author: AINSWORTH, Circuit Judge:

text:
    BANK OF DADE, Plaintiff-Appellee, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Defendant-Appellant.
    No. 73-1349
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 24, 1973.
    Edward E. Dorsey, James H. Keaten, Richard H. Sinkfield, Atlanta, Ga„ for defendant-appellant.
    James E. Clark, Birmingham, Ala., amicus curiae for The Surety Assn, of America.
    Dennis D. Watson, Lafayette, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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.

   AINSWORTH, Circuit Judge:

The question for decision in this unusual Georgia diversity case is whether a robbery by extortion of plaintiff bank’s funds constitutes a loss covered by the standard form Banker’s Blanket Bond insurance policy issued to the bank by the defendant insurer.

The facts are undisputed, having been stipulated by the parties. During banking hours, an intruder entered the home of Edward Wilkie, president of the plaintiff Bank of Dade, and held Wilk-ie’s wife and daughter hostage. He telephoned Wilkie at the bank and threatened harm to the family hostages unless money was obtained from the bank and delivered to an indicated location outside the Wilkies’ home under a car parked in the carport. He told the banker that his wife and daughter would not be harmed if he cooperated, that he would take one of the hostages with him and would kill if he was followed; that if no one was informed, however, the hostage would be released unharmed. Wilkie and one other bank employee then collected $16,000 from two of the bank windows and complied with the intruder’s instructions, delivered the money to the place indicated and returned to the bank. Wilkie did not notify any law enforcement officers of the call. The intruder took the money and the Wilkies’ daughter with him, but released her after traveling a short distance. After she was safely returned, Wilkie informed the bank’s Vice-Chairman of the Board of Directors and the F.B.I. of the incident. Subsequently the defendant insurer was notified of the robbery and a proof of loss was submitted for payment. The insurer denied liability, however, and this suit followed.

The pertinent provisions of the Banker’s Blanket Bond, Standard Form No. 24, read as follows:

“THE LOSSES COVERED BY THIS BOND ARE AS FOLLOWS:
•>;• * * * * ■*
“On Premises
“(B) Any loss of Property through robbery, burglary, common law or statutory larceny, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, and any loss of subscription, conversion, redemption or deposit privileges through the misplacement or loss of Property, while the Property is (or is supposed to be) lodged or deposited within any offices or premises located anywhere, except in an office hereinafter excluded or in the mail or with a carrier for hire, other than an armored motor vehicle company, for the purpose of transportation.”

The defendant insurer contends that the loss is not within the terms of Clause B because it did not occur on the bank premises. The plaintiff bank contends, to the contrary, that the loss occurred when the president removed the money from the bank’s premises to deliver it pursuant to the extortionist’s instructions. The district court held that the loss was within the Clause B coverage because the theft was of money which was “supposed to be” on the bank premises.

There is little direct authority on the question presented. Defense counsel supplied the district court with an unpublished opinion of Chief Judge Arraj in The University National Bank of Fort Collins v. Insurance Company of North America, CA C-3603, D.C.Colo., decided June 5, 1972, which construed Clause B of the Banker’s Blanket Bond, Standard Form No. 24, under circumstances similar to those here. In that case a bank president received a phone call from a person claiming to have kidnapped his wife and daughter. The caller demanded that $100,000 be immediately placed in a briefcase and left near a bench in a downtown mall, that if police were notified it would result in the death of the wife and daughter. The banker complied and the money was taken. The insurer argued in the cited case that the bank retained control over the extorted funds until its president relinquished possession of them, and denied coverage. The court held that the taking of the bank funds occurred when the president began complying with the extortionist’s instructions. The court reasoned that because of the nature of the gravity of the threats and coercion the president had no effective alternative to compliance. The court concluded, therefore, that the bank’s loss occurred while the money was on the premises and that the loss was covered by Clause B. We agree with that reasoning, though the district court in the instant case declined to do so, asserting other grounds already referred to.

It is clear that Wilkie took $16,000 from the bank because of serious coercive threats against his family then held hostage. He placed the bank funds at the carport outside his home when they were supposed to be in the bank. Although Wilkie retained possession of the funds until their placing, the bank effectively had no influence over him from the time the intruder began speaking to him over the telephone, and exercised no control over the funds once Wilkie began collecting them from the bank windows.

That the extortionist did not have actual possession of the funds' until they were placed is not controlling, therefore, since he had accomplished their taking and had deprived the bank of them. At the time of Wilkie’s taking there was no bank authority for removal of the funds, which were “supposed to be” on the bank premises at all times following their removal. Though there was an interval of time and. distance between the taking of the funds from their proper place at the bank and placing them in the extortionist’s possession, there can be no doubt that the money was obtained by one who had no legal right to it. We see little distinction between resting the decision on the basis that funds which were supposed to be in the bank were not there, and on finding that the funds were lost at the time they were gathered and removed from the premises without bank authorization, from where they were supposed to be. Under either rationale there was robbery by extortion of the Bank of Dade which constituted a loss covered under Clause B of the Banker’s Blanket Bond.

Affirmed.

      . The extortionist was later arrested — one Robert Garnett Carter, — was charged in Federal Court with bank robbery by intimidation (18 U.S.C. Sec. 2113(a)), pled guilty and was sentenced, to a prison term.

      . The district court in its written decision said in part in this regard:
      To this Court the controlling issue is one never reached in The University National Bank of Fort Collins v. Insurance Company of North America, supra. It is also an issue which was not argued by the parties in the case sub judice. That issue relates to the import of the parenthetical statement in paragraph B, “is supposed to be.” Coverage would be extended to property while it is supposed to be within the Bank unless excepted by the language of Paragraph “B.”
      “Supposed to be” is not language of any unusual legal significance. Standard usage as explained in Webster’s Third New International Dictionary, Unabridged, would make “supposed” synonymous to “Required,” “permitted” or “intended.” Certainly the $16,000 in issue was required, intended, or “supposed to be” in the offices of the Bank. Under the view as presented by both sides, there was no proper Bank authority for the removal' of the money from its offices.
      The Court is therefore of the opinion that the loss of the Bank occurred within the terms of Paragraph “B.”
      Cf. also Bremen State Bank v. Hartford Accident & Indemnity Co., 7 Cir., 1970, 427 F.2d 425, 427, where the Court construed Clause B in a case involving “misplacement” of money which the Bank claimed to have occurred on its premises. In that case, the bank was moving from one location to another. It instructed its tellers to put their money on the floor of the vault, rather than in metal lockers inside the vault, which was the usual practice. One teller, Mrs. Laucke, did not receive those instructions, and put her cash drawer money in a metal locker instead of on the vault floor. After the locker was loaded onto a moving van, one of the mover’s employees found the money and absconded with it. The bank argued that the money was lost because it was misplaced on the bank premises. The insurer contended that the loss was due to theft after the money had left the bank premises and was on the moving van. In construing the “on premises” requirement, the court said:
      The bank claims coverage only under Clause B, arguing that the loss was occasioned through “misplacement” of the money. Hartford contends that although the money was misplaced “in a loose sense,” the loss resulted through theft after the money had left the bank premises, and was therefore not covered by the bond. The fallacy of Hartford’s argument lies in its reliance on the events which occurred after the money had been misplaced. We think it is plain from the language of the bond that a loss resulting from misplacement of money, regardless of subsequent events, was contemplated as being covered. Surely the bank’s loss in the instant case would not have been suffered had it not been for Mrs. Laucke’s misplacement of the money. The subsequent theft by Danny Francis resulted from that misplacement and does not take the loss out of the coverage of the bond.

      . Cf. National Bank of Com. in New Orleans v. Fidelity & Cas. Co., E.D.,La., 1970, 312 F.Supp. 71, 76, aff’d. 5 Cir., 437 F.2d 96, cert. denied 403 U.S. 906, 91 S.Ct. 2209, 29 L.Ed.2d 682, where the Court held:
      Defendant maintains, however, that because clause B is entitled “ON PREMISES,” all of the items mentioned therein must have occurred on the premises of the insured in order to be covered; it then contends that any “false pretenses” involved in the instant transactions were made off the premises, and that the losses are therefore not recoverable. EVen assuming the “on premises” requirement does apply to “false pretenses” as well as to “property,” the argument that misrepresentation of the solvency of Hughes Walsh’s Dallas account [when he mailed a check for deposit from Dallas to the New Orleans bank] was not made at the New Orleans bank is fanciful.


source: Caselaw Access Project

author: PER CURIAM: DENNIS R. KNAPP, District Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. William Levern INMAN, Appellant.
    No. 73-1171.
    United States Court of Appeals, Fourth Circuit.
    Argued June 5, 1973.
    Decided Aug. 29, 1973.
    Dennis R. Knapp, District Judge, dissented and filed opinion.

