author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Garriga CHAPMAN and Richard Lee Scott, Defendants-Appellants.
    No. 71-3473.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 20, 1973.
    Rehearing Denied April 3, 1973.

      Herbert A. Bargeon, Jr., Orlando, Fla. (Court-appointed), for Chapman.
    John V. Holmes, Orlando, Fla. (Court-appointed), for Scott.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

Upholding this conviction of appellants Chapman and Scott under a four count indictment in which they were charged with conspiracy to commit, on June 19, 1969, the burglary of the Post Office at Fern Park, Florida (18 U.S.C. § 2115), damage to government property (18 U.S.C. § 1361), and theft of government property (18 U.S.C. § 641) depends, as now so often, on the validity of the search of Scott’s car while it was in the sole possession of Chapman. Finding the search to have been legal under the .circumstances we affirm.

The search occurred during the arrest of Chapman by an FBI agent on an outstanding warrant charging Post Office burglary in Alabama some six months previously.

On June 19, 1969 Appellants, in the company of two others, burglarized the Post Office at Fern Park, Florida. The group split up following the burglary. Defendant Chapman had possession of defendant Scott’s car when he was observed by agent Bolyard of the FBI at a Holiday Inn Motel near Pensacola, Florida on June 23, 1969, some four days after the break-in. Agent Bolyard was having lunch with Sergeant Powell of the Escambia County Sheriff’s Department at the Holiday Inn Motel on that date.

Agent Bolyard testified as follows. Arriving to eat lunch the agent recognized the car, a 1965 Ford, which he knew belonged to defendant Scott. This aroused his suspicion, because he had confidential information that the car contained burglary tools, and that it had been used in connection with another Post Office break-in some six months earlier in Alabama, the one for which defendant Chapman had already been indicted and for which he would soon be arrested pursuant to the outstanding warrant.

Following lunch, Agent Bolyard observed Chapman as he placed a suitcase in the trunk of the ear. He knew of the outstanding warrant for Chapman’s arrest, but he was not absolutely certain, although he stood some forty to fifty yards from the Scott car as Chapman placed the suitcase in the trunk, that the person in question was Chapman. He and Sergeant Powell got in Powell’s car and drove to the point in the parking lot where the Scott car was located. They observed the car leaving the parking lot following another car and followed them. Tailing the car in traffic for 10 to 15 minutes they moved alongside of the Scott car were Agent Bol-yard was able to make a positive identification of Chapman. They pulled the cars to the curb on this busy street. Indeed, the curbing of the cars created a traffic jam and began backing up traffic in both directions. Agent Bolyard placed Chapman under arrest for the Alabama burglary. Agent Bolyard did not then know of the Fern Park burglary that had transpired four days prior to his arrest of Chapman.

Chapman got out of the automobile and was frisked for weapons. The car was still running and Agent Bolyard reached in and turned off the key. Agent Bolyard placed Chapman in the custody of Sergeant Powell and then began a search of the car. He found an automatic pistol on the transmission hump of the car in the front seat wrapped in a wool cap so that it was not visible as he opened the car door. He took the keys from the car, opened the trunk and looked over the items in the trunk among which were a number of possible burglary tools, and Chapman’s suitcase which contained the evidence— a sheet of Holiday Inn stationery from an Inn near the Fern Park Post Office which catalogued the loot taken at the burglary there — that led to Scott’s arrest. Since the stopping had occurred on a heavily traveled street and traffic congestion was developing the car was then taken to the Escambia County Sheriff’s Office where a further search was made. The agent had been looking for burglary tools and hoped also to find stolen money orders along with a stolen validating stamp, taken in the Alabama burglary for which. Chapman was arrested.

It cannot be disputed that the evidence obtained in this search and the leads which this evidence provided to the Government’s investigatory efforts provided an important part of the Government’s case against Appellants for the Fern Park Post Office burglary. The only question then, is the legality of the searches.

Appellants do not contend that Agent Bolyard lacked probable cause for stopping or arresting Chapman. They contend, however, that the searches of the car without a warrant were illegal.

The validity of the first search, which occurred on the highway, like any search without a warrant is subject to the existence of probable cause plus exigent circumstances.

Where, as here, an automobile has been stopped in the middle of a busy public thoroughfare and an unchallengable arrest is made on the basis of an outstanding warrant, the immediate exploratory inspection of the automobile reveals hand weapons prudent officers know to be used in burglaries, and the officer has particularized, well-grounded information that the car was employed in the Alabama burglary and its contents include both the fruits and the instrumentalities of crime, the authorities allow us to hold that there was both probable cause and the requisite exigent circumstances. See, Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 and United States v. Ragsdale, 5 Cir., 470 F.2d 24 [1972]. Our conclusion is bolstered by the fact, which was known to the arresting officer, that the car did not belong to the driver and might be subject to an attempted or actual removal by its owner appellant Scott.

Chambers further compels us to hold that if the intrusion of privacy on the highway was justified then the later inventory at the station house is unchallengable, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 429.

The Court’s rationale was that since the officers could, under the circumstances, immobilize the car and prevent anyone from using it (i. e., seize the car) until a warrant was obtained, as long as probable cause was clearly present there was little practical difference between an immediate search and one conducted after awaiting a warrant.

Given this assumption the Court held that removal of the vehicle to the station house for reasons of convenience and safety, and there completing the search that had permissibly begun at the roadside — without benefit of a warrant— was not unreasonable nor constitutionally impermissible. 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 429 (note 10).

There is nothing in Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 which weakens our conclusion that exigent circumstances existed. Coolidge did not question the validity of Chambers, supra, and the Court relied heavily in Coolidge on the facts that the Defendant’s car was not on a public highway and the objects searched for “were neither stolen nor contraband nor dangerous,” 403 U.S. 443, 460, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564. Furthermore, in Coolidge the car was immobilized in a private driveway while Defendant was incarcerated and there was absolutely no reason for the police not obtaining a valid warrant prior to going out to Defendant’s house to seize the car. Here, like in Chambers, there was no reasonable opportunity prior to the seizure for a warrant to be obtained.

Chambers teaches us that where “exigent circumstances” plus probable cause exist, a car may be searched without a warrant when it is stopped on a public highway and an arrest is made. The finding that probable cause existed is clearly supported and since we find that the requisite “exigent circumstances” existed here, we are unable to say that this search was invalid.

Affirmed.

      . Apparently the driver of the second car was arrested also. The testimony suggesting this, given by Agent Bolyard, indicates that the second car was left locked at the scene of Chapman’s arrest.

      . Agent Bolyard had discovered a second pistol under the seat of the car. Ammunition for botli weapons was found in the glove compartment. In the trunk lie found oxygen and acetelyne tanks, cutting torches and various other tools along with sundry items of personal property.

      . United States v. Edwards, 5 Cir., 1971, 441 F.2d 749 — having a similar fact situation — strongly suggests that this conclusion is sound.

      . Cf. United States v. Miles, 5 Cir., 1971, 445 F.2d 974, 975, decided before Coolidge, which states that under Can-oil, infra, “police officers may search without a warrant any automobile that they have probable cause to believe contains contraband” citing Chambers, supra.

      However, we need not explore the absolute parameters of valid searches under Chambers, supra or delve the limits of the forbearer Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. See Judge Heaney’s opinion in United States v. Bozada, 8 Cir., 1972, 473 F.2d 389 [1972] where he undertakes to analyze Carroll and Chambers, before and after Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. Boeada’s facts make it inapplicable to determination of the issues presented here and we therefore intimate no approval or disapproval as to its reasoning or result.

      . This was specifically stated as a principle of law in United States v. Edwards, supra note 3, 441 F.2d at 754.

      . United States v. Collins, 1971, 142 U.S.App.D.C. 100, 439 F.2d 610, which was the opinion of only one member of the panel, is clearly distinguishable on its facts. That case involved an armed robbery. The robbery had occurred six days earlier and a small coin box and a large amount of change were all that had been taken. Further, the court specifically found that the officers — who retrieved a small coin purse containing heroin from under Collins’ foot — had no reasonable basis to believe that he had participated in any crime of which they had knowledge. Finally, the Court there chose to treat the search as a search of the Appellant’s person rather than as a search of the automobile.

      . The search in Coolidge was pursuant to a warrant which the Court found to be invalid.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge: HUFSTEDLER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Respondent-Appellee, v. John William SHERMAN, Petitioner-Appellant.
    No. 71-2120.
    United States Court of Appeals, Ninth Circuit.
    Feb. 1, 1973.

