author: HAYS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Dennis Charles TYERS, Defendant-Appellant.
    No. 207, Docket 73-1482.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 3, 1973.
    Decided Nov. 15, 1973.

      Joel A. Brenner, New York City (Andrew Lee Aubry, New York City, on the brief), for defendant-appellant.
    Arthur J. Viviani, Flushing, N.Y., (John W. Nields, Jr., Asst. U. S. Atty., Paul J. Curran, U. S. Atty., on the brief), for appellee.
    Before HAYS, FEINBERG and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

Appellant was convicted after a jury trial in the United States District Court for the Southern District of New York of possessing blank bank money orders valued at more than $100 which had been stolen from an interstate shipment in violation of 18 U.S.C. §§ 2 and 659 (1970). We affirm.

The Government produced evidence tending to show that appellant had told one Aaron Finkelstein that he had approximately 2,000 blank bank money orders for sale. Finkelstein agreed to find a buyer, and in a series of three meetings in early June, 1972, the two arranged the sale. At the last of these meetings Tyers told Finkelstein that he wanted him to meet his partner, who had to approve the sale, and arranged a future meeting.

Meanwhile Finkelstein arranged to sell the money orders to one “Vito” who, unknown to Finkelstein, was an undercover agent of the Secret Service.

On June 14, 1972, Finkelstein met again with appellant who was accompanied by his partner, Mallia. In discussing aspects of the sale Mallia mentioned that the money orders were obtained from Kennedy Airport. •

On June 16, 1972, Aaron Finkelstein and his brother’, Joel Finkelstein, met Tyers and Mallia on Long Island, Together they drove to a hotel in Manhattan. Leaving the others outside the hotel Tyers and Aaron Finkelstein carried the merchandise to a room in the hotel where they met the “buyer,” Vito, who was with another undercover agent. After introductions Tyers produced the money orders from suitcases which he carried. One agent asked if the money orders were “hot.” Tyers replied that they were not. When asked if the money orders were legitimate Tyers insisted that they were and claimed that they had been obtained in a bank burglary. At this point one of the agents signalled surveilling agents stationed nearby who entered the room and seized the money orders.

In his defense appellant claimed that Aaron Finkelstein had told him that he needed one or two “big” people to accompany him on a business trip to Man'hattan. Appellant agreed to do the job and hired Mallia to assist him. He denied any knowledge of the contents of the valise he carried into the hotel room or the nature of the transaction. He also denied making the statements he is alleged to have made to the undercover agents in the hotel room.

Appellant does not contest the sufficiency of the evidence to support his conviction. However, he argues that the trial court’s charges to the jury contained numerous errors and that the evidence against him was not so strong that these errors can be deemed harmless.

Appellant contends that the trial court erred in failing to charge that in order to convict, the jury had to find that the money orders were in interstate commerce when received and possessed. The court charged instead that “at the time of the theft” the money orders had to be “part of a foreign or an interstate shipment.” (Emphasis added.)

In United States v. Berger, 338 F.2d 485, 487 (2d Cir.), cert, denied, 380 U.S. 923, 85 S.Ct. 925, 13 L.Ed.2d 809 (1964), this Court said:

“Congress has [in section 659] undertaken to protect and promote the flow of goods in interstate commerce, and that this undertaking is not to be hampered by technical legal conceptions.”

See also United States v. Augello, 452 F.2d 1135, 1141 (2d Cir. 1971), cert, denied, 406 U.S. 922, 92 S.Ct. 1787, 32 L. Ed.2d 122 (1972); United States v. Thomas, 396 F.2d 310, 315 (2d Cir. 1968). “The use of interstate communication is logically no part of the crime itself. It is included in the statute merely as a ground for federal jurisdiction.” United States v. Blassingame, 427 F.2d 329, 330 (2d Cir. 1970), cert, denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); United States v. Callahan, 439 F.2d 852, 862 (2d Cir.) cert, denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971).

While the language of section 659 is not entirely clear, it lends itself more readily to the interpretation applied by the district court, i. e., that the requirement of interstate commerce relates to the time of the theft. This interpretation has been adopted in other circuits, see Winer v. United States, 228 F.2d 944, 947 (6th Cir.), cert, denied, 351 U. S. 906, 76 S.Ct. 695, 100 L.Ed. 1442 (1956); United States v. Gollin, 166 F. 2d 123, 125 (3d Cir.), cert, denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151 (1948); Turner v. United States, 14 F. 2d 360 (8th Cir. 1926), and we accept it here.

If we were to reverse the trial court on this point one who steals goods from interstate commerce could simply hold such goods for a time and then pass them to others who would be exempt from federal prosecution. Such a result would be entirely inconsistent with the purpose of Congress in enacting section 659. See United States v. Astolas, 487 F.2d 275 (2d Cir. 1973).

Appellant also assigns as error the failure of the lower court to charge that, in order to convict, the jury must find that defendant knew that the money orders were stolen from interstate commerce. In several cases this court has held that such knowledge is unnecessary where a substantive offense rather than conspiracy is charged. United States v. Jennings, 471 F.2d 1310, 1312 (2d Cir.), cert, denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973) ; United States v. Vilhotti, 452 F.2d 1186, 1190 n.3 (2d Cir. 1971), cert, denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972); United States v. Kaufman, 429 F.2d 240, 244-45 (2d Cir.), cert, denied, 400 U.S. 925, 91 S.Ct. 185, 27 L.Ed.2d 184 (1970); United States v. Blassin-game, 427 F.2d 329 (2d Cir. 1970), cert, denied, 402 U.S. 945, 91 S.Ct. 1629, 29 L.Ed.2d 114 (1971); United States v. Tannuzzo, 174 F.2d 177, 180 (2d Cir.), cert, denied, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949). Appellant has advanced no persuasive reasons for overturning this well-established line of precedents.

The trial court did not err in instructing the jury that it could consider the “street value” of the money orders in determining whether the value exceeded $100. United States v. Kramer, 289 F.2d 909, 920-921 (2d Cir. 1961). See also United States v. Ditata, 469 F. 2d 1270, 1272 (7th Cir. 1972); Churder v. United States, 387 F.2d 825, 832-833 (8th Cir. 1968). That appellant lacked the equipment to make the money orders negotiable could be considered by the jury in ascertaining street value, but it did not mean that as a matter of law the money orders were worth less than $100. Nor did the court err by failing to charge the jury as to its action on the lesser included offense if it found the value of the money orders to be less than $100. The indictment did not include such a charge. Defendant did not request such a charge. He could not have been harmed by its absence since if the jury found the value to be less than $100 it would have had to acquit under the charge as given.

Appellant objects .further to the trial court’s charges concerning evaluation of testimony by defendants and accomplices. The court’s comment on the special interest of a defendant was entirely proper. United States v. Sclafani, 487 F.2d 245 (2d Cir. 1973); United States v. Mahler, 363 F.2d 673, 678 2d Cir. 1966); United States v. Sullivan, 329 F.2d 755, 756-757 (2d Cir.), cert, denied, 377 U.S. 1005, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964). The charge on accomplice testimony is reproduced in the margin. Appellant objects to the first portion of the first sentence, claiming that this instruction in effect erroneously told the jury that it had to accept the testimony of accomplice Finkelstein even if it found the testimony had little or insufficient weight. While that portion of the accomplice charge might better have been omitted, the instruction as a whole was adequate and in its total impact did not differ materially from charges which this court has upheld. United States v. Projansky, 465 F.2d 123, 136 n.25 (2d Cir.), cert, denied, 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); United States v. Mattio, 388 F. 2d 368 (2d Cir.), cert, denied, 390 U.S. 1043, 88 S.Ct. 1643, 20 L.Ed.2d 305 (1968).

The trial court did not err in failing to instruct the jury that it might infer from the failure of the government to call Joel Finkelstein, brother of Aaron Finkelstein, that his testimony would have been detrimental to the government’s case. Such an instruction is unnecessary where it appears that the testimony will be only cumulative. United States v. Mosca, 475 F.2d 1052 (2d Cir.); cert, denied, 412 U.S. 948, 93 S.Ct. 3003, 37 L.Ed.2d 1001 (1973); United States v. Llamas, 280 F.2d 392 (2d Cir. 1960); United States v. Antonelli Fireworks, 155 F.2d 631, 638-639 (2d Cir.), cert, denied, 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946); DeGregorio v. United States, 7 F.2d 295, 296 (2d Cir. 1925).

Failure of the court more fully to define the terms “unlawfully” and “wilfully” was not improper. Those elements were not disputed by the defendant.

Nor was it error for the court to focus in its supplemental charges on the testimony of the government agents and the defendant regarding defendant’s statements inside the hotel room. The questions of the jury made it clear that it was most concerned with this portion of the testimony and thus it was proper for the judge to address himself to it. Citing United States v. Hayward, 136 U.S.App.D.C. 300, 420 F.2d 142 (1969), appellant also argues that the judge’s charges in effect directed a verdict. We think a fair reading of the charge indicates the contrary.

Finally appellant objects to the Allen-type charge which was given when the jury reported that it had failed to reach a verdict. The charge resembled those which this court has repeatedly upheld. See United States v. Jennings, 471 F.2d 1310, 1313-1314 (2d Cir.), cert, denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973); United States v. Martinez, 446 F.2d 118 (2d Cir.), cert, denied, 404 U.S. 944, 92 S.Ct. 297, 30 L.Ed.2d 259 (1971); United States v. Bowles, 428 F.2d 592, 595-96 (2d Cir.), cert, denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970); United States v. Meyers, 410 F.2d 693, 697 (2d Cir), cert, denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 86 (1969). In this case, however, appellant urges that the charge was coercive because the judge stated that “our law requires a retrial unless the jury is unanimous.” Of course, avoidance of a retrial is the basic reason for the Allen charge. See United States v. Jennings, supra. Similar statements have been upheld. Hale v. United States, 435 F.2d 737, 739 n.l (5th Cir. 1970), cert, denied, 402 U.S. 976, 91 S. Ct. 1680, 29 L.Ed.2d 142 (1971). Appellant has not explained and we cannot see how this statement of fact could have prejudiced the jury.