      Richard W. Hudgins, Warwick, Ya. [Court-appointed], Alvin B. Fox, Newport News, Va. (Hudgins & Neale, Newport News, Va., on brief), for appellant.
    James A. Oast, Jr., Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge, and KNAPP, District Judge.
   PER CURIAM:

Convicted of aiding and abetting armed robbery of a federally insured bank and sentenced to a term of twenty-five years, defendant appeals. Four grounds of reversal are urged: (1) the district court abused its discretion in denying a motion for continuance for the purpose of changing counsel; (2) the district court erroneously admitted evidence that defendant participated in other crimes; (3) the district court erroneously instructed the jury concerning the presumption which arises from possession of recently stolen property; and (4) the evidence was legally insufficient to establish defendant’s guilt.

We find no merit in any of defendant’s contentions, and so we affirm the district court’s judgment. Only defendant’s contention with regard to the motion for continuance warrants further discussion.

I.

Defendant was arrested September 6, 1972 and indicted on October 10. Ten days after indictment, at defendant’s request and upon a showing of his indi-gency, counsel was appointed to represent him. At this time, defendant’s trial was set for December 18,1972.

On December 11, 1972, defendant’s mother employed private counsel to represent her son. On the 12th, retained counsel communicated the fact of employment to the district court and suggested the need for a continuance; and on the same day the prosecutor and appointed counsel met with the district judge who informed them that appointed counsel should continue to represent defendant and that no continuance would be granted.

Defendant, on December 14, instructed appointed counsel to resign and, on December 15, this fact was communicated to the district court.

A formal request for a continuance was not made until the morning of trial. Then, retained counsel formally moved for a continuance because (1) he needed time to prepare defendant’s defense, and (2) he had another trial before another court scheduled for the same day. The district court denied the motion, stating that retained counsel was welcome to participate in the trial but that the motion could not be granted because jurors and witnesses had already been summoned. The one-day trial went forward and was concluded that day without retained counsel’s participation. Appointed counsel was defendant’s sole attorney at the trial and principal attorney in this appeal.

II.

The Sixth Amendment right to counsel includes not only an indigent’s right to have the government appoint an attorney to represent him, but also the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his own choosing. Included also is the right of any defendant to a reasonable opportunity to obtain counsel of his own choosing. Crooker v. California, 357 U.S. 433, 439, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932); United States v. Pigford, 461 F.2d 648, 649 (4 Cir. 1972). But the court also has the right to control its own docket to require that eases proceed in an orderly and timely fashion, and to that end to deny motions for continuances. As was said in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed. 2d 921 (1964), where the right to counsel was asserted to conflict with the court’s right to proceed with a trial:

The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality . . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.

Id., p. 589, 84 S.Ct. p. 849.

III.

Here, we find no abuse of discretion, even though we conclude that the outermost reach of discretion was exercised. Retained counsel’s assigned reasons for a continuance were valid. An attorney needs a reasonable time to prepare a case for trial, and an attorney cannot try two cases in two courts simultaneously. But retained counsel’s appearance in the case occurred late, after the case had been set for approximately two months and when the trial was about to begin, although there is no basis on which even to suspect that lateness was intentional on the part of counsel. The fact that jurors and witnesses had been summoned was another factor militating against the grant of a continuance.

The district court’s right to control its own docket and to exact adherence to a reasonable schedule which it prescribed imposes upon a party, or his counsel, who would disrupt it an obligation to make a full disclosure of the reasons why a continuance is sought. Here, the record is devoid of any mitigating explanation of why retained counsel’s appearance was late. There is no suggestion that defendant’s family was unaware of his plight or that defendant’s family lacked the financial resources to engage counsel for him earlier. Nor is there a claim of any dissatisfaction by defendant with the services of his appointed counsel. See United States v. Grow, 394 F.2d 182, 209 (4 Cir. 1968), cert. denied, 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111 (1968).

Considering all factors, we therefore cannot conclude that the district court’s discretion was exceeded. United States v. Pigford, supra.

Affirmed.

DENNIS R. KNAPP, District Judge

(dissenting):

With deference to the distinguished jurists who concur in the majority opinion in this ease, I must respectfully dissent.

I would reverse only on the issue that the trial court abused its discretion in refusing to grant defendant a continuance in order to permit his retained counsel to be present at the trial. It is well established that the matter of a continuance is in the sound discretion of the trial court and that the exercise thereof should not be disturbed on appeal except in case of clear abuse of same. United States v. Pigford, 4 Cir., 461 F.2d 648.

Upon the facts here, I am compelled in good conscience to conclude that the trial court committed an abuse of discretion in its refusal to give counsel, retained by the parents of an indigent a week prior to the trial date, enough time to honor a prior commitment so that he might represent the defendant.

It is to be noted that defendant was accused of a serious offense carrying a severe penalty. Recognition of this, and the love borne by the parents for their son, no doubt spurred on the parents to procure, although belatedly, the sum of money necessary for employment of a lawyer of their choosing. That attorney was retained and the defendant clearly expressed his desire to have his services.

While it is true, as the majority points out, that no formal motion was presented to the court until the day of trial, I submit that the court made it clear that no such motion would be granted. I am constrained to assert most forcefully that no such technical application of the law should deprive any man, accused of a serious crime and presumed to be innocent, of any right guaranteed by the Fifth Amendment. We should not permit a right so fundamental to the whole concept of due process to be so limited. Counsel was not retained until December 11. On December 12, six days before the trial date, new counsel informed the trial judge of his problems and requested additional time. His request was summarily rejected. A later informal request by counsel in the presence of the U. S. Attorney was also refused in unequivocal language by the court.

The Government could not have been prejudiced, and possibly the defendant was not. And in this connection, I do not question the competency of defendant’s appointed counsel or the motives or integrity of the trial judge. But since there was absent a compelling reason for trial on that day, which was less than sixty (60) days from indictment, the denial of a continuance under the circumstances here offends a basis right inherent in the Sixth Amendment that one accused of crime have counsel of his own choosing represent him when such is possible; and I therefore believe defendant was denied due process of law.

I am in agreement with the premise of the majority that stability and uniformity in the application of the law requires within reason resort to “stare de-cisis.” However, I cannot agree that Pigford is controlling under the facts of the instant case. I believe sincerely it is distinguishable on the facts. In applying the above principle in criminal cases, it is essential to the preservation of basic constitutional guarantees that we do so guardedly.

Any doubt as to the consistency of the facts or in their interpretation in these cases should be resolved by the court in favor of the defendant.

In the instant case, I submit that any such doubt should be resolved in favor of the accused. I believe it to be sufficient to require reversal. Accordingly, I would reverse.

      . The prosecutor’s brief suggests that the district court had in mind also Rule 50(b), F.R.Crim.P., the purpose of which is to provide defendants in criminal cases with a speedy trial. The policy embodied in Rule 50(b) is another factor to be considered in the exercise of discretion as to whether to grant a continuance in a criminal case. But, it is at once obvious that the policy is neither inflexible nor is it the sole consideration if there are present other factors indicating the necessity for a continuance.

      . Although it has no bearing on whether the district court abused its discretion in denying the continuance, our examination of the record persuades us that, despite defendant’s conviction and our conclusion that the errors asserted on appeal lack merit, defendant received thoroughly competent and professional representation from his appointed counsel.


author: MeCREE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Adrian AMBROSE, alias Lilly Ambrose, Defendant-Appellant.
    Nos. 72-2190, 72-2191.
    United States Court of Appeals, Sixth Circuit.
    Argued April 18, 1973.
    Decided Aug. 28, 1973.

      Bob McD. Green, Johnson City, Tenn., for defendant-appellant.
    Carl P. McDonald, Asst. U. S. Atty., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., Charles N. Stedman, Asst. U. S. Atty., Knoxville, Tenn., on brief.
    Before WEICK, MeCREE and KENT, Circuit Judges.

       Judge Kent died on May 28,1973 and did not participate in this decision.

   MeCREE, Circuit Judge.

James Ambrose, a/k/a Lilly Ambrose, appeals from a jury conviction of one count of aiding and abetting the sale of non-tax-paid liquor, in violation of 18 U.S.C. § 2 and 26 U.S.C. § 5604(a)(1) (1970). He also appeals from the revocation of the probation that he had received upon his conviction of an earlier offense. The revocation was based in part upon the conviction we consider in the other appeal. We reverse the conviction and remand for a new trial in the first appeal, and we affirm the probation revocation in the second.

