author: TIMBERS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Alphonse SISCA et al., Appellants.
    Nos. 445, 448, 458, 474, 476, 486, Dockets 73-2017, 73-2045, 73-2178, 73-2179, 73-2181 and 73-2185.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 26, 1973.
    Decided May 10, 1974.
    Certiorari Denied Nov. 11, 1974.

      Gino Gallina, New York City (Lenef-sky Gallina Mass Berne & Hoffman, New York City, on the brief), for appellant Sisea.
    Henry J. Boitel, New York City (Le-nefsky Gallina Mass Berne & Hoffman, New York City, on the brief), for appellants Abraham, Grant and Logan.
    Robert H. Kiernan, New York City (Lenefsky Gallina Mass Berne & Hoffman, New York City, on the brief), for appellant Hoke.
    John L. Pollok, New York City, for appellant Holder.
    Edward Gasthalter, New York City, for appellant Brown.

      Robert P. Leighton, New York City, for appellant Ellington.
    Gilbert Epstein, New York City, for appellant McBride.
    W. Cullen MacDonald, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and John D. Gordan III, Asst. U. S. Atty., New York City, on the brief), for appellee.
    Before MOORE, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Appellants Alphonse Sisea, Willie Abraham, Walter Grant, Margaret Logan, Robert Hoke, Erroll Holder, William Brown, Leonard Ellington and Lavern McBride appeal from judgments of conviction entered upon jury verdicts returned in the Southern District of New York on February 23, 1973 after a six week trial before Frederick van Pelt Bryan, District Judge, finding them guilty of conspiring to distribute hard narcotics in violation of 21 U.S.C. § 846 (1970) (Count One); finding all except Sisea and Hoke guilty of using communication facilities in furtherance of the conspiracy in violation of 21 U.S.C. § 843(b) (1970) (Count Three); and finding Abraham guilty of engaging in a continuing criminal enterprise involving hard narcotics in violation of 21 U.S.C. § 848 (1970) (Count Two).

Of the numerous claims of error raised on appeal, we find the following to be the principal ones: (1) McBride, Hoke, Ellington, Brown and Sisea challenge the sufficiency of the evidence as to them; (2) Grant, Logan, Hoke, Holder and Abraham claim that there was a material variance between the single conspiracy charged and the multiple conspiracies said to have been proven; (3) Abraham challenges the constitutionality of the continuing criminal enterprise statute on its face and as applied to him; and (4) all appellants claim that the government’s failure adequately to minimize its electronic surveillance requires total suppression of the wiretap evidence and its fruits, and they further claim that their deliberate refusal to move to suppress on that ground prior to trial did not constitute a waiver of their constitutional right to do so thereafter. Other subordinate claims of error also are raised.

We affirm.

I. FACTS

(A) Overall Enterprise

The evidence, derived largely from wiretaps and their fruits, established that appellants and others were wholesale and major retail operatives in a large scale, vertically integrated heroin and cocaine distribution network embracing Westchester County, New York City and New Jersey. Sisea and one Benjamin Castalozzo were the top links between unknown sources and this $5,000,000 a year corporate-like criminal enterprise which distributed 200 kilograms of heroin annually. Its day to day operations were directed by Abraham. He controlled the wholesale distribution activities of Hoke, Logan, Grant, Brown, Ellington and Holder, among others. Further down the marketing chain and somewhat closer to the retail level, Holder was the proprietor of a heroin cutting and packing “mill” where he and his wife, Carol, employed five “mill girls” who adulterated and repackaged the heroin for delivery by Ellington to their customers, one of whom was McBride.

(B) Electronic Surveillance

In view of the district court’s clear and detailed statement of the facts with respect to the electronic surveillance here involved during the period from September 28 to December 15, 1971, 361 F.Supp. 735, it is sufficient for our purpose merely to summarize briefly those facts necessary to an understanding of our rulings on this issue.

On September 27, the Westchester County District Attorney’s Office applied to Judge Timothy Sullivan of the Westchester County Court for an order authorizing a tap of the telephone listed in the name of Carol Holder and located at the Holder residence in Yonkers (the Holder tap). The order was issued the same day. It included, as did the others here involved, a clearly adequate “minimization” provision.

The tap was installed on September 28 and continued, pursuant to a court ordered extension, through November 24. The interception terminus (plant) was equipped to record both in-coming and out-going calls and to register the telephone numbers of calls made from the Holder phone. Investigators from the Westchester County Sheriff’s office attended the plant twelve to sixteen hours a day. Nevertheless, the recording and registering devices at all times were maintained on an automatic setting and were activated each time the telephone receiver was lifted from its cradle. As a result, each call made to or from the Holder phone during the interception period was recorded or overheard, or both. Logs and transcripts of all calls were made.

Relying primarily on information gathered from the Holder tap, the Bronx County District Attorney’s office on November 8 applied for and obtained from Justice William Kappelman of the Bronx County Supreme Court an order authorizing a tap of the telephone listed in the name of Margaret Logan and located at the Co-Op City Apartment (the Logan tap). This tap was directed principally at uncovering the narcotics related activities of Logan’s boyfriend, Abraham. The tap was maintained until December 15, the date of Logan’s arrest.

Except for the around the clock monitoring, the Logan tap was conducted in a manner essentially the same as the Holder tap. Each call was automatically recorded and a log was prepared for each reel of tape.

Also on November 8, Justice Kappel-man authorized a tap of the telephone listed in the name of Lavern McBride (the McBride tap). As with the Logan tap, the McBride tap was attended 24 hours a day. With one exception, all calls were monitored, recorded, logged and in some cases summarized.

(C) The Conspiracy

Evidence derived from the three court authorized wiretaps, coupled with visual surveillance, disclosed a vast chain-type narcotics distribution conspiracy. The following summary reflects no more than the tip of the iceberg.

Shortly after the Holder tap was installed on September 28, Holder was overheard discussing a ransom of $14,000 and “you know — something else”, that “thing”, “junk merchandise”, which had been paid for the return of his kidnapped partner, one Theodore Johnson. Holder also was overheard arranging for precautions to be taken by his “women” in the event they were threatened with kidnapping. The “women” later were identified as Holder’s wife, Carol, and the five “mill girls” who operated the narcotics cutting and packaging facility.

At periodic intervals beginning in early October, the Holders were overheard planning a rendezvous with their mill girls. After several unsuccessful attempts, surveillance teams on November 24 finally managed to follow Carol Holder and the five mill girls to their meeting place on Convent Avenue in Manhattan. Armed with a search warrant, the agents raided the apartment in the early morning hours of November 24. They uncovered a narcotics mill in full operation. They found Carol Holder and the girls literally in the midst of packing thousands upon thousands of heroin filled glassine envelopes for retail street sale.

This raid put a serious crimp in the overall Holder operation. Within two days, McBride was overheard telling a would-be narcotics purchaser that the Holder cupboard was bare. She said, “If Fox (Holder) is out — everybody’s out.”

Conversations intercepted on the Holder tap in early November also disclosed the relationship between Abraham, Holder and the latter’s courier, Ellington, in the hierarchy for the distribution of heroin. On November 8, at 2:35 P.M., for example, Abraham called Holder and said that he had good news, “Tonight”. Ten minutes later and again that evening, Holder called Ellington and directed him to be prepared for a night-time delivery. At 9:43 P.M. the same evening, Abraham called Holder again and said that, although “they didn’t give me as many as they were supposed to”, Holder ought to send “that boy over”. Holder immediately called Ellington and ordered him to “go downtown with it, you know what I’m talking about.”

While most of Holder’s conversations were guarded and obtuse, their import was clear to those engaged in the business. On one occasion a disgruntled customer called Holder and complained that he had received only four rather than the promised ten ounces on his last narcotics purchase: “Listen Fox. That was four (4) on the scale and four (4) by spoon count. Anyway you weigh it : . . Ya hear me.” Holder agreed to “make up the difference” or “give . . back the scratch”.

Interceptions on the Logan tap also indicated Abraham’s role as the director of the other appellants. Logan, Abraham’s surrogate, frequently was overheard taking messages and orders and planning to attend meetings in Abraham’s absence. Grant was at Abraham’s beck and call. On one occasion Grant was told by Abraham where and when to meet one who wanted “to buy you know”. At other times Grant appeared at Logan’s apartment as directed by Abraham. Brown’s role as an outlet for Abraham’s merchandise also was clearly indicated.

The Logan tap further revealed the roles of Sisea and Castalozzo as the suppliers of narcotics to Abraham. Both were overheard at various times arranging meetings with Abraham or, in his absence, with Logan. On December 13, surveillance agents for the first time were able to follow Abraham to the meeting place and to observe him in his car conversing with Sisea at the appointed hour. Shortly after the meeting began, Castalozzo, who had been serving as a look-out, apparently noticed the surveillance. Immediately upon his warning, “This car is dirty . . . Come on”, Sisea got out of Abraham’s car. He and Castalozzo got into another nearby car and, after driving slowly for several blocks, sped away from the pursuing officers in a “French Connection”like flight between the pillars of an elevated subway.