      Hufstedler, Circuit Judge, dissented and filed opinion.
    John William Sherman, in pro. per.
    Sidney I. Lezak, U. S. Atty., Vinita Jo Neal, Asst. U. S. Atty., Portland, Or., for respondent-appellee.
    Before DUNIWAY, HUFSTEDLER and CHOY, Circuit Judges.
   DUNIWAY, Circuit Judge:

On September 3, 1969 Sherman pled guilty to a charge of violating the Dyer Act, 18 U.S.C. § 2312. Later he moved to vacate his conviction under 28 U.S.C. § 2255, alleging that the record of the proceedings at the taking of his plea did not show that he was advised of his right against compulsory self-incrimination. This, he says, is contrary to the decision in Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, and Rule 11, F.R.Crim.P. as interpreted in McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418. The district court denied the motion, and Sherman appealed.

On March 2, 1972 we filed an opinion reversing the denial of Sherman’s motion. On the government’s petition for rehearing, we vacated that opinion. Having now concluded that Sherman’s guilty plea was properly taken, we affirm the order of the district court.

The record does not show that Sherman was advised, eo nomine, of his right against compulsory self-incrimination. However, no decision of the Supreme Court imposes such a requirement. In McCarthy, the Court held only that district courts must adhere strictly to the provisions of Rule 11, and that failure to do so requires that the defendant be afforded an opportunity to re-plead. 394 U.S. at 466, 472, 89 S.Ct. 1166. Neither the Rule nor the opinion state that the trial judge must specifically inform the defendant of his Fifth Amendment rights. In Boykin, the appellant had been convicted on a guilty plea in a proceeding of which there was no record. The Court held that such a plea violates due process because a guilty plea waives several constitutional rights, and prior cases had required that the waiver of similar rights be spread upon the record. It therefore seemed anomalous to allow a guilty plea to be taken with'no formal inquiry as to its voluntariness. The Court’s precise holding was "that there was reversible error ‘because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.’ ” 395 U.S. at 244, 89 S.Ct. at 1713.

In short, neither McCarthy nor Boykin requires that a defendant be specifically advised of all of his constitutional rights by the trial court if his plea is to be valid. Nor do we think that due process or Rule 11 impose such a requirement. A criminal defendant possesses a great number of rights which he is foreclosed from asserting by the entry of a guilty plea, see United States v. Frontero, 5 Cir., 1971, 452 F.2d 406, 415. Requiring a specific waiver of every one would only sow the seeds for later collateral attack. See Boykin v. Alabama, supra, 395 U.S. at 244, 89 S.Ct. 1709.

The three rights emphasized by the Supreme Court in the cited cases —the right against self-incrimination, the right to a jury trial, and the right to confront witnesses — do provide guidance for district courts in determining whether a guilty plea is knowingly and intelligently entered. Among other things, the court must ascertain that the defendant knows that he is not required to plead guilty, and that if he chooses not to do so the government will be put to its proof before a jury, at which time he may cross-examine witnesses and put on a defense. While this inquiry must be fully developed on the record, it need not assume any predetermined, ritualistic form. See McCarthy v. United States, supra, 394 U.S. 465-466 n. 20, 89 S.Ct. 1166; United States v. Tabory, 4 Cir., 1972, 462 F.2d 352, 353; United States v. Frontero, supra, 452 F.2d at 413-414; United States v. Berlin, 7 Cir., 1971, 437 F.2d 901.

A plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged. Indeed, Rule 11 requires that the court be “satisfied that there is a factual basis for the plea.” It is therefore essential that the defendant know that he has a right not to plead guilty, and that the record show that he knows it. Here, the record makes it perfectly clear that Sherman knew that he had that right. We see no need to go farther and attach to such knowledge the talismanic phrase “right not to incriminate himself.” He certainly knew that he had a right not to plead guilty, and that by pleading guilty he was incriminating himself.

The district court had previously entered a plea of not guilty on Sherman’s behalf, and he petitioned to withdraw that plea after extensive consultations with his counsel, with whom he was “entirely” satisfied. In his written and signed petition, Sherman recited:

“(5) I understand that I may plead ‘Not Guilty’ to any offense charged against me. If I choose to plead ‘Not Guilty’ the Constitution guarantees me (a) the right to a speedy and public trial by jury, (b) the right to see and hear all witnesses called to testify against me, (c) the fight to, use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor, and (d) the right to have the assistance of a lawyer at all stages of the proceedings.
(10) I know that the Court will not permit anyone to plead ‘GUILTY’ who claims to be innocent and, with that in mind and because I am ‘GUILTY’ and make no claim of innocence, I wish to plead ‘GUILTY’ and respectfully request the Court to accept my plea of ‘GUILTY’ and to have the Clerk enter my plea of ‘GUILTY’ as follows:
Guilty as charged in the indictment.
(11) I OFFER MY PLEA OF ‘GUILTY’ FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION AND IN THE CERTIFICATE OF MY LAWYER WHICH IS ATTACHED TO THIS PETITION.”

In the certificate referred to, his lawyer stated:

“(6) In my opinion the plea of ‘GUILTY’ as offered by the defendant in paragraph (10) of the petition is voluntarily and understandingly made. I recommend that the Court accept the plea of ‘GUILTY.’ ”

Sherman told the trial judge that he had reg,d the petition, had gone over it with his attorney, and that the facts stated in the petition were true. In open court, in response to several questions by the court, Sherman stated that no threats had been made to him, that he knew the penalty for violation of the Dyer Act, and that he did not expect leniency. He freely admitted that he was guilty, and discussed the details of the crime at some length. Finally, the court informed him that if he did not plead guilty he could have a jury trial, confront the witnesses against him, and summon witnesses in his own behalf. Nonetheless, he persisted in his desire to plead guilty. In view of this record, we cannot conclude that Sherman’s plea was not intelligently entered merely because the words “self-incrimination” were not used.

Affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

I dissent because I believe that the record does not establish compliance with Rule 11, as that rule was interpreted in McCarthy v. United States (1969) 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418.

Rule 11 provides in pertinent part that “The court . . . shall not accept [a plea of guilty] without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” This version of the rule, requiring a personal colloquy, is a product of a 1966 amendment. Before the amendment, not all judges personally addressed the defendant, and there was common confusion over the matter. (E. g., compare United States v. Diggs (6th Cir. 1962) 304 F.2d 929 with Meeks v. United States (5th Cir. 1962) 298 F.2d 204.)

McCarthy construed Rule 11 to require the United States District Court to interrogate the defendant personally to ascertain if he knowingly and intelligently waived his constitutional rights, including his right to a jury trial, his right of confrontation, and his privilege against self-incrimination. 394 U.S. at 466, 89 S.Ct. 1166. If a plea is taken “without fully adhering to the procedure provided for in Rule 11,” a defendant is entitled to plead anew. 394 U.S. at 463-464, 89 S.Ct. at 1169.

When compliance with Rule 11 is not in issue because the plea is taken in state court (Boykin v. Alabama (1969) 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274) or because the Rule 11 proceeding was conducted before McCarthy was decided (Halliday v. United States (1969) 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16), the validity of the plea rests on compliance with the less rigorous demands of due process. The Court did not impose the personal interrogation requirement of Rule 11 as a constitutional standard. Compliance with due process can be established from an examination of the whole record; it is not confined to the colloquy between the court and the defendant as is true of post-McCarthy Rule 11 proceedings. (Boykin v. Alabama, supra; Halliday v. United States, supra at 832, 89 S.Ct. 1498; see also 394 U.S. at 834-835, 89 S.Ct. 1498 (Harlan, J., concurring).)

Appellant’s plea was taken after McCarthy was decided. Our inquiry, therefore, is whether the district court’s interrogation of appellant complied with post-McCarthy Rule 11. All pertinent parts of the Rule 11 colloquy are set forth below:

“THE COURT: How many times have you talked to Mr. Allen (defense counsel) about this case?
THE DEFENDANT: Quite a few, sir.
THE COURT: Do you think you have talked to him sufficiently to be able to make an intelligent determination of what you want to do ?
THE DEFENDANT: Yes,- I do, Your llonor.
THE COURT: How do you want to plead to the indictment, guilty or not guilty ?
THE DEFENDANT: Guilty, Your Honor.
THE COURT: Are the facts stated in that indictment true ?
THE DEFENDANT: They are, Your Honor.
[In response to the court’s questions about the facts of the crime, Sherman confessed that he bought the car with a check he knew was bad.]
THE COURT: Did you receive a petition to enter a plea of guilty ?
THE DEFENDANT: I did, your Honor.
THE COURT: Did you read it?
THE DEFENDANT: Yes, I did, sir.
THE COURT: Did you go over it with Mr. Allen?
THE DEFENDANT: I did.
THE COURT: Are the facts stated in the petition true?
THE DEFENDANT: Yes, sir.
THE COURT: How old are you ?
THE DEFENDANT: I am 27, Your Honor.
THE COURT: Mr. Allen, did you go over the facts with him ?
MR. ALLEN: Yes, I did, Your Honor.
THE COURT: Are you satisfied that he is guilty?
MR. ALLEN: lam.
THE COURT: You can sign that petition, if you so desire. Of course, you know if I don’t accept your plea of guilty, you can have a trial before a jury and the Government would have to bring witnesses against you and you would be entitled to witnesses on your own behalf?
THE DEFENDANT: I do, Your Honor.
THE COURT: I will accept the plea of guilty.”

