author: THORNBERRY, Circuit Judge:

text:
    William A. MITCHELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3661.
    United States Court of Appeals, Fifth Circuit.
    Aug. 16, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 1, 1973.

      William Mitchell, Paul L. Cummings, Pensacola, Fla., Court-appointed, for petitioner-appellant.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., for respondent-appellee.
    Before THORNBERRY, AINS-WORTH and RONEY, Circuit Judges.
   THORNBERRY, Circuit Judge:

Mitchell appeals from the district court’s denial of his 28 U.S.C.A. § 2255 motion for vacation of sentence, 350 F.Supp. 366, in which he contended that in sentencing him originally the court had improperly taken into account prior convictions which were invalid under Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. We vacate the denial of his motion and remand with directions.

On June 14, 1971 Mitchell pleaded guilty to concealing an escaped prisoner in violation of 18 U.S.C.A. § 1072 and was sentenced to a three-year term of imprisonment, the statutory maximum authorized for that offense. In determining the sentence the district court considered three prior convictions of appellant: a 1955 Florida state conviction for breaking and entering, a 1956 federal conviction in North Carolina for interstate transportation of a stolen motor vehicle, and a 1958 Florida state conviction for unlawfully escaping from prison. At the hearing on his subsequent § 2255 motion to vacate the sentence below appellant sought to establish that he had been denied his Sixth Amendment rights to counsel in each of the three prior cases and argued that he was entitled to relief under the recent case of Tucker v. United States, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

Tucker, also a § 2255 case, applied to the sentencing stage of a criminal prosecution the principle established in Burgett v. Texas, 1967, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 that “a conviction obtained in violation of Gideon v. Wainwright [may not] be used against a person either to support guilt or to enhance punishment for another offense.” Tucker had been convicted of armed bank robbery and sentenced to twenty-five years’ imprisonment, the maximum term authorized for the offense. In determining his sentence the district court had considered three prior felony convictions, two in Florida and one in Louisiana. Several years after sentencing for the bank robbery conviction, the Superior Court of Alameda County, California had determined in a collateral proceeding that one of the prior Florida convictions and the prior Louisiana conviction were invalid because Tucker had not been accorded his Sixth Amendment rights to counsel in those two prosecutions. Tucker attacked his bank robbery sentence in a § 2255 motion, arguing that the sentencing judge’s consideration of constitutionally invalid convictions in arriving at his sentence rendered it invalid. The district court denied the motion originally, 299 F.Supp. 1376, but the Court of Appeals for the Ninth Circuit agreed with Tucker and remanded for resentencing “without consideration of any prior convictions which, are invalid under Gideon v. Wainwright.” 431 F.2d 1292. The Supreme Court affirmed. It viewed the critical issue as “whether the sentence in the 1953 [bank robbery] case might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.” United States v. Tucker, supra, 404 U.S. at 448, 92 S.Ct. at 592. In answering in the affirmative, it reasoned that “if the trial judge [in the bank robbery case] in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the circumstances of the respondent’s background would have appeared in a dramatically different light at the sentencing proceeding.” Id. A showing of such constitutional infirmity fatally weakens for purposes of sentencing the reliability of a purported determination of guilt beyond a reasonable doubt, for denial of appellant’s right to counsel substantially affects the integrity of the fact-finding process at a trial as well as the reliability of a conviction upon a plea of guilty. See Linkletter v. Walker, 1965, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743 n. 20, 14 L.Ed.2d 601; Rice v. Olon, 1945, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.

Appellant Mitchell contended below, as he does on this appeal, that the Tucker holding is directly applicable to his case. The district court rejected this contention after an evidentiary hearing on three distinct grounds, each one of which appellant contests and the Government defends. The three grounds were: (1) that Mitchell had waived his right to attack the prior convictions by admitting the correctness of his criminal record as it was presented to the district court at the time of sentencing in 1971; (2) that the Gideow-based attack on the prior convictions must be made initially in the federal court or in the courts of the state where the prior convictions were obtained; and (3) that the evidence at the § 2255 hearing was “clearly insufficient to establish conclusively the invalidity of the prior convictions.”

I. Warver

While it is true that a defendant may lose his right to file a § 2255 motion on a given ground by consciously and deliberately electing not to raise, that ground at the time of conviction or on direct appeal, see Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837; Brown v. Allen, 1952, 344 U.S. 443, 486, 73 S.Ct. 397, 422, 97 L.Ed. 469; Brown v. United States, 5th Cir. 1973, 480 F.2d 1036; Larson v. United States, 5th Cir. 1960, 275 F.2d 673, we cannot agree with the district court that Mitchell waived his right to attack the validity of the prior convictions in this case. We note first that by admitting the correctness of his criminal record at the time of sentencing Mitchell did not admit that he was in fact guilty of the three prior offenses charged, but only confirmed through his counsel that the record of convictions and prison disciplinary proceedings presented to the court was substantially correct. Neither Mitchell’s statements nor those of his attorney at sentencing can fairly be construed as more than admissions that Mitchell had been previously convicted of three crimes, as reflected on his record. They were not admissions of guilt and did not constitute an express waiver of the right to attack the constitutional validity of the prior convictions. Further, the record does not suggest, nor can we imagine, any tactical or strategical reason for deliberately failing to challenge the prior conviction at sentencing. Of importance in determining whether a waiver or intentional by-pass may be inferred from the record is the fact that United States v. Tucker, supra, the case on which Mitchell’s § 2255 motion is primarily based, had not been decided at the time of his sentencing; it was decided six months later. While Mitchell’s pre-1971 litigation in Florida courts in pursuit of post-conviction remedies shows that he was aware of the possibility of challenging the prior convictions on Sixth Amendment right-to-counsel grounds before he was sentenced in 1971, the significance of such a challenge for the sentence Mitchell then faced was not entirely clear before Tucker was decided. Under these circumstances, we hold the record fails to demonstrate a clear waiver, express or implied, or an intentional by-passing of an opportunity to assert a known right. Thus, appellant’s § 2255 attack on the prior convictions was not barred by waiver.

II. Exhaustion

The district court’s second basis for denying Mitchell’s motion to vacate sentence was that Mitchell had not travelled all available avenues of attack on the three prior convictions in the courts where they were entered. Under this view, in order to mount a successful Tucker attack on the 1971 sentence, appellant was obliged first to exhaust the Florida state remedies still available to attack the two Florida convictions and to return to the North Carolina federal court to attempt to have the 1956 federal conviction there adjudicated invalid. Thus, the district court fashioned a rule analogous to the exhaustion-of-state-remedies doctrine which normally applies to direct habeas corpus challenges to state convictions and to the parallel rule that a habeas attack on a federal conviction must normally be preceeded by a § 2255 motion in the court of conviction.

We do not agree that any such exhaustion requirement applies when the conviction whose validity is at issue is a prior one, not the very conviction which authorized the sentence sought to be vacated in the § 2255 motion. The Tucker opinion itself contains no requirement that a defendant return to the court or state of a prior conviction to secure a ruling of invalidity to support his § 2255 motion nor any hint that Tucker had exhausted Louisiana and Florida procedures for attacking any of the three convictions challenged in that case. In Tucker the movant had secured an adjudication in a California court that a prior Louisiana conviction and a prior Florida conviction were invalid, and this ruling, which was not contested by the Government, was considered adequate to support the motion. The constitutional validity of Tucker’s third conviction had not been determined before he filed his § 2255 motion. Since the Supreme Court affirmed the Ninth Circuit’s order remanding the case for resentencing “without consideration of any prior convictions which are invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799,” and did not suggest that the determination of the third conviction’s validity should be made in a state court before resentencing, it seems apparent that the determination was to be made in the district court.

That a federal court may determine the constitutional validity under Gideon v. Wainwright of a prior conviction without requiring initial resort to the federal or state court of conviction is not a novel proposition. In United States v. Martinez, 7th Cir. 1969, 413 F.2d 61, the Seventh Circuit held that when a prior conviction presented by the prosecution to the trial court to enhance a defendant’s sentence was challenged as constitutionally invalid, the court had both the power and the duty to ascertain the prior conviction’s validity without first requiring the defendant’s return to the court of the prior conviction. In United States v. Thoresen, 9th Cir. 1970, 428 F.2d 654 the Ninth Circuit approved the Martinez procedure and held that when a prior state conviction introduced as an element of the crime in a federal case was attacked as invalid on Sixth, Fifth, and Fourteenth Amendment grounds, the district court should determine the validity of the prior state conviction. See also Craig v. Beto, 5th Cir. 1972, 458 F.2d 1131; United States v. Lufman, 7th Cir. 1972, 457 F.2d 165; Williams v. Coiner, 4th Cir. 1968, 392 F.2d 210, 212-213.

