author: PER CURIAM.

text:
    Henry J. MORAVEC and Vlasta Moravec, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Henry J. MORAVEC and Marlene Moravec, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    Nos. 73-1942, 73-1943.
    United States Court of Appeals, Seventh Circuit.
    Argued April 22, 1974.
    Decided July 26, 1974.
    Raymond J. Smith, Chicago, 111., for petitioners-appellants.

      Scott P. Crampton, Asst. Atty. Gen., William S. Estabrook, III, Atty., Tax ■ Div., Dept, of Justice, Washington, D. C., for respondent-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   PER CURIAM.

The sole issue presented by these appeals is whether taxpayers sustained certain capital losses during the year 1964, thereby entitling them to claim such losses on their 1964 federal income tax returns pursuant to §§ 165(a), 165 (f) and 1211(b) of the Internal Revenue Code of 1954.

Taxpayers-appellants are Henry J. Moravec, Sr. and Vlasta Moravec, husband and wife (the senior Moravecs), and Henry J. Moravec, Jr. and Marlene Moravec, husband and wife (the junior Moravecs). Each set of taxpayers reported the disputed losses on their respective joint income tax returns for 1964. The Commissioner’s disallowance of the claimed losses was sustained by the Tax Court, 32 T.C.M. 367 (1973), and these appeals followed.

In September 1962, the senior and junior Moravecs purchased, respectively, 321,536 and 321,535 permanent reserve shares of Marshall Savings and Loan Association, an Illinois corporation. These shares represented approximately 90% of the outstanding shares of Marshall Savings and were purchased by taxpayers at a cost of one dollar per share. Each set of taxpayers also purchased at that time 1,000 shares of Marshall Safe Deposit Company, an Illinois corporation, at one dollar per share.

In January 1964, taxpayers were advised by Illinois supervisory authorities that Marshall Savings was financially impaired and would be closed unless taxpayers disposed of their Marshall Sav-the buyers would purchase taxpayers’ entered into a written “stock purchase agreement” (the June agreement) with William McGrath, an agent for undisclosed principals Louis Verive and Anthony Navarroli. The agreement provided that subject to certain conditions, the buyers would purchase taxpayers’ Marshall Savings shares as well as 100% ownership in the Moravec Insurance Agency, an individual proprietorship located in Riverside, Illinois, at a purchase price of $1,251,305.00. The principal condition specified by the agreement was that the buyers satisfy themselves, upon examination of books and records, that Marshall Savings was salvageable. This condition was not met, and the buyers’ initial deposit of $50,000 was returned to them. Upon failure of the June agreement to produce a sale, taxpayers sought other buyers for their shares, but without success.

On October 26, 1964, taxpayers once again entered into an agreement (the October agreement) with Verive and Navarroli for the sale of the Marshall Savings shares. The exact terms of this agreement are somewhat unclear and are the subject of some dispute between the parties. Its immediate effect, however, was that Verive and Navarroli paid taxpayers $300,000 and received in exchange the Marshall Savings shares. The Tax Court found that the October agreement was oral and was “along the general lines of” the June agreement between the same parties.

Despite repeated demands by taxpayers, no further payments beyond the initial $300,000 were ever received from Verive- and Navarroli. When taxpayers threatened to sue for the balance of the purchase price, the purchasers responded by threatening to counterclaim for damages on the basis of fraud in connection with the sale, Henry Moravec, Jr. testified that his attorneys “doubted that any litigation would bear any fruit.” There was testimony that a demand for payment was made as late as January 1965. At no time did the purchasérs institute legal action to rescind the October agreement or to recover the initial payment of $300,000.

On December 31, 1964, the Illinois Department of Financial Institutions took custody of Marshall Savings and placed a custodian in charge of its business affairs. Shortly thereafter, a receiver for the purpose of liquidation was appointed. Litigation arising out of the Marshall Savings closing was settled in 1969 by a state court consent decree authorizing the final liquidation and dissolution of Marshall Savings.

On their 1964 federal income tax returns, taxpayers claimed losses from the sale of Marshall Savings shares equal to the difference between the amount actually received pursuant to the October agreement ($300,000) and their combined basis of $643,071. In addition, they reported losses on their Marshall Safe Deposit Co. stock equal to their entire combined basis in such stock, i. e., $2,000. The senior Moravecs offset long-term capital gains amounting to $26,158.54 with their share of the Marshall losses, giving them a net long-term loss in 1964 of $146,377.46 and an allowable loss from the sale or exchange of capital assets of $1,000. See Int.Rev. Code of 1954, §§ 165(f) and 1211(b), swpra. The junior Moravecs similarly offset certain capital gains with the Marshall losses and reported an allowable loss of $1,000. The Commissioner disallowed the Marshall deductions and computed deficiencies, based in part on other alleged defects in the returns not in issue here, in the amounts of $9,906 93 and $10,117.99, respectively.

In sustaining the Commissioner’s determination, the Tax Court found as a fact that the October agreement contemplated additional payments beyond the initial $300,000. Having so found, the court held that taxpayers failed to show that the purchasers, as of the end of 1964, were either not liable upon the October agreement or were financially unable to make further payments.

The Tax Court regarded the worth of the somewhat uncertain debt created by the October agreement as determinative of the question whether a capital loss from the sale was actually sustained in the year 1964. Under these circumstances, such analysis was entirely proper. The normal test under § 165 is whether there existed in the taxable year a “claim for reimbursement with respect to which there is a reasonable prospect of recovery.” Treas.Reg. § 1.-165-l(d) (2) (i)(1960). Given the existence of a contract requiring further payments, as found by the Tax Court, the burden was properly upon the taxpayers to show there was a “reasonable certainty” yet in 1964 that such payments would not be received. Cf. Treas.Reg. § 1.165 — 1 (d) (2) (i); Par-melee Transportation Co. v. United States, 351 F.2d 619, 628-629, 173 Ct.Cl. 139 (1965). This the taxpayers failed to do.

We have carefully reviewed the entire record in this case and conclude that the Tax Court’s factual findings and the inferences drawn therefrom are supported by the evidence and are not clearly erroneous. Commissioner v. Duberstein, 363 U.S. 278, 289-291, 80 S.Ct. 1190, 4 L.Ed. 2d 1218 (1960); Boehm v. Commissioner, 326 U.S. 287, 293, 66 S.Ct. 120, 90 L.Ed. 78 (1945).

It becomes clear that the capital loss deduction on the sale of the savings and loan stock, together with the safe deposit stock, was properly denied since it appeared that a collectible claim for further payment existed which the sellers chose not to pursue.

In light of the foregoing and upon the authority of Judge Forrester’s opinion, reported at 32 T.C.M. 367 (1973), the decision of the Tax Court is affirmed.

Affirmed.

      . “§ 165. Losses
      (a) General rule. — There shall be allowed as a deduction any loss sustained during the taxable year and not compensated for by insurance or otherwise.”

      . “(f) Capital losses. — Losses from sales or exchanges of capital assets shall be allowed only to the extent allowed in Sections 1211 and 1212.”

      . “§ 1211. Limitation on capital losses
      * * * * * *
      (b) Other taxpayers. — In the case of a taxpayer other than a corporation, losses from sales or exchanges of capital assets shall be allowed only to the extent of the gains from such sales or exchanges, plus the taxable income of the taxpayer or $1,000, whichever is smaller. * * * ” 26 U.S. C. § 1211(b) (1964). Section 1211(b) has since been amended with respect to taxable years beginning after Dec. 31, 1969. See Pub.L. 91-172, 83 Stat. 642 (1969).

      . Taxpayers’ petitions alleged that the Marshall Safe Deposit Co. stock “was sold as part of the agreement to purchase petitioners’ Marshall Savings and Loan Stock.” The record is devoid of evidence establishing the sale of such stock, however.

      . The junior Moravecs’ return reported a basis of $321,573.00 for their shares. The Tax Court concluded that this was erroneous inasmuch as the record revealed the actual basis to be $321,535.00.

      . Neither the Commissioner nor taxpayers have argued that § 166 of the Code, which deals with bad debt deductions, is controlling here. Even if it were, the test for determining worthlessness under § 166 is similar to the “reasonable prospect of recovery” standard under § 165. See Treas.Reg. § 1.-166-2(b) (1959).


source: Caselaw Access Project

author: KOELSCH, Circuit Judge: KILKENNY, Circuit Judge (dissenting) :

license: Public Domain

text:
    Paul Kern IMBLER, Plaintiff-Appellant, v. Richard PACHTMAN et al., Defendants-Appellees.
    No. 72-2518.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1974.

      Roger S. Hanson (argued) of Hanson & Milman, Beverly Hills, Cal., for plaintiff-appellant.
    Richard G. Brungard, Deputy County Counsel (argued), Los Angeles, Cal., for defendants-appellees.
    Before KOELSCH, HUFSTEDLER and KILKENNY, Circuit Judges.
   KOELSCH, Circuit Judge:

This matter has a long history. In 1961 plaintiff-appellant Imbler was convicted on a murder charge in Los Ange-les Superior' Court and sentenced to death. The California Supreme Court affirmed. People v. Imbler, 57 Cal.2d 711, 21 Cal.Rptr. 568, 371 P.2d 304 (1962). Thereafter, Imbler’s state ha-beas corpus petition was denied following an evidentiary hearing. In re Im-bler, 60 Cal.2d 554, 35 Cal.Rptr. 293, 387 P.2d 6 (1963). A subsequent writ set aside the death penalty, In re Imbler, 61 Cal.2d 556, 39 Cal.Rptr. 375, 393 P.2d 687 (1964); and when the state declined to prosecute another “penalty trial,” Im-bler was given a life sentence.