Nothing on the face of the colloquy indicates that Sherman knew that he had any right to remain silent and that he voluntarily chose to yield that right. The majority opinion equates knowledge of a defendant that he has a right not to plead guilty with knowledge of a defendant that he has a right not to testify at all. Proof of knowledge of a right not to plead guilty carries no implication that a person knew about his Fifth Amendment right. For example, could a Miranda warning be given by asking a person in custody if he knew that he did not have to plead guilty if he were charged with the offense about which he was being interrogated?

I agree completely with the majority opinion’s observation that a Rule 11 colloquy need not assume “any predetermined, ritualistic form.” I also agree that no magic words need be incanted to reveal from the colloquy that a defendant knowingly yielded his right not to testify against himself. But, in my view, McCarthy requires that it appear from some language in the colloquy that a defendant knew that he could remain entirely silent and knew that he could not plead guilty unless he confessed to the crime, and that he voluntarily gave up the right and testified against himself. Sherman’s knowledge of two of the rights stressed in McCarthy — the right to a jury trial and the right to confront witnesses — unmistakably appears in the colloquy. The exchange contains nothing about the third' — the right against self-incrimination.

The majority opinion implies that the requirements of Rule 11 can be met by the court’s referring to a petition signed by the defendant. I disagree. Under McCarthy, statements other than those addressed orally to the court cannot be relied upon to cure deficiencies in a Rule 11 interrogation. 394 U.S. at 467, 89 S.Ct. 1166; id. at 477, 89 S.Ct. 1166 (Black, J., concurring). (Compare the Rule 11 hearing invalidated by McCarthy, 394 U.S. at 472-474, 89 S.Ct. 1166, with the colloquy in Sherman’s case.)

Even if I assumed, arguendo, that Rule 11 could be satisfied by incorporating a defendant’s statements in a written petition to the court, the assumption would not save Sherman’s plea because the petition reveals no more about Sherman’s knowledge of his Fifth Amendment privilege than did his colloquy with the court.

I would set aside the plea for failure to comply with Rule 11.

      . Of course, the court must adhere to the requirements of Rule 11. Whether these requirements are essential to due process is by no means clear. See Note, The Supreme Court — 1968 Term, 83 Harv.L. Rev. 60, 183-87 (1969).

      . Sherman told the judge that he had talked sufficiently with his lawyer to be able to make an intelligent determination of what he wanted to do, that no pressure had been put on him, that no promises had been made that the court was going to be lenient with him, and that he wished to plead guilty. The court then discussed the offense with Sherman in detail. Sherman stated that he knew the penalty and what it was. The colloquy then continued as follows :
      “THE COURT: Did you receive a petition to enter a plea of 'guilty?
      THE DEFENDANT: I did, Your Honor.
      THE COURT: Did you read it?
      THE DEFENDANT: Yes, I did, sir.
      THE COURT: Did you go over it with Mr. Allen?
      THE DEFENDANT: I did.
      THE COURT: Are the facts stated in tiie petition true?
      THE DEFENDANT : Yes, sir.
      THE COURT: How old are you?
      THE DEFENDANT: I am 27, Your Honor.
      THE COURT: Mr. Allen, did you go over the facts with him?
      MR. ALLEN: Yes, I did, Your Honor.
      THE COURT : Are you satisfied that he is guilty?
      MR. ALLEN: I am.
      THE COURT: You can sign that petition if you so desire. Of course, you know if I don’t accept your plea of guilty, you can have a trial before a jury and the Government would have to bring witnesses against you and you would be entitled to witnesses on your own behalf?

        THE DEFENDANT: I do, Your Honor.
      T.HE COURT: I will accept the plea of guilty.”
      We find nothing in McCarthy v. United States, supra, or in any other decision, which even hints at the notion that it is not proper for the court, during the Rule II colloquy, to refer to and rely in part on a petition such as the one that Sherman signed, at least where, instead of merely referring to it, the court asks questions about it as the court did in this case.

      . It may well be impossible to ascertain whether the defendant knows that he could get a jury trial and have the opportunity to confront witnesses against him without using those precise words. Ilowever, wo are not faced with that question here. Moreover, we agree with the Supreme Court of California that it is salutary for a trial judge to specifically inform a defendant that he need not plead guilty. See In re Tahl, 1969, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449. We do not agree that this is required by due process, so long as the record makes it clear that the defendant knows that he need not enter the plea.

      . Before McCarthy, we had reached similar results in applying Rule 11. E. g., Heiden v. United States (9th Cir. 1965) 353 F.2d 53; Freeman v. United States (9th Cir. 1965) 350 F.2d 940; Castro v. United States (9th Cir. 1968) 396 F.2d 345.


author: LUMBARD, Circuit Judge:

text:
    Charles A. SCHICKE et al., Appellants, v. George ROMNEY, Secretary of Housing and Urban Development, and City of Norwalk, Appellees.
    No. 283, Docket 72-1849.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 8, 1972.
    Decided Feb. 20, 1973.

      John Keogh, Jr., Norwalk, Conn. (John A. Mottalini and Keogh, Candee & Burkhart, Norwalk, Conn., on the brief), for appellants.

      Anthony J. Steinmeyer, Atty., Dept, of Justice, Washington, D. C. (Harling-ton Wood, Jr., Asst. Atty. Gen., and Walter H. Fleischer, Atty., Washington, D. C., Stewart H. Jones, U. S. Atty., for the D. Conn., on the brief), for appel-lees.
    Before LUMBARD, SMITH and MANSFIELD, Circuit Judges.
   LUMBARD, Circuit Judge:

This is an appeal from an order of the District Court of Connecticut, reported at 346 F.Supp. 417 (D.Conn.1972), granting summary judgment in favor of defendant George Romney, Secretary of Housing and Urban Development (HUD), and the City of Norwalk, and dismissing this suit for declaratory and injunctive relief by 48 residents of the City of Norwalk, Connecticut. Prior to granting summary judgment, Chief Judge Blumenfeld also granted Secretary Romney’s motion for a protective order prohibiting the taking of his deposition by the plaintiffs. Plaintiffs had brought suit seeking á declaratory judgment that the approval by Secretary Romney of the conversion of 43 acres of property, originally acquired by the City of Norwalk as parkland under the Open-Space Land Program of the Housing Act of 1961, as amended, 42 U.S.C. §§ 1500-1500e (1964 ed., Supp. V), to use as the site for the Norwalk Community College was illegal and invalid. They also had sought to enjoin the Secretary from approving the city’s pending application for the conversion of 14 additional acres to be used for the same purpose and to enjoin the city from conveying any portion of the land in question to the state. For the reasons stated below, we reverse and remand to the district court for further proceedings not inconsistent with this opinion.

I

In November 1965 the City of Nor-walk, at a total cost of $1.5 million, acquired for use as a park approximately 196 acres of land, known as the Gallaher Estate, situated partly in the northeastern portion of Norwalk and partly in the adjoining town of Wilton. The federal government, pursuant to the Open-Space Land provisions of the Housing Act of 1961, as amended, reimbursed the City for one-half of the purchase price, or $750,000. Under the Act the Secretary of HUD is authorized to make grants to states and local public bodies of up to 50% of the total cost of acquiring and developing permanent open-space land. The state of Connecticut, under its own open-space program, paid $375,000 or 25%'of the cost, while the City of Nor-walk paid the remaining 25%.

In 1967 Norwalk initiated plans to withdraw 57 acres of this property from open-space designation so that it could be used as the site for the Norwalk Community College. The City wished to substitute 29.9 acres of property, known as the Taylor Farm, located approximately six miles from the Gallaher Estate and adjacent to the Norwalk public beach on Long Island Sound. Section 1500c of the statute permits the conversion of open-space land to other uses with the approval of the Secretary of HUD, if he finds that certain conditions are met. The section specifies that approval shall not be given unless (1) the conversion is “essential to the orderly development and growth of the urban area involved”; (2) the conversion is “in accord with the then applicable comprehensive plan” for the area; (3) “open-space land of at least equal fair market value” is substituted for the converted land; and (4) open-space land of “as nearly as feasible equivalent usefulness and location” is substituted.®

Pursuant to these provisions the Secretary, on November 10, 1969, approved the conversion of 42 acres of the Gallaher property and the substitution of the Taylor Farm. An application to convert 14 additional acres is still pending.

