author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Stephan KASOURIS, Sandra Lee Serifovski, a/k/a Sandra Lee McLamb, Defendants-Appellants.
    No. 71-3569.
    United States Court of Appeals, Fifth Circuit.
    March 7, 1973.

      Raymond E. LaPorte, Tampa, Fla., for Kasouris.
    Thomas D. Casper, Tampa, Fla. (Court-appointed), for Serifovski.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and TUTTLE and INGRAHAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

Appellants Stephan Kasouris and Sandra Lee MeLamb (now Serifovski) were indicted for conspiring to conceal material facts in an effort to defraud the Immigration and Naturalization Service of the United States. They were convicted for arranging a fraudulent marriage between Sandra and Kadri Serifovski for the purpose of qualifying Kadri, an alien, for the status of permanent resident. In pursuit of this scheme they conspired to execute change of status forms at the Immigration Office without disclosing the understanding that the marital partners would not live together as man and wife.

The trial tactics of the prosecutor, as evidenced by the record, indicate a disregard for the fundamentals of due process. Accordingly, the convictions must be reversed.

Kadri Kani Serifovski, a citizen of the Macedonian Province of Yugoslavia, entered the United States on December 28, 1968, under a Class B-2 visa which entitled him to remain for a period of six months. Kadri traveled to the home of his uncle in Clearwater, Florida. He there expressed a desire to seek status as a permanent resident since he had developed an abiding love for this country and feared returning to his communist homeland.

Neim Abdullaj, Kadri’s distant relative, questioned Dominic Titone, a local truck driver, about the possibility of finding a suitable marital partner for Kadri. Titone subsequently replied, intimating that he knew of an American citizen who was favorably inclined towards the proposal. Titone added: “It is going to cost us some money.”

As a consequence of this conversation Sandra and Kadri were introduced at a restaurant in St. Petersburg. A wedding was arranged and Kadri delivered $1000 to a lawyer, believing that a monetary gift to a bride was customary practice. The lawyer paid Sandra $50 for expenses and held the remaining sum in escrow to be given to Sandra following the marriage ceremony. Sandra was living with co-appellant Kasouris at all times material to this case.

Following a brief wedding ceremony, the small group assembled at the home of Kadri’s uncle. After conversing for approximately one-half hour, Sandra and Kasouris departed without a word of explanation to her groom. The newlyweds never lived together nor has the marriage ever been consummated.

Kadri was contacted by Immigration officials and was asked to appear with his wife to execute an application for reclassification of status. Kadri contacted Kasouris, who informed him that Sandra was in California and would need $340 for air fare to return. In fact, Sandra had not been in California but was living with Kasouris in St. Peters-burg Beach. Unaware of the deception, Kadri raised and delivered $300 to the lawyer’s office where it was eventually picked up by Kasouris. Kasouris secured the additional $40 from Neim Ab-dullaj.

Thereafter, Sandra appeared at the Immigration Office and filed the requisite forms which were subsequently approved.

During the course of the trial the prosecutor had assured the court and defense counsel that all Jencks Act statements of government witnesses would be tendered to the court. When asked if there was a Jencks Act statement regarding the witness Amza Abdullaj, the prosecutor replied that there was none, predicating his belief on the unsupported assumption that the document in his possession had not been signed nor adopted. The defense later renewed the request for production of the statement. At this time, the prosecutor reexamined his files and found the statement had indeed been signed.

Once the document had been delivered and was found by the court to be a Jencks statement, defense counsel moved for a mistrial. The judge denied the motion but did strike the testimony of the subject witness. Under the facts of this case, we feel that the interests of justice required the declaration of a mistrial.

The following quote from the Supreme Court’s decision in Palermo v. United States, 360 U.S. 343, 354, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1959), evidences the affirmative duty on the part of the prosecutor to deliver up statements which the prosecutor doubts are within the coverage of the Jencks Act:

“3. The statute itself provides no procedure for making a determination whether a particular statement comes within the terms of (e) and thus may be produced if related to the subject matter of the witness’ testimony. Ordinarily the defense demand will be only for those statements which satisfy the statutory limitations. Thus the Government will not produce documents clearly beyond the reach of the statute for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose.”

In the present case the government urges that nonproduction was due solely to the mere inadvertence of the prosecutor in failing to examine the document. Having been put on notice of the possibility that the statement fell within the Act, the prosecutor should have immediately tendered the document to the court for judicial scrutiny rather than adamantly denying the existence of a statement within the coverage of the Act. Failing to do so, the prosecutor had led us to believe that what may once have been characterized as mere inadvertence had over a period of two days of repeated demands and assurances turned toward deliberate suppression.