In 1969 the United States District Court, concluding that Imbler’s conviction was secured in part by testimony the prosecution knew, or had strong reason to know, was perjured, granted him a writ of habeas corpus. Imbler v. Craven, 298 F.Supp. 795, 809 (1969). We affirmed, Imbler v. Craven, 424 F.2d 631 (9th Cir. 1970), cert. denied, 400 U. S. 865, 91 S.Ct. 100, 27 L.Ed.2d 104.

Imbler then brought this suit for damages. So far as need be noticed, his allegations in substance are that the defendant Pachtman, the district attorney who prosecuted the criminal charges on behalf of the State of California, had knowingly, maliciously, etc., used perjured testimony to secure a conviction and hence was liable in damages for violation of his, Imbler’s, civil rights. The district judge dismissed Imbler’s complaint as to Pachtman without leave to amend; he ruled that Pachtman, as a prosecuting attorney, enjoyed an immunity from suit for acts committed “in the performance of duties constituting an integral part of the judicial process .”, Marlowe v. Coakley, 404 F.2d 70 (9th Cir. 1968); see Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965); and that as a matter of law the acts complained of came within a quasi-judicial prosecutorial function to which immunity attached. Imbler appeals. We affirm.

The district court’s dismissal of appellant’s claim was consistent with our prior decisions. Ney v. State of California, 439 F.2d 1285 (9th Cir. 1971); Donovan v. Reinbold, 433 F.2d 738, 743 (9th Cir. 1970); Marlowe v. Coakley, supra; Clark v. Washington, 366 F.2d 678 (9th Cir. 1966); Robichaud v. Ronan, supra; Agnew v. Moody, 330 F.2d 868 (9th Cir. 1964); Harmon v. Superior Court, 329 F.2d 154 (9th Cir. 1964); Sires v. Cole, 320 F.2d 877 (9th Cir. 1963). The acts of the defendant which allegedly harmed appellant occurred during prosecutorial activities which can only be characterized as an “integral part of the judicial process.” All involved the questioning of a witness during the 1961 criminal prosecution.

Appellant, in effect, urges us to reject the doctrine of prosecutorial immunity and overrule a long line of this court’s decisions. We decline to do so. The protection given a prosecutor acting in his quasi-judicial role protects not simply the prosecutor, but, more importantly, the effective operation of the judicial process, and hence the “common good.” Because both the honest and dishonest are insulated, on occasion an injury without redress inevitably results; but, as well expressed by Judge Learned Hand:

“It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The jurisdiction for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and again the public interest calls for action which may turn out to be founded on a mistake, in the face of which an official may later find himself hard put to it to satisfy a jury of his good faith. There must indeed be means of punishing public officers who have been truant to their duties; but that is quite another matter from exposing such as have been honestly mistaken to suit by anyone who has suffered from their errors. As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave un-redressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. Judged as res nova, we should not hesitate to follow the path laid down in the books.” Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949).

As indicated earlier, the issue is not “res nova” in this circuit. The “balance between the evils inevitable in either alternative” has consistently been struck in favor of protecting honest criminal prosecution, at the expense of those injured by scoundrels, by granting immunity from suit to all prosecutors.

The judgment is affirmed.

KILKENNY, Circuit Judge (dissenting) :

Although appellant’s 22 page amended complaint, with 23 pages of exhibits, is admittedly repetitious and in places ambiguous, there is no question but that it charges appellee, Pachtman, with knowingly, wilfully and maliciously using eight different items of false material testimony in securing appellant’s initial conviction. If this is true, I believe that appellee violated appellant’s procedural due process rights, and that he should be stripped of his official or representative character and subjected in his person to the consequences of his individual conduct.

The Supreme Court decision in Scheuer, Adm’x. v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the most recent expression of the Court on the overall subject, convinces me that, on these charges, the appellee does not have quasi-judicial, or any other immunity. True enough, Scheuer involved state executive, rather than judicial immunity. However, the Court in Scheuer, analyzed the long history behind executive, as well as judicial immunity, and noted that there was a “. . . similarity in the controlling policy considerations in the case of high echelon executive officers and judges . . ' (94 S.Ct. at 1691, n. 8); the policy considerations revolving, in large measure, around the continued assurance that public officials will continue to vigorously perform their public functions without threat of harassment by civil suit. All this being said, the Supreme Court went on to hold that high executive officers do not have an unqualified immunity from civil suit. The Court emphasized:

“Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer has ‘the qualify of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the federal government.’ Sterling v. Con-stantin, 287 U.S. 378, 397 [53 S.Ct. 190, 77 L.Ed. 375] (1932).” 94 S.Ct. at 1692.

If, as held in Scheuer, the highest executive officer of a great state is not clothed with absolute immunity and, assuming that the policy considerations behind executive immunity are similar to those behind judicial immunity, then it must necessarily follow that a prosecuting attorney, shielded only by a form of judicial immunity (Robichaud v. Ronan, 351 F.2d 533 (CA9 1965)), should not be elevated to a status which would place him above the chief executive officer of his state. Otherwise, the office of the district attorney, rather than the Constitution of the United States, becomes the Supreme Law of the Land. Of course, under our system of government, such a conclusion is clearly untenable. State officials in these circumstances should not escape the paramount authority of the Federal Constitution. I quote from Sterling v. Constantin, 287 U.S. 378, 398, 53 S.Ct. 190, 195, 77 L.Ed. 375 (1932):

“When there is a substantial showing that the exertion of state power has overridden private rights secured by [the] Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression.”

Aside from my view that Scheuer is controlling, the cases cited by the majority, in my opinion, are clearly distinguishable. For example, in Ney v. State of California, 439 F.2d 1285 (CA9 1971), the appellant charged the district attorney, or his deputy, with knowingly using altered tapes. The facts revealed, however, that the district attorney’s deputy actually used the tapes and, therefore, if the district attorney could be sued at all, he would be liable only on a theory of respondeat superior. In Ney, this court stressed that the allegation of fact supporting the purported misconduct was based on “. . . much con-clusionary language . . . .” 439 F.2d at 1287. In the instant case, the factual allegations charge the district attorney with engaging in specific instances of misconduct wholly reprehensible to the integrity of the judicial process.

Donovan v. Reinbold, 433 F.2d 738 (CA9 1970), is no more enlightening. There, the action was against two city police officers and two city attorneys. This court held that the doctrine of immunity from civil suit under § 1983 would not bar an action against them. Nothing in Donovan even remotely indicates that a civil rights action should not lie on our facts. For that matter, the opinion recognizes that:

“[t]he purpose of according judicial immunity is to protect the integrity of the judicial process. It is not to shield lawyers or judges from liability for the invasion of another’s federally secured constitutional rights, when the alleged invasion did not occur during the performance of acts that are an integral part of the judicial process.” 433 F.2d at 743. [Emphasis supplied]

To now hold, on our facts, that the knowing, wilful and malicious use of perjured testimony to gain a conviction, even though accomplished during the course of a trial, constitutes an integral part of the judicial process, flies in the very face of the integrity sought to be protected by judicial and quasi-judicial immunity.

The allegations in Marlowe v. Coakley, 404 F.2d 70 (CA9 1968) charged the prosecuting attorney with “. knowingly and wilfully, or with gross negligence, present[ing] perjured testimony to the grand jury . . . .” [Emphasis supplied] Needless to say, there is a monumental distinction between charging an officer with gross negligence in connection with the presentation of perjured testimony and charging him with knowingly, wilfully and maliciously using perjured testimony to obtain a conviction. Consequently, the decision of the Marlowe court could well rest on the failure of the complainant to clearly charge wilful misconduct in presenting the perjured testimony. Cf. Ney v. State of California, supra, 439 F.2d at 1287. The alternative does not equate with wilful action. I decline to hold that the shield of immunity should rest on the brow of a district attorney who knowingly, wilfully and maliciously utilizes perjured testimony to obtain a conviction. This conduct should not be condoned as an integral part of the judicial process.

Clark v. State of Washington, 366 F.2d 678 (CA9 1966), recognizes the rule that a prosecuting attorney enjoys immunity under the Civil Rights Act only insofar as his prosecuting functions are concerned. At the risk of being repetitive, I again stress that appellee’s acts, as charged in the amended complaint, had nothing to do with his legitimate prosecutory functions.

In Agnew v. Moody, 330 F.2d 868 (CA9 1964), cert. denied 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70, the court there sidestepped the contention that the doctrine of official immunity did not apply where the wrongful act was of an extraordinary character, as that phrase was used in Tenney v. Brandhove, 341 U.S. 367, 378-379, 71 S.Ct. 783, 95 L.Ed. 1019 (1951), by saying, ”[i]f such an indefinite exception to the immunity rule exists, we are satisfied that appellant’s case does not fall within it.” 330 F.2d at 869. Scheuer, supra, makes it clear that the doctrine of official immunity does not apply in cases where the wrongful act is of an extraordinary character.

Hilliard v. Williams, 465 F.2d 1212 (CA6 1972), cert. denied 409 U.S. 1029, 93 S.Ct. 461, 34 L.Ed.2d 322, is closely in point. There, the court, in a civil rights action, recognized the general rule that a prosecuting attorney, when acting in his official capacity, is immune from a suit for damages. The court then goes on to hold that the doctrine of quasi-judicial immunity, normally shielding a prosecuting attorney, should not be extended to the situation where a complaint charges that the officer deliberately suppressed material evidence which resulted in the conviction of the appellant. The court emphasized that such wilful conduct was “. outside [the officer’s] quasi-judicial capacity and beyond the scope of ‘duties constituting an integral part of the judicial process.’ ” 465 F.2d at 1218.

