source: Caselaw Access Project

author: FORRESTER, District Judge.

license: Public Domain

text:
    UNITED STATES of America v. Brenda Faye BURKE.
    No. CR84-339A.
    United States District Court, N.D. Georgia, Atlanta Division.
    May 29, 1985.

      Larry D. Thompson, U.S. Atty., Richard H. Deane, Asst. U.S. Atty., Atlanta, Ga., for plaintiff.
    John Ellis, Federal Defender Program, Atlanta, Ga., for defendant.
   ORDER

FORRESTER, District Judge.

The defendant in this case, who has a previous felony conviction, has been charged with one count of unlawful possession of firearms in violation of 18 U.S.C. App. § 1202(a)(1). The case is pending before the court on the objected-to report and recommendation of the United States Magistrate, in which the Magistrate denied defendant’s motion to suppress. For the reasons which appear herein, the Magistrate’s report and recommendation are REJECTED, and defendant’s motion to suppress is GRANTED.

On July 13, 1984, FBI Agent John Benesh executed an affidavit in support of the issuance of two search warrants. In narrative form, the affidavit averred as follows. On July 10, 1984, Agent Benesh was informed by James Robert Collins, an independent contractor to Airborne Freight Corporation, that on July 9, 1984, a 1983 Dodge van, Georgia license number ABE598, was stolen from a service station in Sandy Springs, Georgia. The stolen van contained an interstate shipment of negotiable securities and correspondence. The driver of the stolen vehicle, an employee of Airborne Freight Corporation named Jerry Scott Neppes, advised Agent Benesh that immediately prior to the theft Neppes had observed two black females near the service station. These females were described by Neppes as follows: One black female, between five foot nine and five foot ten, of a heavy build, with a dark complexion, aged 20 to 25 years, with a shoulder length Afro hairdo, who was dressed in cut-off blue jeans and cut-off T-shirt. One black female, height between five foot two inches and five foot three inches, of a light complexion, age 20 to 25 years, with short, curly hair. Neppes informed Agent Benesh that he did not observe those individuals in the vicinity after the theft. On July 11, 1984, Agent Benesh spoke with a Donald J. Doss, an employee of Crawford and Company, who advised him that 62 payroll checks in the total amount of $35,689.31 had been in a shipment being sent by the Airborne Freight Corporation from Atlanta, Georgia, to Baltimore, Maryland, Annapolis, Maryland, Dallas, Texas, and Canada. The checks were drawn on the Trust Company Bank of Georgia and the Bank of Nova Scotia, and the domestic checks were beige in color.

On July 12, 1984, a confidential informant advised Agent Benesh that an individual named Ed, whose last name was unknown, was observed on July 10, 1984 to possess three payroll checks drawn on the Trust Company Bank of Georgia, which were beige in color. Ed was described as a black male drug addict, height five foot eight inches, weighing between 165 and 175 pounds, with a dark complexion, scarred face, and medium Afro hairdo. Of the checks observed in Ed’s possession, one was payable to an individual in Dallas, Texas, and one was payable to an individual in Baltimore, Maryland. All three checks were observed in Ed’s clothing, and he displayed a large number of checks in a white envelope. The envelope was kept in Ed’s sister’s apartment at “38 Throop Street, Apartment 840, Atlanta, Georgia.” The confidential informant stated that Ed’s sister’s name is Brenda, last name unknown, and Brenda is a “fence” for many local thieves, and keeps stolen property in her apartment. The confidential informant further advised Benesh that the informant had overheard a conversation during the week of July 9, 1984 between Ed, Brenda, and another individual whose name is Robin, last name unknown, also known as Kojak. Kojak was described as a black female, height five foot ten inches to five foot eleven inches, with a heavy build, dark complexion, and shoulder length Afro hairdo, aged 25 to 28 years, who customarily wears cut-off T-shirts. The informant stated that the conversation which the informant overheard concerned Kojak’s theft of a truck in Sandy Springs, Georgia, and the attempts by Kojak, Ed, and another female known as “Red” to pass checks and money orders stolen from the truck. Kojak had displayed numerous checks to the confidential informant, and stated that she and “Red” had other papers in her apartment. The informant advised Benesh that Kojak resides at apartment 854, 24 “Throop Street,” Atlanta, Georgia.

Finally, the affidavit avers that the confidential informant had been a paid FBI informant in the past, who began providing reliable information in December 1981, but had been inactive since February 1983. During the informant’s active period, he provided information which resulted in the identification and arrest of an armed robbery suspect, a burglary suspect, and four bank robbery suspects. The bank robbery suspects were later convicted.

The affidavit describes the locations for which the warrant is sought as follows:

6. 38 Throop Street, is a two-story red brick building, trimmed in a reddish-brown paint with a shingled roof and three adjacent apartments, with apartment 840 being the far left apartment at that address looking at it from the front.
7. 24 Throop Street, is a two-story red brick building, trimmed in a reddish-brown paint with a shingled roof and four adjacent apartments, with apartment 854 as the third apartment from the left at that address looking at it from the front.

On the strength of this affidavit, Magistrate Feldman issued two search warrants. The one which relates to the motion presently pending before this court authorized a search of the premises known as “38 Throop Street, being a two-story red brick building, trimmed in a reddish-brown paint with a shingled roof and three adjacent apartments, with apartment 840 being the far left apartment at that address looking at it from the front____” The warrant authorized a search for negotiable securities and checks which were part of and were traveling in interstate commerce, including but not limited to the securities described in paragraph three of the affidavit. The warrant was issued on July 13, 1984 at 12:01 p.m.

The warrant was executed by agents of the FBI and the Fulton County Police Department at 48 Troup Street, apartment 840, on July 13, 1984. At the evidentiary hearing on the motion to suppress, testimony was heard from two of the executing officers, M.L. Carson of the Fulton County Police Department, and Michael L. Smith of the FBI. Agent Smith testified that when the warrant was executed on the defendant’s apartment, he was one of a group of agents and officers which included the affiant for the warrant, John Benesh. TR at 15-16. Agent Benesh accompanied the team which executed the other warrant approved by Magistrate Feldman, and Agent Smith led the team which searched apartment 840 on Troup Street. Agent Benesh discussed the case with Agent Smith prior to execution of the warrant, and indicated that Benesh had driven by the apartment before, and would indicate to Smith on the radio as they passed the apartment which one it was. TR at 16. Agent Smith testified that he had not seen the apartment prior to the time that they arrived to conduct the search pursuant to the warrant. Id. 48 Troup Street, apartment 840, is located in the Carver Homes Housing Project (TR 17, 20), but no mention of that fact was made in the warrant or the supporting affidavit. No two apartments within the Carver Homes Project have the same number. Agent Benesh had told Agent Smith that the warrant was to be executed at Troup Street (TR 18), and Agent Smith was unaware up until the date of the suppression hearing that the warrant and affidavit referred to a Throop Street (TR at 20). When the carloads of agents met in the parking lot outside Carver Homes, they were given instructions regarding the warrants, and all drove together into the apartment complex. Id. As they drove onto Troup Street, Agent Benesh said that this is Troup Street, and indicated that apartment 840 was the one which was to be searched. Id.

On arrival at apartment 840, Detective Carson of the Fulton County Police Department entered apartment 840, which is a two-story apartment. TR at 23. As he had been trained to do, Det. Carson moved to secure the most remote area of the apartment, by ascending the stairs and entering the bedroom area. TR at 23-24. In the bedroom, the defendant was seated on the bed and was platting a male individual’s hair. TR at 24. Det. Carson asked both the defendant and the man seated on the bed next to her to stand, which they did. TR at 25. When the defendant stood up, Det. Carson saw a pistol on the bed underneath the defendant’s right leg or right thigh area. Id. Det. Carson then asked whose pistol it was, and the defendant responded that it was hers. Id. Det. Carson picked up the pistol out of concern for his own security. TR at 24-26. After Det. Carson took possession of the gun, he laid it at the head of the steps at the feet of several agents who were standing at the head of the stairs for security purposes. TR at 33. Agent Smith, uncomfortable with the fact that a weapon was just “laying there,” picked up the weapon, took it outside, recorded the serial number, and ran a computer check on the serial number of the weapon to determine whether or not it was stolen. Id. at 33-34. It is standard FBI procedure to verify whether any weapon which comes into their possession is stolen. Id. at 34. While the computer check on the gun’s serial number was being conducted, Agent Smith returned to the apartment and inquired as to the names, race, sex, and date of birth of all six of the individuals who had been found inside the apartment. TR at 35. Among those in the apartment was an individual named Ed. Id. Agent Smith then returned outside and initiated a computer check on each of the individuals as to whether they were wanted or whether they had any sort of criminal record. Id.

The computer search revealed that the gun had not been reported as stolen. Id. As to the individuals, the computer search revealed that the defendant in this case, Ms. Burke, had a criminal record in the state of Georgia with several convictions, although the records did not immediately reveal whether those were felony or misdemeanor convictions. TR at 35-36. Agent Smith had been told by Ms. Burke when he was inquiring as to the names of the individuals in the apartment that the weapon was hers, and upon discovering that Ms. Burke had some sort of a criminal record, he retained the weapon in his custody until such time as he could determine whether her prior conviction was for a felony or misdemeanor, since if it had been for a felony, the weapon was possible evidence of a federal firearms violation. TR at 36.