The Government’s case consisted of the testimony of Bobby Bilbo, an undercover agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department investigating sales of non-tax-paid liquor in eastern Tennessee. On direct examination, he testified that on October 1, 1971, he was driving his car on a county road when a car driven by appellant approached and passed by him in the opposite direction. Bilbo observed the car turn around and come up behind him, and he thereafter pulled over to the side of the road. Appellant stopped his car behind Bilbo’s and walked over to Bilbo’s car to ask whether Bilbo had seen a person for whom appellant was looking (later identified as Mickey Faulkner, an informant paid by Bilbo for information relating to sales of moonshine). Bilbo told appellant that he had not seen this man. Appellant then stated, according to Bilbo, that the man for whom he was looking knew someone who wanted to buy moonshine whiskey, to which Bilbo responded that he might be the man whom Faulkner had in mind because he (Bilbo) wanted to purchase some moonshine. The two dickered over price, and appellant indicated that he could not promise anything, but, after talking in his car with a man named Luke (later identified as Luke Lyons, who was indicted with appellant but who was not tried with him), appellant told Bilbo to meet Luke and him at a local restaurant at 9:00 p. m. that night.

Bilbo testified that he rendezvoused with appellant and Luke, and that appellant told him that everything was ready. Appellant and Luke then left the restaurant for 15 minutes. Luke returned alone, and he and Bilbo went to a nearby site where 24 gallons of non-tax-paid liquor were cached. The liquor was loaded into the agent’s car, Bilbo paid Luke $180 and the liquor was transported to the agent’s headquarters where it was analyzed and stored. One jug from the shipment was introduced as an exhibit at the trial.

Ambrose testified in his own behalf, and admitted conversing with Bilbo on the afternoon of October 1. According to appellant, he was told by his cousin that Mickey Faulkner, the son of a local bootlegger, was looking for him, and appellant picked up Luke and attempted to find Faulkner. He was told that Faulkner had left his home with another man in a red Plymouth automobile. Appellant then drove about looking for the car —appellant was evasive about why he so doggedly pursued Faulkner that day— and he stopped agent Bilbo when he saw that Bilbo was driving a red Plymouth. Ambrose testified that he asked Bilbo whether he had seen Faulkner. Bilbo responded that he had not but then asked, “Have you got any liquor?” Appellant said that he did not have any “but the boy with me might be able to help you.” Luke and the agent talked for a while and agreed to meet that night. Appellant admitted being at the restaurant when Bilbo entered on the night of October 1, but he claimed that Bilbo asked him at that time whether Luke was going to help him and that he told Bilbo that he did not know although Luke had said he would be there if he could. Appellant then left the restaurant and heard nothing more about the transaction.

Appellant’s only defense at trial was a claim of entrapment, and his first contention on appeal is that the district court erred in denying his motion for a judgment of acquittal at the close of the Government’s case. He argued to the district court and maintains on appeal that the testimony of agent Bilbo on cross-examination established that appellant was entrapped as a matter of law.

In support of this contention, appellant relies principally on Bilbo’s description of his undercover work and on the use of Faulkner as an informant. Bilbo admitted that he paid Faulkner $10 per day for expenses incurred in contacting people who might be willing to sell moonshine to Bilbo and then relaying to Bilbo the information that a buy could be arranged. Defense counsel pursued the point that Bilbo, by his undercover work and by his utilization of Faulkner as an informant, was in effect attempting to procure the commission of illegal acts. Bilbo admitted, in response to questioning by defense counsel, that he did attempt to induce people to sell him moonshine. Appellant stresses particularly the following exchanges :

Q And most of these other things that happened follow along in the lines of what I have been asking you about; in other words, making contacts and trying to procure or induce a violation of the law. Is that correct, sir?

A True.

Q . . . [I] t is true, is it not, that you have calculated this scheme and went about it in such a way and manner that you intended for it to produce a violation of the law. Is that correct, sir?

A Yes, sir. (Transcript at 24, 30.) Because Bilbo admitted sending Faulkner out to assist him in making purchases, because Bilbo admitted on recross-examination that he had given appellant’s name to Faulkner as a person who might be interested in selling moonshine, because Faulkner had made it known to appellant on October 1 that he desired to see Bilbo, and because appellant was looking for Faulkner whom he knew to be in a red Plymouth with another man, appellant contends that Bilbo’s testimony established as a matter of law that appellant was induced into aiding and abetting the sale of non-tax-paid liquor, and therefore that the Government did not prove beyond a reasonable doubt that he was not entrapped. Accordingly, the court should have granted his motion for a judgment of acquittal at the close of the Government’s case.

There are a number of infirmities in appellant’s argument that require us to reject it.

First, by presenting evidence, appellant waived objection to the denial of his motion, although by renewing the motion at the close of all the proofs, he preserved the question of the sufficiency of the evidence on the record taken as a whole, United States v. Maffei, 450 F.2d 928, 930 (6th Cir. 1971), cert. denied, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972).

Second, in considering whether sufficient evidence supports the jury’s verdict, we do not decide whether the Government has proved the defendant guilty beyond a reasonable doubt; our role is limited to a determination whether the evidence sufficed to permit the jury to find him guilty beyond a reasonable doubt. United States v. Luxenberg, 374 F.2d 241, 248 (6th Cir. 1967); United States v. Ragland, 306 F.2d 732, 735 (4th Cir. 1962), cert. denied, 371 U.S. 949, 83 S.Ct. 504, 9 L.Ed. 2d 498 (1963). And, only when undisputed facts establish that the criminal design originated with the Government agent, that the agent implanted in the mind of an innocent person the disposition to commit the offense, and that the defendant then committed the offense at the urging of the Government agent can we conclude that entrapment was established as a matter of law. Sherman v. United States, 356 U.S. 369, 372-373, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sor-rells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Head, 353 F.2d 566, 568 (6th Cir. 1965).

In applying these tests, we conclude that the case was properly submitted to the jury and that there was ample evidence to support the verdict of guilty. Bilbo’s responses on cross-examination at most constituted testimony from which the trier of fact could have found inducement on the part of the Government agent. But establishing that an agent worked in an undercover capacity to earn the trust of participants in an illegal enterprise and to feign a bona fide interest in furthering their illicit goals does not establish the defense of entrapment. Only when the agent overbears an otherwise innocent person’s will and thereby induces him to commit a criminal act that he was not disposed to commit has the agent engaged in conduct affording a complete defense to conviction of the offense. A defendant’s predisposition is the “principal element in the defense of entrapment,” United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (U.S. April 24, 1973), and he should be acquitted only if the jury concludes (or the undisputed evidence demonstrates as a matter of law) that there is a reasonable doubt whether he was predisposed to commit the crime. See United States v. Russell, supra; United States v. Eddings, 478 F.2d 67, 71-72 (6th Cir. 1973). Thus, Bilbo’s responses on cross-examination must be viewed in context with other evidence in the case from which the jury might have concluded that Ambrose was merely an “unwary criminal.” Sherman v. United States, supra, 356 U.S. at 373, 78 S.Ct. 819.

In this respect, Bilbo testified on direct examination that it was appellant who initiated conversation about the sale of moonshine, and that appellant dickered over price before he would agree to assist Bilbo in making a buy. Bilbo also testified that appellant told him at the restaurant on the night of October 1 that ‘‘everything was ready” and that appellant would check to make sure that all was in order. Appellant himself testified on direct examination that, after searching for Faulkner all over town and ascertaining that Faulkner was not with Bilbo, he told Bilbo that he did not have any liquor to sell although Luke might be in a position to prove helpful in this regard. We think that the jury might well have concluded beyond a reasonable doubt from this evidence that appellant was predisposed to assist in the sale of non-tax-paid liquor and that the Government agent merely afforded the opportunity for the commission of the offense. Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. 819; Sorrells v. United States, supra, 287 U.S. at 441, 53 S.Ct. 210; see United States v. Head, supra, 353 F.2d at 568-569; United States v. Burkhart, 347 F.2d 772, 775 (6th Cir. 1965); United States v. Lile, 290 F.2d 225, 226 (6th Cir. 1961).

Appellant’s second contention on appeal relates to testimony elicited by the Government on two occasions that tended to show that appellant was predisposed to sell non-tax-paid liquor.