Beginning with this abortive December 13 meeting between Sisea and Abraham, there was frenetic activity on the part of the co-conspirators as the police investigation approached a culmination. Such activity included a call from the agitated Castalozzo to Logan to arrange another rendezvous with Abraham, a December 14 call from Abraham to Brown directing the latter to be prepared for a delivery the next morning and a noontime meeting between Grant, Logan and Hoke on December 14.

On the following morning, December 15, Abraham, Logan, Grant and others were observed at various times entering the Hoke residence on Olmstead Avenue in the Bronx. Grant entered carrying a collapsed valise. Abraham and Logan each had empty shopping bags. After brief stays, Hoke’s visitors left with their containers full. Surveillance teams followed the suspects to different locations and arrested them. The containers which each had carried from the Hoke residence were searched and found to contain large amounts of heroin. When Abraham was arrested after a high speed chase, he admitted that over a period of two and a half years he had purchased bi-weekly and redistributed approximately 200 kilograms of heroin annually.

Later that day, Hoke was arrested upon leaving his house. A search of his house pursuant to a warrant produced large amounts of heroin, cash, narcotics packaging paraphernalia, a rifle and several revolvers.

On the evening of December 15, Grant’s home and the apartments of Logan and McBride were searched pursuant to warrants. An immense quantity of narcotic adulterants was found in Grant’s basement. A complete narcotics cutting mill, quantities of both heroin and cocaine, and a revolver were found in McBride’s apartment. While examining a sleeping platform in Logan’s apartment, an officer raised a loose section of the platform’s carpeting and discovered what appeared to be the organization’s current accounting record.

II. SUFFICIENCY OF THE EVIDENCE

McBride, Hoke, Ellington, Brown and Sisea claim that the evidence was insufficient to support the jury’s verdicts. Viewing the evidence in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972), we hold that each of these claims is without merit.

(A) McBride

A search of McBride’s apartment on the evening of December 15 uncovered a complete narcotics cutting mill. Her participation in the conspiracy was clearly established in an intercepted call shortly after November 24 when she identified the “Fox” (Holder) as her narcotics supplier and stated, “If Fox is out — everybody’s out.”

(B) Hoke

Hoke claims that he was in an inebriated stupor and therefore was completely unaware of what went on at his house on the morning of December 15. In the alternative, he claims that the evidence of his meeting with Logan and Abraham on December 14, coupled with that indicating that his entire house was a “stash” for a narcotics distribution enterprise, permits at most an inference of his knowledge of but not his active participation in the conspiracy. We reject both claims.

While evidence of mere attendance at a meeting or knowledge of a conspiratorial act, without more, may not be sufficient to support an inference of active participation in a conspiracy, United States v. Stewart, 451 F.2d 1203 (2 Cir. 1971); United States v. Kearse, 444 F.2d 62 (2 Cir. 1971), here there was far more. The government does not rely on Hoke’s mere presence at the premises where contraband was found, as in Kearse; nor was his involvement as limited as that of the chauffeur of a drug dealer in Stewart, Hoke was the owner, and shared with his wife exclusive possession, of a house found strewn with narcotics and various other paraphernalia of a heroin trafficking operation. This, coupled with his presence on the premises while others entered and left carrying containers of heroin, clearly permitted the inference that Hoke performed the critical role of maintaining the “stash” or “safe haven” for the distribution operation. United States v. Terrell, 474 F.2d 872, 875 (2 Cir. 1973); cf. Evans v. United States, 257 F.2d 121, 128 (9 Cir.), cert. denied, 358 U.S. 866 (1958). Further, the suggestion that members of a conspiracy would entrust $60,000 in cash and a large quantity of narcotics to one who was not a full partner strains credulity. United States v. Terrell, supra, 474 F.2d at 875. Finally, when considered in conjunction with other evidence, United States v. Cassino, 467 F.2d 610, 618 n. 21 (2 Cir. 1972), the entry “Bobby 5,000” on the accounting record found at the Logan apartment surely permitted the inference that it referred to Hoke’s share of the December 15 delivery.

(C) Ellington

While there was no evidence that Ellington had narcotics in his possession during the period of the conspiracy, there were eight intercepted telephone conversations on the basis of which the jury was warranted in finding that Ellington had an established role in the Holder-Abraham operation. For example, on that occasion referred to above after Ellington was directed by Holder to “go downtown with it, you know what I’m talking about”, Ellington did so. The next day he reported back to Holder that “Purcell . . . gave me a grand” but “he wants something tomorrow morning”. Ellington also informed Holder that another individual, Bruce, was “happy to get it last night.”

This repeated though guarded use of cryptic expressions by members of - a narcotics conspiracy has been aptly described as a “narcotics code”. United States v. Manfredi, 488 F.2d 588, 597 (2 Cir. 1973), cert. denied, 417 U.S. 936 (1974). The use of such expressions in the context of the entire record in the instant case, including the conversations between Holder and Ellington, was sufficient to permit the jury to find that Ellington was an active participant in the conspiracy.

(D) Brown

There was evidence that on at least three occasions in the fall of 1971 Brown and Abraham agreed over the telephone to meet and then did meet at the “same place” to transfer drugs and money when they were “ready for” each other.

On one such occasion, on November 16, Brown drove from New Jersey to a deserted street in Manhattan, surreptitiously removed an attache case from the trunk of his car and handed it to Abraham who immediately locked it in the trunk of his car. Two days later, Brown called Abraham and expressed disappointment upon learning that “nothing [was] happening” and that “everything [was] quiet.” The jury could well have inferred from this that Brown’s disappointment was directed at Abraham’s failure to deliver narcotics for which he had been paid two days earlier.

Even more damaging was the evidence that on December 14, within a few hours of the Hoke distribution, Abraham called Brown and advised him that “I’ll see you tomorrow at 12.” At 11:40 A.M. the next day, Abraham left the Hoke residence with a shopping bag full of heroin. Had it not been for his unexpected arrest, Abraham would have been able to keep his appointment with Brown.

This evidence, together with a great deal more, such as the accounting record showing “Bill 13,000”, was more than sufficient to permit the jury to find that Brown was not only a regular customer of Abraham but also the intended recipient of the heroin carried by Abraham at the time of his arrest.

(E) Sisea

The government adduced evidence that Sisea and Castalozzo were the top echelon links oetween unknown sources of supply and the narcotics distribution enterprise here involved. The principal evidence of Sisca’s participation in the conspiracy were eight intercepted telephone conversations with Abraham, Castalozzo and Logan, and his presence at, and flight from, a furtive, night-time meeting with Abraham on December 13.

During one of these conversations — the last intercepted before the aborted December 13 meeting between Sisea, Casta-lozzo and Abraham — Sisea was overheard telling Abraham that the “balance” of the “thing” was available for delivery. While such talk in other context would hardly be incriminating on its face, what we have said above regarding the sufficiency of the evidence against Ellington applies with equal force here. The repeated use of such cryptic phrases in conversations with other members of the conspiracy, many of whom were apprehended in possession of narcotics, was sufficient to permit the jury to find that Sisea was an active participant in the conspiracy. United States v. Man-fredi, supra.

Moreover, it is highly significant that this last intercepted call and the aborted meeting which followed pursuant to the call took place within a day of the Hoke distribution when Abraham received a large quantity of heroin. In this context, the jury was warranted in finding that the “balance” of the “thing” were the eight kilograms of heroin which were seized on the morning of December 15. This is buttressed by Sisca’s flight in response to Castalozzo’s warning, “This car is dirty.” If this remark meant, as might reasonably have been inferred, that the “balance” referred to narcotics being at the scene, then the jury was entitled to view Sisea’s precipitous flight as evidence of consciousness of guilt. United States v. Christophe, 470 F.2d 865, 869-70 (2 Cir. 1972), cert. denied, 411 U.S. 964 (1973).

III. SINGLE CONSPIRACY

Grant, Logan, Hoke, Holder and Abraham claim that the evidence established four separate conspiracies of the “hub-spoke” type rather than the single “chain” type conspiracy charged in the indictment. This claim is no stranger to this Court. See, e. g., United States v. Vega, 458 F.2d 1234, 1236 (2 Cir. 1972), cert. denied, 410 U.S. 982 (1973); United States v. Borelli, 336 F.2d 376, 382-87 (2 Cir. 1963), cert. denied, 379 U.S. 960 (1965); see also Kotteakos v. United States, 328 U.S. 750, 773-74 (1946). These appellants also claim that the court failed adequately to instruct the jury that it must find a single conspiracy and not multiple conspiracies. We hold that each of these claims is without merit.

The evidence was sufficient to permit the jury to find that each appellant played a well defined role in a highly structured, disciplined and vertically integrated criminal enterprise, and that the “part with which [each] was immediately concerned, was dependent upon the success of the whole.” United States v. Tramaglino, 197 F.2d 928, 930 (2 Cir.), cert. denied, 344 U.S. 864 (1952), quoting from United States v. Bruno, 105 F.2d 921, 922 (2 Cir.), rev’d on other grounds, 302 U.S. 287 (1939); see also United States v. Bynum, 485 F.2d 490, 495-96 (2 Cir. 1973). Intercepted telephone conversations and visual surveillance clearly established the necessary links between all appellants and their continuous involvement with each other. United States v. Calabro, 449 F.2d 885, 892-93 (2 Cir. 1971), cert. denied, 404 U.S. 1047 (1972). The fact that not each of the conspirators was acquainted with each of the others is of no significance. It is sufficient for the government to have proven, as it did here, that “each knew from the scope of the operation that others were involved in the performance of functions vital to the success of the business.” United States v. Bynum, supra, 485 F.2d at 496; United States v. Calabro, 467 F.2d 973, 982-83 (2 Cir. 1972), cert. denied, 410 U.S. 926 (1973).