Affirmed.

      . The charge was as follows:
      The testimony of an accomplice is not to be rejected unless the jury thinks it is entitled to no weight; like any other testimony, it’s to be taken up and considered and dealt with by the jury, by you who are triers of the fact.
      If accomplices could never be used, of course, there would be many cases involving real and serious guilt in which convictions- would not be obtainable. Their testimony, however, must be received with caution and weighed with care and given such weight as you deem it entitled to receive under all of the circumstances of the entire case.

      . Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

      . Appellant has also appealed the refusal of the lower court to reinstate bail. In light of our affirmance of the conviction we, of course, also refuse to order reinstatement of bail.


source: Caselaw Access Project

author: TIMBERS, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ben J. SLUTSKY and Julius Slutsky, d/b/a “The Nevele”, Appellants.
    Nos. 1037, 1038, Dockets 73-1549, 73-1550.
    United States Court of Appeals, Second Circuit.
    Argued June 25, 1973.
    Decided Sept. 24, 1973.

      See also D.C., 352 F.Supp. 1105.

      Louis Bender, New York City (Sandor Frankel, New York City, on the brief), for appellant Ben J. Slutsky.
    William Esbitt, New York City (Edward Brodsky and Edwin L. Schwartz, New York City, on the brief), for appellant Julius Slutsky.
    John J. Tigue, Jr., Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., Robert P. Walton and John W. Nields, Jr., Asst. U. S. Attys., New York City, on the brief), for appellee.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Ben J. Slutsky and Julius Slutsky appeal from judgments of conviction entered upon jury verdicts returned January 9, 1973 after a six day trial before Lloyd F. MacMahon, District Judge, in the Southern District of New York. Each appellant was found guilty on three counts of attempted personal income tax evasion, in violation of 26 U.S.C. § 7201 (1970). In addition, Ben J. Slutsky was found guilty on two counts, and Julius Slutsky on one count, of signing and filing false partnership income tax returns, in violation of 26 U.S.C. § 7206(1) (1970). On March 19, 1973, a sentence of five years imprisonment and a $40,000 fine was imposed on Ben J. Slutsky, and a sentence of five years imprisonment and a $35,000 fine was imposed on Julius Slutsky. The costs of prosecution were imposed on each appellant. Each has been releásed on his own recognizance pending appeal.

Of the numerous claims of error raised on appeal, we find the principal issues to be those relating to the sufficiency of the evidence adduced by the government under the “bank deposits” method of proof and the propriety of sentencing appellants for violations of both 26 U.S.C. § 7201 and 26 U.S.C. § 7206(1).

We affirm the judgments of conviction as to both appellants on the tax evasion counts (Counts 4, 5, 6, 7, 8 and 9); but we reverse and vacate the judgments of conviction and cumulative sentences imposed upon both appellants on the false filing counts (Counts 1, 2 and 3) as an improper pyramiding of penalties.

I.

FACTS

Viewing the evidence in the light most favorable to the government, as we must at this stage, United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972), the jury could have found the facts as follows.

Appellants were the equal and only partners in the Nevele, a large, successful resort hotel located at Ellenville, New York, in the Catskill Mountains. During the years in question appellants were engaged full time in the management of the Nevele.

In 1967, the IRS commenced a routine audit of the Nevele’s books. At first it was directed at the taxable years 1964 and 1965. Later it was extended to in-elude 1966 and 1967. The audit, conducted chiefly by Agent Vera Wood, led to the conclusion by the IRS that the tax returns filed by appellants for the years in question had failed to include substantial income sums attributable to the partnership.

Agent Wood’s suspicions initially were aroused when, in checking the books of the Golden Gate Hotel, she discovered an “exchange” transaction entry indicating that the Nevele had satisfied a $136,000 mortgage obligation of the Golden Gate. Recalling no record of any such exchange in the Nevele’s books, Agent Wood asked Samuel Levis (the Nevele accountant), John Greco (the full-time bookkeeper), and Ben Slutsky to explain both the accounting treatment of the transaction on the Nevele’s books and the source of the sum involved. After a series of unsatisfactory responses by Slutsky, Levis presented to Agent Wood a copy of a bank ledger card for a savings account in the name of Ben or Julius Slutsky. This showed a withdrawal in the amount of $136,000. Agent Wood then confirmed that this savings account was reflected nowhere in the Nevele books. She found, on a rough addition of the amounts in that account and those properly recorded, “that the total of these deposits exceeded the cash that was available as reflected in the cash on hand account of thei books”.

Appellants first maintained that all of the sums deposited in the savings account had been recorded on the Nevele’s books as income. Later they asserted that the deposits did not represent income at all but were advance reservation deposits which were held in escrow until the guests arrived at the Nevele and income actually began to accrue.

Agent Wood then intensified her audit. She discovered two additional unrecorded bank accounts under the control of appellants. At this point, the analysis focuse'd on the following six accounts :

(A) Accounts on Nevele books:
(1) Checking account in name of “The Nevele”, at Sullivan County National Bank;
(2) Checking account in name of “The Nevele”, at First National Bank and Trust Company of El-lenville ;
(3) Checking account in name of “The Nevele”, at Ellenville National Bank;
(B) Accounts not on Nevele books:
(4) Savings accounts in name of “Ben or Julius Slutsky”, at Ellen-ville National Bank;
(5) Checking account in name of “Julius or Alice Slutsky”, at El-lenville National Bank;
(6) Checking account in name of “Alice Slutsky”, at Ellenville National Bank.

Upon appellants’ continued failure satisfactorily to explain the excess of deposits over recorded income, Agent Wood filed a report. The case was referred to the Intelligence Division of the IRS.

The referral culminated in a thorough investigation headed by Special Agent David Empie. This investigation utilized the “bank deposits method”. This involves an analysis of all deposits made in bank accounts under the control of the taxpayer, the total of which is adjusted to exclude transfers, loans, redeposits, and other identifiable non-income items. Further subtractions are made for allowable exemptions and deductions. The resulting net taxable income figure is compared against the

total taxable income reported. As summarized by the government at trial, the investigation produced the following data in support of the alleged unreported income for each of the three tax years involved:

Ben J. Slutsky et al.
Schedule of Alleged Unreported Income — Nevele 1965, 1966, 1967
Item Particulars 1965 1966 1967
1 Total Bank Deposits ------ $6,548,213.68 $5,287,062.46 $6,310,260.18
2 Less: Nonincome Deposits and Items -------------- 3,283,910.71 998,361.76 1,707,471.99
3 Gross Receipts — Bank Deposit Method-----------3,264,302.97 4,288,700.70 4,602,788.19
4 Cash-on-hand Less: Balance — beginning of year ---------- 78,688.84 193,346.46 206,772.39
Sub-Total --------- 3,185,614.13 4,095,354.24 4,396,015.80
Add: Balance — end of year 193,346.46 206,772.39 unknown
5 Gross Receipts — Bank Deposit Method (adjusted) -------- 3,378,960.59 4,302,126.63 4,396,015.80
6 Less: Direct Costs claimed on returns -------------------- 2,146,562.42 2,746,645.27 2,771,463.63
7 Gross Profit ---------------- 1,232,398.17 1,555,481.36 1.624.552.17
8 Less: Other expenses and depreciation claimed on returns 976,988.28 966,183.80 1.181.760.18
9 Partnership ordinary income as corrected -------------- 255,409.89 589,297.56 442,791.99
10 Partnership ordinary income as reported ---------------- ( 143,767.32) 111,387.09 87,816.67
11 Unreported Income---------- $ 399,177.21 $ 477,910.47 $ 354,975.32

The tax effect of the unreported income set forth in this summary was to increase the partnership share of each appellant by $199,588.60 for 1965; $238,955.23 for 1966; and $177,487.66 for 1967. This resulted in a total alleged personal tax deficiency for the three years involved of $369,136.83 for Julius Slutsky and of $391,945.19 for Ben Slutsky.

A nine count indictment was returned November 2, 1972 At trial, the government claimed that the large deficiencies stated above were the result of wilful fraud. In support of that theory, the government adduced evidence describing the Nevele’s bookkeeping and accounting procedures. Ideally, all guest charges — the basic form of the Nevele’s income — would be recorded as received in a “bill book”. At the- end of each day, Julius Slutsky would reconcile the bill book with the physical cash received. He personally prepared the deposit slips. An adding machine tape showing the total would then be given to Greco, the bookkeeper, who thereafter would post the receipts in a cash on hand account in the Nevele’s books. As .the receipts were deposited in one or more of the bank accounts, or otherwise disbursed, the disposition of the funds presumably would be posted accordingly- — i. e., by crediting the cash on hand account and debiting the appropriate disbursal account. The government’s evidence showed, however, that with respect to bank deposits only those deposits in one of the three accounts in the name of the Nevele were properly recorded.

The government’s essential claim was that the unrecorded accounts served to mask large sums of money which constituted income to the partnership. The evidence showed that, while the cash on hand account was the principal stage at which the fraud was committed, the internal accuracy of that bookkeeping account nevertheless was preserved by a system of parallel entries. Thus, certain cash receipts deposited in the recorded accounts would not be posted in the cash on hajid account; but subsequent deposits in the unrecorded accounts, in corresponding amounts, were duly noted in the cash on hand account. This, according to the government’s evidence, resulted in appellants purporting to show that the amounts deposited in the unrecorded accounts had been properly recorded as income.

Appellants, on the other hand, while admitting the irregularities in the treatment of deposits in the unrecorded accounts, vigorously disclaimed the inference of fraud urged by the government. They contended that there was no evidence of any receipts not recorded as income in the cash on hand account and that, by charging as income the deposits in the personal accounts plus the total in the cash on hand account, the government had computed over $1 million in receipts twice, thus creating the alleged deficiency. Moreover, appellants argued that the government’s own proof demonstrated the built-in inaccuracy in the cash on hand account which resulted in computations known by the government to be in error throughout.