On the charges before us, I would hold that appellee acted entirely outside the scope of his jurisdiction and should not be permitted to shelter himself from liability by a plea that he was acting under the immunity of his office. Not to be forgotten is the high responsibility accepted by a prosecuting officer when he enters upon the duties of his office. For example: (1) he is required to recognize that in our system of justice, the accused is to be given the benefit of all reasonable doubt; (2) his decisions during the course of the prosecution must be fair to all, including the defendant; (3) he has a duty of timely disclosure to the defense of all available evidence known to him that tends to help the defendant, and (4) it is his duty to seek justice, not pervert it by placing a conviction above the constitutional rights of the accused. It is time to recognize that prosecutors are not entirely above the law which holds other individuals financially accountable for their intentional misdeeds.

Needless to say, I express no opinion as to the merits of appellant’s claims. I only say that on the basis of the allegations in the amended complaint, he is entitled to have a full-fledged judicial inquiry.

I would reverse.

      . As appears from the caption, there are several defendants. In ruling against Imbler the court directed entry of judgment immediately, R. 54(b), F.R.Civ.P. The appeal from the ensuing limited judgment is thus valid.

      . The dissent argues that deliberate suppression of evidence or subornation of perjured testimony is unprotected by quasi-judicial immunity because such acts, being improper exercises of prosecutorial power, are not an integral part of the judicial process; the dissent therefore concludes that our prior cases do not confer immunity when the complaint charges knowing and malicious abuse of prosecutorial power. The purported distinction undermines the purpose of the absolute immunity previously recognized, because the addition of an easy to make but difficult to prove charge of knowing and malicious prosecutorial misconduct to any complaint would suffice to require a full trial on the merits of the prosecutor’s conduct while acting as a judicial officer.
      More importantly, the distinction is clearly inconsistent with our prior cases. In Robi-chaud v. Ronan, supra, the court indicated that a prosecutor’s immunity is absolute when engaged in quasi-judicial activities, noting that no suit for malicious prosecution could be brought regardless of the existence of malice or even willfulness on the part of the prosecuting attorney. See 351 F.2d at 536. Equally in point is Marlowe v. Coakley, supra; the dissent’s “monumental distinction” of Marlowe is spurious. The complaint there alleged that the prosecuting attorney knowingly and willfully, or with gross negligence, presented perjured testimony to the grand jury investigating plaintiff’s activities and that he suppressed from the grand jury exculpating evidence within his knowledge, again willfully and deliberately. In ruling on the district court’s dismissal under Rule 12(b)(6), the court necessarily had to evluate the claim assuming that the charges of willful perjury and suppression were true. Notwithstanding these allegations, the court held that the district attorney, in presenting evidence to the grand jury, was acting within the scope of his duty to advise and present information to the grand jury, and that this .function is an integral part of the judicial process. In short, the dissent’s approach to prosecutorial immunity has been rejected in this circuit.

      . Appellant contends the defendant engaged in non-immune police activity when he asked two police officers, seeking, during a recess in the trial, to discuss a criminal charge with the prosecution’s chief witness, to wait until the end of the witness’s testimony. We reject the contention. A prosecutor’s request for an opportunity to complete an examination during a trial is a quasi-judicial act within the purposes of the immunity. More critically, the request to the police did not in itself deprive appellant of any civil right. Even if the defendant had then been acting in a police role, only the subsequent inducement of the testimony that the witness was trying to “straighten out,” when the prosecutor had good reason to know the witness was in trouble, made the request to the officers legally relevant to appellant’s civil rights; the questioning of a witness at trial is within a traditional prosecutorial function.

      . The dissent’s reliance on the Supreme Court’s latest pronouncement on the subject of immunity, Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), holding that state executive officials are not absolutely immune from suit, is misplaced. If anything, Scheuer tends to support our conclusion. The Court there recognized (Scheuer at 239 n. 4, 94 S.Ct. 1683; see Pierson v. Ray, 386 U.S. 547, 553-555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967)) that the immunity of executive officers has historically “been of a more limited nature” than that of judicial officers — undoubtedly because the threat of private liability as a sanction for abuse of power is less necessary in the judicial system, which provides institutionalized systems of review to correct errors. Prosecutorial immunity is not a form of executive immunity, but rather a form of judicial immunity, Robichaud v. Ronan, supra, 351 F.2d at 536, designed to protect the judicial process; it attaches only to prosecutorial acts “constituting an integral part of the judicial process.”

      . The reference is general and not intended as personal.

      . Appellant contends, in substance, that the district court’s determination in the habeas proceeding established defendant’s violation and therefore assures that an “innocent” prosecutor is not being made to face a trial and potential liability. Wholly aside from the fact that the California Supreme Court, on precisely the same facts available to the district court (the district court did not hold an evidentiary hearing and relied on the factual findings of the referee in the California Supreme Court’s habeas proceeding), found there was no evidence that the prosecutor knowingly used perjured testimony, In re Imbler, supra, 60 Cal.2d at 565, 35 Cal.Rptr. 293, 387 P.2d 6, those determinations are not res judicata as to the defendant: he was not a party to the habeas proceeding. Here, as in any other § 1983 suit against a prosecutor, a determination of the claim would require a full trial. The burden and risk of that trial is precisely what the immunity is designed to prevent. If one prosecutor must face the risk of liability because of an ill-grounded exception to absolute immunity, then all potentially may, and the public purpose of the immunity is lost.


author: GEE, Circuit Judge: GOLDBERG, Circuit Judge

text:
    Ted SIFF et al., Plaintiffs-Appellants, v. The STATE DEMOCRATIC EXECUTIVE COMMITTEE et al., Defendants-Appellees.
    No. 74-3123.
    United States Court of Appeals, Fifth Circuit
    Aug. 22, 1974.
    Alan Weil, David R. Richards, Austin, Tex., Stuart Nelkin, Houston, Tex., for plaintiffs-appellants.
    George D. Byfield, Shannon H. Ratliff, Austin, Tex., for defendants-appel-lees.
    Before GOLDBERG, MORGAN and GEE, Circuit Judges.

      . For more on judicial review and intervention in party matters, see generally Bode v. National Democratic Party, 146 U.S.App.D.C. 373, 452 F.2d 1302 (1971), cert. denied, 404 U.S. 1019, 92 S.Ct. 684, 30 L.Ed.2d 668 (1972); Georgia v. National Democratic Party, 145 U.S.App.D.C. 102, 447 F.2d 1271, cert. denied, 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 101 (1971); Ripon Society, Inc. v. National Republican Party, 369 F.Supp. 368, 372-373 (D.D.C.1974).

   GEE, Circuit Judge:

Texas Law sets major political party conventions on the third Tuesday in September. This year, and not again this century, the Jewish High Holy Days of Rosh Hashana commence on that day. Plaintiffs are eleven convention delegates adhering to the Jewish faith, who have sought a short postponement of the convention to avoid this conflict from the State Democratic Executive Committee (SDEC) and from the District Court without success and who now bring to us their claims of constitutional infringement.

I. PROCEDURAL POSTURE

Appellants seek an injunction pending appeal from the district court’s order which in effect denied their request for a preliminary injunction. They also seek to advance the case for an expedited hearing on their appeal and a decision on the merits. “[Cjonsid-ering the advantages to the parties and to the public of deciding the appeal before the date of the scheduled [convention],” we have decided to treat the cause “as an expedited appeal on the merits from the denial of the preliminary injunction.” Mississippi Freedom Democratic Party v. Democratic Party, 362 F.2d 60, 61 (5th Cir. 1966). For reasons set out below, we are unconvinced the district court committed an abuse of discretion in denying the request for injunctive relief, and accordingly, we deny the request for further relief and affirm.

II. JUSTICIABILITY

Appellees question the justiciability of this case, relying on O’Brien v. Brown, 409 U.S. 1, 92 S.Ct. 2718, 34 L.Ed.2d 1 (1972), and the order of Mr. Justice Rehnquist in Republican State Central Committee of Arizona v. Ripon Society, Inc., 409 U.S. 1222, 93 S.Ct. 1475, 34 L.Ed.2d 717 (1972) (the district court’s decision in the case appears at 343 F.Supp. 168). Despite our hearty concurrence in the Court’s reservations expressed there about interfering in intra-party affairs, we do not think those decisions stay our hand in the case sub judice.

In O’Brien the Court concluded that the Democratic National Convention was the proper forum for the determination, at least in the first instance, of internal party disputes over which delegates to seat. The Court certainly did not imply that delegates could be unseated or not seated based on constitutionally suspect grounds, but it did indicate that the initial decisions regarding delegate credentials were peculiarly matters for party consideration. The Court noted also that the plaintiffs’ complaints might well be resolved by the Convention, so that pre-convention judicial interference was inappropriate.