Other facts of significance for purposes of resolving the pending motion are that the reason Agent Smith took the weapon itself outside the apartment to the van, rather than just the serial number, was the safety of the officers inside the apartment. TR at 38. None of the individuals in the apartment, including the defendant, were read their rights pursuant to Miranda, since the agents did not have the intention of arresting anybody that day. TR at 39. One of the reasons Agent Smith asked who the gun belonged to was that he wanted to know to whom he should return it. TR at 39. Finally, the parties have stipulated that on July 19, 1984, a female caller, identifying herself as the defendant, spoke to Agent Benesh at the FBI office inquiring as to how she could get her gun back which the agents had seized on July 13, 1984. When Ms. Burke was told that since she had a felony record she could not possess a gun, Ms. Burke asked whether the gun could be returned if it belonged to her ex-husband. Defendant’s Objections to the Report and Recommendation of the Magistrate, p. 8.

The defendant has raised four objections to the Magistrate’s Report and Recommendation. First, the defendant argues that the seizure of the pistol and the computer check of its serial number were unconstitutional. Second, the defendant argues that the warrant in question is invalid since it failed to describe with particularity the premises to be searched, as required by the fourth amendment to the United States Constitution. Third, the defendant argues that there was no probable cause for issuance of the warrant, and fourth, the defendant argues that her statements with respect to the ownership of the weapon were obtained in violation of the fifth amendment. This court has reviewed the matter de novo, and concludes that defendant’s objection to the Magistrate’s Report and Recommendation with respect to the particularity with which the warrant described the premises to be searched is well-founded, and is therefore sustained. The other grounds on which defendant objects to the Magistrate’s Report and Recommendation are not persuasive.

After this court’s announcement of its ruling on defendant’s motion to suppress, the government filed a motion to supplement the record and for reconsideration. In support of said motion, the government submitted the affidavit of Agent Smith, in which he avers that he has discussed this matter with Agent Benesh, who told him that the confidential informant took Agent Benesh to the Carver Homes Housing Project, and pointed out the building and apartment belonging to the defendant. Specifically, according to Smith’s affidavit, Agent Benesh informed Smith that Benesh and the informant went to the location, the informant pointed out the building and apartment to Benesh, and that although Benesh did not observe a building number he did observe the apartment number 840 on the door. When Benesh executed the affidavit to obtain the search warrant, Benesh spelled the street name based upon a phonetic understanding of the informant’s pronunciation, included the building number which the informant had given him, and included the apartment number which he had seen himself. Benesh further told Smith that Benesh was unaware of any mistake in the street name or the building number given in the affidavit and on the warrant, and that Benesh had relied upon the apartment number rather than the building number in swearing out the affidavit for the warrant.

Smith’s affidavit further avers that according to the local directory of streets in metropolitan Atlanta, there is no “Throop” Street in the area. The court notes that the directory, which is attached to the affidavit as Exhibit 1, does indicate that in the Atlanta area there is a Thorpe Road. Finally, the affidavit avers that Smith went to the Carver Homes complex to determine whether there is a building number “38” in that complex, and Smith observed that the buildings adjacent to the defendant’s building are numbered “36, 42, and 52,” but that Smith observed no building number 38 on Troup Street at any point.

With respect to the constitutional sufficiency of the warrant at issue in this case, the court notes that the Magistrate’s recommendation of denial of the motion to suppress was predicated on the fact that there is only one apartment 840 located in the Carver Homes Housing Project. However, the fact that the apartment which was to be searched was located in the Carver Homes Housing Project was not contained in either the affidavit or the warrant. Had that information been contained in the affidavit or the warrant, the court would have little difficulty in concluding that the warrant contained a sufficient description of the premises to be searched. Cf. United States v. Melancon, 462 F.2d 82, 94 (5th Cir.), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1972). The proper legal standard for whether a warrant sufficiently describes the place to be searched is whether “the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises might be mistakenly searched which is not the one intended to be searched under the search warrant.” United States v. Sklaroff, 323 F.Supp. 296, 321 (S.D.Fla.1971), and cases cited. See also Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925).

This test looks to the face of the warrant to determine whether there is sufficient information to enable the executing officer to identify the place to be searched, but in some cases the information contained in the affidavit on which the warrant is based may provide adequate supplementation to make an indefinite description definite. See LaFave, Search and Seizure, § 4.5, pp. 74-75 (1978). Some cases have stretched this doctrine to the extent of including facts known by the executing officer which are not specifically stated in the affidavit, if the executing officer was the affiant, and the affidavit shows that the affiant had been to the premises which are being described in the warrant. Id. at p. 77. Neither of these doctrines can resurrect the warrant in the present case. The executing officer, Agent Smith, was not the agent who swore out the affidavit. In addition, the affidavit did not indicate on its face that the affiant had been to the location in question, and the affidavit provided no further clarification. The case at bar is not one where the warrant contained a minor error, but the officers had the premises in question under surveillance, or the address given in the warrant was a reasonable one for the officers to have assumed to be the actual address of the premises in . question. See United States v. Gitcho, 601 F.2d 369, 372 (8th Cir.1979). Rather, the warrant in this case had the wrong building number, and the street name listed a street which does not exist in the City of Atlanta. The only correct information given in this warrant is the apartment number. Given that information, the court cannot say that there is no reasonable probability that the wrong premises may mistakenly be searched under this warrant. As noted above, although there is no “Throop Street” in the City of Atlanta, there is a “Thorpe” Road and a “Troup” Street.

The test is whether the warrant contained sufficient information to enable the executing officer to locate the place to be searched. United States v. Darensbourg, 520 F.2d 985, 987 (5th Cir.1975). The executing officer in this case was Agent Smith, and neither the warrant nor the affidavit taken together provided him with sufficient information to locate- the premises he was to search. Agent Benesh apparently knew which apartment the informer was referring to, since Agent Benesh had been taken there by the informer. However, Agent Benesh was not the executing officer, and the test for whether a warrant is valid should not turn on the particularized knowledge of the officer who swears out the affidavit when that knowledge is not reflected in the affidavit.

The purpose of the requirement in the fourth amendment that a warrant describe with particularity the place to be searched is to minimize the possibility of searching the wrong premises. United States v. Prout, 526 F.2d 380, 387 (5th Cir.1976). Thus, minor errors or technical errors in the description contained in the warrant will not invalidate the warrant if other information either contained in the warrant, or the affidavit, or immediately apparent on viewing the premises, enables the officer executing the warrant to determine which premises is governed by the warrant. Id; United States v. Darensbourg, supra, at 988. See also United States v. Gusan, 549 F.2d 15, 17-18 (7th Cir.1977), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977).

In United States v. Parmenter, the Massachusetts District Court invalidated a warrant which authorized the search of an address described as “11 and 13 Benefit Street, Worchester, Massachusetts, a brick three-story duplex dwelling____” Upon execution of the warrant, the officers discovered that 11 and 13 Benefit Street actually contained eight apartments, and the officers searched all of them. The court noted that it would have been a relatively simple matter for the officers to determine prior to executing the affidavit for the warrant that the building in question in fact contained more than the two apartments which they thought they would be searching. Thus, the court held that there is a duty on the government, where possible, to provide detailed information in stating the premises to be searched in executing an affidavit for search warrant. United States v. Parmenter, 531 F.Supp. 975 (D.Mass.1982). This court concludes that this standard is a reasonable one. In Parmenter, the multioccupancy character of the building in question was apparent upon viewing the building itself. In the case at bar, it would have been a relatively simple matter for Agent Benesh, when he was taken to the location by the confidential informant, to have found out the building number and the name of the street, the apartment was located on, and to have included that accurate information in the application for a search warrant. Moreover, there is no question but that Agent Benesh could have included the information that the apartment in question was located in the Carver Homes Housing Project. He did not do so. Once signed, a search warrant may be executed by any duly authorized officer listed thereon. For example, the warrant at issue in this case was directed to John R. Benesh, or “any other authorized special agent of the Federal Bureau of Investigation.” There is no assurance that the officer who executed the affidavit will be present at the search, and an extra measure of care in making sure that the premises are described with particularity is therefore required. It appears to the court that had Agent Benesh not accompanied the searching officers who executed this warrant and told them over the radio when they reached the Carver Homes Project that apartment 840 was located in a building he indicated, the executing officers could not have executed this warrant, or might have executed it on the wrong premises.

In its motion for reconsideration, the government argues that this court should apply the “good faith exception” adopted by the Supreme Court in United States v. Leon, 468 U.S. ---, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and Massachusetts v. Sheppard, 468 U.S. —, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984). The Eleventh Circuit has held that the good faith exception of Leon and Sheppard should be applied in a situation where the basis for the motion to suppress was that the items in the search warrant were not particularly described. United States v. Accardo, 749 F.2d 1477 (11th Cir.1985). In United States v. Leon, the Supreme Court held that evidence seized pursuant to a warrant which was valid on its face, but which was later determined not to be supported by probable cause, should not be suppressed, if the officers executing the warrant acted in an objectively reasonable good faith belief in the validity of the warrant. 468 U.S. at --- - ---, 104 S.Ct. at 3419-20, 82 L.Ed.2d at 696-97. The court held that the purpose of excluding evidence which is obtained in violation of the Constitution is to deter police misconduct. Id. at --- - --, 104 S.Ct. at 3412-13, 82 L.Ed.2d at 687-88. As the court held, “if exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect, therefore, it must alter the behavior of individual law enforcement officers or the policies of their departments.” at ---, 104 S.Ct. at 3419, 82 L.Ed.2d at 695.