A requirement of exhaustion of collateral attack remedies in the state and federal courts where prior convictions were obtained would erect an insuperable barrier to effective implementation of the Tucker rule. See United States v. Martinez, supra, (Kerner, J. concurring). The instant case is illustrative. In order to press his collateral attack under § 2255, the indigent, incarcerated appellant would be required first to undertake three other collateral attacks on prior convictions in other forums. The number of proceedings, the problems surrounding appointment of counsel for each of them, and the expenses involved would be multiplied many times. A ruling on the § 2255 motion would be long delayed. The chances that appellant would ultimately succeed in the § 2255 proceeding, even if his claim is meritorious, would as a practical matter be greatly diminished. Exhaustion of the movant, rather than exhaustion of other collateral attack possibilities, would be the likely result. We do not believe Tucker contemplated or is consistent with the creation of this type of procedural obstacle course.

According, we hold that no exhaustion requirement applies to a collateral attack on prior convictions, as distinguished from the conviction which authorized the sentence sought to be vacated, in a § 2255 proceeding.

III. Burden of Proof and Standard of Proof

The Sixth Amendment principles upon which validity of Mitchell’s prior convictions depends are clear. The convictions are valid only if appellant was represented by counsel or competently waived his right to such representation. See Argesinger v. Hamlin, 1972, 407 U. S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Burgett v. Texas, 1967, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319; Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. The district court’s third ground for denying the § 2255 motion below was that Mitchell failed “to establish conclusively the invalidity of these prior convictions.” This determination raises two issues: (1) who has the burden of proof at a § 2255 proceeding in the contest over the constitutional validity of the prior convictions and (2) what standard of proof must that party meet.

Before proceeding to the central burden of proof issue presented, we pause to comment on the question of appellant’s indigency. Virtually all right-to-eounsel cases concern the rights of indigent defendants to appointment of counsel, not the rights of non-indigent defendants to retain counsel. Indigency of the defendant determines his right to appointment of counsel and thus bears importantly on the nature of the Sixth Amendment right he must understand and knowingly waive if he is not represented. The indigency of the defendant is frequently an undisputed, and sometimes an unarticulated, premise under which the courts review right-to-counsel cases. When this premise is contested, however, it is clear that the party collaterally attacking a conviction has the burden of proving his indigency during the relevant period. Kitchens v. Smith, 1971, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519; accord Goodwin v. Smith, 5th Cir. 1971, 439 F.2d 1180. Generally, when the collateral attacker alleges and testifies that he was indigent at the time of the challenged prosecution and the state offers no controverting evidence, he should be deemed to have carried his burden of proof as to indigency. See Kitchens v. Smith, supra. At the hearing below in the instant case, appellant testified that he was financially unable to retain counsel at the relevant times, and the state has not contested this contention. The district court apparently assumed appellant’s indigency in its opinion, and we shall assume it in the remainder of this opinion. On remand, however, the district court should make a specific finding on the question of appellant’s indigency at the times of the three prior convictions. Goodwin v. Smith, supra.

The burden of proof issue presented is an important one requiring a resolution of an apparent conflict between the presumption against waiver and the presumption in favor of the validity of a conviction when collaterally attacked.

In Johnson v. Zerbst, 1938, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, the Supreme Court originally accorded greater weight to the presumption in favor of a conviction’s validity and placed on the party seeking to collaterally attack the conviction the burden of showing both that he did not have counsel and that he did not validly waive his Sixth Amendment right.

It must be remembered . . . that a judgment cannot be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of the evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.

See also Moore v. Michigan, 1957, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167. The past decade has witnessed a strengthening of the presumption against waiver of the right to counsel and a corresponding modification of the Johnson v. Zerbst burden of proof rule. In Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, a habeas corpus challenge to the validity of a state conviction, the Court held:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offerred counsel but intelligently and understanding^ rejected the offer. Anything less is not waiver.

In Burgett v. Texas, supra, the Court reviewed on certiorari a Texas state conviction obtained after a trial in which certain prior convictions were placed before the jury. The Burgett court reaffirmed the proposition that the validity of the prior convictions under the Sixth Amendment could not be presumed from a silent record and held a prior conviction to be presumptively void when the record failed to indicate that the petitioner had been represented by counsel at the prior trial or that he had waived his right to appointed counsel.

The rule which has evolved is that when a convicted defendant who was indigent at the time of his conviction collaterally attacks the conviction on right-to-counsel grounds, and the record shows that he was not represented by counsel or is silent regarding representation of counsel, then the party which defends the conviction has the burden of proving that the defendant was represented by counsel or that he waived his right to counsel. Carnley v. Cochran, supra; Woods v. United States, 7th Cir. 1972, 457 F.2d 185; United States v. Lufman, 7th Cir. 1972, 457 F.2d 165, 166 n. 2; Goodwin v. Smith, 5th Cir. 1971, 439 F.2d 1180; United States v. DuShane, 2nd Cir. 1970, 435 F.2d 187, 189-190; Losieau v. Sigler, 8th Cir. 1969, 406 F.2d 795, cert. denied 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452; Wilson v. Coiner, 4th Cir. 1968, 392 F.2d 210, 212-213; Palmentere v. United States, W.D.Mo.1972, 351 F.Supp. 167; see Craig v. Beto, 5th Cir., 1972, 458 F.2d 1131; United States v. Wendt, N.D.Ga.1972, 347 F.Supp. 647. Conversely, if the record of the conviction under collateral attack shows that the defendant was represented by counsel, the convicted defendant has the burden of impeaching the record. Oswald v. Crouse, 10th Cir. 1969, 420 F.2d 373; Losieau v. Sigler, supra; Wilson v. Wiman, 6th Cir. 1967, 386 F.2d 968, cert. denied 390 U.S. 1042, 88 S.Ct. 1634, 20 L.Ed.2d 303.

Since the records of the three prior convictions in this case show that appellant was not represented by counsel when he pleaded guilty to the three prior charges, the Government must carry the burden of proving a valid waiver of the right-to-eounsel in each prior case which has been challenged if it is to be considered in sentencing. Since the district judge erroneously placed the burden on the waiver issue on appellant rather than on the Government, its fact findings on this issue cannot stand, and the evidence must be reevaluated on remand in light of the proper burden of proof rule.

The district court’s opinion below indicates that it imposed on appellant the burden of “conclusively” establishing his case. As indicated above, the burden of proof should have been imposed on the Government. Further, we do not believe the elevated “conclusive” standard of proof was the proper one. Johnson v. Zerbst, supra, 304 U.S. at 469, 58 S.Ct. at 1025, 82 L.Ed. 1461 established the preponderance-of-the-evidence standard as applicable to right-to-counsel questions at habeas corpus proceedings, and we have found no case suggesting a modification of this standard. On remand the district court should therefore weigh the evidence under the preponderance standard.

IV. Proceedings on Remand

The district court should on remand determine the validity or invalidity of each of the three challenged prior convictions in accordance with the principles stated in this opinion, and if it determines one or more of them to be invalid, it should resentence appellant without considering the invalid conviction or convictions.

We do not suggest any limitation on the exercise of the district court’s discretion as to the duration of a new sentence, if resentencing should prove necessary, or any limitation on the matters the district court may consider in arriving at a new sentence, except that prior convictions invalid under Gideon v. Wainwright may not be considered. Tucker requires this exclusion. The traditional breadth of the district court’s discretion to consider other matters and impose a sentence within statutory limits remains unchanged. See 2 C. Wright & A. Miller, Federal Practice and Procedure, § 526 (1969).

The judgment of the district court is vacated and the ease is remanded with directions.

      . Following the hearing on the § 2255 motion below the district court wrote in its Memorandum Decision, “The court considered, on sentencing, the three convictions but cannot state with certainty whether or not they enhanced the sentence and so makes no determination respecting such.” To prevail below Mitchell was not required to secure an affirmative finding that reliance on prior invalid convictions enhanced his sentence. He needed only to show that the sentencing judge considered constitutionally invalid convictions, so that the sentence was imposed not “in the informed discretion of a trial judge, but [was] founded at least in part upon misinformation of constitutional magnitude.” United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

      . United States v. Morgan, 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, and Frizzell v. State, Fla.1970, 238 So.2d 67 (semble) permit a defendant threatened with an enhanced sentence as a multiple offender to collaterally attack a prior conviction in the court where it was obtained even after the sentence resulting from it has been fully served.

      . The lower court opinions are likewise devoid of any suggestion that Tucker exhausted state remedies. See Tucker v. United States, N.D.Cal.1969, 299 F.Supp. 1376, rev’d 9th Cir. 1970, 431 F.2d 1292.

