author: JAMESON, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Samuel J. ANNERINO et al., Defendants-Appellants.
    Nos. 73-1201-73-1203.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 25, 1974.
    Decided April 12, 1974.

      John C. Ambrose and Philip J. Schmidt, Jerome Feldman, Chicago, Ill., for defendants-appellants.
    James R. Thompson, U. S. Atty., Frederick H. Branding, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
    Before KILEY, Senior Circuit Judge, SPRECHER, Circuit Judge, and JAME-SON, Senior District Judge.

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Appellants were convicted in a non jury trial of conspiracy to use extortionate means, as defined in 18 U.S.C. § 891 (7), to collect and attempt to collect an extension of credit from Ernest White and to punish White for nonre-payment, in violation of 18 U.S.C. § 894.

Statement of Facts

. The evidence, in the light most favorable to the Government, may be summarized as follows:

White had shared an office with appellant Metrick. When White left he owed Metrick approximately $3,500. Between September, 1970 and June, 1971 White made two payments by check on this debt.

On June 19, 1971 appellant Bean, with Jeff Metrick, who was indicted but acquitted, visited White. Jeff Metrick told White that they had taken over his debt to Jeff’s brother Brian and were there to collect $7,000. When White disputed the amount, Bean said that there “wasn’t going to be any further monkeying around on this, that they were going to collect the money”; that if White didn’t come up with the money, he could be “severely hurt” and that since they knew where his children lived, he should take that into consideration.

White called Brian Metrick and asked if the visit was a joke. He was told that Metrick had assigned his debt as collateral for a loan and that it “was completely out of his hands”, and because he was dealing with “very dangerous people”, who “meant what they said”, he should do everything possible to pay off the loan. White then contacted the F.B.I. and subsequent conversations were surveilled.

White met with the three appellants at a restaurant on June 25, 1971 when, after some discussion, Annerino said “Let’s cut out the bullshit and get down to the business why we are here”. An-nerino told White to bring the $2,250, which White admitted owing, the following Monday, when they would determine the exact amount of the balance owing and the manner of payment. Annerino stated that they knew where White’s wife lived and where his daughters attended school; that White should forget any ideas about going to the authorities because Annerino would be “out on bond damn quick” and they were backed by a large organization with “five or six guys that could take his place”. Bean stated that if White were going into the hospital, “it was going to be because they put him there” and that if he had any thought of running and hiding he better do it pretty fast. Annerino said it wouldn’t do White or his family any good if he did flee.

A few days later White met with Bean and Brian Metrick. Bead arrived first and when he found White did not have the money, stated that Annerino was “uncontrollable and had a very bad temper” and if he were present and found White did not have the money, he would have “pulled a gun and shot [White’s] guts out right under the table”. After Metrick arrived there was some discussion regarding another meeting and the payment of $4,000 in addition to the $2,250, and Bean said if White didn’t make the payments they were going to “dig [him] a big hole”.

In monitored telephone conversations Metrick told White, inter alia, that “Sam [Annerino] and Harold [Bean] are just enforcers. They report to somebody else”; that “these fellas have killed people, to be perfectly honest with you”; that if White did not show up with the money, “they’ll kill you”. Bean asked White if he wanted to “end up in a coffin”.

Contentions on Appeal

All appellants contend that the indictment should have been dismissed because it was based upon the hearsay testimony of one F.B.I. agent. Annerino argues that (1) the district court erred in not dismissing his case for the denial of a speedy trial; (2) a statement made by him was admitted in violation of Miranda-, (3) the trial court erred in admitting hearsay statements of his co-conspirators; and (4) the evidence was insufficient to sustain the conviction. Bean and Metrick contend that the Government failed to present required proof that they were members of organized crime and their activities involved an extortionate extension of credit. All appellants argue that the Government failed to prove that White’s debt involved an extension of credit, as defined in 18 U.S.C. § 891(1).

Indictment

The grand jury heard the testimony of one F.B.I. agent who related conversations he had with White and conversations White had with appellants and related to the agent. In addition the jury heard tapes of conversations between White and appellants, with the F.B.I. agent, who had monitored and recorded the tapes, stating the names of the speakers.

Indictments based upon hearsay of this nature are not improper. As this court said in United States v. Aloisio, 440 F.2d 705, 707 (1971), cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed. 2d 51 (1971):

“In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, the Supreme Court categorically refused to invalidate an indictment based upon hearsay evidence under either the Fifth Amendment or its supervisory powers over federal courts. This Court has repeatedly rejected similar attacks upon the quality of evidence relied upon by grand juries.”

It is true, as appellants argue and this court has recognized, that the Second Circuit has criticized the practice of relying on investigative reports and similar hearsay before a grand jury. In United States v. Estepa, 471 F.2d 1132 (2 Cir. 1972), upon which appellants heavily rely, judgments of conviction were reversed with instructions to dismiss the indictment, where the jury may have been misled into thinking it was getting eyewitness testimony whereas it was actually being given an account whose hearsay nature was concealed. There is no evidence here to suggest that the grand jurors may have been misled into thinking the agent was testifying from personal knowledge. Nor is there merit in appellant’s argument that if White had testified the jurors could have questioned him and concluded that an indictment should not be returned.

Speedy Trial

The indictment was returned on July 20, 1971, and the trial commenced on November 3, 1972. Annerino contends that this 15-month delay violated his Sixth Amendment right to a speedy trial.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) the Court, recognizing that the right to a speedy trial “is necessarily relative”, 407 U.S. at 522, 92 S.Ct. 2182, identified four factors to be considered in determining whether a particular defendant has been deprived of his right: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192.

The Government concedes that a 15-month delay in this type of case gives rise “to a certain presumed amount of prejudice”. The delay in itself, however, does not constitute a denial of the right to a speedy trial. As the court noted in Barker, there is “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months”, 407 U.S. at 523, 92 S.Ct. at 2188, and we have previously held that even longer delays in cases of a similar nature are not per se deprivations of the right to a speedy trial. See, for example, United States v. DeTienne, 468 F.2d 151, 156-157 (7 Cir. 1972), cert. denied, 410 U.S. 911, 93 S.Ct. 974, 35 L.Ed.2d 274 (1973) (19-month delay).

The Government correctly points out that the reason for the 15-month delay is attributable to an “amalgam of factors”. On October 8, 1971 counsel for Annerino made his first appearance in connection with a Government request for a protective order with respect to surveillance tapes. The court noted that “we are nowhere near ready for trial” and set a motion schedule pursuant to local court rules.

At a status'hearing on November 10, 1971 counsel for Annerino’s co-defendants were granted an additional 14 days to file motions. Without objection the case was continued until January 27, 1972. At another status hearing on that date counsel for co-defendant Bean was granted an additional ten days to file a motion to suppress. On March 28 the trial was set for June 20. On June 20 the court was informed that counsel for Bean was engaged in a trial and that counsel for the Metricks had suffered a heart attack and would “not be available for trial until the fall”. Counsel for Annerino was granted ten days to file a memorandum in support of a renewed motion to dismiss for lack of a speedy trial.

At a further hearing on July 21, 1972 the court suggested that “If Mr.

Annerino wants a speedy trial, he can go to trial next Monday, separated from the other defendants”. The Government indicated that some of its witnesses would not be available, and the court set the trial for September 21. The Government was ready for .trial on that date, but the court was informed that counsel for Bean was commencing a trial before another judge and counsel for the Met-ricks would not be recuperated from his heart attack until mid-October. The court continued the case to November 1, noting that he did not think the “circumstances of this delay” sufficiently prejudicial to Annerino to “justify separating him out for a separate trial”.

In discussing the reason for the delay the Court stated in Barker, supra at 531, 92 S.Ct. at 2192:

“Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witnesss, should serve to justify appropriate delay.”

The delay in this case does not evince a deliberate attempt by the Government to hamper the defense. It resulted from a variety of circumstances, including the Government’s desire for a single trial. Although this desire “hardly warrants unquestioning acceptance when pitted against a single defendant’s right to a speedy trial, on the scale of possible justifications for the delay this reason deserves some deference” where, as here, the charge is conspiracy. DeTienne, supra at 157.

The third factor to be considered in assessing a speedy trial issue is the defendant’s assertion of his right. Although Annerino first raised this issue in a motion to dismiss on April 17, 1972, the Court in Barker, supra at 525, 92 S.Ct. at 2189, rejected the notion that “a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded a trial”. Annerino renewed his motion to dismiss on Jun.e 20. Although dilatory in filing a brief in support of the renewed motion, see Note 3, supra, the district court accepted the brief. Thereafter Annerino protested the continuances granted on July 21 and September 21, and demanded an immediate trial. At the September 21 hearing the district court stated, that “the case can’t be postponed forever * * * because we have one defendant in the case who on every occasion has been insisting on an immediate: trial.” It is clear from the record that Annerino appropriately asserted his right to a speedy trial.

The fourth factor to be considered is prejudice to the defendant, with respect to which the Court has indicated that the right to a speedy trial was intended: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.” Barker, supra at 532, 92 S. Ct. at 2193.