The first of these involved appellant’s oft-repeated assertion during the trial that he had not had anything to do with liquor for two years. On direct examination, he made this assertion twice, although it is not clear whether he meant that he had told Bilbo in October 1971 that he had not been involved with liquor in two years or that he had not been involved with it for the two years prior to trial. On cross-examination, the following colloquy occurred between appellant and the United States attorney:

I believe your counsel asked you a question, “You haven’t had anything to do with illegal whiskey for two years.” Is that correct?

A Longer than that, I would say.

Q Two years from October 1st and all the way up until now. Is that right ?

A That’s right.

Q Were you working at the Am-vet, which I understand is a private club. Is that correct ?

A American Veterans, yes.

Q During the last week of August this year?

A Yes, sir.

Q Was that place raided this year?

A Yes.

Q Do you know what was seized at the time of the raid?

A Yes.

Q What?

A Well, there was several things. There was some white whiskey found out behind the place and along the railroad track in weeds and stuff.

Q Were you there ?

A Yes.

Q Were you there near the white whiskey?

A I am charged in it, yes, sir. I walked out the back door after I had been wiping the counter off and there was a bunch of questions. I was charged in it.

Q Four gallons of non-tax paid whiskey ?

A Yes, sir, but it wasn’t found on the club.

Q Fine. That’s true. And this Recreation Center only had pool. Is that correct?

A Yes.

Q When you were working there?

A Had pool tables, pinball machines, juke box, soft drinks, and no alcohol nor nothing there.

(Transcript at 91-92.) Appellant contends that this exchange amounted to the introduction of evidence of a prior indictment or transaction by the prosecution for the purpose of showing that he was predisposed to sell liquor, or that it was an attempt by the prosecution to impeach his credibility by referring to his prior misconduct. Under either theory, he argues, this line of questioning was impermissible.

In response, the Government points out that it was appellant who volunteered the information that he had been indicted in the aftermath of the raid and that no objection to these questions was interposed by defense counsel. Ap-pellee characterizes the questions as an attempt to impeach appellant’s specific statement that he had not been involved with liquor for a substantial period of time before trial.

We agree with appellant that permitting the prosecution to make a searching inquiry into the predisposition of a defendant who raises the defense of entrapment does not thereby provide a license for the prosecution to roam at will through his past, either by the introduction of extrinsic evidence or by the use of cross-examination. The Government is constrained by familiar rules of relevancy and competency, by policies against undue prejudice or unfair surprise, and by considerations pertaining to limitation of the range of issues with which juries must grapple, the trial judge’s ability to control the conduct of the trial, and the confinement of cross-examination to matters raised on direct. Thus, although the prosecution is not circumscribed, when the defense of entrapment is raised, by the usual rules against the introduction of character evidence or evidence of prior acts, see United States v. Owens, 346 F.2d 329, 332-333 (7th Cir.) cert. denied, 382 U.S. 878, 86 S.Ct. 163, 15 L.Ed.2d 119 (1965); United States v. Cooper, 321 F.2d 456, 457-458 (6th Cir. 1963); Whiting v. United States, 296 F.2d 512, 516-517 (1st Cir. 1961), the proffered evidence may be held inadmissible because of its remoteness from the offense charged or its hearsay nature, see United States v. Johnston, 426 F.2d 112, 113-114 (7th Cir. 1970); Whiting v. United States, supra, 296 F.2d at 518-519, or because of its unreliability or potential for unfair prejudice, see Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219, 226 (1962) (en banc).

But in this case we do not have to decide whether the reference to a police raid on a club in which defendant was working constituted admissible evidence of predisposition. Nor must we determine whether the prosecution offended the rule prohibiting the introduction of extrinsic evidence of specific instances of bad conduct to impeach the character of a witness. See United States v. Beno, 324 F.2d 582, 588-589 (2d Cir. 1963), cert. denied, 379 U.S. 880, 85 S.Ct. 147, 13 L.Ed.2d 86 (1963); IIIA. J. Wigmore, Evidence §§ 979, 1005(a) (Chadbourn rev. 1970); or the use of prior indictments to impeach character, see United States v. Yar-brough, 352 F.2d 491, 493 (6th Cir. 1965); J. Wigmore, supra, § 980a; or the use of cross-examination as a vehicle by which to introduce this type of evidence without formally offering it, see Cutshall v. United States, 252 F.2d 677, 679 (6th Cir. 1958); Packineau v. United States, 202 F.2d 681, 688 (8th Cir. 1953). Not only did appellant not object to this line of questioning, but it is also clear that the Government was attempting to show only that appellant had lied about a fact he gratuitously interjected in his direct testimony so that he would appear in a better light before the jury. There is no reason why the Government should be unable to prevent a defendant from profiting by such a misstatement. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); United States v. Beno, supra, 324 F.2d at 588. And, because defendant did not by objection test the relevancy or probative value of this evidence, we will not consider whether the district court abused its discretion in allowing the evidence to come in. See Daniel v. United States, 268 F.2d 849, 852-853 (5th Cir. 1959); Ray v. United States, 255 F.2d 473, 475 (4th Cir. 1958).

A more substantial question is presented, however, with respect to the • prosecution’s eliciting of certain hearsay testimony from agent Bilbo in an attempt to show why appellant was suspected by the ATF in the first place. After defense counsel had cross-examined Bilbo and had obtained the admissions quoted above concerning the agent’s attempt to procure the commission of an illegal act by appellant, the following colloquy occurred on redirect examination:

Q Mr. Bilbo, what, if any, information or knowledge did you have, and the extent thereof, as to Mr. Am-brose prior to October 1,1971 ?

MR. BAUTISTA: We are going to object to that unless it is based upon his own personal knowledge, if your Honor please.

THE COURT: No, he is an investigating officer and he has a right to take information given him, as well as his own knowledge, and now that the defense of unlawful entrapment has been raised by questions, the Government can show the reputation that this man had with the officers, and also any specific information they claim to have had about him. The objection is overruled.

A Yes, Mr. Lilly Ambrose was known to me prior to October 1 as a violator of the moonshine liquor laws. In our office here in Greeneville, we keep a list of people who are in the moonshine liquor business. Information is given to us by people in the area. We keep a card of every individual turned in to us as being in the liquor business. We also have what we call an atlid list. These are people who are major violators in the area, more so, the bigger violators than other people. Mr. Ambrose does appear on these atlid lists which comes from our office and goes to the state office in Nashville and back to us, and is posted on our board down in the Post Office in our office downstairs.

Q On October 1, 1971, you had previous knowledge of the reputation of the defendant as to dealing in illegal distilled spirits?

A Yes.

Transcript at 34-35. On reeross-exami-nation, defense counsel questioned Bilbo about the reliability of this “atlid list” on which appellant’s name had been placed by someone in the local ATF office:

Q Mr. Bilbo, you say you keep a card file. What was the term that you used?

A Atlids file.

Q What does that mean ?

A You have got me. I can’t answer that. Just like we have a major violator file. People are put on a major violator file and are put on the at-lids file. It is broken down into counties.

Q This information comes from the area of different sources ?

A Right.

Q It comes from known bootleggers, doesn’t it?

A From known bootleggers, other investigators and citizens.

Q Informants ?

A Informants.

Q Some of it is reliable and some of it is not reliable?

A That’s true.

Q It has turned out to be such, hasn’t it?

A That’s true.

Transcript at 43-44.

Appellant contends that it was error for the district court to allow the Government to introduce testimony about the atlid list because by the agent’s own testimony the list was not reliable. The Government, on the other hand, contends that this testimony was properly admissible as evidence of appellant’s reputation and thus of his predisposition. E.G., Sorrells v. United States, supra, 287 U.S. at 451-452, 53 S.Ct. 210; United States v. Ball, 428 F.2d 26, 32 (6th Cir. 1970), cert. dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970). We agree with appellant that admission of the reference to the atlid list requires reversal.