We also hold that Judge Bryan’s charge on this issue was clearly appropriate — indeed, if anything, more favorable to appellants than that to which they were entitled. He properly mar-shalled the evidence, explained in detail the essential elements of the crime of conspiracy and made it crystal clear that, before appellants could be convicted, the jury was required to find “the single conspiracy charged.”

IV. CONTINUING CRIMINAL ENTERPRISE

Abraham’s claim that the continuing criminal enterprise provision of 21 U.S.C. § 848 (1970) on its face is void for vagueness is foreclosed by our decision in United States v. Manfredi, supra, 488 F.2d at 602-03, where the same claim was rejected. We also reject Abraham’s claims that the statute is unconstitutional as applied to him or, in the alternative, that the evidence was insufficient to sustain his conviction under that statute.

To establish a violation of Section 848, the government was required to prove that Abraham occupied a position as organizer or a managerial or supervisory position with respect to a continuing narcotics trafficking operation' in concert with five or more other persons, and that he derived substantial income or resources from the operation. The evidence was more than sufficient to bring Abraham squarely within the statute.

It is beyond dispute that Abraham was the operational kingpin of a highly organized, structured and on-going narcotics distribution network. Electronic and visual surveillance provided impressive documentation of a continuing distribution relationship between Abraham as a major wholesale supplier and such lower level wholesale and major retail operatives as Logan, Brown, Grant, Hoke, Coombs and Holder and, through the latter, with Carol Holder, Ellington and McBride. Evidence of a similar high degree of trustworthiness established Abraham’s responsibility for and direct control over those working under his supervision. In fact, Abraham’s own admissions corroborate other evidence of his supervisory position in the organization. After his arrest on December 15, he admitted that he had purchased that morning heroin worth more than $170,000, and that he had been making large purchases and subsequent redistributions on a bi-weekly basis for a period of some two and one half years.

In the teeth of this evidence, Abraham nevertheless contends that the government failed to prove that he had gained substantial economic benefit from his distribution activities. He says that his December 15 purchase was on “consignment” and that he was $170,000 in debt at the time. This contention is fatuous, to put it charitably. In the first place, we reject any notion that a consignment debt necessarily suggests an operational deficit. On the contrary, in the context of this record, it indicates a substantial anticipated profit. Secondly, in view of his position in the distribution network, the enormous quantity of narcotics involved (over 200 kilograms annually) and the substantial sums of money changing hands ($5,000,000 annually), the jury surely was justified in finding that Abraham derived substantial income from this immensely profitable narcotics enterprise.

V. MINIMIZATION

All appellants claim that the electronic surveillance from which most of the evidence was derived failed to comply with the minimization requirements of state and federal law. N.Y.Criminal Procedure Law § 700.30(7) (McKinney 1971); 18 U.S.C. § 2518(5) (1970). They claim that the appropriate remedy for such a failure is the total suppression of the wiretap interceptions and their fruits. They rely upon United States v. Focarile, 340 F.Supp. 1033 (D.Md.), aff’d on other grounds sub nom. United States v. Giordano, 469 F.2d 522 (4 Cir. 1972), aff’d, 416 U.S. 505 (1974); but see United States v. Cox, 462 F.2d 1293 (8 Cir. 1972).

We decline to rule on the merits of either of these claims. We hold, as did the district court below at trial and after a post-trial hearing, that appellants knowingly and intentionally waived their rights to challenge the admissibility of the wiretap evidence in that they deliberately failed to raise the claim of failure to minimize in a pretrial motion although specifically directed to do so.

The statutory requirement of a pretrial motion to suppress wiretap evidence is set forth in 18 U.S.C. § 2518 (10) (a) (1970) which provides in pertinent part:

“Such motion [to suppress the contents of any intercepted wire communication, or evidence derived therefrom] shall be made before the trial . . . unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion.” (emphasis added)

It is undisputed that no pretrial motion on the ground of failure to minimize was made here. This does not end the inquiry. The question remains whether appellants’ failure to make such pretrial motion can be justified by either of the statutory exceptions to what otherwise appears to be the absolute time requirement of Section 2518(10)(a). We hold that their failure was not justified.

On November 8, 1972, a few weeks after the return of the indictments and almost two months before the original trial date, the government formally advised appellants that “all tapes of conversations electronically recorded under Court order” would be made available for inspection and copying. Shortly thereafter, the government provided appellants with a voluminous amount of material relating to the interceptions, including the wiretap orders, the supporting papers and a complete log of the Holder tap. Facilities for listening to and copying the interceptions were provided. By late December, appellants’ tape evaluation process was well under way.

On December 27, Judge Bryan held a pretrial conference to consider, among other matters, appellants’ request for an adjournment of the trial which was then scheduled to begin January 3. The transcript of that conference clearly shows that appellants were well aware of the factual basis for a failure to minimize claim if they had intended as a matter of trial strategy to assert such a claim. In stressing the need for additional time to consider and evaluate the tapes, counsel for Sisea, Abraham, Grant, Logan, Hoke and Holder (this counsel was acting for other appellants as well) made the following statement about the 200 hours of recordings which had already been analyzed: In direct response to this statement, Judge Bryan said:

“ttfe also discovered to our chagrin that the agents and the police who executed the warrants did not follow the directives in the warrants, did not follow the directives of federal law, and that is minimization.”
“Now, if, for example, you have any affirmative evidence which you claim presently justifies the suppression of anything, any of the taped materials, it seems to me quite clear that that ought to be raised forthwith.”

Despite this clear directive, appellants chose not to avail themselves of the opportunity provided by the court to move to suppress on the ground of alleged failure to minimize.

On December 29, Judge Bryan held another pretrial conference. This time he agreed to postpone the trial until January 15. He did so because defense counsel desired further time to continue listening to the tapes on the minimization and other questions. No minimization motions were filed during the ensuing two and a half weeks before the trial began.

Indeed, not until January 23, five days after the trial began, when the government sought for the first time to introduce evidence derived from the Logan tap, did defense counsel find it “appropriate” formally to raise the minimization issue. Judge Bryan denied this motion, and similar ones made during trial, on the ground that they were not timely. After trial, the judge held an evidentiary hearing on appellants’ minimization claims. He denied the motions to suppress in all respects — “both on the ground that defendants waived their right to make such motions and on the merits.” 361 F.Supp. at 748.

We affirm the district court’s denial of the motions to suppress, but we do so on the ground that appellants waived their right to challenge the admissibility of the wiretap evidence by deliberately refusing to raise the failure to minimize claim in a pretrial motion. Appellants knew of the alleged failure to minimize at least three weeks prior to trial. Indeed, they themselves brought to the attention of the court the facts upon which such a motion could have been made, had their trial strategy called for it. Despite a clear direction from the court, however, they made no pretrial minimization motion. We hold upon this record that appellants’ conduct squarely violated the time requirement of Section 2518(10) (a) and was not justified by either of its exceptions.

Appellants argue, however, that, having put the court “on notice” with respect to their minimization claim prior to trial, they cannot be said to have waived an important constitutional right simply by having postponed their formal motions until trial. They assert that the attitude of the judge, in finding a waiver under these circumstances “is characteristic of a prosecutorial mentality rather than a judicial mentality.” We emphatically disagree.

We recently have emphasized the importance of having suppression motions made and, where possible, determined prior to trial. United States v. Tortorello, 480 F.2d 764, 785 n. 18 (2 Cir. 1973), cert. denied, 414 U.S. 866 (1973); cf. United States v. McCall, 489 F.2d 359, 363 (2 Cir. 1973). Moreover, Congress intended strict adherence to this policy with respect to motions pursuant to Section 2518(10)(a). The Report of the Senate Judiciary Committee on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (1970), of which Section 2518(10) (a) is a part, made it clear that this provision was intended to limit the evidentiary sanction of exclusion provided in Section 2515:

“[Section 2518(10)(a)] must be read in connection with sections 2515 and 2517, . . . which it limits The motion must be made before the trial, hearing, or proceeding unless there is no opportunity to make the motion or the person was not aware of the grounds of the motion .... Care must be exercised to avoid having a defendant defeat [the government’s] right of appeal . . , by waiting until trial.” (emphasis added)

Appellants argue, however, that Congress was mistaken and that an intentional and unjustifiable failure to make a timely suppression motion does not jeopardize the government’s right to appeal pursuant to Section 2518(10) (b). Constitutional issues aside, see United States v. Birrell, 470 F.2d 113, 115 n. 2 (2 Cir. 1972), Congress clearly intended to permit the government to appeal only from an adverse ruling on a properly made suppression motion. Here, appellants’ motions to suppress were improperly made because they were untimely. We reject appellants’ suggestion that Congress intended the incongruous result of an appeal from a ruling on a suppression motion which, as here, would have been time barred by Section 2518(10)(a). •

Moreover, the potential loss of its right to appeal is not the only prejudice suffered by the government when a suppression motion is inexcusably delayed until trial. An adverse ruling on a pretrial motion will permit the government to change the theory of its case, to develop or place, greater reliance upon untainted evidence or otherwise to modify its trial strategy. When the deliberate trial strategy of defense counsel is to obtain such a ruling only during or after trial, this flexibility obviously is lost.