Annerino contends that during the. trial there were several memory lapses crucial to the defense. We have examined the trial transcript and conclude that the memory lapses to which Annerino refers were of a minor nature and were in no way significant to the outcome. See Barker, supra at 534, 92 S.Ct. 2182. The eonclusory allegations of general anxiety and depression, travel retrictions and an inability to secure employment constitute a showing of only minimal prejudice of a kind normally attending criminal indictment. This prejudice, “unenhanced by tangible impairment of the defense function and unsupported by a better showing on the other factors than was made here, does not alone make out a deprivation of the right to speedy trial”. DeTienne, supra, at 158.

Although Annerino appropriately asserted his speedy trial right, the length of the delay was not extraordinary, he was free on bond before trial, prejudice was minimal, and the delay was not a deliberate attempt by the Government to gain a tactical advantage over Annerino or to harass him. We conclude that under these circumstances Annerino’s right to a speedy trial was not violated.

Admission of Evidence

Annerino claims error in the admission of testimony by an F.B.,1. agent with respect to statements made by Annerino following his arrest, arguing that the Government failed to show that he had been advised of his rights and waived them, as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The F.B.I. agent testified, however, without contradiction, that immediately upon his arrest Annerino was fully advised of his Mircmda rights and thereafter freely answered the agent’s questions.

Annerino also challenges the admission of surveillance tapes containing hearsay statements by his co-conspirators. However, “extra-judicial statements * * * of co-conspirators occurring during a conspiracy in furtherance of it have long been held to be competent evidence against their partners in crime under the ancient co-conspirators exception to the hearsay rule.” United States v. Cerone, 452 F.2d 274, 282 (7 Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972); see also Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970).

Sufficiency of Evidence

We find no merit in Annerino’s contention that there was no proof of his involvement in a conspiracy or that he threatened White. The evidence set forth supra established Annerino’s participation in the conspiracy as well as actual threats against White and his family.

Bean and Metrick argue that the Government failed to offer required proof that they were members of organized crime and that the debt owed by White involved an extortionate extension of credit.

Appellants were convicted of violating a provision of Title II of the Consumer Credit Protection Act of 1968 (Pub.L. 90-321), 82 Stat. 159, 18 U.S.C. § 894(a):

“Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means
“(1) to collect or attempt to collect any extension of credit, or
“(2) to punish any person for the nonrepayment thereof, shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.”

It is true, as Bean and Metrick contend, that Title II was primarily intended to attack the economic basis of organized crime. They argue that a conviction under Title II may not be sustained absent proof that the defendants are members of organized crime.

Section 894(a) is not limited, however, to members of organized crime, but broadly applies to “whoever” uses extortionate means to collect an extension of credit. Likewise, its companion provision, 18 U.S.C. § 892(a), applies to “[wjhoever makes any extortionate extension of credit”. Although Congress was primarily concerned with organized crime, it is clear that a means chosen to attack it was the proscription of a class of activities, that is, extortionate credit transactions. *It is not necessary that the participants in the transaction be members of organized crime or that the particular activity has affected interstate commerce.

The Supreme Court affirmed the validity of the approach employed in Title II with respect to an intrastate extortionate credit transaction in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). While Perez was concerned with “loan sharking” activities, the Court held that “Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce”, and that the prohibition of extortionate credit transactions was within the realm of Congressional power under the Commerce Clause. 402 U.S. at 154, 91 S.Ct. at 1361.

In United States v. Keresty, 465 F.2d 36 (3 Cir. 1972), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972), it was held that Title II could validly be applied to a local gambling debt which could not be tied directly to organized crime. The court concluded, as we do, that the holding in Perez was not limited to loan shark transactions and that Congress haul a rational basis in attacking the economic base of organized crime through the proscription of extortionate credit transactions. The court concluded:

“It is sufficient that Congress has defined a limited class of credit transactions, i. e., those involving extortionate means of extension and collection, as having a substantial effect on interstate commerce. That this particular transaction cannot be directly tied to organized crime, does not affect the validity of the congressional approach employed here. So long as the goal is within the power of Congress, we will not substitute our judgment for the judgment of Congress as to the wisdom of this particular statutory scheme.” 465 F.2d at 42-43.

Bean and Metrick next contend that a § 894 violation requires proof that the underlying debt was a “juice loan”, that is, an extortionate extension of credit. As noted supra, § 892 proscribes the making of extortionate ex-tensions of credit while, on the other hand, § 894 forbids extortionate collection of “any extension of credit”. It is thus clear that § 894 “is directed to the use of extortionate means in order to collect monies which the creditors maintain are 'owing to them, regardless of whether the loan arose from a traditional type of loan or resulted from the assumption of responsibility as a result of force o.r threats”. United States v. Briola, 465 F.2d 1018, 1021 (10 Cir. 1972), cert. denied, 409 U.S. 1108, 93 S. Ct. 908, 34 L.Ed.2d 688 (1973).

Finally, all appellants contend that the Government failed to establish an extension of credit. The term “to extend credit”, as broadly defined in 18 U.S.C. § 891(1), “means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or sátisifaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred”.

There was substantial evidence that White was indebted to Brian Metrick and that there existed an agreement whereby repayment would be deferred. At the restaurant on June 25 Annerino told White to bring $2,250, which White admitted owing, the following Monday, when they would determine the exact amount of the balance owing and the method of payment. The fact that White’s indebtedness arose through his unauthorized use of Metrick’s credit cards and misappropriation of partnership funds is irrelevant, since § 891(1) applies to “any debt * * * , valid or invalid, and however arising”.

The evidence was sufficient to sustain the conviction of each appellant.

Affirmed.

“Not everyone who falls into the clutches of a loan shark is necessarily aware at the outset of the nature of the transaction into which he has entered. Moreover, cases will arise where the use of extortionate means of collection can be demonstrated even though it cannot be shown that a bilateral understanding that such would be the case existed at the outset. Section 894(a) covers these situations by making it a criminal offense to collect an indebtedness by extortionate means, regardless of how the indebtedness arose.” Conference Report No. 1397, 90th Cong., 2d Sess. (1968).

      . § 891(7) defines an “extortionate means” as “any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person.”

      . The court noted that it had in many opinions affirmed convictions “despite the Government’s needless reliance on hearsay before the grand jury”, in the absence of evidence that the jury had been deceived or misled or that the case involved “a high probability that with eyewitness rather than hearsay testimony the grand jury would not have indicted”. 471 F.2d at 1137.

      . It appeared at this hearing that counsel for Annerino had failed to file his memorandum in support of the motion to dismiss within the ten day period granted on June 20. The. late memorandum was presented at the hearing by Annerino’s counsel and the court, noting that it had denied the motion to dismiss by an order entered July 20, accepted the memorandum stating “X will consider your briefs and vacate the order if they convince me that I should.”

      . See Conference Report No. 1397, 90th Cong., 2d Sess. (1968).

      . See Note under 18 U.S.C. § 891. Section 201 of Pub.L. 90-321 provided that:
      “(a) The Congress makes the following findings:
      “(1) Organized crime is interstate and international in character. Its activities involve many billions of dollars each year. It is directly responsible for murders, willful injuries to person and property, corruption of officials, and terrorization of countless citizens. A substantial part of the income of organized crime is generated by extortionate credit transactions.
      “(2) Extortionate credit transactions are characterized by the use, or the express or implicit threat of the use, of violence or other criminal means to cause harm to person, reputation, or property as a means of enforcing repayment. Among the factors which have rendered past efforts at prosecution almost wholly ineffective has been the existence of exclusionary rules of evidence stricter than necessary for the protection of constitutional rights.
      “(3) Extortionate credit transactions are carried on to a substantial extent in interstate and foreign commerce and through the means and instrumentalities of such commerce. Even where extortionate credit transactions are purely intrastate in character, they nevertheless directly affect interstate and foreign, commerce.
      “(4) Extortionate credit transactions directly impair the effectiveness and frustrate the purpose of the laws enacted by the Congress on the subject of bankruptcies.”

      . The Court said further:
      “Where the class of activities is regulated and that class is within the reach of federal power, the courts have no power ‘to exercise, as trivial, individual instances’ of the class.” Id.

        . As defined in 18 U.S.C. § 891(6) an extortionate extension of credit is “any extension of credit with respect to which it is the understanding of the creditor and the debtor at the time it is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation, or property of any person.”

      . The Congressional intent with respect to § 894(a) is stated as follows :


source: Caselaw Access Project

author: SEITZ, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America v. Ralph E. CADES et al. Appeal of William N. BLOOM.
    No. 73-1730.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 14, 1974.
    Decided April 16, 1974.

      Jacob Kossman, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Richard M. Meltzer and Carmen C. Nasuti, Asst. U. S. Attys., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and KALODNER and ALDISERT, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Appellant, William Bloom, contests the district court judgment, entered after a jury verdict, finding him guilty of conspiring with and aiding and abetting one Ralph Cades in violation of 18 U.S. C. § 656 (1970), willful misapplication of federally-insured bank funds by a bank officer, director, agent or employee. Bloom was president of Scooper-Dooper, Inc. which maintained checking accounts at City Bank of Philadelphia (“City Bank”) and Pennsylvania Bank of New Jersey (“Pennsauken Bank”). This case grew out of Bloom’s operation of a “check-kiting” scheme involving alternating deposits of worthless checks drawn on Scooper-Dooper’s account at one bank to cover equally worthless checks on its account at the other. Cades, as president and chairman of the board of City Bank, approved payment of Scooper-Dooper’s City Bank checks.