II

The plaintiffs, all of whom own property in close proximity to the Gallaher Estate, started suit on behalf of all residents, property owners, and taxpayers in the northeastern part of the City of Norwalk against the City and the federal government to invalidate the conversion of the Gallaher Estate and the substitution of the Taylor Farm. They contend (1) that Secretary Romney did not personally make the four determinations required by § 1500c before he approved the conversion of the open-space land in question; (2) that he did not consider all relevant factors when making the findings necessary to his decision, including, inter alia, the finding that the conversion was in accord with the Norwalk “comprehensive plan”; and (3) that his decision approving the conversion was arbitrary, capricious, an abuse of discretion, and not in accordance with law. 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). See Schicke v. United States, 346 F.Supp. 417, 419-420 (D.Conn. 1972). They also claim that the Secretary and the City of Norwalk acted in bad faith.

On May 25, 1971, the District Court denied the Secretary’s motion to dismiss the action for lack of jurisdiction over the subject matter and failure to state a claim on which relief can be granted. In light of the Supreme Court’s decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), the court at the same time reserved decision on the Secretary’s motion for summary judgment in order to allow the parties additional time to submit any further material which might be relevant to the consideration of the motion.

On October 7, 1971, Judge Blumenfeld again postponed decision on the federal defendant’s motion for summary judgment because of the apparent incompleteness of the administrative record filed with the court. However, on November 24, 1971, on the basis of the .entire administrative record which was then before him, he denied the motion for summary judgment. He found that the record was not adequate for reviewing the Secretary’s decision because the Secretary had failed to make any formal findings.

On January 24, 1972, the Secretary filed formal findings with the court and renewed the motion for summary judgment. The findings consisted of a “Determination of the Secretary upon Application for Conversion of Open Space Land Pursuant to § 704 of the Housing Act of 1961,” dated January 11, 1972, which stated that the Secretary had made the necessary findings when he originally gave his approval of the conversion more than two years before, and named the portions of the administrative record on which he had relied. On the basis of the Secretary’s motion and supporting evidence the City of Nor-walk, on February 3, 1972, also moved for summary judgment.

In order to oppose the Secretary’s motion, the plaintiffs, on February 3, 1972, filed a notice of deposition of Secretary Romney. Thereafter, the Secretary moved for a protective order prohibiting the taking of his deposition. Although the plaintiffs formally objected to the district court hearing the motion for a protective order and the motions for summary judgment at the same time, the motions were argued together on April 14, 1972. In an opinion, dated May 3, 1972, the district court granted Secretary Romney’s motion for a protective order, granted his motion for summary judgment, and granted the City of Norwalk’s motion for summary judgment.

Subsequently, the plaintiffs made a motion to reargue based on newly discovered evidence. This motion was denied and final judgment was entered dismissing the action on June 14, 1972.

III

Appellants claim on appeal that the district court’s grant of summary judgment cannot stand because the district court should not have granted Secretary Romney’s motion for a protective order. Appellants allege that in denying them the opportunity to depose Secretary Romney, the district court deprived them of the information in the Secretary’s possession that was necessary to oppose effectively the motions for summary judgment. Cf. Subin v. Goldsmith, 224 F.2d 753, 760 (2d Cir. 1955).

Appellants also contend that even on the record as it now stands, the district court was incorrect in granting summary judgment because there already exist several genuine issues of material fact. F.R.Civ.P. 56(c). For example, appellants assert that the Secretary’s “Determination,” dated January 11,1972, leaves unclear whether the Secretary personally made the four required findings. Since the authority to approve conversion of open-space land to other uses had not been delegated, the Secretary was obliged personally to approve this conversion. See 31 Fed.Reg. 7358 (1966). Appellants urge that a letter, dated December 2, 1969, sent to a member of the family of one of the plaintiffs by Harrison Knapp, Director of the Community Relations Division of the Department of Housing and Urban Development, contains the implication that the Secretary did not make the findings himself.

Appellants further contend that, considering the administrative record and the Secretary’s formal findings, there are genuine issues of material fact about whether the Secretary made each of the four required findings on the basis of all of the relevant factors. Appellants assert (1) that the Secretary, in reaching his conclusion that the proposed conversion was “essential to the orderly development and growth of the urban area involved,” may have relied on a non-existent State of Connecticut requirement that Community Colleges must have a campus of at least 100 acres; (2) that the Secretary had no way in which to verify that the conversion was “in accord with the then applicable comprehensive plan,” since Nor-walk’s comprehensive plan was not included in the administrative record; (3) that the Secretary could not make an accurate finding that the substituted open-space land was of equivalent fair market value on the basis of the HUD appraisals, because they were “confusing” and “inconclusive”; and (4) that, in making his finding that the substituted land would be “of as nearly as feasible equivalent usefulness and location,” the Secretary relied to too great an extent on the representations of local officials.

Finally, appellants argue that there is a factual issue about whether the defendants were acting in bad faith in the administrative proceedings. The basis for this claim is that there is some indication in the administrative record that, at the time of the original acquisition of the Gallaher Estate under the Open-Space Program, the City already intended to use part of the property for the site of a community college and that the Commissioner of the Urban Renewal Administration (predecessor of the Secretary of Housing and Urban Development) was aware of this plan.

IV

In Citizens to Preserve Overton Park v. Volpe, supra, the Supreme Court dealt at length with the standard of judicial review of informal agency action. The Supreme Court stated that the proper standard of review is determined by § 706 of the Administrative Procedure Act, 5 U.S.C. § 706 (1964 ed., Supp. V), and that since neither the substantial evidence test nor de novo review is authorized, a reviewing court is limited to setting aside informal agency-action that does not comply with constitutional, statutory, or procedural requirements or is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citizens to Preserve Overton Park v. Volpe, supra,, 401 U.S. at 414, 91 S.Ct. at 822. See 5 U.S.C. §§ 706(2) (A), (B), (C), (D) (1964 ed., Supp. V). In applying this standard the court must conduct a substantial inquiry, “a thorough, probing, in-depth review” of the administrative action, Citizens to Preserve Overton Park v. Volpe, supra at 415, 91 S.Ct. at 823, and to do so, it must have before it the full administrative record which was before the agency and on which the agency determination was based. Id. at 419, 91 S.Ct. 814.

We find that in one important respect the Secretary’s decision to approve the conversion of the Gallaher Estate was deficient and, therefore, that the judgment of the district court must be reversed. The administrative record in this ease fails to show that the Secretary has followed the mandate of the statute in certifying that the conversion-substitution involved here was consistent with any comprehensive plan which the City might have had.

The Open-Space Land Program was enacted to help preserve open-space land in the vicinity of urban areas and to encourage local governmental bodies to plan for the most efficient use of this increasingly scarce resource. “[Adequate comprehensive area planning is an essential feature of the [open-space] program.” See 1961 U.S. Code Cong. & Admin.News, p. 1973. According to the Congressional declaration of findings and purpose, there is a pressing need for “better coordinated local efforts to beautify and improve open space and other public land throughout urban areas to facilitate their increased use and enjoyment by the Nation’s urban population.” 42 U.S.C. § 1500(b) (1964 ed., Supp. V). It is apparent, therefore, that the statute is intended to assure that state and local governments formulate complete and effective programs to guarantee the satisfactory preservation and full utilization of park and recreational land in and near our metropolitan areas.

To implement this policy the statute specifies that before the Secretary may enter into contracts to make grants under § 1500a, he must first find “that such assistance is needed for carrying out a unified or officially coordinated program, meeting criteria established by him, for the provision and development of open-space land as part of the comprehensively planned development of the urban area.” 42 U.S.C. § 1500b(a) (1964 ed., Supp. V). According to the Senate report on the proposed measure, what § 1500a envisions is “not just . the preparation of comprehensive plans for long-range development, but also . . . such matters as the scheduling of public facilities construction, the provision of appropriate land-use regulations, and the coordination of development activities proposed by different jurisdictions within the urban area.” See 1961 U.S. Code Cong. & Admin.News, p. 1974. Before federal funds are expended to acquire open-space land, the Secretary must “assure” himself “that local governing bodies are preserving a maximum of open-space land, with a minimum of cost, through the use of existing public land; the use of special tax, zoning, and subdivision provisions; and the continuation of appropriate private use of open-space land through acquisition and leaseback, the acquisition of restrictive easements, and other available means.” 42 U.S.C. § 1500b(b) (1964 ed., Supp. V).