      . The court summarized the evidence bearing on the validity of the three irrior convictions under the Sixth Amendment as follows:
      The certified copy of the docket sheet in the federal case in North Carolina contains the entry: “Each Deft, waives appointment of attorney by the court,” which indicates petitioner was offered court-appointed counsel. At hearing, petitioner claimed that, if he had been offered counsel, he did not knowingly and intelligently waive counsel. The only reasons he gives in support, however, are that he “didn’t realize the value of an attorney” and that he was “sure the court wasn’t correct in the procedure they took in letting mo waive counsel.”
      The certified copy of the proceeding in the Circuit Court in Bay County, Florida in 1958 indicates that petitioner was asked if “he desired the services of an attorney” but that he stated “he did not want a lawyer.” Petitioner stated at hearing that he was not advised that he had a right to court-appointed counsel if he could not afford to hire an attorney and the reason he said he didn’t want counsel was because he had no money to hire an attorney. Since this took place before the Gideon decision, it may be petitioner was not advised of any right to court-appointed counsel, but that is not here established.
      The certified copy of the record of the proceedings in 1955 in the Court of Record of Escambia County, Florida shows that petitioner was not represented by counsel and there' is not evidence that petitioner was questioned or advised concerning counsel. Petitioner testified he wanted an attorney but could not afford to hire one and that he did not ask the court for appointed counsel in either that case or the Bay County ease because, under the law of Florida at that time, he knew none would be appointed. But no further evidence was presented.

      . In treating the burden of proof question the cases make no distinction between various types of collateral attacks, such as § 2255 motions, applications for writs of habeas corpus, coram nobis proceedings, or attacks on prior convictions in a collateral proceeding arising from a subsequent prosecution. As examples, compare Carnley v. Cochran, 1962, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (federal habeas corpus attack on state conviction: where record showed petitioner was not represented by counsel at trial, state had burden at habeas corpus hearing of proving waiver); Losieau v. Sigler, 8th Cir. 1969, 406 F.2d 795, cert. denied 396 U.S. 988, 90 S.Ct. 475, 24 L.Ed.2d 452 (federal habeas corpus attack on state conviction as habitual offender: where record silent as to representation by counsel at prior convictions, state had burden at habeas proceeding of proving representation or waiver) ; and Woods v. United States, 7th Cir. 1972, 457 F.2d 185 (coram nobis attack on federal conviction for unlawfully purchasing a firearm as a felon: where record silent as to presence of counsel at prior conviction, Government has burden at coram nobis proceeding of proving defendant’s Sixth Amendment rights were not violated). Likewise, in this opinion we make no such distinctions, since we discern no reasonable basis for doing so.

      . This court has previously expressed awareness of the evidentiary problems surrounding proving waiver or lack of waiver of the right to counsel in an old prosecution. Goodwin v. Smith, 5th Cir. 1971, 439 F.2d 1180. Necessarily, the courts must rely heavily on the records made of a prior conviction in ascertaining the circumstances under which it was obtained and must take into account the usual practices which prevailed at the time and place of the conviction. Of course, where witnesses are available who have first-hand recollection of the factual matters in dispute, their testimony may be quite valuable.
      We note that the docket sheet in the 1956 federal case contains the notation, “Each Deft, waives appointment of attorney by the court.” On remand the district court should evaluate this notation in light of Craig v. Beto, 5th Cir. 1973, 458 F.2d 1131.


source: Caselaw Access Project

author: HAYNSWORTH, Chief Judge:

license: Public Domain

text:
    Janie R. LEE, Executrix of the Estate of Stanley Lee, Deceased, et al., Appellees, v. WALWORTH VALVE COMPANY, Appellant.
    No. 72-2360.
    United States Court of Appeals, Fourth Circuit.
    Argued March 7, 1973.
    Decided Aug. 2, 1973.

      Thomas E. Byrne, Jr., Philadelphia, Pa. (William H. Grimball, Grimball & Cabaniss, Charleston, S. C., John C. Det-weiler and Krusen, Evans & Byrne, Philadelphia, Pa., on brief), for appellant.
    B. Allston Moore, Jr., Charleston, S. C. (Buist, Moore, Smythe & McGee, Charleston, S. C., William G. Symmers and Symmers, Fish & Warner, New York City, on brief), for appellee, Lockheed Shipbuilding and Const. Co.
    Arnold S. Goodstein, Charleston, S. C. (David G. Jennings, Charleston, S. C., on brief), for appellee, Janie R. Lee.
    Before HAYNSWORTH, Chief Judge, and BOREMAN and BRYAN, Senior Circuit Judges.
   HAYNSWORTH, Chief Judge:

There was a rupture of a steam valve in the engine room of the USS Trenton, while she was cruising on the high seas off Guantanamo Bay, Cuba. A chief petty officer, on watch at the time in the engine room, was killed by escaping steam. He was a citizen of South Carolina, and he left his widow and executrix, who is a citizen and resident of that State. As executrix, she filed this action for wrongful death in the District Court for the District of South Carolina against Lockheed Shipbuilding and Construction Co., the builder of the Trenton, and against Walworth Valve Co., the manufacturer of the valve. Walworth filed a motion to quash the service upon it upon the ground that its contacts with South Carolina are insufficient to make it amenable to suit in that State.

The District Court denied the motion; we think properly so.

The Trenton was built for the Navy by Lockheed in its yards at Seattle, Washington. The valve involved was manufactured by Walworth at its plant in Pennsylvania and shipped by it from Pennsylvania to Lockheed at Seattle, where Lockheed installed the .valve in the Trenton’s engine room. The Trenton, upon completion and delivery to the Navy, left Seattle, but until the fatal injury of Stanley Lee it had not touched port in South Carolina and was not based there.

Lockheed is qualified to do business in South Carolina. It makes no objection to the maintenance of the action against it in that State. It has joined plaintiff in her efforts to hold Walworth answerable there, and it has sought affirmative relief in a third party complaint against the United States.

Walworth and its two wholly owned subsidiaries are manufacturers of industrial valves. They maintain no place of business in South Carolina. They own no property in that State and have no bank accounts there. There is no resident salesman or other agent in South Carolina, but, with some degree of regularity, salesmen headquartered elsewhere call upon South Carolina customers. These include a miscellany of industries, utilities, mill supply houses, and the Charleston Navy Yard. Together, several salesmen spent eighty days soliciting business in South Carolina in 1969, eighty-seven days in 1970, and seventy-five days in 1971. Additionally, some orders were obtained elsewhere for the shipment of pumps to consignees in South Carolina. Aggregate sales of Wal-worth and its two wholly owned subsidiaries to South Carolina customers in 1969 were $245,713.56; in 1970, they were $399,485.15, and in 1971, they were $179,607.30. During the first five months of 1972, their South Carolina sales aggregated $155,623.59.

In addition to the sales solicitation activity conducted by Walworth and its subsidiaries in South Carolina, it occasionally sent engineers into the state to deal with engineering problems. One of the engineers spent two days in that State in 1970, and, in 1971, an engineer made two separate trips into the state, spending, altogether, nine days there.

Almost all of Walworth’s activity in South Carolina was the solicitation of orders which resulted in the shipment of pumps in interstate commerce. Once such activity was thought an impermissible predicate for the assertion of in personam jurisdiction. Though the considerations of the Commerce Clause may still be appropriate in consideration of local regulation and taxation, it is clearly no longer relevant to an appraisal of the state’s power to exercise in personam jurisdiction.

Walworth’s activity in South Carolina was neither isolated nor casual. The data show that Walworth’s salesmen called upon customers in South Carolina with regularity. They were not always present, but seventy-five to eighty-five days a year is a substantial proportion of the total number of working days in a year. The volume of business resulting represented but a small percentage of Walworth’s total sales, but sales of pumps aggregating several hundred thousand dollars a year cannot be labeled insubstantial.

Under the doctrine of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the power to exercise in personam jurisdiction over a foreign corporation is to be determined by an appraisal of the quality of the corporation’s contacts with the forum state and the fairness, under the circumstances, of holding it answerable there. Walworth’s substantial activity in South Carolina in the solicitation of orders was far from minimal. This case would present absolutely no problem if the controversy arose out of the purchase or use in South Carolina of one of the pumps Walworth had shipped into that State.