When this case went to trial, Bloom was one of four co-defendants. During trial, the district judge granted motions, not contested by the Government, dismissing the charges against two defendants for lack of evidence. At the same time, the court approved an agreement between Cades and the Government severing him from the trial and providing that at the completion of the trial Cades enter pleas of nolo contendere to three counts of violating § 656. The Government agreed to a dismissal with prejudice of the remaining counts against Cades, including a conspiracy count. The trial continued with Bloom the sole defendant. He was convicted and contends here, inter alia, that the evidence against him was not sufficient to sustain his conviction.

I. REQUISITES OF AIDING AND ABETTING

In order to convict a defendant of aiding and abetting the commission of a crime, it is first essential that the Government demonstrate that the substantive crime has been committed. United States v. Tornabene, 222 F.2d 875, 878 (3d Cir. 1955). We shall assume that the Government presented sufficient evidence to warrant conviction of Cades under the statute defining the

principal offense, 18 U.S.C. § 656 (1970).

To convict Bloom of aiding and abetting, the Government must further show that he facilitated Cades’ violation of § 656 and that Bloom intended to facilitate that violation. See United States v. Docherty, 468 F.2d 989, 992-993 (2d Cir. 1972).

In order to aid and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his actions to make it succeed.” L. Hand, J., in United States v. Peoni, 100 F.2d 401, 402.

Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949); accord, United States v. Barber, 429 F.2d 1394, 1397 (3d Cir. 1970).

Bloom’s check-kiting actions clearly facilitated Cades’ misapplication of bank funds through approval of worthless Seooper-Dooper checks. Bloom contends, however, that he did not intend to aid Cades’ violation of § 656. Were § 656 violated by a bank officer’s misapplication of bank funds, without more, it would be considerably easier for us to dispose of Bloom’s contention. However, Section 656 also requires that the bank officer intend to defraud the bank. Bloom argues that there is no evidence showing that he was aware of Cades’ intent to defraud City Bank, much less that Bloom intended to aid Cades’ commission of a crime. Certainly, Bloom intended to defraud City Bank by his own actions. That intent might, assuming other elements of the crime are proven, suffice to convict Bloom of a substantive crime such as “mail fraud.” The Government has chosen instead to charge him with aiding and abetting Cades’ violation of § 656 and consequently must prove Bloom’s desire not to defraud City Bank but to help Cades do so.

II. SUFFICIENCY OF EVIDENCE OF INTENT TO AID AND ABET

We assume in analyzing the sufficiency of the evidence that the government may meet its burden by showing (1) Cades’ intent to defraud City Bank, (2) Bloom’s awareness of it, and (3) subsequent actions by Bloom facilitating such fraud; from this evidence, we presume that the jury could reasonably infer Bloom’s intent to aid and abet Cades’ violation of § 656. After carefully searching the record, we are unable to find such evidence. The evidence introduced is, in summary form, as follows.

The Seooper-Dooper account in City Bank had a history of overdrafts. In September, 1969, shortly after Cades took over as president of City Bank, Cades required Bloom to personally guarantee the renewal of an existing loan to Seooper-Dooper of $97,000 and extended an additional loan of $50,000. Cades required that a balance of $50,000 be maintained in the account, and Bloom promised to use an expected capital investment in Seooper-Dooper to pay off the loans and to invest in additional City Bank Certificates of Deposit.

At the time of the additional loan Cades apparently ordered bank employees to give special attention to the Scooper-Dooper account. The account thereafter was subject to personal monitoring by City Bank employees rather than automatic processing by bank computers. Nevertheless, in the next several months Bloom repeatedly drew checks on Scooper-Dooper’s City Bank account when there were insufficient funds, actually collected, in that account to provide for full payment.

Cades was regularly advised by his employees of the overdrafts and directed them to contact Scooper-Dooper about covering them. Scooper-Dooper cpvered its overdrafts by depositing in City Bank checks drawn on its account in Pennsauken Bank, an account which was apparently never blessed with sufficient funds to cover outstanding checks. The immediate effect of the deposit, however, was to increase the “ledger balance” of Scooper-Dooper’s City Bank account above the amount of the outstanding checks. Then, although Cades knew the Scooper-Dooper checks drawn on the Pennsauken Bank had not cleared that bank, he directed the checks drawn against City Bank to be honored.

From this evidence, the Government would find reasonable inference of Bloom’s intent to aid Cades defraud City Bank through purposeful mishandling of its funds. On review of a conviction, the Government is entitled to the benefit of all inferences that reasonably may be drawn from the evidence. See United States v. De Cavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971). Clearly there is no direct evidence of Bloom’s intent to aid and abet Cades. Nor is there direct evidence of all the elements that must be shown to allow inference of the requisite intent. Assuming that the evidence shows Cades’ purpose to defraud City Bank and Bloom’s actions facilitating such fraud, we nonetheless find no evidence that Bloom was aware of Cades’ fraudulent purpose.

Because such awareness is usually difficult to prove directly, courts have allowed inference of such awareness to be drawn from other circumstances, and in turn have allowed this inference to serve as a basis for finding the necessary intent to aid and abet. Evidence of “collaboration” or “association” between the principal and his aides may be used to infer the aider’s awareness of the principal’s intent. See Logsdon v. United States, 253 F.2d 12, 14-15 (6th Cir. 1958); United States v. Moses, 220 F.2d 166, 169 (3d Cir. 1955). There is no evidence of Bloom’s collaboration or association with Cades in a criminal scheme. The record does reveal that Bloom visited Cades on a few occasions, but the only subject the record shows they discussed was Bloom’s increased loans from the bank. That alone cannot show collaboration.

Reaching to a third level of inference, we find insufficient evidence from which a jury could infer collaboration between Bloom and Cades. Evidence that courts have found indicates collaboration, such as profit by the bank officer from the check-kiting scheme or attempts by the bank officer to conceal his actions, is conspicuously absent here. See Benchwick v. United States, 297 F. 2d 330, 332-333 (9th Cir. 1961). There is absolutely no evidence of any benefit to Cades from Bloom’s check-kiting scheme, by direct payment from Bloom or otherwise. Indeed, Cades and others in his family were large stockholders in City Bank; they held no interest, so far as the record reveals, in any competing bank or in Scooper-Dooper, Inc. Thus, Cades had no financial motive to cooperate with Bloom in defrauding City Bank.

The record is similarly devoid of evidence that Cades made any attempt to conceal what he was doing with respect to the Scooper-Dooper account. Rather than hiding these transactions from City Bank employees, Cades openly authorized the appropriate employees to proceed as they did with respect to the Scooper-Dooper account. Neither Cades nor any of his subordinates manipulated bank statements or made false entries

in the bank records to cover the questioned transactions.

Prom all the evidence shows, Bloom could well have believed that he was being very successful in practicing an artful subterfuge on City Bank. He could have believed that Cades was nothing more than a hoodwinked conduit making possible the operation of his scheme; Bloom might have thought that Cades was acting in what he perceived to be the bank’s best interest, intending only to extend Scooper-Dooper credit by honoring checks that were not immediately good. The record does not support an inference, even three times removed from the evidence, that Bloom intended to aid and abet Cades’ violation of § 656. We conclude that the Government failed to, prove its ease beyond a reasonable doubt; Bloom’s conviction on the aiding and abetting counts must be reversed.

III. CONSPIRACY TO VIOLATE § 656

Although the elements that must be proved to convict Bloom for conspiracy differ from those necessary to convict him for aiding and abetting, the deficiencies of the record that preclude conviction of aiding and abetting also prevent his conviction as a conspirator. To convict Bloom of conspiring with Cades, the Government must establish the existence of an agreement between them to defraud City Bank. See United States v. De Cavalcante, supra 440 F.2d at 1272. We realize that conspiratorial agreements generally are proved by circumstantial evidence; we have reviewed above the evidence that is relied upon by the Government. That evidence no more establishes criminal agreement between Bloom and Cades for conspiracy purposes, even by inference, than it does collaboration between them relevant to aiding and abetting.

The judgment of the district court will be reversed.

      . The relevant portion of 18 U.S.C. § 656 (1970) provides:
      Whoever, being an officer, director, agent or employee of ... any . . . insured bank . . . willfully misapplies any of the moneys, funds or credits of such bank . . . shall be fined mot more than $5000 or imprisoned not more than five years, or both ....
      Aiding and abetting is made an offense by 18 U.S.C. § 2(a) (1970). Conspiracy is made an offense by 18 U.S.C. § 371 (1970).

      . Bloom contests this assumption. In view of our disposition of the case on other grounds, however, we find it unnecessary to decide this question.

      . Courts have uniformly held that although the 1948 revision of 18 U.S.C. § 656 omitted the previously specified requirement of an intent “to injure or defraud” the bank, 12 U. S.C. §§ 592, 597 (1945), this intent remains a critical element of the offense. See, e. g., United States v. Docherty, 468 F.2d 989, 994-995 (2d Cir. 1972).

      . Check-kiting, per se, does not appear to be a federal offense. But proof of a cheek-kiting scheme when coupled with proof of the statutory requirement of a mailing, has been held to state a violation of the mail fraud statute, 18 U.S.C. § 1341 (1970). United States v. Fromen, 265 F.2d 702, 703 (2d Cir. 1959); Stevens v. United States, 227 F.2d 5, 8 (8th Cir. 1958). In the instant case, Bloom was not charged with mail fraud.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Nicholas D’ANDREA, Appellant.
    No. 73-1890.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 26, 1974.
    Decided April 24, 1974.

