). See Katz v. United States, supra, 389 U.S. at 352, 353, 88 S.Ct. at 511-512 (majority opinion) and at 360-362, 88 S.Ct. at 516-517 (concurring opinion of Harlan, J.). Measured by this objective standard appellants’ expectations must fail. The interception here did not occur in a public phone booth, Katz v. United States, supra; a suspect’s home, Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961); or office, Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); or the home of a friend into which appellants had been invited. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). Rather it occurred in the house of complete strangers to which appellants had made several suspicious visits and into which they tried to gain entry by false representations, which alone would seem sufficient to deny them any expectation of privacy. Further, appellants were granted entry into the house by a “superintendent’s helper” who then departed and left them alone. Under the circumstances appellants may be held to have assumed that their activities might be monitored. Cf. People v. Santos, 26 Cal.App.3d 397, 102 Cal.Rptr. 678 (Ct. App.2d Dist. 1972) (interception of conversation between husband and wife over jail intercom telephone not interception of an “oral communication” within statute in part because an expectation of privacy under the circumstances would not have been reasonable). Thfere is no danger here that upholding the interception will “smother that spontaneity — reflected in. frivolous, impetuous, sacrilegious, and defiant discourse —that liberates daily life.” United States v. White, supra, 401 U.S. at 787, 91 S.Ct. at 1144 (Harlan, J., dissenting). For “daily life” does not include conversation in the apartment of strangers under the circumstances preceding the entry here.

Additionally, in delineating the scope of the statutory and constitutional protections, the value of the law enforcement activity, see White v. United States, supra, 401 U.S. at 786, 91 S.Ct. 1122 (Harlan, J., dissenting), as well as the officers’ reasons for not obtaining a warrant, cf. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), should also be considered. The value of the interception here is obvious, since it enabled relevant evidence against appellants to be gathered that could be obtained by no other means. The reason for not securing a warrant was simply, and justifiably, the pressure of time. The officers did not even enter the apartment until approximately 9:30 a.m., after the tenants had left for work. They did not discover the heroin until sometime thereafter, approximately 10:30 a.m. According to the prearranged story planted by the tenants the Oriental visitors were to return to the apartment by noon that day and could have arrived even earlier. The agents scarcely had enough time to call for and install their equipment and organize their surveillance, let alone obtain a warrant.

Having held that appellants either have no standing to bring this challenge or are not protected by the statute or constitution, there is no need to pass on the further questions whether, absent the interception, there was probable cause to arrest Kwon Yip and seize the shopping bag containing the heroin packages; whether the transcript and tape recording of the intercepted conversation were properly introduced against appellant Kwok Yip for impeachment purposes; and whether, even if the interception was illegal, the admission of the transcript and tape recording was harmless error. We affirm the convictions of appellants Kan Lam, Kwok Yip and Kwon Yip and go on to consider the sufficiency of the evidence against appellant Leung Lam.

Leung Lam is Kan Lam’s older brother and came to the United States from Hong Kong in 1968. He had worked as a merchant seaman and in the clothing industry in Hong Kong. Since his arrival in New York Leung Lam worked steadily at various jobs in the garment industry and eventually acquired ownership interests in two sportswear companies. He does not speak, read or understand English.

The evidence of Leung’s involvement in this case, viewed in the light most favorable to the Government, was as follows : although appellant testified he accompanied the other appellants to Queens only on June 26 and June 27, 1972, there was evidence from which the jury could have inferred that he also accompanied them there on at least one other occasion and perhaps other times. Even one prior visit was inconsistent with Leung Lam’s defense, that he was just wandering around while the others had gone to “look for a friend.”

On the day of appellant’s arrest, June 27, Leung Lam entered the Queens restaurant with the other appellants. After leaving the restaurant, all appellants walked east on Queens Boulevard toward 43-24 42nd Street. Leung Lam waited outside with Kwon Yip while the other appellants entered the store to purchase a screwdriver and shopping bag.