The remainder of the evidence, particularly that bearing on the bases for the government’s computations and the details of the cash on hand account, we discuss later in this opinion in connection with our consideration of the sufficiency of the evidence. The case was submitted to the jury on the bank deposits method. The jury found appellants guilty on all counts. This appeal followed.

II.

VENUE

Before turning to the sufficiency of the evidence, we shall consider a preliminary question raised by appellants: whether the district court erred in denying appellants’ pretrial motion to dismiss for improper venue. The claim is that, while the returns involved in the instant indictment were prepared and signed in the Southern District of New York, they were filed at the IRS Regional Center at Albany in the Northern District of New York. Appellants contend that, since the offenses charged were not “committed” within the meaning of Fed.R.Crim.P. 18 until the returns were filed at Albany, the prosecution should have been in the Northern District.

We disagree.

With respect to counts 1-3 charging appellants with making and subscribing to false partnership returns in violation of 26 U.S.C. § 7206(1), the law in this Circuit is settled that venue properly lies where a false statement is prepared and signed, even though received and filed elsewhere, by operation of the “continuing offense” statute. See, e. g., United States v. Miller, 246 F.2d 486, 487-88 (2 Cir.), cert, denied, 355 U.S. 905 (1957). This is consonant with the view that the “statutory key verbs” control in determining venue. See United States v. Hagan, 306 F.Supp. 620, 621-22 (D.Md.1969) (Thomsen, Chief Judge). Here, the key words in the statute are “makes and subscribes” a false return — acts charged as having been done in the Southern District of New York. Venue accordingly was proper in that district.

We reach the same conclusion with respect to counts 4-9 charging wilful attempts to evade taxes in violation of 26 U.S.C. § 7201. In United States v. Gross, 276 F.2d 816, 818 (2 Cir.), cert, denied, 363 U.S. 831 (1960), relying upon the continuing offense doctrine, we held that venue was proper in the district in which the returns forming the basis of the tax evasion charge had been prepared, even though they were signed and filed elsewhere.

That rationale is of equal force here. In addition to the preparation of the returns in the Southern District, appellants signed them there. That provides a further significant contact and reinforces the Gross analysis. Moreover, while the indictment charged appellants with filing false returns,'the offense here under consideration was the wilful attempt to evade their tax obligations. Under 18 U.S.C. § 3237(a), venue will lie wherever the attempt to evade taxes was begun, continued, or completed.

We hold that the preparing and subscribing of the returns in the Southern District made venue in that district proper.

III.

SUFFICIENCY OF THE EVIDENCE

(A) Adequacy of Investigation

In utilizing the bank deposits method of proof, the government necessarily relied on circumstantial evidence. United States v. Doyle, 234 F.2d 788, 793 (7 Cir.), cert, denied, 352 U.S. 893 (1956). That imposes on us in reviewing the convictions below the duty of “bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method [as with the ‘net worth’ method] that is itself only an approximation.” Holland v. United States, 348 U.S. 121, 129 (1954). In the context of this case, we direct our attention particularly to the adequacy of the foundation underlying the computations introduced by the government and the propriety of the investigation that led to those computations. We hold that the bank deposits method of proof in this case complied with the requirements of law and adequately supported the jury verdicts that resulted.

The requirement of a full and adequate investigation in a bank deposits case is based on the similar requirement in a net worth case. Holland v. United States, supra. Such investigation must establish a guarantee of essential accuracy in the circumstantial proof at trial as an element of the government’s burden of proving guilt beyond a reasonable doubt. Kirsch v. United States, 174 F.2d 595, 601 (8 Cir. 1949). Once the government satisfies its burden of proving substantial deposits in excess of reported income, has given the taxpayer credit for properly claimed and otherwise allowable deductions, and shows that it has taken all reasonable steps to eliminate identifiable non-income items, the burden is then on the taxpayer to explain the remaining excess. United States v. Lacob, 416 F.2d 756, 760 (7 Cir. 1969), cert, denied, 396 U.S. 1059 (1970).

Having these requirements in mind, we must examine the adequacy -of the government’s investigation. The record shows that, as a result of the IRS’ examination of the six bank accounts within appellants’ control, it made the following analysis:

1. Checking account in name of “The Nevele” at Sullivan County National Bank.
With the exception of two unidentified items totalling some $2,000, every item of the total $1,661,639.08 deposited in this account during the three taxable years was analyzed. More than $1.5 million was identified as non-income. The remainder was charged as income.
2. Checking account in name of “The Nevele” at First National Bank and Trust Company of Ellenville.
Of the total $1,710,083.34 deposited in this account, more than $550,000 was identified as income to the Nevele. That figure comprised 788 individual items of which 678 were items under $1,000. The IRS’ investigation of this account entailed an analysis of every item over $1,000 (with the exception of approximately $11,000), and a random analysis of items under $1,000. Only $13,456.78 of the total deposits was identified and eliminated as non-income.
3. Checking account in name of “The Nevele” at Ellenville National Bank.
In this, the major business account, more than $13 million was deposited during the three years in question. Of the items over $1,000, the IRS analyzed all but $4,000. In addition, of the items under $1,000 (all of which had a number encircled op the back of the cheeks), some 769 were randomly analyzed. The result was the elimination of almost $3.8 million as non-income, the identification of over $800,000 as income, and the further charging as income of almost $7.5 million in unidentified items under $1,000. Some $1 million in currency deposited in this account was also charged as income.
4. Savings account in name of “Ben or Julius Slutsky” at Ellenville National Bank.
Of the total $996,297.82 deposited in this account, every item was identified. $19,500 was eliminated as non-income. The remainder was charged as income.
5. Checking account in name of “Julius or Alice Slutsky” at Ellenville National Bank.
Of the total $326,687.75 deposited in this account, every item was identified. More than $230,000 was eliminated as non-income. The remainder was charged as income.
6. Checking account in name of “Alice Slutsky” at Ellenville National Bank.
Of the total $360,929.44 deposited in this account, every item was identified. More than $170,000 was eliminated as non-income. The remainder was charged as income.

In sum, of approximately $18 million in total deposits during the three years involved, more than $5.7 million was eliminated as non-income, and the remainder was charged as gross income for purposes of the bank deposits analysis. Of the total charged as income, almost $2.8 million was in specifically identified items. Almost $8.6 million, however, was in unidentified items, and a further $1 million was in currency.Appellants’ principal attack on the sufficiency of the government’s investigation focuses on this large sum of unidentified checks and currency charged as income.

The adequacy of a bank deposits investigation necessarily turns on its own circumstances. The reported cases indicate the kinds of factors that bear on the assessment of adequacy. The critical question is whether the government’s investigation has been sufficiently adequate to support the inference that the unexplained excess in receipts was in fact attributable to currently taxable income. Holland v. United States, supra, 348 U.S. at 137. In proving its case, the government is not required to negate all possible non-income sources of the deposits, particularly where the source of the income is uniquely within the knowledge of the taxpayer. At the same time, however, the government may not “disregard explanations of the defendant reasonably susceptible of being checked”. Id. at 138.

Thus, in United States v. Lacob, supra, the court upheld as adequate an investigation involving total deposits of $99,000 by a lawyer who specialized in personal injury claims with fees ranging from 20% to 33y3%. There, “[o]f $39,356.33 of substantial cheeks deposited but not identified or explained, defendant was charged with income of $7,871.27, or 20%, because it was assumed, in the absence of other proof, that these were proceeds of cases. . . .” 416 F.2d at 758. Similarly, in United States v. Procario, 356 F.2d 614 (2 Cir.), cert, denied, 384 U.S. 1002 (1966), where almost half of the total alleged professional receipts were in the form of deposits unidentified by the government, we said:

“The government relied on the fact that it excluded all possible dividends, on the small size and relative frequency of the deposits, similar to deposits and other income proven to be professional receipts, and on the fact that appellant had patients other than those whose payments were included in . the directly proven items of income. This was sufficient.” 356 F.2d at 618.

We hold that the government’s investigation here was clearly sufficient under the particular circumstances of the case. Analysis of the nature of the business in which appellants were engaged revealed that most income items were in amounts under $1,000. Accordingly, the investigation included a detailed check of every item in an amount greater than $1,000, with very few specified exceptions. In addition, a random check of 1447 items in amounts less than $1,000 was made; and the analyzed items were found to constitute income in virtually every instance. Moreover, a further examination of the business accounts disclosed that almost every item in an amount under $1,000 was reflected by a check with a room number encircled on the back; according to the record, this specifically identified these items as guest receipts and therefore income. To hold the government to a stricter duty of investigation than it performed here would be to ignore both the “reasonableness” and “fairness” strictures that have been imposed; it would also result in an exercise in diminishing returns in terms both of the provision of relevant information to the fact-finder and of the protection of the rights of taxpayers.

Appellants’ attack upon the sufficiency of the government’s investigation appears further to have misconstrued the essence of the bank deposits method of proof. “[OJnce the Government proves unreported receipts having the appearance of income, and gives the defendant credit for the deductions he claimed on his return, as well as any others it can calculate without his assistance, the burden is on the defendant to explain the receipts, if not reportable income, and to prove any further allowable deductions not previously claimed.” United States v. Lacob, supra, 416 F.2d at 760. (emphasis added). Put another way, once the existence of unreported receipts is established, “the defendant remains quiet at his peril.” Holland v. United States, supra, 348 U.S. at 139. Proof of the exact amount of the understatement is not required, United States v. Johnson, 319 U.S. 503, 517 (1934); United States v. Pawlak, 352 F.Supp. 794, 796 (S.D.N.Y.1972), nor is there any duty to negate all non-income sources of unreported receipts. United States v. Doyle, supra, 234 F.2d at 794. Once the government showed that appellants’ accounting system was such as to permit the non-disclosure of income, as well as the existence of substantial amounts of excess deposits which, after reasonable investigation, had the appearance of income, that was sufficient to warrant submitting the case to the jury.

We hold that the government adequately sustained its burden in this ease.