Perhaps of chief importance, the timely disposition of such motions is critical to the orderly and fair administration of the criminal justice system itself. We will not countenance such deliberate and subtly disruptive tactics as those employed here. They would unnecessarily obfuscate the issues, confuse the jüry and otherwise interfere with the judicial process. See United States v. Bennett, 409 F.2d 888, 901 (2 Cir. 1969), cert. denied, 396 U.S. 852 (1970). Cf. Nardone v. United States, 308 U.S. 338, 341-42 (1939).

It is well settled that unjustified failure to make a timely motion to suppress evidence pursuant to former Fed.R.Crim.P. 41(e) (now Rules 41(f) and 12), the provisions of which are analogous to Section 2518(10)(a), constitutes a waiver of that right. United States v. Ellis, 461 F.2d 962, 969 (2 Cir.), cert. denied, 409 U.S. 866 (1972); United States v. Blackwood, 456 F.2d 526, 529 (2 Cir.), cert. denied, 409 U.S. 863 (1972); United States v. Bennett, supra, 409 F.2d at 901; United States v. Weldon, 384 F.2d 772, 775 (2 Cir. 1967). This is so even when the district court, as here, considers the merits of the suppression motion as well as its timeliness. United States v. Nicholas, 319 F.2d 697 (2 Cir.), cert. denied, 375 U.S. 933 (1963); United States v. Volkell, 251 F.2d 333, 336 (2 Cir.), cert. denied, 356 U.S. 962 (1958). This rationale controls here.

Finally, we reject, as did the district court, appellants’ contention that the finding of waiver here is inconsistent with the view that courts should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). We hold that appellants, by ignoring the district court’s explicit directive to make their minimization motions before trial, elected to pursue a trial strategy of intentional relinquishment of a known right and the deliberate by-pass of the orderly and timely suppression procedure provided by Section 2518(10)(a). In doing so, they waived their right thereafter to challenge the admissibility of the wiretap evidence. Cf. Kaufman v. United States, 394 U.S. 217, 227 n. 8 (1970); Henry v. Mississippi, 379 U.S. 443, 450-51 (1965); Fay v. Noia, 372 U.S. 391, 438-39 (1963).

We have considered appellants’ other claims of error and find them without merit.

Appellants were convicted more than a year ago after a fair trial on the basis of overwhelming evidence of serious crimes committed more than two and a half years ago. We order that the mandate issue forthwith.

Affirmed.

      . In addition to the nine appellants whose appeals are before us, the indictment named nine other defendants. Of these, motions for judgments of acquittal were granted as to Theodore Johnson, Gerald Hartley, Milton Basemore and Cassandra Sullivan; Benjamin Castalozzo, Parris Sizemore and Herbert Owens were fugitives at the time of trial; the case against Oleo Dingle wras severed prior to trial; and Carol Holder, who was convicted on Count One, apparently has not appealed from her sentence of 5 years probation.
      Abraham was sentenced to 15 and 4 year consecutive terms on Counts One and Three, and to a concurrent life term on Count Two. Grant and Holder were sentenced to 15 and 4 year consecutive terms on Counts One and Three. Brown was sentenced to 15 and 4 year concurrent terms on Counts One and Three. Ellington was sentenced to 8 and 4 year concurrent terms on Counts One and Three. Hoke and Sisea were sentenced to 15 year terms on Count One. Logan was sentenced to 5 and 3 year concurrent terms on Counts One and Three. McBride was sentenced to 5 and 4 year concurrent terms on Counts One and Three. All appellants were sentenced to special parole terms following their release from prison.
      All appellants have been enlarged on bail pending appeal, except Grant who is in state custody and Abraham as to whom bail was denied.

      . The indictment refers to Schedule I and II controlled substances. 21 U.S.C. § 812 (1970). The evidence established that for the most part heroin was involved, and to a lesser extent cocaine.

      . Unless otherwise indicated, reference in this opinion is to appellant Erroll Holder. When we refer to his wife, Carol, we shall so state.

      . N.Y. Criminal Procedure Law § 700.30(7) (McKinney 1971) requires that an eavesdropping warrant contain a provision to assure that the interception
      “be conducted in such a way as to minimize the interception of communications not otherwise subject to eavesdropping

      . Later the same (lay, the Holder residence (to be distinguished from the Convent Avenue apartment) was searched pursuant to a warrant. A large amount of cash was found hidden in a raised sleeping platform in the bedroom.

      . This record indicated the following shares:
      Pay Balance
      “Walter [Grant] .. 22,000 10,000 12,000
      Fox [Holder] .... 5,000
      Bobby [Hoke] ... 5,000
      Bill [Brown] .... 13,000
      Sandy .......... 25,000”
      The last entry referred to a deceased co-conspirator, Melvin Coombs, and his girlfriend, Cassandra Sullivan.

      . We reject out of hand McBride’s contention that there was insufficient non-hearsay evidence to warrant the admission against her of co-conspirators’ statements identifying Holder as the “Fox”. Her own intercepted admission that she was out of heroin, coupled with her arrest in constructive possession of heroin, clearly supported the court’s preliminary determination of her participation in the conspiracy. United States v. Geaney, 417 F.2d 1116, 1119 (2 Cir.), cert. denied, 397 U.S. 1028 (1969).

      . The search of Hoke’s house uncovered the following: a quantity of heroin in plain view on the living room floor; an attache case containing $39,000 in the master bedroom closet; a revolver on the bed; scales and bagging equipment in the kitchen; an attache case containing $20,130 in the living room closet, together with several revolvers and a rifle nearby; and several thousand glassine envelopes in the basement garage.

      . We reject Sisca’s contention that, because he was acquitted on the count charging illegal use of the telephone, we may not properly consider the substance of intercepted telephone conversations in weighing the sufficiency of the evidence against him on the conspiracy count. Cf. United States v. Carbone, 378 F.2d 420 (2 Cir.), cert. denied, 389 U.S. 914 (1967).
      Sisca’s contentions and offers of proof with respect to electronic and visual identification inadequacies were properly addressed to the jury which rejected them.

      . Other members of the conspiracy regularly used such obtuse but, in the context of this record, narcotics related phrases as “that thing” (Holder), “one” (Abraham), “something” (Brown, Ellington), “it” (Ellington), “the same thing” (Grant, Brown).

      . Assuming arguendo that it was error to have permitted the jury to consider Abraham’s admissions with respect to drug transactions that occurred prior to the May 1, 1971 effective date of Section 848, we hold that such error was harmless beyond a reasonable doubt. The proof that Abraham was engaged in bi-weekly narcotics transactions for one and a half years clearly was sufficient to satisfy the “continuing series of violations” requirement of that section.

      . In view of the ground of our decision, we need not decide whether the appropriate remedy for inadequate minimization of a state wiretap, as opposed to whether there was adequate minimization, is a question of state or federal law. See United States v. Manfredi, supra, 488 F.2d at 598 n. 7.

      . By this time, Judge Bryan had ruled upon motions to suppress the wiretap evidence from the Holder, Logan and McBride interceptions. These motions were made on a variety of grounds. No .such motion, however, had claimed the failure to minimize.

      . S.Rep.No.1097, 90th Cong., 2d Sess. (1968), quoted in 2 U.S.Code Cong. & Adm. News 2195 (1968).

      . Axjpellants contend that the government could not possibly have been prejudiced here because its entire case was derived from wiretap evidence and its fruits. Such reasoning is unpersuasive for several reasons. First, it is not at all clear which of the appellants would have had standing to challenge the various alleged minimization inadequacies. Thus, even if the failure to minimize were to require total suppression of the wiretap evidence — an issue upon^jwhich we are not required to rule — certain wiretap evidence might very well have been admissible against certain of the appellants. See United States v. Poeta, 455 F.2d 117, 122 (2 Cir. 1972). Secondly, we do not know whether the government had clearly untainted evidence which, because of appellants’ failure to make timely motions to suppress on minimization grounds or for strategic reasons, the government had no occasion to introduce.


source: Caselaw Access Project

author: DONALD RUSSELL, Circuit Judge: BUTZNER, Circuit Judge

license: Public Domain

text:
    Janice C. NUNNERY, an Individual, Appellant, v. J. Richard BARBER, as an Individual, and in his official capacity as the West Virginia Alcohol Beverage Control Commissioner, Appellee.
    No. 73-2502.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided Sept. 18, 1974.

      Butzner, Circuit Judge, dissented and filed an opinion.
    John Boettner, Jr., Charleston, W.Va., for appellant.
    William R. Wooton, Asst. Atty. Gen. (Chauncey H. Browning, Jr., Atty. Gen., of West Virginia, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

Plaintiff is a discharged manager of a state-operated liquor store in West Virginia. Contending her discharge was for patronage purposes and thereby violated her First Amendment rights, and was without due process, she sued the West Virginia Alcohol Beverage Control Commissioner both individually and officially for affirmative injunctive relief restoring her to her former position and for actual and punitive damages. She based federal jurisdiction on § 1983, 42 U.S.C., and § 1343, 28 U.S.C. The Commissioner moved to dismiss the action for want of jurisdiction under the Eleventh Amendment and for failure to state claim upon which relief could be granted. The District Court granted the motion on the second ground without considering the application of the Eleventh Amendment. Nunnery v. Barber (D.C.W.Va.1973), 365 F.Supp. The plaintiff has appealed. We affirm. 691.