The statute does not vest in the government the unilateral power to determine without judicial supervision the question of whether or not the statement falls within the purview of the statute. When a controverted question of that kind arises, it is for judicial determination with the judge acting as arbiter. Bary v. United States, 292 F.2d 53 (10th Cir., 1961). Upon proper demand the issue of a statement’s susceptibility to production is controverted.

Paragraph (d) of 18 U.S.C. § 3500, provides as follows:

“If the United States elects not to comply with an order of the court to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.”

The prosecutor’s failure to deliver the document when first requested is deemed to be an implied election not to produce. While the trial court in the exercise of its discretion felt that a motion to strike the testimony of the witness was the appropriate remedy, we feel that the court should have gone one step farther and declared a mistrial.

The appropriate relief for a violation of the discovery rules lies within the discretion of the district court, yet the error may be so prejudicial to the substantial rights of the defendant as to necessitate a reversal. United States v. Saitta, 443 F.2d 830 (5th Cir., 1971), cert. denied, 404 U.S. 938, 92 S.Ct. 269, 30 L.Ed.2d 250 (1971).

Here the denial of an opportunity to impeach the highly damaging testimony of a government witness caused by the breach of the prosecutor’s duty to tender the statement to the court necessitates a reversal of Kasouris’s conviction.

Not content with proving the substantive elements of the offenses charged in the indictments, the prosecutor decided to bolster his case by eliciting testimony with regard to other acts of misconduct allegedly committed by both appellants. The overly broad application of the Similar Acts Doctrine employed in the trial court requires that both convictions be reversed and remanded.

The court allowed the prosecutor to examine witnesses with regard to Sandra’s purchase of traveler’s checks with the money she had received from Kadri. The prosecutor sought to show that Sandra had applied for a refund on the checks, fraudulently claiming that she had lost them. The prosecutor also sought to prove that both Sandra and Kasouris were engaged in a joint effort to extort money from a man in California under threat of releasing embarrassing photographs of the victim.

The judge ruled that evidence of the alleged acts was admissible under the Similar Acts Doctrine in order to establish the requisite intent to defraud the United States and negate the appellant’s allegation of innocence.

As a general rule the admission of a defendant’s prior acts of misconduct or illegal activities, for which he is not on trial, is not permitted. A well settled exception to the rule exists where prior similar acts are introduced to establish the requisite knowledge or intent to commit the act for which he is being tried. United States v. Alston, 460 F.2d 48 (5th Cir., 1972). The exception contemplates that the prior acts would in fact be similar. Similarity, being a matter of relevancy, is judged by the degree in which the prior act approaches near identity with the elements of the offense charge. There is no necessity for synonymity but there must be substantial relevancy for purposes other than to show the probability that the person committed the offense being tried because he is a man of criminal character. United States v. Johnson, 453 F.2d 1195 (5th Cir., 1972). To hold otherwise would allow the exception to engulf the rule.

In the present case, we need not decide the questionable admissibility of the testimony about the traveler’s cheeks since the admission of evidence regarding the alleged extortion attempt was an abuse of discretion. The connection between the crime charged and the alleged extortion is tenuous at best. The prejudicial effect of this testimony far outweighed any proper benefit to the prosecution.

The judgment of the district court is reversed and the case remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      . The Jencks Act, 18 U.S.O. § 3500(e) defines a statement as follows :
      “The term ‘statement’, as used in subsections (b), (c), and (d), of this section in relation to any witness called by the United States, means—
      “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
      “(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”

      . Our holding today is consistent with the Federal Rules of Evidence:
      Rule 403.
      EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
      Rule 404.
      CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
      H: * * * *
      (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. This subdivision does not exclude the evidence when offered for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Osborn OLDEN, Petitioner-Appellant, v. Louis S. NELSON, Respondent-Appellee.
    No. 72-1970.
    United States Court of Appeals, Ninth Circuit.
    Feb. 5, 1973.
    Osborn Olden, Samuel M. Haskins, San Francisco, Cal., for petitioner-appellant.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Gloria F. Dehart and Timothy A. Reardon, Deputy Attys. Gen., San Francisco, Cal., for respondent-appellee.
    Before BROWNING, ELY and WALLACE, Circuit Judges.
   PER CURIAM:

Olden, a state prisoner, appeals from the denial of a petition for habeas corpus pursuant to 28 U.S.C. § 2254. We affirm.