Here, by contrast, plaintiffs assert as unconstitutional an SDEC action which, if unremedied, will preclude them from ever arriving at the convention. Of course, the majority of the delegates might, upon convening, vote a recess to accommodate the Jewish delegates, thus relieving plaintiffs from their dilemma; however, the Supreme Court has made clear on many occasions that matters guaranteed by the Bill of Rights, such as freedom of religion, are not to depend on majority vote. E. g., West Virginia State Board of Education v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 1185, 87 L.Ed. 1628 (1943). If plaintiffs are correct that holding the convention on Rosh Hashana would deny them the right to free exercise of their religion, they are entitled to pre-convention relief; they need not depend on vagaries of the convention vote, for by then relief from the courts would be impossible. Moreover, bringing suit after the convention would risk almost certain dismissal for mootness. Thus plaintiffs are entitled to be heard at this time on their constitutional claims. They have alleged an injury to one of the most precious of all those rights protected by the Constitution, not to “relationships of great delicacy that are essentially political in nature.” O’Brien, supra, 409 U.S. at 4, 92 S.Ct. at 2720, 34 L.Ed.2d at 5.

HI. DENIAL OF INJUNCTIVE RELIEF

The district court’s exercise of discretion in denying the preliminary injunction must be reviewed in terms of the four prerequisites for the extraordinary relief of preliminary injunction. See Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974). Here we focus primarily on one of the four — the requirement that plaintiffs demonstrate a substantial likelihood of prevailing on the merits. Plaintiffs-appellants are of course correct that a sliding scale must be applied in considering the probability of plaintiffs’ winning on the merits and plaintiffs’ irreparable injury in the absence of interlocutory relief. We disagree with appellants, however, on the likelihood that they would prevail on the merits; nor can we deny severe injury would be done defendants by the granting of such relief. Therefore since we do not believe appellants carried the burden of showing a probable victory, we conclude that the court below did not abuse its discretion.

No claim is made that the law in question was adopted with any improper motive; this contretemps results from the entirely neutral functioning of the lunar and Gregorian calendars. Plaintiffs assert, however, and the evidence indicates, that the SDEC had the power and could with significant but not disabling inconvenience to the other 5,000-plus delegates and to existing convention arrangements have postponed the transaction of any significant business pending return of the worshipping minority. In failing to do so, say plaintiffs, the SDEC deliberately put them to an impermissible choice: whether to forego observance of one of the two holiest religious occasions of the Jewish year, or to quit the representative posts to which they had been elected during critical parts of the convention. The SDEC replies that these delegates must have realized the conflict when they stood for election and that by asserting a right to have nonadherents and unbelievers conform to their religious occasions they seek of the state not neutrality, but preferment.

We lay aside at the outset two mainly irrelevant considerations, the feasibility of moving the convention dates and the Jewish delegates’ knowledge of the conflict before standing for election as delegates. If these delegates have a right that the convention be held on a date which does not conflict with Rosh Ha-shana, they have a right upon their election to require that the date be changed if it is 'possible, not merely convenient, to do so. Nor is it our place to lament the quality of judgment which has materialized this matter before us for resolution on cold law. Here it is, resolve it we must. We conclude the court below did not err and affirm denial of the preliminary injunction.

Plaintiffs pitch their case upon the Free Exercise Clause, as made applicable to the states by the Fourteenth Amendment. No claim is made, however, that plaintiffs’ beliefs are being inquired into or proscribed in any way, nor are plaintiffs being forced or ordered to take any action at variance with their religious convictions. Finally, it is undisputed that the conflict in dates resulted from the workings of a religiously-neutral and valid law, not enacted with any invidious purpose.

What plaintiffs seek in fact is that this court require the state and numerous other citizens to defer to plaintiffs’ religious convictions by postponing, in consideration of those convictions, activities in which plaintiffs wish to participate on the two days involved here. It goes without saying that plaintiffs have good claim upon the sympathy and discretion of the SDEC and of their fellow delegates; the question is whether they have demonstrated a likelihood of prevailing in their assertion of a constitutional veto. So to hold would be to go far beyond any authority to which we have been directed and, we think, beyond the reason of the matter as well.

No purpose to single out or penalize plaintiffs’ religious observances is shown, merely a refusal to defer to them. We think on these facts that plaintiffs would have to be content with a state neutrality which blindly fixes dates that may fall on Ash Wednesday, in Ramadan, on Good Friday, on Yom Kippur, or as here. Though various faiths may suffer such unpleasant choices as confront plaintiffs here, the even chances of a selection by lot should equalize burdens over the long haul. To rule otherwise would not only transgress the neutrality envisioned by the First Amendment but would condemn the state to endless uncertainties and frustrations. Countless state functions are scheduled throughout the year: accounting, bar, and medical examinations; legislative and court sessions; highway lettings; in short, the entire panoply of public affairs. To permit a would-be participant in any of these to require its rescheduling on constitutional grounds to remove a conflict with his religious occasions, where it was scheduled without reference to or inteht to impinge upon them, would render orderly government impossible. Yet a holding that plaintiffs possess such rights as they here claim would leave no stopping place short of this. Surely the balance cannot be resolved to so disturb the functioning of our governmental system. Stressing again that we are not certain of the merits of plaintiffs’ claims, but are only pointing to the difficulty of predicting success on the merits, we affirm denial of the preliminary injunction.

Affirmed.

GOLDBERG, Circuit Judge

(specially concurring):

We have determined that the uncertainty shrouding plaintiffs’ constitutional position justified the trial court in denying plaintiffs’ pleas for temporary in-junctive salvation. This constitutional uncertainty will survive our decision. See Smilow v. United States, 2 Cir. 1972, 465 F.2d 802, 804, vacated on other grounds, 409 U.S. 944, 93 S.Ct. 268, 34 L.Ed.2d 215. No such uncertainty obscures the fact that the SDEC could have amended the party rules to avoid the serious and sincere objections voiced by plaintiffs. And I shall let no uncertainty mantle my nonconstitutional opinion of the SDEC’s incredible refusal to do so.

State and local governments and political parties, ever ready to decry and denounce Federal judicial invasion of their bailiwicks, should display some sensitivity to the letter of the Constitution. But even when they have committed no transgression of the letter, they ought also to be sensitive to the precious spirit embodied in the Constitution. The intrusion on religious practice here was aleatory : it was coincidental, not purposive, transitory, not permanent. The intrusion on religious sensibility was less evanescent — it was, in fact, a grievous trampling on the feelings of these plaintiffs and their co-religionists. The utter obviousness of this fact might have provoked the SDEC to go an inch beyond the constitutional last mile in order to accommodate the convention date to the religious scruples of the minority.

This Court cannot say that the trial court was in error in not forcing the SDEC to live up to its platform shibboleth of religious freedom and equality. But if this is a case in which the law stays the Court’s arm, the judicial restraint should be no cause for jubilation. When members of a respected religion are, even temporarily and unintentionally, excommunicated from an important part of the political process, all citizens sensitive to the rights of minorities and to the precious freedoms vouchsafed in the Constitution should weep. Objectively the injury to the political process may here be epidermal; subjectively we know the wounds are far deeper.

The judicial arm does not have the muscle to lift every stone cluttering the political pathway. Other arms of our political system do have the strength. Unless they exercise their muscles, democratic atrophy will surely follow.

      . Tex. Election Code Ann. art. 13.35, V.A.T.S. (1967).

      . McCoy v. Louisiana State Bd. of Educ., 345 F.2d 720, 721 (5th Cir. 1965); Dilworth v. Riner, 343 F.2d 226, 229 (5th Cir. 1965).

      . By the device of adopting a temporary rule for the year 1974 only requiring a recess of the convention after its convening on the statutory day during the two-day Rosh Ha-shana period. Party rules grant such power to the SDEC. Rules of the Democratic Party of Texas, Art. V, § 2.2 (1974).

      . Appellants argue that the importance of their presence at the convention is increased by virtue of the representative capacity in which they serve. We note only that alternates are elected in order to protect, at least partially, the interests of delegates’ constituencies in the case of absence by the delegates.

      . No party contends that we do not here deal with state action.

      . Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 1174, 39 L.Ed.2d 389, 407-408 (1974); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 842-843, 28 L.Ed.2d 168, 187-188 (1971). For a discussion of the distinct situation here faced — withholding benefits, rather than compelling action — see Clark, Guidelines for the Free Exercise Clause, 83 Harv.L.Rev. 327, 359-60 (1969).


author: LEWIS R. MORGAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brian A. ANDERSON, Richard Quentin Felts, and Paul William Spicer, Defendants-Appellants.
    No. 73-2774.
    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1974.
    Rehearing and Rehearing En Banc Denied Nov. 22, 1974.

      Dick DeGuerin, Houston, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge.

Appellants Brian A. Anderson, Richard Quentin Felts, and Paul William Spicer appeal from convictions for violating various parts of the federal narcotics law. Additionally, Spicer appeals his conviction for carrying a firearm during the commission of a felony. An informant’s tip provided the initial impetus for the investigation leading to the arrests of the appellants, but additional evidence of the informant’s credibility was provided by police surveillance and investigation. Because we find there was sufficient independent observation to corroborate the details of the tip and thus negate the possibility that the informer fabricated his report or passed on unreliable rumor, we affirm the judgment of the district court.

I. THE FACTS

As in most search and seizure cases, the facts here are extremely important. Although they are not in substantial dispute, they are recounted in some detail.

On February 4, 1973, at about 5:00 p. m., Customs Agent George H. Murray received information from an undisclosed but previously very reliable informant that five persons were in McAllen, Texas, for the purpose of purchasing narcotics, which they intended to transport to Fort Wayne, Indiana. The informant provided Murray with a list of names which consisted of “Church,” “Betz,” and the names of the three appellants. The informant further indicated that he had seen these persons in McAllen on a previous occasion when they had come to pick up narcotics and that they were using the same mode of operation that they had used on the previous trip: they rented two vehicles in McAllen, one to be used for local operations and the other to be taken to Fort Wayne.