The plaintiff’s action represents a challenge to the “patronage” or “spoils” system of public employment. Such an attack is not novel. For more than a century, the system has been . under attack. Generally the attack has been directed toward legislative action as the proper source of relief. And both federal and state governments have responded with civil service laws providing a merit system for public employment and giving public employees in certain classifications protection against discharge for patronage reasons. West Virginia has enacted such a law. When, however, resort has been had by public employees to the courts for relief independently of the legislated civil service laws or regulations, (i. e., by employees not within “the classified service”) the claim has received scant consideration ; and this has been true whether the claim was premised on the constitutional right of free speech, equal protection or due process. As the District Court in its opinion observed, the reason generally assigned for this denial of judicial relief is that the proper forum for relief is considered to be the legislature and not the courts. A recent case, expressive of this viewpoint and representing what until that time had been the uniform answer to this claim, is Alomar v. Dwyer, supra. In dismissing a claim of invalidity of a discharge of a non-policy-making public employee for patronage reasons on constitutional grounds, the Court said (pp. 483-484 of 447 F.2d):

“The spoils system has been entrenched in American history for almost two hundred years. The devastating effect that such a system can wreak upon the orderly administration of government has been ameliorated to a large extent by the introduction of the various Civil Service laws. However, it is well understood that the victors will reap the harvest of those public positions still exempt from such laws. Indeed many such positions are exempt because a new administration taking office can only carry out its policies by replacing certain officeholders. If and when additional exempt positions are to be subject to civil service protection is a matter for action by the appropriate municipal and state authorities and not by a federal court.”

A little over a year after the decision in Alomar, the Seventh Circuit, in a decision “without direct precedent”, as several commentators have remarked, departed from the accepted rule as stated in that case and for the first time granted constitutional protection of po-

litical association to patronage employees. Illinois State Employees Union, Council 34, etc. v. Lewis (7th Cir. 1972), 473 F.2d 561, cert. denied, 410 U.S. 928 and 943, 93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609. While the Court in this case accepted the premise that only the legislature may impose on the state a civil service system assuring impartiality in either the employment or retention of public employees, it held that such principle did not inhibit a court from prohibiting on constitutional grounds the dismissal of a patronage employee having no civil service status for patronage reasons. Taking a realistic, rather than an abstract, view of the matter, however, the Court made it clear that this was not an absolute rule applicable in all cases; it was a rule which the Court expressly held did not extend protection to all public employees. On the contrary, the constitutional principle was declared to establish a flexible rule that varied in its application with the classification of the employee and the nature of his duties. There were, and of necessity had to be, exceptions to the rule; there were, the Court freely conceded, classes of public employees who were not entitled to invoke the constitutional principle it was enunciating. Thus, it emphasized in its opinion that it did not “challenge the public executive’s right to use political philosophy or affiliation as one criterion in the selection of policy-making officials. Moreover, considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions. It is difficult to believe, however, that any such justification would be valid for positions such as janitors, elevator operators or school teachers. Thus, again, jurisdiction is a matter of proof, or at least argument, directed at particular kinds of jobs. The possibility of such valid justification for some positions does not afford a basis for dismissing all of plaintiffs' claims without a trial.” (473 F.2d at p. 574)

The Court stated throughout its opinion that the rule it was expounding related only to the rights of “maintenance workers, elevator operators; janitors, and comparable employees”, or, as it expressed it at another point, of “janitors, elevator operators or school teachers”, (473 F.2d at pp. 574-575) employees who normally cannot in their employment adversely affect the policy-making or implementation functions of government and employees “performing merely routine functions not requiring the exercise of an informed discretion or the formulation of underlying rationales for government action.” Indiana State Employees Association, Inc. v. Negley, supra (365 F.Supp. at p. 232). In short, Lewis, it seems fair to assume, was intended to extend its mantle of constitutional protection only to those public employees whose duties were “routine”, involving the exercise of no administrative policy or public duties as broadly defined, and that is the reach of the decision on this point, as we read it.

It is true, the opinion in Lewis may be thought to make a vague distinction between what it describes as “policy-making” employees and “non-policy-making” employees and does indicate that its rule extends generally to “non-policy-making” employees. But the Court attempted no authoritative or precise definition of “policy-making” and “non-policy-making”; and these terms as used in the opinion, contribute little to determining with exactness or finality those employees who are or are not entitled to the protection of the rule the Court is promulgating. As the editor in 14 Wm. & Mary L.Rev., 720 at 729-30, commenting on this case, phrased it, “[A] related problem is that of defining the protected class. The most common proposal is that persons in policy making positions be excluded. Such a distinction proves simple at either end of the employment spectrum, but would be almost impossible to accomplish where the groups shade together.”

Judge Campbell in his concurring opinion also recognized the “definitional problem” represented in attempting to fix the application of the rule by the use of such broad, general terms as “policy-making” and “non-policy-making”. He stated the problem in these words:

“* * * it is simple enough to say that janitors, clerk-typists and elevator operators are ‘non-policy making’ employees, but how far up in the bureaucratic echelon can the distinction be judicially drawn? What, about a janitorial supervisor, the director of a stenographic pool, a personnel manager, a deputy assistant division head, a deputy director, or even a secretary to a top echelon director or department head who may have access to confidential information? As Judge Stevens so aptly states, there may be instances when political affiliation constitutes a proper qualification for public employment, particularly in the selection and appointment of ‘policy-making’ officials. Indeed, no one has challenged the right of an elected official to appoint to such positions and for whatever reasons he deems proper, persons in whose loyalty and competence he has the highest confidence. The difficulty arising in attempting to fashion an appropriate and workable judicial standard for distinguishing between ‘policy-making’ and ‘non policy-making’ positions. In my judgment, the constitution would permit a public official to hire or dismiss on the basis of political association any employee engaged directly or indirectly in the formulation or implementation of the policies of the particular governmental office or agency. A more precise standard is difficult to articulate and thus the true impact of today’s decision must necessarily await ease by case determination.” (473 F.2d at p. 578)

Moreover, the lead opinion was at pains, it would seem, to indicate it was not using the term “policy-making” as an absolute criterion in the application of its rule. It unquestionably envisaged a broader basis for immunity from the rule. This was made clear by the opinion in Indiana State Employees Association, Inc. v. Negley, supra, where the Court, quoting from the pertinent language of Lewis, said (365 F.Supp. at pp. 231-232):

“Plaintiffs’ reliance on the distinction between policy-making and non-policy-making positions arises from language in Lewis wherein the Court stated: ‘Plaintiffs properly do not challenge the public executive’s right to use political philosophy or affiliation as one criterion in the selection of policy-making officials.’ Such reliance is nearsighted in that it ignores the succeeding sentence in the opinion which states that ‘Moreover, considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions.’ Though these plaintiffs clearly occupied policy-making positions, the Court foresees that many cases could arise wherein such a distinction could not practically be made. In those cases consideration of ‘other factors’ would be appropriate. If such a distinction must be made, a more useful, and more accurate, one to be drawn from Lewis would be the distinction between employees performing or exercising public duties as opposed to those performing merely routine functions not requiring the exercise of an informed discretion or the formulation of underlying rationales for government action.”

As we have observed, it seems fairly manifest that the majority in Lewis intended to restrict its holding to a particular group of employees (“maintenance workers, elevator operators, janitors, and comparable employees”) and proposed to promulgate no authoritative definition of the type of other employees who were entitled to protection under its ruling. So clear is this intent that it has been remarked that, “ [I]t is apparent that the court of appeals intended to limit Lewis to its facts” and to the class of employees who performed “routine services”. Indiana State Employees Association, Inc. v. Negley, supra (365 F. Supp. at p. 232). Actually, it would appear the Court was in its decision seeking to make the same distinction among employees and their rights which Justice Douglas made in his dissent in United Public Workers v. Mitchell (1947) 330 U.S. 75 at pp. 120-122, 67 S.Ct. 556, 581, 91 L.Ed. 754. There, he concluded that the Hatch Act should apply to those public employees who “may be a tributary, though perhaps a small one, to the main stream which we call policy making or administrative action”, a class that could even include “clerks, stenographers and the like”, if so identified with “policy making or administrative action”, but should not apply to “a skilled laborer or artisan whose work or functions in no way affect the policy of the agency nor involve relationships with the public”. And the dissenting opinion in American Federation of State, C. & M. Emp. v. Shapp, supra (280 A.2d at pp. 381-382), made the same point: Accepting the premise that it was “consonant with constitutional protections, to allow a new governor to dismiss, merely because of political affiliation, any employe who is engaged in a policy making position, or in a position charged with implementing or devising the means of implementing the governor’s policies”, it would have held such rule inapplicable to “unskilled and semi-skilled employes whose daily occupations are merely to maintain the public highways.”