The business at the store complete, all four appellants walked east on Queens Boulevard to the corner of Queens Boulevard and 42nd Street. Kwok Yip, Kwon Yip and Kan Lam then turned north and proceeded toward the apartment house up 42nd Street on the west side of the street. Leung Lam crossed to the east side of 42nd Street but also proceeded north toward the apartment building.

The Customs agent who followed Leung Lam testified that while proceeding toward the apartment building Leung Lam frequently stopped and looked around. Still looking around, Leung Lam walked past the subject apartment building, crossed 43rd Avenue (which runs parallel to Queens Boulevard), then crossed 42nd Street and recrossed 43rd Avenue. He then proceeded past the apartment house on the west side of 42nd Street. It was here he was arrested, shortly after Kwon Yip had left the immediate vicinity of the apartment building with the shopping bag containing the heroin. At the time of arrest, Leung Lam was walking towards Queens Boulevard, about 45 feet behind Kwon Yip, toward the parked Yip car.

Leung Lam’s testimony in his own behalf was that he did not know anything about the purpose of the various trips to Queens and that he went along solely to see a movie and get a bite to eat. He claimed to have heard no conversation in the car about the purpose of the trips. The only business he ever discussed with the Yips was the possibility of financing a Chinese restaurant in which the Yips would be employed. According to Leung Lam, after the other appellants had told him they were leaving to “meet a friend,” he entered a store to buy some yarn but needed an interpreter to negotiate the purchase and therefore left the .store to look for the other appellants. He was doing that, he said, just before his arrest.

The jury could find, however, that Leung Lam acted as a lookout for the group and did not innocently go along with the others “just for the ride.” While the evidence against appellant was entirely circumstantial, see United States v. Taylor, 464 F.2d 240, 244 (2d Cir. 1972), and less than overwhelming, we cannot conclude it was insufficient as a matter of law. Leung Lam followed the appellants toward the apartment on the opposite side of the street. The testimony of the surveilling agents disputed his testimony that he entered a store to shop for yarn. According to the agents he never lost sight of the others until they entered the -apartment building. He admitted on cross-examination that he made purchases alone in non-Chinese stores “many times” and that he could read Arabic price tags on merchandise. Given that acjpission, and the agent’s testimony, the jury could rationally discredit entirely Leung Lam's story that at the time of arrest he was wandering on the street seeking an interpreter to help him negotiate a purchase of yarn. The jury could thus interpret appellant’s conduct as indicating “concer[n] about possible police surveillance or interference from innocent passers-by,” United States v. Carneglia, 468 F.2d 1084, 1088 (2d Cir. 1972), and not as the conduct of an innocent caught in a police dragnet.

As a matter of common sense, the jury was entitled to take into account what appears to us an incredibility inherent in Leung Lam’s story. United States v. Arcuri, 405 F.2d 691, 695 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969). It is a little difficult to believe that a man of some sophistication and business success within the Chinese community would take at least two trips to an unknown location in Queens without inquiring or hearing anything about the purpose of the trips (which happened to result in his younger brother and two friends acquiring a cache of heroin). There was no language barrier in his communications with the other appellants that prevented such an inquiry. Further, there is the fact that far from being the most docile member of the group, Leung Lam provided virtually all support for his younger brother and had proposed a restaurant venture in which he would be “the boss” of the Yips. Cf. Nye & Nissen Corp. v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); United States v. Fried, 464 F.2d 983, 985 (2d Cir.), cert. denied, 409 U.S. 1059, 93 S.Ct. 554, 34 L.Ed.2d 511 (1972). This role as provider and proposer is hardly consistent with his claim of passive association with the narcotics recovery operation. Rather, Leung Lam’s isolation from contact with the apartment could rationally be viewed by the jury as an effort to insulate himself from criminal liability, to put himself in the position of a manipulative leader rather than an unwitting innocent. Such inferences are for juries to draw and we will not disturb them on appeal, at least where, as here, there was a fair aiding and abetting charge. See United States v. Infanti, 474 F.2d 522, 526 (2d Cir. 1972); United States v. Fried, supra, 464 F.2d at 985.