The difficulty in the case arises out of the fact that the cause of action did not grow out of any of Walworth’s activity in South Carolina. The cause of action did not even arise in that State, for the injury occurred on the high seas. On the other hand, it is relevant to note that the cause of action did not arise in any other state whose courts might provide a more likely forum. This means that there probably are only two states in the United States with any interest in the controversy, the state of Walworth’s domicile, and South Carolina, the residence of the decedent and of his widow and executrix. The interest of South Carolina is substantial, however, for it has a paternal interest in the recovery by one of its citizens of appropriate compensation, if there is a substantive cause of action. To the extent that Mrs. Lee, or she and her dependents, deprived of the support of her husband, might become a public charge, or charges, South Carolina has an immediate interest in her vindication of any private right of action she may have for the wrongful death of her husband.

In Ratliff v. Cooper Laboratories, Inc., 4 Cir., 444 F.2d 745, we recently considered a somewhat similar case with one significant difference. There, citizens of other states than South Carolina sought to maintain tort actions in the District Court for that State against two pharmaceutical houses for personal injuries sustained in other states, allegedly as a result of the use of defendant’s products. We held that the actions could not be maintained, though the sale solicitation activity of the defendants there was comparable to the in-state activity of Walworth here. Our holding in Ratliff was dictated by the fact that South Carolina had no interest in or connection with the controversy. The out-of-state plaintiffs sought to maintain the action in South Carolina solely for the purpose of availing themselves of South Carolina’s relatively long statute of limitations, for the claims were time-barred in the states in which the plaintiffs resided and in which they sustained their injuries.

In this case there is no taint of forum shopping. It was natural for the plaintiff to prefer courts in her home state, and South Carolina, as we have seen, does have an interest in the controversy.

If a foreign corporation’s contacts with a forum state are sufficiently substantial, the forum state may constitutionally authorize the judicial assertion of in personam jurisdiction, even though the plaintiff has had no contacts with the forum state and the cause of action did not arise there. Unquestionably, when the plaintiff is a stranger to the forum, we would require more substantial contacts with the forum state by the defendant before proceeding to exercise in personam jurisdiction than we would in a case in which the plaintiff lives in the forum state and the cause of action arose out of the defendant’s activity in that state, however minimal that might be. In this case, we are somewhere between those extremes. We might well hold that Walworth’s activity in South Carolina was not enough to make it generally answerable to any plaintiff who wished to maintain a transitory cause of action in the courts of that state, but Walworth’s activity was far more than the minimal activity which would justify holding it answerable if the cause of action had arisen in South Carolina and out of Walworth’s activity in that State. The frequency and regularity of Walworth’s activity in South Carolina make it fair to hold it answerable in that State to Mrs. Lee.

Walworth finds great comfort in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, from which it draws the conclusion that in assessing the fairness of holding Walworth answerable in South Carolina, we may consider only factors affecting it and may not consider the plaintiff’s situation or the burdens which would be imposed upon her if required to assert her claim in Pennsylvania or in the state of Wal-worth’s domicile. But Hanson may not be read in any such fashion. There, the Florida courts had asserted the power to declare invalid two Delaware trusts of which two Delaware trust companies, indispensable parties, were trustees. The Delaware trust companies had had no contact whatever with Florida and the Supreme Court properly observed that with no contacts upon which to predicate an exercise of judicial power, there could be no jurisdiction, notwithstanding the possible convenience to the plaintiffs. In this case, Walworth has substantial contacts with South Carolina, and in considering the next branch of the problem, the fairness of requiring it to answer there, we necessarily look at the whole case, including South Carolina’s interest in the controversy and the situation of the plaintiff and her relation, and her deceased husband’s relation, to the forum state. It was fair to hold that the insurance company was answerable to McGee in California only because McGee resided there and the defendant’s one act in California was the solicitation of his renewal policy. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. On the other hand, the fact that Mrs. Perkins had no contacts with Ohio was a relevant consideration in assessing the fairness of holding Benguet Mining Co. answerable to her there. Perkins v. Benguet Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485.

In Ratliff, the very basis of our holding was the fact that the plaintiffs had no connection with South Carolina and, hence, there was no countervailing considerations of fairness to be placed in the scales when weighing the substantiality of the defendants’ contacts. We cited with approval Seymour v. Parke, Davis & Co., 1 Cir., 423 F.2d 584, a similar case, in which it was said that the outcome might have been different if the plaintiff had had some connection with the forum state.

During oral argument, Walworth urged that we ignore the activities of Walworth’s two wholly owned subsidiaries. We were cited to Cannon Manufacturing Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634. That case held only that the presence of an independent subsidiary could not be equated with the presence of the parent. Here, the activity in South Carolina appears to have been joint. There is no indication in the record that any salesmen represented only one of the corporations involved. From all that appears, each was authorized to solicit orders for the three related corporations, which, incidentally, filed consolidated tax returns.

Even if we disregarded the sales of the wholly owned subsidiaries, however, Walworth’s own sales were much the more substantial. If we looked at them alone it would not alter our view that under all of the circumstances the jurisdictional requirements are met. In light of the plaintiff’s relations to South Carolina, the interest of that State in the controversy, the fact that the cause of action arose on the high seas and not in any other state, and Walworth’s substantial and continuing contacts with South Carolina, we conclude that the District Court quite properly denied the motion to quash the service of process on Walworth.

This has become a multi-party case. Lockheed, the co-defendant, is prepared to proceed to the merits in the District Court of South Carolina and the United States, answerable there, has been made a third party defendant. The case properly should proceed to trial in a forum in which all of these parties may be heard and their rights determined.

Affirmed.

      . There is no contention that § 10-424 of the Code of Laws of South Carolina (1962) is not sufficiently broad to authorize the action, if its maintenance against Walworth can be squared with due process requirements of the Constitution. The only contention is that the due process clause forecloses maintenance of the action against Walworth in South Carolina.

      . See Green v. Chicago, Burlington & Quincy Railway Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916.

      . See International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223.

      . In product liability cases, the shipment of one item into the forum state may suffice if use of that item in the state occasions harm. Even if the foreign corporation had never shipped anything into the foi'um state, it has been held that it is amenable to process there if an article manufactured by it is shipped into the forum state by an assembler and causes harm. Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761.

      . Perkins v. Beuguet Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485.


author: CECIL, Senior Circuit Judge.

text:
    Joel Farris OLDS, Petitioner-Appellant, v. William S. NEIL, Warden, Tennessee State Penitentiary, Nashville, Tennessee, Respondent-Appellee.
    No. 72-2094.
    United States Court of Appeals, Sixth Circuit.
    Argued April 13, 1973.
    Decided July 17, 1973.

      Ronald L. Gilman, Memphis, Tenn., (Court appointed), for petitioner-appellant.
    James M. Tharpe, Sp. Counsel, State of Tenn., Memphis, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. of Tenn., of counsel.
    Before WEICK, Circuit Judge, and CECIL and O’SULLIVAN, Senior Circuit Judges.
   CECIL, Senior Circuit Judge.

Joel Farris Olds, petitioner-appellant, appeals from an order of the United States District Court, for the Western District of Tennessee, denying his petition for a writ of habeas corpus. Olds, the appellant, and two co-defendants, Henry Clay Monts and Johnny West, were found guilty by a jury on February 4, 1963 of murder in the first degree, in the perpetration of a burglary, for the killing of Frank Bruno, a Memphis Police Officer on October 7, 1960. Olds was sentenced to serve ninety-nine years in prison and Monts and West were given death sentences.

All three defendants filed motions for new trial but on March 8, 1963, Olds’ lawyer, privately employed, withdrew his motion and thus foreclosed his right to a direct appeal. Appeals were perfected on behalf of Monts and West and they were granted new trials by the Supreme Court of Tennessee. Monts v. State, 214 Tenn. 171, 379 S.W.2d 34. The basis of their reversals was that the trial judge had refused, upon request, to charge the jury on circumstantial evidence.

Monts and West were retried, found guilty and sentenced to serve one hundred fifty years imprisonment in the State Penitentiary. These convictions were affirmed by the Supreme Court of Tennessee. Monts v. State, 218 Tenn. 31, 400 S.W.2d 722. The facts of the burglary and killing are detailed in the opinion of this case. Subsequently, Monts and West exhausted their state remedies and petitioned the United States District Court for the Middle District of Tennessee for writs of habeas corpus. Their petitions being denied they appealed to the Sixth Circuit Court of Appeals.

Monts’ principal claim on appeal was that his confession was in violation of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and should not have been admitted into evidence. We denied this claim, as reported in Monts v. Henderson, 409 F.2d 17 (C.A.6).

West’s appeal to this Court was sustained. The judgment of the District Court denying the petition for a writ of habeas corpus was vacated and the case remanded with instructions to the District Court to allow the State a reasonable time for retrial. West v. Henderson, 409 F.2d 95 (C.A.6). We held that Monts’ confession was a studied effort to exculpate himself and to inculpate West and that the prosecutor’s use of it in cross examining both Monts and West so prejudiced West that the prejudice could not be erased by the judge’s instructions to disregard. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. West made no pretrial confession or statement and steadfastly denied his implication in the burglary and shooting.