Given the rationale of United States v. Leon, this court concludes that the deterrent purposes of the exclusionary rule would be furthered by invalidating the warrant at issue in this case. The Court noted in Leon that when a warrant that later is determined to be without probable cause is issued, the error is the magistrate’s rather than the officer’s. “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of fourth amendment violations.” at-, 104 S.Ct. at 3420, 82 L.Ed.2d at 697. In the present case, there was no error by the United States Magistrate. Rather, the error was Agent Benesh’s in failing to make sure that he had the proper address for the apartment for which he sought a warrant. In issuing the warrant, the magistrate exercised none of his judicial judgment as to whether the address contained therein was proper. Cf. United States v. Leon, at --- - ---, 104 S.Ct. at 3416-17, 82 L.Ed.2d at 692-93 (probable cause should be determined by the magistrate, rather than the officer). The case at bar is also different from the situation in Massachusetts v. Sheppard, supra, in which the Court held that the good faith exception applied where the warrant contained errors on its face, which the officer called to the attention of the judge in question, and the officer was assured by the judge that the errors in the warrant would be corrected, and that the warrant was proper to execute. In the case at bar no one, including the officer, was aware that the address listed on the warrant did not exist. It is the officer who was in a position to make sure that the address was correct, however, not the magistrate.

The court concludes that the sanction of exclusion is appropriate in this case, since the fourth amendment imposes a duty on law enforcement officers to make sure that they are describing with accuracy and particularity the premises for which a warrant is sought. Therefore, the court concludes that this warrant is invalid as not describing with particularity the premises to be searched, and the good faith exception does not apply since the error in this case was the officer’s, not the magistrate’s. Therefore, defendant’s motion to suppress should be granted. The Magistrate’s recommendation is REJECTED, and defendant’s motion to suppress is GRANTED.

The defendant has made three other arguments in her objections to the magistrate’s report and recommendation. The first of these is that the warrant in question was not supported by probable cause. This argument is without merit. The proper test for whether there is probable cause when an affidavit and warrant are based on an informant’s tip is whether, under the “totality of the circumstances” there is probable cause to believe the contraband or evidence is located in a particular place. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983). Among the factors which are relevant for determining whether, in the totality of the circumstances, there is probable cause are: the informant’s veracity; the informant’s reliability; the informant’s basis of knowledge; and the degree of corroboration of the informant’s information. Id. The duty of a court reviewing the judgment of a magistrate that probable cause existed is to insure “that the magistrate had a substantial basis for concluding that probable cause existed.” 103 S.Ct. at 2332. In the present case, the magistrate had a detailed affidavit which contained descriptions of individuals who the victim of the theft believed to have been involved in the theft, which descriptions matched the confidential informant’s descriptions of the persons he thought were involved in the crime. The affidavit additionally contained information that the confidential informant had seen checks which could reasonably be believed to be the fruits of that crime in the possession of a man whom the confidential informant knew to live with his sister, Brenda. The affidavit also contained information concerning the confidential informant’s past reliability, and the information that the basis of his knowledge was personal observation and a conversation he had personally overheard. Under the totality of the circumstances, the court cannot say that the magistrate did not have a substantial basis for concluding that probable cause existed. Defendant’s argument in this respect is without merit.

The defendant additionally argues in the objections to the magistrate’s report and recommendation that the statements she made to police officers regarding ownership of the weapon should be suppressed as having been obtained in violation of her fifth amendment rights. Specifically, defendant argues that she was in the custody of the agents at the time the statements were made, but had not been given her rights under Miranda. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that a person be advised of his constitutional rights prior to a “custodial” interrogation. The danger at which Miranda is aimed is that under the compulsive or coercive aspects of a custodial situation, an individual would be more likely to make incriminating statements involuntarily, without knowing of his fifth amendment rights. United States v. Roark, 753 F.2d 991 (11th Cir.1985). Miranda does not apply, however, to general on-the-scene questioning as to facts surrounding a crime, or other general questioning which occurs in the course of investigating a crime. Id at 992, citing Miranda, 384 U.S. at 477, 86 S.Ct. at 1629. The Supreme Court has additionally noted that there are certain kinds of questioning which are not considered to be detention for purposes of the fifth amendment. These include requesting identification, and detaining the person while the officer communicates with others in an effort to verify or confirm the identification or to determine whether a person of that identity is wanted. See Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S.Ct. 2587, 2593 n. 12, 69 L.Ed.2d 340, citing 3 W. LaFave, Search and Seizure § 9.2, pp. 36-37 (1978).

The defendant in this case made three statements. First, when Det. Carson entered the bedroom and asked the defendant to stand up, he then asked whose gun was lying on the bed, and the defendant responded that it was hers. Second, when Agent Smith was asking biographical questions of the persons in the apartment, he inquired to whom the weapon belonged, so that he could return it to its proper owner after checking its serial number. At that time, the defendant responded that the weapon was hers. Finally, on July 19, 1984, a female caller who identified herself as the defendant, called Agent Smith in an effort to find out when she could get her weapon back. The defendant’s argument respecting the statements appears to be two-pronged. First, the defendant appears to be arguing that her rights under the fifth amendment have been violated as a result of her having been induced to give incriminating statements in the context of a custodial interrogation. Second, at least before the magistrate, the defendant appeared to be arguing that her statements were the product of an unlawful seizure, said seizure relating to the fact that the weapon had been taken by the officers.

Viewed in a fifth amendment light, in determining whether an individual is in custody for purposes of Miranda, this circuit applies a four-part test, first enunciated in United States v. Warren, 578 F.2d 1058 (5th Cir.1978) (en banc). See also United States v. Castro, 723 F.2d 1527, 1530 (11th Cir.1984), and United States v. Lueck, 678 F.2d 895, 900 (11th Cir.1982). In Warren, the court held that the focus should be on whether probable cause to arrest the person has arisen, whether the subjective intent of the officer is to hold the person, whether the subjective belief of the person was that he was in custody, and whether the investigation had focused on the person at the time of the interrogation. United States v. Warren, supra, at 1071. None of these factors are met in the present case. When Det. Carson first found the defendant seated on the bed and asked her to stand up, then spotted the gun on the bed, there was no probable cause to arrest the defendant, the officer did not have the subjective intent to arrest the defendant, and there was no evidence that the defendant believed herself to be in custody. The officer’s purpose in asking whose weapon it was, he testified, and the defendant has not controverted, was so that once he took the weapon into custody for safety reasons he could later return it to its proper owner. The same is true of the generalized questioning later in the course of the search of all six persons found in the apartment. There is no evidence that the defendant believed herself to be in custody, and, indeed, the officers testified that they had no intention of arresting anyone that day. At the time the questions were asked, and the defendant stated that the weapon was hers, there was no probable cause to arrest the defendant since the officers did not know at that time that the defendant had a record. Finally, the statement made on the telephone was voluntary and not the product of any questioning. This court concludes that none of the statements made by the defendant in this case were made in the context of a custodial interrogation, and therefore Miranda does not require suppression of her statements.

Although this circuit continues to apply the Warren test for custody in fifth amendment cases, see Castro, supra, it appears to this court that increasingly the test is becoming one of whether the individual “felt free to leave.” In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1979), a fourth amendment case, the Supreme Court held that the test for whether an individual has been “seized” for purposes of the fourth amendment is whether, in view of all of the circumstances, a reasonable person would have believed that he was not free to leave. 446 U.S. at 554, 100 S.Ct. at 1877. Examples of the kind of seizure to which the court referred included the threatening presence of several officers, display of a weapon, physical touching of the person, or use of the language or tone of voice to indicate the compliance with the officer’s request might be compelled. Id. Mendenhall is not a fifth amendment case, and hence did not deal with the question of whether the court’s enunciation of the standards for “seizure” would also apply in the context of “custody,” for purposes of the fifth amendment. However, in United States v. Castro, supra, the Eleventh Circuit held that the defendant in that case was in custody, since the government had conceded that the defendant was “deprived of his freedom.” 723 F.2d at 1530, n. 2.

The Supreme Court has recently analyzed Miranda in the context of whether the “fruit of the poison tree doctrine” from the fourth amendment should be applied to Miranda violations. In Oregon v. Elstad, — U.S. ---, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Court held that the fruit of the poison tree doctrine sweeps far broader than Miranda, and a Miranda violation does not necessarily create a presumption of irrevocable taint. Id. 105 S.Ct. at 1292. The purpose of Miranda, the Court noted, is to guard against the coercion of statements. In Elstad, the Court held that the officer had interrogated the defendant by telling the defendant, prior to giving the defendant his Miranda warnings, that he had heard that the defendant was involved in a robbery. The defendant responded that he had been at the house which was robbed. Subsequently, the defendant received his Miranda warnings, and thereafter signed a complete confession. The court held that the subsequent written confession did not have to be suppressed, although the defendant’s initial statement in response to the unwarned question should be suppressed. The Court held that there was no presumption of coercion created by the simple fact that Miranda warnings had not been given, and the court must look to the particular circumstances of every subsequent statement in order to determine whether they were voluntarily given. 105 S.Ct. at 1293.

Although the Elstad case is not on point, it does emphasize the dichotomy between the fourth amendment and the fifth amendment for purposes of determining whether evidence should be suppressed. Statements given without Miranda warnings are to be suppressed only when they occur in the context of a custodial interrogation. This is so because a custodial interrogation creates a presumption of coercion. Elstad, 105 S.Ct. at 1292. In the present case, the questioning did not occur in the context of custody. There is no evidence of record that the defendant did not “feel free to leave.” Absent some such evidence, the court concludes that defendant had not been “seized” for fourth amendment purposes.