First, he contends that his mother’s house, in which he lived, was searched without consent. The record amply supports the finding of consent made by the district court. The record would also sustain a finding that the search was incident to and contemporaneous with a valid arrest.

Next, Olden contends that statements made by him following his arrest and admitted at trial, were obtained in violation of the rules established in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Neither case would assist Olden as they were decided subsequent to his trial and have no retroactive effect. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Further, even if either rule applied to this case, the error would be clearly harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


text:
    UNITED STATES of America ex rel. Fleming WOODARD, Appellee, v. STATE OF NEW JERSEY and Howard Yeager, the Principal Keeper of the State Prison at Trenton, New Jersey State of New Jersey, Appellant.
    No. 71-1147.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 4, 1972.
    Decided April 6, 1972.
    Certiorari Denied Oct. 10, 1972.
    See 93 S.Ct. 121.
    David S. Baime, Asst. Prosecutor, Newark, N. J., for appellant.
    Susan T. Sinis, Asst. Deputy Public Defender, Newark, N. J., for appellee.
    Before HASTIE and MAX ROSENN, Circuit Judges, and McCUNE, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This is an appeal by the State of New Jersey from an order of the District Court for the District of New Jersey granting a writ of habeas corpus to Fleming Woodard, a state prisoner who is confined pursuant to a conviction of armed robbery.

An in court identification of the accused by Mrs. Almodovar, the victim of the robbery, was a major part of the prosecution’s case against Woodard. The evidence showed that after Woodard had been arrested, he was paraded in handcuffs outside Mrs. Almodovar’s window for her observation and identification. Woodard did not have counsel at the time of this viewing. At the trial, which occurred after the decisions in United States v. Wade, 1967, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 and Gilbert v. California, 1967, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, Mrs. Al-modovar admitted on cross-examination that her in court identification was based in part upon her recollection of the hold-up and in part upon “seeing him for a much longer period of time the next day when he was paraded in front of . . . [her] building.” In the light of this admission the district court properly concluded that the in court identification was not independent of the uncounseled exhibition of the accused and, therefore, that under the rule of Wade and Gilbert the conviction to which that identification led could not stand. This reasoning is elaborated in the opinion of the district court and to us it is persuasive.

The district court also discussed the possibility that in court identification by Skopaz, a second eyewitness, may also have been influenced by the uncoun-seled exhibition of the accused. However, the district court did not decide this question, and neither do we. Accordingly, the parties will be free to raise and explore this issue before or during a new trial, if the state shall undertake to try the accused again.

The judgment will be affirmed.


text:
    Mrs. Geraldine STEWART et al., Plaintiffs, Mary K. McKague et al., Plaintiffs-Appellees-Cross-Appellants, v. ATLANTIC PIPE LINE COMPANY et al., Defendants-Appellants-Cross-Appellants, v. TEXAS GENERAL INDEMNITY COMPANY, Intervenor-Appellee.
    No. 72-1543.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Dale Dowell, Beaumont, Tex., for Atlantic Pipe Line Co. and others.
    Walter Umphrey, Port Arthur, Tex., for Mary K. McKague and others.
    John G. Tucker, Beaumont, Tex., for Texas General Indemnity Co.
    H. P. Wright, Port Neehes, Tex., for Geraldine Stewart and others.
    Before TUTTLE, WISDOM and GODBOLD, Circuit Judges.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

PER CURIAM:

In this petition for rehearing Atlantic Pipe Line asserts that the total damages awarded by the jury to Mrs. McKague and her four minor children included an award for exemplary damages and that this was improper inasmuch as Atlantic Pipe Line was not sued for exemplary damages. It is, of course, quite clear that the McKagues are not entitled to recover exemplary damages from Atlantic Pipe Line, but it is equally clear that they do not here claim such damages nor does our original decision in this case require the award of such damages.

The McKagues appealed from the final judgment of the district court, filed October 25, 1971, awarding to Mrs. Mc-Kague the sum of $100,000 and to each minor child $20,000. This reflected a reduction by the trial court of $30,000 from the verdict in favor of each child. The judgment, however, reflected only actual damages and the sole issue on appeal was whether the district court could unilaterally reduce by $30,000 the amount in actual damages which the jury found would properly compensate each minor child. We held that such a reduction was improper and on that basis remanded to the district court.

