United States v. Don Bruce Duncan

FLETCHER, Circuit Judge,

dissenting:

• Because I disagree with two important aspects of the majority’s opinion, I must respectfully dissent.

I. Legality of the Stop and Search of Duncan.

I find the majority’s approach to the question of the legality of the stop and seizure in this case flawed in several respects.

*981 The first question in assessing the validity of a search conducted by federal officials must be whether the official in question is acting pursuant to some statutory or other authority. Only if some purported authority is shown must we continue to the second question, that is, whether the grant of .authority for the search is itself consistent with the fourth amendment and thus constitutional. The Supreme Court has repeatedly .employed this two-step analysis. See, e.g., United States v. Ramsey, 431 U.S. 606, 615 , 97 S.Ct. 1972, 1978 , 52 L.Ed.2d 617 (1977); United States v. Brignoni-Ponce, 422 U.S. 873, 876-78 , 95 S.Ct. 2574, 2577-78 , 45 L.Ed.2d 607 (1975).

In United States v. Williams, 617 F.2d 1063, 1074 (5th Cir.1980) (en banc), the Fifth Circuit discussed the correct procedure for inquiry - concerning a search by federal officials. The court concluded that a search carried out by such officials in the absence of authority is unconstitutional per se. “[I]f the Government can point to no authority for a challenged search or seizure, a court must conclude, without any further consideration, that the search and seizure was unconstitutional.” Id.

The majority fails to acknowledge the need for some grant of authority before any federal search can be legal, and does not identify any authority for the search undertaken here. Although it correctly cites Williams for the proposition that “the source of authority for a seizure or search need not be statutory,” at 977 n. 7, the majority is wrong in reading the statement to mean that no authority is required. Williams was a case that involved a question concerning the propriety of the Coast Guard’s warrant-less search of a Panamanian-registered vessel in international waters. 617 F.2d at 1070-71 . The statement quoted by the majority was plainly premised upon Supreme Court dicta in Ramsey to the effect that under some circumstances, authority for searches may be derived from inherent Executive authority. The factual context of Williams reveals that the type of Executive authority referred to was the President’s plenary power to conduct foreign affairs. 1 The status of the Executive as the nation’s sole representative in foreign affairs has long been held to justify Executive action where international relations are concerned even without statutory authority. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 320 , 57 S.Ct. 216, 221 , 81 L.Ed. 255 (1936). Under the facts of the present case, involving a search of an American citizen as he leaves the United States, there can be no plausible claim that the Customs Service acted pursuant to the Executive’s authority over international affairs, nor does the majority attempt any such justification. 2

Any power to conduct the search involved in. the present case must be derived from 31 U.S.C. § 1105 (1976), 3 that grants the Cus *982 toms Service explicit authority to search travelers for unreported currency. The majority fails to address an essential question in this case, that is, whether section 1105 permits a random, warrantless search of a person leaving the U.S. to determine if that person is carrying unreported currency in excess of $5,000. Section 1105(a) provides that,

If the Secretary [of the Treasury] has reason to believe that monetary instruments are in the process of transportation and with respect to which a report filed under section 1101 of this title [requiring disclosure of currency in excess of $5,000] has not been filed or contains material omissions or misstatements, he may apply to any court of competent jurisdiction for a search warrant. Upon a showing of probable cause, the court may issue a warrant authorizing the search of (1) One or more designated persons.

On its face, this provision plainly requires federal officials, including Customs agents, to obtain a warrant based on probable cause prior to conducting any search of a suspected currency carrier. It is arguable that section 1105(b), which states that “[t]his section is not in derogation of the authority of the Secretary under any other law,” may affect this conclusion. However, as noted above, there is no “other law” that specifically authorizes the Customs Service to search outgoing travelers upon less than probable cause. 4 In the absence of such specific statutory authority, a section 1105(a) warrant is required in order to search an outbound traveler for the purpose of discovering undeclared currency.

The legislative history to section 1105 5 provides persuasive evidence that Congress did not intend to allow warrantless searches of persons leaving the country. It comes in the supplemental statement of four senators on the Senate Committee on Banking and Currency, the committee that drafted section 1105. These senators commented that,

The bill considered by the committee contained a provision, the enforcement of which would have required the opening of mail and searches of individuals leaving the United States. The committee wisely amended this provision to require that a *983 search warrant be secured before any search could take place, thus protecting tourists and other travelers from unnecessary invasion of personal privacy.