(B) Opening Cash on Hand

As in a net worth case, Hoi-’ land v. United States, supra, 348 U.S. at 132-35, an essential element of the government’s burden of proof in a bank deposits case is to establish an accurate cash on hand figure for the beginning of the taxable year. If the taxpayer’s deposits or other expenditures during the relevant year “came from a safety deposit box in a bank or from a hoard at home, obviously they are not ‘income’ when taken from their storage place and deposited in a checking account nor when spent.” United States v. Frank, 245 F.2d 284, 287 (3 Cir.), cert, denied, 355 U.S. 819 (1957). Thus, the government must prove with reasonable certainty the amount of undeposited cash at the beginning of the year so that an appropriate amount may be subtracted from the total of deposits made during the taxable year.

In the instant case, the government alleged cash on hand at the beginning of 1965 of $78,688.84, a figure taken directly from the Nevele’s general ledger. Appellants mount a two-tiered attack on that figure. First, they contend that the government’s own proof demonstrated the inaccuracy.of the cash on hand account in the Nevele’s books— the source of the figure used — and that therefore the proper foundation for the resulting computation is lacking. Second, they argue that the government was informed by appellants of the source of the inaccuracy and that the failure to utilize that information violated the “leads” doctrine of Holland. We hold that the record supports the use of the opening figure relied on by the government.

Appellants’ essential contention is that the evidence showed the inherent unreliability of the cash on hand account in that the account was not properly credited when deposits were made in any of the three accounts not recorded in the Nevele’s books. This resulted, according to appellants, in a double computation of large sums of money: once in the sum of deposits in those accounts and again in the use of the cash on hand account itself as an index of receipts. Whatever merit there might be in this contention if the government had relied solely on the figure in the cash on hand account to establish an opening cash on hand amount, the record clearly demonstrates sufficient corroboration to have warranted submission of the case to the jury.

First, as stated above, the proof adduced by the government which showed the manner in which appellants were able to conceal substantial sums of income alleged to have been unreported was sufficient to demonstrate that the integrity of the cash on hand account was maintained despite its use in the fraudulent scheme. Second, and of critical importance, independent evidence was introduced by which the validity of the figure shown in the cash on hand account could be tested. Specifically, the government demonstrated that in each of the years in question the deposits in the two principal business accounts during the first few days of the new year were consistent with the amount of cash indicated in the ledger account. And, finally, the cash on hand account figure was authenticated by the in-house investigation conducted by Nathan Frankel, an accountant retained by appellants subsequent to the commencement of the IRS audit. Frankel, it should be noted, had the additional benefit of full access to all of the Nevele’s books and records, a privilege not afforded the government.

Accordingly, apart from making the opening cash on hand figure sufficiently reliable to allow the jury to consider the evidence, the factors enumerated above more than adequately negate appellants’ contention that the government failed to follow up leads provided by appellants. The “leads” doctrine, as outlined in Holland v. United States, supra, 348 U.S. at 135-36, places on the government a duty of “effective negation of reasonable explanations by the taxpayer inconsistent with guilt” — a duty limited to the investigation of “leads reasonably susceptible of being checked which, if true, would establish the taxpayer’s innocence.” Here, the leads furnished by appellants, such as they were, were not directed as much at the inaccuracy of the cash on hand account as against the alleged invalidity of the government’s entire theory of tax evasion. In every practical sense, the ensuing investigation, which we hold to have been full and fair, consisted of a “tracking down” of the explanations offered by appellants. The essence of the government’s investigation was a detailed study of the use of the cash on hand account. This led to the conclusion, bolstered by independent evidence, that the explanation offered by appellants was untrue. To require the government to do more would be to ignore the element of reasonableness embodied in the “leads” doctrine.

We hold that the government fully discharged its duty to investigate the leads furnished by the taxpayers, and that the resulting evidence was sufficient to establish with reasonable certainty the accuracy of the cash on hand figure used.

(C) WiLFULNESS

Appellants also challenge the sufficiency of the evidence of wilfulness. We hold that there was ample evidence to establish this essential element of the offenses charged.

The government was required to establish beyond a reasonable doubt that appellants acted wilfully and knowingly with the specific intent to evade their income tax obligations. United States v. Coblentz, 453 F.2d 503, 505 (2 Cir.), cert, denied, 406 U.S. 917 (1972). That means proof of a conscious, deliberate, purposeful act or omission, as opposed to an unconscious, unwilling, negligent or mistaken one. United States v. Platt, 435 F.2d 789, 793-94 (2 Cir. 1970) (§ 7203 violation); United States v. Berger, 325 F.Supp. 1297, 1303 (S.D.N.Y.1971), aff’d, 456 F.2d 1349 (2 Cir.), cert, denied, 409 U.S. 892 (1972). It was further incumbent upon the government to establish intent by evidence independent of the understatement of income. Holland v. United States, supra, 348 U.S. at 139.

The proof of wilfulness in this case was clearly sufficient. In the evidence from which the jury was entitled to find intent to evade taxes was the consistent pattern of understating substantial sums of income, Holland v. United States, supra, 348 U.S. at 139; the withholding of material information from Levis, appellants’ own accountant, United States v. Procario, supra, 356 F. 2d at 618; the withholding of material information from Agent Wood of the IRS, United States v. Rischard, 471 F.2d 105, 108-09 (8 Cir. 1973); and the resort to unorthodox accounting practices, including parallel entries, with deceptive results. United States v. Waller, 468 F. 2d 327, 329 (5 Cir. 1972), cert, denied, 410 U.S. 927 (1973). See also Spies v. United States, 317 U.S. 492, 499 (1943).

In short, the independent evidence of intent, aside from the fact of understatement, was sufficient to support the jury’s verdict.

IV.

SENTENCE

Appellants argue that, even if the proof was sufficient to support the guilty verdicts, the court erred in imposing cumulative sentences under Sections 7201 and 7206(1). We agree. Accordingly, we vacate the convictions and sentences imposed upon both appellants on the false filing counts (Counts 1, 2 and 3) which charged violations of Section 7206(1).

In United States v. White, 417 F.2d 89 (2 Cir. 1969), cert, denied, 397 U.S. 912 (1970), defendants similarly had been charged with violations of both Sections 7201 and 7206(1). Following the return of guilty verdicts under both sections, maximum cumulative fines were imposed on all counts. We reversed, saying- that “the cumulative fines, insofar as they exceeded the maximum possible fine under the greater offense charged in § 7201, constituted an unauthorized pyramiding of penalties.” 417 F.2d at 93. That view was premised on Sansone v. United States, 380 U.S. 343, 349 (1965), where the Supreme Court held that Sections 7203 and 7207 are lesser-included offenses within Section 7201 in an appropriate case. Likewise, we held in White that “where proof of wilfully attempted evasion under § 7201 also proves, as an incident to the wilful evasion, the preparing and subscribing of a fraudulent return [under Section 7206(1)], the specific -form of fraudulent conduct merges into the inclusive fraud under § 7201”, thereby rendering improper a cumulation of penalties beyond the maximum authorized by Section 7201. 417 F.2d at 94.

The government argues that White does not control here because in White the indictment involved only individual returns, whereas ' here the respective counts charge independent violations of individual and partnership returns. Unlike the unitary circumstances in White, the government urges, “[s]igning a false partnership return (§ 7206(1)) is not a lesser included offense of personal tax evasion (§ 7201) because . the essential elements of each crime are different and each offense can be committed without committing the other.”

The government’s argument overlooks, however, the nature of a partnership return. A partnership, unlike a corporation, is not in itself a taxable entity. The partners alone are liable as individuals for the income from their respective partnership shares, computed in addition to any other individual income. Commissioner v. Whitney, 169 F.2d 562, 564-65 (2 Cir.), cert, denied, 335 U.S. 892 (1948). The partnership returns, while required under the tax laws, are information returns only. 26 U.S.C. § 6031 (1970). Equally important for present purposes, the offense of signing and filing a false partnership return is limited to the specific partner charged with those acts; neither the partnership nor the other co-partners are subject to punishment by reason of such offense. In short, we see no justification for treating the contemporaneous filing of a false partnership information return and a false individual return any differently from the filing of a false individual return alone. In each instance, where an indictment charges both tax evasion under Section 7201 and perjury under Section 7206(1), and the evidence at trial proves the latter as an incident of the former, “the specific form of fraudulent conduct [perjury] merges into the inclusive fraud charged under § 7201.” United States v. White, supra, 417 F.2d at 94.

We therefore hold that the cumulation of penalties beyond the maximum authorized by Section 7201 is improper. The convictions of appellants on Counts 1, 2 and 3, charging the signing and filing of false partnership returns in violation of Section 7206(1), and the sentences imposed thereon, accordingly are reversed and vacated.

We have carefully considered the other claims of error raised by appellants, including the various charges of prejudicial error in the conduct and timing of the trial. We find them wholly without merit.

We affirm the judgments of conviction as to both appellants on Counts 4 through 9. We reverse and vacate the judgments of conviction and cumulative sentences imposed upon both appellants on Counts 1 through 3.

      . The ensuing indictment, returned November 2, 1972, charged violations only with respect to the taxable years 1965-67. Alleged violations during the year 1964 were not included because of the running of the applicable statute of limitations.

      . The Golden Gate Hotel was a separate partnership of appellants, the income of which was not involved in the instant indictment.

      . This method of analysis necessarily closely tracks the requirements of trial proof which we discuss in greater detail later in this opinion under Section III (A). See, e. g., United States v. Lacob, 416 F.2d 756, 759 (7 Cir. 1969), cert, denied, 396 U.S. 1059 (1970).

      . Count 1 charged Julius Slutsky with making and subscribing to a false partnership income return for the year 1965. Counts 2 and 3 charged Ben Slutsky with making and subscribing to false partnership income returns for the years 1966 and 1967. Counts 4, 5 and 6 charged Julius Slutsky with wil-fully attempting to evade personal income taxes for the years 1965, 1966 and 1967. Counts 7, 8 and 9 charged Ben Slutsky with wilfully attempting to evade personal income taxes for the years 1965, 1966 and 1967.