Because of these difficulties in defining the protected class, Judge Campbell, in his concurring opinion, expressed considerable concern that the federal courts might, if the rule enunciated was given too broad an application, be converted into “super civil service commissions” and voiced doubt whether for these reasons the courts were as well qualified as the legislature to define what constituted a “policy-making” or an “excepted” position in the application of the constitutional principles being enunciated. (473 F.2d at p. 578) His doubts have been echoed by a number of commentators. Thus, in 26 Vand.L.Rev. 1090, 1097-8 (1973), the note editor observes:

“* * * a second definitional problem is created by the court’s restriction of the decision’s scope to non-policy-making employees. Perhaps, as was noted by Judge Campbell, the difficulties inherent in delineating any workable standards for making this characterization of public employees are such that they should be resolved legislatively.”

We find convincing the point that the delineation between the employees who are and who are not protected from patronage discharge poses an issue which should be resolved legislatively, not judicially, and that the legislative determination, when made, should be overturned only if it can be said that it is palpably arbitrary or irrational. Such a conclusion, it would seem, fits in with the procedure established under the federal civil service laws, which have formed the pattern for the state civil service laws, including that of West Virginia. The Lloyd-LaFollette Act, which supplements the Pendleton Act of 1883, and as implemented under the Regulations of the Civil Service Commission, provides protection for federal employees in the “competitive service” against discharge for political reasons. But whether a federal employee is in the “competitive service” and entitled to that protection depends on federal statute and the regulations of the Civil Service Commission, acting by delegation from the President. Federal employees who occupy positions which (a) are of a confidential or policy determining character, or are, while not of a confidential or policy determining character, of a type (b) for which it is not practicable to examine, or (c) it is not practicable to hold a competitive examination, are expressly excepted from the “competitive service” and may be terminated at will for any cause. The Civil Service Commission, as the selected agency of the executive branch, is given the authority in turn “to determine finally whether a position is in the competitive service” and to “decide whether the duties of any particular position are such that it may be filled as an excepted position” or patronage position. By like token, it would appear that the state legislature, subject only to the requirement that it should not act arbitrarily or irrationally, should have the same.authority to determine whether under a state civil service law a state position involves the exercise of such “public duties” that patronage dismissal therefrom would not be improper. The legislature of West Virginia has made that determination with respect to the plaintiff’s position, a determination that should be given the same weight and finality accorded an exception made for federal employees by the Civil Service Commission. It assuredly cannot be said that the designation by the West Virginia legislature of plaintiff’s position as a patronage job, terminable at will as such, was either arbitrary or irrational. Liquor control is always a sensitive issue in government and requires strict supervision and control. This is well recognized. Cf., California v. LaRue (1972) 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342. The manager of the county liquor store is in a far more sensitive position than the holders of the several specified positions instanced by Judge Campbell in his concurring opinion; it plainly is not a “routine” position. It, it would seem, is the type of position that the legislature could properly exempt, and that Judge Campbell thought it could exempt, from the “classified service”, just as the Civil Service Commission, under its Congressional mandate, exempted federal positions from the federal “classified service.”

The plaintiff argues, though, that the District Court made a finding of fact that her position was “non-poliey-mak-ing” and was within the Lewis rule, if that rule should be considered controlling. And she contends that such a finding may be overturned only if clearly erroneous. There is no question that a factual finding made by the District Court on disputed facts is binding on appeal unless clearly erroneous. But that principle is not involved here. We do not construe the use by the District Court of the term “non-policy-making” employee as amounting to a factual finding that the plaintiff was such an employee. Rather, we would read its use as a means of putting the issue within the frame of the Alomar rule which it proposed to follow. If, however, it is to be regarded as a finding of fact, it has no support or basis in the record. Indeed, the District Court gave no reason for such a finding, if finding it was; it made no effort to analyze the plaintiff’s position in the light of the criteria discussed in Lewis. The plaintiff herself, though she relied on Lewis for her claim, nowhere alleged that her employment was in a non-policy type position. Nor did the defendant make any suggestion in the motion to dismiss to that effect. The record is accordingly barren of any basis of any kind for a finding by the District Court that the plaintiff was in a non-policy-making position. In our opinion, the record as made by the plaintiff herself and the legislative declaration fix her type of employment as one without the rule in Lewis.

It should be noted, also, that, if the argument of the plaintiff is accepted, her initial employment would be as invalid constitutionally as her subsequent discharge. If political affiliation cannot be justified constitutionally as a basis for discharge, it would seem to follow that granting employment itself on such a basis is invalid. The complaint is clear that the plaintiff received her position because of her Republican party affiliation. Hers was a definite patronage appointment. Beyond this, she alleged categorically that “her employment and continued employment as manager and cashier as described herein was conditioned upon active and partisan support, past, present and future, of the Republican Party in local, state and national elections.” (Italics added) In her brief filed in this Court, the plaintiff asserts that at the time she was offered the non-civil service position of manager as a patronage job pure and simple, she was offered the alternative of cashier, a civil service position with tenure. She voluntarily accepted the patronage postion, with a full realization of its conditions and its hazards. The question naturally arises whether, irrespective of the validity or invalidity of attaching political consideration to either the granting or the continuance of public employment, one who obtains a position knowingly and understanding^ as a purely political appointment is in any position to complain if he or she loses his or her position in the same manner, and for the same reason by which he or she originally Secured it.

This problem was faced in Lewis. The Court recognized that it could be well argued that a public employee who “accepted his job with knowledge that he would be fired if, and when, the appointing officer was replaced by a member of the opposite political party * * * waived any right to object to the fully anticipated event which has now come to pass.” (473 F.2d at p. 573) The Court found, however, that there was not sufficient “factual basis” for a defense of this character in the case under consideration and did not feel compelled to determine whether such defense was sound. However, the Court in American Federation of State, C. & M. Emp. v. Shapp, supra, did, it would seem, resolve this issue and resolved it adversely to the plaintiff’s position. In denying to patronage employees, who had obtained through political affiliation their jobs relief from discharge, the Court stated tersely that those who “live by the political sword must be prepared to die by the political sword” and, in dying by the political sword, acquire no constitutional right to relief. It phrased its conclusion thus (280 A.2d at p. 378):

“We specifically hold that State employees who obtained their positions (jobs) — as all the parties agree they did — by politics or party patronage, and complain of being fired solely on the grounds of political sponsorship or affiliation, have (1) no Constitutionally ordained right of procedural Due Process, (2) nor any other Constitutionally protected right to their jobs under (a) either the Federal or (b) the State Constitution, (3) nor any right claimed herein under any (a) Federal or (b) State Statute: phasis in opinion] [Em-

We are of opinion the plaintiff by her own allegations disqualified herself from claiming any right to complain of her discharge. She knew from the outset she was entitled to no civil service status. In fact, she had been given, as we have observed, a choice between a civil service status and one dependent on political activity, and had voluntarily chosen the latter, knowing, as she herself alleges, the hazards of the choice she took. If there were ever a case in which it could be said an employee had waived a right of complaint, this, it would seem, is that case.

Nor do we find any support for plaintiff’s contention in Perry v. Sindermann (1972), 408 U.S. 593, 93 S.Ct. 2694, 33 L.Ed.2d 570, even though she places great reliance on that authority. That case involved a college teacher, who had not been employed as a patronage employee and whose initial or continued employment was in no way dependent on political affiliation or activity. The teacher specifically “alleged that he had de facto tenure under contract law due to ‘the existence of rules or understandings’ with the college which employed him,” and that was the true basis on which the Court found that, if proved, he had a cause of action. Arnett v. Kennedy, supra (White, J., concurring and dissenting). We have no such situation here; indeed, we have the very opposite. The plaintiff concedes she had no right to tenure in her job. Though irrelevant to the issue here, it perhaps is not amiss to add that even when a public employee enjoys tenure and is as “a federal employee in the competitive service, entitled, by statute, to serve in his job without fear of dismissal except for cause,” it has been decided “that in certain situations the discharge of a government employee may be based on his speech without offending guarantees of the First Amendment.” Arnett v. Kennedy, supra, 416 U.S. at p. 160, 94 S.Ct. at p. 1647.

In short, it would seem that, however plaintiff’s claim be viewed, it is without validity. Unquestionably, as the plaintiff herself concedes, Alomar — an authority whose reasoning we find persuasive — would bar relief. But Lewis offers no better avenue for relief. It is difficult to fit the position of the plaintiff within the range of positions around which Lewis placed a protective hedge. Her position was in no way similar to that of “maintenance workers, elevator operators, janitors and comparable employees” as in Lewis, or to the “unskilled and semi-skilled employees whose daily occupations are merely to maintain the public highways”, whose rights against patronage dismissal the dissenting opinion in Shapp would protect, or “a skilled laborer or artisan whose work or functions in no way affect the policy of the agency nor involve relationships with the public,” which are included within the class Justice Douglas found entitled to constitutional protection against First Amendment restraints in Mitchell. Moreover, her awareness that her position was a patronage job and that she accepted it voluntarily with full understanding that, granted on the basis of patronage, it was terminable on that same basis, gives her no right to complain of her patronage dismissal. The District Court accordingly committed no error in dismissing the action.

Affirmed.

BUTZNER, Circuit Judge

(dissenting) :

I would vacate the judgment of the district court and remand this case for trial.