Recognizing that changing patterns of development in urban areas may demonstrate that open-space land acquired with federal funds might better be used for other public purposes, the statute in § 1500c provides for conversion of open-space land to other uses with the approval of the Secretary. However, a substantial risk exists that communities that are confronted with the need for new public facilities will wish to utilize existing open-space land as a cheaper alternative to undergoing the high cost of acquiring private land. See 1961 U.S. Code Cong. & Admin.News, p. 1975. To prevent undermining the goals of the open-space program in this way, § 1500c requires that the Secretary first make a series of determinations before giving his approval — including a finding that the conversion is “in accord with the then applicable comprehensive plan” for the land. See 42 U.S.C. § 1500c (1964 ed., Supp. Y).

This requirement assures that the important statutory policy of promoting local planning efforts as a means of fostering the orderly development of urban areas and the effective utilization of existing and to-be-acquired open-space land will continue to be carried out. Accordingly, the Secretary must conduct a review of local planning efforts before making the finding that the conversion is in accord with the local comprehensive plan. The Secretary or members of his department must make a detailed study of the same items that the Secretary is intended to consider under § 1500b when making an initial grant to acquire open-space land. At the very least, such an examination requires that the Secretary or members of his department have inspected, and be thoroughly familiar' with, the contents of whatever documents comprise the locality’s comprehensive plan.

The “Determination” submitted to the district court contains the Secretary’s findings pursuant to § 1500c of the Act. The Secretary states in the “Determination” that “The proposed conversion was in accord with the applicable comprehensive plan for the area.” (Italics in original.) The Secretary further states that in making this finding he relied on three items in the record. The first item is a letter, dated January 22, 1968, from Norwalk Mayor Frank Zullo to William Davis, Acting Assistant Regional Administrator for Metropolitan Development of HUD. This letter contains a statement by Mayor Zullo that “Both the Gallaher and Taylor lands are reserved for open space in our city’s comprehensive plan,” and a reference to the fact that “the location of the college next to the Gallaher park will thus be in accord with our Master Plan of Parks.”

The Secretary also relied on a memorandum, dated January 6, 1969, from Mr. Frank Batstone, Acting Director of Planning, to Mr. William Davis. This one-page memorandum states that the regional office has “considered the relevant development proposals incorporated in Norwalk’s comprehensive development plan and open-space acquisition plan and program” and concludes that “the conversion is in accord with the development policies which are part of the City’s Comprehensive Plan.” The final item referred to in the Secretary’s “Determination” is a letter, dated June 4, 1969, from Mr. Richard Carpenter, Planning Director of the South Western Regional Planning Agency to Mayor Zullo. This letter contains a resolution of the South Western Regional Planning Agency endorsing the proposed conversion-substitution because, among other reasons, the exchange will not impair the City of Norwalk or the regional open-space programs.

It is readily apparent that there is no evidence in the administrative record that the Secretary or his subordinates have ever known what the Norwalk comprehensive plan was composed of or have ever conducted their own independent examination of it. Obviously, the two letters from local officials — Mayor Zullo and Mr. Carpenter — do not satisfy the Secretary’s obligation. It may be that if HUD were in possession of the relevant documents and someone in the Department had become acquainted with their contents, the assistance of local officials might be of some help in interpreting them; but the bare, unsupported conclusions of local officials do not fulfill the statutory obligation of HUD and the Secretary to ascertain that there is in fact a plan or plans which may fairly be considered as a “comprehensive plan” as that term is meant in the governing statute.

In his “Determination” the Secretary also says that he relied on the letter from Mr. Frank Batstone to Mr. William Davis in which Mr. Batstone states that the regional office has “considered” Norwalk’s “relevant” development proposals and has decided that the conversion is “in accord” with them. However, this letter, like the other two, contains no explanation of the nature or content of the Norwalk comprehensive plan. The letter is a brief, one-page statement of the regional office’s conclusions and contains no report of the facts which were relied upon, the factors which were considered, or the reasoning on which the conclusions were based. Thus, the letter leaves in doubt whether the regional staff itself ever saw anything in the nature of a comprehensive plan or whether they merely relied on statements by local officials. Furthermore, the remainder of the administrative record is silent on this matter. Nowhere in the documents submitted to the district court is there a copy of any comprehensive plan, a statement of what the plan contains, or a reference to where it is to be found.

At oral argument we asked counsel for appellees what the plan consisted of and they were unable to inform us. It was only in a supplemental memorandum submitted by the City of Norwalk, dated December 12, 1972, that the first faint glimmer of light was shed on this matter. It appears that a single comprehensive plan for Norwalk does not exist, but that there are a series of master plans, such as the Master Plan of Parks, of Schools, of Transportation, as well as subdivision regulations and zoning regulations. Thus there is some question about whether these documents constitute a “comprehensive plan” which meets the statutory criteria. Of course, without the plan itself and the Secretary’s detailed findings with respect to it, this court is in no position to decide this issue.

None of plaintiffs’ other contentions are persuasive. Plaintiffs claim that the Secretary did not personally make all of the findings required by § 1500c. However, the Secretary has stated that he did make the required determinations before giving his approval of the conversion request, and he has set out in his “Determination” the portions of the administrative record on which he relied. Except for the finding regarding the local comprehensive plan, plaintiffs have adduced no credible evidence to indicate that he did not do so and, therefore, the district court’s finding that there is no genuine issue of fact as to this matter must stand.

We also find that plaintiffs have raised no genuine question about the merits of the three findings that do not concern the local comprehensive plan. For example, the Secretary’s finding that the land which was to be substituted for the converted open-space land had an equivalent fair market value has ample support. The administrative record contains four appraisals from which, upon analysis, HUD officials concluded that the two parcels had an equal fair market value. Contrary to plaintiffs' contentions, there is nothing “confusing” or “inconclusive” about any of these appraisals.

Similarly, the findings that the proposed conversion was “essential to the orderly development and growth of the urban area” and that the substituted land was “of as nearly as feasible equivalent usefulness and location” are supported by the record. Plaintiffs have offered no convincing arguments against, nor do we perceive any objections to, the Secretary’s conclusion that Norwalk’s desire to improve its local community college — the first in the state —-by moving it from its temporary quarters to a permanent facility with a campus of its own is consistent with the orderly development and growth of the area. The substitution of the Taylor Farm, which is closer to the low income and minority group population of Nor-walk, has the additional benefit that it will apparently enhance the recreational opportunities available to these groups. Thus, the plaintiffs’ suggestion that the Secretary may have relied on a mistaken representation that Connecticut law requires all community college campuses to be at least 100 acres does not raise any serious question in our minds in light of the other substantial reasons for the Secretary’s approval.

The fact that Taylor Farm is located near Long Island Sound and closer to the more populated areas of Norwalk so that it will enhance the recreational opportunities for low-income and minority groups also strongly supports the finding that the substituted land is of equivalent usefulness and location to the Gal-laher property. In addition, it must be remembered that since only a portion of the Gallaher property is being converted, a large part of the open-space potential of that property remains unimpaired. Although appellants object that local proponents of the proposed conversion have stressed these same considerations, this fact does not detract from the Secretary’s conclusion, which was based on the independent analysis of these factors by HUD officials. See memorandum from Mr. William Davis to Mr. Arthur Davis (June 27, 1969).

We conclude, therefore, that the Secretary’s findings on these three matters are supported by the record and that the district court properly ruled with regard to them that the Secretary’s conclusions did not constitute a clear error in judgment and that plaintiffs have not raised any genuine disputes about material facts. We also agree, for the reasons stated in the district court opinion, that the facts alleged by the plaintiffs concerning any prior knowledge of government officials at the time the property was first acquired by the city of the plan to construct Norwalk Community College on a portion of the Gallaher site do not present a triable issue of whether the defendants were acting in bad faith in the administrative proceedings. We note, in addition, that there would not appear to be any impropriety in an initial grant of federal funds to acquire open-space land meeting the statutory requirements when certain government officials know that the locality may one day seek to convert a portion of the land in question to use as the site for a community college, if as here such a conversion proposal must first be submitted to the proper administrative authority for review on the merits for compliance with the relevant statutory conversion criteria, including the requirement of substitution of open-space land “of as nearly as feasible equivalent usefulness and • location.” Possibilities of this nature necessarily are frequently discussed and considered; that this is so is no evidence of bad faith.

Since the Secretary’s finding that the proposed conversion is consistent with local comprehensive planning is without support in the record, we reverse the judgment of the district court with regard to both defendants and remand the case for further proceedings. On remand, the district court must determine whether the Secretary has complied with the statutory mandate of § 1500c with respect to the local comprehensive plan. In this connection it may be that the district court should allow plaintiffs the opportunity to pursue all reasonable means of discovery including the taking of depositions. However, we cannot delineate the precise limits of proper discovery on remand. We leave this to the district judge’s discretion, noting only that we see no objection to plaintiffs’ deposing the Secretary if that should be necessary to a determination of whether the Secretary obeyed the statutory mandate concerning the comprehensive plan. In any event, there must be full inquiry to ascertain the basis of the Secretary’s action with reference to any comprehensive plan.