Olds claims that he is in the same position as West and that the reasoning of West should apply to him. We find no merit to this claim. Olds made a pretrial confession in which he implicated himself. His confession was apparently a pretty complete and truthful account of the whole sordid tragedy. Monts in his confession in exculpating himself and inculpating West did not implicate Olds any more than Olds implicated himself. He was not prejudiced by the introduction of Monts’ statement. Olds repudiated his confession at the trial and now claims that it was coerced. We will consider this claim later in this opinion.

In the same connection Olds claims that he was denied his constitutional right to a fair trial for the reason that the trial judge did not grant his motion for a severance for a separate trial from his co-defendants. This is a matter of discretion with the trial judge. As we have shown in the preceding paragraph Olds was not prejudiced by the introduction at the trial of Monts’ confession. There was no abuse of discretion on the part of the trial judge in the denial of this motion.

It is the law of Tennessee that granting a severance to one of several co-defendants is a matter of discretion with the trial judge. In the review of the second trial of Monts and West the Supreme Court held that there was no abuse of discretion on the part of the trial judge in refusing to grant a severance to Monts and West. 400 S.W.2d 722, 731. There would be less reason to grant a severance to Olds in view of his confession.

We find no merit to Olds’ claim that his confession was coerced. The district judge conducted a hearing and took the testimony of Olds and Inspector Swann of the Memphis Police Department who took the statement. Olds’ claim of coercion was based largely on his mental condition. He had family problems and about a month before it is claimed that he was taken from the Memphis-Arkansas bridge where he attempted suicide. He testified that he was denied the right to shave and not given coffee, etc. He was not able to sleep due to interruptions and being taken at various times for interrogation. He was not threatened and was given no promises. He was not physically mistreated and had no mental abuse of consequence. His case would rest on a totality of circumstances rather than any specific acts. The testimony of Inspector Swann would entirely negate any coercion.

At the trial Olds repudiated his confession but not for the reason that it was coerced but that it was voluntarily given for the purpose of claiming the reward that was offered for the arrest and conviction of the murderers of Police Officer Bruno. He now says for the first time that his confession was coerced. Thus he creates two issues of fact. Is he telling the truth now or did he tell the truth at the trial when he said he made his confession for the purpose of claiming the reward? Did he tell the truth at the trial when he said he confessed for the purpose of obtaining the reward or was the confession true? Obviously the jury chose to believe the truth of the confession.

The district judge found that the evidence did not support Olds’ claim that the confession was coerced. We agree. There is ample evidence to support the view that the confession was freely and voluntarily given for the truth of its subject matter.

The remaining claims of the appellant are that he was denied his constitutional right to a fair trial because the trial judge refused to instruct the jury on the law of circumstantial evidence and that he did not have the effective assistance of counsel for the reason that his lawyer did not perfect an appeal of his conviction. We will consider these two claims under the subject of denial of right to appeal.

Olds’ counsel withdrew his motion for a new trial at the time the motions of Monts and West were being heard and thus foreclosed Olds’ right to appeal. Counsel justified, to his client, the withdrawal of the motion for new trial on the ground that he felt that after thé other cases were finally settled he could get some relief on his behalf. Just what counsel had in mind is not clear but it is obvious that he could not get legal relief by way of direct appeal.

We surmise that counsel reasoned that he had better let well enough alone. Since the co-defendants received death sentences, a retrial of his client, should he succeed in getting one, might also result in the death penalty. At this time North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) had not been decided. In that case the court held that a retrial could not result in a more severe penalty than was given in the first trial. In Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) it was held that Pearce was not retroactive. On the same day the Supreme Court decided Chaffin v. Stynchcombe, Sheriff, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714, in which it held that Pearce was not applicable in cases where the jury fixes the penalty and the jury does not know of the prior penalty and the second sentence is not otherwise shown to be a product of vindictiveness. Counsel might well have been apprehensive of the more drastic penalty in a retrial. Whether or not he discussed this with his client, it can hardly be said that he was not effectively representing him.

Olds’ complaint that he was denied an appeal focuses on the reversal of Monts and West by the Supreme Court of Tennessee for the failure of the trial judge to instruct the jury on the law of circumstantial evidence. In Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 the Court held that under Section 40-2517 of the Tenn. code, a lawyer desiring further instructions must submit them to the court in writing. The Court held that this applied to circumstantial evidence where there was both direct and circumstantial evidence in the case. Circumstantial evidence was not regarded as a fundamental defense. Counsel for West and Monts had both submitted in writing requests for special instruction on circumstantial evidence. The Court held that the failure of the trial judge to give these instructions to the jury was reversible error.

It is interesting to note that it was not until on a second petition for rehearing that it was established that Monts’ counsel had made a written request for such a charge. It was not in the original record and in the opinion his appeal was denied for the failure to make such a request. In support of the second petition for rehearing the Clerk of the Criminal Court filed with the Clerk of the Supreme Court a certificate showing that such a request was made at the trial on behalf of Monts.

We do not find in the record that counsel for Olds made a written request for special instructions to be given to the jury on the law of circumstantial evidence. In this state of the record, under the applicable law of Tennessee, Olds’ case would not have been reversed as was Monts and West. There is no merit therefore to Olds’ complaint that he was denied the right of appeal.

The district judge held that there was a waiver of a right to appeal on the advice of retained counsel.

In exhausting his state remedies the Court of Criminal Appeals of Tennessee also held that the appeal was waived by retained counsel. The Court said,

“There is no merit to the claim of appeal deprivation in the context of this ease. The appeal was clearly waived. See State ex rel. Johnson v. Heer, 219 Tenn. 604, 412 S.W.2d 218.”

We conclude that either on the basis of waiver or the failure of Olds to show any prejudice his complaint that he was denied the right to appeal is without merit.

Judgment of the District Court affirmed.

      . It appears that West was tried a third time, found guilty, and sentenced to imprisonment for 99 years.


author: MATTHES, Chief Judge.

text:
    UNITED STATES of America, Appellant, v. Gary R. McDANIEL, Appellee.
    Nos. 73-1051 to 73-1053.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 18, 1973.
    Decided July 31, 1973.

      Harold O. Bullís, U. S. Atty., Fargo, N. D., for appellant.
    William R. Mills, Bismark, N. D., for appellee.
    Before MATTHES, Chief Judge, and LAY and STEPHENSON, Circuit Judges.
   MATTHES, Chief Judge.

We have for consideration the government’s appeals from judgments entered after an evidentiary hearing held on remand as directed by this court on defendant’s appeals from his convictions. See United States v. McDaniel, 449 F.2d 832 (8th Cir. 1971), cert. denied, 405 U. S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972). The judgments from which appeals are now taken vacated the earlier judgments of conviction, dismissed the indictments, ordered McDaniel discharged, and his bond exonerated. The factual circumstances warrant detailed explication.

Defendant Gary McDaniel was, prior to these proceedings, President of the First Western State Bank in Minot, North Dakota. That bank and McDaniel apparently were for some time engaged in irregular and illegal activities involving the bank assets. These irregularities were first discovered on or about May 12, 1969, by state bank examiners who were soon followed by examiners for the Federal Deposit Insurance Corporation. Consequently, state prosecutorial authorities began investigating the political machinations of the bank and its officers as possible violations of North Dakota’s Corrupt Practices Act, 3 N.D.C.C § 16-20-01 et seq.; and the United States Attorney for the District of North Dakota began investigating the personal maneuverings of the bank officers for the purpose of determining whether federal criminal statutes had been violated.

On September 23, 1969, defendant, who was then residing in the state of Minnesota, was subpoenaed to appear before a federal grand jury at Fargo, North Dakota, on October 7, 1969. He appeared, but claimed his privilege against self-incrimination, and gave no testimony. McDaniel went from the grand jury room to the United States Attorney’s office, where the local .sheriff immediately served upon him a subpoena to appear before a state grand jury at Minot, North Dakota, on October 15, 1969.

Prior to his appearance before the state grand jury, defendant sought, in exchange for his testimony, immunity from prosecution under 6 N.D.C.C. § 31-01-09 (Supp.1971), which was denied. Defendant’s attorney then discovered 3 N.D.C.C. § 16-20-10, which provides in pertinent part:

“No person shall be excused.from attending and testifying before any court upon any investigation . . . for a violation of section 16-20-08, upon the ground that the testimony or evidence, documentary or otherwise, required of him may tend to incriminate . him. No person shall be prosecuted nor subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence ....