In addition, the court notes that interrogation is defined as “words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” United States v. Glen-Archila, 677 F.2d 809, 815 (11th Cir.1982), citing Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The question asked by Det. Carson in the present ease as to whose weapon was on the bed after the defendant stood up was not a question which this court can say the officer should have known was reasonably likely to elicit an incriminating response. It is not a crime to own a weapon, and there is no evidence of record that Det. Carson knew that the defendant was a convicted felon, such that any response by her to that question could be incriminating. The same is true of the inventory-type question asked by Agent Smith, when he inquired as to the ownership of the weapon so that he could return it to the owner. Finally, there is no indication of coercion in the call made by Ms. Burke to Agent Smith. Although the defendant has argued that that statement was prompted by the unlawful seizure of the weapon, as is seen below, the seizure of the weapon was not unconstitutional.

In summary, the court concludes that the facts of this case do not reveal either that a custodial interrogation took place, or that the defendant did not feel free to leave rather than answer the questions she was asked. Viewed in that light, defendant’s motion to suppress the statements she made to the officers must be denied.

The final issue raised by the defendant is her argument that the seizure of the gun, and the search of its serial number, constituted an unlawful search and seizure in violation of the fourth amendment. The government has responded by arguing first that the weapon was seized while in the plain view of the officers, falling within the plain view doctrine. The defendant argues that the plain view doctrine is not applicable in the present case since there was no indication that the weapons were evidence of any crime. The plain view doctrine provides that where an officer has made a lawful entry into a particular location, and discovers evidence “inadvertently,” the officer may seize the property if it is “immediately apparent” to the officer that the item observed “may be evidence of a crime, contraband, or otherwise subject to seizure.” Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1540, 75 L.Ed.2d 502 (1983).

In the present case, had this warrant been valid, the officers would have been lawfully on the defendant’s premises. The defendant has not contested that the officer’s discovery of the weapon was inadvertent, or that the weapon was in the plain view of the officer. The defendant argues that it was not “immediately apparent” to the officer that the weapon could be evidence of a crime, contraband, or otherwise subject to seizure. However, it appears to this court that seizure of a weapon found in plain view while executing a warrant for other items is constitutional even absent evidence that that particular firearm is evidence of a crime. In United States v. Green, 634 F.2d 222 (5th Cir. Unit B 1981), the defendant’s premises were searched for evidence relative to drug dealing. The warrant did not specify firearms, but the court held that seizure of firearms found on the premises was proper under the plain view doctrine. 634 F.2d at 225, n. 4. Defendant’s primary argument does not relate to the officer’s seizure of the weapon, but to the computer search of its serial number which was subsequently conducted. As noted above, the weapon was initially seized for safety reasons, since the officer did not feel comfortable leaving a weapon inside the house while conducting a search pursuant to a warrant. Therefore, the officer took the weapon outside, and in the course of usual FBI procedure, ran a serial number check to determine whether the weapon was stolen. The court concludes that that action was not unreasonable. The officers had information which was contained in the warrant that the occupant of this apartment was a “fence” and it was not unreasonable for the officers to determine whether the weapon was a stolen one. Although the computer check revealed that the weapon was not wanted as being stolen, a simultaneous computer check on the defendant’s criminal record revealed that she had multiple convictions. The officer testified that in his experience a person who has multiple convictions almost certainly has a felony conviction among them. At that point, although there still was no confirmation that the defendant had a felony record, the officer had probable cause to seize the weapon as evidence of the crime of unlawful possession of a firearm by a felon. Once there was probable cause to seize the weapon, it is not relevant that it took several days to determine definitively that the defendant did in fact have a felony conviction. See United States v. Johns, — U.S. ---, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), in which the Supreme Court held that when the officers had probable cause to seize and open sealed containers located in a truck, and opened those packages three days later and found marijuana, suppression was not required simply because the officers had time to get a warrant to search the packages.

Moreover, the issue that the defendant has raised with respect to the computer search on the serial number of the weapon is simply not relevant. No evidence was obtained as a result of that search which could be used against the defendant even if that search was unconstitutional. In other words, even if running a computer check on the serial number of the weapon was unconstitutional, the officers obtained no “fruit” from that activity. The “fruit” came when the officers acquired sufficient facts to lead them to conclude that it was likely that the defendant in this case had a prior record of a felony conviction. This issue, viewed simply, is that officers executing a search warrant for certain documents came upon a weapon, and in the interest of safety, removed the weapon from the apartment for the duration of the search. That was not an unreasonable activity. Then, in the course of running a computer check on the occupants of the apartment, which the Supreme Court has indicated is permitted (see Michigan v. Summers, supra), the officers obtained information which led them to believe that the fact that the defendant had had possession of this weapon made the weapon evidence of a crime, since the officers had information which led them to believe that the defendant had a felony conviction. Detention of the weapon after that point without a warrant, therefore, did not violate the defendant’s constitutional rights. The officers came by possession of the weapon legally, and their continued possession after discovering the defendant’s prior record was based upon probable cause.

In summary, the Magistrate’s Report and Recommendation is REJECTED. The defendant’s motion to suppress is GRANTED, on the sole ground that the warrant in this case did not describe with sufficient particularity the premises to be searched. The remainder of the bases of defendant’s objections are without merit, and are rejected.


author: KEVIN THOMAS DUFFY, District Judge.

text:
    Joseph LAMONT, Plaintiff, v. UNITED STATES of America, Defendant.
    81 Civ. 6627 (KTD).
    United States District Court, S.D. New York.
    June 3, 1985.

      Paul C. Matthews, New York City, for plaintiff.
    Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., Janis G. Schulmeisters, Atty. in Charge, Torts Branch, Civ. Div., U.S. Dept, of Justice, New York City, for defendant; Paul M. Wasserman, New York City, of counsel.
   MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge.

The sea has fascinated man for ages. Sailors have been simultaneously held in pity and in awe. Even the law for centuries has held seamen to be wards of the court and special provision has been made in admiralty for those who go down to the sea in ships. Recent statutes designed primarily for landlubbers have not excluded seamen from their sweep and, at times, seeming contradictions appear between such statutes and the law of the sea. Collective bargaining agreements covering seamen have been written using landlubber’s terms and concepts and have produced similar anomalies. This is such a case.

The facts underlying the issues are not in dispute. The principal substantive issue is purely a question of law: is “overtime” normally paid to a healthy seaman to be included in calculating the benefits due to a seaman who becomes ill or is injured while in the service of a ship? Both sides have moved for judgment and have stipulated to the following facts.

On September 2, 1980, in Orange, Texas, the USNS SEALIFT ATLANTIC (“Atlantic”), a public vessel of the United States, commenced a voyage under foreign articles. The voyage terminated on August 18, 1981 in Corpus Christi, Texas. The Atlantic was chartered to the Department of the Navy, Military Sealift Command, and was operated and managed by Marine Transport Lines, Inc. (“MTL”).

Mr. Lamont began employment with defendant as an unlicensed seaman aboard the Atlantic in the capacity of a Qualified Member of the Engineering Department (“QMED”) at a base wage of $1,516.92 per month plus overtime and other benefits as provided for in the collective bargaining agreement between MTL and the National Maritime Union (“NMU”). Pursuant to the collective bargaining agreement, on December 16, 1980, a cost of living increase went into effect raising plaintiffs base wage to $1,557.42 per month. The vacation pay benefit was increased from $253.33 per month to $260.09 per month, and the overtime rate was increased from $13.13 per hour to $14.49 per hour.

On September 12, 1980, plaintiff signed off the ship’s articles at Houston, Texas after receiving a “not fit for duty” slip from the local United States Public Health Service Hospital for a recurrence of a back condition that was the result of an injury sustained while aboard another vessel. Plaintiff remained on “not fit for duty” status until April 20, 1981. From September 13, 1980 to April 19, 1981, plaintiff was paid by MTL maintenance and cure benefits totalling $1,760.00 and unearned gross wages totalling $11,241.39. Maintenance and cure were paid at a rate of $8.00 per day and unearned wages were paid at the full base pay rate prorated for each day plaintiff was not fit for duty. During the same period, $6,261.74 was paid by MTL to the NMU Pension Fund.

On April 20, 1981, after being declared fit for duty, Lamont attempted to obtain employment aboard the Atlantic by requesting permission from MTL. The request was denied. On April 24, 1981, plaintiff registered with the NMU hiring hall in New York and obtained employment aboard the USNS EXPLORER commencing June 22, 1981. From September 13, 1980 to April 19, 1981, plaintiff was paid by MTL, maintenance, wages, and cure total-ling $11,241.39. No overtime wages, however, were paid for this period. MTL also made payments totalling $6,261.74 to the NMU Pension Fund on the plaintiff’s behalf for pension and vacation benefits.

Plaintiff seeks base pay, overtime, and vacation pay from April 20, 1981 through June 21, 1981, plus overtime for the period of time that he received base wages (September 13, 1980 through April 19, 1981), plus attorney’s fees. Thus, Lamont seeks to receive unearned wages for the time until he was declared fit for duty and able to find new employment and overtime compensation for that same period of time.