On this point we can add little to the excellent discussion of Judge Hartigan in Whiting v. United States, supra, in which the Government attempted to show predisposition of the defendant by calling as rebuttal witnesses a police officer who testified that he received anonymous telephone calls informing him that the defendant trafficked in narcotics, and another police officer and a Government agent who testified that informants had told them that the defendant was involved in the narcotics trade but who admitted that they did not know of any basis for the informants’ knowledge of the defendant’s activities. In reversing the judgment of conviction, the court held that the hearsay evidence introduced by the Government was impermissibly unreliable and afforded the defendant no fair opportunity to rebut it:

The Government argues that proof of general reputation is admissible to demonstrate predisposition and there is language in the cases to support this. (See, e.g., Justice Roberts concurring in Sorrells). However, acceptance of this hypothesis does not resolve the problem facing us here for it is one thing to say that proof of reputation is admissible to show character and quite another to say that this reputation may be established by hearsay evidence of the type involved here. It is fundamental that to qualify a witness as competent to give testimony concerning a defendant’s character and reputation in the community it is usually required that there be a showing that the statements uttered by the witness are representative. It is generally required that the witness must show that he lives or works in a given community and is familiar with the reputation of the defendant. In short, there must be some demonstrable basis evincing the competence of the witness to give his opinion. See generally, Wigmore on Evidence, 3d Ed. § 191, §§ 1610-1616; see also Desehenes v. United States, 10 Cir., 224 F.2d 688 (1955); Riebe v. United States, 9 Cir., 82 F.2d 564 (1936); Minkow v. United States, 4 Cir., 5 F. 2d 319 (1925). Here it is patent that neither the testimony of Captain Collins, Agent Waddock nor Sergeant Kane would qualify under the usual rules regarding the competency of a reputation witness. All were allowed to tell the jury that the defendant was a vendor of narcotics yet none knew this of his own personal knowledge. Moreover, from all that appears from the record this hearsay may well have been compounded. In the case of the testimony of Captain Collins, he admitted that he had no idea whether his callers ever personally knew the appellant, or were even from the Springfield area. Similarly, in the case of the testimony of Agent Wad-dock and Sergeant Kane, there was no discernible showing that their informants knew the appellant, had seen him in the Springfield area or, finally, whether their information was in any wise first hand. However, this testimony was admitted as relative and probative of the appellant’s predisposition to commit narcotics offenses. Stripped to its essentials the argument of the Government is quite simply that hearsay testimony is admissible to show the predisposition of the appellant. Yet beyond stating that this practice is sanctioned where entrapment is raised, the Government has not offered, nor can we perceive any sound reason, save that of expedience, why this should be. If Dobson and Miss Brewer were competent to testify as to the general reputation or character of the appellant and thus to his predisposition, it would seem a matter of elemental fairness that they should be called by the Government to so testify in open court.

. [I]f we were to concede, a question we need not decide, that evidence of such an insubstantial character as the “anonymous phone calls” might be paraded before a jury in an avowed attempt to demonstrate good cause for setting out to ensnare the appellant, this assuredly is not to say that this same evidence is competent to portray a defendant’s predisposition to commit the offense. And yet under the instructions of the district judge, this evidence was admitted to show predisposition as well as good cause. It is one thing to conduct an inquiry into the appellant’s past conduct and elicit the fruits of this search by competent evidence to show evil proclivities. It is quite another to attempt to accomplish this same objective by lofting into the .jury box the basis of officials’ suspicion, however evidentiary ephemeral these latter may be.

Here, at least, in the case of the anonymous phone calls, it could well be said that the evidence “ * * * was so indefinite that it gave the defendant no chance or opportunity to refute it. It specified no person who made any of the complaints to which [the agent] testified. It specified no time when, place where, or circumstances surrounding any such complaints which could give the defendant any chance or opportunity to refute or contradict the testimony regarding such complaints, * * Mattson v. United States, 8 Cir., 7 F.2d 427, 428 (1925). We believe that to the extent that testimony of this character might be utilized by a jury to assay the appellant’s predisposition to commit narcotic offenses, its judgment would be but a surmise from the shadows — a guess in the dark. Accordingly, we conclude that the admission of hearsay evidence of the character here in issue to show the predisposition of the appellant was highly prejudicial error.

296 F.2d at 517-519. See also Waker v. United States, 344 F.2d 795, 797 (1st Cir. 1965); United States v. Neff, 343 F.Supp. 978, 981-984 (E.D.Pa.1972); cf. United States v. Johnston, supra, 426 F.2d at 113-114; Hansford v. United States, supra, 303 F.2d at 225-226.

Agent Bilbo admitted that the atlid lists consists of names supplied by anonymous informants. He admitted that some of this anonymous information has proved reliable and some has not. On such ephemeral evidence, without even an attempt to satisfy the requirements ordinarily imposed upon the introduction of reputation evidence, the Government based its argument to the jury that appellant was predisposed to sell non-tax-paid liquor. This evidence would not even be sufficient to establish that the agent had good cause to suspect appellant (assuming that is a relevant inquiry), let alone competent to show that appellant possessed the requisite guilty intent. If in fact appellant has a reputation in the community for dealing in moonshine, that should be simple enough for the Government to establish in the usual fashion on retrial, although in light of the competent evidence to which we have alluded supra relating to appellant’s predisposition, we question whether the Government will find it necessary to introduce reputation evidence at all. But upon reviewing the record, we cannot say with any certainty that the error in admitting the testimony about the atlid list did not “affect substantial rights” of appellant, Fed.R.Crim.P. 52(a), and therefore we reverse his conviction and remand for a new trial.

Because the case will be retried, we consider it appropriate to comment on appellant’s attack upon the court’s instructions to the jury:

If you should find that Mr. Am-brose had no previous intent or purpose to commit the offense with which he is charged here, but did so only because he was induced, or persuaded to do so by Mr. Bilbo or Mr. Faulkner, then you would find that he was unlawfully entrapped and find him not guilty of the charge against him.

On the other hand, it you should find that Mr. Ambrose was ready and willing to engage in the type of unlawful conduct with which he is charged here, whenever such an opportunity was offered to him, then you would find that the employee or agent of the Government merely offered him an opportunity to entrap himself, and you would not accord him the benefit of the defense of unlawful entrapment.

Transcript at 127. Appellant contends that this instruction required the jury to find that he was not predisposed before the jury could acquit him, and thus he was deprived of the opportunity to be acquitted if the jury should have entertained a reasonable doubt about his predisposition. See Notaro v. United States, 363 F.2d 169, 176 (9th Cir. 1966). We agree with appellant that this part of the charge was erroneous, and that a better formulation would have been that which we recently approved in United States v. Eddings, supra, 478 F.2d at 72, n. 1, to the effect that if the jury should find beyond a reasonable doubt that the defendant was predisposed to commit the offense, then he is not a victim of entrapment, but that if the evidence leaves the jurors with a reasonable doubt about the defendant’s predisposition, then he should be acquitted.

Appellant further complains that the court confused the jury with respect to the existence of the various burdens of proof on the entrapment issue and that the court improperly required that the jury find that the issue of entrapment existed before it could consider whether the Government had carried its ultimate burden of proof. Although the charge was correct in pointing out that the defendant was required to introduce evidence of inducement before the prosecution would be required to prove beyond a reasonable doubt that the defendant was predisposed, see, e. g., United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952), we consider it preferable for the district court to charge, as in Eddings, about the issue of predisposition and to charge generally about the prosecution’s burden of proof in criminal cases, rather than to create possible confusion in the minds of the jurors by speaking of shifting respective burdens. See United States v. Eddings, 478 F.2d at 72, n. 1; Notaro v. United States, supra, 363 F.2d at 174-176. Thus, as we held in Eddings, the jury must be told that the Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. 478 F.2d at 73.

As for appellant’s claim that the charge was unduly confusing in its reference to “lawful” and “unlawful” entrapment, we have previously approved a charge incorporating that distinction, United States v. Thompson, 366 F.2d 167, 175-176 (6th Cir.), cert. denied, Campbell v. United States, 385 U.S. 973, 87 S.Ct. 512, 17 L.Ed.2d 436 (1966), and we are not persuaded that we should revoke this approval. See discussion in Robison v. United States, 379 F.2d 338, 345-347 (9th Cir. 1967). And, we do not believe that the court unfairly singled out the defendant for special scrutiny when it instructed the jury that the defendant’s interest in the case did not of itself make him unworthy of belief.

In case No. 72-2190, appellant contends that the court erred in revoking the probation that had been previously imposed by a federal court in North Carolina in 1969 for conviction of violation of 18 U.S.C. § 472. The revocation was based in part on the indictment of appellant in 1972 for the possession of non-tax-paid liquor and gaming devices and possession of beer for resale without a license, and in part on appellant’s conviction in No. 72-2191 for aiding and abetting the sale of non-tax-paid liquor. Appellant contends that the court was premature in considering these factors before any final convictions resulted. We hold that the court did not abuse its discretion in revoking appellant’s probation in the circumstances of this case. Conviction of an offense is not a necessary predicate for the revocation of probation. United States v. Chambers, 429 F.2d 410, 411 (3d Cir. 1970; United States v. Mar-kovich, 348 F.2d 238, 240-241 (2d Cir. 1965).