While Mrs. Nunnery’s complaint is not altogether clear, there is no question that she held a patronage job without tenure. She claims that she worked satisfactorily but was nevertheless discharged because she did not actively support the political party that procured her appointment. This, she charges, violated her rights of free political expression and association guaranteed by the first and fourteenth amendments.

The district court conducted no evidentiary hearing. Quoting the epigram, “Those who, figuratively speaking, live by the political sword must be prepared to die by the political sword,” it held that her complaint failed to state a claim upon which relief could be granted. This court now affirms. I believe both courts have erred by grounding their decisions on Mrs. Nunnery’s lack of tenure instead of on the constitutional rights accorded her by the first and fourteenth amendments.

Mrs. Nunnery’s lack of a property interest in her job affects her right to procedural due process. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). It does not in itself defeat her claim that her discharge was an unlawful retaliation for her exercise of first and fourteenth amendment rights. The constitutional limitations on a state’s power to discharge a person whose employment is otherwise terminable at will are clearly explained in Perry v. Sindermann, 408 U.S. 593, 596, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972):

“The first question presented is whether the respondent’s lack of a contractual or tenure right to re-employment, taken alone, defeats his claim that the nonrenewal of his contract violated the First and Fourteenth Amendments. We hold that it does not. ••
“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ . Such interference with constitutional rights is impermissible.
“We have applied this general principle to denials of tax exemptions unemployment benefits and welfare payments . But, most often, we have applied the principle to denials of public employment . . . We have applied the principle regardless of the public employee’s contractual or other claim to a job. .
“Thus, the respondent’s lack of a contractual or tenure ‘right’ to reemployment for the 1969-1970 academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically held that the nonrenewal of a nontenured public school teacher’s one-year contract may not be predicated on his exercise of First and Fourteenth Amendment rights . . . We reaffirm those holdings here.”

Perry thus exposes the error of dismissing Mrs. Nunnery’s suit simply because she lacked tenure. The defense of waiver is equally fallacious. Perry and its precedents teach that a state cannot condition a benefit, including a job, on the surrender, or waiver, of one’s constitutional rights. See, e. g., Torcaso v. Watkins, 367 U.S. 488, 495, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Alston v. School Board, 112 F.2d 992, 998 (4th Cir. 1940). In sum, the crux of this controversy is the nature of a public employee’s first amendment rights, not lack of tenure.

The Supreme Court has ruled that the state, as an employer, has a greater interest in regulating the speech of its employees than in regulating the speech of other citizens. This interest is confined, however, to the reasonable needs of promoting the efficiency and integrity of public service. While deference is to be paid to the public employer’s judgment, the coui’ts have a duty to weigh the state’s needs against the employee’s rights as a citizen. Pickering v. Board of Education, 391 U.S. 563, 569, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The balance must include both the rights which the employee seeks to exercise and the responsibilities of her job. The state’s requirements may include, for example, the need for loyal and sympathetic employees in positions of discretion, the need to ensure obedience to state policy, and the need to prevent impropriety or its appearance. See Pickering, supra, at 570 n. 3, 88 S.Ct. 1731; Note, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi.L.Rev. 297, 319-325 (1974). Thus, what would be impermissible speech or conduct in one position may be acceptable for an employee holding another.

When a neutral statute, such as the Hatch Act, regulates the political activity of public employees, courts defer to the legislature’s perception of the state’s interest. See, e. g., United States Civil Service Comm’n v. National Assn. of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). But no West Virginia statute compels a public employee to undertake purely partisan tasks at variance with his political beliefs ; indeed, the constitutionality of such a statute would be dubious. If a state official commands partisan service under penalty of dismissal, I believe he should be required to demonstrate how the state’s interest — as distinct from the party’s — will be legitimately advanced by the suppression of the employee’s first amendment rights. Illinois State Employees’ Union v. Lewis, 473 F.2d 561 (7th Cir. 1972), cert. denied, 410 U.S. 928, 943, 93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609 (1973). Contra Alomar v. Dwyer, 447 F.2d 482 (2nd Cir. 1971), cert. denied, 404 U.S. 1020, 92 S.Ct. 683, 30 L.Ed.2d 667 (1972).

Therefore, I would remand the case for a trial at which Mrs. Nunnery must carry the initial burden of showing that she has been deprived of her right to free political association or speech. If the proof shows that Mrs. Nunnery’s refusal to perform party chores did not arise from principled disagreement with the ideology of the party, but, on the contrary, stemmed from mere unwillingness to exert herself, the district court should dismiss her suit. She cannot complain because her party-oriented boss prefers a party stalwart who will perform party chores over one who will not. The first amendment assures her right to freedom of speech and association, but if these rights have not been placed in jeopardy, it affords Mrs. Nunnery no protection for her job.

On the other hand, if Mrs. Nunnery’s proof establishes that her discharge resulted from her refusal to do party chores because she disagreed with the political tenets of the party, her employer must demonstrate that the state — as distinguished from the party — had a legitimate interest in her performance of these chores that outweighed her first amendment rights. If the state lacked such an interest, the district court should find for Mrs. Nunnery on this issue. This would not, as the employer argues, impose a civil service system on the state. West Virginia is not required to give any assurances of tenure which would make the job a property right. See Arnett v. Kennedy, 416 U.S. 134, 155-156, 94 S.Ct. 1633, 1645, 40 L.Ed.2d 15 (1974). It may discharge for other good cause despite an employee’s first amendment claim. Kirker v. Moore, 436 F.2d 423 (4th Cir. 1971). But its power to discharge cannot trench on rights secured by the first and fourteenth amendments even though the employee may otherwise be fired at will. Perry v. Sindermann, 408 U.S. 593, 596, 93 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

      . Since, as did the District Court, we find no merit in plaintiff’s substantive claim, it is unnecessary for us to consider the defense of immunity under the Eleventh Amendment.

      . One of the early practitioners of the right was Jefferson, who remarked, in justification, “[Ilf a due participation of office is a matter of right, how are vacancies to be obtained ? Those by death are few; by resignation, none. Can any other mode than that of removal be proposed?” Padover, The Complete Jefferson (New York, The Tuder Publishing Co., 1943), p. 518.

      . The story of civil service reform is summarized in Arnett v. Kennedy (1974), 416 U.S. 135-139, 94 S.Ct. 1633-1639, 40 L.Ed.2d 15, decided April 16,1974.

      . For a list of the civil service laws of the fifty states, see Broadrick v. Oklahoma (1973), 413 U.S. 601, 604-605, n. 2, 93 S.Ct. 2908, 37 L.Ed.2d 830.
      The purpose of such laws was described by the West Virginia Court in State ex rel. Karnes v. Dadisman (1970) 153 W.Va. 771, 172 S.E.2d 561, 568, thus :
      “Civil service laws are designed to afford to covered employees security of tenure.”

      . West Virginia Code Ann. § 29-6-1 et seq.

      . Alomar v. Dwyer (2d Cir. 1971), 447 F.2d 482, cert. denied, 404 U.S. 1020, 92 S.Ct. 683, 30 L.Ed.2d 667; Moldawsky v. Lindsay (D.C.N.Y.1972), 341 F.Supp. 1393; Indiana State Employees Association, Inc. v. Negley (D.C.Ind.1973), 365 F.Supp. 225; Norton v. Blaylock (D.C.Ark.l968), 285 F.Supp. 659, affirmed, (8 Cir.) 409 F.2d 772; Young v. Coder (D.C.Pa.1972), 346 F.Supp. 165; American Federation of State, C. & M. Emp. v. Shapp (1971), 443 Pa. 527, 280 A.2d 375.
      Even though its thrust is that such dismissals are impermissible, the editor of the Note in 41 U.Chi.L.Rev. 297, 307 (1974) recognizes that such was the general rule.
      Thus, it states:
      “Challenges to dismissal from public employment are not new. The courts, however, generally have refused to treat the I>atronage dismissal as a problem of free expression or equal protection. Their decisions instead either hold that the patronage employee has no constitutionally protected interest or conclude that whatever protection the first amendment affords against dismissal for reasons of political affiliation is waived by acceptance of a patronage job.”

      . That employee involved was regarded as a “non-policy-making” employee, see Note, 57 Iowa L.Kev. 1320, 1330, n. 53.

      . Cf., Williams v. Illinois (1970), 399 U.S. 235, 261-262, 90 S.Ct. 2018, 2032, 26 L.Ed.2d 586 (Harlan, J., concurring) :
      “However desirable and enlightened a theory of social and economic equality may be, it is not a theory that has the blessing of the Fourteenth Amendment. Not ‘every major social ill in this country can find its cure in some constitutional “principle,” and * * * this Court [is not equipped to] “take the lead” in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements.’ ”

      . Note, Patronage Dismissals: Constitutional Limits and Political Justifications, 41 U.Chi. L.Rev. 297, 316-7 (1974); Note, Public Employees — Freedom of Association — Discharge of Non-policy-making Public Employees’ Freedom of Association, 26 Vand.L.Rev. 1090, 1097 (1973).