Judgments affirmed.

      . The appellants Lam were each sentenced to a term of ten years’ imprisonment and five years’ special parole, sentences they are presently serving. The appellants Yip were each sentenced to five years’ imprisonment and five years’ special parole. They are free on bail pending this appeal.

      . The Government does not contend here, as it apparently did below, that the consent by the tenants to “do anything they want[ed] to” in Apartment IF satisfied the statutory requirement of consent by “one of the parties to the communication.” 18 U.S.C. § 2511(2) (c). See United States v. San Martin, 469 F.2d 5, 7 (2d Cir. 1972) (dictum).

      . 18 U.S.C. § 2510(11) provides:
      “ [A] ggrieved person” means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.

      . The rationale of the only case cited by appellants Kwon Yip and Leung Lam to support their standing, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), has been questioned in the recent Brown v. United States, 223 U.S. 411, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). The Jones concept of “automatic standing” to contest an allegedly illegal search and seizure where, as here, the same possession needed to establish standing is “an essential element of the offense with which the defendant is charged,” Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247 (1968), is thus of dubious vitality. But we need not and do not decide what is left of Jones after Brown, for the rationale of Jones is simply inaplacable to this case, as it was to the case presented to the Court in Brown. The Jones Court conferred “automatic standing” on the petitioner there because it was “not consonant with the amenities, to put it mildly, of the administration of criminal justice,” 362 U.S. at 263, 80 S.Ct. at 732, to require a defendant to affirm possession of contraband for purposes of establishing standing to challenge an illegal search and seizure and later to require him to deny it at trial of guilt or innocence. Here, there is no conflict with such “amenities,” as appellants do not contest their actual or constructive possession of the narcotics, only their knowledge of what they were possessing. Thus, the Jones rationale is plainly in-apposite here and appellants Kwon Yip and Leung Lam have no other basis to establish standing to challenge the legality of the interception.

      . 18 U.S.C. § 2510(2) defines an “oral communication” as:
      “[0]ral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation ....

      . In contrast, the statutory definition of “wire communication,” the interception of which is also prohibited, contains no “justified” expectation of privacy requirement. See United States v. Carroll, 332 F.Supp. 1299, 1301 (D.D.C.1971).

      . Once a defendant offers evidence after the denial of a motion for acquittal at the close of the Government’s ease in chief, of course, the defendant waives any claim as to the sufficiency of the Government’s case considered alone. United States v. Arcuri, 405 F.2d 691, 695 n. 7 (2d Cir. 1968), cert. denied, 395 U.S. 913, 89 S.Ct. 1760, 23 L.Ed.2d 227 (1969).


author: PER CURIAM: TAMM, Circuit Judge

text:
    Agustin VIOLA, Appellant, v. UNITED STATES of America.
    No. 71-1901.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 14, 1972.
    Decided June 13, 1973.
    Henry F. Lerch, Washington, D. C., for appellant.
    Robert C. Wesley, Atty., Dept, of Justice, with whom L. Patrick Gray, III, Asst. Atty. Gen. at the time the brief was filed, Harold H. Titus, Jr., U. S. Atty., and Walter H. Fleischer, Atty., Dept, of Justice, were on the brief, for appellee.
    Before BAZELON, Chief Judge, TAMM, Circuit Judge, and HARRISON WINTER Circuit Judge for the Fourth Circuit.

       Sitting by designation pursuant to 28 U.S.C. § 291 (a).

   PER CURIAM:

Agustín Viola is a farmer and shepherd on the island of . Negros near the southern end of the Philippine archipe-lagian chain. Viola is the son of Hilario Dagoy, a Philippine national who fought for the United States in World War II (71st Field Artillery) and who gave his life in that conflict. Viola sued the Veterans’ Administration for benefits to which he claims he is entitled because of his father’s military service.