In No. 72-2191, the judgment is reversed and the cause is remanded for a new trial; in No. 72-2190, the judgment is affirmed.

      . Appellant on cross-examination indicated that Faulkner might have desired to buy or sell a motor vehicle since appellant apparenüy dabbled in the used-car business. Transcript at 102.

      . Appellant appeared to regard this as an innocent act of Christian charity, and he blamed his current predicament on the fact that
      . . . all my life I have tried to help people. That’s right. If a man comes and asks me a question, I try to tell him and if I could help a man, I would help him. I am not no backstabber. I try to help a man. That’s all I can do and that is the reason I am here because I tried to help a man.
      Transcript at 70. Again, on cross-examination :
      I didn’t have no intention of aiding in [the sale of liquor], but I will, if you come to my place today and ask where somebody lives or say, “Do you know where I can find this?” And I would say, “Yes, you might get it from so and so.” And that is the reason I am sitting right here. I never sold nothing. Transcript at 77.

      . On direct examination, while recounting his version of the roadside discussion he carried on with Bilbo, appellant testified: Then he asked me, he said, “Have you got any liquor” And I said, “No, I ain’t fooling with no liquor.” I ain’t fooled with no liquor for over two years.
      Transcript at 65. Appellant testified that the agent approached him a few days after the October 1 transaction and asked whether he knew of anyone who sold liquor, and that he told the agent that he might obtain liquor anywhere in the area “but I ain’t fooling with it. I ain’t fooled with it for two years.” Transcript at 67.

      . We observe, however, that the Government attorney was in error when he referred to the fact that defense counsel had asked on direct examination whether defendant had been away from illegal liquor for two years; no such question was in fact put by defense counsel. Further, defendant did not characterize himself as having been away from illegal liquor for two years, as the Government attorney suggested.

      . At oral argument, no one was able to inform us of the derivation of the term “atlid list.” We may speculate that it is an acronym for “alcoliol and tobacco law identification.”

      . Contrary to the Government’s assertion, our decision in United States v. Shameia, 464 F.2d 629 (6th Cir. 1972), in which we held that a defendant who does not admit to having performed every act necessary to the commission of the offense charged may not raise the defense of entrapment, does not require that we preclude appellant from utilizing this defense or requesting that the jury be charged on it. Appellant’s testimony about his bringing together of agent Bilbo and Luke, see note 2 supra and accompanying text, constituted a sufficient admission of his participation in the illegal scheme to warrant his asserting the defense of entrapment, as did his other testimony regarding the circumstances of the meeting at the restaurant on the night of October 1.

      . We observe that the court did subsequently charge:
      The burden of proof is different on each side and shifts on this entrapment issue. First, Mr. Ambrose had the burden of proving by the greater weight of the evidence that he was unlawfully induced by Mr. Bilbo or Mr. Faulkner to act unlawfully. If you find that Mr. Ambrose carried this burden, then the burden shifts back to the prosecution to have proved beyond a reasonable doubt that Mr. Ambrose was ready and willing, without any persuasion to break the law, and merely awaited a good opportunity to commit the offense with which he is charged; in other words, that the entrapment of him was lawful.
      Thus, if you should find that Mr. Ambrose was unlawfully entrapped by the actions of Mr. Bilbo or Mr. Faulkner, then you should find Mr. Ambrose not guilty. On the other hand, if you should find that Mr. Ambrose was lawfully entrapped by the Government, then you may find Mr. Ambrose guilty.
      Before you may vote to convict Mr. Am-brose of this charge, it must have been shown by the proof beyond a reasonable doubt that Mr. Ambrose was ready and willing, without any persuasion, to break the law as charged in the second count of this indictment and merely awaited a good opportunity to commit the offense charged, in other words, that he was lawfully entrapped.
      Transcript at 127-28. And, the court gave a general instruction regarding the prosecution’s burden of proving appellant guilty beyond a reasonable doubt, Transcript at 116-17, as well as emphasizing a number of times that the prosecution bore this burden on every element of the offense charged. E.g., Transcript at 118, 123, 131.

      . See note 7 supra.


author: WEIS, Circuit Judge.

text:
    Catherine JACKSON, on behalf of herself and all others similarly situated, Appellant, v. METROPOLITAN EDISON COMPANY, a Pennsylvania corporation.
    No. 72-1745.
    United States Court of Appeals, Third Circuit.
    Argued May 4, 1973.
    Decided Aug. 21, 1973.

      Alan N. Linder, Tri-County Legal Services, York, Pa., for appellant.
    Russell J. O’Malley, Paul A. Barrett, Nogi, O’Malley & Harris, Scranton, Pa., for appellee (Samuel B. Russell, Ryan, Russell & McConagley, Reading, Pa., of counsel).
    James R. Adams, Edward J. Wein-traub, Deputy Attys. Gen., for Com. of Pa., as amicus curiae.
    Edward J. Dailey, National Consumer Law Center, Inc. as amicus curiae.
    Jonathan M. Stein, I. David Pincus, David J. Ackerman, Philadelphia, Pa., Fellowship Commission's Committee on Consumer and Citizen Complaints, as amicus curiae.
    Before HUNTER  and WEIS, Circuit Judges, and SCALERA, District Judge.

       Judge Hunter was present at the argument of this case but did not participate in the decision.

   OPINION OF THE COURT

WEIS, Circuit Judge.

Whether the Civil Rights Act was violated when an electric utility shut off service to its customer is the issue to be decided in this case.

The defendant is a privately owned and operated Pennsylvania corporation, granted a monopoly to deliver electricity to the populace in the area of York, Pennsylvania. Like similar utilities in Pennsylvania, it is subject to the provisions of the Public Utility Code and the regulations of the Public Utility Commission authorized by the Act.

The plaintiff was a residential customer of the Metropolitan Edison Company and in October of 1971 was claimed to have owed the defendant for past due bills. She disputed the validity of the charges, asserting that a former co-occupant of the premises was responsible for the amount due. Despite several tenders by the plaintiff of partial payments, the defendant terminated service on October 11, 1971 by disconnecting the line on the company’s utility pole on the street near the plaintiff’s house. The plaintiff then filed suit under the Civil Rights Act, 43 U.S.C. § 1983, asking both damages and injunc-tive relief.

The district court held an evidentiary hearing on the request for a preliminary injunction. The plaintiff testified that on an occasion about a year previously when the electricity had been disconnected, she left her home for about 45 minutes to telephone the utility and when she returned, the power had been restored. She admitted not receiving bills in the ensuing year but claimed that one Dodson, the eo-oecupant of the house, had received and paid monthly statements from the defendant.

Although Dodson left the premises about August, 1971, the plaintiff admitted that no bills were received at her home thereafter. She testified that on October 6, 1971 a representative of Metropolitan came to the house inquiring about Dodson and on the following day another employee looked at the meter and told her that somebody had tampered with it. The plaintiff then asked that service be reinstated in the name of Robert Jackson. At the hearing she admitted that this was in fact her 12 year old son.

At the conclusion of the plaintiff’s testimony and after the filing of briefs, the district court dismissed the case because there was not “a sufficient showing of state involvement in the complained of activity . . . ”

The plaintiff asserts that the defendant’s action in arbitrarily terminating service to her was under color of state law because:

1. As a utility, the defendant was closely regulated by the Commonwealth of Pennsylvania;

2. In supplying electricity, Metropolitan Edison was performing a governmental function;

3. The defendant was either acting as an agent for the state or a joint participant with it; and

4. The failure to act by the state amounted to “state action”.

Litigation between utilities and their customers based on § 1983 has been the subject of decisions in the Courts of Appeals of the Eighth, Seventh, and Sixth Circuits, as well as a number of district courts. While on the facts the situations in the reported eases are capable of distinction, an objective appraisal might suggest that the differing results represent a continued uncertainty as to the application of the “color of state law” .test.

The Supreme Court has frankly admitted the difficulty of drawing guidelines, and in Moose Lodge 107 v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972), Justice Rehnquist wrote:

“While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to ‘State action,’ on the other hand, frequently admits of no easy answer. ‘Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.’ ”

While the Moose case was concerned with a private club rather than a utility, the following quote is helpful:

“The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever. Since state-furnished services include such necessities of life as electricity, water, and police and fire protection, such a holding would utterly emasculate the distinction between private as distinguished from State conduct set forth in the Civil Rights Cases, supra, and adhered to in subsequent decisions.”