      . This case decided adversely to plaintiff’s position as raised here that her discharge violated her due process rights to notice and hearing before discharge. It held that under Roth, [Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548], a public employee has no “liberty” or “property” right to continued employment unless it can be said he had “a legitimate claim of entitlement to it.” It concluded that, “[0]ne who takes a ‘patronage’ job may not even have an expectation of keeping it when the appointing officer is replaced, let alone a ‘legitimate claim of entitlement’ to such a job.” It, also, disposed of any claim by the plaintiff because her discharge damaged her “good name, reputation, honor or integrity” with the statement that, “[W]e assume that the loss of a patronage job would in no sense reflect adversely on the discharged employee’s reputation.” (473 F.2d at pp. 563-564, n. 1) We find, as did the District Court, this reasoning conclusive of any claim advanced by the plaintiff of a violation of due process rights. •

      . The Court said: “Neither this court nor any other may impose a civil service system upon the State of Illinois.” (473 F.2d at p. 567)
      Ironically, the distinction, as made by the Court, between the right to impose by judicial fiat a civil service system and the right, in the exposition of constitutional claims, to accomplish substantially the same result — at best a subtle one — if sound, would have made largely unnecessary much of the long and arduous struggle, step by step, to secure in the first instance civil service legislation establishing impartiality “in * * * appointment and term of place” for public employees covered thereby and thereafter to broaden the scope of the law and would have made superfluous the successive additions made by the various Presidents to the classifications of employees who were protected under the Act as well as would have made invalid the various transfers of certain positions from the civil service to an “excepted” class, transfers that have been made from time to time since the enactment of the Act. Such distinction is in a way suggestive of a modern tendency to construct novel and abstruse constitutional theories to serve as instruments with which it is hoped the judiciary, under the guise of constitutional interpretation, will correct an alleged political or social evil which, though properly the subject of legislative reform, the legislature has neglected to remedy or lias moved with too “tardy a step.” It was this tendency which Justice Harlan criticized in Williams, supra, and to which Chief Justice Burger perceptively referred in United States v. Richardson (1974), 418 U.S. 166, p. 179, 94 S.Ct. 2940, 41 L.Ed.2d 678, decided June 25, 1974.
      It is true that civil service progress, as accomplished through legislative action, has been gradual and its benefits have been slowly extended over the years. The slow development of civil service is well illustrated in the federal record of legislation. At the outset, the Pendleton Act, adopted in 1883, was extended to scarcely more than ten per cent, of the federal employees, and these occupied relatively unimportant clerk-ships ranging in salary from $900 to $1,800 a year. Gradually, the coverage was extended, though at the time Cleveland began his first Presidency 88% of the federal employees were unprotected (or, as it was generally stated, held “excepted” positions) and, of these he dismissed 68% in order to make way for patronage appointments. In 1953 President Eisenhower rearranged the coverage of the Act, set up the “excepted” classes of employees, and, incident to these steps, transferred certain formerly competitive service positions over to the “excepted” classifications. As a result 86% of all federal employees came under civil service protection. Cooke, Biography of an Ideal (Government Printing Office, 1958) pp. 57-62. But whether progress has been slow or fast, if the remedy for civil service reform lies within the jurisdiction of the legislature, the judiciary is obligated to respect that legislative jurisdiction. Legislative inaction or “benign neglect” in a field committed to legislative control will not transfer jurisdiction to act to the judiciary.

      . Cf., CSC v. Letter Carriers (1973), 413 U.S. 548, 567, 93 S.Ct. 2880, 2891, 37 L.Ed. 2d 796.
      “Neither the right to associate nor the right to participate in political activities is absolute in any event.”

      . This, it -would appear, is the construction put on the decision by even those commentators who argue that patronage dismissals are constitutionally impermissible. They, too, conclude that the constitutional principle that would invalidate such dismissals is not to be extended indiscriminately to all public employees but, on the contrary, can be invoked by only certain groups of public employees. In the Note in 41 U. of Chi.L.Rev., supra, at p. 319, the author concedes that “personal loyalty is sufficient to justify political dismissals at the policy-making level, and that the patronage dismissal is unconstitutional only with regard to non-policy-making employees.”
      Similarly, in the Note, Political Patronage and Unconstitutional Conditions: A Last Hurrah for the Party Faithful? 14 Wm. & Mary L.Rev. 720 (1973), the author would confine any rights arising out of refusal to hire or dismissal for patronage reasons to “lower level personnel, who are not considered participants in the formulation or supervision of administration policies” and are “unprotected by any civil service system.”
      The author in the Note, A Constitutional Analysis of the Spoils System — The Judiciary Visits Patronage Place, 57 Iowa L.Rev. 1320, 1321, n. 12 (1972), also, would restrict his views of the rights of public employees to be protected from patronage dismissals to “subordinate governmental officials, who perform mere administrative duties and exercise little or no discretion”, and “are seldom held directly accountable to the appointing executive * * * ” and “do not operate in sensitive areas.”
      This limited application of Lewis was underscored in Gould v. Walker (D.G.Ill.1973), 356 F.Supp. 421. There the Court construed the rule in Lewis as restricted to “positions such as clerks, janitors and license examiners” and did not apply to an “employee with substantial responsibility and authority.” (Page 423) It concluded that it was “hard pressed to articulate a more helpful standard” for determining the employees entitled to the benefit of the rule than the one enunciated by Judge Campbell [quoted infra] (Page 425).

        See, also, Adams v. Walker (7th Cir. 1974), 492 F.2d 1003, 1007.

        Cf., Jannetta v. Cole (4th Cir. 1974), 493 F.2d 1334, involving the First Amendment rights of a city fireman, which certainly is a “routine” type job, involving no policy functions, however, “policy-making” be defined, and which was not a patronage job but one apparently acquired after a merit examination; see, however, Arnett v. Kennedy, supra.

      . We refer to Judge Stevens’ opinion as the lead, rather than the prevailing, opinion, because there are some differences, however subtle, between his opinion and the concurring opinion of Judge Campbell. To determine the actual holding of the majority of the panel, it is necessary to read the two opinions together, as balanced against the dissenting opinion of Judge Kiley.

      . 5 U.S.C. § 7501. This Act has been described as the “antigag law” and was intended to correct certain injustices to postal service employees which came to light during President Taft’s administration. Cooke, supra, p. 69.

      . 22 Stat. 403, 5 U.S.C. § 3301 et seq.

      . Executive Order No. 10577, 19 F.R. 7521, as amended 20 F.R. 8137, 21 F.R. 1956, 21 F.R. 6377, 22 F.R. 10025, 25 F.R. 2073.

      . W.Va.Code, Ch. 29, Art. 6, § 2 (Michie Repl. Vol. 1971), dealing with the West Virginia Civil Service System, provides, in partinent part:
      “The governor may, by executive order, with the written consent of the civil service commission and the appointing authority concerned, add to the list of positions in the classified service, but such additions shall not include the following :
      “(11) Managers and clerks of liquor stores.”
      W.Va.Code, Ch. 60, Art. 2, § 12 (Mieliie 1966), deals with the Alcohol Beverage Control Commissioner and provides:
      “The commission shall appoint'or employ such assistants and employees as may be necessary to the efficient operation of the department and fix their salaries. All assistants and employees shall be appointed or employed to serve during the will and pleasure of the commission.”
      Positions in the Alcohol Beverage Control Department, other than the excepted ones, are generally under civil service. See, State ex rel. Karnes v. Dadisman, supra.

      . This reference to her position as one both of “manager and cashier” seems in error, since, in her brief in this Court, she has referred to the two positions as separate positions, one of which has protected tenure (cashier) and one has not (manager). She alleged she was given her choice of the two positions.

      . Cf., Bond v. County of Delaware (D.C.Pa.1973) 368 F.Supp. 618, 628:
      “A distinction in the case sub judice is that plaintiff alleges he began employment unaware that the job was a ‘patronage’ job.”
      Even had the plaintiff in this case not made her specific allegations of knowledge, it is doubtful she could maintain a claim of innocence in face of the statute that made plain, it would seem, that her position was a “patronage job.”

      . The “theory” that a patronage employee who accepts his employment on the express understanding, as the plaintiff in this ease avers she did, that it may be terminated for the same reasons on which it was given was, it is true, criticized in the Note, 41 U. of Chi.L.Rev. 297, 312, et seq. The author of the Note, however, concedes that, “[All-though it has not been widely employed, the theory merits consideration because of its apparent validity” [Italics added] (Page 312, n. 73). It dismissed the claim with the statement that “it is not rational to believe that a waiver of the right not to be dismissed for political reasons is voluntary.” (Page 314) It is, of course, difficult, if not impossible, to reconcile this conclusion with the many cases in which voluntary waiver of favored constitutional rights has been upheld in habeas cases,

      . Arnett v. Kennedy, supra (Marshall, J., dissenting). ,

      . I find it unnecessary to explore the dispute between the district court and this court over whether her duties involved making policy. That cannot be decided until after the presentation of evidence, and it is relevant only to the district court’s duty to balance the respective interests of Mrs. Nunnery and the state. •

      . See Nunnery v. Barber, 365 F.Supp. 691, 695 (S.D.W.Va.1973). The quotation is from American Fed. of State, County, and Municipal Employees v. Shapp, 443 Pa. 527, 529, 280 A.2d 375, 378 (1971).

      . “AVhile criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public', employment is nonetheless a potent means of inhibiting speech.” Pickering v. Board of Education, 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968).