      Louis Lipsehitz, Lipschitz & Danella, Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. Atty., Victor Schwartz, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before HUNTER and WEIS, Circuit Judges, and MILLER, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This is the appeal of a conviction for various criminal violations of the federal income tax laws. While appellant alleges numerous grounds for reversing the district court’s verdict, the only claims that require discussion are: 1) that the district court erred in refusing to declare a mistrial because of prejudice that resulted from the publication, during trial, of a news article dealing with appellant’s indictment for another offense; and 2) that the district court used improper procedures in dealing with appellant’s claim that his telephonic communications were subjected to illegal surveillance by the government and that it or its fruit was used against him. We have concluded that these two claims, and the others raised by appellant, are not meritorious and affirm the judgment of the district court.

I

Appellant’s claim of improper publicity rests on the publication of an article in the Philadelphia Daily News after the conclusion of all evidence in the case but prior to its submission to the jury. The article reported appellant’s indictment (in a different jurisdiction) on an assault charge and recited the circumstances of that alleged offense. It also referred to appellant as a “gang figure” (in the headline), and as a “reputed underworld figure” (in the body of the article). One juror and one alternate juror indicated, upon questioning by the district judge, that they had read the article. Appellant claims that these circumstances required the declaration of a mistrial. We cannot agree.

The crucial question in cases such as this is the degree of prejudice created by the improper publicity, since a new trial is required only when substantial prejudice has occurred. It is our opinion that under the circumstances involved in this case the requisite prejudice did not occur. To begin with, the arrest giving rise to th,e indictment reported in the article and the facts that gave rise to it had already been presented to the jury. As a result, the possible prejudice was restricted to the characterizations of appellant that appeared in the article.

In addition, while these statements did have prejudicial potential, it was clearly less serious than the prejudice that occurred in United States ex rel. Doggett v. Yeager, 472 F.2d 229 (3d Cir. 1973). In that case, several newspaper articles reported the defendant’s likely involvement in an escape attempt just prior to trial; an act which strongly implied consciousness of guilt on the part of the defendant with regard to the very offense for which he was being tried. Further, one article (that was read by several of the jurors) referred to defendant’s withdrawal of an earlier guilty plea with regard to the offense being tried. In this case, no such directly incriminating information was contained in the article.

Moreover, the article involved here appeared at a time when its prejudicial impact was likely to be minimal. It was not published until the 35th day of trial, and by that time the jury had already heard all the evidence, including extensive testimony by the appellant himself. As a result the jurors were thoroughly familiar with the defendant and the case, and were less likely to be influenced by the brief characterization of the defendant that appeared in the Daily News article.

Finally, we note that the juror and alternate juror who read the article were instructed by the district court to disregard the article in their deliberations and each assured the court that it would not affect his ability to render a fair and impartial judgment. In view of all these circumstances, we do not believe that the publicity that occurred requires us to order a new trial.

II

The second contention of appellant that warrants some discussion involves the claim that his telephone conversations were subjected to illegal electronic surveillance by the United States government and that this surveillance or its fruit was used against him in this proceeding. When such a claim is made the government is required to “affirm or deny the occurrence of the alleged unlawful act.” 18 U.S.C. § 3504(a)(1) (Supp.1973), and in this case the government did deny that it engaged in electronic surveillance. However, appellant claims that the denial was insufficient, and that therefore a hearing on this issue should have been held.

This claim is not meritorious. In a letter dated June 21, 1973, Fred B. Ugast, Acting Assistant Attorney General, indicated that a check had been made of the appropriate agencies and that appellant had not been subjected to electronic surveillance by the government. Under the law of the circuit, this denial is sufficient and eliminates the necessity for a hearing.

Since appellant’s allegation of illegal electronic surveillance was not supported by any facts and was thus totally conclusory in nature, this case is controlled by In re Horn, 458 F.2d 468 (3d Cir. 1968). In that case, as in this one, appellant urged the necessity for a hearing when the government relied solely upon a denial of electronic surveillance. This court held, “that since petitioners had not presented ‘any evidence demonstrating that these representations by the Government [were] false,’ a hearing was not warranted.” Id, at 471 (citations omitted). Since appellant in this case has presented no evidence at all with regard to the alleged surveillance, a fortiori it has not presented evidence that demonstrates that the government’s representation is false. As a result, Horn is controlling precedent and no hearing is required.

Appellant also contends that the court acted improperly when it permitted the government to make an ex parte, in camera presentation with regard to the claim of illegal electronic surveillance. Once again, his contention lacks merit.

As Alderman v. United States, 394 U. S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) makes clear, there are some situations in which an adversary proceeding is required in order to protect a defendant’s fourteenth amendment rights. In that case, the Court barred the district court from reviewing illegally obtained material in camera in order to judge its “arguable relevance” to the case presented by the government. Its conclusion was based on the belief that the complexity of the task made the safeguard of an adversary proceeding necessary.

In other situations, however, where similar complexity is not presented in camera proceedings are permissible. Taglianetti v. United States, 394 U.S. 316, 89 S.Ct. 1099, 22 L.Ed.2d 302 (1969); Giordano v. United States, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969) (Stewart, J. concurring). This case clearly falls into this latter category. The in camera proceeding here did not deal with the question of whether existing illegal taps tainted the proceedings. Instead, it dealt with the prior question of whether the alleged illegal surveillance had occurred at all. This is the same question that was the subject of an in camera hearing in Taglianetti, and in that case the Court held that the issues presented were not complex enough to require the safeguards of an adversary proceeding as a matter of law. 394 U.S. at 317-318, 89 S.Ct. 1099. We feel that the same conclusion is warranted here.

The judgment of the district court will be affirmed.

      . The charges upon which the conviction was based involved the evasion of income taxes for the years 1966 and 1967; the filing of a false and fraudulent tax return for 1967; the filing of a perjured tax return for 1967; and aiding another in the preparation and filing of a false and fraudulent tax return for 1966.

      . These other claims are:
      1) that the district court erred by allowing evidence of transactions in years other than 1966 and 1967;
      2) that the district court erred in permitting the cross-examination of character witnesses a) relating to the endorsement of checks by appellant, and b) regarding the claim that appellant had assaulted and threatened an individual and stolen his property ;
      3) that the district court erred in permitting evidence about the procedures involved in the institution of the prosecution ;
      4) that the district court erred in not granting a new trial because of misconduct of the prosecutor;
      5) that the district court committed error in disclosing that defense counsel objected to the court’s jury charge.

      . Though as indicated infra, page 6, they each assured the district court that this would not affect their ability to render a fair and impartial judgment.

      . Appellant also contends that the prosecution arranged for the publication of this article. However, since no evidence was offered to support this claim, it must be rejected.

      . In some cases, the publicity that occurs is so fundamentally prejudicial that actual prejudice is presumed as a matter of law. In these cases, the mere occurrence of the event requires declaration of a mistrial. See, e. g., Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (two key prosecution witnesses acting a.s attendants for the jurors throughout the trial); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (motion picture of defendant “confessing” to the sheriff shown on local television).
      Where the improper publicity is of a less serious nature however, no similar presumption operates. In these cases, t'he appellate court (like the district court) must review the circumstances surrounding the exposure of the jury to the publicity and order a new trial only when substantial prejudice has occurred. See United States ex rel. Doggett v. Yeager, 472 F.2d 229, 239 (3d Cir. 1973); Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). A comparison of the facts of t’his case to the facts of Turner, Rideara, and the eases which follow their approach make it clear that this case falls in this latter category; that is, substantial prejudice must be.- shown.

      . While appellant’s brief claims that the earlier admission of this evidence was itself improper, this claim is without merit.

      . In contrast, the first article to appear in Doggett was published two days after the trial began.

      . We note that the district court’s examination of the juror and alternate juror on the effect of the article took place in open court, despite the indication in United States ex rel. Doggett v. Yeager, supra, that it is better to conduct such an examination out of the presence of the other jurors. 472 F.2d at 234-235. While we adhere to the view expressed in Doggett as a general rule, we do feel that cases will arise where en banc examination is preferable and should be permitted.
      This is such a case. The district court apparently refrained from an extensive individual interrogation because it felt that that process would only emphasize the incident and that ultimately it was likely to do more harm than good. This decision was proper for two reasons. First, since the likelihood of serious prejudice from the article itself was not great, the decision not to emphasize it was reasonably calculated to minimize the overall possibility of prejudice. Second, the defense itself never sought individual interrogation of the jurors. Instead it seemed to agree with the court that the use of that process presented a greater danger of prejudice. Appendix to Briefs at 92a; Opinion of district court, Appendix at 125-26a. Under these circumstances, we cannot say that the manner in which the examination of the jurors took place was error.

      . This contention was made by a motion that was .filed on the 32nd day of trial and reads, in pertinent part, as follows :
      “Upon information and belief, the defendant represents that the United States of America, through its' agents and employees, caused certain telephonic communications of defendant to be intercepted in violation of the defendant’s rights under the Constitution and laws of the United States.”