It is well established that a shipowner has a duty to provide maintenance, wages, and cure to a “seaman who becomes ill or is injured while in the service of the ship.” Vella v. Ford Motor Co., 421 U.S. 1, 3, 95 S.Ct. 1381, 1382, 43 L.Ed.2d 682 (1975); see Griffin v. Oceanic Contractors, Inc., 664 F.2d 36, 39 (5th Cir.1981). The shipowner’s duty derives from the hazardous nature of the seaman’s work and is intended to encourage marine commerce. 421 U.S. at 3-4, 95 S.Ct. at 1382-1383. The responsibility for these benefits springs from the relationship of ship and seaman and not from the employment contract. See Isthmian Lines, Inc. v. Haire, 334 F.2d 521, 523 (5th Cir.1964). Furthermore, the right of the seaman to unearned wages continues either through the end of the voyage (or the end of the contractual period of employment) or until the seaman becomes fit for duty, whichever occurs first. See Griffin, 664 F.2d at 39; Vickers v. Tumey, 290 F.2d 426, 434 (5th Cir.1961).

I.

THE PROCEDURAL QUESTION

Citing Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967) and Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965), defendant argues that plaintiff is barred from any recovery because he has failed to exhaust his remedies under the NMU collective bargaining agreement. I disagree.

It has been held previously that a seaman is not proeedurally barred from pursuing judicially his statutory right to the prompt payment of earned wages by a failure to utilize his collective bargaining agreement grievance procedure machinery. See Arguelles v. U.S. Bulk Carriers, Inc., 408 F.2d 1065, 1071-72 (4th Cir.1969), aff'd, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). The Fourth Circuit reasoned that because Arguelles was “seeking the judicial adjudication or enforcement of his rights created by a federal statute which applies solely to seamen and the payment of their wages,” he did not have to use the “additional mode of redress for such seaman and which he may pursue, at his election.” 408 F.2d at 1071. Affirming the decision of the Fourth Circuit, the Supreme Court stated that it could “find no suggestion in the legislative history of the Labor Management Relations Act of 1947 that grievance procedures and arbitration were to take the place of the old shipping commissioners or to assume part or all of the roles served by the federal courts protective of the rights of seamen since 1790.” 400 U.S. at 356, 91 S.Ct. at 412. Although the Fourth Circuit and the Supreme Court limited its decision to a seaman’s claims for personal earned wages, see 400 U.S. at 357, 91 S.Ct. at 412, I find that the reasoning employed by those courts is similarly applicable to the instant case involving Lamont’s claim for unearned wages.

Maintenance, wages, and cure derive from the relationship between the ship and seaman. The seaman is entitled to these benefits even if there is no provision for such in the collective bargaining agreement. See Ladzinski v. Sperling Steamship & Trading Corp., 300 F.Supp. 947, 949 (S.D.N.Y.1969). The court in Ladzinski stated that:

[t]he duty to provide maintenance and cure and unearned wages is ... regarded as one implied and imposed by law; they are not “wages” in the same sense as wages which have been expressly agreed upon in consideration of services rendered. Even if the contract between the seaman and the shipowner makes no provision for maintenance and cure and unearned wages, they are recoverable under the general maritime law.

300 F.Supp. at 359.

The case of Korinis v. Sealand Services, Inc., 490 F.Supp. 418 (S.D.N.Y.1980), cited by defendant in support of its exhaustion defense, is unpersuasive. In Korinis, the court, reasoning that the seaman’s claims for transportation expenses and unearned wages were not claims for compensation for services rendered covered by 46 U.S.C. § 596, dismissed the claims because Korinis had not exhausted the procedures required by the collective bargaining agreement. Id. at 420. I do not see any basis for a distinction between a seaman’s right to earned wages and a seaman’s right to unearned wages insofar as the requirement to exhaust collective bargaining remedies is concerned. Nor does the court in Korinis suggest a basis for such a distinction. The right to unearned wages is “ancient”, and, as already stated, derives from the relationship between the ship and the seaman. It does not derive from the collective bargaining agreement. In this case, the collective bargaining agreement contains an arbitration provision and a grievance machinery provision. It does not address the issue of unearned wages though it does provide for maintenance at a rate of $8.00 per day.

In addition, one of the considerations underlying the exhaustion doctrine in the labor relations field is that the arbitrator would have greater expertise than a court in resolving disputes between employers and employees. In a maritime context such as this, however, federal courts have had some 180 years of experience in “protecting the rights of seamen and are not without knowledge in the area.” 400 U.S. at 356, 91 S.Ct. at 412.

Furthermore, the courts in Arguelles, in holding that no exhaustion requirement existed with respect to claims for earned wages, relied principally on the fact that the statute providing for the prompt payment of such wages predated the labor relations statute. Certainly then, the same reasoning should apply here. The right of a seaman to seek in federal court unearned wages, maintenance, and cure also predated all of the relevant labor relations statutes and, indeed, the relatively new method of resolving disputes through collective bargaining and arbitration. Thus, it is logical to permit the seaman to elect whether to pursue his claim through the bargaining agreement machinery. Such machinery should not be considered a mandatory substitute for the seaman’s right, grounded in ancient maritime law, to the prompt payment of wages. See Arguelles, 408 F.2d at 1071-72.

II.

THE QUESTIONS OF RECOVERY

A. Coverage

A minor question first arises as to whether Lamont may recover unearned wages for the April 20 through June 21 period. For the following reasons, I conclude that he may. The voyage terminated on August 18, 1981 but Lamont was declared fit for duty before that date. The parties have stipulated that on April 20, 1981, immediately after being declared fit for duty, Lamont unsuccessfully attempted to rejoin the Atlantic. On April 24, 1981, plaintiff registered with the union hiring hall in New York to obtain employment aboard another vessel. He obtained employment aboard the USNS EXPLORER commencing June 22, 1981. Thus, it is undisputed that as soon as plaintiff was declared fit for duty, he sought new employment.

The court in Warren v. United States, 75 F.Supp. 836 (D.Mass.1948), faced with a similar question, held that the seaman’s contract assures him of “protection during the period of actual illness and the subsequent period of looking for a suitable job.... ” Id. at 838. See generally M. Norris, The Law of Seaman § 544, at 18 (3d ed. 1970). The court in Warren stated;

The reason is that the seaman ought not to be left in the lurch during the period of time that he has been assured a job. This is important in all kinds of employment where the employee has a promise of a job for a fixed period. It is particularly important for a seaman who may be stranded in a foreign port. And It is consistent with the rationale of the contract that the seaman’s right may extend beyond the point when he is completely well.

Id. Cf. Griffin v. Oceanic Contractors, Inc., 664 F.2d at 39 (Griffin could only recover wages until he recovered because defendant held his position open for him; thus, the court did not reach the issue of whether a seaman must be both fit for duty and able to find suitable employment). The same logic which dictates that an injured seaman be awarded wages until he is declared fit for duty mandates that he be awarded wages until he has obtained new employment, provided, of course, that he makes a good faith effort to obtain employment after his recovery. Thus, I find that Lamont is entitled to wages from April 20, 1981 through June 21, 1981.

B. “Overtime”

Defendant contests plaintiff’s demand that “overtime” be included in the computation of his unearned wages. The parties have stipulated that average “overtime” earnings for a seaman such as plaintiff aboard the Atlantic was 91.33 percent of base wages, or $1,385.41 per month from September 2, 1980 to December 15, 1980 and $1,422.40 per month from December 16, 1980 to the voyage’s conclusion. See Stipulation of Facts, ¶ 11. Thus, much of the total income earned by a seaman on the Atlantic was “overtime” compensation. In light of the apparent custom and practice in this case of the seamen working a substantial amount of “overtime,” I conclude that Lamont is entitled to recover, in full, the compensation that he would have earned but for his illness or injury as such an assessment can be made without speculation. Cf. Burke v. Mathiasen’s Tanker Industries, Inc., 393 F.Supp. 790, 794 (E.D.Pa.1975) (held that seaman was not entitled to extra days pay for months containing 31 days where it was customary to pay seamen on a monthly basis); Robinson v. Pocahontas, Inc., 477 F.2d 1048, 1050 (1st Cir.1973) (plaintiff was entitled to payment through end of fishing season).

In ancient times the free men working on the galleys (generally the officers) would share in the fortunes of the ship. If the ship were lost they would receive little or nothing for their work. If the market turned against the shipowner, again their pay would reflect that fact. And, if the voyage were successful, the free men would share in the profits. Under English law in the days of wooden ships, the sailor received not only his pay but a portion of any prize money earned by the ship.

The whaling vessels sailing from our own New England ports paid the sailors not only wages, but a portion above that where the voyage was a success. These monies became part of the expectation of the sailor when signing articles. And the payment of unearned wages to an ill or injured seaman includes the full amount reasonably expected by the parties to be paid during the voyage.

In modern days this reasonable expectation includes “overtime.” The normal work day on board ship is not the “9 to 5 existence” of the land-locked employee. The life of the seamen is dependent on his ship and the welfare of the ship is dependent on the seaman. What chaos would result if the order “All hands to duty stations” were considered merely an invitation to work “overtime.” The expectation of “overtime” amounting to almost 100 percent of the base rate has led the parties to the major collective bargaining contracts covering American seamen to provide that generally sailors will be aboard ship only six months out of each year. This is done because it is the common expectation of the parties that the seaman will be able to earn the annual base income when “overtime” is included in the six months pay. I must conclude therefore that the unearned wages due to a seaman who becomes ill or injured aboard ship includes the “overtime” pay reasonably expected by the parties to be paid during the voyage. Defendant has cited no definitive case law and has presented no compelling arguments why “overtime” wages should be excluded here. Thus, plaintiff may recover “overtime” earnings for the period from September 13, 1980 through April 19, 1981.