We note, however, that even if the district court concludes that the Secretary failed to follow the mandate of § 1500c in making a determination of the conversion’s consistency with the comprehensive plan, both the Secretary and the City of Norwalk may still desire to proceed with the conversion-substitution at issue here. Should this be the case, the district court may, in its discretion, permit the current Secretary the opportunity, if he so desires, to make a new determination of the question based on a proper analysis of the plan.

Reversed and remanded for further proceedings not inconsistent with this opinion.

      . Originally, the only federal defendant named in the suit was the United States government, but on November 0, 1970, the district court granted plaintiffs’ motion to join Secretary Romney as a defendant. The United States was subsequently dropped as a defendant. See Memorandum of Decision, dated May 25, 1971.

      . The amended complaint also named the State of Connecticut as a defendant and raised additional claims against the City of Norwalk. See footnote 9 infra. In a Memorandum of Decision, dated May 25, 1971, the district court granted the state’s motion to dismiss and limited the claims against the City of Norwalk to those arising under the federal statutes. See footnote 9 infra. Plaintiffs have not appealed from this order.

      . 42 U.S.C. § 1500a(a) (1904 ed., Supp. Y) provides:
      (a) In order to encourage and assist in the timely acquisition and development of land to be used as permanent open-space land, as defined herein, the Secretary of Housing and Urban Development ... is authorized to enter into contracts to make grants to States and local public bodies to help finance the acquisition of title to, or other permanent interests in, such land, and the development, for open-space uses, of land acquired under this chapter. Tbe amount of any such grant shall not exceed 50 per centum of the total cost, as approved by the Secretary, of such acquisition and development.

      . The campus was to consist of 57 acres from the Gallaher Estate and 25 acres from the adjacent Cranbury Elementary School.

      . § 1500c. Conversions to other uses.
      No open-space land for the acquisition of which a grant has been made under this chapter shall, without the approval of the Secretary, be converted to uses other than those originally approved by him. The Secretary shall approve no conversion of land from open-space use unless lie finds that such conversion is essential to the orderly development and growth of the urban area involved and is in accord with the then applicable comprehensive plan, meeting criteria established by him. The Secretary shall approve any such conversion only upon such conditions as he deems necessary to assure the substitution of other open-space land of at least equal fair market value and of as nearly as feasible equivalent usefulness and location.

      . As amended in 1970, the statute now provides :
      No open-space land for the acquisition of which a grant has been made under section 1500a of this title shall be converted to uses not originally approved by the Secretary without his prior approval. Prior approval will be granted only upon satisfactory compliance with regulations established by the Secretary. Such regulations shall require findings that (1) there is adequate assurance of the substitution of other open-space land of as nearly as feasible equivalent usefulness, location, and • fair market value at the time of the conversion; (2) the conversion and substitution are needed for orderly growth and develop- ' ment; and (3) the proposed uses of the converted and substituted land are in accord with the then applicable comprehensive plan for the urban area, meeting criteria established by the Secretary.

      . Although the City of Norwalk initially requested that the Taylor Farm be substituted for 57 acres of the Gallaher property, it subsequently agreed to scale down the requested conversion to 43 acres of the Gallaher Estate. Other property was then found to substitute for the 14 additional acres.

      . All of the plaintiffs allege that they will suffer direct monetary loss ranging from $6,000 to approximately $15,000 from the proposed conversion because of the reduction in property values in the area. All but one of them allege damages in excess of $10,000.

      . The amended complaint also named the State of Connecticut as a defendant and asserted that the state’s approval of the proposed conversion was in violation of section 7-131Í of the Connecticut General Statutes. The complaint further alleged that approval of the conversion by the City was violative of section 1-1.89 of the Norwalk City Charter. By way of additional relief, the complaint sought a declaratory judgment that the state and the city acted illegally and invalidly in approving the conversion, that the city acted illegally and invalidly in offering the land to the state, and that the state acted improperly in agreeing to purchase the property. They also sought to enjoin the State of Connecticut from purchasing the land and constructing a community college thereon. However, in its Memorandum of Decision, dated May 25, 1971, the district court granted Connecticut’s motion to dismiss for lack of a federal question upon which to sustain jurisdiction and limited the plaintiffs’ claims against Norwalk to those arising under the federal statute. The plaintiffs have not appealed from this order.

      . See footnote 11 infra.

      . It was this letter which formed the basis for the motion to reargue filed May 8, 1972. See footnote 14 infra.

      . 5 U.S.C. § 706 (1904 ed., Supp. V) provides:
      Scope of review
      To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall—
      (1) compel agency action unlawfully withheld or unreasonably delayed; and
      (2) hold unlawful and set aside agency action, findings, and conclusions found to be—
      (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
      (B) contrary to constitutional right, power, privilege, or immunity;
      (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
      (D) without observance of procedure required by law;
      (E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
      (F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
      In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

      . The letter also contains the following-comments by Mayor Zullo:
      “I cannot emphasize too strongly that in a city such as ours, with a low and raxxidly diminishing amount of vacant land, you buy the land when and where it is available, not always according to the dictates of an ideal xxlan sometimes incapable of realization. You buy the amount available if you can afford it, and then you try to fit it into a reasonable scheme for community benefit. Sometimes the scheme should be altered, as circumstances and resources change. That is what has been done in this case . . . . ”

      . Plaintiffs allege that the following- letter from Harrison Knapp, Director of the Community Relations Division of HUD, to one of the plaintiffs, which formed the basis for the motion to rear-gue, implies that the Secretary did not make the necessary findings:
      Dear Mr. Konstantin:
      Secretary Romney has asked me to respond to your letter of November 19. Although I appreciate your concern about the location of the Community College, the Department of Housing and Urban Development did not make the decision. It was a local decision by the officials of Norwalk. I think you should go down to the Norwalk Redevelopment Agency and let Mr. Jay Van Coevering know how you feel about this matter. He is the Redevelopment Administrator of the Norwalk Rede- - velopment Agency located at 141 East Avenue.
      Good luck to you!
      Sincerely,
      /s/ HARRISON KNAPP
      Harrison Knapp
      Director
      Community Relations Division
      As Chief Judge Blumenfeld found, this letter has no bearing on whether the Secretary personally made the required findings, since the letter is clearly referring to the initial site selection, which is a purely local matter, and not the ultimate federal government approval.


author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Jerry Lee HOLLIDAY, Appellant.
    No. 72-1603.
    United States Court of Appeals, Tenth Circuit.
    Submitted Jan. 9, 1973.
    Decided Feb. 27, 1973.
    Joe Boatman, Muskogee, Okl., on the brief, for appellant.
    Richard A. Pyle, U. S. Atty., and Robert D. McDonald, Asst. U. S. Atty., on the brief, for appellee,
    Before SETH, HOLLOWAY and DOYLE, Circuit Judges.
   SETH, Circuit Judge.

Defendant appeals from a judgment of conviction entered on a jury verdict for possession of non-tax-paid distilled spirits in violation of 26 U.S.C. §§ 5205(a)(2) and 5604(a)(1).

• Defendant raises two issues on appeal. The first concerns the validity of a search warrant, the execution of which resulted in the seizure of evidence used against him at trial. The second issue concerns the voluntariness of an oral confession made by defendant at the scene of the arrest.

On January 31, 1972, the search warrant in dispute was executed at the residence of the defendant and his wife. The search resulted in the discovery and seizure of forty-two gallons of non-tax-paid whiskey. Prior to trial, the defendant moved to have this evidence suppressed on the grounds that the affidavit underlying the search warrant was insufficient to support a finding of probable cause. The motion to suppress was denied and the evidence was introduced at trial.

The affidavit reads:
“On Friday, January 28, 1972, I received information from a confidential informant whom I believe and had been reliable in the past, that Jerry Holiday [sic] had an illicit distillery behind his residence at Counts, Oklahoma, and was a distributor of non-taxpaid distilled spirits at the residence. Jerry Holiday has a record and reputation with Alcohol, Tobacco and Firearms Investigators for being a violator of the internal revenue liquor laws. On Saturday, January 29, 1972, I received information from the same informant that a blue 1969 Ford pickup truck, Arizona license plate No. 6734, with a wood tool box in the back had picked up a load of nontax-paid distilled spirits at the Jerry Holiday residence at Counts, Oklahoma, during the night of Friday, January 28, 1972, enroute to Oklahoma City. On Sunday, January 30, 1972, I received information from Special Investigator James Wheeler of the Oklahoma City Branch Office that the [sic] and other investigators had arrested Walter Gordon and seized a load of nontaxpaid distilled spirits which was contained in the above-described truck in Oklahoma City during the night of Saturday, January 29, 1972.”