The Supreme Court went on the discuss the multiform variety of control that the state exercised over the holder of a liquor license which the district court had described as “pervasive” and went on to say:

“However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club’s enterprise.”

The Court thus recognizes the importance of a connection between the state regulation and the proscribed conduct.

Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), presented a situation where the Court felt that a state agency which leased premises to a restauranteur became a joint-venturer or partner, in a sense, in the enterprise and therefore shared in the discriminatory policies of the private concern. Furthermore, in that case the plaintiff could point to a specific state statute which was said to permit the offending conduct.

Adickes v. Kress, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), also was concerned with conduct of a private enterprise said to be in violation of § 1983. The Court there pointed out that the involvement of a policeman in a conspiracy situation provides the necessary ingredient of state action in a claim of violation of the Fourteenth Amendment, whether or not the actions of the officer were officially authorized. The Court also said:

“Whatever else may also be necessary to show that a person has acted ‘under color of [a] statute’ for purposes of § 1983 ... we think it essential that he act with knowledge of and pursuant to the statute.” (At pp. 161, 162, f.n. 23, 90 S.Ct. at pp. 1598, 1611)

The Court noted also that a state is responsible for the discriminatory act of a private party if the state by its law has compelled the act.

Public Utility Commission v. Pollak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952), found “state” involvement where the Commission after conducting hearings affirmatively approved the action which was held to be objectionable. The Court said very specifically and clearly:

“ . . . we do not rely on the mere fact that Capital Transit operates a public utility . . . Nor do we rely upon the fact that Capital Transit now enjoys a substantial monopoly of street railway it . . .”

Pollak, therefore, is not authority for the holding that the actions of a public utility which enjoys a monopoly, ipso facto, are those of a state agency, nor does it hold that all activities conducted under the auspices of a utility regulatory body satisfy the “color of state law” test.

Though it is difficult to summa-rize in this complex field and without intending to be all inclusive, it may be said generally that there may be a finding of state action or action under color of state law:

1. When a private party’s action occurred in conjunction with a business in which the state may be considered a partner or joint ven-turer in a profit making field (Burton v. Wilmington, supra); or

2. when a state statute or custom or usage compels the result (Adickes v. Kress, supra); or

3. when a state agency affirmatively orders or specifically approves the activity in the course of its regulatory rule making (Public Utility Commission v. Pollak, supra); or

4. when a private agency in effect is acting on behalf of and furnishing a typical government service (Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946)).

A brief discussion of the regulatory plan under which the defendant Metropolitan operates is helpful in deciding whether it falls within any of the categories outlined.

The rates which the defendant charges its customers are regulated by and must be approved by the Public Utility Commission. Additionally, the Commission is empowered to issue regulations necessary for supervision of utilities doing business in Pennsylvania, including provisions for inspection and access to facilities and records of the company as the Commission thinks necessary. The Commission is charged with prohibiting discriminatory practices in rates and services, and all rules and reg-illations of the utilities are subject to its approval.

As part of the rate-setting procedure, the utility must file a tariff with the Commission in compliance with its rules. The Commission Regulation on Tariffs, § VIII, provides that:

“Every public utility that [imposes] penalties upon its customers for failure to pay bills promptly shall provide in its filed tariffs a rule setting forth clearly the exact circumstances and conditions in which the penalties are imposed . . .”

Pursuant to the regulation, the defendant filed in Tariff No. 41, its Rule 15 (issued April 30, 1971, effective June 30, 1971):

“Company reserves the right to discontinue its service on reasonable notice and to remove its equipment in case of non-payment of bills or violation of the Pennsylvania Utility Commission’s or Company’s rules and regulations ; or, without notice, for abuse, fraud, or tampering with the connections, meters, or other equipment of company.”

Since the record is silent on the point, we assume that no objection was raised to this particular provision of the tariff and, therefore, there was no hearing before the PUC which would have required affirmative action by that body such as occurred in the Poliak case.

While the tariff purports to give the company the right of re-entry upon the customer’s premises for purpose of removing its equipment after termination of service, it seems clear from the record that such action was not taken in this ease. The service was disconnected by the defendant at its pole, some distance removed from the home of the plaintiff.

Thus the action of the company in terminating service in this case was taken pursuant to its own regulations using its own personnel without entering onto the customer’s private property, without utilizing any state statute or regulation permitting re-entry on the customer’s premises, and without any specific direction or authorization of the regulatory body.

The factual background in this case is quite similar to that in Lucas v. Wisconsin Electric Power Company, 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U. S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973), where the Court of Appeals for the Seventh Circuit, sitting en banc, held that there had not been action under color of state law and said:

“The ‘under color of’ provision encompasses only such private conduct as is supported by state action. That support may take various forms, but it is quite clear that a private person does not act under color of state law unless he derives some ‘aid; comfort, or incentive,’ either real or apparent, from the state. Absent such affirmative support, the statute is inapplicable to private conduct.
“We believe that affirmative support must be significant, measured either by its contribution to the effectiveness of defendant’s conduct, or perhaps by its defiance of conflicting national policy, to bring the statute into play (466 F.2d pp. 655, 656). ... we believe the significance of that support must be evaluated to determine whether it brings § 1983 into play; otherwise the federal statute would soon supersede vast areas of state administrative regulation.” (466 F.2d p. 657)

The Court concluded that the monopoly factor did not in a practical way deprive the customer of an effective remedy nor did it add the necessary state support to private conduct so as to transform an issue of state regulatory policy into a civil rights case.

The Court’s action thus affirmed its earlier ruling in Kadlec v. Illinois Bell Telephone, 407 F.2d 624 (7th Cir. 1969), cert. denied, 396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95 and was consistent with Particular Cleaners v. Commonwealth Edison, 457 F.2d 189 (7th Cir. 1972). See also, Martin v. Pacific Northwest Bell Telephone Co., 441 F.2d 1116 (9th Cir. 1971), where that Court said:

“The fact that a private corporation, such as Pacific Bell, enjoys an economic monopoly which is protected and regulated by the state does not necessarily bring its every act within the purview of Section 1983. [citation], for as well stated in Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968), ‘the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury.’ ”

In Palmer v. Columbia Gas Company, 479 F.2d 153 (1973), a panel of the Court of Appeals for the Sixth Circuit came to a contrary conclusion in a situation where the utility availed itself of a right of entry on the customer’s property, that privilege having been granted by a state statute.

The color of state law test was found to have been satisfied in Ihrke v. Northern States Power Company, 459 F.2d 566 (8th Cir. 1972), reversed on mootness, 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed. 2d 72 (1972), where the city which regulated the utility also received 5% of the company’s gross earnings. In that instance it might well be said that while the city did not collect the utility bills, it shared directly in them and to some extent was a joint venturer with the power company.

While the Supreme Court in the Moose Lodge case refused to prohibit racial discrimination in a private club setting finding no state action in the extensive regulation of the Liquor Control Board, a differing result was reached in Burton, supra, where a public restaurant was involved but less state control was evident. It may well be that the underlying reasoning for the differing results in the two cases is that in Moose Lodge the national prohibition against racial discrimination had come into conflict with the fundamental right of free association, while in Burton the tension arose between discrimination and the freedom to operate a business which should have been open to the public at large. In this analysis, it is not at all clear that the result in Moose Lodge would not have been different had the discriminating defendant been a public utility rather than a private club.

It is important," therefore, that the issues here be considered not only on the premise of color of state law but that there be an examination and evaluation of the underlying federal rights of the parties, particularly those which the plaintiff espouses. While the plaintiff and amici speak of utility service as being “indispensable to life and health” and termination of those services as depriving her of the very “means and necessities of life,” we think those characterizations are extreme and serve only to becloud the real issues.

Granted that in today’s urban society the supply of electricity to a home does much to make life more comfortable and convenient, its absence in the usual situation does not pose an immediate threat to the life of the occupants. The fact that people, even today, manage to carry on their lives in isolated areas without electricity is proof enough of that.

There is a clear distinction between depriving a community of power where disastrous results might occur if hospital, water purification, and communications facilities were interrupted and the situation in a dwelling when the absence of electrical energy would require manual operation of furnace controls, illumination by kerosene lantern, or refrigeration by ice. We do not minimize the inconvenience of the absence of electrical service or deny that special circumstances may result in serious consequences but simply indicate doubt with the flat assertion that failure to provide this form of energy tó a home is a threat to life itself. It is probably more accurate to say that the service is essential to the kind of life we are accustomed to, particularly in an urban society.