      . This apparently is what confronted Agent Wood upon- her initial discovery of the unrecorded accounts. According to her trial testimony, “[A]t that point it appeared that our review of the cash of the bill books and the deposits that were being recorded in the cash receipts book that at that point that this money had gone into income.”

      . Eed.R-.Crim.P. 18 provides :
      “Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses.”

      . 18 U.S.C. § 3237(a) (1970) provides :
      “Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
      Any offense involving the use of the mails, or transportation in interstate or foreign commerce, is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce or mail matter moves.”

      . Travis v. United States, 364 U.S. 631 (1961), is not to the contrary. While that case held that the alleged violation of 18 U.S.C. § fOOl (making false statement) could be prosecuted only in the districts in which the affidavits had been filed, the decision surely was meant to be confined to the facts based on the unusual statute involved.

      . We further note the absence of any prejudice to appellants as the result of venue in the Southern District. Appellants do not claim that the prosecution there rather than in the Northern District created any difficulty in obtaining witnesses or documents, or indeed that any additional expense was incurred. Further, under 18 U.S.C. § 3237 (b), a person charged with violations of 26 U.S.C. §§ 7201 and 7206(1) may “elect to be tried in the district in which he was residing at the time the alleged offense was committed.” In this case, that was the Southern District. We surmise that by bringing the action in the Southern District in the first instance the government avoided a likely motion to transfer under Section 3237(b).

      . Irving Greene, the Nevele’s front office manager, testified that a cashier, upon receiving a check from a guest leaving the hotel, was instructed to write the guest’s room number on the back of the check and encircle that number.

      . In addition to the $5.7 million eliminated as the result of the government’s own investigation, some $180,000 attributed to “leads” and $47,000 attributed to “guest returns” were also eliminated.

      . Appellants’ contention to the contrary is undermined to a significant degree by the testimony of Nathan Frankel, an accountant who conducted a two year investigation of appellants’ books after being retained by appellants. Frankel testified that he discovered even fewer non-income items than had the government. And significantly he did not check any of the reported accounts despite assistance by a staff of eight.

      . By the same token, the cash on hand at the end of the taxable year must be added to the sum of deposits to reflect the total income for that year. That procedure was followed by the government in this case.

      . At one time there was some doubt as to the applicability of the “leads” doctrine to a bank deposits case. In United States v. Procario, 356 F.2d 614, 617 (2 Cir.), cert, denied, 384 U.S. 1002 (1966), for example, we noted the argument but found no need to resolve it upon the facts of that case. The contention that the “leads” doctrine should be confined to a net worth ease is no longer tenable. See, e. g., United States v. Rams-dell, 450 F.2d 130, 133 (10 Cir. 1971) ; United States v. Stein, 437 F.2d 775, 778 (7 Cir.), cert, denied, 403 U.S. 905 (1971).

      . The government’s pre-trial motion to require production of the books was denied on the ground of appellants’ privilege against self-incrimination. United States v. Slutsky, 352 F.Supp. 1105, 1108 (S.D.N.Y.1972).

      . The burden of proof on the element of intent is similar for prosecutions under both Sections 7201 and 7206(1). See generally, united States v. Bishop, 412 U.S. 346, 356 (1973).

      . That the district court itself recognized the personal, as opposed to corporate, characteristics of this particular partnership is evident from its denial of the government’s pre-trial motion to produce the partnership’s records on the ground that the privilege against self-incrimination was held applicable. “Bather than an impersonal and detached business owned by absentees with all the aspects of a corporation, the Nevele hotel appears to be a personal family business, albeit large and successful.” United States v. Slutsky, 352 F.Supp. 1105, 1108 (S.D.N.Y. 1972).

      . There is some question as to the proper course that should follow- our holding — i. e. whether we should vacate both the conviction and sentence on the improperly pyramided counts, or simply vacate the sentence imposed. In White, where fines and not prison terms were imposed, only the sentence was vacated. That procedure was criticized, however, in United States v. Rosenthal, 454 F.2d 1252, 1255 n. 2 (2 Cir.), cert, denied, 406 U.S. 931 (1972). There, noting the “collateral consequences of convictions”, it was concluded that vacation of the conviction on the lesser count was also required. We agree with that approach, viewing the “collateral consequences” as particularly troublesome in a lesser-induded offense case where such characterization necessarily presumes that Congress did not intend two punishments for the same crime. See also United States v. Newman, 468 F.2d 791, 796 (5 Cir. 1972).
      Here, as in Rosenthal, moreover, “[t]here is no occasion to remand for resentencing since it is plain that the conviction [s] on the lesser included offense [s] did not lead the judge to impose a heavier sentence on the [§ 7201 counts] than he otherwise would.” 454 F.2d at 1256.
      Appellant Ben J. Slutsky was sentenced to three year terms of imprisonment on each of counts 2 and 3 and to five year terms of imprisonment on each of counts 7, 8 and 9, all prison sentences to run concurrently; and he was fined $5,000 on each of counts 2 and 3, $10,000 on each of counts 7, 8 and 9, all fines being cumulative.
      Appellant Julius Slutsky was sentenced to a three year term of imprisonment on count 1 and to five year terms of imprisonment on each of counts 4, 5 and 6, all prison sentences to run concurrently; and he was fined $5,000 on count 1, $10,000 on each of counts 4, 5 and 6, all fines being cumulative.
      The net result of our vacating the convictions and sentences of both appellants on counts 1, 2 and 3 is that the remaining effective sentence for appellant Ben J. Slutsky is five years imprisonment and a $30,000 fine; that for appellant Julius Slutsky is five years imprisonment and a $30,000 fine.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael Carl DORITY, Defendant-Appellant.
    No. 72-1314.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1973.
    Decided Dec. 4, 1973.

      Daniel A. Kruse (Court appointed), Cincinnati, Ohio, for appellant.
    Eldon L. Webb, Lexington, Ky., for appellee; Eugene E. Siler, Jr., U. S. Atty., Robert M. Murphy, Asst. U. S. Atty., Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   WILLIAM E. MILLER, Circuit Judge.

Michael Carl Dority, the appellant, was tried with his co-defendant, George Epperson, and was convicted on a charge of selling a stolen motor vehicle in interstate commerce. 18 U.S.C. § 2313. He appeals his conviction, alleging violations of his fifth and sixth amendment rights.

In April of 1971 Dority was incarcerated in the city jail of Covington, Kentucky, on state charges of armed robbery and attempted burglary. He was visited there by agent James Kearney of the F.B.I. After giving Dority the Miranda warnings, Kearney asked appellant whether he wished to waive his rights and make a statement. Dority said that instead of making a statement at that time, he would like a few days to consider what he should do. Four days later, when the agent returned, Dority said that he was ready to make a statement. Prior to taking the statement, the agent again identified himself and warned Dority as follows:

Before we ask you any questions, you must understand your rights.
You have the right to remain silent. Anything you say can be used against you in Court.
You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. ,
If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.

Dority then signed the following waiver:

WAIVER OF- RIGHTS

I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.

Subsequently, Dority signed a written confession which was introduced into evidence at trial.

Appellant contends that in spite of the warnings and the waiver, the confession was inadmissible because his lawyer was not present during the interview. The State of Kentucky had previously appointed counsel to represent Dority on the armed robbery charge. He argues, therefore, that the failure of the F.B.I. agent to notify his lawyer so that he might be present during the interview constituted a violation of his fifth and sixth amendment rights. Appellant concedes that the agent did not know that Dority had appointed counsel on the state charges but argues that the incarceration should have put the agent on notice that counsel may have been appointed. Consequently, it is urged that the agent should have inquired whether there was appointed counsel, and upon discovering that an appointment had been made, should have notified the lawyer before having any discussions with appellant.

We find that the agent did not violate appellant’s constitutional rights by questioning him out of the presence of the attorney who had been appointed to represent him on other charges. Clearly, the agent was required to advise Dority of his rights under the fifth and sixth amendments, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but just as clearly the appellant may waive his right to counsel. 384 U.S. 475-476, 86 S.Ct. 1602. We find that, at least for the period of time in which he gave his statement, appellant knowingly and voluntarily waived his right to counsel in connection with the federal investigation. Even if a lawyer had been appointed to represent appellant on the federal charges, the agent was under no constitutional duty to refrain from talking with appellant out of the presence of his attorney, since the right to have counsel present was knowingly and voluntarily waived. United States v. Springer, 460 F.2d 1344, 1353 (7th Cir. 1972) ; Coughlan v. United States, 391 F.2d 371 (9th Cir. 1868). It is clear to us, in the present circumstances, that the agent did not act improperly in questioning appellant in the absence of state appointed counsel. Not only did appellant waive counsel, but the state appointment was unknown to the agent, see United States v. Van Dusen, 431 F.2d 1278, 1281 (1st Cir. 1970). Moreover, the state appointment was in connection with wholly unrelated charges.

During his opening remarks to the jury, the prosecutor observed that Epperson, appellant’s co-defendant, had made a statement to the police. He began to describe that statement as follows:

We will show that Epperson made a number of statements, included in which he said, he admitted that he was with Dority at the time—

Appellant’s counsel immediately objected to any use of Epperson’s confession to incriminate Dority. The prosecutor agreed to make no further reference to Dority by name in describing the case against Epperson. Also the trial judge gave the following admonition to the jury:

Members of the Jury, you are admonished not to consider for any purpose the statement made by the U. S. Attorney in his opening statement as to certain alleged statements made by the defendant, Epperson, at a time when the defendant, Dority, was not present, as to the facts surrounding this case. Don’t consider that statement for any purpose.

Later in the trial the prosecution called an F.B.I. agent as a witness for the purpose of reading Epperson’s confession. References by name to the appellant contained in the Epperson confession were deleted and in their place the words “another party” were inserted. Appellant’s counsel objected to the use of the confession because of the possibility that it would incriminate Dority. The confession was received into evidence, and the trial judge again admonished the jury:

Members of the Jury, you are admonished not to consider for any purpose the statement allegedly made by the defendant, Curtis Epperson, in any way as evidence against the co-defendant, Michael Carl Dority. Mr. Dority was not present when that statement was made, and you are not to consider it for any purpose as evidence against the defendant, Dority.