McDaniel’s attorney realized that this statute automatically conferred transactional immunity upon any witness subpoenaed to testify in an investigation under the North Dakota Corrupt Practices Act, and accordingly he advised McDaniel to appear before the state grand jury and fully divulge all his illegal actions.

That the state prosecutors were unaware of this automatic immunity statute is evidenced by the fact that they subpoenaed all potential defendants, thereby immunizing every suspect except the bank itself, and by .the fact that they expressly granted immunity to one grand jury witness under the more recent statute, § 31-01-09.

In any event, McDaniel appeared at the state grand jury and gave self-incriminating testimony filling three volumes of transcript. On November 6, 1969, the United States Attorney requested a copy of McDaniel’s testimony from an Assistant State Attorney General, which he received the late afternoon of November 20. Since the United States Attorney too apparently was unaware that McDaniel’s testimony was protected by a statutory grant of immunity, he read the three volumes of transcript and then returned them the next morning.

Thereafter, on December 8, 1969, McDaniel was indicted by the state on fifteen counts of violating the Corrupt Practices Act, one count of embezzlement, and three counts of making false entries.

Federal indictments were returned on February 4 and July 31, 1970. The four counts of the initial federal indictment dealt with the purchase of the Ranger Bar, a cocktail lounge. Three of these counts charged that McDaniel had violated 18 U.S.C. § 656 in that he had embezzled and misapplied $56,637.20 to finance the transaction by issuing cashier’s checks from the bank in that amount without repaying the bank. The fourth count charged a violation of 18 U.S.C. § 1005, alleging that, to cover the issuance of the cashier’s checks, McDaniel had made a false entry in the bank records showing as an asset a nonexistent deposit with another bank.

The seven counts of the second federal indictment dealt with miscellaneous schemes. In four counts, McDaniel was charged with embezzling and misapplying $44,716.90 by issuing two checks without repaying the bank, converting a third check to his personal use, and issuing a fourth on a fundless account, all in violation of § 656, supra. The final three counts -alleged that McDaniel had further violated § 1005 by making three separate false entries of fictitious deposits by the bank to show assets to cover the sums embezzled.

McDaniel sought to have all state and federal -indictments quashed on the ground that the Fifth Amendment precluded his prosecution for transactions touched upon by his immunized state grand jury testimony. The state court, Judge Coyne, accepted the argument that § 16-20-10 conferred transactional immunity and quashed the state indictment; but the federal court, Judge Register, declined to quash the federal indictments. Consequently, McDaniel was tried in federal court in two trials, convicted on all eleven counts, and sentenced to five years imprisonment on one conviction and concurrent terms of three and two years on the others.

McDaniel then appealed to this court, and at oral argument on that appeal the United States Attorney conceded that he had read McDaniel’s state grand jury testimony on the evening of November 20, 1969. This court held that the United States Attorney’s reading of McDaniel’s state grand jury testimony “constitutes a prima facie ‘use’ ” of it, and therefore, if that testimony was given under a grant of immunity, and if it related to the subject matter of the federal prosecutions, McDaniel could not be prosecuted for those transactions. United States v. McDaniel, supra. Accordingly, the cause was remanded to the district court for an evidentiary hearing to determine whether McDaniel had testified under a grant of immunity, 449 F.2d at 840, and, if so, whether the testimony related to the subject matter of the federal prosecution. 449 F.2d at 841.

After conducting the mandated evi-dentiary hearing, Judge Benson answered both propounded questions affirmatively and therefore, in accordance with his conception of our opinion, vacated the convictions and quashed the indictments. 352 F.Supp. 585.

However, Judge Benson’s task at the evidentiary hearing was complicated by the intervening decision of the Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

This court’s prior opinion in McDaniel I, authored by Judge Gibson, had interpreted the pre-Kastigar decisions of the Supreme Court to establish a double standard with respect to the constitutionality of statutes which grant immunity to witnesses in order to compel testimony. First, this court determined that Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), applied full transactional immunity when the federal government was both the questioning sovereign and the prosecuting sovereign, thereby preventing federal prosecution for any crime relating to the subject matter of the compelled testimony. If, on the other hand, the questioning sovereign were the state, Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), governed, and the federal government was permitted to prosecute the witness for crimes related to his testimony, so long as there was no use of the compelled testimony or its fruits. Thus we ruled that, in inter jurisdictional cases, the Fifth Amendment required no more than use and derivative use immunity, even while single jurisdictions were bound by full transactional immunity.

By means of this analysis, it was determined that under ordinary circumstances McDaniel would only be entitled to use immunity, since his grand jury testimony had been compelled by the state, and the federal government was acting as prosecutor. However, because the United States Attorney had read the three-volume transcript of McDaniel’s testimony, our court felt forced to conclude that the federal government was in the same position as if it were the questioning sovereign, and that therefore transactional immunity applied. The only question then remaining was whether McDaniel had in fact testified before the state grand jury under a grant of immunity to matters related to the prosecution, and, as seen, that caused the remand.

In Kastigar, of course, the Supreme Court held that use and derivative use immunity is constitutionally sufficient to compel testimony over a claim of Fifth Amendment privilege even in cases in which the federal government is both questioner ¿nd prosecutor. Accordingly, at the evidentiary hearing in this case, the government sought to open a third issue by seeking to prove under the Kastigar guidelines that it had independent sources for the evidence it used to convict McDaniel. For this purpose, it offered into evidence F.B.I. reports based upon an investigation of McDaniel that had been received by the United States Attorney’s office prior to McDaniel’s testimony. But McDaniel’s counsel objected to this evidence on the ground that this court’s mandate did not allow the trial court to explore that issue. The district court sustained this objection, and excluded the reports from evidence, admitting them only as an offer of proof. Nevertheless, in his memorandum dismissing the indictments, the district judge observed that could he apply Kastigar his result would differ:

“On the basis of the government’s offer of proof in the McDaniel eviden-tiary hearing, this Court finds that the government had, prior to the grand jury testimony, all the evidence used in the McDaniel prosecution, and further finds that evidence was derived from legitimate sources wholly independent of the compelled testimony. This evidence consists of comprehensive investigative Federal Bureau of Investigation reports. See Government’s Offer of Proof, Exhibits 36-41 inclusive.”

It is with this extensive and complicated factual background that we consider the government’s three contentions on appeal: (1) that McDaniel’s testimony was not given under a grant of immunity; (2) that the testimony did not relate to the subject matter of the federal prosecution; and, alternatively, (3) that the United States did not “use” that testimony to convict McDaniel.

First the government contests Judge Benson’s conclusion of law that when McDaniel testified before the state grand jury pursuant to a subpoena, he was automatically granted immunity by § 16-20-10. The government’s position tacitly concedes that, ordinarily, the statute automatically confers immunity on any witness subpoenaed to testify upon an investigation of violations of § 16-20-08, but contends that since McDaniel seized this opportunity to gain absolution of his wrongs, he waived the immunity. The -essence of this argument is the contention that unless McDaniel first invoked the Fifth Amendment and then was told that § 16-20-10 granted him immunity, he was acting voluntarily and thus waived the statutory protection. But the Supreme Court has held precisely to the contrary in a case involving a federal statute worded similarly to § 16-20-10. See United States v. Monia, 317 U.S. 424, 430, 63 S.Ct. 409, 87 L.Ed. 376 (1943). Accord, State v. Hennessey, 195 Or. 355, 245 P.2d 875, 881 (1952) (en banc). Furthermore, it is not contended that McDaniel lost the privilege as to any portion of his testimony by volunteering nonresponsive confessions in an attempt to acquire immunity for crimes not under inquiry. Cf. United States v. Wilmington Chemical Corp., 254 F.Supp. 92 (N.D.Ill.1966). Accordingly, we find no error in Judge Benson’s conclusion that McDaniel’s testimony was covered by a grant of immunity.

The government’s second contention faults Judge Benson’s finding of fact that McDaniel’s testimony “related to” the federal prosecution. However, this inquiry, which was mandated by this court’s earlier remand, is, in light of Kastigar, no longer germane. Because we held transactional immunity to be required by the Fifth Amendment, it was necessary under our earlier opinion to inquire whether the indictment had to be quashed on grounds that the testimony “related to” the transaction giving rise to the prosecution. But under Kastigar, that no longer is a basis for quashing the indictment. The question under Kastigar is not whether the testimony relates to the charges, but whether the prosecution has “used” the testimony in prosecuting those charges. It is to that dispositive question that we turn.

In writing for the Court in Kastigar, Mr. Justice Powell equated the protection provided by the statute in question with the protection provided by the Fifth Amendment and held that the

“statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom .... This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an ‘investigatory lead,’ and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.”