      . The agencies contacted were the Federal Bureau of Investigation, the United States Secret Service, the Bureau of Alcohol, Tobacco and Firearms, the Inspection Service of United States Postal Service, the Bureau of Narcotics and Dangerous Drugs, the Bureau of Customs and the Internal Revenue Service.

      . Affidavits were also filed by the prosecutor and the various investigators (seven in all) who had been involved in the case. They each denied the use of electronic surveillance or its fruit in investigating and prosecuting the case.

      . Appellant also suggests that the denial is insufficient because it was not presented by affidavit. To support this view, he cites to In re Korman v. United States, 486 F.2d 926 (7th Cir. 1973). While that decision does adopt an affidavit requirement as the rule for that Circuit, it does so within the context of a case in which the allegations of illegal wiretapping were supported by facts which plausibly established the suspicion of illegal conduct. While a more formal denial may have value in that situation (and may indeed be preferable in all cases) we refuse to require it in cases such as this, where the appellant has come forward with no more than a bald accusation of illegality.

      . A transcript was made of this proceeding’ but it was impounded by the district court.

      . As the Court in that case stated,
      “An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller of the individual on the other end of a telephone, or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case.”


author: GIBBONS, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Angel RUIZ, Appellant in No. 73-1319. GOVERNMENT OF the VIRGIN ISLANDS v. Carlos CORCINO, Appellant in No. 73-1318.
    Nos. 73-1318, 73-1319.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 4, 1973.
    Decided March 5, 1974.
    Robert A. Ellison, Christiansted, St. Croix, V. I., for appellant in no. 73-1318.
    David V. O’Brien, Merwin, Alexander & O’Brien, Christiansted, St. Croix, V. I., for appellant in no. 73-1319.
    Julio A. Brady, U. S. Atty., Ishmael A. Meyers and John Wilbur, Asst. U. S. Attys., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and MARIS and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Appellants Ruiz and Corcino appeal from a judgment of sentence imposed by the District Court of the Virgin Islands. Ruiz and Corcino are two of four defendants named in an information charging murder, 14 V.I.C. § 922(a)(2) and robbery 14 V.I.C. § 1861 of one Lawrence Angus. The other two defendants named are Rafael San Kitts and Angel Ventura. Prior to the trial Ventura apparently became a fugitive. San Kitts pleaded guilty to the robbery count and testified for the government at the trial of Ruiz and Corcino. He implicated both in the robbery and murder. The government also introduced the sworn written statement of Ruiz, from which references to his co-defendants were deleted. Ruiz’ statement is substantially consistent with San Kitts’ testimony. Both Ruiz and Corcino took the stand and denied participation. Ruiz repudiated his statement and Cor-cino offered alibi testimony. The jury found both guilty on both counts and each was sentenced to life imprisonment for murder and fifteen years for robbery.

On this appeal Corcino contends:

(1) that his trial should have been severed from that of Ruiz because he was prejudiced by the admission of Ruiz’ statement. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
(2) that the trial court improperly limited the scope of cross-examination of San Kitts.

Both defendants contend:

(3) that they were prejudiced by the government’s failure to make full disclosure of exculpatory materials pursuant to Rule 16, Fed. R.Crim.P. and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
(4) that the trial court erred in refusing to admit into evidence a toxicological report on the blood and urine of the victim.

We will consider these contentions seri-atim.

1. THE SEVERANCE MOTION

Each defendant relying on Bruton v. United States, supra, moved before trial for a severance on the ground that the confession of one or more of the co-defendants would tend to incriminate him. At that stage the trial court, weighing the competing considerations favoring joinder under Rule 8 over severance under Rule 14, Fed.R.Crim.P., tentatively denied the motions for severance on condition that any statements, before they are admitted, be edited so that they refer only to the activity of the confessor and do not mention the activities of any co-defendant, and so that the contents be admitted by testimony and with the writing itself excluded. See United States v. Rickey, 457 F.2d 1027, 1030 (3d Cir.), cert. denied, 409 U.S. 863, 93 S.Ct. 153, 34 L.Ed.2d 110 (1972); United States v. Lipowitz, 407 F.2d 597, 602 (3d Cir.), cert. denied, 395 U.S. 946, 89 S.Ct. 2026, 23 L.Ed.2d 466 (1969). The trial court also withheld final decision on Corcino’s motion for severance to be sure that in light of the evidence received at the trial there would be no tacit reference to him. At the trial the government produced a court reporter who on May 19, 1972 took a sworn deposition from Ruiz, the transcript of which had been edited in accordance with the court’s pre-trial ruling. Corcino’s counsel renewed his Bruton objection. (Tr. at 93). However, the court ruled that having reviewed the statement for conformity with the pretrial ruling, he would permit it to be read as edited with the understanding that he would entertain specific objections during the course of the reading. (Tr. at 94). The questions and answers were then read to the jury. They implicate Ruiz and other unnamed assailants in the robbery-murder. There is nothing in the statement as read identifying Corcino as one of the perpetrators. Thereafter San Kitts testified. He identified the perpetrators, besides himself, as Ruiz, Corcino and Ventura. He was extensively cross-examined both by Ruiz’ and by Corcino’s attorneys. After the government rested, Ruiz took the stand. He categorically denied participation and repudiated the May 19, 1972 statement, claiming it was the result of suggestion and coercion by the police. Ruiz was cross-examined by the prosecutor about the fact that in his May 19, 1972 statement he had implicated San Kitts and Corcino. (Tr. at 236). Corei-no’s attorney at this point made a motion for a mistrial. The court ruled:

“It is on the basis of Bruton that I deny the motion for a mistrial and also at this time, since Ruiz has taken the stand, deny your motion for a severance. You will recall I had reserved it. I reserved it only until such time as I would know whether Ruiz would take the stand. Now that he has taken the stand I finalize my decision that there won’t be a severance and I deny any mistrial because you have a right to have confrontation.” (Tr. at 241).

Thereafter the prosecutor’s cross-examination of Ruiz with respect to the May 19, 1972 statement continued until Ruiz’ attorney stated that he had no objection to the whole transcript being admitted. Corcino’s attorney stated:

“Defendant Corcino has no objection to its introduction, Your Honor.” (Tr. at 246).

It was admitted as exhibit G-6. Corcino’s attorney did not cross-examine Ruiz. He had the opportunity to do so. On this record we see no Bruton violation. See Wade v. Yeager, 415 F.2d 570 (3d Cir.), cert. denied, 396 U.S. 974, 90 S.Ct. 466, 24 L.Ed.2d 443 (1969). The severance motion was properly denied.

2. THE SCOPE OF CROSS-EXAMINATION OF SAN KITTS

San Kitts’ direct testimony implicating Ruiz and Corcino appears in eleven pages of the transcript. He was cross-examined for thirty pages by Ruiz’ attorney about discrepancies between his testimony and the several statements he had made to the police, and about his possible motives for testifying favorably for the government. He was then cross-examined by Corcino’s attorney for eight pages about discrepancies between his testimony and his prior statements and about his memory and his motives for testifying. On redirect the prosecutor, referring to a statement that had been used in cross-examination, developed that some of the discrepancies had resulted from threats by a defendant, asked certain clarifying questions, and concluded :

“Q. Assuming that there are some differences in the statements that you made, is it true or not that Angel Ruiz and Carlos Corcino were with you when Mr. Lawrence Angus was murdered and robbed ?
A. Yes, sir.” (Tr. at 172).

At that point, without objection from Corcino, the four statements given by San Kitts, about which he had already been extensively cross-examined, were received in evidence. (Tr. at 174). On recross, Ruiz’ attorney asked:

“Q. Will you tell the jury, the Court, the defendants, the United States Attorney and myself, please, Mr. San Kitts, where you lied in all of these statements?
[The Prosecutor]: Objection, Your Honor.
THE COURT: I will sustain the objection. We cannot go through all those statements again.” (Tr. at 175).
******
[Ruiz’ Attorney]: “I presume your Honor will give me the opportunity, then, to discuss with him the threats that he alleges were made against him, which was brought out on redirect.
THE COURT: Yes, you may.” (Tr. at 176).

Five pages of cross-examination on that subject follow. Corcino contends that the limitation of Ruiz’ cross-examination reflected in the quoted ruling prejudiced him. His attorney made no recross-examination, no offer of proof, and no protest with respect to the ruling. Aside from these obstacles to consideration of the ruling on his behalf, the ruling was, on the record as it stood at that point, a sound exercise of the court’s discretion in controlling the scope of cross-examination on credibility issues.

3. DISCLOSURE OF EXCULPATORY MATERIALS

The defendants contend that the government’s compliance with an apparently informal arrangement for production of materials pursuant to Rule 16, Fed.R.Crim.P. and Brady v. Maryland was grudging, tardy, and prejudicial. Turning to the specifics:

A. A knife obtained from San Kitts and the victim’s shirt were sent by the Virgin Islands police to the F.B.I. laboratory. The F.B.I. report, suggesting that the knife could not be related to the holes in the shirt (the victim died of multiple stab wounds), was produced at the trial and was received in evidence. The court made no findings as to the cause of the late disclosure. None was required since no prejudice occurred.

B. The knife referred to in the report was not produced prior to trial. It was produced at trial, introduced into evidence, and used extensively in the cross-examination of the medical expert who testified as to cause of death. It was referred to in San Kitts’ statement, which had been produced at pre-trial. Assuming tardy production, there was no prejudice.