It is more than likely that the jury had little difficulty linking appellant with the other party mentioned in Ep-person’s confession. Epperson then became, in effect, a witness against appellant and one who, because he did not testify, was unavailable for cross-examination. Under these circumstances the question arises whether appellant’s sixth amendment right to confront his accusers was infringed. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

This question, in the present case, we need not decide. The evidence introduced against appellant was overwhelming. His properly taken confession was read to the jury by an F.B.I. agent. Moreover, two eyewitnesses testified that appellant, using a false name, sold to them the stolen automobile and further that he gave them false information concerning the car. Finally, the prosecution introduced a bill of sale which appellant signed when he sold the stolen ear. Considering the imposing body of evidence against appellant, we find the possible violation of the Bruton rule to have been “harmless beyond a reasonable doubt.” Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Clayton, 418 F.2d 1274 (6th Cir. 1969), cert, denied 399 U.S. 931, 90 S.Ct. 2262, 26 L.Ed.2d 800 (1970).

The judgment of conviction is therefore affirmed.

      . These charges are unrelated to the federal crime which is the subject of this appeal.


author: VAN OOSTERHOUT, Senior Circuit Judge. LAY, Circuit Judge

text:
    IOWA CITIZENS FOR ENVIRONMENTAL QUALITY, INC., et al., Appellants, v. John A. VOLPE, as Secretary of Transportation, et al., Appellees.
    No. 73-1062.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1973.
    Decided Nov. 26, 1973.
    Lay, Circuit Judge, dissented and filed opinion.

      Robert B. Seism, Des Moines, for appellants.
    Lawrence E. Shearer, Atty., Dept, of Justice, Washington, D. C., for appellees.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by plaintiffs, an Iowa environmental organization, and eighteen individuals, from final order of the District Court dismissing their complaint seeking injunctive relief against the construction of a 21.4 mile diagonal segment of Interstate Highway 1-35, designated by the Federal Highway Administration as I-35-6.

Defendants are the Secretary of Transportation, officials of the Federal Highway Administration (FHWA) and officers of the Iowa State Highway Commission (ISHC). The major part of the cost of 1-35-6 is provided by the federal government through FHWA.

This case was tried to Judge Stuart. Many facts were stipulated; evidence was received. Judge Stuart filed a well-reasoned memorandum opinion on November 30, 1972, reported at 3 E.L.R. 20013, which sets out the applicable law and incorporates detailed findings of fact and conclusions of law upon which the dismissal of the complaint is based.

It is undisputed that the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C.,§ 4321 et seq., apply to the 1-35-6 project here involved. Two basic issues are raised upon this appeal, to wit: (1) Whether the Environmental Impact Statement (EIS) filed in connection with the completion of the 1-35-6 project complies with NEPA; (2) whether the preparation of the EIS by ISHC at the request of the responsible federal agencies, which the latter reviews, modifies and adopts, complies with the requirements of NEPA.

Substantially the same issues were presented to the trial court and were answered in the affirmative. We agree and affirm.

The standard of review in eases concerning NEPA is succinctly set forth, in Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 300 (8th Cir. 1972):

Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether “the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.” Calvert Cliffs’ Coordinating Committee v. AEC, [146 U.S.App.D.C. 33, 449 F.2d 1109, 1115 (1971)].

In addition, “[t]he court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971).

Adequacy of the Final Environmental Impact Statement.

Section 102(C) of NEPA requires the responsible federal agency to “[i]nclude in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official” on the impact of the action on the environment, including alternatives to the proposed action. Section 102(D) requires the agency to “study, develop and describe appropriate alternatives” to the proposed action. Plaintiffs here claim the statement filed for the completion of Interstate 35 fails to satisfy the requirements of Section 102 in that it does not state in sufficient detail any alternatives to the project in question, nor does it show that appropriate alternatives were ever studied, developed, and described. Plaintiffs also assert that the statement does not reflect a good-faith balancing of environmental factors in that it fails to discuss particular environmental considerations in sufficient detail.

It is well established that NEPA is an “environmental full disclosure law,” such that administrative agencies of the federal government must develop and consider all the environmental consequences of their decisions. Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 294-295 (8th Cir. 1972). The environmental impact statement required by NEPA is to serve as a basis for consideration of environmental factors by the agency involved and is to provide a basis for critical evaluation by those not associated with the agency. Environmental Defense Fund, Inc. v. Froehlke, 473 F.2d 346, 350-351 (8th Cir. 1972); Environmental Defense Fund, Inc. v. Corps of . Engineers, 470 F.2d 289, 297-299 (8th Cir. 1972); Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D. C. 33, 449 F.2d 1109, 1114 (1971). Thus, all federal agencies are to use the environmental impact statement in conducting a process of good-faith balancing of the important environmental factors which apply to any agency action. In short, the policies of NEPA enunciated in Section 101 must be considered and implemented in the policies, regulations, and public laws of the United States “to the fullest extent possible” through the procedural requirements of Section 102(2). Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289, 296-297 (8th Cir. 1972); Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115 (1971).

However, strict though the procedural requirements of Section 102(2) may be, they must be interpreted on a basis of reasonableness. Environmental Defense Fund, Inc., v. Corps of Engineers, 470 F.2d 289, 297 (8th Cir. 1972). “* * * [I] f this requirement is not rubber, neither is it iron. The statute must be construed in the light of reason if it is not to demand what is, fairly speaking, not meaningfully possible, given the obvious, that the resources of energy and research — and time — available to meet the Nation’s needs are not infinite.” Natural Resources Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 837 (1972). See Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F.Supp. 916, 933 (N.D.Miss. 1972); Environmental Defense Fund, Inc. v. Corps of Engineers, 342 F.Supp. 1211, 1217 (E.D.Ark.1972).

As Judge Stuart noted, the environmental statement “to some extent must be examined in light of the particular facts and circumstances surrounding the project * * * in order to determine its sufficiency. The extent of detail required must necessarily be related to the complexity of the environmental problems created by the project.” The discussion of environmental effects need not be “exhaustive” but rather need only provide sufficient information for a “reasoned choice of alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827, 836 (1972). See Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D. Wis.1972), where the court stated that Section 102(2) does not require that “each problem be documented from, every angle to explore its every potential for good or ill.”

In the instant case the environmental consequences of the reasonable alternatives would not greatly differ. Judge Stuart succinctly described the factual situation:

At the time the EIS was being prepared for project 1-35-6 the northern and southern termini for the project had been fixed by the construction of other segments of 1-35. In Iowa only this 27.4 mile segment of 1-35 had not been completed. The northern terminus is about 11 miles east of the southern terminus.. The area involved in any route between these two points is essentially the same tillable farm-ground. The impact on the natural environment would not differ greatly regardless of which particular route was selected. On the route selected only five families are being displaced. It does not affect any historical, archeological, geological, natural or recreational features or man made structures of any consequence, other than' the five homesteads previously mentioned. The greatest environmental impact will be the adverse effect on the farming operations caused by diagonal severance, the straightening of the Iowa River for less than one-half mile and the effect of the construction of a four lane limited access divided highway across tillable farmland.

In such a situation the detail required in an environmental impact statement would not match that which would be required if the various possible alternatives differently affected any historical, geological, or natural features. The placing of a highway acrdSs tillable farmland with no particular features of environmental interest or concern does not require the exhaustive analysis which would be required if significant differences in environmental impact among alternatives were present. “Where the environmental aspects of alternatives are readily identifiable by the agency, it is reasonable to state them— for ready reference by those concerned with the consequences of the decision and its alternatives.” Natural Resources Defense Council, Inc. v. Morton, 148 U.S. App.D.C. 5, 458 F.2d 827, 837 (1972).

In the instant ease, the possible alternatives were found to be extremely limited. The project is a matter of closing a gap in a major interstate highway across tillable farmland. As Judge Stuart noted, the alternative of doing nothing need not have been exhaustively detailed in light of the obvious disadvantages of that alternative. The public interest in completing the small gap is clearly established. The other alternatives thus involved particular routings to fill the gap, diagonal or otherwise. The court found that the alternative of building the connecting link in straight lines with two right angle turns would require 7.6 miles more highway over similar land and thus take out of production substantially more land than would the proposed project. The environmental consequences would not differ to any significant extent, and the environmental impact statement thus was not required to be as exhaustive as otherwise.

Judge Stuart found the environmental impact statement, in light of these particular circumstances, to be sufficient to put interested persons on notice of the significant impacts of this project on the environment. A reasonable interpretation of Section 102 should indicate that finding to be correct; notice of environmental consequences is all that is required. See id.; Sierra Club v. Froehlke, 345 F.Supp. 440, 444 (W.D. Wis.1972); Conservation Council of North Carolina v. Froehlke, 340 F.Supp. 222, 227-228 (D.N.C.1972). “The question to be asked is whether all reasonable alternatives to the project have been considered, even if some were only briefly alluded to or mentioned.” Environmental Defense Fund, Inc. v. Armstrong, 352 F.Supp. 50, 57 (N.D.Cal. 1972). The environmental impact statement in this case, while somewhat brief, fulfilled these requirements as to this project. We agree with the trial court that the EIS statement met any EPA requirements under the facts presented by the record.

Preparation of the Environmental Impact Statement by the State Highway Commission.

The plaintiffs’ second contention on appeal is that the federal agency responsible for the major federal action at issue may not delegate to a state agency the duty of preparing the environmental impact statement required by Section 102(2) (C) of NEPA. Plaintiffs rely principally on Greene County Planning Board v. Federal Power Commission, 455 F.2d 412 (2d Cir. 1972). In that case the responsible federal regulatory agency was held to have abdicated a significant part of its responsibility under the Act by substituting the statement of an applicant for a permit. The Second Circuit cited the potential or likelihood that the applicant’s statement would be based on “self-serving assumptions.” Id. at 420. Thus, if the federal agency should adopt the applicant’s statement, this would negate the strict consideration of environmental values required by the federal agency in Section 102(2) of the Act. The Second Circuit thus held that though the applicant could prepare the draft statement, the final environmental impact statement must be prepared by the FPC itself as a requirement of the statute. Id. at 420-422.