Investigation by customs agents confirmed that Brian A. Anderson had rented a 1973 Pontiac from National Car Rental earlier that afternoon, the car to be returned to Fort Wayne. Gregory C. Church rented a 1973 Chevrolet for local use at the same time. Murray then located the appellants in McAllen using the information he gained from the informant and the auto rental agency. By checking motel records, he found that two rooms in the Rodeway Inn were rented in the names of “Church” and “Spicer,” respectively.

Murray then began an intermittent surveillance of the appellants which revealed no criminal activity. On February 26, a Monday, the three appellants, as well as Betz and an unidentified female who arrived the night of February 24, checked out of the Rodeway Inn and into the Quality Motel in Pharr, Texas. The three appellants occupied room 102 and the other persons room 103. The three appellants paid for their room in advance.

On the morning of Tuesday, February 27, Betz and the woman left the motel. Later that same morning, Murray and two other officers saw three individuals load the two rented cars with boxes and other luggage and depart. As the Chevrolet passed the surveillance point, Murray recognized Spicer and Felts in the car; Murray followed the Pontiac, since that car was to be returned to Fort Wayne. At Donna, Texas, on Expressway 83, the car was stopped and searched. Anderson, the only occupant, was arrested. The search revealed four cardboard boxes containing marijuana.

Felts and Spicer were not followed from the motel, but were subsequently seen and photographed by other agents in downtown McAllen. Later that same day at the McAllen airport, Murray observed Felts and Spicer check three pieces of luggage at an airline counter and return the 1973 Chevrolet to the National Car Rental. Both Felts and Spicer were arrested and searched. Murray took the baggage claim checks from Spicer’s ticket and recovered the luggage Spicer and Felts had checked, which was already aboard the plane. Spicer and Felts each claimed one of the bags, but both disclaimed ownership of the third bag, although it was checked on Spicer’s ticket and Murray had seen Felts check it in. The luggage and defendants were taken to the police station where all the luggage was opened and searched without a warrant. Felts’ suitcase contained marijuana; Spicer’s luggage contained a book of addresses, along with other incriminating memo-randa ; the unclaimed suitcase, which was checked on Spicer’s ticket, contained a pistol with Spicer’s thumbprint on the holster and other incriminating paraphernalia.

At trial to a jury, counsel for all defendants objected to the introduction of the evidence seized in the search of Anderson’s car, claiming there was not probable cause for the search or for his arrest. Counsel for Spicer and Felts also objected to the introduction of evidence obtained from a warrantless search of the suitcases they checked at the airport, alleging the lack of exigent circumstances. All objections were overruled by the court and defendants were convicted on the counts charged. All defendants now appeal, alleging as error the introduction of evidence objected to at trial. We consider the issues seriatim.

II. ANDERSON’S SEARCH AND ARREST

While searches conducted without the prior issuance of a warrant are, for the most part, per se unreasonable, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), there are a few clearly delineated exceptions to the warrant requirement of the Fourth Amendment. Among these is the warrantless search of a moving automobile, long accepted and justified on the basis of exigent circumstances. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). A contemporaneous search of containers in the vehicle which could reasonably be employed in the illicit carriage of contraband is also constitutionally permissible. United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc); United States v. Chapman, 474 F.2d 300 (5th Cir. 1973). Such searches of the automobile and containers therein may be performed only where officers conducting the search have probable cause to, believe they will find evidence pertaining to a crime. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968); United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973); United States v. Troise, 483 F.2d 615 (5th Cir. 1973). We believe that the requirements of probable cause for a war-rantless search are met in this ease.

Since the informant’s tip initiated the investigation, it must be the focal point of the probable cause analysis. Use of an unnamed informant’s tip to establish probable cause has been a cource of frequent litigation in the courts. Recent eases have relied upon what has come to be known as the Aguilar-Spinelli test — drawn from two celebrated Supreme Court cases — to assess the tip’s usefulness for both searches pursuant to warrants and warrantless arrests and searches.

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), held that the affidavit supporting the issuance of the search warrant must present sufficient objective evidence to enable a magistrate to conclude that the unnamed informant is credible or that his information is reliable, and the affidavit must set forth some of the underlying circumstances which reveal the source of the informant’s information pertaining to criminal activity. The Aguilar test was modified in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) where the court held that the latter “prong’? of Aguilar can be met by description in the affidavit of criminal activity “in sufficient detail that the magistrate may know [the informant] is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation,” id. at 416, 89 S.Ct. at 589, and that even an undisclosed informant’s tip found wanting under the Aguilar test may provide the basis for a finding of probable cause if parts of it have been corroborated by independent sources, id. at 415, 89 S.Ct. 584; see United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).

Recent applications of the Aguilar-Spinelli test indicate that less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agents yields sufficient verification or corroboration of the informant’s report to make it apparent the report was not fabricated. United States v. Squella-Avendano, supra, 447 F.2d at 580; accord United States v. Canieso, 470 F.2d 1224, 1231 (2nd Cir. 1972); United States v. Acarino, 408 F.2d 512, 515 (2nd Cir. 1969). And the veracity of an unknown informer can be sufficiently determined by the searching officer’s personal observation of some activity which is consistent with the tip but which would appear harmless without it. Thompson v. White, 406 F.2d 1176, 1178 (5th Cir. 1969); United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2nd Cir. 1968); Bailey v. United States, 386 F.2d 1, 3 (5th Cir. 1967).

Since the informant in this case had provided information leading to the seizure of narcotics eight times within-the preceding eight months, the first prong of the Aguilar test is met. Likewise, the independent corroboration of the informant’s tip satisfies the second prong of the test as modified by later opinions. The informant told Murray that the appellants were in town and described their mode of operation. Murray’s investigation revealed the appellants were in fact in McAllen, that they had rented cars, that one of the cars was for local use, and that the other car was to be returned to Fort Wayne. All of this confirmed the informant’s tip.

We believe that this corroboration evinced a knowledge of the inner workings of the appellants’ system sufficient to dispel any belief that the tip was based upon “casual rumor,” “suspicion,” or “mere conclusion.” See United States v. Sellers, 483 F.2d 37 (5th Cir. 1973). Since the information supplied by the informant positively indicated that the defendants intended to violate the law in a specific and detailed manner, the fact that the informant did not supply the agent with personal knowledge that a purchase had taken place was of no consequence. See United States v. Drew, 436 F.2d 529, 533 (5th Cir. 1970). The corroborative evidence here is quite similar to factual bases found to support determinations of probable cause in recent undisclosed informant cases, and we therefore hold that the customs agents had probable cause for the search of Anderson’s car.

Appellants allege a lack of probable cause in challenging Anderson’s arrest, as well as the search of his car. Although the record is not completely clear, it appears that the search of the car occurred prior to Anderson’s arrest. If this was the case, the discovery of marijuana in the trunk of the ear certainly provided probable cause for the arrest. Even if the search was performed subsequent to the arrest, however, there was still probable cause for an arrest without a warrant.

The probable cause element for a warrantless arrest, as in the ease of a warrantless search, may be supplied by information acquired by the arresting officers which corroborates the informant’s tip that the arrestees had committed or were in the process of committing a felony, even if the tip alone would not support a finding of probable cause. See Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). Indeed, numerous courts have applied the modified Aguilar test to warrantless arrest situations. See, e. g., United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971); United States v. Canieso, 470 F.2d 1224 (2nd Cir. 1972). Hence the corroboration of the informant’s tip which contributed to a finding of probable cause for the search of Anderson’s car will also justify his arrest. We therefore find that neither Anderson’s arrest nor the search of his car violated the provisions of the Fourth Amendment.

III. ARREST AND SEARCH OF SPI-CER AND FELTS

Similar reasoning leads us to the conclusion that the arrests of Spicer and Felts were constitutionally permissible. Certainly the corroborative evidence supplying the basis for a finding of probable cause for Anderson’s arrest applies with equal force to the arrests of Spicer and Felts. Moreover, after the marijuana was found in Anderson’s car, an even stronger argument could be made as to the arrests of Spicer and Felts because they were constantly seen with Anderson during the previous four day period, and the informant’s tip, now proven completely accurate as to Anderson, implicated them as well. Hence there was probable cause for their arrests without a warrant.

The warrantless search of Spicer’s and Felts’ luggage, occurring after their arrests, presents a more difficult problem. However, the gun which serves as the basis of the third count of the indictment, as well as almost all of the incriminating material found in Spicer’s and Felts’ possession, was taken from the piece of luggage which neither Spicer nor Felts would claim.

Our conclusion as to the materials taken from that suitcase would appear to be directly controlled by United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc). In Colbert, the two defendants, one of whom fit the description of a wanted suspect, were seen carrying briefcases by policemen. As the officers approached the defendants to question them, the defendants set their briefcases on the sidewalk. They subsequently denied that they owned the briefcases or had any knowledge of them, and began to walk away leaving the briefcases on the sidewalk. The officers arrested the defendants for failure to carry a Selective Service registration certificate, and placed them in the patrol car. The officers then opened the briefcases, finding sawed-off shotguns. The defendants were later convicted of possession of unregistered sawed-off 'shotguns. The Fifth Circuit affirmed the convictions holding the weapons properly admitted into evidence because the defendants abandoned the briefcases.