Accordingly, plaintiff’s motion for summary judgment is granted and defendant’s motion is denied. Plaintiff is directed to submit a judgment on notice for $17,070.55. Plaintiff’s application for attorney’s fees, is granted. Written application, including detailed records is to be submitted within 14 days of the date hereof.

SO ORDERED.

      . A seaman's right to maintenance, wages, and cure, however, is distinguishable from other rights enjoyed by a seaman. For example, a seaman’s claim of an employer's discriminatory conduct arising out of a disciplinary action or a claim of unfair discharge would be proper subjects for arbitration or a grievance and the national labor relations policy underlying the labor laws would clearly be undermined if the seaman were not required to utilize the procedures agreed to by the union and management. See, e.g., Freedman v. National Maritime Union, 347 F.2d 167 (2d Cir.1965), cert. denied, 383 U.S. 917, 86 S.Ct. 910, 15 L.Ed.2d 671 (1966); Brandt v. United States Lines, 246 F.Supp. 982 (S.D.N.Y.1964).

      . The cases cited by defendant are not inapposite. The Fifth Circuit in Griffin did not reach the issue of whether the plaintiff had to be declared fit for duty and able to find suitable employment because Griffin obtained new employment two days after being declared fit. 664 F.2d at 39 n. 2. Nor was the question squarely presented to the court in Martinez v. Star Fish and Oyster Co., Inc., 386 F.Supp. 560, 565 (S.D.Ala.1974).

      . The authority cited by the defendant does not squarely address the issue of whether an injured seaman is entitled to "overtime" as part of his unearned wages, see, e.g., Martinez v. Star Fish and Oyster Co., Inc., 386 F.Supp. 560, 564 (S.D.Ala.1974); M. Norris, The Law of Seamen § 544 at 16 n. 17 (3d ed. 1970). Moreover, in Gajewski v. United States, 540 F.Supp. 381, 386 (S.D.N.Y.1982), I held merely that the plaintiff could not contend, on the one hand, that "overtime" violated the Jones Act and, on the other hand, claim "overtime” as due and owing under his wage claim. This case is distinguishable.


author: GETZENDANNER, District Judge:

text:
    UNITED STATES FIDELITY & GUARANTY CORP., a Maryland Corporation, Plaintiff, v. PUTZY, Leonard E. and McManus, Brian, individually and as co-partners d/b/a Professional Insurance Planners, Inc.; Professional Insurance Planners, Inc., a de facto Illinois corporation, and Putzy, Jean M., Defendants.
    No. 83 C 6083.
    United States District Court, N.D. Illinois, E.D.
    June 7, 1985.

      Leo Feldman, Arthur Raphael, Edward S. Margolis, Teller, Levit & Silvertrust, Chicago, 111., for plaintiff.
    Lawrence Kurbin, Tatel & Howlett, Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This diversity action involves a four count complaint seeking damages for insurance premiums due and unpaid. In Count I, plaintiff United States Fidelity & Guaranty Corp., a Maryland corporation, requests a judgment against Leonard E. Putzy, Jean M. Putzy, and Professional Insurance Planners, Inc., (hereafter PIPI) a de facto Illinois corporation, in the sum of $447,883.85. In Count II, plaintiff seeks a judgment in the same amount, plus punitive damages, against Leonard Putzy and Brian McManus as co-partners doing business as PIPI. Count III contains a prayer for judgment against Putzy and McManus as nondisclosed principals of PIPI. Finally, Count IV contains a prayer for judgment against Leonard Putzy and PIPI in the sum of $169,701.11, plus attorney’s fees, pursuant to an agreement and note dated June 10, 1981. Judgment by default has been entered on Counts I and IV against defendants Leonard Putzy, Jean Putzy, and PIPI, and default has been entered as to the other counts. The matter is currently before the court on the cross-motions for summary judgment of plaintiff and defendant Brian McManus (hereafter defendant) on Counts II and III. For the reasons set forth herein, the court enters judgment for McManus on both counts.

FACTUAL BACKGROUND

The following facts are undisputed. U.S. Fidelity & Guaranty Company is a Maryland Corporation licensed to do business in Illinois, with its principal place of business in Baltimore, Maryland. All defendants are Illinois citizens. On April 1, 1975, defendant Leonard Putzy (hereafter Putzy), then doing business as the L.E. Putzy Insurance Agency, entered into an Agency Agreement with plaintiff whereby he was granted authority to solicit and submit applications for U.S. Fidelity’s insurance and bonds. Around that same time, Putzy retained an attorney for the purpose of incorporating an insurance agency to be known as Professional Insurance Planners, Inc. (PIPI). On April 24, 1975, a certificate of incorporation was issued to the company and recorded with the Secretary of State. On December 1, 1976, PIPI was involuntarily dissolved by the Secretary of State for failure to pay its franchise tax or file an annual report.

As of April 30, 1980, Putzy had a past due balance owing to plaintiff of $104,185 for premiums collected but not transmitted. This balance due grew to $171,430 by the end of May, and the parties met several times to work out payment. On June' 10, 1980, Putzy entered into a new Agency Agreement with U.S. Fidelity on behalf of PIPI, a successor corporate agency. On June 12, 1980, Putzy, his wife Jean, Michael Wray, and Jim Peterson (potential purchasers of an interest in PIPI) signed a personal indemnity agreement to reimburse plaintiff against certain claims, and assigned all of PlPI’s stock to plaintiff to secure the delinquent balances owed.

During this period, Putzy used letterhead reflecting both the names Professional Insurance Planners, Inc., and L.E. Putzy Insurance Agency. In 1980, Michael Wray purchased 10% of the agency. In order to maximize tax benefits stemming from PIPI’s losses, Putzy directed his accountant, Richard Gallichio, to prepare multiple tax returns for the business. PIPI’s corporate return reflected “no transactions.” Gallichio also prepared a partnership tax return, however, for “Professional Insurance Planners” which reported the business’s gross receipts and declared a loss.

On March 26, 1981, plaintiff’s agent, Paul Jacob, suspended Putzy and PIPI’s agency effective April 15, 1981. On April 16, 1981, Jacob wrote a memorandum to plaintiff’s Vice-President indicating that the suspension had been lifted, and recommending that the suspension continue to be lifted on the condition that PIPI obtain $75,000 in new capital to be paid directly to plaintiff on or before May 21, 1981. In that letter, Jacob recognized that PIPI’s unstable financial condition presented a risk of unpaid premiums, but recommended the continuation because of the steady business.

The $75,000 capital was originally to be contributed $25,000 each by Putzy, Michael Wray, and Jim Peterson. The three parties also agreed to execute secured notes for the balance of the amounts owed. For reasons unexplained in the record before this court, the above deal fell through and Putzy appealed to Robert McManus, now deceased, and his son Brian for the money. The McManuses agreed to provide the capital as part of a stock purchase transaction. On May 7, 1981, McManus drew a check in the amount of $75,000, payable to Leonard Putzy and PIPI. The proceeds were accordingly turned over to plaintiff. On July 7, 1981, Putzy transferred 51% ownership of PIPI to the McManuses through a stock purchase agreement, a copy of which can no longer be found. Brian and Robert McManus thereby each became a 25.5% owner. Subsequent to the payment of the money, but before the stock purchase agreements were signed, McManus discussed the deal with his accountant, Paul Hoffman. Putzy had apparently advised both parties that PIPI was a Subchapter S corporation, with real estate holdings, and that its losses could therefore be deducted from personal income while the McManuses would have the security of owning land. At no time, however, has PIPI ever filed a tax return claiming Subchapter S status.

The only writing evidencing the above agreement is a stock certificate given to McManus and prepared by Paul Sheils, an attorney whom Putzy contacted to represent the McManuses in connection with the purchase. Sheils testified that he prepared the stock certificates as a new issue, based on Putzy’s representations as to the number of outstanding shares. (Sheils Dep. at 47-48). Nothing was ever filed with the Secretary of State to record the issuance of these shares, and Sheils made no attempt to secure plaintiff’s consent to the transfer or to ascertain that PIPI was a corporation in good standing. Sheils knew that Putzy had pledged 100% of PIPI’s stock to U.S. Fidelity, but did not inform McManus of that fact.

From July 1981 to September 1983, plaintiff continued to do business with PIPI. The amount of unpaid premiums grew from $102,920.77 to $232,444.50. During that same period, neither Brian McManus nor Robert McManus took an active role in the day to day operations of PIPI. Also during that period, Richard Gallichio continued to prepare multiple tax returns for PIPI which attributed all PIPI’s business transactions to the partnership Professional Insurance Planners and not to the corporation. Gallichio’s 1981 financial statements for PIPI, the corporation, fully reflect all transactions and list $76,000 in shareholder equity. Gallichio testified that he “amended” the books of the business from a corporation to a partnership in December of 1981, but never discussed this decision with the McManuses. (Gallichio Dep. at 40-43).

Paul Hoffman prepared the 1981 personal income tax return of Brian McManus. Hoffman received PIPI’s Schedule K-l (the one prepared by Gallichio) directly from Leonard Putzy. That K-l form listed PIPI as a partnership. Since the partnership and Subchapter S corporation forms are otherwise identical, however, Hoffman considered the use of a partnership form irrelevant and simply crossed out the numbers at the top of the form. Hoffman did not discuss Putzy’s use of the partnership forms with McManus. McManus listed the PIPI losses on his 1981 tax returns as arising from operation of a Subchapter S corporation, not a partnership.