Several cases since Greene County have adopted its reasoning as to highways and other federally approved or funded projects. See Conservation Society of Southern Vermont, Inc. v. Secretary, 362 F.Supp. 627, 631 (D.Vt.1973) (“comments * * * were merely perfunctory, the equivalent of an agency rubber stamp”); Citizens for Clean Air, Inc. v. Corps of Engineers, 349 F.Supp. 696, 707 (S.D.N.Y.1972) (“perfunctory listing of other agencies’ conclusions”); Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731, 741 (D.Conn.1972). Support for the extension of Greene County to federal-aid highway construction has been voiced. See Comment, The Preparation of Environmental Impact Statements by State Highway Commissions, 58 Iowa L.Rev. 1268 (1973).

Several courts, however, have refused to apply Greene County to the construction of federal-aid highways and other federally-aided or sponsored projects. The delegation of the preparation of an environmental impact statement by the responsible federal agency to a state highway agency, albeit for construction of an airport runway, was specifically allowed in Life of the Land v. Brinegar, 485 F.2d 460 (9th Cir. 1973). The Ninth Circuit indicated that such delegation was quite proper because of the “significant and active” participation of the responsible federal agency in the preparation of the impact statement. Slip opinion at 11. Greene County and Conservation Society of Southern Vermont were thus specifically distinguished. The Ninth Circuit had earlier impliedly approved the delegation of the preparation of an environmental impact statement in Lathan v. Volpe, 455 F.2d 1111, 1122 (9th Cir. 1972).

Several district court decisions have upheld delegations of preparation of environmental impact statements. In National Forest Preservation Group v. Volpe, 352 F.Supp. 123, 127 (D.Mont. 1972) , preparation “by the agency itself” was held not to be necessary. Rather, the court indicated that the standards in the regulations insure that environmental consequences and alternatives are offered by the state agency for federal consideration. In addition, review of the environmental impact statement by the federal agency was held to be “clearly within the spirit of NEPA.” Id. Again, Greene County was specifically distinguished because of the federal agency participation. In Finish Alla-toona’s Interstate Right, Inc. (FAIR) v. Volpe, 355 F.Supp. 933, 938 (N.D.Ga. 1973) , preparation of a statement by the Georgia State Highway Department “in consultation” with state, local and federal agencies was approved. “The record is clear that the Secretary [of Transportation] did not merely rubber stamp the State’s work, but rather reviewed, approved, and adopted the statement, thus making it his own. It is this Court’s opinion that such a procedure is in harmony with the purposes of the statutory requirements and goals of NEPA.” Id. See also The Citizens Environmental Council v. Volpe, 364 F.Supp. 286 (D. Kan., 1973), aff’d, 484 F.2d 870 (10th Cir. 1973); Northside Tenants’ Rights Coalition v. Volpe, No. 72-C-300, 3 E.L. R. 20154 (E.D.Wis., Jan. 17, 1973); cf. Citizens for Mass Transit Against Freeways v. Brinegar, 357 F.Supp. 1269, 1277 (D.Ariz.1973).

The district court, upon the basis of substantial evidence, specifically found that the FHWA recommended changes in the initial statement and provided additional information to be added to the final statement. Review, modification and adoption by the FHWA of the statement as its own occurred in this ease. Such extensive participation by the responsible federal agency would clearly distinguish this case from Greene County. In our present case, the federal agency did not “abdicate a significant part of its responsibility” to the state highway commission by “rubber stamping” or adopting an unaltered or incompletely reviewed environmental impact statement. See Life of the Land, swpra, 485 F.2d at 468.

Section 102(2) (C) of NEPA requires a detailed statement of the environmental impact of a federal project by the responsible federal official. It does not specifically state how such official shall obtain the information upon which his statement is based. Since the enactment of NEPA, FHWA with the acquiescence of the Council on Environmental Quality, and the knowledge of Congress, has consistently interpreted the provisions of NEPA as permitting the delegation of the physical act of gathering the information necessary for the preparation of Section 102(2) (C) EIS to the state highway departments recommending the proposed federal-aid highways.

Department of Transportation PPM 90-1, promulgated August 24, 1971, at § 6 provides that the preliminary EIS shall be prepared by the sponsoring state agency, that it be approved by the FHWA, and that it be circulated to appropriate interested agencies for comment, and that later the final EIS, including copies of all comments received, shall be forwarded to FHWA and that FHWA shall review the statement, modify it as necessary and when appropriate, adopt it as its own. It is well established that an administrative interpretation of a statute by the agency charged with its enforcement is entitled to great deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-434, 91 S. Ct. 849, 28 L.Ed.2d 158 (1971); United States v. City of Chicago, 400 U.S. 8, 10, 91 S.Ct. 18, 27 L.Ed.2d 9 (1970); Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965).

The decision of the trial court is in all respects supported by substantial evidence and is not induced by any erroneous view of the applicable law. The trial court’s well-considered opinion supports the judgment of dismissal.

Affirmed.

LAY, Circuit Judge

(dissenting).

I respectfully dissent.

This court’s approval of the FHWA’s delegation of the preparation of a preliminary environmental impact statement (EIS) to the sponsoring state agency not only violates the spirit and purpose of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., but the Congressional command as well. As the majority decision acknowledges, the Department of Transportation’s regulations now provide that the preliminary EIS is to be prepared by the sponsoring state agency, and it is to be approved or disapproved by the FHWA and then circulated to appropriate interested agencies for comment; thereafter, the final EIS with all comments is to be reviewed by the FHWA, which will modify it as necessary or when appropriate adopt it as its own. Although administrative interpretation of a statute is entitled to great deference, the ultimate question as to . whether an agency procedure violates NEPA is one of law and must be resolved by this court. The agency cannot be its own self-arbiter of whether it exceeds its delegated power. See, e. g., Social Security Board v. Nierotko, 327 U.S. 358, 369, 66 S.Ct. 637, 90 L.Ed. 718 (1946); United States v. New England Coal & Coke Co., 318 F.2d 138, 143 (1st Cir. 1963); cf. Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (D.Conn. 1972).

Section 102(2) (C) of NEPA, 42 U.S. C. § 4332(2) (C), specifically provides that a detailed EIS must be prepared by “the responsible Federal official" and that this statement “shall accompany the proposal through the existing agency review processes.” I fail to see how this explicit language of NEPA can be read to mean that information-gathering and preparation of the statement may be delegated to a state agency with a vital interest in the outcome of the investigation. NEPA does not set up the responsible federal agency as a review board of the contemplated state action, simply making suggestions here, modifying there, with the idea of either giving ultimate approval or rejection to the plan. On the contrary, the Act is explicit that it is the federal agency concerned with major federal action which must prepare the environmental impact study and develop alternatives to the proposed action.

The majority’s construction of the Act is in derogation of the statutory scheme. NEPA requires that prior to preparing an EIS, the responsible federal official consult with and obtain comments from any federal agency “which has jurisdiction by law or special expertise with respect to any environmental impact involved.” Thereafter, the responsible federal officer is to take the preliminary EIS, along with the comments and views of “Federal, State and local agencies,” and submit these combined views “through the existing agency review processes.”

This express statutory procedure thus contemplates a preliminary EIS by the responsible federal official to be submitted along with the state agency’s comments and views. This is a far cry from simply reviewing a state highway department’s study. It requires affirmative and initial federal action. As has been recognized, there exists a fundamental difference between the responsibility for fact-gathering and making an independent objective appraisal of environmental impact as opposed to reviewing the self-serving declarations of a biased study by a state agency. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 420 (2d Cir. 1972); Comment, The 'Preparation of Environmental Impact Statements by State Highway Commissions, 58 Iowa L. Rev. 1268, 1270 (1973). Despite this difference, the majority opinion finds that there was substantial compliance with NEPA since the FHWA did not merely “rubber stamp” the state report but in fact required additional information to be added to the final statement. This overlooks the necessity and importance of federal preparation of the EIS early in the decisionmaking process. There exists no real prophylactic, late in the game, to overcome the possibility of a state’s biased presentation of environmental factors.

In Greene County, supra at 420, this problem was exposed by Judge Kaufman, who observed:

The Federal Power Commission has abdicated a significant part of its responsibility by substituting the statement of PASNY for its own. The Commission appears to be content to collate the comments of other federal agencies, its own staff and the inter-venors and once again to act as an umpire. The danger of this procedure, and one obvious shortcoming, is the potential, if not likelihood, that-the applicamt’s statement will be based upon self-serving assumptions. -X -X- -X-
Moreover, although decisions like Scenic Hudson I have greatly expanded the concept of standing to challenge administrative action, interve-nors generally have limited resources, both in terms of money and technical expertise, and thus may not be able to provide an effective analysis of environmental factors. It was in part for this reason that Congress has compelled agencies to seek the aid of all available expertise and formulate their own position early in the review process, (emphasis added).

Moreover, the Second Circuit emphasized the need for the federal agency to formulate its own EIS early in the agency review process. Otherwise, “alternatives might be lost as the applicant’s statement tended to produce a status quo syndrome.” Greene County, supra at 421.

Circuit Judge Oakes, sitting by special assignment on the district court in Vermont, faced the identical issue before us. He rejected any attempt to circumvent initial federal responsibility in Conservation Society of Southern Vermont, Inc. v. Secretary, 362 F.Supp. 627 (D. Vt.1973). He observed:

In Vermont, at least, the Vermont Highway Department has the duty, as testified to by Speaker of the House Kennedy and by Commissioner of Highways Gray, to follow legislative mandate in regard to proposed highway construction, and the construction here contemplated was legislatively mandated in 1968. Thus, it is impossible for the Vermont Highway Department not to be an advocate of legislatively mandated construction and still act consistently with its duty as a state agency. This being true, delegation of the preparation of an EIS to the VHD raises the danger that the EIS will reflect “self-serving assumptions” and brings the case directly within Greene County.
-X- * -X- * * *
It is true that the VHD will receive in the ordinary course of events primary system money for Vermont highways whether the particular highway here proposed is built or not but this is immaterial; the VHD will want to see that money spent where the Vermont legislature wants it spent, and to that extent the VHD is necessarily an advocate of the particular project.