Defendant contends that the affidavit was insufficient because (1) it did not reveal the underlying circumstances under which the informant obtained his information ; (2) it did not state the time or date on which the informant received the information, and (3) the affiant’s knowledge of defendant’s reputation, by itself, is insufficient to support a finding of probable cause.

At the outset, it is apparent that affidavits for search warrants must be tested in a common sense and realistic manner, and warrants issued thereon should not be interpreted hyperteehnically. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); United States v. Berry, 423 F.2d 142 (10th Cir.). Nevertheless, the Fourth Amendment requires that the facts as set forth in the underlying affidavit be sufficient to allow a neutral magistrate to reasonably conclude that probable cause for the search exists.

The essential information in the present affidavit was obtained by the affiant through an unidentified informant. The rules to be followed in testing the validity of such information were announced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964):

“Although an affidavit may be based on hearsay information and need not reflect direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, . . . was ‘credible’ or his information ‘reliable.’

Defendant properly concedes that the affidavit is sufficient to establish that the informant was “credible.” However, defendant contends that the affidavit reveals no underlying circumstances from which to conclude that the informant’s information in this case is accurate.

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), is relied upon by defendant for the proposition that an affidavit is insufficient if it does not state how the informant received his information, i. e., whether by personal observation or by some other person. This reliance is misplaced. Neither the Supreme Court’s opinion in Spinelli nor the Constitution make this information an absolute requirement for a valid affidavit,

“ . . . In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he 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.” Spinelli, supra, at 416, 89 S.Ct. at 589.

As an example, the Court alluded to its prior opinion in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), in which the informant had not revealed the way in which he had obtained his information but did supply such detailed facts that, when corroborated, they amounted to probable cause. Likewise, in the instant case, although the informant did not state the manner in which he had received his information, the information was of such detail that when it was corroborated by the affiant on the following day, probable cause had been established. Therefore, the affidavit executed after this corroboration had occurred was not vitiated by the informant’s failure to disclose the source of his information.

Defendant next contends that the affidavit is insufficient because it does not state when the informant received his information. Without this information, he argues, there is no way to determine whether or not the facts in the affidavit are too stale to support the warrant. Certainly, “ . . . the element of time is crucial to the concept of probable cause.” United States v. Johnson, 461 F.2d 285 (10th Cir.). Under some circumstances, the absence of the date on which the informant received his information would be fatal to the warrant. Roseneranz v. United States, 356 F.2d 310 (1st Cir.); United States v. Boyd, 422 F.2d 791 (6th Cir.). See also Spinelli v. United States, 382 F.2d 871 (8th Cir.), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

We agree that the date on the affidavit, standing by itself, does not justify the inference that the information contained therein was received near that date. Where, however, the undated information is factually interrelated with other, dated information in the affidavit, then the inference that the events took place in close proximity to the dates actually given may be permissible. United States v. Bridges, 419 F.2d 963 (8th Cir.); Dixon v. State of Florida, 403 F.2d 49 (5th Cir.). In this case, the informant told the affiant on January 29, 1972, that the specifically described vehicle containing a load of illicit whiskey was en route to Oklahoma City. The next day, January 30, the affiant learned from another federal agent that the vehicle described by the informant had been stopped in Oklahoma City on the previous night, thus bearing out the accuracy of informant’s story. On Monday, January 31, 1972, the search warrant was issued and executed. Under these circumstances, it is clear that the magistrate was entitled to assume that the informant’s information was fresh enough to meet probable cause standards. Therefore, the failure to include in the affidavit the date on which the informant received his information did not, on this set of facts, vitiate the warrant.

Since we have concluded that probable cause for the warrant existed independent of affiant’s knowledge of the defendant’s reputation, defendant’s final point of error relating to the search warrant need not be considered.

Secondly, defendant contends that his oral confession made at the scene of his arrest was involuntary and, thus, inadmissible at his trial. However, defendant never objected to the admissibility of the confession, either at the motion to suppress or at the trial itself. Therefore, review by this court is precluded unless the result was a plain error which resulted in manifest injustice. United States v. Sluder, 457 F.2d 708 (10th Cir.). The admission of the confession was not erroneous. United States v. Tafoya, 459 F.2d 424 (10th Cir.); United States v. Adams, 470 F.2d 249 (10th Cir.).

The judgment of conviction is affirmed.


author: BATTIN, District Judge: DUNIWAY, Circuit Judge

text:
    Clifford August THOMPSON, Jr., Defendant-Appellant. v. UNITED STATES of America, Plaintiff-Respondent.
    No. 71-2939.
    United States Court of Appeals, Ninth Circuit.
    Feb. 7, 1973.
    Duniway, Circuit Judge, dissented in statement.

      William L. Hanson (argued), Seattle, Wash., for defendant-appellant.
    Charles F. Mansfield, Asst. U. S. Atty. (argued), Thomas P. Giere, Susan Barnes, Asst. U. S. Attys., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-respondent.
    Before TRASK and DUNIWAY, Circuit Judges, and BATTIN, District Judge.

       Honorable James F. Pattin, United States District Judge, District of Montana, sitting by designation.

   BATTIN, District Judge:

Thompson appeals the lower court’s finding that he violated the Military Selective Service Act of 1967 by failing to accept induction into the Armed Forces of the United States. Thompson contends that he was improperly denied a conscientious objector classification by his local board and therefore that his conviction should be reversed. Three interdependent questions are presented on appeal: (1) Whether the appellant raised the defense of improper denial of conscientious objector status; (2) if so, whether he presented a prima facie case for that classification to his local board; and (3), if so, whether the local board had a basis in fact for its denial of the classification.

The court finds that, although appellant properly raised the defense and in fact presented a prima facie case for conscientious objector classification, the local board had a basis in fact for denying the classification, and thus affirms Thompson’s conviction.

Thompson registered with the Selective Service early in 1966. He did not then claim to be a conscientious objector. Through August 20, 1970, he was typically classified by the System as “II-S” — a deferred student. On August 13, 1970, one week before the expiration of his II-S deferment, Thompson took the first step in applying for Conscientious Objector status by requesting a Form 150. The form was returned on September 15, 1970.

On September 23, 1970, the local board granted a courtesy interview with Thompson, after which they denied him conscientious objector status on the ground that his

“. . . position of conscientious objector is very recently arrived at, and we conclude that his beliefs are not deeply held, but merely express a desire to avoid military service.”

The first question denominated presents no obstacle to decision. The defense was raised in appellant’s motion to dismiss the indictment and runs true through the trial. Having exhausted his administrative remedies, the appellant could and did properly raise the defense of improper denial of conscientious objector status. That defense, if established, precludes conviction under the section Thompson is charged with violating.

Appellate examination of the failure of the defense of improper denial of a draft classification is often said to involve the narrowest of reviews. We must examine the record properly before the local board to determine whether rejection of the registrant’s claim was justified. Such rejection can be validly based upon either of two criteria: that the registrant failed to present a prima facie case for the classification or that there existed a “basis in fact” which allowed the board to disbelieve the claim of the registrant. Whether a prima facie case was established, and, alternatively,. whether there was a basis in fact for its rejection, are questions of law. If a prima facie ease is established, the board, to legally deny the classification, must state a “basis in fact”, which is discernable from the records and information properly before it.

In this regard, a prima facie case is one which paints the applicant as a person whose convictions, based upon religious training and belief, including all sincere religious beliefs, substantially rests upon a belief in a Power or Being or a faith to which all is subordinate or upon which all else is totally dependent and which requires him to oppose war in all forms. These convictions can be “spurred by deeply held moral, ethical, or religious beliefs, . . .” but may not be political, sociological or philosophical, and they need not be “religious” in an orthodox or parochial sense. If the applicant depicts himself to the local board as having the requisite beliefs, he is entitled to the classification unless there exists some basis in fact upon the strength of which the board denies the classification.

Examination of Thompson’s file leads us to conclude that he was properly denied conscientious objector status. The local board concluded that the registrant was not sincere in his beliefs and the court below agreed with that conclusion. That conclusion presupposes that the beliefs proffered by Thompson prima facie qualify him for the statutory exemption. In view of the course we follow, we will accept, arguendo, the board’s conclusion without further examination.