Here, as in Colbert, the defendants abandoned the luggage before the search took place. As in Colbert, the defendants here, in response to questions from authorities, disclaimed any knowledge of the bag. Finally, in neither case did the officers compel the defendants’ actions. Hence, in accordance with the result in Colbert, we find that Spicer and Felts could have entertained no reasonable expectation of privacy in the unclaimed suitcase. They therefore lack standing to challenge the search of the unclaimed bag. See Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970).

The search of the claimed baggage is more troubling. Two recent decisions of this court have held the product of a search of luggage checked at an airport inadmissible in the absence of a search warrant — where, as here, the owners of the luggage are arrested or detained by authorities. See United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973); United States v. Garay, 477 F.2d 1306 (5th Cir. 1973). Lonabaugh and Garay make it quite clear that when officers, through their possession of baggage checks or in some other manner, have effective control over the movement of checked luggage, as they did here, there is a lack of exigent circumstances upon which to justify a war-rantless search, probable cause notwithstanding. Hence the search of the claimed baggage was impermissible and the products of the search were inadmissible. This conclusion, however, does not change the outcome of the case.

Since the search of the claimed luggage was unconstitutional, we must determine whether the court’s admission of the fruits of the search was harmless by asking whether we can “declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The Supreme Court has found harmless error — even where constitutional rights were at issue — in a case in which the tainted evidence did little to prove a defendant’s guilt and the valid evidence was strong. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Likewise, in United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973), a panel of this court held that evidence improperly admitted as a result of an unconstitutional search was harmless in a situation quite similar to the one before us.

In Steinkoenig, the defendant and three accomplices were implicated by an informant’s tip. Pursuant to a valid border search of the van used by the defendant, agents discovered 190 pounds of marijuana. Agents then arrested the defendant and searched the motel room next to which the van was parked, finding a small amount of marijuana. The defendant was charged with and convicted of conspiracy to import, and possession with intent to distribute the 190 pounds of marijuana found in the van. On appeal, the court, assuming the war-rantless search of the motel room to be unconstitutional, found the error harmless.

The record here indicates that Felts’ suitcase contained but a small amount of marijuana; Spicer’s suitcase contained only the names and addresses of Church, Betz, and Felts, and a listing of radio frequencies. As in Steinkoenig, these items “shrink into insignificance” when compared with the properly admitted evidence. We therefore conclude that any error in admitting the product of the search of the claimed luggage was harmless beyond a reasonable doubt. Cf. United States v. Bankston, 424 F.2d 714 (5th Cir. 1970).

The judgment of the district court is therefore

Affirmed.

      . Specifically, all appellants were charged with and convicted of one count of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and one count of possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), as made applicable by 18 U.S. C. § 2. 21 U.S.C. § 841 provides :
      (a) Except as authorized by this sub-chapter 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 ....
      21 U.S.C. § 846 provides :
      Any person who attempts or conspires to commit any offense defined in this sub-chapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
      18 U.S.C. § 2 provides :
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal.
      (b) Whoever wilfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

      . Carrying a firearm during the commission of a felony is a violation of 18 U.S.C. § 924(c) (2). This statute provides:
      s¡s * * s¡!
      (c) Whoever—
      (2) carries a firearm unlawfully during the commission of any felony for which he may be prosecuted in a court of the United States.
      shall, in addition to the punishment provided for the commission of such felony, be sentenced to a term of imprisonment for not less than one year nor more than 10 years.

      . Although we find that the search of Spi-cer’s and Felts’ luggage was constitutionally impermissible, see Part III infra, this conclusion does not alter our result.

      . The record reveals that the informant had given Agent Murray information resulting in the seizure of narcotics eight times within the last eight months.

      . The record indicates that only four of the named individuals flew in on a plane — the three defendants and Church, who was never seen by agents. The remaining individual whose name was on the list, Betz, was not seen by agents until he drove up to the motel where the appellants were staying on the night of February 24.

      . Specifically, Spicer’s briefcase contained a note pad showing Felts’ address, two record books showing the addresses of Betz, Church, and Felts, a piece of paper containing radio frequencies and the names of police units.

      . In addition to the gun and holster, the unclaimed bag contained an additional cartridge ; passenger receipts from four United Airlines tickets, dated February 24, 1973, from Fort Wayne to McAllen, in the names of Church, Spicer, Anderson, and Jones (the same name under which Felts had purchased a return ticket from McAllen to Fort Wayne) ; passenger receipts from four United Airlines tickets dated February 8, 1973, from Fort Wayne to Corpus Christi in the names of Anderson, Spicer, Vela, and Wilt; a baggage claim check corresponding to stubs found in room 102 of the Quality Motel ; a package of plastic trash bags of the same type that was used to wrap the marijuana found in Anderson’s car; a weapon commonly referred to as a “slap jack;” and various pills and tablets.

      . See, e. g., United States v. Canieso, 470 F.2d 1224 (2nd Cir. 1972). In Spinelli v. United States, 393 U.S. 410, 417, n. 5, 89 S.Ct. 584, 589, 21 L.Ed.2d 637 (1969), the court indicated that the analysis required for assessing probable cause for an arrest without a warrant is “basically similar to that demanded of a magistrate when he considers whether a search warrant should issue.” We therefore cite cases dealing with search warrants, as well as warrantless arrests and searches, in support of our conclusion that there is a sufficient factual basis to support a finding of probable cause here. We recognize, of course, that the standards applicable to the factual basis supporting probable cause for a warrantless arrest and search are at least as stringent as those applied to a search warrant, Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and may even be more stringent, see, e. g., United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).

      . Indeed, in many recent cases a finding of probable cause has been based on a factual situation similar or arguably less corroborative than the one before us. In United States v. Drew, 436 F.2d 529 (5th Cir. 1970), for example, tlie court determined that there was sufficient corroboration to support a finding of probable cause where the informant said three males from Missouri were in town at the Sands Motel to buy drugs, describing their car and license number. Agents merely corroborated the fact that the car was at the Sands Motel. Likewise, in United States v. Rodgers, 442 F.2d 902 (5th Cir. 1971), a sufficient basis for probable cause was found where the informant said that the defendant was in town and using a 1968 camper with North Carolina license plates. Agents corroborated this by ascertaining that the place where the informant said the arrestee could be reached corresponded to the place at which the truck was located, and that the arrestee also drove his truck to the place the informant said he would at the time the informant said he would. See also, United States v. Salas, 488 F.2d 939 (5th Cir. 1974) (probable cause found even though the arrestee, who was not named by the informant as a party to this criminal activity, only appeared at a house identified by the informant as a narcotics distribution point); United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973) (probable cause based on two tips corroborated by defendants’ loading boxes into a trailer); United States v. Holliday, 474 F.2d 320 (10th Cir. 1973) (factual basis supporting probable cause found where informant said that arrestee had a distillery and the vehicle described by the informant as the delivery truck was found to contain illegal whiskey); United States v. Canieso, 470 F.2d 1224 (2nd Cir. 1972) (informant’s tip held sufficiently corroborated by entirely innocent acts: the defendants took the same airplane, sat in close proximity to each other, nodded to each other once, and took the same cab to their hotel) ; Bailey v. United States, 386 F.2d 1 (5th Cir. 1967) (probable cause found where agents were informed that the defendant was traveling to Roma, Texas, to buy heroin, and agents subsequently saw a car, with the license number and description matching the information provided by the tip, being driven in an evasive manner).

      . In their brief, appellants argue that the agents had ample time to apply for and secure a warrant, and thus, there were no exigent circumstances for the arrest and search. However, appellants’ movement from one motel room to another made it difficult to procure a warrant for the search of a specific place. Moreover, Agent Murray testified that based on his experience, drug transactions usually occur immediately prior to the buyers’ departure from the area. And, in fact, Anderson’s car was not stopped until it was clear to the observing agents that it was leaving the area. Therefore, any earlier search of the defendants in their motel rooms would have probably produced negative results.

      . Felts was convicted of conspiracy to possess marijuana with intent to distribute and possession with intent to distribute.


author: ROSENN, Circuit Judge.

text:
    UNITED STATES of America v. William P. CATENA, M.D., Appellant.
    No. 74-1054.
    United States Court of Appeals, Third Circuit.
    Argued May 29, 1974.
    Decided July 22, 1974.

      Stanley W. Greenfield, Greenfield & Minsky, Pittsburgh, Pa., for appellant.

      David M. Curry, Asst. U. S. Atty., Richard L. Thornburgh, U. S. Atty., Pittsburgh, Pa., for appellee.
    Before ROSENN and HUNTER, Circuit Judges, and HANNUM, District Judge.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

The defendant, a physician, was tried to a jury and convicted of ten counts of an indictment for fraudulently submitting false Medicare claims for payment. We affirm.

Each count of the indictment upon which the defendant was convicted was in the following form:

On or about [date], at Carnegie, in the County of Allegheny, in the Western District of Pennsylvania, defendant William P. Catena, M.D., presented and caused to be presented to an agency of the United States under the Health Insurance for the Aged Act, a claim against the United States for medical services supplied and rendered to [name and address of patient] for [number] house calls, on [dates of treatment], pursuant to the provisions of the Health Insurance for the Aged Act, knowing the said claim to be false, fictitious, and fraudulent in that no medical services were supplied and rendered by William P. Catena, M.D., to the said [name of patient] on said dates.
In violation of Section 287 of Title 18, United States Code.

We first consider the question of whether the evidence most favorable to the Government shows acts which constitute violations of the statute under which the defendant was indicted and convicted.