Id. at 631.

Judge Kaufman, in Greene County, supra at 419, of 455 F.2d, quoting from Scenic Hudson Preservation Conference v. Federal Power Commission, 354 F.2d 608, 620 (2 Cir. 1965), cert, denied sub nom., Consolidated Edison Co. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), aptly described the role of the federal agency under NEPA:

In this case, as in many others, the Commission has claimed to be the representative of the public interest. This role does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.

The purpose and spirit of NEPA in requiring an EIS on all major federal proposals commands a qualitative objective evaluation of any adverse environmental effects the plan may have. Such a study requires an independent investí-gation, free from the biased views of an interested party. If Congress had intended the federal agency to sit as a board of review it could have simply said so. It did not. It made clear that the federal agency has an affirmative obligation to make a detailed investigation and study. This cannot be accomplished by a hindsight review of facts gathered by an interested party.

. I would reverse and require the FHWA to independently investigate and prepare its own detailed EIS in conformity with the requirements of NEPA.

      . 1-35-6 refers to the entire 27.4 mile segment of 1-35 not yet constructed or under construction. For the sake of convenience herein, we will utilize 1-35-6 as the 21.4 mile diagonal ' alignment portion. “Diagonal segment” refers to the fact that the highway will diagonally sever the survey units of this area of Iowa.

      . The Council on Environmental Quality was ■apprised of and approved of this procedure since the entirety of PPM-90-1 was published in its official publication, 102 Monitor, Vol. I, No. 9, Oct. 1971, and specifically recognized at Vol. I, No. 10.

      . On June 16, 1971, Russell Train, Chairman of the Council on Environmental Quality, testified before the House Subcommittee on Investigation and Oversight and fully apprised this Subcommittee of FHWA’s procedure of relying on state agencies for much of the information contained in environmental impact statements. Hearings on Red Tape Before the Subcommittee on Investigations and Oversight of the House Committee on Public Works, 92d Cong., 1st sess., pp. 261-263. See also Hearings Before the Subcommittee on Roads of the Senate Committee on Public Works, 91st Cong., 1st sess., p. 7 (August 25, 1970).

      . In a thorough note in the' Iowa Law Review, the author points up the deficiencies in the delegation procedure:
      First, he writes:
      Available evidence, including testimony by the prior Secretary of Transportation, John Volpe, indicates that state highway commissions do not affirmatively seek a neutral and unbiased judgment of the environmental aspects of a proposed project. These bodies tend to view environmental impact statements as mere procedural paperwork which will justify prior decisions made on the basis of traditional engineering and cost-analysis concepts.
      Second, he observes:
      [T]he Iowa Highway Commission’s concession of its inability to plan alternate transportation modes highlights one of the primary reasons why it is impossible for the Commission to issue an impact statement fully complying with NEPA. It is unrealistic to surmise that other means of transportation will be given an equitable evaluation by an agency which has no authority, experience, or expertise in any transportation system except highways.
      And finally, it is said:
      A final problem with preparation of impact statements by highway commissions is their bias towards freeways and expressways. For example, in Iowa, many primary roads are in extremely poor condition. Yet, the Iowa Highway Commission continues to spend the majority of its construction budget for freeways and expressways. The Freeway 518 — 4 impact statement does not even mention the feasibility of constructing a new modern two-lane primary road or reconstructing the existing road. The only alternatives presented are different routes for the freeway. This preference for freeways and expressways continues unabated despite a recent Iowa Poll indicating that the overwhelming majority of Iowans oppose expending more money on freeways and expressways than on primary roads. Additionally, freeways and expressways have been under attack in numerous locations throughout Iowa. Nonetheless, in its Freeway 518 — 4 impact statement, the Iowa Highway Commission blandly asserts that the needs of the traveling pjiblic are best served by a freeway-expressway system.
      Comment, The Preparation of Environmental Impact Statements by State Highway Commissions, 58 Iowa L.Rev. 1268, 1278-1280 (1973).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lucio ARENAS-GRANADA and Carlos Arthur Espinosa-Ochoa, Defendants-Appellants.
    No. 73-2288
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 4, 1973.
    Brenda Abrams, Miami, Fla. (Court-appointed), for Arenas-Granada.
    Marco Loffredo, Miami, Fla., for Es-pinosa-Ochoa.

      Robert W. Rust, U. S. Atty., Jerome B. Ullman, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Entrprises, Inc. v. Citizens Casualty Co. of New York et al., 5tli Cir., 1970, 431 F.2d 409.

   PER CURIAM:

Appellants were indicted with others for conspiracy to import cocaine (21 U. S.C. § 963), importation of cocaine (21 U.S.C. § 952(a)), and possession of cocaine with intent to distribute (21 U.S. C. § 841(a)(1)). Appellant Espinosa-Ochoa pled guilty to the conspiracy count of the indictment and was sentenced to eight years in prison with a special parol term of three years. Appellant Arenas-Granada pled not guilty, stood trial before a jury, was found guilty on all three counts, and received three concurrent ten-year prison sentences with corresponding special concurrent parole terms of three years.

Espinosa’s only request on appeal is that we hold unconstitutional Rule 32(c)(2) of the Federal Rules of Criminal Procedure as applied to grant the sentencing judge discretion whether to disclose the presentenee report to the defendant. In light of our previous decisions in United States v. Lloyd, 425 F. 2d 711 (5th Cir. 1970); United States v. Chapman, 420 F.2d 925 (5th Cir. 1969), and Good v. United States, 410 F.2d 1217 (5th Cir. 1969), we must decline the invitation.

Arenas' sole contention is that a statement improperly volunteered by a government witness so prejudiced him in the eyes of the jury as to require a new trial. Even though he had given his written consent to the search of his apartment, prosecuting attorneys prior to trial had assured counsel for Arenas that nothing found there would be offered in evidence. A customs agent, however, volunteered on direct examination that a “gram scale” was found in the apartment. Arenas’ counsel objected, apparently viewing the statement as extremely prejudicial to his client’s steadfast contention that he was merely an innocent intermediary, graciously transferring a suitcase with unknown contents as a favor to his Colombian coun-terymen. The Trial Judge cut short and struck from the record the unresponsive testimony and instructed the jurors emphatically that they were to disregard the statement concerning a “certain article” found in the apartment. Defense counsel lamented to the judge the damage done but made no actual motion for a mistrial. Now, in retrospect, she contends that it incurably prejudiced Arenas’ case. We disagree.

To require a new trial, the prejudicial effect of improper matter, viewed in the context of that particular trial, must not be overwhelmed by evidence of guilt. A significant possibility must exist that, considering the other evidence presented by both the prosecution and the defense, the stricken statement had a substantial impact upon the verdict of the jury. See United States v. Kimbrell, 470 F.2d 280 (5th Cir. 1972); United States v. Ratner, 464 F. 2d 169 (5th Cir. 1972), and Odom. v. United States, 377 F.2d 853 (5th Cir. 1967). Thus we are called upon to view the single, spontaneous reference to the gram scale in relation to the evidence properly introduced against Arenas.

The government’s theory was that, according to plan, Arenas knowingly received the purchase price from one Garces-Montoyo, which he paid to Espi-nosa-Ochoa in return for a suitcase full of cocaine which he then delivered to Garces-Montoyo. Both Garces and Espi-nosa, the co-conspirators at either end of Arenas’ intermediary position, testified adversely to him. Garces stated on the witness stand that, pursuant to his instructions, he met with Arenas (who was operating under an assumed name), transferred to him a paper sack containing $18,000 to $19,000, and the next evening received from him a suitcase full of cocaine. Espinosa testified that, after his arrest by customs agents, he participated in a “controlled sale” of the suitcase full of cocaine to Arenas. Specifically, Espinosa recounted how, as arranged by their coded telephone conversation, he drove with the suitcase to Arenas’ hotel, picked him up, received the paper bag full of money from him, and gave him the suitcase. Espinosa recalled that when Arenas asked “how much” was in the suitcase he replied that it contained twenty-one packages without saying “of cocaine.” Defense counsel emphasized that both Garces and Espinosa testified that neither discussed with Arenas the amount of money in the paper sack or the precise contents of the suitcase.

The theory of the defense was that Arenas was innocently following the Colombian tradition of doing favors for friends without asking questions which might be taken as implying distrust. Arenas testified that a “Mr. Gustavo” in Columbia requested that he make these surreptitious transfers in Miami, under an assumed name, and that he blindly complied in order not to offend the sensibilities of one claiming to be an influential friend of his brother. He denied that he knew the contents of the paper bag or of the suitcase. Testimony by a customs agent that Arenas admitted he knew the suitcase contained cocaine was contradicted by Arenas.

While the mention of a gram balance might have been severely prejudicial had the crime as presented by the government among the alleged conspirators, splitting packages of cocaine or even an atmosphere of mistrust and measurement among the alleged conspirators, the scenario as presented by neither side indicated that a gram balance was necessary paraphernalia to Arenas’ role in the scheme. Certainly any prejudice is not of the magnitude existing when other crimes or prior misconduct are improperly injected by prosecution witnesses. See Ratner and Odom,, supra.

The reference to the scale was brief and cryptic. The prosecutor stated, after the jury was withdrawn, that the agent’s remark was spontaneous and unexpected, and the comments of the court indicate his belief that it was. A prompt and stringent instruction was given by the court and affirmatively acknowledged by the jury. Other evidence of guilt was strong, almost overwhelming. We are unable to find error, let alone plain error.

Affirmed.