406 U.S. at 460, 92 S.Ct. at 1664. In order to enforce this prohibition of use of immunized testimony, the Court reaffirmed the rule of Murphy:

“ ‘Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.’
This burden of proof ... is not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.
* -X- * 'X' * *x*
. One . . . need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate, independent sources.”

406 U.S. at 460, 92 S.Ct. at 1665 (citations omitted) (emphasis supplied).

Clearly, this test envisions, under ordinary circumstances, a pre-trial evidentiary hearing at which the government must discharge its “heavy burden” of proof; but both parties here contend such a hearing is unnecessary. The government says Judge Benson has already explored that contention and made a finding of fact that the government has carried its burden. Defendant contends that in the peculiar circumstances of this case it is impossible for the government to furnish the degree of proof Kastigar requires.

Judge Benson’s finding that the evidence produced on the government’s behalf at McDaniel’s trial was derived from a source independent of McDaniel’s state grand jury testimony was premised upon the court’s careful examination of the government’s offer of proof of the F.B.I. reports received by the United States Attorney prior to the commencement of the state grand jury proceedings.

We are free to consider the offer of proof as it is a part of the record before us, even though excluded from evidence by the trial judge. United States v. Agy, 374 F.2d 94, 95 (6th Cir. 1967); F. H. McGraw & Co. v. Milcor Steel Co., 149 F.2d 301 (2d Cir. 1945). See Rule 43(c), Fed.R.Civ.P.; 5 Moore’s Federal Practice § 43.11, p. 1383 (2d ed. 1971).

We find, however, that even though the voluminous reports, which we have examined, may have afforded proof of an independent source of the evidence adduced at McDaniel’s trial, such reports nevertheless fail to satisfy the government’s burden of proving that the United States Attorney, who admittedly read McDaniel’s grand jury testimony prior to the indictments, did not use it in some significant way short of introducing tainted evidence. See The Supreme Court, 1971 Term, 86 Harv.L. Rev. 181, 186 (1972); Note, Standards for Exclusion in Immunity Cases after Kastigar and Zicarelli, 82 Yale L.J. 171, 185, 186 (1972). Such use could conceivably include assistance in focusing the investigation, deciding to initiate prosecution, refusing to plea-bargain, interpreting evidence, planning cross-examination, and otherwise generally planning trial strategy.

Kastigar, after all, proscribed “any use, direct or indirect . . . . ” And, indeed, if the immunity protection is to be coextensive with the Fifth Amendment privilege, as it must to be constitutionally sufficient, then it must forbid all prosecutorial use of the testimony, not merely that which results in the presentation of evidence before the jury.

The three volumes of transcript in which McDaniel fully confessed his misdeeds were read in their entirety by the United States Attorney three and eight months, respectively, before the two federal indictments were handed down. Furthermore, they were read when the United States Attorney was unaware that the testimony came pursuant to a grant of immunity, and he therefore could have perceived no reason to segregate McDaniel’s testimony from his other sources of information. Under these circumstances, we are of the opinion that the government is confronted with an insurmountable task in discharging the heavy burden of proof imposed by Kastigar. In this regard, we note with interest that in United States v. Dornau, 359 F.Supp. 684 (S.D.N.Y.1973), District Judge Metzner recently arrived at a similar conclusion on strikingly similar facts, stating:

“[O]nce the subject matter was touched upon in the privileged testimony, and the prosecutor had read it, he could have used it in a variety of ways in this criminal prosecution, The possibility of such use, and the impossibility of clearly showing that the use did not occur calls for the holding in this case that the defendants were denied the constitutional protection that their silence would have given them.”

Because the trial court apparently failed to consider the immeasurable subjective effect of the prosecutor’s reading of McDaniel’s state grand jury testimony, we conclude that the court’s finding that the government had fulfilled the burden of proof required by Kastigar cannot stand.

In so concluding, we cast no reflection upon the integrity or motives of the United States Attorney. To the contrary, he has demonstrated by his appearances in our court and the records of the trials in the district court that he is a prosecutor who adheres to the high professional standards of the legal profession and to the duties and responsibilities of a United States Attorney. But even so, the United States Attorney is subject to human frailties. Thus, although he asserts that he did not use McDaniel’s testimony in any form, we cannot escape the conclusion that the testimony could not be wholly obliterated from the prosecutor’s mind in his preparation and trial of the case. We agree with Judge Metzner that “[i]t is difficult for the court to speculate as to the effect that the reading of the minutes might have had on the conduct and thinking processes of the [prosecutor].” United States v. Dornau, supra.

We also deem it appropriate to observe that this appeal and the troublesome question presented derive from unusual circumstances. By reason of the principles promulgated in Kastigar, the problem at hand is not likely to reoccur with any degree of frequency. Ordinarily, the question whether the prosecutor has made any use, direct or indirect, of the compelled testimony can and should be fully explored by an appropriate hearing before trial. Here, as we have seen, the question was not ventilated until after the trial. In sum, the unusual circumstances attending the controversy renders the government’s burden of proof in this case virtually undischargea-ble. Another remand for yet another evidentiary hearing would be a futile gesture. Accordingly, the judgments vacating the convictions and dismissing the indictments are affirmed.

       Hereinafter McDonald is referred to as “defendant” or by his surname.

      . Even if the question were whether the testimony related to the federal charges, we think that the following finding by Judge Benson would not be clearly erroneous:
      “After reading the entire grand jury transcript, it is this court’s finding that the testimony as to various bank practices cannot discernably be separated from material incriminating to McDaniel. All counts are in some way connected to the shortage of $214,900 [which McDaniel explained to the grand jury].
      Taken as a whole, the 472 pages of grand jury testimony implicate McDaniel in every aspect of the various schemes. The insignificance appears only when a line or page is viewed as a complete unit.”
      We note that in support of this conclusion the trial court meticulously set out in its memorandum opinion each count of the two federal indictments, coupled with a summary of that portion of McDaniel’s incriminating grand jury testimony which related to that count.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. James A. DeBARTOLO, Alias John Doe, Defendant, Appellant.
    No. 73-1056.
    United States Court of Appeals, First Circuit.
    Argued May 7, 1973.
    Decided July 11, 1973.

      Leroy V. Marcotte, Providence, R. I., with whom David J. Kehoe, Providence, R. I., was on brief, for appellant.
    Lincoln C. Almond, U. S. Atty., Providence, R. I., for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Appellant was convicted of aiding and abetting in the transfer of a firearm, to wit, a 16-gauge shotgun having a barrel of less than 18 inches in length, in violation of the National Firearms Act [the “Act”], as amended, 26 U.S.C. §§ 5861(e), 5845(a), and 5812(a). The Act makes it unlawful for any person to transfer a firearm except pursuant to authorization of the Secretary of the Treasury obtained after the transferor has filed a written application for transfer and registration. A “firearm” is defined in the Act as including shotguns with barrels less than 18 inches, rifles with barrels less than 16 inches, machine guns, various other described firearms capable of being concealed on the person, bombs, grenades and the like. § 5845.

While appellant also attacks the sufficiency of the evidence to support his conviction, the only substantial issue presented on this appeal is whether the district court erred in instructing the jury that, to convict, the Government need prove that the defendant had knowledge only “that the object involved in such transfer was a gun, and I use that word in the common sense meaning of the term. . . .” Appellant admitted that he participated in the sale of a shotgun, shown to have had a barrel less than 18 inches and to be unregistered, and that he knew it to be a shotgun at the time of the transfer; but he claimed ignorance of its physical characteristics.

The transfer occurred under circumstances which might well have led the jury, notwithstanding appellant’s denial, to believe that he was fully aware that the gun was a “sawed-off” shotgun. Appellant, who ran an automobile business, also dealt in guns, owned a skeet range, and tested and repaired guns and rifles. The Government presented evidence that one Mirabella, on May 3, 1972, asked appellant to get a sawed-off shotgun. Appellant told Mirabella to come back the next day, he would have it then. There was testimony that on May 4, 1972, appellant asked- an employee to keep a package for him as he did not want it hanging around the shop and would pick it up later. The employee took the package to a girl friend’s house. He there discovered that it contained a gun, which he put in a plastic garbage bag. Later that day, Mirabella returned to the appellant’s premises and paid $40 to appellant in return for which appellant instructed his employee to get the package. The employee drove to the girl friend’s house, got the plastic bag with the gun, and gave it to Mirabella. On May 5, Mirabel-la took the gun to appellant, showed it to him, and complained that it jammed. Appellant told Mirabella to bring it back and he would fix it.