In April of 1983, Putzy asked McManus to sit in on a meeting with U.S. Fidelity representatives. McManus sat in on several meetings and learned for the first time of PIPI’s liability to pay its extensive indebtedness to plaintiff. McManus also learned at this time that PIPI’s corporate charter had been dissolved back in 1976, that Putzy had pledged all the stock and holdings of PIPI to plaintiff, and that plaintiff intended to hold McManus personally liable for any unsatisfied portion of the debt.

Sometime during the summer of 1983, McManus also learned that Putzy had been diverting funds from PIPI. In September 1983, McManus met with the representatives of his father’s estate, and together they authorized Michael Wray, PIPI’s account manager, to run the business. Mc-Manus informed Wray that PIPI was probably going to go bankrupt; Wray’s job was therefore to wind up the business and ensure that no further funds were diverted.

LEGAL DISCUSSION

Because jurisdiction in this case rests solely on diversity of citizenship, state law supplies the rule of decision. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree that Illinois law governs. Plaintiff argues that the undisputed facts show Mc-Manus liable at common law as a stockholder in a defective corporation, or, alternatively, as an undisclosed principal of PIPI. Defendant argues that the undisputed facts establish non-liability. The court will begin its discussion with plaintiff’s claim against McManus as an undisclosed principal.

It is Illinois law that a third-party who seeks recovery from both an agent and a previously undisclosed principal must elect from whom to take judgment. General Refrigeration & Plumbing Co. v. Goodwill Industries, 30 Ill.App.3d 1081, 333 N.E.2d 607, 613 (5th Dist.1975); Vunder Wagen Bros. v. Barnes, 15 Ill.App.3d 550, 304 N.E.2d 663, 665 (1st Dist.1973). Although state doctrines of election of remedies are not always strictly followed in federal court, see, e.g., Roberts v. Sears, Roebuck & Co., 573 F.2d 976, 984 (7th Cir.), cert. denied, 439 U.S. 860, 99 S.Ct. 179, 58 L.Ed.2d 168 (1978), federal courts have respected the doctrine in the undisclosed agency situation, so long as a party proceeds to judgment against either the agent or the principal with full knowledge of the material facts underlying that decision. Guy James Construction Co. v. Trinity Industries, Inc., 644 F.2d 525, 543 (5th Cir.1981); Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 274 (5th Cir.1980). In this case, plaintiff moved for a default judgment against PIPI in full knowledge that it had a potential claim against McManus and Putzy as undisclosed principals, and has already satisifed that judgment by seizing numerous PIPI assets. U.S. Fidelity’s execution of judgment against PIPI, by Illinois law, discharged McManus from any liability under the theory alleged in Count III, even though PIPI’s assets may in the end prove insufficient to satisfy its liability. See Vander Wagen Bros., 304 N.E.2d at 665.

Defendant also argues that plaintiff’s execution of judgment against PIPI as a de facto corporation under Count I bars it-from proceeding against PIPI as a partnership. According to defendant, Counts I and II are alternative and inconsistent theories of recovery, since shareholders of a de facto corporation, unlike members of a partnership, may not be held personally liable for corporate debts in the absence of a positive statutory mandate. Inter-Ocean Newspaper Co. v. Robertson, 296 Ill. 92, 129 N.E. 523, 525 (1920). Defendant therefore argues that plaintiff’s execution of judgment against PIPI as a de facto corporation constitutes an irrevocable election of remedies and a bar against its now contending that PIPI is in fact a partnership.

Unlike the undisclosed agency situation, where the Illinois courts have long found recovery against an agent to relieve the undisclosed principal from liability, it is unclear whether plaintiff’s execution on PIPI’s assets would be considered repugnant to its claims that PIPI lacks de facto corporate status. Judgment against PIPI was entered by default, with no litigation or discovery on the legal consequences attached to the term “de facto” as it related to other issues before the court. Illinois courts have often refused to apply the doctrine of election where, as here, there is no threat of double recovery and the defendant has not changed its position in reliance on plaintiff’s conduct. Casati v. Aero Marine Management Co., 90 Ill.App.3d 530, 45 Ill.Dec. 789, 795, 413 N.E.2d 122, 128 (1st Dist.1981).

Defendant argues that plaintiffs default judgment against PIPI must operate as an estoppel or election because no enforceable judgment could have been entered without the court’s implied finding that PIPI was indeed a legal entity subject to suit. Were it true that Illinois law does not consider partnerships suable entities, the court would find in defendant’s favor on Count III. Defendant cites no authority regarding the status of partnerships as suable entities, however, and Illinois law appears to be otherwise. See, e.g., 111.Rev. Stat., ch. 110, 112-411. While the court concludes that plaintiff should have recognized the inconsistency in the theories underlying Counts II and III of its complaint, it would be unduly harsh to apply the doctrine of election of remedies where the judgment against PIPI was by default only and all of the facts underlying plaintiff’s claim against PIPI as a de facto corporation would be reconcilable with its claim against PIPI as a partnership. The court therefore turns to the merits of Count III.

The Illinois courts have never squarely addressed the legal issue presented by this case: whether a stockholder who invests capital in a defective corporation with almost no semblance of corporate formality, may be held personally liable as a partner on corporate debts even though he conducted no business on the corporation’s behalf. Plaintiff argues that when the state of Illinois dissolved PIPI’s charter, a sole proprietorship was created as a matter of law, and that this proprietorship became a partnership when McManus invested $37,500 in PIPI in order to purchase 25.5% of the business. Plaintiff further argues that application of de facto corporate status is inappropriate given PIPI’s utter disregard of corporate formalities. Defendant argues, by contrast, that, under Illinois law, subscribers to a defective corporation, whether de facto or not, are subject to personal liability only if they have actually participated in the transactions underlying the corporation’s debts.

Defendant has cited numerous Illinois cases for the proposition that, even in the absence of de facto status, a corporation’s shareholders cannot be charged with corporate debts at common law. Van Ameringen v. Cohen, 254 Ill.App. 576, 583 (1st Dist.1929); Churchill v. Thompson Electric Co., 119 Ill.App. 430, 434 (1st Dist.1905); Edwards v. Dettenmaier, 88 Ill.App. 366, 369-70 (1st Dist.1899); Edwards v. Cleveland Dryer Co., 83 Ill.App. 643, 655 (1st Dist.1899). Every one of these cases, however, addressed the statutory liability of stockholders under the old Business Corporation Act, (later Ill.Rev.Stat., ch. 32, § 157.150 (repealed 1984)), which expressly required active participation in the transaction creating a debt as a condition of liability. That statute was apparently not intended to change a creditor’s common law right of action against the incorporators or other members of a business as partners. M.H. Vestal Co. v. Robertson, 277 Ill. 425, 115 N.E. 629, 631 (1917). Defendant’s cases are therefore not controlling to plaintiff’s common law claim.

The other cases cited by defendant are distinguishable in that every one involves a de facto corporation, that is, a corporation whose members in good faith supposed they were legally incorporated to do business and substantially complied with corporate formalities. Plaintiff does not question the rules that shareholders of a de facto corporation cannot be held liable as partners at common law, or that business creditors who deal with a de facto corporation as such are estopped from denying its existence. See, e.g., Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67, 75, 27 N.E. 596, 597 (1891); Hoyt v. McCallum, 102 Ill.App. 287, 290 (1st Dist.1902). In order to qualify as a de facto corporation, however, the members of the defective corporation must show a colorable or apparent compliance with the statutory formalities for creating such entities. Inter-Ocean Newspaper Co. v. Robertson, 296 Ill. 92, 129 N.E. 523, 524-25 (1920). Putzy’s utter indifference to such formalities makes it apparent that PIPI is not a de facto corporation. The question therefore remains whether McManus is nonetheless protected due to his limited involvement in PIPI’s business.

Illinois courts have long espoused the doctrine that members of a defective corporation may be held personally liable for the debts of the business under certain circumstances. The basis for this liability, however, is not always clear. Some cases suggest that unincorporated associations are partnerships, with all the members therefore personally liable. M.H. Vestal Co. v. Robertson, 277 Ill. 425, 115 N.E. 629 (1917); Loverin v. McLaughlin, 161 Ill. 417, 44 N.E. 99 (1896); Bigelow v. Gregory, 73 Ill. 197 (1874). Other cases, however, have stressed the principle of agency law that a party acting on behalf of a legally incompetent principal cannot avoid personal liability for his or her conduct. Pilsen Brewing Co. v. Wallace, 291 Ill. 59, 125 N.E. 714, 715 (1919); Joseph T. Ryerson & Son v. Shaw, 277 Ill. 524, 115 N.E. 650 (1917); Seeberger v. McCormick, 178 Ill. 404, 53 N.E. 340, appeal dismissed, 175 U.S. 274, 20 S.Ct. 128, 44 L.Ed. 161 (1899).

The distinction between these two lines of authority is crucial for the present case. Under the partnership theory, personal liability may attach whether or not the individual member actively participated in the transaction creating the debt. Under the agency theory, by contrast, only active participants in the firm’s business are subject to personal liability. See generally Fletcher, Cyclopedia of Corporations, § 6648 (1984 ed.) The distinction has never been clarified under Illinois law, as in no case espousing the partnership theory did a party seek to hold a passive investor liable for corporate debts.