18 U.S.C. § 287 makes illegal the fraudulent presentation of claims “to any person or officer in the civil service of the United States, or to any department or agency thereof . ” The evidence at trial indicated, however, that the defendant had submitted the allegedly fraudulent claims to Pennsylvania Blue Shield (Blue Shield) and to the Travelers Insurance Company (Travelers), rather than directly to any federal official or federal agency.

The Government tried the case on the theory that Blue Shield and Travelers were agencies of the United States within the meaning of § 287. The Government contended that the defendant, by submitting false claims to these private insurance carriers, had submitted false claims to agencies of the United States in violation of § 287. In support of this theory, the Government introduced at trial the contracts between federal agencies and each of the insurance carriers.

These contracts provided that the carriers would process and pay Medicare claims, in return for federal reimbursement for claims paid and for administration costs. The district court, in its opinion denying the defendant’s post-trial motions, accepted the Government’s theory that these reimbursement provisions made the insurance carriers agencies of the United States.

We have considerable doubt that Blue Shield and Travelers may be considered “agencies” of the United States for purposes of the criminal prohibition of § 287, regardless of their contractual arrangements with the United States. 18 U.S.C. § 6 states that for purposes of Title 18,

[t]he term “agency” includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense.

The final phrase of this definition indicates that the prior terms were intended as the outer limits of the definition of agency, and, given the criminal nature of the statute, it would be difficult to contend that private organizations with reimbursement contracts with the United States fell within any of the definitional terms.

We need not decide this question, however, because we believe that the indictment and proof were sufficient to sustain the conviction on the theory that the defendant “caused” the private insurance carriers themselves to submit his false claims to the Department of Health, Education and Welfare (HEW) and to the Railroad Retirement Board, which are clearly federal agencies.

In United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1942), the Supreme Court was called upon to construe R.S. § 5438, the forerunner of § 287, which at the time began with the language:

Every person who makes or causes to be made, or presents or causes to be presented, for payment or approval, to or by any person or officer in the civil . . . service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent ....

In Hess, the Court held that when private contractors engaged in collusive bidding practices on contracts made with local governmental units, and when a large portion of the money paid the successful contractors by the state was of federal origin, then the contractors were “causing to be presented” a “claim upon or against the Government.” 317 U.S. at 544, 63 S.Ct. at 384. Were the old version of the statute which was at issue in Hess presently in force, the defendant in the instant case could have been convicted of “causing” the innocent insurance carriers to present his fraudulent claims to the United States.

It may be contended, however, that the revised version of the statute, which refers to presenting false claims to an agency of the United States but not to causing false claims to be presented, precludes conviction of the defendant on the theory of Hess. We do not believe that this conclusion would be correct. The “cause” language of -the former version of § 287 has clearly been replaced by 18 U.S.C. § 2(b), which states that

[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

Just as under the former version of § 287 at issue in Hess, under the combination of the present version of § 287 and the present § 2(b) a person may be guilty of causing a false claim to be presented to the United States even though he uses an innocent intermediary (in this case the insurance carriers) to actually pass on the claims' to the United States. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

We further note that the indictment in this case was sufficient to sustain the conviction under this theory. The text of each count accused the defendant of “present[ing] and eaus[ing] to be presented” a false claim to an agency of the United States. While the indictment did not by its terms refer specifically to § 2(b), but rather referred only to § 287, this omission is not fatal. United States v. Koptik, 300 F.2d 19, 22 (7th Cir.), cert. denied, 370 U.S. 957, 82 S.Ct. 1609, 8 L.Ed.2d 823 (1962); Londos v. United States, 240 F.2d 1, 7 (5th Cir.), cert. denied, 353 U.S. 949, 77 S.Ct. 860, 1 L.Ed.2d 858 (1957). In terms of giving notice to the defendant of the crime for which he is charged, the bare citation of § 2(b) adds little to the specific language of the indictment charging him with “causing” a false claim to be submitted.

Even though we have found that the evidence most favorable to the Government was sufficient to sustain the defendant’s conviction under § 287, this does not dispose of the defendant’s contention concerning the court’s charge to the jury on this “agency” issue. An improper charge by the trial court might have permitted the jury to convict the defendant on evidence which would be sufficient to constitute a violation of the statute.

The court charged the jury that [t]here are two essential elements to this offense, and the Government must prove each of these elements beyond a reasonable doubt .... The elements — that is what constitutes this or the definition of the offense requires that there is an act .or acts of making and using or causing to be made a false writing or document, a claim to a matter within the jurisdiction of the United States. One, is the claim false, and knowing that the claim is false and doing it knowingly and wilfully. [Emphasis supplied.]

The defendant, who did not object to the italicized portion of the charge at trial, now contends that it was error because it is broader than the literal requirement of § 287 that the claim be made to an agency of the United States. In view of 18 U.S.C. § 2(b), we need only compare the court’s instructions on this point with the requirement that the defendant cause a false claim to be submitted to an agency of the United States.

We do not believe that the charge constitutes plain error requiring a reversal of the conviction.

We first note that
[i]n determining the effect of [the] instruction on the validity of respondent’s conviction, we accept at the outset the well-established proposition that a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.

Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). When so viewed, we do not believe the jury was misled by the superfluous reference to “a claim to a matter within the jurisdiction of the United States.” The objectionable phrase was preceded at length by the trial court’s description of the offense as charged in the indictment. This was followed by the trial court’s reading of the statute upon which the indictment was predicated, § 287, and an explanation of the essential elements of the offense, including the act of “making ... or causing to be made a false writing or document, a claim to a matter within the jurisdiction of the United States.” The objectionable but superfluous language italicized above was qualified by the following instruction:

It is fraudulent if it is made or caused to be made with the intent to deceive the Government agency to which it is submitted.

Looking at the charge as a whole, we do not believe that the jury was misled.

Even assuming, however, that the jury was influenced by the overly broad phrase in the instruction referring to “a matter within the jurisdiction of the United States,” we believe that there is an alternative reason why the charge is not plain error. In Anderson v. United States, -U.S.-, 94 S.Ct. 2253, 41 L.Ed.2d 21 (1974), the defendants had been indicted for conspiring to cast fictitious votes for federal, state, and local offices in a primary election, in violation of 18 U.S.C. § 241. The court’s charge to the jury did not distinguish between the federal and state candidates who were on the election ballot, and indicated only that conspiracy to cast false votes in the primary election would constitute a violation of the statute. The defendants contended on appeal that § 241 reached only conspiracies to cast fraudulent votes for candidates for federal offices, and that their convictions should be reversed because the jury charge permitted a conviction if the jury found a conspiracy directed solely to state offices.

The Supreme Court found it unnecessary to reach the question of whether § 241 reached conspiracies to cast fraudulent votes for candidates for state offices, affirming the convictions even under the assumption that the statute only reached candidates for federal offices. The Court stated:

While the District Court’s jury instructions did not specifically focus upon the conspiracy to cast false votes for candidates for federal offices, no objection was made at trial or before the Court of Appeals with respect to this aspect of the instructions. See Johnson v. United States, 318 U.S. 189, 200, [63 S.Ct. 549, 87 L.Ed. 704] (1943); Adickes v. S. H. Kress & Co., 398 U.S. 144, 147 n.2, [90 S.Ct. 1598, 26 L.Ed.2d 142] (1970). And, even assuming arguendo that § 241 is limited to conspiracies to cast false votes for candidates for federal offices, we could find ho plain error here. The prosecution’s case, as indicated earlier, showed a single conspiracy to cast entire slates of false votes. The defense consisted in large part of a challenge to the credibility of the Government’s witnesses, primarily the three unin-dicted coconspirators. The case therefore ultimately hinged on whether the jury would believe or disbelieve their testimony. Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to east false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.

The principle of Anderson also applies to the instant case. Just as in Anderson, the defendant contends for the first time on appeal that the court’s charge permitted the jury to convict on findings which in themselves would not constitute a violation of the statute. Just as did the Court in Anderson, however, we find it “inconceivable” that the error in the charge affected the outcome of the jury deliberations. The issue on the trial of these ten counts was the question of whether or not the defendant had fraudulent intent in submitting the claims for house calls for dates on which he concededly did not make the calls. The case turned entirely upon credibility, upon whether or not the jury would believe his testimony and that of his nurse/aide. No dispute existed over the factual nature of the relationship between the private insurance carriers and the federal government, and no such issue could possibly have arisen since the complete reimbursement contracts were introduced into evidence. The legal consequence of these relationships was for the trial court. We have held that the court could have properly submitted the case to the jury on the theory that the evidence was sufficient to show that the defendant caused a false claim to be presented to an agency of the United States. The jury by its conviction indicated that it found the claims at issue were fraudulent and related to matters which were “within the jurisdiction of the United States.” We believe it “inconceivable” that the jury would not also have found that the defendant caused the fraudulent claims to be submitted'to an agency of the United States.

The defendant next contends that the district court committed reversible error by denying his pre-trial motion, under Fed.Rule Crim.Proc. 14, to sever over 100 counts of the the indictment and try them separately. The court ultimately dismissed 27 of the counts, submitting to the jury 114 of the 141 counts on which the defendant had been indicted. As noted, the jury found him guilty on 10 of the remaining 114 counts.

The defendant claims that the court’s refusal to sever was prejudicial because

[p] ermitting these over 100 counts to be submitted to the jury unnecessarily complicated the jury’s consideration and was patently prejudicial to the defendant. Indeed, we suggest it is not the least bit unreasonable to suppose that absent these more than 100 counts, the likelihood of acquittal on the only 10 of which he was convicted would have been substantially enhanced. At least the possibility of a compromise verdict, as appears the likely result here, would have been dramatically reduced.