That leaves for determination the question of whether a basis in fact can be gleaned from the record which was before the board and which justifies their rejection of Thompson’s claim. Although this court is not to act as a “super draft board”, it is nonetheless our task “in cases such as this is to search the record for some affirmative evidence to support the local board’s overt or implicit finding that a registrant has not painted a complete or accurate picture of his activities.” There must be some affirmative evidence properly before the board which substantially blurs the picture the registrant has painted and thus casts doubt on his sincerity. Although some circuits require the local board to briefly summarize those facts which result in a conclusion that the registrant is insincere, we have not yet required delineation of the bases of their conclusions. The local board here has satisfied the requirements we established in Haughton and followed in Cordero regarding the cause of rejection.

Our very narrow role here is to determine whether the board could infer insincerity from the evidence before it. “. . . [T]he board’s action is entitled to the support of any inference of sham or insincerity on the part of the registrant . . .” from which the conclusion could be drawn.

“The ‘basis in fact’ which will support the board’s decision means more than suspicion and speculation, Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953), but it need not rise to the level of substantial evidence. Maynard v. United States, 409 F.2d 505, 506 (9th Cir. 1969). All that is required, where the registrant has made out a prima facie case for exemption, is that ‘there be some proof that is incompatible with the registrant’s proof of exemption.’ [Citations omitted.]”

We find several indications of insincerity in the record upon which the board could have acted. The timing of the claim and certain inconsistencies in its assertion provide support for the inferences of insincerity drawn by the board. Acts or statements inconsistent with the claim can form a basis in fact for rejection of the claim.

Moreover, both the local board and the trial court before whom Thompson appeared concluded that his claim was not sincerely asserted. Those conclusions weigh heavily here and undoubtedly rest on the inconsistency and untimeliness of the claimed beliefs.

The timing of the appellant’s claim for exemption has been pointed to by the government as justifying the denial by the local board. The timing of the claim for exémption, although a factor which the board may consider, is not alone sufficient to justify a conclusion of insincerity. Lateness is a factor, when considered with other relevant fae-tors, which may justify a conclusion of insincerity.

Inconsistencies in the presentation of Thompson’s claim also support the board’s finding of insincerity. Here, while claiming “late crystalization”, Thompson also professes to have been a conscientious objector all his life. The file reflects that three of his protagonists thought him a conscientious objector since high school days, and, although those are not his comments, they are reinforcement of his statement that he had been a conscientious objector all of his life. Having so long held these beliefs, Thompson waited until he was on the threshold of induction to express them to the local board. It is not that there was absent an opportunity to do so. He could have expressed them when he registered with the System in 1966. During the passage of more than four years between registering and asserting the claim, on numerous occasions Thompson corresponded with his local board concerning various matters. None of these letters indicated that he believed himself qualified for conscientious objector status. While we cannot and do not suppose he had a duty to so notify the board while he was classified II-S, several occasions passed during his sporadic educational endeavors when that classification was about to lapse and which presented him with an opportunity to assert to the board the beliefs which he argues qualify him for exemption and which he says he has held all of his life.

Doubt of Thompson’s sincerity is not without foundation in either the timing of his claim nor in his statements to and before the local board. The inconsistency in and timing of his claim are more than sufficient to persuade the board and later the trier of fact that his beliefs were not sincere.

The arguments put forth by appellant concerning the conduct of the board are unavailing. Our review of the record fails to reflect that the procedures employed were in any manner irregular, arbitrary or capricious.

After long and thoughtful deliberation of this case, we must agree with lower court that there is a basis in fact for the rejection of Thompson’s claim and thus affirm his conviction.

DUNIWAY, Circuit Judge

(dissenting) :

I dissent. I am unable to distinguish this case from United States v. Andersen, 9 Cir., 1971, 447 F.2d 1063. I would reverse on the authority of that case.

      . 50 U.S.C.App. § 451 et seq.

      . Appellant’s selective service file [admitted into evidence at the trial], noted as Government’s Exhibit “One”, at page 94. This page is a copy of the record by the board of the courtesy interview conducted September 23, 1970. [Hereinafter cited as “E.l”.]

      . McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971).

      . McGee, supra note 3; McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); Salamy v. United States, 379 F.2d 838 (10th Cir. 1967); Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

      . United States v. Haughton, 413 F.2d 736 (9th Cir. 1969); Kessler v. United States, 406 F.2d 151 (5th Cir. 1969), respectively.

      . Witmer, supra note 4.

      . United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965).

      . United States v. Welsh, 398 U.S. 333, 344, 90 S.Ct. 1792, 1798, 26 L.Ed.2d 308 (1970), Seeger, supra note 7 at 380 U.S. 165, 85 S.Ct. 850, 13 L.Ed.2d 733.

      . The conclusion of the board hereinbefore set out does not reject Thompson’s claim as failing to bring him within the statutory criteria. The board’s rejection presupposes that a prima faoie case was established.

      . Transcript of proceedings, p. 68, line 15.

      . Witmer, supra note 4.

      . Dickinson v. United States, 346 U.S. 389, 396, 74 S.Ct. 152, 157, 98 L.Ed. 132 (1953).

      . Batterton v. United States, 260 F.2d 233 (8th Cir. 1958).

      . There are circuits which require a written explanation of the basis in fact where exemption is denied on the grounds of sincerity :
      “It would . . . appear to be desirable practice that the board, if it is denying the status claimed because of its belief in the lack of sincerity in the applicant, should state that fact and at least briefly summarize in the record those facts, whether they be inconsistencies in action or written statements, shifty or evasive demeanor, appearance of unreliability, lateness of claim or any other factors reasonably causing the board to reach its conclusion.” United States ex rel. Hemes v. McNulty, 432 F.2d 1182, 1187 (7th Cir. 1970); United States v. Rutherford, 437 F.2d 182, 184 (8th Cir. 1971); Rothfuss v. Resor, 443 F.2d 554, 559, f.n. 8 (5th Cir. 1971); United States v. Stetter, 445 F.2d 472, 482 (5th Cir. 1971); United States v. Andrews, 446 F.2d 1086, 1087 (10th Cir. 1971).
      We cannot help but endorse that plan for, while it may require board members to express comment on the character of the sons of their neighbors, it is not particularly burdensome to the board and alleviates the doubts which an appellate or district court feels upon an examination of an otherwise blank record. Such doubts lead to extenuated litigation and preclude meaningful review, for, as was held in Sicurella v. United States, 348 U.S. 385, 392, 75 S.Ct. 403, 99 L.Ed. 436 (1955), if the basis of the board’s denial is not clear, then a court cannot act to affirm. See also Haughton, supra note 5.
      Although we here have gone a step further by endorsing our sister circuit’s suggestion that the record reflect the basis of a finding of insincerity, that does not dispose of this case. We do not request formal findings of fact, a notion already rejected in United States v. Willson, 452 F.2d 529, 532 (9th Cir. 1971), we merely suggest that local boards point out the circumstances leading to their conclusion regarding insincerity. This is not a new suggestion, United States v. Mount, 438 F.2d 1072 (9th Cir. 1970), and seems to be one which flows naturally from the holding in Haughton, supra note 5. We are unwilling to reverse the conviction in this case merely because we are forced to examine the whole record which was before the local board. Where, as here, there are recorded statements by the board of its conclusions regarding the sincerity of the registrant which are otherwise supportable on the record, the case is susceptible to decision. See United States v. Kember, 437 F.2d 534, 536 (9th Cir. 1971), cert. den., 402 U.S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662.

      . United States v. Haughton, 413 F.2d 736 (9th Cir. 1969).

      . United States v. Cordero, 439 F.2d 716 (9th Cir. 1971).

      . United States v. Hayden, 445 F.2d 1365, 1372 (9th Cir. 1971) (citations omitted).

      . United States v. Kember, 437 F.2d 534, 535, note 1 (9th Cir. 1970), cert. den., 402 U.S. 923, 91 S.Ct. 1392, 28 L.Ed.2d 662.

      . Parrott v. United States, 370 F.2d 388, 392 (9th Cir. 1960), cert. den,, sub nom. Lawrence v. United States, 387 U.S. 908, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967).

      . United States v. Henderson, 411 F.2d 224, 227 (5th Cir. 1969), cert. den., 399 U.S. 916, 90 S.Ct. 2204, 26 L.Ed.2d 574; United States ex rel. Hemes, supra note 14, 432 F.2d at 1187; Salamy v. United States, 379 F.2d 838, 841 (10th Cir. 1967); Rothfuss, supra note 14, 443 F.2d at 558. Although the Fifth Circuit in Rothfuss, at 558, seems to conclude that this court would find lateness of a claim to be conclusive on the question of sincerity, that is not how we read Speer v. Hedrick, 419 F.2d 804, 806 (9th Cir. 1969), and Bishop v. United States, 412 F.2d 1064, 1068 (9th Cir. 1969).

      . E.1, pp. 84, 85, and 87.

      . E.1, p. 93.