C. The victim’s shirt was not produced apparently because the prosecutor never got it back from the F.B.I. But the discrepancies between the size of San Kitts’ knife, the wounds, and the cuts in the shirt as described in the F. B.I. report, were extensively explored. Again there was no prejudice.

D. A toxicological report as to the blood and urine of the victim were produced at the trial and fully examined by the defense attorneys. As will be seen hereafter, its exclusion was not prejudicial. No prejudice appears from its late production since it was in any event properly excluded.

E. Statements of San Kitts inconsistent with his testimony were produced at the trial. The defendants used them extensively in his cross-examination. They contend the statements should have been disclosed sooner. This contention is unsound. 18 U.S.C. § 3500(b). But assuming there was some obligation to make disclosure sooner, the extensive use made of the statements and their actual receipt in evidence negates any possibility of prejudice.

F. A tape recording of a statement by Corcino was disclosed at the pre-trial hearing. The prosecutor told the defense attorneys it was unusable. They neither listened to it nor interviewed the person in whose presence it was made. After Corcino testified, that person testified in rebuttal as to his recollection of Corcino’s testimony. There was no concealment, no possible surprise, and no prejudice.

G. One pretrial statement of Ruiz was not disclosed until after he took the stand. Withholding this statement was in clear violation of Rule 16(a)(1) since by informal agreement all Rule 16 materials were to be produced. The prosecutor’s reason for withholding the statement was that he believed it was taken without appropriate Miranda warnings, and that it would not be admissible. That reason is insufficient, since under Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the statement could be used for impeachment purposes if the defendant took the stand. Thus the defendant’s attorney was entitled to be informed of it pursuant to his Rule 16(a)(1) motion. Its late production had the potential for creating a trap for a possibly forgetful defendant. We disapprove of the practice of withholding any statement by the defendant, admissible or not, when a Rule 16(a)(1) motion has been made. In this case, however, the trial court appreciated the problem presented by the late production and ruled that the undisclosed statement could not be used for impeachment purposes pursuant to Harris v. New York, supra. This ruling precluded any prejudice.

As to each of the items about which the defendants complain of late production, on this record there was no possible prejudice. But we take the occasion to suggest that a more meticulous attention to the government’s obligations under Rule 16 and Brady v. Maryland, supra, is highly desirable. We have no reason to believe that the tardy disclosures in this case were the result of any deliberate policy of concealment. An affirmative policy of prompt compliance would, however, avoid the risk of needlessly causing a mistrial or a reversal.

4. ADMISSIBILITY OF THE TOXICOLOGICAL REPORT

The government’s first witness, Burgos, established that the victim Angus was drinking in a bar from 10:00 p. m. until at least 3:00 a. m. and was “Well, a little high.” (Tr. at 32). Angus was murdered some time between 3:00 a. m. and 6:25 a. m., and on May 3, 1972, the police discovered his body near his car beside the road. Dr. Glenn, a pathologist who performed the autopsy, found thirteen stab wounds and multiple contusions or bruises, abrasions or scratches and lacerations of the face and scalp, abrasions of the left elbow, abrasions of the right lower leg, and a total depressive skull fracture. He testified that the major injuries were stab wounds which penetrated the heart and the aorta. His pathological report was admitted in evidence at the defendants’ request, and was used in examining Glenn in an attempt to show that San Kitts’ knife could not have caused the wounds. This attempt was not particularly successful. Ruiz’ attorney, referring to the pathological report said to the court:

“There is another item here and that is that in the state that Mr. Angus was that he was able to drive the car to the location at which he was murdered. The doctor conveniently left out additional diagnosis, which is in here, which is alcoholic intoxication, including samples. And the samples are incredible, 0.15 alcohol in his blood, 0.2 alcohol by weight in his urine.” (Tr. at 74).

The significance of this statement is that San Kitts testified, and Ruiz’ statement admitted that the defendants had followed Angus’ car, pulled ahead of it, and forced him to stop at the spot where he was killed. Arguably, if he was too intoxicated to drive, San Kitts and Ruiz were lying.

Attached to the pathologist’s report was a toxicological report on the victim’s blood and urine, prepared from samples sent to Puerto Rico by Dr. Glenn. The government did not object to the admissibility of the pathologist’s report, but did object to the toxicological report because the person who prepared it was not present. The court sustained this objection. Dr. Glenn was then cross-examined as follows:

“Q. Dr. in you report the list is pathological diagnosis, is that correct?
A. Yes.
Q. In that you have indicated on direct examination certain of the things that occurred that you diagnosed as causes of death, is that correct?
A. Yes.
Q. Would you read one of those which you did not read? What is the last item listed under pathological diagnoses ?
A. I have acute alcoholic intoxication with a question mark after it.
Q. Will you describe what it is, Doctor ?

A. Well, the reason I put that in, what we call our gross examination, is because during the autopsy the tissue of the body had a heavy alcoholic aroma. You can’t go by your notes to make a diagnosis of acute alcoholism or chronic alcoholism but you suspect. So I put that in there to indicate my suspicion of chronic alcoholism and a question mark after it to indicate it would be verified by a toxicological examination.” (Tr. at 78-79). Since Dr. Glenn had not performed the toxicological tests he could not say of his own knowledge what was the alcoholic level in the decedent’s blood. A day later, after Dr. Glenn had been excused both attorneys made an offer of proof with respect to the toxicological report.

“The admission of this report is crucial to the defense because in particular the toxicological report indicates certain matters in the blood, rather, correction, the urine of the deceased which raise a number of questions about his whereabouts from the last time he was seen alive from the time he was killed.” (Tr. at 252).

The government objected that it would be deprived of the opportunity to examine the doctor who prepared the toxicological report. The court sustained the objection. (Tr. at 255). No request was made for a continuance so that a witness might be produced who could authenticate the contents of the report.

The defendants contend that the report was admissible pursuant to 28 U.S. C. § 1732. We need not address that question, for even if we were to hold that the report was admissible without the presence of the toxicologist who made the tests we would and do find that their exclusion was not in the circumstances of this case prejudicial. The evidence already had the victim afloat in a sea of alcoholic beverages. At most, the report is cumulative. There is no claim that it would have suggested a cause of death other than stab wounds. If the alcoholic state of the deceased suggests that these wounds were inflicted at a different place and by different persons than San Kitts testified and Ruiz admitted, a remote suggestion at best, that alcoholic state was sufficiently established by Dr. Glenn’s testimony.

CONCLUSION

We find no error warranting a new trial for either defendant. The judgment of the district court will be affirmed.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    Harry BERNSTEIN, Petitioner, v. Honorable Anthony J. TRAVIA, United States District Judge, Eastern District of New York, Respondent. UNITED STATES of America, v. Harry BERNSTEIN et al., Defendants.
    No. 1078, Docket 74-1456.
    United States Court of Appeals, Second Circuit.
    Argued April 15, 1974.
    Decided April 15, 1974.

      Abraham H. Brodsky, New York City, for petitioner.
    Anthony T. Aeeetta, Asst. U. S. Atty. (Edward John Boyd, V, Acting U. S. Atty., D. N. Y., of counsel), for respondent.
    Before KAUFMAN, Chief Judge, CLARK, Associate Justice, and SMITH, Circuit Judge.

       United States Supreme Court, retired, sitting by designation.

   IRVING R. KAUFMAN, Chief Judge:

Harry Bernstein petitions this Court for a writ of mandamus directing Judge Travia to grant Bernstein, a defendant in a pending criminal action, a severance and a mistrial or, in the alternative, a continuance until he is physically capable of proceeding with his trial. Bernstein and his wife, Rose, are among nine defendants charged in a 65-count indictment with making false statements to the Federal Housing Administration on mortgage insurance applications, and with bribery in connection with those applications. Trial commenced on October 1, 1973, before Judge Travia and a jury, and the Government did not complete its case until March 21, 1974, almost six months later.

On March 27, 1974, Bernstein’s counsel, Abraham Brodsky, informed Judge Travia that at 5:00 a. m. that morning Bernstein had suffered chest pains, lasting approximately one hour, and that he was then hospitalized. Although Bernstein had suffered a serious coronary thrombosis in December 1966, all objective testing after the chest pains on March 27 revealed no additional heart damage.

On April 2, at Brodsky’s request, Judge Travia telephoned Bernstein’s cardiologist, Dr. Charles Poindexter, and spoke to him at length about Bernstein’s condition. The following day, Dr. Poin-dexter confirmed the absence of any incremental damage to the heart in a letter to the judge in which he also stated that Bernstein had experienced symptoms of angina pectoris. Dr. Poindexter concluded his letter with the following prognosis:

for [Bernstein] to continue the present trial where he is a defendant and who would probably be exposed to examination and cross-examination . [would not be] safe, or wise

In addition to Dr. Poindexter’s letter, Judge Travia received a copy of a letter, dated April 3, from Dr. Simon Dack addressed to George Bashian, an Assistant United States Attorney. Dr. Dack, appointed by the court at the instance of the Government, had examined Bernstein on April 3 and concluded:

From a medical point of view, the procedure would be to keep the patient in the hospital for a few more days and if his condition remains stable, he should be observed at home for at least two more weeks. Ordinarily he would not be allowed to resume normal physical activities or exposure to any stress for at least a month. In view of the patient’s history of previous myocardial infarction and a recurrence of unstable angina, I believe that this individual would always be at risk if he were subjected to continued emotional strain that would be required during a court trial. This would be particularly true if he would have to take the witness stand, (emphasis added)

On April 4, the district court heard argument from Bernstein’s counsel for a severance or, in the alternative, a continuance of undetermined duration. The Government, of course, opposed the motion. At that argument Judge Travia inquired of Brodsky if he intended to call Bernstein to testify, to which Brod-sky responded that he did not. Judge Travia then ruled that the trial would continue and that Bernstein was to be present on April 9. Thereafter, the trial was adjourned until April 15 for unrelated reasons.