Of the various benefit programs Congress has established for veterans and their families, two are relevant to this case: (1) Dependency and Indemnity Compensation is essentially a monthly pension paid to the widow or children of a veteran whose death is service-connected; (2) Gratuitous National Service Life Insurance is an insurance program that provides a $5,000 payment to beneficiaries of qualified veterans. Agustín Viola has been receiving Dependency and Indemnity Compensation payments since 1958. However, his applications for Life Insurance benefits have been denied on the ground that they were not timely filed. In this suit Viola challenges that denial.

The record shows that when the plaintiff was 14 years old, his mother, Maria Viola, had a letter prepared in which she expressed her intention “to apply for death compensation on account of the services rendered by the late veteran HILARIO DAGOY”. The letter explained that the application was being made on behalf of Dagoy’s illegitimate son, Agustín Viola. Srta. Viola signed the letter with a thumbprint and mailed it to the Veterans’ Administration (V. A.) on June 9,1956.

The V.A. responded by sending Srta. Viola an application form for Dependency and Indemnity Compensation. The agency did not send an application for National Service Life Insurance benefits, apparently because the V.A. considered illegitimate children ineligible for insurance benefits at that time. Srta. Viola completed the application form she had received. After a careful investigation, the V.A. confirmed that Agustín Viola was the son of Hilario Dagoy; the agency awarded him Dependency and Indemnity Compensation beginning in 1958.

On May 18, 1961, in the Tranas decision, this court held that an illegitimate child is entitled to receive gratuitous life insurance benefits if either parent was covered by the program. Under this ruling, Viola is an eligible beneficiary of such benefits. The V.A. did not inform Viola of this fact, however, and because of the remoteness of his home, he did not learn of our decision until late in 1964. Viola filed a formal application for insurance benefits on Dec. 4, 1964. By statute, such applications must be filed by the applicant’s 22nd birthday; Viola filed his at the age of 22 years, six months. His application was rejected as untimely by the Veterans’ Administration, and this action followed.

We think the V.A. is in error in asserting that Viola’s 1964 letter was his first application for insurance benefits. Rather, the initial application came in Maria Viola’s 1956 request for the benefits due her son. We think that letter, couched in general terms, can only be reasonably interpreted as a request for all benefits to which Agustín Viola was entitled. To suggest that an illiterate Philippine farm woman intended to make fine distinctions among various sections of the veterans’ laws strains credulity beyond tolerable limits.

Moreover, there were continuing contacts between Agustín Viola and the Veterans’ Administration following Srta. Viola’s initial letter. There was first the patrimonial investigation, which culminated in the award of Dependency and Indemnity Compensation in 1958. Then, in November, 1961 — six months after we issued the Tranas opinion — Viola was granted school attendance benefits. In January, 1962, Viola’s compensation award was reviewed and modified by the V.A. Thus it can hardly be said that the formal (1964) application for insurance benefits came to the government as a bolt out of the blue.

We do not suggest here that the Veterans’ Administration had a duty to track down and notify all eligible illegitimate children of veterans following our decision in .Tranas. We do not suggest that the agency was at fault in failing to provide Viola or his mother the forms necessary for filing an insurance claim. But Agustín Viola was not at fault either. “Since the child is not at fault, there is no reason to penalize him. We are not persuaded that Congress thought otherwise.” Tranas, supra, 110 U.S. App.D.C. at 252, 292 F.2d at 745. This conclusion comports with the expansive tenor of case law concerning the National Service Life Insurance program. Decisions in this court and elsewhere reflect a generous attitude toward eligible beneficiaries, in keeping with the “humane and patriotic” purposes for which this “generous legislation” was passed. Tranas, supra, 110 U.S.App.D.C. at 251-252, 292 F.2d at 744-745. When the Veterans’ Administration received the 1964 application, it was under an obligation to consider it a renewal of a part of the 1956 request on which it had not yet acted.

Since we find that Viola’s initial application for National Service Life Insurance benefits was filed prior to his 22nd birthday, we rule that the trial judge erred in granting the government’s motion for judgment on the pleadings. The government has also argued in this court that Viola’s law suit was initiated after the time period for filing such an action had run. Appellant’s request was filed in 1956 and denied sometime in 1965. Since the statute was tolled during this period, the government’s argument is without merit. Timoni v. United States, 135 U.S.App. D.C. 407, 419 F.2d 294 (1969). Accordingly, the case must be remanded for appropriate proceedings.