5.Rep. No. 1139, 91st Cong., 2d Sess. 19 (1970) (supplemental views of Senators Bennett, Tower, Goodell, and Packwood). 6 This passage demonstrates that the senators who drafted section 1105 did not believe that persons leaving the country could be subjected to random warrantless searches under existing law, and intended to require search warrants for searches of outgoing travelers suspected of currency violations. The majority therefore commits a serious error when it concludes that the Customs Service is authorized to search departing travelers. 7

The majority would legitimize a random, warrantless search of a traveler leaving the United States against fourth amendment challenge solely on the basis of the so-called “border search” exception to the fourth amendment, as articulated in United States v. Tilton, 534 F.2d 1363, 1364-65 (9th Cir.1976).

The border search exception is founded upon certain peculiar attributes of such searches. As noted above, the Supreme Court has explained that warrantless border searches may lawfully be made “pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country.” United States v. Ramsey, 431 U.S. 606, 616 , 97 S.Ct. 1972, 1978 , 52 L.Ed.2d 617 (1977). Warrantless searches conducted at established customs search areas and border checkpoints are also deemed consistent with the fourth amendment in part because travelers have notice of the checkpoint and its location; the stops and searches have the appearance of being regular and authorized; officers in the field are not exercising unfettered discretion in deciding who is to be stopped; and the element of embarrassment and humiliation present in random individual stops is absent. Compare United States v. Martinez-Fuerte, 428 U.S. 543, 549 , 96 S.Ct. 3074, 3079 , 49 L.Ed.2d 1116 (1976) (stops at fixed checkpoints require no cause) with United States v. Brignoni-Ponce, 422 U.S. 873 , 881—82, 95 S.Ct. 2574, 2580-81 , 45 L.Ed.2d 607 (1975) (reasonable and articulable suspicion required to justify “roving patrol” stops near border). See also Delaware v. Prouse, 440 U.S. 648 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979) (random stops of motorists without cause violate fourth amendment); International Ladies’ Garment Workers v. Sureck, 681 F.2d 624 , 640—41 (9th Cir.1982) (discussing similar issue).

None of these considerations underlying the constitutionality of warrantless border searches applies to the search involved in the present case. As the court in Ramsey itself recognized, the sovereign prerogative of defense applies only to justify scrutiny of incoming travelers, not of departing ones. Further, there was no limit on the discretion of the Customs agents as to when and where they might perform the currency search involved here. Nothing in the record of this case indicates that such stops are routine or expected. Duncan was singled out solely on the basis of his supposedly suspicious appearance, and there was no visible or regularized checkpoint at which he could know he might be stopped. Thus, the argument that a warrantless search is permissible at a border or its “functional *984 equivalent” because a traveler has notice that he may be searched certainly does not apply to the present case. I need not decide whether or under what circumstances departing travelers can be searched upon less than probable cause, to conclude that the search method chosen by the Customs Service in this case is inconsistent with the fourth amendment. 8 On both statutory and constitutional grounds, I would rule that the stop of Duncan was illegal and that the statements obtained from him as a fruit of that stop should have been suppressed.

II. Applicability of 18 U.S.C. § 1001 .

I also disagree with the majority’s conclusion that 18 U.S.C. § 1001 (1976) applies under the circumstances of this case to punish the appellant. The majority characterizes Duncan’s claim as an assertion that 31 U.S.C. §§ 1058 and 1101 preclude application of 18 U.S.C. § 1001 to convict him for his statements. The more basic question, that I would resolve in the. appellant’s favor, is whether 18 U.S.C. § 1001 was ever intended by Congress to apply to the appellant’s statement in the first place. 9

18 U.S.C. § 1001 is a statute that, taken literally, encompasses a very broad range of conduct. 10 Its blanket prohibition of false statements would seem to punish, for example, a person who wrongly identifies himself to an FBI agent who comes to the door to *985 serve a subpoena. Such a false statement differs little, in terms of materiality, moral culpability, or potential for misleading government officials, from the one involved in the present case. Yet in United States v. Bedore, 455 F.2d 1109 (9th Cir.1972), this court held that section 1001 cannot be used to punish this false statement, as a literal reading would suggest. Instead, the court examined the purpose and history of section 1001 and concluded that,

The statute was not intended to embrace oral, unsworn statements, unrelated to any claim of the declarant to a privilege from the United States of to a claim against the United States, given in response to inquiries initiated by a federal agency or department, except, perhaps where such a statement will substantially impair the basic functions entrusted by law to that agency. . ..

Therefore, Bedore’s false statement of identity given to [the federal officer] is outside the scope of section 1001.

455 F.2d at 1111 (citations omitted). Be-dore requires a more thorough examination of the applicability of section 1001 than the majority has undertaken.

Plainly, the statements used to convict Duncan in this case did not threaten to “substantially impair the basic functions entrusted by law” to the Customs Service. The Customs Service did not rely in any way upon the contents of the statements in question. Cf. Bedore, 455 F.2d at 1111 (“Typical of the kind of statements that are within the purview of section 1001 are false reports that may engender groundless federal investigations.”). Rather, Duncan’s statements were elicited in response to formal questions preceding a search that the agents evidently intended to perform no matter what the response.

The structure of the Currency Reporting Act strongly suggests that Congress did not believe or intend that section 1001 apply to punish false declarations regarding currency. 31 U.S.C. § 1101 (1976) states in part that “whoever ... knowingly [transports monetary instruments into or out of the United States] in an amount exceeding $5,000 on any one occasion shall file a report [detailing the amount of such money and its destination].” Had Congress considered section 1001 to be applicable to persons who fail to comply with this requirement, it would not have added a separate penalty for such violators. In fact, however, Congress enacted 31 U.S.C. § 1058 (1976), that provides, “whoever willfully violates any provision of this chapter [including section 1101] shall be fined not more than $1,000, or imprisoned not more than one year, or both.” Significantly, this penalty is a great deal lighter than the 18 U.S.C. § 1001 penalty (maximum of five years in prison and a $10,000 fine) that was applied to Duncan in the present case. Congress would not have provided for this specific penalty had it intended section 1001 to apply to violators of the new currency reporting statute when it was passed in 1970.

The only conceivable, but basically implausible, reason why Congress might have created the lesser penalty and still intended some play for section 1001, would be that Congress intended to distinguish between a simple failure to report and a currency reporting violation that is accompanied by affirmative misrepresentations, allowing punishment of the latter much more harshly than a “mere” failure to report. 11 This hypothesis finds no support in the legisla *986 tive history, however, and is conclusively refuted by the existence of 31 U.S.C. § 1059 (1976), entitled “Additional criminal penalty in certain cases.” This section imposes penalties of up to five years in prison and a maximum fine of $500,000 upon persons who violate 31 U.S.C. § 1101 in furtherance of the commission of some other violation of federal law or as part of “a pattern of illegal activity.” Section 1059 does not cross-reference section 1001; neither does it single out for “additional penalties” currency violators who make affirmative misrepresentations. Based on this evidence, I conclude that Congress never intended the sanctions of 18 U.S.C. § 1001 to apply to persons who falsely state that they are carrying no unreported currency in excess of $5,000. 12 I would reverse the appellant’s conviction on this basis 13 as well as on the basis of the illegality of the stop of Duncan.

The present statutory question is distinguishable from the one decided in United States v. Gilliland, 312 U.S. 86 , 61 S.Ct. 518 , 85 L.Ed. 598 (1941). That case held that the lesser penalty provided by Congress for reporting violations under the “Hot Oil Act,” 49 Stat. 30 (1935), should not be taken to mean that the forerunner to 18 U.S.C. § 1001 could not also be applied to punish persons who filed false reports concerning contraband oil. 312 U.S. at 95 , 61 S.Ct. at 523 . But unlike the currency smuggling problem that is the subject of the present case, the problem of contraband oil was specifically addressed by Congress when it amended section 1001 to its present form in 1934: Gilliland • itself acknowledges as much. The opinion describes the history of the statute as follows:

Legislation had been sought by the Secretary of the Interior to aid the enforcement of laws relating to the functions of the Department of the Interior and, in particular, to the enforcement of regulations under § 9(c) of the National Industrial Recovery Act of 1933 with respect to the transportation of ‘hot oil.’ The Secretary’s effort was due, as he stated, to the lack of a law under which prosecutions might be had ‘for the presentation of false papers.’

312 U.S. at 93-94 , 61 S.Ct. at 522-23 .

In the present case, by contrast, Congress cannot be said to have intended section 1001 as a sanction for the currency reporting statutes. Also, it is important that the false statements at issue in Gilliland were contained in written documents filed with the Government, unlike the oral, unsworn statements involved in Bedore and the present case. The Gilliland decision was premised on the view that section 1001 is basically intended to apply only to “false *987 and fraudulent papers,” including “affidavits, documents, etc.” 312 U.S. at 95, 96 , 61 S.Ct. at 523, 524 . Gilliland therefore is not inconsistent with the view I take in the present case, based on Bedore , that the oral statements of the appellant relating to excess undeclared currency are not within the purview of 18 U.S.C. § 1001 . 14

The Supreme Court in Williams v. United States, - U.S. -, 102 S.Ct. 3088 , 73 L.Ed.2d 767 (1982) employed the same type of narrowing construction of a statute proscribing federal false statements that I would apply in the present case. The issue in Williams was whether 18 U.S.C. § 1014 , that makes it a crime to “knowingly mak[e] any false statement or report, or willfully overvalue] any land, property or security,” may be used to punish defendants who engaged in a fraudulent “check-kiting” scheme involving the passing of worthless checks. Even though, as Justice Marshall’s dissent observed, such bad checks seem to fall within the common definition of a “false statement,” see 102 S.Ct. at 3098-99 , the Court ruled that the defendants had not made statements prosecutable under section 1014. In reaching this interpretation, it emphasized the fact that bad checks are plainly prohibited by other law.

Given this background — a statute that is not unambiguous in its terms and that if applied here would render a wide range of conduct violative of federal law, a legislative history that fails to evidence congressional awareness of the statute’s claimed scope, and a subject matter that traditionally has been regulated by state law — we believe that a narrow interpretation of 1014 would be consistent with our usual approach to criminal statutes.

I believe a similar interpretive approach should be taken in the present case.

. See, for example, the extensive discussion in Williams of the international law considerations raised by the circumstances of the search and seizure in that case. 617 F.2d at 1089-90 (majority opinion); id. at 1090-93 (concurring opinion).

. Without attempting to specify any source of authority for the search conducted in this case, the majority suggests that “a search made at a border is justified by the need of the sovereign to protect itself,” at 977 n. 7, citing United States v. Ramsey, 431 U.S. 606, 616 , 97 S.Ct. 1972, 1978 , 52 L.Ed.2d 617 (1977). This attempted justification cannot succeed, since the present case concerns the propriety of a search of a person leaving rather than entering the country. While it is hardly necessary to elaborate the illogic of a suggestion that searches of travelers leaving the United States are necessary to insure this country’s safety, it is worth noting that the cited passage in Ramsey itself incorporates this distinction. It states that “searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border....” 431 U.S. at 616 , 97 S.Ct. at 1978 (emphasis added).

More fundamentally, the majority ignores the fact that Ramsey did not address the “border search” exception to the fourth amendment at all until it had first determined that “the search . . . was plainly authorized by . .. statute.” Id. at 615 , 97 S.Ct. at 1978 . The majority in this case has made no such determination.

. 31 U.S.C. § 1105 (1976) provides that,

(a) If the Secretary has reason to believe that monetary instruments are in the process of transportation and with respect to which a report required under section 1101 of this *982 title has not been filed or contains material omissions or misstatements, he may apply to any court of competent jurisdiction for a search warrant. Upon a showing of probable cause, the court may issue a warrant authorizing the search of any or all of the following:

(1) One or more designated persons.

(2) One or more designated or described places or premises.

(3) One or more designated or described letters, parcels, packages, or other physical objects.

(4) One or more designated or described vehicles.

Any application for a search warrant pursuant to this section shall be accompanied by allegations of fact supporting the application.

(b) This section is not in derogation of the authority of the Secretary under any other law.

. 19 U.S.C. § 482 (1976), the principal section authorizing customs searches, is limited to searches of persons “on whom [the Customs Service] shall suspect there is merchandise which ... shall have been introduced, into the United States in any manner contrary to law.” (emphasis added.)

I can find no other statute that purports to authorize a random, warrantless search of a traveler leaving the country.

. The main Senate Report describes section 1105 as follows:

The Secretary is given authority to conduct searches to enforce compliance provided he first obtains a search warrant from any court of competent jurisdiction upon a showing of probable cause. The purpose of the warrant is to avoid an excessive burden on persons entering or leaving the country. However, nothing in the bill would limit the authority of the Secretary to conduct searches under existing law. Should unreported currency be discovered pursuant to a search by the Bureau of Customs under its existing legal authority, the person transporting the currency would be subject to the penalties under this legislation if the discovery of the unreported currency was incidental to the main purpose of the search.

S.Rep. No. 1139, 91st Cong., 2d Sess. 7 (1970) (emphasis added). Here, possible discovery of unreported currency was the main purpose of the stop and search of Duncan. The Senate Report strongly suggests that Congress did not intend the section 1105(b) “other law” exception to sanction a warrantless search of this kind.

. The history of section 1105, referred to by the senators, is significant. The provision was present in the initial Senate version of the bill, but not in the version enacted by the House. See 116 Cong.Rec. 16970 (1970). The House later agreed to the Senate provision in conference committee without significant comment. See H.R.Conf.Rep. No. 1587, 91st Cong., 2d Sess. 27 (1970), U.S.Code Cong. & Admin.News 1970, p. 4394.

. It is interesting to note the Fifth Circuit’s position regarding this issue, recently expressed in United States v. Rojas, 671 F.2d 159 (5th Cir.1982). In affirming the conviction of a woman searched as she prepared to leave the country, the court refused to decide whether either section 1105 or, more generally, the fourth amendment, permits warrantless “border searches” of departing travelers. Id. at 164 .

Instead, it rested its decision on the fact that the defendant had consented to the search, thereby making the search one “authorized under existing law” within the meaning of section 1105. Id. at 166-67 .

.My conclusion is in disagreement with the Second Circuit, which has approved warrant-less searches of the luggage of a departing traveler, United States v. Swarovski, 592 F.2d 131, 133 (2d Cir.1979), and of containers destined for export, United States v. Ajlouny, 629 F.2d 830, 833-34 (2d Cir.1980), cert. denied, 449 U.S. 1111 , 101 S.Ct. 920 , 66 L.Ed.2d 840 (1981). These decisions rely in my view unjustifiably on an off-hand piece of dictum in California Bankers Assn. v. Shultz, 416 U.S. 21, 63 , 94 S.Ct. 1494, 1518 , 39 L.Ed.2d 812 (1974) (“if those entering and leaving the country may be examined as to their belongings and effects, all without violating the Fourth Amendment, we see no reason to invalidate the Secretary’s [reporting] regulations here”). The Second Circuit’s reading of Shultz is inconsistent with the Supreme Court’s decisions in Delaware v. Prouse, Brignoni-Ponce, and Martinez-Fuerte , all noted supra. Border or no border, the Supreme Court has never authorized random, warrantless stops or searches of departing travelers.

Both the majority and the Second Circuit have relied heavily upon United States v. Stanley, 545 F.2d 661 (9th Cir.1976), cert. denied, 436 U.S. 917 , 98 S.Ct. 2261 , 56 L.Ed.2d 757 (1978), to support their conclusion that probable cause and a warrant are unnecessary for a departure search. See Ajlouny, 629 F.2d at 834 n. 3. However, Stanley is a special case. Stanley was concerned with the legality of a stop and search by the Coast Guard, on reasonable and articulable suspicion falling short of probable cause, of a vessel crossing from United States waters into international waters. 545 F.2d at 663-64 . Under these circumstances, the stop and search involved could and should have been upheld not as a border search but as a search conducted pursuant to the specially strong interest of the Executive in securing international waters contiguous to the United States. In such waters, any reasonable suspicion that contraband or evidence of criminal activity will be found is enough to justify a stop. Cf. United States v. Williams, 617 F.2d 1063, 1087 (5th Cir.1980) (en banc). Such a reasonable suspicion plainly existed under the facts of Stanley. See 545 F.2d at 667 (Kilkenny, C.J., concurring).

. The majority correctly notes that three previous Ninth Circuit cases have affirmed 18 U.S.C. § 1001 convictions for false statements regarding unreported currency carried into the country. These cases are United States v. Carrier, 654 F.2d 559 (9th Cir.1981); United States v. Moore, 638 F.2d 1171 (9th Cir.1980), cert. denied, 449 U.S. 1113 , 101 S.Ct. 924 , 66 L.Ed.2d 842 (1981); and United States v. Masters, 612 F.2d 1117 (9th Cir.1979), cert. denied, 449 U.S. 847 , 101 S.Ct. 134 , 66 L.Ed.2d 57 (1980). However, none of these cases addressed the statutory considerations which in my view should properly control the issue. See United States v. Anderez, 661 F.2d 404 , 408 n. 13 (5th Cir. 1981) (citing Moore as Ninth Circuit authority on statutory issue, but acknowledging that our circuit has not confronted the issue squarely). Therefore, I believe that these precedents are properly open for reconsideration in light of Duncan’s statutory claim.

. The section provides that,

Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.

. This hypothesis is contrary to an alternative interpretation that all violations of 31 U.S.C. § 1101 (and § 1058) also violate 18 U.S.C. § 1001 . See United States v. Masters, 612 F.2d 1117, 1122 (9th Cir.1979), which repeatedly states that a defendant’s section 1001 conviction was for “concealing a material fact.” This language suggests that no affirmative misrepresentation of any kind is needed to violate section 1001, provided that “concealment” has occurred. Thus, under the majority’s view, any willful failure to make the reports required by 31 U.S.C. § 1101 could form the basis for a section 1001 prosecution. See also United States v. UCO Oil Co., 546 F.2d 833, 836 (9th Cir.1976), cert. denied, 430 U.S. 966 , 97 S.Ct. 1646 , 52 L.Ed.2d 357 (1977) (characterizing coverage of section 1001 as follows: “The law of fraud knows no difference between express misrepresentation on the one hand and implied misrepresentation or concealment on the other.”)

. As a general rule, subsequent Congressional measures carry little weight in an inquiry concerning the intent underlying a prior enactment. The present statutory question,- however, is unusual in this regard, because Congress could not in 1936 have had any “intent” to punish statements that were not then material to anything within the scope of a federal interest, i.e., currency reporting. If 18 U.S.C. § 1001 is to apply to the false statements involved in the present case, it is only because the subsequent 1970 passage of the currency reporting statute subjected them to such coverage. Therefore, the question whether Congress in 1970 intended to extend the coverage of section 1001 to embrace false statements concerning transported currency is indeed a proper focus for our inquiry in this case.

. The majority’s conclusion is also erroneous for a separate reason, one that can be wholly derived from Ninth Circuit precedent. All three cases affirming section 1001 convictions of defendants who falsely stated that they were not carrying excess currency involved defendants who were carrying currency into the country. These cases rely on this circumstance to uphold the conviction. Bedore was reconciled in these cases only by virtue of a theory that the false statements related to a “privilege” granted by the Government, that is, the “privilege of entry” into the United States. See United States v. Carrier, 654 F.2d 559, 561 (9th Cir.1981); see also United States v. Rose, 570 F.2d 1358, 1364 (9th Cir.1978).

The present case involved statements made by a defendant as he attempted to leave, not enter, the country. Since leaving the country is not even arguably a government-granted privilege, the distinction employed in Carrier and Rose plainly cannot be used here. Although 1 do not necessarily consider the “privilege of entry” theory to be consistent with Bedore , still I believe the majority is wrong to ignore the significance of later cases that have relied on the distinction to permit section 1001 convictions.

. For cases from other circuits that reach a contrary result see United States v. Anderez, 661 F.2d 404 (5th Cir.1981) and United States v. Fitzgibbon, 576 F.2d 279 (10th Cir.), cert. denied, 439 U.S. 910 , 99 S.Ct. 279 , 58 L.Ed.2d 256 (1978).