Furthermore, as convenient as this utility service is, as desirable as its continuation may be, and as dependent on it we may believe ourselves to be because of its availability and benefits, the fact remains that as of this time at least, the state is not obligated to furnish electricity without charge to its citizens. Those who wish to avail themselves of it must pay for it.

This premise the plaintiff does not dispute here, nor does she deny that if it is proved that she is mistaken in her position on the contested bill, she must pay it or do without electricity.

Clearly then, the right for which the plaintiff now contends is to continue to receive the service and, we assume, pay for it on a current basis until such time as a decision can be had on the disputed items.

The utility’s response is that the plaintiff may pay the contested charge and then claim for a refund. This process, it is assumed, may be handled informally and perhaps without the necessity of going to court. Though not explicitly stated as such, there is an underlying premise in plaintiff’s position that because her income is limited to payments made by the Department of Public Welfare, the refund claim process is not a practical alternative to her. If we are to accede to this contention though, it should apply to every indigent person, not only as to past due bills, but current ones as well. While there may be argument that this would be a socially desirable development, it has not yet been suggested as a constitutionally mandated one or one compelled by congressional enactment.

Plaintiff also asserts that she should be given reasonable notice before her service is terminated. But the defendant has already agreed with that proposition — its tariff provides that “reasonable notice must be given before termination.” She thus has been given that right which can be enforced in the state courts or by the Public Utility Commission — at certainly no more expense or inconvenience than resort to the district court required.

Again, we note that the termination of the electricity did not occur until after the plaintiff had been contacted by two representatives of the defendant and had been made aware of irregularities in her account.

Essentially then, if the plaintiff is to prevail, she must establish that the procedure of suing for refund after payment of the amount claimed to be due is a violation of due process.

While this method of resolving disputes may be harsh and undesirable, we cannot say that it is unconstitutional. Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960), discusses the history and procedures of collection of revenues due the United States which in many instances involves payment of the tax first and then filing a suit for refund. See also Great Lakes Dredge & Dock Company v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943), where the Court did not disapprove a similar procedure in a state tax collection matter.

There has never been any indication from the Supreme Court that this procedure does not comport with constitutional requirement of due process. The reason given for such drastic procedures, that is, that the revenue must be collected in order to keep the government in operation, is the very same argument the utilities invoke as grounds for requirement of payment before further service is rendered.

Plaintiff maintains, also, that because of its importance to everyday living, the right to receive utility service rises to the level of a constitutional right or an entitlement from the state. She cites Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), as expository of the doctrine that a person may not be deprived of a privilege or right by the state without a hearing. But while that case provides that the state is limited in the procedures that it may use to revoke or suspend an existing driver’s license, there is no compulsion to issue one without payment of the customary fee. Moreover, we think that the wrong criterion has been applied. All of life’s vital concerns have not been entrusted to the central government, and many, if not most, repose in the state or its agencies. Even so fundamental a human requirement as that of decent shelter has been said not to have a specific constitutional guarantee. Thus, in Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972), the Court said;

“We do not denigrate the importance of decent, safe, and sanitary housing. But the Constitution does not provide judicial remedies for every social and economic ill. We are unable to perceive in that document any constitutional guarantee of access to dwellings of a particular quality, or any recognition of the right of a tenant to occupy the real property of his landlord beyond the term of his lease without the payment of rent or otherwise contrary to the terms of the relevant agreement.”

The Lindsey case dealt with a summary form of eviction used in Oregon which required payment by the tenant in order to maintain possession and required that any defenses other than payment be reserved to a separate suit. Thus, it is akin to the theory used by the utility in this case, that is, pay first and litigate later. The Supreme Court in the Lindsey case found no constitutional objection to such a procedure.

So, too, in San Antonio Independent School District v. Rodriguez et al., 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), a case dealing with the admittedly important role of education in our society, the Court said:

“But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.”

And so, although the plaintiff’s position has strong appeal, that is not enough to establish a constitutional basis. We must be alert to the fact that in granting a federal remedy to what is essentially a state problem, there is a further extension of. the power of the central government. Intervention is justified in some instances and indeed may be an absolute necessity at times, but such action should not be taken without recognizing the effect there may be upon the concept espoused by the framers of the Constitution that one of the best ways to prevent excessive and abusive government is to disperse its power among many entities and at various levels.

A reluctance, therefore, to enlarge the authority of the federal courts should not simply be viewed as a lack of appreciation for the rights of the individual but, rather, as an indication of concern for the most appropriate method of maintaining the proper balance between governmental power and the citizen’s liberties.

Of course, much depends upon the circumstances, and in this case we find no overriding justification for utilization of the Civil Rights Act to intrude the federal courts into what is and should remain a state regulatory process.

Simply stated, we do not find that a right to receive utility service pending resolution of a dispute between a customer and the company is protected by the Constitution of the United States.

Thus, although we would find that there is no federally protected right involved here, we agree with the approach of the district court in applying a narrow view of the “color of state law” test in the weighing and sifting process in the circumstances of this ease. We find no error in the decision of the learned District Judge, and the judgment of the District Court, therefore, will be affirmed.

      . 66 Purdon’s (Pennsylvania) Statutes §§ 1101 et seq.

      . “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or caused to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunity secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

      . 348 F.Supp. 954 (M.D.Pa.1972)..

      . While it has been suggested that “state action.” and “action under color of state law” are synonymous, U. S. v. Price. 383 U.S. 780, 794, f.n. 7, 86 S.Ct. 1152, 16 L.Ed. 2d 267 (1966), at least one court has indicated its belief that the “color of state law” test may be more demanding. Lavoie v. Bigwood, 457 F.2d 7 (1st Cir. 1972).

      . The Lucas court placed emphasis upon the lack of entry upon the resident’s premises and implied that its decision might have been different had the utility availed itself of the state statute to enter the customer’s home in order to cut off the power.

      . See also Stanford v. Gas Service Co., 346 F.Supp. 717 (D.C.Kan.1972) ; Hattell v. Public Service Co. of Colorado, 350 F.Supp. 240 (D.C.Colo.1972) ; Bronson v. Consolidated Edison, 350 F.Supp. 443 (S.D.N.Y. 1972). The fact situations in many of the cases present instances of callous and overbearing conduct by personnel of large utilities, familiar examples of the abuse of authority by those who have little of it. Deei-sions in favor of the plaintiff in such instances carry strong emotional appeal but are' not necessarily persuasive legal authority on the applicability of § 1983. We are not convinced that state courts or the PUC in Pennsylvania would not issue appropriate orders in such outrageous situations as those detailed in Bronson and Palmer, supra.

      . See Williams, The Twilight of State Action, 41 Texas L.R. 347 (1963).

      . See Abernathy, Expansion of the State Action Concept under the Fourteenth Amendment, 43 Cornell Law Quarterly 375, 405 (1958).

      . Shelton, The Shutoff of Utility Services for the Poor, 46 Washington L.R. 745, comments that the state of Washington by constitution and statute permits free service to indigents, but apparently there are no requirements that it in fact be done.

      . See the discussion in Michelman, The Supreme Court 1968 Term, Foreward: On Protecting the Poor Through The Fourteenth Amendment, 83 Harvard L.R. 7 (1969).

      . While it has been asserted that few of these cases result in litigation because of costs and the small amount involved, we point out that the district magistrates of Pennsylvania and the Small Claims Tribunals of the Common Pleas Court offer opportunities for the customer to present his case at little expense and without the necessity of employing counsel.

      . See Shelton, supra, f. n. 9.

      . Plaintiff has not raised in brief or argument any objection to the provision in the tariff reserving the right to discontinue without notice in the event that there has been tampering with the meter by the customer. Since there is no evidence that it is applicable here, we do not consider it.

      . The “entitlement” cases generally deal with a privilege or right conferred by the state of something -which it alone can grant, e. g., in Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), only the state, not a private company, can issue a driver’s license; only a state by appropriation and legislative action may administer and disburse welfare benefits, Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed. 2d 287 (1970). Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971), was concerned with the effect of state statutes on the owner’s right of possession of personalty. We do not believe that there is a property right to be furnished utility service without payment.

      . The fact that we find no constitutional prohibition to this procedure does not mean that we approve it or recommend it. If we were free to substitute our judgment for that of the PUC and the state legislature, we would require the utility to continue service on payment of current charges while the disputed matters are litigated and allow a time payment arrangement for financially distressed persons if necessary. Furthermore, if the utility is determined to be in error, an award of reasonable counsel fees to the customer would seem appropriate and equitable if employment of such professional service had become necessary.

      . See also Silas v. Smith, 361 F.Supp. 1187 (E.D.Pa.1973).