Obviously, then, there exists in this case no issue with respect to exemplary damages, none ever having been awarded by the district court and there being no error assigned by the McKagues on that account.

Accordingly, the petition for rehearing is denied and no member of this court in active service on the court having requested that the court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure, Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.


text:
    SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al., Appellants. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Appellee, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS et al., Appellants.
    Nos. 26696, 71-1390.
    United States Court of Appeals, Ninth Circuit.
    Jan. 23, 1973.
    Rehearing Denied Feb. 12, 1973.
    Certiorari Dismissed April 5, 1973.
    See 93 S.Ct. 1561.
    Harold A. Ross (argued), of Ross, Kraushaar & Bennett, Cleveland, Ohio, Victor A. Bertolani, of Bertolani & Smo-lich, Sacramento, Cal., for appellants.
    William R. Denton (argued), W. A. Gregory, John J. Corrigan, San Francisco, Cal., John V. Diepenbrock, Forrest A. Plant, of Diepenbrock, Wulff, Plant & Hannegan, Sacramento, Cal., for ap-pellee.
    Before ELY, CHOY, and GOODWIN, Circuit Judges.
   PER CURIAM:

The International Brotherhood of Electrical Workers appeals from a preliminary injunction against a work stoppage in a dispute with Southern Pacific Transportation Company concerning work assignments.

The identical legal questions now before this court were recently presented and decided in International Brotherhood of Electrical Workers v. Washington Terminal Company, 473 F.2d 1156 (D.C. Cir., 1972).

A comprehensive opinion authored by Judge MacKinnon traces the legislative and judicial history of the controlling legislation, and resolves, for the purposes of this dispute, the legal questions presented here. We agree with the conclusion of the District of Columbia Circuit that the work-assignment dispute involved in these cases is a “minor dispute” within the meaning of the Railway Labor Act, 45 U.S.C. § 153 (1970), and, accordingly, that its proper resolution is for the National Railroad Adjustment Board.

Affirmed.


text:
    Frank J. PARKER, Plaintiff-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-2327.
    United States Court of Appeals, Ninth Circuit.
    March 2, 1973.
    Frank J. Parker in pro. per.
    Joseph L. Ward, U. S. Atty., Daniel L. Ahlstrom, Asst. U. S. Atty., Las Vegas, Nev., for respondent-appellee.
    Before TRASK, CHOY and GOODWIN, Circuit Judges.
   PER CURIAM:

Parker appeals the district court’s denial of his petition for post-conviction relief under 28 U.S.C. § 2255. We affirm.

Appellant was indicted on three counts of sale of heroin and one count of facilitation of transportation and concealment of heroin. After the first day of deliberation on its verdict, the jury was allowed to go home and, in preparing to do so, handed the exhibits to the clerk. By inadvertence, amid the exhibits was interlaid the jury’s partially-completed verdict form indicating that appellant had been found guilty as to Counts 1 and 2. The foreman had not signed or dated the verdict.

The trial judge called the attention of the parties’ attorneys to the problem. The attorneys agreed to a dismissal of the third and fourth counts, the summoning and polling of the jury as to counts 1 and 2, and the signing and dating of the verdict. All of this was done, each juror affirming his finding of guilt on the first two counts.

In support of his petition, appellant charges inadequate representation by his trial counsel and prejudicial error in the handling of the uncompleted verdict.

The trial record covering four court days shows that defense counsel provided more than adequate representation to appellant in the face of overwhelming government evidence. Such representation can hardly be characterized a “farce or a mockery,” the standard applicable. Pinedo v. United States, 347 F.2d 142 (9th Cir. 1965).

The slight irregularity in the handling of the verdict form resulted in benefit rather than prejudice to appellant; the government dismissed two of the counts charged. Further, the jury was polled and confirmed the unanimous finding of appellant’s guilt on the other two counts.

The district court’s rejection of appellant’s contentions without hearing is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul John CARBO, Defendant-Appellant.
    No. 72-2399.
    United States Court of Appeals, Ninth Circuit.
    Feb. 23, 1973.
    John Paul Carbo, in pro. per.
    William D. Keller, U. S. Atty., Lawrence W. Campbell, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before HAMLIN and DUNIWAY, Circuit Judges, and WEIGEL, District Judge.