This court has consistently stated that denial of a severance by the trial court is not a ground for reversal absent an abuse of discretion by the trial court. Proof of such abuse of discretion requires affirmative evidence showing clear prejudice to the defendant. See, e. g., United States v. Barber, 442 F.2d 517, 529 (3d Cir.), cert. denied, 404 U.S. 846, 92 S.Ct. 148, 30 L.Ed.2d 83 (1971); United States v. Weber, 437 F.2d 327, 332 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). We see no abuse of discretion by the trial court on the facts of this case. All of the claims at issue were made in a similar manner, on identical forms and for similar services. The amount of money involved in each claim was almost nominal, averaging $10 per count. The same office records of the defendant were required for each count, and the witnesses who would have been required for each trial included the defendant himself, his nurse/aide, and Blue Cross and Travelers personnel. Moreover, the period over which the alleged violations took place was reasonably limited, and the stipulated fact upon which the Government primarily relied (that the defendant was out of the country or traveling on the dates that services were claimed to have been provided) was the same for each count.

We do not believe that on these facts the defendant was entitled to put the Government to the expense and inconvenience of separate trials. Nor do we consider that the defendant’s generalized fears of a compromise verdict have sufficient basis to indicate that the refusal to sever was an abuse of discretion. We note that the trial court was careful to prevent confusion on the part of the jury as to which count was at issue at any given time; it plainly instructed the jury that each count was to be considered separately. The jury, likewise, was careful to convict only on those counts, interspersed throughout the indictment, relating to claims made for house calls.

We finally consider the defendant’s contention that the trial court erroneously admitted into evidence a written statement made by the defendant’s attorney in the presence of the defendant. During a HEW investigation of the charges giving rise to the indictment, but before the institution of any criminal proceedings, HEW and Blue Cross investigators met with the defendant and his attorney. After discussion of certain irregularities in the defendant’s claims, the defendant was handed a Social Security Form SSA-1760 which, testimony at trial indicated, was “usually offered to people to give a voluntary statement to explain an irregularity.” At the top of the form in large letters was the language “Voluntary Statement to Explain Irregularity.” The defendant’s name was filled in at the top of the form, and the blank space for the nature of the alleged irregularity read “billing for physician services under Medicare not rendered.” The form, which gave Miranda warnings and noted that any statement could be used in a criminal proceeding, stated that the signator knew that “[f]or purposes of the review, I may, if I choose to do so, make a statement explaining the circumstances surrounding the irregularity.”

The form was handed to the defendant. His lawyer, however, took the form from him and wrote on it, “There is no irregularity,” signed his own name, and handed the form back to the investigators.

We believe that the question of whether the statement by the attorney was properly admitted as an admission by the defendant depends upon whether the statement was made within the scope of the attorney’s authority at the time it was made. United States v. Dolleris, 408 F.2d 918, 921 (6th Cir.), cert. denied, 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969). In this case it is clear that the attorney was acting within his authority in making the statement. The attorney took the form from the hands of the defendant and wrote on the form his statement denying irregularities. The defendant stood by and said nothing, implying that the attorney acted with his approval and consent. The defendant, who took the stand at trial, did not state that the attorney acted without his approval and consent. We therefore find no error by the trial court.

We find without merit defendant’s additional contention that he was denied a jury of his peers because of the rule of court that physicians in active practice who are called for jury duty may be excused upon individual request.

The judgment of the district court will be affirmed.

      . Although the defendant has not directly raised this issue on appeal, we consider it on our own motion for three reasons. First, the defendant raised this issue in the district court, and raises a related issue on this appeal by his challenge to the court’s charge to the jury, see pp. 1324-1326 infra. Second, as the Supreme Court has recently reiterated, “a claim that a conviction is based on a record lacking any evidence relevant to crucial elements of the offense is a claim with serious constitutional overtones,” Anderson v. United States, 417 U.S. 211, 223, 94 S.Ct, 2253, 2261-2262 n. 12, 41 L.Ed.2d 21 (1974), and we believe, as did the Court in Anderson, that the “interests of justice” require its consideration here. In any event, the defendant, in reliance upon Anderson, could apparently raise the claim in a petition for certiorari to this court. We believe that our consideration of the issue at this point would possibly avoid a later remand. Finally, we are concerned that our failure to comment on the issue might be construed as approval of the district court’s rationale for its disposition of the case.

      . 18 U.S.C. § 287 provides:
      Whoever makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim upon or against the United States, or any department or agency thereof, knowing such claim to be false, fictitious, or fraudulent, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . One contract ran between Blue Shield and the Department of Health, Education and Welfare. The other contract ran between Travelers and the Railroad Retirement Board.

      . The Reviser’s Note to § 6 states that “[i]t was considered necessary to define clearly these words [“department” and “agency”] in order to avoid possible litigation as to the scope or coverage of a given section containing such words.”
      The district court relied in part upon United States v. Waters, 457 F.2d 805 (3d Cir. 1972). That case, however, was concerned with the provision of 18 U.S.C. § 1001, referring to “any matter within the jurisdiction of a department or agency of the United States.” That statutory language . is broader on its face than the language of § 287. The district court also relied upon United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1942), discussed infra.

      . The Reviser’s Note to § 287 states that “ [reference to persons causing or procuring was omitted as unnecessary in view of definition of ‘principal’ in section 2 of this title.” The Reviser’s Note to § 2 states that “Section 2(b) is added to permit the deletion from many sections throughout the revision of such phrases as ‘causes or procures’.” This modification of language did not represent a substantive change in Title 18. See Pereira v. United States, 202 F.2d 830, 836-837 (5th Cir. 1953), aff’d, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435 (1954).

      . In Pereira, the defendant had deposited a fraudulently procured check drawn on a Los Angeles bank into his El Paso bank account. The innocent Texas bank mailed the check to California for collection. Citing §' 2(b), the Court held that the defendant had been properly convicted for “causing” the check to be mailed across state lines. The Court stated that “[w]here one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” 347 U.S. at 8-9, 74 S.Ct. at 363. Cf. United States v. Maze, 414 U.S. 395, 399, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).

      . We find no prejudice to the defendant from our holding that the conviction can he affirmed on a theory other than that relied upon by the trial court and the Government. First, the defendant cannot claim a lack of opportunity to show that he did not “cause” the private carriers to submit his Medicare claims to the Government for reimbursement. He had full opportunity to explore the relationship between the carriers and the Government in order to support his contention at trial that the carriers were not agencies of the United States. This relationship was clearly shown by the reimbursement contracts between the carriers and the Government.
      Moreover, it would have been futile for the defendant to contend at trial that he did not know that the claim forms he sent to the carriers would ultimately be paid out of the federal treasury. The forms each contained the heading, in large letters, “Request for Medicare Payment,” and on the next line, “Medical Insurance Benefits — Social Security Act.” In the lower right hand corner was the notation, in small letters, “Department of Health, Education, and Welfare, Social Security Administration.” In fact, the only indication that the form was not to be submitted directly to the Government was the address section, which listed “Medicare/Pennsylvania Blue Shield/Box 65/Camp Hill, Pa. 17011.”

      . The trial court apparently based the italicized portion of the charge upon the actual language of 18 U.S.C. § 1001. Cf. United States v. Matanky, 482 F.2d 1319 (9th Cir.), cert. denied, 414 U.S. 1039, 94 S.Ct. 539, 38 L.Ed.2d 329 (1973).

      . The defendant requested severance of over 100 counts which related to allegedly false claims for office visits listed on the claim forms as having been made on dates that he was concededly out of town. The jury acquitted him on each of these counts, apparently believing his defense that the services listed on the claim forms had been provided by his nurse/aide or by his medical student son.
      The ten counts upon which he was convicted, on the other hand, were those counts which involved claims for house calls made on dates that he was admittedly out of town. His only defense to these counts was that the listed dates were bookkeeping errors.

      . The 114 counts submitted to the jury represented allegedly fraudulent claims aggregating $1339; only 80 percent of such Medicare claims (after a $50 annual deductible per patient) were reimbursable.

      . The periods covered were January 4-11, 1969; August 28-September 6, 1969; January 9-15, 1970; and July 2-10, 1970.

      . See United States v. Abrams, 29 F.R.D. 178 (S.D.N.Y.1961), denying motions for severance on 104-count indictment against six defendants. Although it is not clear how many of these counts actually went to the jury, the Court of Appeals ultimately affirmed the convictions of two defendants each convicted on the same seventeen counts, and one defendant convicted on a different seventeen counts. United States v. Abrams, 357 F.2d 539 (2d Cir.), cert. denied, 384 U.S. 1001, 86 S.Ct. 1922, 16 L.Ed.2d 1014 (1966).

      . An investigator had used the phrase “possible billing . . . ” but had crossed out the word “possible” at the request of defendant’s attorney.

      . The form stated in full:
      I understand that it is the policy of the Social Security Administration to require that all irregularities of the above nature be reviewed to determine whether there has been a violation of any penal provisions of the Social Security Act. (Where this review indicates there has been a violation, the file is referred to the Department of Justice for its consideration.) For purposes of the review I may, if I choose to do so, make a statement explaining the circumstances surrounding the irregularity.
      I understand that this statement may be used against me in the trial of any criminal charges which the Government may bring regarding this matter. I further understand that I have the right to consult with a lawyer before giving any information or evidence and to have a lawyer present during any interview, and that I have the right to refuse to make any statement or to furnish any other evidence requested of me.
      Understanding this, I hereby make the following statement voluntarily: