61 F.3d 919
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent.  This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Jonathan W. CHUDSON, Petitioner,v.ENVIRONMENTAL PROTECTION AGENCY, Respondent.
No. 95-3135.
United States Court of Appeals, Federal Circuit.
July 14, 1995.Rehearing Denied Sept. 8, 1995.

Before ARCHER, Chief Judge, NEWMAN, and LOURIE, Circuit Judges.
DECISION
LOURIE, Circuit Judge.

1
Jonathan W. Chudson petitions for review of the October 27, 1994 final decision of the Merit Systems Protection Board, Docket No. DC0330920437-M-1, affirming the Environmental Protection Agency's decision not to select Chudson for the position of Supervisory Criminal Investigator.  Because Chudson has not demonstrated any error in the board's decision, we affirm.

DISCUSSION

2
Chudson was employed with the EPA until October 1990, when he was separated from the service pursuant to a settlement agreement.  In accordance with the agreement, Chudson was placed on the EPA's Reemployment Priority List ("RPL").  See 5 C.F.R. Sec. 330.201 (1995).  In October 1991, Earl E. Devaney was appointed Director of the Office of Criminal Enforcement at EPA.  Following his appointment, he created a new position with the agency, Supervisory Criminal Investigator, GM-14.  In December 1991, Devaney asked a former colleague, James M. Catlett, if he would be interested in the job.  Catlett was a Supervisory Criminal Investigator with the Department of Treasury's Bureau of Alcohol, Tobacco, and Firearms.

3
In January 1992, Zandra I. Kern of EPA's personnel office informed Devaney that Chudson was on the agency's RPL and had to be considered before the position could be filled from outside the agency.  Devaney then interviewed Chudson but decided not to hire him.  Devaney concluded that Chudson lacked certain critical experience and, accordingly, that the agency would suffer an "undue interruption" if Chudson were placed in the position.  See 5 C.F.R. Sec. 330.207(d) (1995) ("An agency may make an exception to this subpart and appoint an individual who is not on the RPL ... only when necessary to obtain an employee for duties that cannot be taken over without undue interruption to the agency by an individual who is on the RPL....").  Devaney detailed his reasons for not selecting Chudson in a February 3, 1992 memorandum.  The EPA then hired Catlett for the position.

4
Chudson appealed his nonselection to the board.  See 5 C.F.R. Sec. 330.209 (1995).  The board affirmed the agency's action.  On appeal to this court, however, we held that the board had improperly excluded the testimony of three witnesses:  John W. West, Zandra I. Kern, and Thomas T. Sheehan.  Chudson v. E.P.A., 17 F.3d 380, 384-85 (Fed.Cir.1994).  We vacated the board's decision and remanded the case to permit Chudson to elicit the testimony of these witnesses.

5
On remand, Chudson was permitted to call West, Kern, and Sheehan to testify.  Neither West nor Kern offered any relevant testimony.  Sheehan testified as an expert witness.  He stated that, in his opinion, the position was a standard desk officer job and that placing Chudson in the position would not have caused the EPA an undue interruption.  At the conclusion of the proceeding, the Administrative Judge ("AJ") found that, contrary to Sheehan's assertion, the position was not a standard desk officer job.  The AJ also found that Sheehan's testimony did not rebut the EPA's evidence that selecting Chudson would have caused an undue interruption.  The AJ therefore concluded that the agency's decision not to hire Chudson conformed with governing regulations.  The AJ's initial decision became the final decision of the board when the board denied Chudson's petition for review.  5 C.F.R. Sec. 1201.113 (1994).  This appeal followed.

6
The scope of our review of a board decision is limited by statute.  We must affirm the decision unless it is shown to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;  (2) obtained without procedures required by law, rule, or regulation having been followed;  or (3) unsupported by substantial evidence.  5 U.S.C. Sec. 7703(c) (1994).

7
On appeal, Chudson argues that the board applied the wrong legal standard in determining whether his appointment would have caused an undue interruption.  Chudson contends that the board considered whether he met the qualifications deemed necessary by Devaney rather than the qualifications listed in the official position description.  Chudson asserts, in essence, that the board required him to possess qualifications beyond those listed in the position description.  In support of his argument, Chudson relies on an excerpt from the AJ's initial decision:

8
Given these position qualifications, nothing in Mr. Sheehan's testimony contradicted Mr. Devaney's prior testimony that the appellant did not have the background and experience necessary to perform the duties of the position without undue interruption.  Mr. Sheehan provided no evidence that the appellant had supervisory experience in other than a brief acting capacity, or that he had the policy-making, budget, systems management, personnel, or training experience deemed necessary by Mr. Devaney.   Mr. Sheehan provided no persuasive evidence that the background and experience sought by Mr. Devaney for the incumbent of the Supervisory Criminal Investigator should not have been necessary.  Mr. Sheehan, I conclude, did not rebut the testimony of Mr. Devaney that the appellant's selection would have been an undue interruption (emphasis added).

9
Although the highlighted portion of the analysis refers to the qualifications deemed necessary by Devaney, the preceding sentence states that, given the position qualifications, Chudson lacked the background and experience needed to perform the duties of the position without undue interruption.  Thus, it does not appear that the AJ ignored the position description.  Moreover, a comparison of Devaney's memorandum outlining his reasons for not selecting Chudson with the thirteen "major duties and responsibilities" defined in the position description shows that there were no substantive differences between the qualifications "deemed necessary by Mr. Devaney" and those listed in the position description.  We therefore reject Chudson's contention that the board required him to possess qualifications beyond those listed in the position description.

10
Chudson further argues that the AJ's finding that the position was not a standard desk officer position lacks support in the record.  We disagree.  Devaney testified concerning the special duties of the position;  he also stated that previous position descriptions for "Supervisory Criminal Investigator" positions did not encompass all the requisite qualifications of the position at issue.  Thus, the AJ's finding is supported by substantial evidence.

11
Chudson also contends that the AJ erred in finding "that Mr. Sheehan's testimony was not relevant."   In fact, the AJ made no such finding.  The AJ did not ignore Sheehan's expert testimony or fail to resolve the conflict between Sheehan's testimony and Devaney's testimony, as Chudson alleges.  Rather, the AJ found that Sheehan "provided no evidence that [Chudson] had supervisory experience in other than a brief acting capacity, or that he had ... policy-making, budget, systems management, personnel, or training experience...."  In other words, the AJ determined that Sheehan's testimony failed to rebut the EPA's showing that hiring Chudson would have caused the agency an undue interruption.  Chudson has not persuaded us that the AJ's weighing of the testimony was in error or that her finding is unsupported by substantial evidence.

12
Chudson challenges the AJ's refusal to permit depositions of West and Kern and her cutting off certain lines of questioning during the hearing.  It is well-established that "[p]rocedural matters relative to discovery and evidentiary issues fall within the sound discretion of the board and its officials."  Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed.Cir.1988).  Having carefully reviewed the record, we discern no abuse of discretion by the AJ either in refusing to permit depositions of West and Kern or in limiting testimony in the remand proceeding to relevant issues.

13
Finally, Chudson suggests that he was more qualified for the position than the individual selected by the EPA, pointing to the "debatable qualifications of the candidate who was selected."   Whether or not the contention is true, it ignores the fact that the only issue on appeal is whether Chudson's selection would have caused an undue interruption to the EPA.  Chudson has not cited any authority for the proposition that the selected individual's qualifications are relevant to this inquiry.  We therefore find the argument unpersuasive.

14
PAULINE NEWMAN, Circuit Judge, dissenting.

15
I respectfully dissent.  Mr. Chudson, in settlement of his whistleblower complaint against the Environmental Protection Agency (EPA), was given two years of placement on EPA's Reemployment Priority List.  During that period a position for which he was qualified arose.  Without posting the position the Director of the office arranged for the transfer of a former colleague, Mr. Catlett, from another agency.  Then, upon intervention of a personnel officer Mr. Chudson was told of the position;  he applied, was interviewed, and was rejected.  The Director, Mr. Devaney, when pressed, gave the only reason permitted by the reemployment priority regulations, 5 C.F.R. Sec. 330.201, viz. that Mr. Chudson's hiring would cause an "undue interruption" to the agency.

16
From a review of the hearing testimony, it appears that Mr. Chudson had the qualifications that were stated in the position description.  Mr. Chudson is described as having "six years of [the same] agency experience in the same grade and series."   Although the panel majority now holds that the agency can impose additional requirements, as the administrative judge held, the Office of Criminal Enforcement Director Devaney testified that the position description did describe the position.  Indeed, a position description can not be changed sub silentio.

17
The majority states that it is not relevant whether the person who was personally selected (Mr. Catlett) had superior or even equal qualifications.  However, when the reason for denying the statutory priority is "undue interruption," there must at least be a showing that the selected candidate would not cause the same interruption.  To hold otherwise is to convert the "priority" status into a sham.

18
The panel majority refers to Mr. Chudson's suggestion that he was more qualified than Mr. Catlett for the position.  The administrative judge would not permit any questioning on the issue of Mr. Catlett's suitability for the position or whether his appointment would cause more or less "interruption" to the agency than Mr. Chudson's.  Yet without such testimony the administrative judge could not have accurately determined whether Mr. Chudson's non-selection was legitimately motivated to avoid "undue interruption," or a sham to ratify the selection of Mr. Catlett.

19
The administrative judge's refusal to permit the requested witnesses to testify at the first trial, and the inappropriately rigorous restraints on testimony on remand, do not leave an impression of fairness in the administrative process.  I would reverse the Board's ruling.


635 S.W.2d 739 (1982)
Alex Joseph BELLER, Appellant,
v.
The STATE of Texas, Appellee.
No. 63273.
Court of Criminal Appeals of Texas, Panel No. 3.
July 21, 1982.
*740 Philip S. Ross, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., Michael C. Kuhn, and Antonio Balderas, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ODOM, DALLY and McCORMICK, JJ.

OPINION
DALLY, Judge.
This is an appeal from a conviction for the offense of aggravated assault; the punishment is imprisonment for eight years.
The appellant urges that the evidence is insufficient to support the jury's verdict. It was alleged that the appellant did "intentionally and knowingly threaten imminent bodily injury to Robert Rollo, Jr. with the use of a deadly weapon, namely, a knife."
The appellant asserts the evidence is insufficient because the State failed to prove the knife allegedly used was a deadly weapon. A knife is not a deadly weapon per se, Limuel v. State, 568 S.W.2d 309 (Tex.Cr.App.1978); Windham v. State, 530 S.W.2d 111 (Tex.Cr.App.1975); therefore, there must be proof that the knife was a deadly weapon. Williams v. State, 575 S.W.2d 30 (Tex.Cr.App.1979).
The complainant was a route salesman for a beer distributor; he thought the appellant had taken the ignition keys from the delivery truck, so he went into a washateria where the appellant was, and asked appellant to return the key. The complainant testified that after some words were exchanged, the appellant "reached by the side of his pants and he had a knifeabout this time [appellant] pulled a knife and started to hit me in the face and kick me in the groin and swing the knife in my face." The complainant and his helper ran into a nearby convenience store shouting for weapons to defend themselves. The appellant came to the door of the convenience store and then left.
Dorothy Fornier who was employed at the convenience store in which the complainant and his helper took refuge testified she saw in the appellant's hand, "the end of a blade. The end of somethingsharpI saw a sharp object in his hand." She said it shined and it could have been a knife. On cross-examination she said appellant had something in his hand she didn't know what it was.
The complainant's helper was not called as a witness. No other testimony concerning the knife was offered. Neither the complainant nor his helper were cut. The knife was not offered in evidence and there is no testimony describing the knife or its size. The evidence is wholly insufficient to prove that the knife was a deadly weapon, therefore the judgment must be reversed.
Hubbard v. State, 579 S.W.2d 930 (Tex. Cr.App.1979) is cited and relied upon by the State; there the knife used was described as a "butcher knife", a "long bladed knife," the "knife had a blade five or six inches *741 long," and the knife had been placed against the complainant's throat and the defendant told her he would cut her throat. Hart v. State, 581 S.W.2d 675 (Tex.Cr.App. 1979); Cruz v. State, 576 S.W.2d 841 (Tex. Cr.App.1979); and Williams v. State, supra, also cited by the State are less support for its contention than is Hubbard v. State, supra.
The judgment is reversed and the cause is remanded.
McCORMICK, J., dissents.
ODOM, Judge, concurring.
I concur in the majority's reasoning and conclusion that the evidence presented at trial is insufficient to prove the knife was a deadly weapon under V.T.C.A., Penal Code Sec. 1.07(a)(11). I cannot agree, however, that this conclusion supports the disposition of reversal and remand.
Under the evidence presented the only verdict a jury could properly have returned was not guilty. Under Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15, the proper disposition of this appeal is to order entry of a judgment of acquittal.


People v Robles (2018 NY Slip Op 07054)

People v Robles

2018 NY Slip Op 07054

Decided on October 23, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 23, 2018

Renwick, J.P., Richter, Kahn, Gesmer, Singh, JJ.

7421 2967/14

[*1]The People of the State of New York, Respondent,
vLuis Robles, Defendant-Appellant.

Christina Swarns, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.

Judgment, Supreme Court, New York County (Thomas Farber, J.), rendered November 30, 2015, unanimously affirmed.
Application by defendant's counsel to withdraw as counsel is granted (see Anders v California , 386 US 738 [1967]; People v Saunders , 52 AD2d 833 [1st Dept 1976]). We have reviewed this record and agree with defendant's assigned counsel that there are no non-frivolous points which could be raised on this appeal.
Pursuant to Criminal Procedure Law § 460.20, defendant may apply for leave to appeal to the Court of Appeals by making application to the Chief Judge of that Court and by submitting such application to the Clerk of that Court or to a Justice of the Appellate Division of the Supreme Court of this Department on reasonable notice to the respondent within thirty (30) days after service of a copy of this order.
Denial of the application for permission to appeal by the judge or justice first applied to is final and no new application may thereafter be made to any other judge or justice.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 23, 2018
CLERK


605 So.2d 666 (1992)
Roy Wesley SCHUBERT, Plaintiff-Appellee,
v.
Linda Lee Leibsla SCHUBERT, Defendant-Appellant.
No. 23996-CA.
Court of Appeal of Louisiana, Second Circuit.
September 23, 1992.
Rehearing Denied October 22, 1992.
Writ Denied December 11, 1992.
*667 Bobby L. Culpepper, Jonesboro, for defendant-appellant.
Smith & Shadoin by Robert E. Shadoin, Ruston, for plaintiff-appellee.
Before SEXTON, LINDSAY and VICTORY, JJ.
LINDSAY, Judge.
The defendant, Linda Lee Schubert, now Carmadelle, appeals from a trial court judgment modifying the existing joint custody arrangement and changing their daughter's primary domiciliary parent from Mrs. Carmadelle to her former husband, Roy Wesley Schubert. The record before this court does not demonstrate a clear abuse of discretion by the trial court and, accordingly, we affirm.

FACTS
The parties are the parents of a daughter, born September 11, 1979. In 1983, Mr. *668 Schubert filed suit to obtain a divorce from Mrs. Carmadelle. On September 28, 1983, the trial court signed the judgment on the parties' rules for temporary child custody, temporary alimony and temporary child support. The court granted Mrs. Carmadelle temporary custody of the daughter with a specific plan of visitation set forth in the judgment.
A judgment of divorce was signed by the trial court on June 21, 1984. In that judgment, the parties were given joint custody of the child with a plan of visitation set forth in the judgment. Mrs. Carmadelle was named the primary domiciliary parent.
Mr. Schubert is employed as a professor with Louisiana Tech University and was so employed during his marriage to Mrs. Carmadelle. He has a stable employment history and has remarried.
Mrs. Carmadelle had an unstable employment and residence history in the years following the divorce. She had numerous jobs of short duration, working at businesses such K-Mart and WalMart. Mrs. Carmadelle also moved frequently, usually due to inability to make rental payments for her housing. She and the child were evicted from a residence on at least one occasion. Due to their frequent moves, the child attended six different schools during the years following the parties' divorce. Also, the child had a high absence rate from school.
In 1989, the former Mrs. Schubert married Keith Carmadelle, a convicted felon. In September 1990, Mr. and Mrs. Carmadelle left Louisiana, with the child, and moved to Ohio to live with Mrs. Carmadelle's parents. (Mr. Schubert contends Mrs. Carmadelle took the child to Ohio without consulting him.) Mr. and Mrs. Carmadelle and the child share a house with Mrs. Carmadelle's parents, sister and grandmother. Mrs. Carmadelle manages a doughnut shop in Ohio. Mr. Carmadelle was attending truck driving school at the time of the hearing and was not employed.
In December, 1990, the child came to Louisiana to spend the Christmas holidays with Mr. Schubert. Upon her arrival, Mr. Schubert concluded that the child was not living in a stable environment and he petitioned the court to modify the custody decree to designate him as the primary domiciliary parent.
The case was heard on August 9, 1991. On August 14, 1991, the trial court gave oral reasons for judgment. The court modified the prior joint custody decree to provide that Mr. Schubert was to become the primary domiciliary parent. The court found that Mr. Schubert could provide a more stable environment for the child. The court stated that it did not favor the situation in Ohio where the child was living in the house occupied by six to eight persons. The court noted that the mother changed jobs frequently and moved frequently. The court also noted that Mrs. Carmadelle had married a convicted felon who was unemployed at the time of the trial.
Mr. Schubert on the other hand, was a college professor who had a stable employment history, a good income and had been remarried for seven years.
The court noted that Mr. Schubert was a "strict authoritarian type figure with his discipline." However, the court found Mrs. Carmadelle was too lenient in her discipline and that, given the child's age of approximately 12 years, strict discipline was preferable to being too lenient.
The court also noted that Mrs. Carmadelle left Louisiana and moved to Ohio without informing Mr. Schubert that she was removing the child from the state. The court found this an indication that Mrs. Carmadelle was not the parent most likely to afford the other parent opportunities for visitation.
Based upon these factors, the trial court named Mr. Schubert as the primary domiciliary parent.
Mrs. Carmadelle appealed the trial court judgment. She contends that Mr. Schubert failed to carry his burden of proving that continuation of custody in the mother was so deleterious to the child as to justify removal from the environment from which the child is accustomed.

*669 BURDEN OF PROOF
In all cases involving a change of custody after an original award, permanent custody of the child shall be granted to the parents in accordance with LSA-C.C. Art. 131. LSA-C.C. Art. 134. Any order for joint custody may be modified if it is shown that the best interest of the child requires modification or termination of the order. LSA-C.C. Art. 131(E); Pulley v. Pulley, 587 So.2d 116 (La.App. 2d Cir.1991).
In deciding whether the trial court erred in modifying the original custody judgment to change the primary domiciliary parent from Mrs. Carmadelle to Mr. Schubert, it is necessary to determine whether the original judgment was a considered decree. If it was a considered decree, then a very heavy burden of proof must be carried by the party seeking to modify the judgment. If it is not a considered decree, the burden of proof is less onerous.
A considered decree is one rendered subsequent to the presentation of evidence as to the fitness of a party to have the care, custody and control of the children. Conversely, when no such evidence has been presented, the custody judgment is not a considered decree. Hillidge v. McFarland, 566 So.2d 192 (La.App. 2d Cir. 1990); Dungan v. Dungan, 499 So.2d 149 (La.App. 2d Cir.1986).
When a court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify the modification of the custody decree, or of proving by clear and convincing evidence that the harm that is likely to be caused by the change in environment is substantially out-weighed by the advantages to the child. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986); Murray v. Murray, 521 So.2d 754 (La.App. 2d Cir.1988); McIntyre v. McIntyre, 519 So.2d 317 (La.App. 2d Cir.1988); Lee v. Davis, 579 So.2d 1130 (La.App. 2d Cir.1991); Pulley v. Pulley, supra.
Where there has not been a considered decree, the heavy burden of proof of Bergeron v. Bergeron, supra, is not applicable, but there must be a showing of a change of circumstances since the original decree, and that a change of custody is in the best interest of the child. McGee v. McGee, 552 So.2d 576 (La.App. 2d Cir.1989); Lee v. Davis, supra; Bailey v. Bailey, 527 So.2d 1030 (La.App. 2d Cir.1988), writ denied 528 So.2d 565 (La.1988); Risher v. Risher, 511 So.2d 1220 (La.App. 2d Cir. 1987); Dungan v. Dungan, supra; Foy v. Foy, 505 So.2d 850 (La.App. 2d Cir.1987); Pulley v. Pulley, supra.
In the present case, Mrs. Carmadelle seems to view the original custody decree, naming her as the primary domiciliary parent, as a considered decree. Therefore, on appeal she argues that Mr. Schubert has failed to carry the heavy burden of proof, under Bergeron, that continuation of the present custody arrangement would be so deleterious to the child as to justify removal from the environment to which the child is accustomed.
However, while somewhat ambiguous, the record does not support the view that the original custody decree was a considered decree. In the temporary custody decree issued on September 28, 1983, the trial court specifically stated in the judgment "that the following is not to be construed as a considered ruling, opinion or decision, but simply made for the temporary guidelines for the parties to follow until a final disposition of their issues...."
A judgment of divorce between these parties was signed by the trial court on June 21, 1984. In that judgment, the parties were awarded permanent joint custody, with Mrs. Carmadelle being named as the primary domiciliary parent. However, this judgment does not indicate that evidence was adduced concerning the fitness of either parent to be the primary domiciliary parent.
The trial court minutes from June 21, 1984, indicate that the attorneys for the plaintiff and defendant were present on behalf of their clients and that the "stipulation is as set forth in the judgment and is agreed to by all parties." This minute entry indicates that the parties agreed on *670 the joint custody plan and agreed to a stipulation set forth in the divorce and custody judgment. There is no indication in the minutes or elsewhere in this record that evidence was taken on the custody issue.
Where a record does not show whether the issue of custody was previously litigated, we presume it to have been uncontested. The party alleging the applicability of the Bergeron rule must show, though introduction of the transcript of the prior proceedings or otherwise, that the custody issue was previously "considered." Moore v. Moore, 544 So.2d 479 (La.App. 2d Cir.1989); Stevens v. Stevens, 340 So.2d 584 (La.App. 1st Cir.1976). Here, no such evidence was presented. Therefore, this is not a considered decree of custody but rather is a consent decree. See and compare Norris v. Norris, 604 So.2d 107 (La. App. 2d Cir.1992).
Because this is a consent decree, Mr. Schubert is not required to meet the heavy burden of proof under Bergeron. In order to modify the judgment, Mr. Schubert need only show a change in circumstances by which a change in the primary domiciliary parent would be in the best interest of the child.

MODIFICATION OF CUSTODY PLAN
Having established the burden of proof necessary to review the judgment in this case, we now turn to the issue of whether the trial court erred in changing the primary domiciliary parent from Mrs. Carmadelle to Mr. Schubert.
Every child custody case must be viewed on its particular circumstances. Foy v. Foy, supra. In child custody cases, the decision of the trial court is to be given great weight and will be overturned only where there is clear abuse of discretion. Lee v. Davis, supra; Pulley v. Pulley, supra.
Stability and continuity of environment are important considerations in making a custody determination. Hillidge v. McFarland, supra; Bailey v. Bailey, supra; Risher v. Risher, supra; Dungan v. Dungan, supra.
In the present case, we do not find that the trial court abused its discretion in modifying the prior custody decree and naming Mr. Schubert as the primary domiciliary parent. The evidence presented at the hearing shows that circumstances have changed since the original decree. Mrs. Carmadelle has been unable to provide the child with a stable home and school environment. In the years since the divorce, Mrs. Carmadelle has not been able to find steady employment. She has worked at a myriad of jobs, each of relatively short duration. Mrs. Carmadelle was also unable to provide the child with a steady homelife. They moved frequently, largely due to inability to pay the rent. Because of these moves, the child was frequently required to change schools. The record shows that since the child entered kindergarten she had changed schools six times. The child's school records show numerous absences and reflect that at one school, tardiness was a particular problem. Therefore, the record shows that Mrs. Carmadelle has not been able to provide a stable home and school situation for the child. Further, Mrs. Carmadelle married a convicted felon and moved out of state with the child without informing Mr. Schubert.
In contrast, Mr. Schubert has maintained steady employment and has a stable residence with his current spouse to whom he has been married for seven years. Mr. Schubert is in a position to provide a stable environment. See Hillidge v. McFarland, supra; Foy v. Foy, supra.
Therefore, we find no abuse of discretion in the trial court judgment finding the father, Mr. Schubert, to be the more stable parent and awarding him primary domiciliary custody of the child.

CONCLUSION
For the reasons stated above, we affirm the trial court judgment modifying the former custody decree between these parties, changing the primary domiciliary parent to the father, Roy Wesley Schubert.
AFFIRMED, at appellant's cost.

*671 APPLICATION FOR REHEARING
Before MARVIN, SEXTON, LINDSAY, VICTORY and BROWN, JJ.
Rehearing denied.


631 F.2d 726
Sedziafav.U. S. Immigration and Naturalization Service
79-2645
UNITED STATES COURT OF APPEALS Third Circuit
8/7/80

1
B.I.A.

PETITION FOR REVIEW DENIED


300 F.2d 298
BARNWELL DRILLING CO., Inc., Barnwell, Inc., and R. S. Barnwell Sr., and R. S. Barnwell, Jr., d/b/a Barnwell Production Company, Appellants,v.SUN OIL COMPANY, Appellee.
No. 19151.
United States Court of Appeals Fifth Circuit.
March 20, 1962.

Forrest B. Jackson, Jackson, Miss., R. M. Nichols, Milton H. Anders, Shreveport, La., for appellants.
Edwin M. Cage, Dallas, Tex., Cecil F. Heidelberg, Jr., Kenneth I. Franks, Jackson, Miss., for appellee.
Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.
TUTTLE, Chief Judge.

1
This is an appeal from the district court's order denying the appellants a temporary injunction pending a final hearing on the merits. The controversy arose because of the undisputed intention of the defendant, Sun Oil Company, to take advantage of an order entered by the Mississippi State Oil and Gas Board under Chapter 256, Laws of Mississippi 1948, as amended, which permitted Sun Oil Company to proceed with a secondary recovery method for the recovery of oil from a pool existing in the McComb oil field area. This secondary recovery method admittedly involved the injection of water through injection wells located in the vicinity of wells in which the plaintiff, Barnwell, Inc. owns an undivided interest. It was contended by Barnwell that the injection of the water so as to increase the pressure forcing oil to the surface would produce irreparable damage and injury to appellants "by driving continuously and over a period to exhaustion of the oil, gas, minerals and hydrocarbons owned by the plaintiffs under the McComb oil field properties, and that this method would drive the oil out from under the plaintiffs' land and under other lands owned by the Sun Oil Company."

2
Appellants proceeded on the theory that the state of Mississippi recognizes the theory of absolute ownership or ownership in place of oil, gas, minerals and hydrocarbons before they are produced. They contend, therefore, that any disturbance of the minerals underlying the lands by pushing them or forcing them away from their present location amounts to a continuing trespass.

3
The appellee does not, at this point, contest appellants' theory as to the nature of its right in the minerals underlying its land. It simply takes the position that the trial court's finding that "there is not such probability of imminent danger of irreparable loss or damage as to warrant the granting of the temporary relief prayed for," is not clearly erroneous. It argues therefore that under recognized principles the appellate court should not reverse the trial court's denial of a temporary injunction pending the trial of the case on its merits.

4
This Court has repeatedly held that when an appeal is taken from the denial by the trial court of a temporary injunction, as is permitted, 28 U.S.C.A. § 1292(a) (1), the appellate court does not consider the entire case on its merits. This is necessarily true because the trial court itself need not consider the case on the merits in order to decide whether the plaintiff is entitled, on the showing made, to have the court enter a temporary injunction to maintain the status quo until the merits can adequately be inquired into. This, of course, can be done only on the trial in chief.

5
See Detroit Football Co. v. Robinson, 5 Cir., 283 F.2d 657. In that case this Court has said:

6
"We shall suppress any inclination that we might have to discuss this case on its merits. The merits of a case are usually not to be decided on an application for a preliminary injunction. Miami Beach Federal Savings & Loan Association v. Callander, 5 Cir., 1958, 256 F.2d 410. The granting or denial of a preliminary injunction is a matter for the exercise of the discretion of the trial court. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Home Decorators, Inc. v. Herfort, 5 Cir., 1950, 179 F.2d 398; Central Hanover Bank & Trust Co. v. Callaway, 5 Cir., 1943, 135 F.2d 592; Spring v. Ohio Oil Co., 5 Cir., 1940, 108 F.2d 560. On appeal from the granting or refusal of an interlocutory injunction the inquiry is limited to the question whether the court abused its discretion. United States v. Corrick, 298 U.S. 435, 56 S.Ct. 829, 80 L.Ed. 1263. The discretion of the trial court is broad and a strong showing of abuse must be made to reverse it. United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303. No such showing is here made. The judgment of the district court is affirmed."

7
We do not know at this stage of the proceedings to what literal degree the Mississippi doctrine of complete ownership of the minerals underlying the surface of the ground may have been affected by the recognition that oil and gas, and other hydrocarbons now being mined in substantial quantities in the state of Mississippi, are "fugacious" products. Millette v. Phillips Petroleum Co., 209 Miss. 687, 48 So.2d 344. We do know that this Court has recently commented on the difficulty of accommodating ordinary concepts of land ownerships and titles to oil and gas transactions that are said to constitute some form of real property interest. In J. B. Elkins v. Laura Stell Townsend, 5 Cir., 296 F.2d 172, speaking in terms of Louisiana Law, this Court said:

8
"The juristic accomplishment of fitting oil and gas transactions into the codal law of praedial servitudes is a tour de force, illustrative of the theory of the code as a compilation of principles, not a digest of specific laws. As with many other tours de force, although the result as a whole is in keeping with civilian concepts, some specific results are far from perfect."

9
Nevertheless, without undertaking at this time to determine precisely what legal rights the parties have if it is finally shown that certain molecules of petroleum products are actually disturbed while under the land of the plaintiffs, we do not find that the evidence adduced on the temporary injunction hearing is sufficiently clear and convincing that the oil will actually be interfered with under appellants' lands as to warrant our holding, as a matter of law, that the temporary injunction should have been granted. This was an issue of fact as to which we can not find that the trial court was clearly in error. Detroit Football Company v. Robinson, supra. The judgment is

10
Affirmed.


220 So.2d 451 (1968)
P & N INVESTMENT CORP., a Florida Corporation, Appellant,
v.
FLORIDA RANCHETTES, INC., a Florida Corporation, Appellee.
No. J-224.
District Court of Appeal of Florida. First District.
October 24, 1968.
As Amended on Rehearing February 27, 1969.
Hansford D. Tyler, Jr., Miami, for appellant.
Robert H. Matthews, New Smyrna Beach, for appellee.
Earl Faircloth, Atty. Gen., and T.T. Turnbull, Asst. Atty. Gen., as amici curiae; William M. Register, Jr., and Peter J. Winders, of Carlton, Fields, Ward, Emmanuel, Smith & Cutter, Tampa, as amici curiae; Warren E. Hall, Jr., and Gordon H. Harris, of Holland & Knight, Bartow, as amici curiae.
CARROLL, DONALD K., Judge.

ON PETITION FOR REHEARING GRANTED
The appellant and three amici curiae have filed petitions for rehearing addressed to *452 our opinion and judgment filed in this cause on October 24, 1968, affirming the final decree entered by the Circuit Court for Volusia County.
After careful consideration of the briefs submitted by the parties and the amici curiae and the oral argument at the hearing on the said petitions for rehearing, we have reached the conclusion that we erred in entering our opinion and judgment of October 24, 1968, and that we should have reversed the said final decree. Therefore, we hereby grant the said petitions, and amend our said opinion to read in its entirety as follows:
The defendant in a suit for a declaratory decree has appealed from an adverse final decree entered by the Circuit Court for Volusia County.
The question presented for our determination in this appeal, briefly stated, is whether, where each of the parties own a 50% interest to the mineral rights in certain land and the plaintiff also owns the fee simple title, the chancellor erred in declaring in effect that the plaintiff may mine, drill, or otherwise develop the said minerals without the express permission of the defendant, and in otherwise ruling upon the relative rights of the parties.
The undisputed facts are as follows:
In 1946 Garland W. Spencer and his wife conveyed the land in question to Eola Mack by a deed of conveyance containing this reservation: "Reserving and excepting, however, to the grantors, their heirs and assigns forever an undivided one-half interest in all of the oil, gas, and all other minerals underlying the above-described lands with the right to mine, drill for and develop the same." The said land was thereafter conveyed by mesne conveyances to the plaintiff, which now holds the title to the land. Similarly, by proper instruments of conveyance the defendant has acquired the mineral rights reserved by the Spencers in the above-quoted reservation-clause.
A dispute arose between the parties as to whether the defendant had the right to enter upon the land in question for the purpose of exploring for minerals and, if discovered, removing them from the land. The dispute being unresolved by the parties, the plaintiff filed the instant action seeking a declaration of the rights of the parties with respect to the said dispute.
Following the final hearing the Circuit Court entered the final decree appealed from herein. In that decree the court held that it had jurisdiction of the parties and subject-matter of the dispute; that the plaintiff's allegations are sufficient to entitle it to a declaration of the parties' rights; and that the defendant could not, in the absence of the plaintiff's specific permission "arbitrarily enter upon the land for exploration or mining purposes." In its appellate brief the defendant states that it "takes no specific exception" to the last-mentioned holding, but rather "accepts this rule. * *" The defendant contends, however, that the plaintiff and the defendant are tenants in common of the said undivided mineral rights and that the same logic which bars the defendant from entering upon the land to mine or develop its 50% of the mineral rights, applies equally to the plaintiff, as the owner of the fee and the remaining 50% of the minerals, so the plaintiff should not be allowed to mine or develop any minerals "without specific permission of, or an agreement of joint venture with, or having first acquired the interests of, the other owner or owners of fractional portions of the mineral rights."
In this appeal the defendant-appellant takes exception only to paragraphs numbered 5 and 6 of the said final decree, which paragraphs read as follows:
"5. The Court further finds and so decrees that in the event the plaintiff should mine or otherwise produce minerals from the land as covered by the retention of the mineral rights of the defendant, then, and in that event, the defendant would be entitled to 50% of *453 the minerals so mined or produced, less the cost of production thereof;
"6. The Court further finds that in the event the Plaintiff should explore for minerals or mine or produce minerals, that it cannot bind the Defendant without an express agreement, for the payment of a proportion of said exploration costs, over and above the amount received from the sale of the minerals; * * *."
In defense of the final decree appealed from, however, the plaintiff sets forth what it calls the "practical problem that is posed in this case, and similar cases throughout the State of Florida. * * *" Briefly stated, the plaintiff's description of that "practical problem" is as follows: when the original reservation of mineral rights was agreed to in 1946, the value of the land was low and the use of the land was strictly agricultural, but today, with the great influx of people into the State of Florida, the price of the land has become more dear and the use of the land has changed from agricultural to residential; the development of residential properties has caused the owners to turn to lending institutions for the proper financing of the development, but the reservation of mineral rights, with the right of exploration reserved to the original grantors, has caused those institutions "to look with a jaundiced eye at this property, which is so sorely needed for residential development;" and the title examiner, "fearing the worst that could possibly happen under the circumstances, is quick to bring to the attention of any prospective purchaser the possibility that at some future date oil rigs or excavating machinery might be operating in the front yard of the new home owner."
It is impossible to determine with any certainty just what influence the foregoing "practical problem" considerations or any of them may have had upon the court when it entered the final decree.
As stated above, the defendant-appellant concedes that it should not explore or mine the minerals without the consent of the plaintiff but contends that this rule should apply the other way around. Valid as these considerations might have been if this had been a case of first impression in this country and if there had been no judicial precedents as to the questions before us, we must recognize the fact that there are ample precedents in other jurisdictions which should have a persuasive, if not a controlling, effect upon our determination in this appeal.
The special circumstance that makes difficult the determination of this appeal is the fact that the plaintiff is not only the owner of the surface but is also the owner of 50% of the mineral estate. Because of this circumstance we shall discuss the plaintiff's rights as a surface owner and then his rights as the owner of half of the mineral estate. First as to its surface rights:
We are convinced that the weight of authority in this country, especially in the major oil-producing states, is as follows: When the surface estate is severed from the mineral estate, the mineral estate is the dominant estate and, therefore, the owner of the mineral estate has the right of ingress and egress to explore for, locate, and remove the minerals, but he cannot so abuse the surface estate so as unreasonably to injure or destroy its value and is answerable in damages to the owner of the surface estate for any unreasonable injuries done.
One of the leading cases recognizing the just-summarized rule is Parker v. Texas Co., 326 S.W.2d 579 (Tex.Civ.App. 1959). For the citations to many cases upholding this rule see 58 C.J.S. Mines and Minerals § 159, pages 332 and 333.
Secondly, as to the mutual rights of the plaintiff and the defendant, each as the holder of 50% of the mineral estate, the cases are in considerable conflict. For a discussion of these conflicting decisions, see 38 Am.Jur.2d, Gas and Oil, Sec. 10, pages 487 and 488. Ae we read the authorities, *454 we have reached the conclusion that the prevailing view among the jurisdictions passing on the subject is that one of several co-owners of the mineral estate has the right to extract oil without the consent of the other owners and has the right to be reimbursed for the reasonable and necessary expenses of extraction and marketing, all subject to the right of the nonconsenting mineral owner to an accounting. One of the leading cases recognizing this rule is Prairie Oil & Gas Co. v. Allen, 2 F.2d 566, 40 A.L.R. 1389 (U.S.C.C.A., 8th Cir., 1924).
Since several provisions of the final decree appealed from appear to conflict with the above two general rules which we conceive to be the weight of authority in this country and which we believe are applicable here, that decree must be, and it is, reversed, and the cause remanded with directions for further proceedings consistent with the views hereinabove set forth.
Reversed and remanded with directions.
WIGGINTON, C.J., and SPECTOR, J., concur.


636 F.2d 1197
McQuadev.Cassel
80-1227
UNITED STATES COURT OF APPEALS First Circuit
10/1/80

1
D.Mass.

AFFIRMED


979 So.2d 241 (2008)
SHEPPARD
v.
STATE.
No. 5D07-4356.
District Court of Appeal of Florida, Fifth District.
April 8, 2008.
Decision without published opinion. Affirmed.


125 F.2d 532 (1942)
COMMISSIONER OF INTERNAL REVENUE
v.
SHAPIRO.
No. 8766.
Circuit Court of Appeals, Sixth Circuit.
February 5, 1942.
*533 F. E. Youngman, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch and F. E. Youngman, Sp. Assts. to Atty. Gen., on the brief), for petitioner.
F. E. Hagler, of Memphis, Tenn., for respondent.
Before SIMONS, HAMILTON, and McALLISTER, Circuit Judges.
HAMILTON, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals involving income taxes of respondent, Morris Shapiro, for the calendar year 1934, on the gain realized by him upon the sale of his one-half interest in a partnership. The single question presented is whether respondent realized capital net gain within the meaning of Section 117 of the Revenue Act of 1934, c. 277, 48 Stat. 680-772, 26 U.S.C.A., Internal Revenue Act of 1934, page 707, Section 117. The amount of the tax involved is $27,438.31.
In January 1926, respondent, Morris Shapiro, and Joseph S. Menke organized a partnership under the laws of Tennessee, which carried on business under the trade name of Keystone Laboratories. Each partner contributed $2,000 to the enterprise and each owned an undivided one-half interest therein. The partnership engaged in the business of manufacturing and selling cosmetics and medicines. For each of the years subsequent to its creation it filed a partnership income tax return and its individual members reported its net gain for each year. On April 24, 1934, respondent sold his one-half interest in the partnership to his partner Menke for the sum of $117,000 out of which he paid $5,000 for attorneys fees, leaving net $112,000.
In his individual return for the calendar year 1934, respondent reported $10,685.25 as capital gain from the sale and paid the taxes due thereon. On audit and review of his return, the Commissioner of Internal Revenue found that respondent had realized a profit on the sale of $57,617.65 and found this sum taxable as ordinary income under Section 22(a) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 669. Respondent petitioned the Board of Tax Appeals for a review of the Commissioner's decision and it decided that the gain realized was on the sale of a capital asset and taxable under the provisions of Section 117 of the Revenue Act of 1934. From this decision, petitioner prosecutes this review.
So much of the contract of sale as is material here is found in the margin.[1]
*534 The parties have stipulated that respondent's cost basis of his interest in the partnership was $54,382.35. This sum is determined as shown by the schedule in the margin.[2] The parties have also stipulated that the respondent realized a gain of $57,617.65 on the sale.
Section 117(a) of the Revenue Act of 1934 provides that "In the case of a taxpayer, other than a corporation, only the following percentages of the gain or loss recognized upon the sale or exchange of a capital asset shall be taken into account in computing net income * * * (b) Definition of Capital Assets. For the purposes of this title, `capital assets' means property held by the taxpayer (whether or not connected with his trade or business), but does not include stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the taxable year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business."
Petitioner insists that respondent was a co-owner of the property and business of the partnership as a going concern and that what he sold was his interest as a partner in the assets of the partnership and that the burden of proof rested on respondent to show that the partnership had owned the property for the period requisite under the Capital Gains Section of the Internal Revenue Act, which provides that if the property has been held for less than one year, the gain is taxable 100 percentum; for more than one year, but not more than two years, 80 percentum; for more than two years, but not more than five years, 60 percentum; for more than five years but not more than ten years, 40 percentum; for more than ten years, 30 percentum. Sec. 117(a) Revenue Act of 1934, U.S.C.A. Title 26, Int.Rev.Acts, page 707.
The record does not show what period of time the asset which petitioner sold was owned by either him or the partnership. In the petition for review and assignments of error, petitioner states "the only question *535 presented to the Board for consideration, and which now forms the basis for this petition for review is whether the transfer and disposition by the taxpayer of his partnership interest gave rise to a sale or exchange of a capital asset resulting in a capital gain to him as claimed by the taxpayer or whether as claimed by the Commissioner the gain so derived by the taxpayer is taxable as ordinary income."
For the purposes of this case, we will assume that the assets sold by respondent were owned by the partnership or by him for the requisite period of time to bring the gain arising therefrom within the period of time which equals the percentum of the gain found by the Board to be taxable, on the theory that no question was raised by the parties before the Board or decided by it as to the length of time the assets in question had been held or owned by the partnership or respondent. General Utilities and Operating Company v. Helvering, 296 U.S. 200, 206, 56 S.Ct. 185, 80 L.Ed. 154; Helvering v. Salvage, 297 U.S. 106, 109, 56 S.Ct. 375, 80 L.Ed. 511; Helvering v. Tex-Penn Oil Company, 300 U.S. 481, 495, 57 S.Ct. 569, 81 L.Ed. 755.
The only question presented on the record is whether the sale of the assets of a partnership as a going concern is the sale of a capital asset as defined under Section 117(b) of the Revenue Act of 1934.
Petitioner presses the point that the issue depends primarily upon the extent to which a partnership is to be regarded as an entity, separate and apart from its members. In our opinion, a decision of this more or less troublesome question would throw no light on the present controversy. The case must be viewed as though the entire assets of the partnership with its value as a going concern added were sold. The fact that a one-half interest in the partnership assets and its good will only were sold has nothing to do with the issue, and the further fact that the sale was from one partner to another has no more to do with the question than if the sale had been made to a stranger. Munson v. Commissioner, 2 Cir., 100 F.2d 363.
The statute in question provides that "capital assets" means property held by the taxpayer. It excludes stock in trade of the taxpayer or other property which would be included in the business inventory of the taxpayer, or property held by him primarily for sale to customers in the ordinary course of business. The thing here sold was not within any of the statutory exclusions and it was held by the taxpayer.
The decision must turn on the meaning of the phrase, "capital assets" as that phrase is ordinarily understood. The term is not used in any technical sense, but in its natural and ordinary signification, and construing the phrase as used, it means all capital invested plus all surplus accounts or undivided profits left in the business for the purpose of accumulating and being used in the business and in addition such good will as had been established and accumulated over the years of its existence. The present partnership was dissolved by the sale under the fundamental principle that every change in the personnel of a firm works dissolution, and that an existing partnership is terminated and a new partnership formed whenever a partner retires or a new one is admitted, but where, as here, there is a sale of a part interest in the partnership as a going concern, no change is wrought in the character of the property sold.
It is fundamental in applying tax statutes that matters of substance are of first importance. The price paid for the property in question may have been based partly on assets excluded under the act from the phrase "capital assets" such as inventories or property held by the partnership primarily for sale to customers in the ordinary course of its trade or business, but the sale made by respondent was not a sale of those assets. It is a well settled rule of law that the joint effects of a partnership belong to the firm and not the partners and that a partner has no individual property in any specific assets of the firm, instead the interest of each partner in the partnership property is his share in the surplus, after the partnership debts are paid and after the partnership accounts are settled. Blodgett v. Silberman, 277 U.S. 1, 10, 48 S.Ct. 410, 72 L.Ed. 749. Respondent sold all of his interest in the partnership, tangible and intangible, as a going concern, which in all essentials is different from the ordinary assets of the partnership used in the usual course of its business. In the case of Kenan v. Commissioner of Internal Revenue, 2 Cir., 114 F.2d 217, 220, the court pointed out: "The purpose of the capital gains provisions of the Revenue Act of 1934 is so to treat an appreciation in value, arising over a period of years but realized in one year, that the tax thereon will roughly approximate what it would *536 have been had a tax been paid each year upon the appreciation in value for that year. Cf. Burnet v. Harmel, 287 U.S. 103, 106, 53 S.Ct. 74, 77 L.Ed. 199."
Cf. Dunigan v. Burnet, 62 App.D.C. 221, 66 F.2d 201. A like purpose is reflected in the act with reference to losses as shown by Section 117(d) thereof, limiting losses from sales or exchanges of capital assets to $2,000, plus the gain from such sales or exchanges. Stilgenbaur v. United States, 9 Cir., 115 F.2d 283.
It is clear from the history of the present partnership that the respondent's investment therein, which he sold appreciated in value over a period of years. Applying the statute in the light of its purpose, the asset which the respondent sold was a capital asset. The order of the Board is affirmed.
NOTES
[1]  "That whereas both parties hereto have heretofore been equal partners in that cosmetic and chemical business known as Keystone Laboratories, and located at 491 South Third Street, in the City of Memphis, Tennessee; and whereas the said Morris Shapiro has agreed to sell his undivided one-half interest in and to said business to the said Joseph S. Menke and wife, Hilda Menke, for a consideration heretofore agreed upon between these parties; and whereas it is the desire of both of these parties that the terms and conditions of the sale be specifically set out. Now, therefore, for and in consideration of $115,000 cash in hand paid to the said Morris Shapiro by Joseph S. Menke, and the further consideration of the execution of a warranty deed by Joseph S. Menke and Hilda Menke in and to certain partnership realty, which consists of all partnership realty in Greenville Subdivision in Shelby County, Tennessee, and also all property in Greenville Subdivision which may be owned by Joe Menke, Joe Menke and Hilda Menke, or Hilda Menke, valued at Two Thousand ($2,000.00) Dollars, and also including all notes receivable due from the sale of property in Greenville Subdivision, the receipt of which deeds are likewise hereby acknowledged, and the further and additional consideration of the payment in full of all taxes, including Federal income taxes exceeding Ten Thousand ($10,000.00) Dollars, which will be due the Government by the said Morris Shapiro by reason of the monies he receives from this sale. Said income tax, as stated, is to be paid by Joe Menke; and by these presents the said Morris Shapiro does hereby bargain, sell and convey unto the said Joseph S. Menke all of his, the said Morris Shapiro's right, title and interest in and to that business known as the Keystone Laboratories, located at 491 South Third Street, in the City of Memphis, Shelby County, Tennessee, together with any interest which the said Morris Shapiro may have in the good will, copyrights, formulae, trade name, book accounts, mailing lists, machinery and equipment now in and owned by the said Keystone Laboratories, as well as the right, title and interest, whatever the same may be, of the said Morris Shapiro in and to all subsidiary lines manufactured by the said Keystone Laboratories and including the said Morris Shapiro's interest in the Jean Noel Company, a corporation.

"This Bill of Sale is intended to, by both parties hereto, to divest the said Morris Shapiro of any and all interest which he may have of whatever kind and character, in and to the said Keystone Laboratories or its subsidiary companies or subsidiary corporation, and vest the same in the said Joseph S. Menke."
[2]   Cash on hand and in
   bank ..............................  $ 16,573.50
  Cash overdraft .....................               $  1,676.95
  Accounts      receivable
   COD Keystone ......................     3,982.25
  Darboux ............................     1,622.22
  Lena ...............................     2,619.28
  Jean Noel, Inc. ....................     4,899.37
  Inventories ........................    81,787.82
  Deposits Mfs. P. L. ................        24.21
  Fixed Assets
   Real Estate .......................     4,000.00
   Furniture and fixtures                  6,857.50
   Laboratories ......................     1,776.98
   Autos .............................     2,020.00
    Allowance for depreciation .......                  1,778.42
    Allowance for depreciation .......                    414.63
    Allowance for depreciation .......                    221.00
   Investments Jean Noel
    a/c ..............................     1,535.93
   Accounts payable ..................                 14,304.77
   Notes payable equipment ...........                    378.00
   Payroll ...........................                    160.60
   Partnership investment ............                108,764.69
                                        ___________  ___________
                                        $127,699.06  $127,699.06
  One-half of partnership
   investment, supra .................                 54,382.35


                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 09-1505
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Arkansas.
Arnulfo Betancort-Salazar,              *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: January 27, 2010
                                Filed: February 1, 2010
                                 ___________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                        ___________

PER CURIAM.

       Arnulfo Betancort-Salazar (Betancort) appeals the district court’s1 judgment,
entered after a jury found him guilty of conspiring to distribute, distributing, and
possessing with intent to distribute methamphetamine, and maintaining a residence
for the purpose of distributing and using a controlled substance, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 856(a)(1), and 18 U.S.C. § 2. Betancort
pleaded guilty to illegally reentering the United States following a deportation. The
district court sentenced him to 144 months in prison. Betancort’s counsel has moved

      1
        The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967), arguing
that portions of an audio tape of a controlled buy should not have been admitted at
trial, that the testimony of cooperating witnesses was unreliable and thus there was
insufficient evidence to convict Betancort, and that the court’s imposition of a 2-level
enhancement for a supervisory role was erroneous. Betancort has filed a supplemental
brief, in which he argues that evidence that marijuana was found during the search of
his residence should not have been admitted at trial.

       We hold that the district court did not abuse its discretion in allowing the
government to play portions of the audio tape. See United States v. Oslund, 453 F.3d
1048, 1054 (8th Cir. 2006) (standard of review). Although only portions of the tape
were intelligible and none of Betancort’s conversations--which all occurred in
Spanish--were intelligible, those portions that were understandable were consistent
with the witness testimony, the jury was told that the witnesses did not understand the
Spanish conversations, and Betancort’s counsel was able to argue that the
conversations in Spanish could have been about an unrelated topic. See United States
v. Trogdon, 575 F.3d 762, 765 (8th Cir. 2009) (partially inaudible tapes were
admissible where tapes were audible enough to provide jury with gist of
conversations; court should consider whether defendant had opportunity to offer his
version of inaudible portions), cert. denied, 78 U.S.L.W. 3394 (U.S. Jan. 11, 2010)
(No. 09-7983); cf. United States v. Webster, 84 F.3d 1056, 1065 (8th Cir. 1996)
(video tape that did not preserve all actions and included unclear audio track still had
significant probative value because it showed some sort of trade across kitchen
counter, and police later collected drugs from the counter).

       We further hold that the evidence was sufficient to support Betancort’s
convictions. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008) (this
court reviews sufficiency of evidence in light most favorable to government, resolving
evidentiary conflicts in government’s favor and accepting all reasonable inferences
that support jury’s verdict). Witnesses testified that Betancort was the supplier of

                                          -2-
methamphetamine that was recovered from them, and a search of Betancort’s home
revealed distribution amounts of methamphetamine and a cutting agent. The
testimony also showed that another individual acted as a middle-man for the drug
transactions. See United States v. Parker, 587 F.3d 871, 881 (8th Cir. 2009) (to
sustain conviction for possession with intent to distribute, government must prove
defendant knowingly possessed and intended to distribute drugs; constructive
possession, where defendant has knowledge of object, ability to control it, and intent
to do so, is sufficient); United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009)
(to sustain conviction for distribution of controlled substance, government must prove
defendant knowingly and intentionally distributed controlled substance, and knew it
was controlled substance at time of distribution), petition for cert. filed, (U.S. Nov. 3,
2009) (No. 09-8131); United States v. Cruz, 285 F.3d 692, 700 (8th Cir. 2002) (to
prove conspiracy, government must prove existence of agreement to achieve illegal
purpose, and defendant’s knowledge of agreement and knowing participation in
conspiracy). Although counsel argues that the testimony of the cooperating witnesses
was unreliable, their credibility was for the jury to determine. See United States v.
Foxx, 544 F.3d 943, 950 (8th Cir. 2008) (credibility determinations are well within
province of jury), cert. denied, 130 S. Ct. 91 (2009); United States v. McKay, 431
F.3d 1085, 1094 (8th Cir. 2005) (impeachment evidence was for jury to consider). As
to the conviction for maintaining a drug residence, Betancort testified that he paid to
rent the residence, and the other witnesses testified that he sold drugs from the
residence. See 21 U.S.C. § 856(a)(1) (it is unlawful to knowingly lease any place for
purpose of distributing any controlled substance).

      Because Betancort did not object in the district court to the supervisory-role
enhancement, we review for plain error, see United States v. Lovelace, 565 F.3d 1080,
1086-87 (8th Cir. 2009), and we find none, see United States v. Davis, 583 F.3d 1081,
1097 (8th Cir. 2009) (to be subject to role enhancement under U.S.S.G. § 3B1.1(c),
defendant need only manage or supervise one other participant, and terms “manager”
and “supervisor” are construed broadly), petition for cert. filed, (U.S. Jan. 5, 2010)

                                           -3-
(No. 09-8480). Finally, as to Betancort’s pro se argument, we find no plain error in
the admission of evidence that marijuana cigarettes were also found in the search of
his home, as it does not appear that the evidence was admitted to show Betancort’s
character. See Fed. R. Evid. 404(b); United States v. Frazier, 280 F.3d 835, 846-47
(8th Cir. 2002) (other-crimes evidence may be admissible to prove issue which Rule
404(b) specifically permits to be proven).

        After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
is affirmed. We also grant counsel leave to withdraw.
                        ______________________________

                                        -4-


193 B.R. 341 (1995)
In re Gerri Lynn Perkins HAITH, Debtor.
Bankruptcy No. 94-00118-BGC-13.
United States Bankruptcy Court, N.D. Alabama, Southern Division.
June 23, 1995.
Cheryl Daugherty, Birmingham, Alabama, for Debtor.
Richmond Stephens, Leeds, Alabama, for Movant.

Order Denying Amendment to Schedules and Motion to Modify

and

Order Sustaining Objection to Amendment to Schedules and Motion to Modify

Filed by Wayne-Dalton Corp.
BENJAMIN COHEN, Bankruptcy Judge.
This matter is before the Court on an Amendment to Schedules and Motion to *342 Modify filed by the Debtor on April 10, 1995 and on an Objection to Amendment to Schedules and Motion to Modify filed by Wayne-Dalton Corp. on April 21, 1995. After notice, a hearing was held on June 13, 1995. Gerri Lynn Perkins Haith, the Debtor; Cheryl Daugherty, the attorney for the Debtor; Raymond Rodgers, a representative of Wayne-Dalton Corp.; and Richmond Stephens, the attorney for Wayne-Dalton Corp.; appeared. The matter was submitted on the testimony of the Debtor and Mr. Rodgers, exhibits admitted at trial and arguments of counsel.

Issue
The Debtor asks the Court to allow her to include a post-petition debt in her existing chapter 13 plan. The creditor of the debt objects. The issue is if the subject debt is a post-petition debt and the subject creditor objects, should a debtor be allowed to include a post-petition debt in an existing Chapter 13 plan.

Conclusions of Law
The Court's rendition of the particular facts of this case is not necessary to reach a decision in this matter. The parties agree that the subject debt is a debt that arose after the filing of the bankruptcy and after the existing chapter 13 plan was confirmed. Based on this agreement and based on the recognized prohibition of including post-petition debts in existing chapter 13 plans where affected creditors object, the Court finds as a matter of law that the Debtor's Amendment to Schedules and Motion to Modify are due to be denied and Wayne-Dalton Corporation's Objection to Amendment to Schedules and Motion to Modify is due to be sustained.
Section 1305 of the Bankruptcy Code governs the filing and allowance of post-petition claims. Section 1305(b) reads in part, "Except as provided in subsection (c) of this section, a claim filed under subsection (a) of this section shall be allowed or disallowed. . . ." 11 U.S.C. § 1305(b) (emphasis added). Consequently only post-petition debts for which a claim has been filed may be allowed or disallowed in a chapter 13 plan. Section 1305(a) reads in part, "A proof of claim may be filed by any entity that holds a [post-petition] claim against the debtor. . . ." 11 U.S.C. § 1305(a) (parenthetical added) (emphasis added). Consequently only the holder of a post-petition debt may file the proof of claim for that debt.
If a debtor or the trustee could file proofs of claims for post-petition debts that would be paid through existing chapter 13 plans, the cases and the plans they represent would be perpetual. Neither the Bankruptcy Code nor the Bankruptcy Rules allows a debtor to force a post-petition creditor into an existing chapter 13 plan. If a post-petition creditor desires to participate in the existing plan, and meets other criteria, a post-petition claim may be filed with and, depending on the facts, allowed or disallowed by the Court.
At least two treatises agree with this interpretation of section 1305 and its relationships with other sections of the Bankruptcy Code and the Bankruptcy Rules.[1] But more importantly other bankruptcy courts have reached the same conclusion. Two recent and well written opinions analyze the language of the Bankruptcy Code sections that touch on this subject. Judge William H. Brown for the Bankruptcy Court in the Western District of Tennessee wrote:
Section 1329 of the Bankruptcy Code permits, under certain restrictions, the post-confirmation modification of a Chapter 13 plan; however, such modifications are limited by the statute to the following purposes:
(1) increase or reduce the amount of payments on claims of a particular class provided for by the plan;
(2) extend or reduce the time for such payments; or
(3) alter the amount of the distribution to a creditor whose claim is provided for by the plan, to the extent necessary to take account of any payment *343 of such claim other than under the plan.
11 U.S.C. § 1329(a).
It is obvious from the clear language of this statute that post-confirmation modifications do not contemplate the forced addition of postpetition debts.
Section 1322(b)(6) permits a Chapter 13 plan to "provide for the payment of all or any part of any claim allowed under section 1305 of this title." Therefore, it is necessary to look to § 1305 to determine which postpetition claims may be allowed. That Code section is captioned "Filing and allowance of postpetition claims," and subsection (a) of § 1305 provides:
(a) A proof of claim may be filed by any entity that holds a claim against the debtor
(1) for taxes that become payable to a governmental unit while the case is pending; or
(2) that is a consumer debt, that arises after the date of the order for relief under this chapter, and that is for property or services necessary for the debtor's performance under the plan.
11 U.S.C. § 1305(a).
A reading of this statute makes it obvious that it is within the postpetition creditor's control whether a proof of claim is filed for a postpetition debt. There is no provision in § 1305(a) for the debtor to force a postpetition creditor to file a proof of claim or for the debtor to file a proof of claim on behalf of a postpetition creditor. See e.g., In re Farquhar, 112 B.R. 34 (Bankr. D.Colo.1989); In re Glover, 107 B.R. 579 (Bankr.S.D.Ohio 1989); In re Roseboro, 77 B.R. 38 (Bankr.W.D.N.C.1987). In like manner, the Bankruptcy Rule governing the debtor's filing of a claim on behalf of a creditor addresses the situation where a creditor fails to file a proof of claim "on or before the first date set for the meeting of creditors called pursuant to § 341(a) of the Code." F.R.B.P. 3004; see also In re Farquhar, 112 B.R. at 36.
In re Goodman, 136 B.R. 167, 169-170 (Bankr.W.D.Tenn.1992). Judge Richard S. Stair for the Bankruptcy Court in the Eastern District of Tennessee, wrote:
Code § 1329 permits the postconfirmation modification of a Chapter 13 plan within the limits imposed by the statute. The statute does not contemplate, nor does the unambiguous language permit, postconfirmation modifications forcing the addition of postpetition creditors. See In re Goodman, 136 B.R. 167, 169 (Bankr.W.D.Tenn. 1992). Clearly, § 1329 cannot be used by debtors as a vehicle to bring postpetition consumer creditors within the ambit of a confirmed Chapter 13 plan.
Section 1322(b)(6) permits, but does not require, a debtor to provide in his or her plan for the payment of postpetition consumer claims allowed under § 1305(a)(2). However, it is within the postpetition consumer creditor's control whether a proof of claim is filed for the postpetition debt. The debtor has no standing under § 1305 or the Federal Rules of Bankruptcy Procedure to file a proof of claim on behalf of a postpetition consumer creditor. See, e.g., In re Farquhar, 112 B.R. 34 (Bankr. D.Colo.1989); In re Glover, 107 B.R. 579 (Bankr.S.D.Ohio 1989); In re Roseboro, 77 B.R. 38 (Bankr.W.D.N.C.1987); In re Rothman, 76 B.R. 38 (Bankr.E.D.N.Y. 1987); In re Dickey, 64 B.R. 3 (Bankr. E.D.Va.1985).
In re Trentham, 145 B.R. 564, 567 (Bankr. E.D.Tenn.1992) (footnote omitted)[2]. About ten years earlier, in a short but precise opinion, Judge L. Chandler Watson of this Court reached the same conclusion based on facts that:
debt arose subsequent to the filing of the debtor's petition which initiated this case, in view of the statements in the debtor's Chapter 13 statement and the fact that this conclusion was not contradicted at said hearing, after the bankruptcy judge expressed the view that the debt in question appeared to be a post-petition debt.
*344 In re Bledsoe, 26 B.R. 230 (Bankr.N.D.Ala. 1982).[3]
Based on the parties' agreement that the subject debt is a post-petition debt, the Court finds that the Debtor's amendment and motion are due to be denied and the creditor's objection is due to be sustained, as a matter of law.
It is therefore ORDERED, ADJUDGED AND DECREED that the Amendment to Schedules and Motion to Modify filed by the Debtor is hereby DENIED and that the Objection to Amendment to Schedules and Motion to Modify filed by Wayne-Dalton Corp. is hereby SUSTAINED.
NOTES
[1]  David G. Epstein, et al., Bankruptcy § 9-4 at 615-616 (1992); Hon. Keith M. Lundin, Chapter 13 Bankruptcy § 7.38 at 7-1037-104 (1994).
[2]  The Court notes, "Fed.R.Bankr.P. 3004 authorizes the debtor or trustee to file a proof of claim within 30 days after expiration of the claims bar date on behalf of a creditor where the creditor has failed to file a claim on or before the first date set for the meeting of creditors called pursuant to § 341 of the Code." This rule does not address postpetition claims. Id. at 567 n. 5.
[3]  The Debtor analogizes her situation to the curing of mortgage which was the subject of In re Hoggle, 12 F.3d 1008 (11th Cir.1994). Hoggle involved the curing of a default in a prepetition debt not the addition of an unrelated postpetition debt.


404 F.2d 296
UNITED STATES of America ex rel. Lorenzo CATANZARO, Relator-Appellant,v.Vincent R. MANCUSI, Warden, Attica State Prison, Respondent-Appellee.
Nos. 49, 50, Dockets 31361, 32141.
United States Court of Appeals Second Circuit.
Argued Sept. 17, 1968.Decided Dec. 2, 1968.

Edwin L. Gasperini, Gasperini, Koch & Savage, New York City, for appellant.
Joel Lewittes, Asst. Atty. Gen. of State of New York (Louis J. Lefkowitz, Atty. Gen. of State of New York), for respondent-appellee.
Before LUMBARD, Chief Judge, WATERMAN and HAYS, Circuit Judges.
HAYS, Circuit Judge:

1
A New York county grand jury indicted appellant Lorenzo Catanzaro jointly with Warren Hill, Jerry McChesney, and Joseph Lonergan for murder in the first degree.  A motion to sever the trial of Lonergan was granted.  Lonergan became a prosecution witness.  The motions of Catanzaro, Hill and McChesney for severance were denied.  They were tried in the Court of General Sessions of the County of New York and convicted.  McChesney was sentenced to life imprisonment; Catanzaro and Hill were sentenced to death.  The death sentences were subsequently commuted to life imprisonment.

2
Catanzaro and Hill appealed to the New York Court of Appeals.  Hill's conviction was affirmed with three judges dissenting; Catanzaro's was affirmed by a unanimous court.  People v. Hill, 13 N.Y.2d 842, 242 N.Y.S.2d 358, 192 N.E.2d 232 (1963).

3
The Supreme Court granted Catanzaro's petition for certiorari, vacated the judgment, and remanded the case for further proceedings not inconsistent with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), decided the same day.  Catanzaro v. New York, 378 U.S. 573, 84 S.Ct. 1931, 12 L.Ed.2d 1040 (1964).

4
The New York Court of Appeals, on remand, remitted the case to the trial court for proceedings consistent with People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), to determine whether Catanzaro's confessions, which were admitted at his trial, were voluntary.  People v. Hill, 15 N.Y.2d 722, 256 N.Y.S.2d 933, 205 N.E.2d 199 (1965).

5
The trial court held the required hearing and found Catanzaro's confessions to have been voluntary.  The New York Court of Appeals affirmed, 17 N.Y.2d 185, 269 N.Y.S.2d 422, 216 N.E.2d 588, and the Supreme Court denied certiorari, 385 U.S. 875, 87 S.Ct. 152, 17 L.Ed.2d 102 (1966).

6
Catanzaro then applied for a writ of habeas corpus, claiming that his conviction was invalid because it was based on (1) the introduction into evidence of involuntary confessions, (2) an illegal search of his hotel room prior to his arrest, and (3) perjury of one of the prosecution's major witnesses.  His application was denied; the order of denial is before us on this appeal.

7
Defendant Hill, meanwhile, relying on the trial court's refusal to grant his motion to sever his trial from the trial of McChesney and Catanzaro, both of whose confessions were introduced at the trial, successfully sought a writ of habeas corpus in the Southern District of New York.  United States ex rel. Hill v. Deegan, 268 F.Supp. 580 (S.D.N.Y.1967).  Catanzaro then brought a second habeas corpus petition, arguing that the trial court's failure to grant his motion for a separate trial deprived him of the right to a fair trial, and that his sentence ought also be vacated.  The petition was denied solely on the ground that the trial transcript, an examination of which was deemed necessary to reach a determination, was before this court and was therefore not available to the district court.  That order of denial is the second of the two orders appealed from here.1

8
We affirm both orders.

I.  Factual Background

9
Richard Valk, a United Parcel Service driver, was shot and killed on May 17, 1961, during the attempted robbery of his truck on 53rd Street at Second Avenue in Manhattan.  At appellant's trial Randolph Gibbs, a prosecution witness, testified that he had turned onto 53rd Street in his employer's automobile just as the attempted robbery was being committed.  He was forced to slow down as he was approaching a United Parcel Service truck because a car, identified by him as a black 1960 Oldsmobile convertible, was double parked a short distance in front of the truck.  Upon slowing down Gibbs saw one of the defendants scuffling with the driver of the UPS truck, and a second defendant coming out of the rear of the truck.  The scuffling continued for about 10 seconds.  Gibbs saw one of the defendants raise a gun; he heard two shots.  The UPS driver fell to the ground.  The two defendants ran in front of Gibbs' car and jumped into the Oldsmobile.  Appellant was behind the wheel of the Oldsmobile.2

10
Gibbs noted the license number of the Oldsmobile as it sped away.  He stopped at 47th Street and Park Avenue to report the shooting to two policemen and he wrote down the license number of the Oldsmobile for them.

11
Police investigations disclosed that a large number of parking tickets had been issued within a short period of time to an Oldsmobile with the license number reported by Gibbs.  All the tickets pertained to an area of approximately 35 square blocks.  The police concentrated their search in that area.

12
At about 9:30 p.m. of the day of the murder the police learned that the occupant of Room 207 at the Beechwood Hotel (which was within the area of intensive search) was the driver of a black Oldsmobile that matched the description of the getaway car.

13
The occupant of Room 207 was registered under the name of Grosso but was in fact appellant Catanzaro.  Without obtaining either an arrest warrant or a search warrant two police officers went to Room 207 to arrest the occupant.  When no one answered their knock on the door the police had a hotel clerk admit them.  Shortly thereafter several detectives arrived and stationed themselves in the hotel; two remained in Catanzaro's room.

14
In the room was found a mutilated traffic ticket bearing a license number issued in a previous year for the Oldsmobile.

15
At about 1:00 a.m. on May 18-- some three hours after the police first arrived at the hotel-- Catanzaro returned.  As he reached his room and began to open the door, the police officers inside the room saw him standing in the public hallway with a package under his left arm and a small bag in his left hand.  When a detective who had followed Catanzaro up from the lobby asked him if he was Grosso he appeared to reach for the package under his arm.  The officers who were in the room rushed forward, grabbed Catanzaro, pushed him against the wall, and struggled with him in the hallway.

16
One of the detectives seized the package from under Catanzaro's arm and withdrew from it a loaded gun.  With the struggle still in process the detective said, 'I have the gun.  I have the murder weapon.'  At that point Catanzaro said, 'No, no, I was only driving the car.  I didn't do it.  The kid did it.'

17
Catanzaro was handcuffed, and searched and then taken to the hotel lobby where he made further incriminating statements.  At the police station he answered questions put to him first by the police and later, with a stenographer present, by a representative of the district attorney's office.  All these statements were introduced against Catanzaro at the trial.

II.

18
Catanzaro contends that his confessions to the police and the assistant district attorney were involuntary and that their admission into evidence violated the fourteenth amendement.

19
The Huntley hearing afforded appellant by the state court, affirmed,17 N.Y.2d 185, 269 N.Y.S.2d 422, 216 N.E.2d 588, cert. denied, 385 U.S. 875, 87 S.Ct. 152, 17 L.Ed.2d 102 (1966), found that Catanzaro made his incriminating statements in an effort to demonstrate that his participation in the crime was minimal and to exculpate himself, and that the confessions were not the product of threats, coercison, or physical violence.  There is nothing in the record to suggest that the Huntley hearing was not full and fair, or that the material facts were not adequately developed.  Indeed appellant makes no such claim.  We must presume, therefore, that the state findings of fact are correct.  See  28 U.S.C. 2254(d) (Supp.  III 1965-1967).

III.

20
Appellant contends that his confessions were the fruits of an illegal search and seizure and that their admission into evidence violates the fourth amendment.  He argues that the search of his hotel room was illegal, and that but for that search, which disclosed a traffic ticket linking him to the getaway car, the police would not have had probable cause to arrest him.

21
In Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), the Supreme Court held that the test for determining whether there is probable cause for the police to effect an arrest without a warrant is 'whether at (the moment the arrest was made) the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'

22
Even before the police searched Catanzaro's hotel room they had an eyewitness description of him and of the getaway car and also had the license number of the car.  The police learned from two guests at the hotel that a car answering the description of the getaway car was frequently parked in front of the hotel, and from the hotel clerk that the driver of the car had rented Room 207.  That knowledge was sufficient to justify the police in entering Catanzaro's room for the purpose of apprehending and arresting him.

23
It is unnecessary to consider appellant's claim that the police search of his hotel room was illegal since there was probable cause to arrest him without regard to the results of the search and since the results of the search were not introduced against him at the trial.

IV.

24
Appellant next contends that the writ of habeas corpus should be granted because of the post-verdict disclosures concerning the perjury and criminal record of the eyewitness, Gibbs.

25
During the trial Gibbs frequently changed the story that he told the jury.  He testified both that he had and had not seen a lineup in connection with this case; he testified that he had seen two and that he had seen three of the defendants at the same lineup; and he testified that Hill and not McChesney, and then McChesney and not Hill, had shot Valk.

26
Gibbs also testified that he had been honorably discharged from the Army and that he had been wounded and drawn disability pay.  After the verdict had been entered, but before sentencing, the district attorney informed the court that after the trial he had learned that Gibbs had perjured himself in testifying that his discharge from the Army was honorable.  Shortly thereafter the district attorney learned and informed the court that Gibbs had a criminal record-- three convictions on theft and robbery charges-- and that there was no record of any disability payments made to Gibbs.

27
Catanzaro's codefendant Hill raised the same issue in his petition for habeas corpus.  After a full evidentiary hearing, the court concluded that whatever error might have been committed was 'insufficient in itself to warrant granting of the writ.'  United States ex rel. Hill v. Deegan, supra, 268 F.Supp. at 592.  We agree.

28
There is nothing in the record to indicate that the district attorney consciously or intentionally used perjured testimony.  Cf. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).  Nor is there anything in the record to indicate that the district attorney suppressed evidence of Gibbs' criminal record.  Cf. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).  It was through the disclosure of the district attorney to the court that the defendants learned of Gibbs' perjury and of his undisclosed criminal record.

29
In addition, the witness, however self-contradictory in other respects, consistently identified Catanzaro as the driver of the getaway car.  We conclude that there was no such 'transgression of the imperatives of fundamental justice' as would violate the fourteenth amendment.  Blackburn v. Alabama, 361 U.S. 199, 211, 80 S.Ct. 274, 282, 4 L.Ed.2d 242 (1960).

V.

30
Catanzaro's final claim is that the failure of the trial court to grant his motion for a separate trial prejudiced his right to a fair trial.  He relies on Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) and United States ex rel. Hill v, Deegan, supra, and argues that because the confession of the codefendant McChesney was introduced at the joint trial the writ of habeas corpus should be granted here.

31
The reasoning of Hill and Bruton is not persuasive here.  Both of those cases involved a defendant who did not confess and who was tried along with a codefendant who did.  In our case Catanzaro himself confessed and his confession interlocks with and supports the confession of McChesney.

32
Where the jury has heard not only a codefendant's confession but the defendant's own confession no such 'devastating' risk attends the lack of confrontation as was thought to be involved in Bruton.  See 391 U.S. at 136, 88 S.Ct. 1620.

33
Affirmed.

1
 After the denial of the second habeas corpus petition, Catanzaro, again relying on the success of his codefendant Hill in prosecuting his habeas corpus petition, applied to the state court for a writ of error coram nobis.  That application was denied, as was Catanzaro's application for permission to appeal to the New York Court of Appeals.  The Supreme Court denied certiorari, 390 U.S. 1031, 88 S.Ct. 1425, 20 L.Ed.2d 289 (1968)

2
 Defendant Joseph Lonergan, who was accused of planning the robbery, was not at the scene of the crime


681 F.2d 808
Raybornv.Eisman
80-1814
UNITED STATES COURT OF APPEALS Third Circuit
4/5/82

1
E.D.Pa.

AFFIRMED