Appellant testified to a somewhat different version. He said that a friend named Jan Lauson had run into his shop on May 3 or 4 carrying a box with an object covered by a cloth. She told appellant that her boy friend, whom he knew, had been arrested and that she wanted to leave it there. She said it was a shotgun. Appellant, not wanting the gun in the shop, told his employee to get it out of there. Just after he left, Mirabella appeared and asked to buy a shotgun. Appellant purportedly told Mirabella to go “down to the gun shop.” Mirabella reappeared the next day, at which time Jan Lauson suggested and appellant agreed that she sell her gun to Mirabella. Appellant suggested $40 as being what used shotguns were worth, Mirabella handed $40 to Lauson, and appellant instructed his employee to get the gun and give it to Mirabella. Appellant testified that he never saw the shotgun.

Appellant moved for judgment of acquittal at the close of the Government’s evidence, raising the question of the knowledge required as to the character of the weapon. The motion was denied, the court stating, in substance, that the Government need prove only that defendant knew the object to be a weapon, not a firearm within the meaning of the Act. A renewed motion was denied at the close of all evidence.

In its charge, the court advised that, to convict, the jury must find that defendant was an active participant in the unlawful and willful transfer of a firearm, the latter being defined as a shotgun having a barrel less than 18 inches in length. The only portion of the charge which appellant asserts to be erroneous is as follows:

“To convict the defendant of this accusation of aiding and abetting in the unlawful and willful transfer of a firearm, it is not sufficient merely to show that he knew that an unlawful and willful transfer of a firearm was or had taken place, but rather it must be shown beyond a reasonable doubt that the defendant was an active participant in the total scheme of said transfer. This in turn, Mr. Foreman, members of the jury, means that in order to convict the defendant of aiding and abetting in the unlawful and willful transfer of a firearm, it is necessary that the Government establish beyond a reasonable doubt that the defendant had knowledge that the object involved in such transfer was a gun, and I use that word in the common sense meaning of the term, and of course I further instruct you you must find beyond a reasonable doubt that this weapon was capable of being fired.” (Emphasis supplied.)

Following the charge, defense counsel objected, and the following colloquy took place:

Mr. Marcotte: You said that the Government must show the defendant knew the object was a gun.
The Court: You want me to tell them he knew it was a firearm?
Mr. Marcotte: That’s what Freed says, Your Honor.
The Court: Well, we are getting back into that argument which I read to you.
Mr. Marcotte: There was language
The Court: No, I read to you the other case that interprets Freed and I read the Sipes case.
Mr. Almond: Nothing as far as the Government is concerned.
Mr. Kehoe [another defense counsel] : We are now talking about intent. We’re talking about a firearm. The fact is if someone gives me a box and I don’t know what’s in it, that’s what the case says, Freed says a firearm.
The Court: Well, you have your exception on the record. .

While in light of other parts of the charge, which we do not repeat, it is possible to infer that the jury understood “gun” to mean “firearm”, we think appellant’s counsel by his timely objection pinpointed the issue. As, however, appellant admitted knowing not merely that the object was a “gun” but a shotgun, the precise question is whether there may be a conviction if defendant knew the transferred object to be not only a “gun ... in the common sense meaning of the term” capable of being fired, but a shotgun, although not necessarily one with a barrel of less than 18 inches. We find no error.

In United States v. Freed, supra, n. 2, the court held that an indictment for conspiracy to possess “destructive devices”, i. e., hand grenades, in violation of the National Firearms Act, was not defective for absence of an allegation of specific intent, or knowledge that the grenades were unregistered. The court treated an offense under the Act as falling within the list of exceptions, “especially in the expanding regulatory area involving public health, safety and welfare,” to the general requirement of proof of mens rea or “vicious will.” Id. 401 U.S. at 607-610, 91 S.Ct. at 1117. It distinguished cases such as Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), involving statutory embezzlement “where scienter was historically required”, and extremes such as Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), in which a municipal code made it a crime for a convicted felon to remain in Los Angeles for more than five days without registering. As to Lambert, the court said, 401 U.S. at 608, 91 S.Ct. at 1118,

“The mere failure to register, we held, was quite ‘unlike the commission of acts, or the failure to act under circumstances that should alert the doer to the consequences of his deed’.”

The Freed court likened the offense under the National Firearms Act to that in United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943), approving a penalty imposed upon a corporate officer who was personally without 'consciousness of wrongdoing but whose firm shipped adulterated and mis-branded drugs in violation of the Food and Drug Act.

“This is a regulatory measure in the interest of public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act. They are highly dangerous offensive weapons, no less dangerous than the narcotics involved in United States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed. 604, where a defendant was convicted of sale of narcotics against his claim that he did not know the drugs were covered by a federal act.” Freed, supra, 401 U.S. at 609, 91 S.Ct. at 1118.

The Freed court went on to cite language in Balint, supra, 258 U.S. at 254-255, 42 S.Ct. 301.

“ ‘It is very evident from a reading of [the act] that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic. Its manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him. . . .’” 401 U.S. at 609-610, 91 S.Ct. at 1118.

Appellant seeks to distinguish Freed because of its language that by lower court decisions “the only knowledge required to be proved was knowledge that the instrument possessed was a firearm.” Id. at 607, 91 S.Ct. at 1117, citing Sipes, supra, n. 3. See also Mr. Justice Brennan’s concurring opinion, Id. at 614, 91 S.Ct. at 1120, citing Sipes, and United States v. Decker, 292 F.2d 89 (6th Cir. 1961), cert. denied, 368 U.S. 834, 82 S.Ct. 58, 7 L.Ed.2d 36 (1961). Undoubtedly Freed presupposes proof of knowl edge that one is dealing with an instrumentality from which the likelihood of regulation under the Act can readily be inferred. Were the defendant to claim that he thought the transferred object was a fishing rod, he would be entitled to acquittal if the jury found that that was all he knew. Thus in United States v. International Minerals Corp., 402 U.S. 558, at 564-565, 91 S.Ct. 1697 at 1701, 29 L.Ed.2d 178 (1971), the court said,

“In Balint the Court was dealing with drugs, in Freed'with hand grenades, in this case with sulfuric acid and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require . . . ‘rAens rea’ as to each ingredient of the offense. But where, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation.”

The last quoted sentence is the crux of the matter. The Government need not prove that a defendant knows he is dealing with a drug or a weapon possessing every last characteristic which subjects it to regulation. It is enough to prove he knows that he is dealing with a dangerous device of such type as would alert one to the likelihood of regulation. If he has such knowledge, and if the particular item is in fact regulated, he acts at his peril. A shotgun in today’s society plainly falls within this category. One knowingly participating in the sale of such a lethal instrumentality cannot escape liability by failing to inspect the length of its barrel any more than by failing to inquire into whether it is registered. In Freed, it is true, the court assumed that the Government would have to prove that the defendant knew the grenade was a grenade, hence a “firearm”. Because all grenades are classified as “firearms”, the issue never arose whether knowing possession of a grenade would give rise to a duty to inspect to see if it was the kind of grenade regulated. But we see no difference in rationale between the duty of one possessing a grenade to ascertain if it is registered, and of one, knowingly transferring a shotgun, to ascertain if by reason of its barrel length it must be registered. See Warren v. United States, 447 F.2d 259, 263 (9th Cir. 1971); United States v. Gardner, 448 F.2d 617, 619 (7th Cir. 1971); United States v. Gross, 451 F.2d 1355, 1360 (7th Cir. 1971). We hold that one who participates voluntarily and knowingly in the transfer of a shotgun may, if the gun is a “firearm”, be found guilty of a violation of § 5861(e) regardless whether he is shown to have actually known that its barrel was under 18 inches. There was no error.

Appellant also challenges the denial of his motion for a judgment of acquittal. But the evidence amply supports a finding that appellant aided and abetted an illegal transfer of what was, in fact, a “firearm”, and that he knew, at very least, that the weapon was a shotgun.

Affirmed.

      . 26 U.S.C. § 5812:
      “Transfers
      (a) Application. — A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary or his delegate a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the application form prescribed by the Secretary or his delegate; (2) any tax payable on the transfer is paid as evidenced by the proper stamp affixed to tho original application form; (3) the transferee is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph ; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; and (6) the application form shows that the Secretary or his delegate has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of the law.”

      . United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

      . In Sipes the Court said (Blackmun, J.): “He knew it was a gun. Ilis possession therefore was a knowing possession. This is all the scienter which the statute requires. It is not necessary that . there also be knowledge . . . that it was made in violation of § 5821.” Sipes v. United States, 321 F.2d 174, 179 (8th Cir. 1963), cert. denied, 375 U.S. 913, 84 S.Ct. 208, 11 L.Ed.2d 150 (1963).

      . We need not consider whether a mistaken belief that an object is, say, an antique flintlock (thus perhaps a “gun”) would be a defense.