Plaintiff chiefly relies on the cases of Bigelow v. Gregory, 73 Ill. 197 (1874) and Robbins v. Butler, 24 Ill. 387 (1860) for the proposition that shareholders in a corporation which lacks both de jure and de facto status must be liable as partners for the corporation’s debts. In Bigelow, however, the court applied this rule to the founding incorporators of a business, not subsequent shareholders. Bigelow, moreover, concerned a situation where the incorporators only attempted to file a corporate charter after the debt in question accrued. The court’s refusal to sanction such a post-facto attempt to limit personal liability has little applicability to the present situation.

Robbins does contain language indicating that every member (i.e. stockholder) of an incompetent corporation may be held liable for the debts of the concern. However, in that case too, the defendants were the incorporating members of the business, and hence active participants in the overall concern if not in the particular transactions giving rise to the debt. At least two subsequent cases have referred in passing to Bigelow as creating a right of action against incorporators rather than shareholders, M.H. Vestal Co. v. Robertson, 115 N.E. at 631; Bushnell v. Consolidated, Ice Machine Co., 27 N.E. at 597, and it is therefore important to see how broadly Bigelow has been applied in later cases.

An examination of those subsequent cases reveals that plaintiff has exaggerated the breadth of that case. In Bushnell v. Consolidated Ice Machine Co., 138 Ill. 67, 27 N.E. 596 (1891), the Illinois Supreme Court held that the rule of Bigelow could not apply to the case of de facto corporation, and rejected a stockholder’s claim for an accounting against other stockholders as copartners. After remarking that partnerships can ordinarily be created by agreement only, the court briefly discussed the situations under which third parties may nonetheless sue incorporators on a partnership theory:

This rule will not prevent the enforcement of liability against persons as partners when sued by third parties. Parties may so conduct themselves as to be liable to third persons as partners, when in fact no partnership exists as between themselves. The public are authorized to judge from appearances in professions, and are not absolutely bound to know the real facts, while the certain proof is positively known to the alleged parties. On this latter ground, parties who have attempted to organize a corporation, but have failed to comply with the law so as to perfect their incorporation, may be held liable as partners to creditors as in Bigelow v. Gregory, 73 Ill. 197. This liability rests on the doctrine of estoppel. When, however, even a creditor has dealt with the corporation as such, partnership liability cannot be enforced, even though the corporation has not been legally organized____ It is wholly unnecessary, however, in this case to determine when and under what circumstances third parties may proceed against incorporators acting against a defective or imperfect organization, as individuals or copartners.

27 N.E. at 597-98.

Subsequent cases further bear out the theory that only incorporators or others who actively conduct corporate business can be held liable for the debts of the corporation at common law. In Seeberger v. McCormick, 178 Ill. 404, 53 N.E. 340, appeal dismissed, 175 U.S. 274, 20 S.Ct. 128, 44 L.Ed. 1129 (1899), the court expressed the following opinion: “We are disposed to agree ... that the principle on which individuals so associated are held as partners is ... in acting for and in the name of a presumed corporation which has no corporate existence.” 53 N.E. at 344. In Pilsen Brewing Co. v. Wallace, 291 III. 59, 125 N.E. 714 (1919), the Illinois Supreme Court again stated that non-statutory liability for corporate acts rests “on the rule of law that individuals [who] act under a corporate form ... when there is, in fact, no corporation ... have not thereby absolved themsevles from personal liability as partners.” 125 N.E. at 715. While the above cases are not dispositive in the sense that all concerned de facto corporations, the recurrent language of the court lends strength to defendant’s contention that the Bigelow theory has not been, and should not be, extended to the situation of a passive investor.

In the present case, it is undisputed that McManus did not participate in the transactions creating PIPI’s debt to plaintiff. In fact, McManus did no more than purchase and hold PIPI stock throughout the period giving rise to PIPI’s liability, even though he and his father collectively owned a majority share of the business. Plaintiff has pointed to no evidence suggesting that McManus got any benefit from his investment in PIPI other than the tax losses he claimed as a part owner in a Subchapter S corporation. More importantly, however, plaintiff has pointed to no affirmative act other than McManus’s investment of $37,500 on which plaintiff relied in extending further business to Putzy. The proceeds of that check were promptly paid over to plaintiff, who then decided to continue doing business with Putzy without any expectation that it could go after Mc-Manus’s assets in the event of default. Therefore, McManus’s involvement with PIPI did not fraudulently harm plaintiff, and the estoppel theory underlying Bigelow has no play.

One early case squarely supports defendant’s position. In Baker v. Bates-Street Skirt Co., 6 F.2d 854 (1st Cir.1925), appellants-defendants had undertaken to organize a corporation but failed to file the certificate for incorporation in the county registry. The trial court found that the corporation lacked both de jure and de facto corporate status, which findings were left undisturbed on appeal. The Court of Appeals, applying Massachusetts law, nonetheless reversed as to those defendants who had never participated in the transaction:

Those who acted as agents for the inchoate corporation acted without a principal behind them, because there was no body corporate capable of appointing agents, and so became principals in the transaction. Their mistake, though shared by the defendant subscribers to the stock, does not make those subscribers partners in the business done.

Id. at 858 (quoting Ward v. Brigham, 127 Mass. 24, 27).

The Illinois courts, at least in the context of de facto corporations, have expressed similar concerns to those voiced by the First Circuit in Baker. In Inter-Ocean Newspaper Co. v. Robertson, 296 Ill. 92, 129 N.E. 523, the Illinois Supreme Court stated that parties who deal with a company as a corporation as such should generally not be allowed to claim more than they originally bargained for and hold the stockholders personally liable in the absence of some wrongdoing on the stockholders’ parts. As the court noted,

“It is by no means always practicable for purchasers of stock to examine every step taken in the organization of the corporation, and to hold them individually liable for its debts seems contrary to reason and justice, where there had been no fraud, but an honest effort had been made to effect a legal organization, and both the incorporators and the stockholders in good faith believed the corporation legal, but some mistake or omission had been made such as here.”

129 N.E. at 525-26.

Similarly, in Hoyt v. McCallum, 102 Ill.App. 287 (1st Dist.1902), the court expressed the opinion that to permit creditors to hold stockholders as liable, in the absence of deliberate fraud, is “to disregard the contract, representation and understanding under which credit was extended, and to give to creditors not only that for which they never contracted, but which it was definitely understood they were not to have.” Id. at 291-92. The court expressed the opinion that the consequences of such a doctrine would be “most serious” given the practical impossibility for each stockholder to “know that all the steps necessary to the creation of a de jure corporation have been taken.” Id.

Although the above cases dealt with corporations which in good faith dealt as such, the logic of those cases extends to the situation of a stockholder who negligently but unknowingly invests in a corporation which lacks even de facto status. The court assumes on the record before it that Putzy made no honest effort to effect a legal organization. Plaintiff has been unable, however, to show any active misconduct on McManus’s part which would justify the extraordinary remedy of holding him liable for the business debts of PIPI. Absent any evidence that McManus knew of PIPI’s prior dissolution, to hold Mc-Manus liable for PIPI’s debts would be to give plaintiff more than it bargained for while denying McManus the shield against personal liability he thought he was entitled to as the purchaser of stock in a closed corporation.

Plaintiff has made some attempts to suggest misconduct on McManus’s part by pointing out the questionable tax motives behind McManus’s investment and his lack of concern for corporate formalities in purchasing stock. The inferences to be drawn from McManus’s negligence or tax motives, however, do not make him a copartner doing business as PIPI, nor do they suggest the sort of misconduct which would render equitable holding McManus liable for PIPI’s debts. These debts were incurred by plaintiff in full knowledge that Putzy might divert funds and without any expectation of going after McManus’s individual assets in the event of default.

Plaintiff has also attempted to color McManus’s motives by alleging that he engaged in a stock watering scheme to obtain control of PIPI to the detriment of plaintiff’s collateral. These allegations, however, are without any factual support in the record. Plaintiff has offered no evidence to rebut McManus’s testimony that he did not know about Putzy’s pledging of PIPI stock, and there is no factual basis for finding any detriment to plaintiff’s collateral where the shares of stock sold to Mc-Manus have proven valueless, where Mc-Manus has reaped no profits from PIPI, and where plaintiff has been able to execute judgment on all of PIPI’s assets.

The court therefore grants the defendant’s motion for summary judgment on Counts II and III.

It is so ordered.

      . This conclusion is subject to reevaluation in light of Steve’s Equipment Service, Inc. v. Riebrandt, 121 Ill.App.3d 66, 76 Ill.Dec. 612, 459 N.E.2d 21 (2d Dist.1984). In that case, the Illinois Appellate Court held that, under the Business Corporation Act, officers who contract on behalf of an involuntarily dissolved corporation arc personally liable only if they knew or should have known of the dissolution. 459 N.E.2d at 24. The court rejected the plaintiff's argument for liability under common law agency principles on the ground that Joseph T. Ryerson & Son v. Shaw, 277 Ill. 524, 531-32, 115 N.E. 650 (1917), the plaintiff’s chief case, had been decided in the absence of a statute governing liability. The court remanded for a new trial, and held that the issue of liability would be resolved under the statute alone. This court finds Steve’s Equipment Service persuasive evidence that an Illinois court sitting today might find the common law principles of Bigelow (which are somewhat different from those in Ryerson) altogether supplanted by statute. However, in light of the unambiguous statement in M.H. Vestal indicating otherwise, the court will proceed to address defendant’s liability under the common law.