One week later, on April 11, another round of arguments on Bernstein’s motion was scheduled by the district court, prompted by a second letter from Dr. Poindexter. In this letter, dated April 10, Dr. Poindexter stated his concern over Bernstein’s presence at trial in these terms:

I still feel that the anxiety and nervous tension created by being in the courtroom and hazarding the outcome of the jury’s verdict, even though Mr. Bernstein is not subjected to direct and cross-examination, is very likely to be dangerous and to precipitate another attack of coronary thrombosis, which in turn, may be fatal, (emphasis in original)

After lengthy discussion with counsel, Judge Travia declined to modify his previous denial of Bernstein’s motion. During the course of argument, he expressed no fewer than six reasons for this decision: (1) all tests taken following the angina attack proved to be basically negative, (2) some risk of a second coronary would always plague Bernstein, (3) medical assistance could be provided in the courtroom, (4) Bernstein would not be called to testify, (5) the Government’s lengthy case had been completed, (6) Bernstein would suffer a great deal of anxiety, in any event, so long as his wife remained on trial. Bernstein’s motion for an evidentiary hearing on his medical condition was also denied by Judge Travia.

Whether a defendant’s physical condition is so poor as to require a continuance or severance is not only a difficult determination for a judge to make, but it is one which carries with it the tremendous responsibility of weighing the invariably unpredictable factor of a defendant’s health against the Government’s, indeed the public’s, legitimate interest in a fair and speedy disposition. Troublesome though it may be, however, that decision, as we have repeatedly held, see e. g. United States v. Bernstein, 417 F.2d 641, 643 (2d Cir. 1969) ; United States v. Knohl, 379 F.2d 427 (2d Cir.), cert, denied, 389 U.S. 973, 88 S. Ct. 472, 19 L.Ed.2d 465 (1967) is one reserved to the sound discretion of the district judge. In this instance, the various factors cited by Judge Travia in the course of the April 11 argument amply demonstrate that his decision was not an abuse of discretion. Nor, in our view, would a hearing, at which medical testimony would be adduced, serve any purpose here since there seems to be no dispute over the basic medical facts; only the conclusion to be drawn therefrom is contested. Accordingly, and with the fervent hope that this already overly protracted trial will soon be completed, we deny the petition for mandamus.

      . Following a 19-day adjournment, Bernstein’s trial was set to resume on the morning of April 15, the date we beard argument in this mandamus proceeding. So that there would be no further delay in this jury case, which has been in progress for more than six months, we announced our decision denying Bernstein’s petition in open court. We are of the view, however, that the reasons for our action should be set forth more fully.

      . We note that Brodsky does not claim, in his papers in support of this petition, that his decision not to call Bernstein to testify in his own behalf was in any way influenced by Bernstein’s physical condition.

      . And see United States v. Schaffer, 433 F.2d 928, 930 (5th Cir. 1970).


author: KALODNER, Circuit Judge.

text:
    AMERICAN CYANAMID COMPANY, a Corporation of the State of Maine, v. HAMMOND LEAD PRODUCTS, INC. a corporation of the State of Indiana, and Gary R. Mitchener, Appellants.
    No. 73-1506.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 26, 1973.
    Decided April 15, 1974.
    Donald Horowitz, Cummins, Cummins, Dunn, Horowitz & Pashman, Hacken-sack, N. J., for appellant Hammond Lead Products, Inc.
    David R. Simon, Simon & Allen, Newark, N. J., for appellant Gary R. Mitche-ner.
    Stephen M. Greenberg, Robinson, Wayne & Greenberg, Newark, N. J., for appellee.
    Before KALODNER, ADAMS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

KALODNER, Circuit Judge.

Can a Maine corporation, with principal headquarters in New Jersey, bring a diversity action in New Jersey against an Indiana corporation and an Indiana resident ?

The district court answered the question in the affirmative in its Order denying the defendants’ motions to dismiss for lack of venue under 28 U.S.C.A. § 1391(a) and certifying the issue to this Court pursuant to 28 U.S.C.A. § 1292(b).

American Cyanamid Company (Cy-anamid), a Maine corporation whose principal headquarters are located in New Jersey, a state in which it does business, brought this diversity action in the District of New Jersey against Hammond Lead Products, Inc. (Hammond), an Indiana corporation, and Gary Mitchener, an Indiana resident, charging unfair competition and seeking injunctive and compensatory relief.

Cyanamid’s complaint alleged, in relevant part, that Mitchener, a former employee of Cyanamid and the MacGregor Lead Company of Chicago, Illinois, a company acquired by Cyanamid, violated his “contractual and fiduciary duty” to Cyanamid when he left Cyanamid’s employ in July of 1971 and became employed with defendant Hammond’s Hal-stab Division in Indiana, and that Mitchener and Hammond engaged in acts of unfair competition, in that the defendants “lured away” certain of Cy-anamid’s employees and “conspired to unlawfully compete with plaintiff and to unlawfully use plaintiff’s secret, unique, confidential and valuable methods, techniques, products, customer specifications, data, processes and systems.”

The defendants moved to dismiss Cy-anamid’s complaint, inter alia, for lack of proper venue under 28 U.S.C.A. § 1391(a). The district court denied the motions upon oral argument, and entered an Order on May 14, 1973, denying the “Defendants' motion to dismiss the within action for lack of venue under Section 1391(a) of Title 28 U.S.C.” and certifying “pursuant to section 1292(b) . . . that this matter involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Accordingly, the defendants filed a petition for leave to appeal, which petition was granted by this Court on June 5,1973.

Concisely stated, the issue here is whether the plaintiff corporation Cy-anamid is entitled to the privilege of laying venue in the District of New Jersey solely because it does business in that state. The relevant venue statutes in this diversity suit are 28 U.S.C.A. § 1391(a) and § 1391(c). Section 1391(a) provides:

“A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.”
Section 1391(c) provides:

“A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes.”

It is readily apparent, and not disputed, that two of the three venue options available to a plaintiff under § 1391(a) are clearly inapposite under the facts as stated, for New Jersey is neither the judicial district in which “all defendants reside” nor is it the judicial district “in which the claim arose.” And, but for the presence of § 1391(c), it could likewise not be argued that the third venue option of § 1391(a), plaintiff’s residence, applies here, since Cyanamid is a Maine corporation and, it has long been settled that “the ‘residence’ of a corporation, within the meaning of the venue statutes, is only in the ‘State and district in which it has been incorporated.’ ” Suttle v. Reich Bros. Construction Co., 333 U.S. 163, 166, 68 S.Ct. 587, 589, 92 L.Ed. 614 (1948), quoting from Shaw v. Quincy Mining Co., 145 U.S. 444, 449, 12 S.Ct. 935, 36 L.Ed. 768 (1892). Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939), represented the only judicial exception to this proposition, in that Neirbo held that a corporation had “waived” its right to be sued only in its state of incorporation when the corporation obtained a license to do business and appointed an agent for the service of process in another state. This exception, however, as the Supreme Court was careful to point out in the Suttle case, supra, 333 U.S. at pages 167-168, 68 S.Ct. 587, did not imply that the “residence” of a corporation for venue purposes had been redefined.

With the passage of § 1391(c), as part of the general revision of the Judicial Code in 1948, Congress expanded the venue options available to a plaintiff in suits against a defendant corporation, clearly going beyond the Neirbo exception, by providing that “[a] corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business.” It is Cyanamid’s contention that the second clause of § 1391(c), “and such judicial district shall be regarded as the residence of such corporation for venue purposes,” evidences an intention on Congress’ part to completely overrule the long-standing rule of the Suttle case and its predecessors, thereby extending the expanded venue options of the first clause of § 1391(e) to plaintiff corporations. We disagree, and cast our vote with the other circuit courts which have rejected the same contention. See Manchester Modes, Inc. v. Schuman, 426 F.2d 629 (2d Cir. 1970); Carter-Beveridge Drilling Co. v. Hughes, 323 F.2d 417 (5th Cir. 1962) (per curiam); Robert E. Lee Co. v. Veatch, 301 F.2d 434 (4th Cir. 1961), cert. denied, 371 U.S. 813, 83 S.Ct. 23, 9 L.Ed.2d 55 (1962).

Although we recognize that there is a division of opinion among the district courts and the text writers as to the proper interpretation of § 1391 (c)’s somewhat nebulous language, in particular its latter clause, we remain unpersuaded that Congress, and the eminent and thorough staff of lawyers assembled to aid in the Judicial Code revision, would have made the change in the Sut-tle rule urged by Cyanamid via such imprecise language and without a clear indication to that effect in the legislative history.