Reversed and remanded.

TAMM, Circuit Judge

(dissenting):

My inability to concur in the majority opinion is based upon my conclusion that my brethren set forth an excuse rather than a reason for their reversal of the district court. The governing statute, 38 U.S.C. § 802(d)(5) (1952 edition), is exact, precise and final in providing that any applicant for death benefits “may make such application at any time within one year after the removal of such disability.” Since appellant’s infant status terminated on May 7, 1963, he obviously was required to “make such application” no later than May 7, 1964. He did not do so and the Congress has mandated that he thereby forfeited whatever claim he had to these benefits.

With a nobility of purpose but without authority in law the majority create a solution of their own for what they obviously consider is an unfortunate situation. Despite my admiration for the suppleness of adaptation which makes their end result possible, I feel it is reached only by ignoring the validity of legal principles. Recognizing that as jurists we are engaged in a never-ending but never accomplished quest for justice, I still believe our mandate is to effectuate the will of the Congress rather than to substitute our own subjective views of what constitutes that justice in a particular case. In distorting congressional purpose, or in supplanting congressional objectives with our own purposes and objectives, we are usurping a power which does not belong to us. For judges to think otherwise is not a mistake but a delusion.

The majority opinion with a jaunty confidence utilizes a Janus faced “generous attitude toward eligible beneficiaries” and “humane and patriotic purposes” in reaching a point at which it is impossible to arrive by the statutory provisions. Apparently this route is pursued in the vain hope that somehow the result is within the perimeter of Chief Justice John Marshall’s “it must be on the general spirit and object of the law, not on [its] letter.” Grant v. Raymond, 31 U.S. (6 Peters) 217, 240, 8 L.Ed. 376 (1832).

Again acknowledging the charitable motivation of the majority, I must conclude that the result is completely indifferent to the governing law. I would affirm.

      . See 38 U.S.C., Chapt. 13, Subchapt. II (1970 Ed.).

      . See 38 U.S.C. § 802(d) (1952) ; 38 U.S.C. § 788 (1970). The government agrees that Hilario Dagoy was covered by the program.

      . United States v. Philippine Nat’l Bank, as Guardian of Tranas, 110 U.S.App.D.C. 250, 292 F.2d 743 (1961).

      . By his own account, Viola has spent most of his life “in my field in the mountains of Valencia, Negros Oriental, Philippines.” Appellant’s brief at 5.

      . 38 U.S.C. § 802(d)(5) (1952).

      . This reading is compelled not only by common sense but also by the broadly inclusive statutory definition of what constitutes a valid claim. 38 U.S.C. § 784 (h) (1970).

      . United States v. Philippine Nat’l Bank, 110 U.S.App.D.C. 250, 251, 282, 292 F.2d 743, 744-745 (1961). See also Philippine Nat’l Bank v. United States, 112 U.S. App.D.C. 126, 128, 300 F.2d 718, 720 (1962) ; United States v. Zazove, 334 U.S. 602, 68 S.Ct. 1284, 92 L.Ed. 1601 (1942) ; United States v. Vandver, 232 F.2d 398 (6th Cir. 1956).

      . The government did not attempt to make much of this argument; but the fact that it was raised at all1 in the face of direct authority in this court to the contrary seems to indicate the same “intransigent attitude” in this area of law for which Judge Holtzoff criticized the government in Rodulfa v. United States, 295 F.Supp. 28, 30 (D.D.C.1969).

      . We note that Viola’s attorney has asked this court for an award of fee under 38 U.S.C. § 784(g) (1970). We leave the determination of the appropriate fee to the trial court on the remand. Moran v. Veterans’ Administration, 115 F.Supp. 640, 642 (E.D.Mich.1963) ; Rodulfa v. United States, 295 F.Supp. 28 (D.D.C. 1969).