We fail to see how the language “such corporation” as used in the second clause of § 1391(c) can refer to anything other than the antecedent phrase “[a] corporation may be sued," when this language is regarded in its normal syntactical usage.

The late Chief Judge Sobeloff in his analysis in Robert E. Lee & Co. v. Veatch, swpra, effectively disposed of Cyanamid’s syntactical contention as follows:

“It seems to us more probable that the term ‘such corporation’ was meant to limit the applicability of the subsection to defendant corporations, for the corporations referred to in the opening words of the section are those that are sued, not those that sue. This would certainly be the more natural usage of the ‘such.’ If the purpose of the subsection was to define the residence of all corporations, plaintiffs as well as defendants, the expected mode of expression would be ‘a corporation may sue or be sued.’ Moreover, had Congress designed to give the subsection the sweeping effect urged by the plaintiffs, a term like ‘all corporations’ would have been used in the second clause, instead of the restrictive term ‘such corporation.’ In summary, we think it would be inappropriate to read something into the statute which could have been so easily expressed, had this been within the congressional aim.” 301 F.2d at 438.

There is absolutely no support in the legislative history for Cyanamid’s interpretation of § 1391(c). Furthermore, the writings of several of the principal figures involved in the revision of the Judicial Code, some of which purport to identify the important changes adopted, fail to reveal any intent to change the Suttle rule. Finally, since the legislators and drafters of the Judicial Code emphasized that the Reviser’s Notes explained all changes in the law, it is of some import that only one obscure comment, affording no sustenance to Cyanamid’s contentions, relates to § 1391(c). Under these circumstances, we must be guided by the rule of statutory construction as stated by the Supreme Court in Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 199, 32 S.Ct. 626, 630, 56 L.Ed. 1047 (1912), and later reaffirmed in Fourco Glass Co. v. Transmirra Corp., 353 U.S. 222, 227, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), in a discussion of another venue provision involved in the 1948 Judicial Code revision: “[I]t will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect, unless such intention is clearly expressed.” (emphasis supplied) (citations omitted).

Cyanamid nonetheless argues that despite the awkward language and the legislative silence, its interpretation of § 1391(c) should still prevail, for otherwise the section’s second clause would be redundant. This is not necessarily true, as was noted by Judges Sobeloff and Friendly, respectively, in the Robert E. Lee & Go., supra, and Manchester Modes, supra, cases.

The latter clause of § 1391(e) can readily he regarded as a provision intended to be used in connection with other “special” venue statutes, for purposes of defining the “residence” of a defendant corporation. Such was the application of the clause in Pure Oil Co. v. Suarez, 384 U.S. 202, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966).

Alternatively, although with perhaps less facility, the second clause could have been aimed at the problem posed by the facts of the Suttle case. There, a Mississippi resident brought suit in the Eastern District of Louisiana against a partnership whose members resided in the Western District, and a Texas corporation which had qualified to do business in Louisiana. Then, as now under 28 U.S.C.A. § 1392(a), the applicable venue rule was that in a suit against two or more “defendants residing in different districts in the same State,” venue was proper in either district. Although the Eastern District would have been a proper venue district under the Neirbo rule in a suit against the Texas Corporation alone, the Supreme Court nevertheless held that venue was improperly laid under these facts. The Court emphasized, as noted earlier, that Neirbo had not changed the Suttle definition of corporate residence. Therefore, since the Texas corporation technically “resided” only in Texas, the predecessor to § 1392(a) could not be employed to make the Western District partnership suable in the Eastern District of Louisiana.

Accordingly, we hold that § 1391(c) applies only to defendant corporations.

The Order of the district court will be reversed, and the case remanded with directions to dismiss the complaint.

      . Appellants do not contest this point. Appellant’s Brief at 3.

      . For a brief discussion of the pre-1948 history of corporate venue, see 1 Moore, Federal Practice, j[ 0.142 [5.-3], at 1489-92 (2d rev. ed. 1974).

      . The Supreme Court has not ruled on this question. See Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 156-157 n.20, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967).

      . It is noteworthy that a substantial number of the district court opinions holding that § 1391(c) encompasses both plaintiff and defendant corporations have since been undermined precedentially by the subsequent decisions in the Second, Fourth and Fifth Circuit Courts of Appeals just cited in the text. E. g., Toilet Goods Association, Inc. v. Celebrezze, 235 F.Supp. 648 (S.D.N.Y.1964); Wear-Ever Aluminum, Inc. v. Sipos, 184 F.Supp. 364 (S.D.N.Y.1960); Travelers Ins. Co. v. Williams, 164 F.Supp. 566 (W.D.N.C. 1958); Standard Ins. Co. v. Isbell, 143 F.Supp. 910 (E.D.Tex.1956); Southern Paperboard Corp. v. United States, 127 F.Supp. 649 (S.D.N.Y.1955); Freiday v. Cowdin, 83 F.Supp. 516 (S.D.N.Y.1949).

      . Those taking the position that § 1391(c) covers both plaintiff and defendant corporations include: 1 Barron & Holtzoff, Federal Practice and Procedure, § 80, at 388 (Rev. 1960) ; Wright, Federal Courts, § 42, at 155-56 (2d ed. 1970); Wechsler, Federal Jurisdiction and the Revision of the Judicial Code, 13 L. & Contemp.Prob. 216 (1948); Note, the Proposed Revision of the Federal Judicial Code, 60 Harv.L.Rev. 424 (1947) ; Note, Federal Venue and the Corporate Plaintiff, 37 Ind.L.J. 363 (1962); Note, Federal Venue and the Corporate Plaintiff: Judicial Code Section 1391(c), 28 Ind.L.J. 256 (1953); Comment, 76 Harv.L.Rev. 641 (1963).
      Those adhering to the view that § 1391(c) is limited to defendant corporations include: 1 Moore, Federal Practice, If 0.142 [5.-3], at 1503 (2d rev. ed. 1974) ; Comment, The Corporate Plaintiff and Venue Under Section 1391(c) of the Judicial Code, 28 U.Chi.L.Rev. 112 (1960); Comment, 48 Va.L.Rev. 968 (1962).

      . See Hearings on H.R.1600 & 2055 Before Subcomm. No. 1 of the House Comm, on the Judiciary, 80th Cong., 1st Sess. (1947); H. R. Rep.No.308, 80th Cong., 1st Sess. (1947); S.Rep.No.1559, 80th Cong., 2d Sess. (1948).

      . Barron, The Judicial Code: 1948 Revision, 8 F.R.D. 439 (1948) ; Galston, An Introduction to the New Federal Judicial Code, id. at 201; Holtzoff, The New Federal Judicial Code, id. at 343; Maris, New Federal Judicial Code: Enactment by 80th Congress a Notable Gain, 34 A.B.A.J. 863 (1948). Although all but Galston’s article refer to changes in the venue laws, no comment is made about the Suttle rule.

      . See H.Rep.No.380, supra note 6, at 7; S. Rep.No.1559, supra note 6, at 2; Hearings on H.R.1600 & 2055, supra note 6/ at 40; Barron, supra note 7, at 441. Mr. Barron was the Chief Reviser.

      . The note reads :
      “In subsection (c), references to defendants ‘found’ within a district or voluntarily appearing were omitted. The use of the word ‘found’ made said section 111 ambiguous. The argument that an action could be brought in the district where one defendant resided and a nonresident defendant was ‘found,’ was rejected in Camp v. Gress, 1919, 39 S.Ct. 478, 250 U.S. 308, 63 L.Ed. 997. However, this ambiguity will be obviated in the future by the omission of such reference.”

      . In light of our view of the language of § 1391(c), we find no merit in Cyanamid’s remaining policy arguments.
      Additionally, we reject Cyanamid’s argu-' ment that either Pure Oil Co. v. Suarez, supra, or Denver R.R. Co. v. Railroad Trainmen, 387 U.S. 556, 87 S.Ct. 1746, 18 L.Ed.2d 954 (1967), indicate an interpretation of § 1391(c) contrary to ours. Both of these cases dealt only with defendants, and indeed the very language Cyanamid quotes from Justice Harlan’s opinion in the Pure Oil case tends to support the theory that § 1391(c) was directed at the problem of corporations as defendants, with no thought given to corporations as plaintiffs:
      “The effect of § 1391(c) was to broaden the general venue requirements in actions against corporations by providing a forum in any judicial district in which the corporate defendant ‘is doing business.’ See Moore, Commentary on the Judicial Code 193-194 (1949) ; 1 Barron & Holtzoff, Federal Practice and Procedure § 80, at 386 (Wright rev. 1960). It seems manifest that this change was made in order to bring venue law in tune with modern concepts of corporate operations.” 3 (emphasis supplied).
      “3 As the Court of Appeals stated in Transmirra Prods. Corp. v. Fourco Glass Co., 2 Cir., 233 F.2d 885, 887, ‘The rationale of this sharp break with ancient formulae is quite obviously a response to a general conviction that it was “intolerable if the traditional concepts of ‘residence’ and ‘presence’ kept a corporation from "being sued wherever it was creating liabilities.” ’ Although this Court reversed in Fourco, supra, for reasons discussed later (infra, pp. 206-207, 86 S.Ct. pp. 1396-1397), the validity of this general observation was in no way questioned.” (emphasis supplied). 384 U.S. at 20.4 & n. 3, 86 S.Ct. at 1395.