       Honorable Stanley. A. Weigel, United States sitting by designation. District Judge, Northern District of California,

   PER CURIAM:

Carbo appeals from an order denying his motion under Rule 35, F.R.Crim.P. to correct and reduce sentence, verse. We re-

On December 2, 1961, Carbo was sentenced to twenty-five years in prison. Notice of appeal was filed, and Carbo elected under Rule 38(a)(2) not to begin to serve his sentence. On May 16, 1962, he elected to begin serving the sentence. Carbo now seeks credit for the period between December 2, 1961, and May 16, 1962, that he spent in custody.

The district court denied Carbo’s motion on jurisdictional grounds. The court held that a motion under Rule 35 is not the proper remedy. The court pointed out that there has been no showing that the sentence imposed is illegal. The petitioner is therefore limited to a motion to reduce sentence; however, that motion must be brought within 120 days of the finality of the judgment, and this time had elapsed. The court went on to state that if the motion were to be considered as a petition either for a writ of habeas corpus or for a writ of mandamus, it must be brought in the district where the petitioner resides (the district serving Marrion, Illinois). The court consequently held that it lacked jurisdiction to entertain the motion.

We do not disagree with the district court’s holding that in this case a motion under Rule 35 is not available, or that habeas corpus may be an appropriate remedy. See Aldridge v. United States, 9 Cir. 1969, 405 F.2d 831. See also Comulada v. Pickett, 7 Cir., 1972, 455 F.2d 230. If Carbo were limited to habeas corpus, the district court would lack jurisdiction. However, there remains the question whether 28 U.S.C. § 2255 is available, and whether Carbo’s motion under Rule 35 may be considered as an application for relief under § 2255. In similar situations, this court has treated § 2255 as an available remedy. Myers v. United States, 9 Cir., 1971, 446 F.2d 232; Williams v. United States, 9 Cir., 1971, 440 F.2d 684. So have other circuits. Davis v. United States, 7 Cir., 1971, 446 F.2d 847; Bujese v. United States, 3 Cir., 1968, 404 F.2d 615. We accordingly hold that the district court should have treated the motion as an application for relief under § 2255, and therefore retained jurisdiction and decided the merits.

Reversed and remanded.


author: FRIENDLY, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Fairh RIGGS, Appellant.
    No. 513, Docket 72-2181.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 18, 1973.
    Decided Feb. 15, 1973.

      Martin D. Dehler, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., and Raymond J. Dearie, Asst. U. S. Atty., of counsel), for appellee.
    Henry B. Rothblatt, New York City (Rothblatt, Rothblatt, Seijas & Peskin, New York City, of counsel), for appellant.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   FRIENDLY, Chief Judge:

The sole question on this appeal from a conviction, in the District Court for the Eastern District of New York, for possessing two kilograms of narcotics with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), is the legality of the acts of law enforcement officers that led to the discovery of the narcotics. These included stopping the appellant, Fairh Riggs, at LaGuardia Airport and asking for identification, a consequent “plain view” of a plastic bag containing white powder in her purse and, finally, a search of her camera ease which disclosed the two kilograms of heroin. Although the incident arose in the context of a purported anti-hijacking investigation, we sustain the acts of the law enforcement officers on the basis that they had sufficient reason for suspecting Miss Riggs of a narcotics violation to authorize what was done.

On the basis of the testimony permissibly credited by the trial judge in his reported opinion denying appellant’s motion to suppress after an extensive hearing, United States v. Riggs, 347 F.Supp. 1098 (E.D.N.Y.1972), the facts were as follows: The events, all occurring on Sunday, September 26, 1971, began with the arrival of Miss Riggs, a young black female wearing a brilliant orange coat and carrying no luggage, at the Detroit Municipal Airport at about 8:45 A.M. She was accompanied by two males. At the American Airlines counter she bought three one-way tickets to New York and paid for them with cash which she produced from a brown paper bag. Her ticket was purchased in the name of “P. Griggs.” Since she met the “profile,” see United States v. Bell, 464 F.2d 667 (2 Cir. 1972), then being used by American Airlines, the clerk at the counter summoned a supervisor. By the time the supervisor arrived, one of the males had boarded; the other was still near the counter but he and Miss Riggs acted as if they did not know each other.

Both passengers were stopped before boarding the flight and were asked for identification. At first both denied having any, but later appellant produced some identification, perhaps a driver’s license, in the name of “Fairh Riggs.” The supervisor inquired what was in the brown paper bag; Riggs answered it was her lunch. He asked to check the bag, Riggs opened it, and he saw it was filled with “stacks of money.” The supervisor permitted her to board; the male passenger was also allowed to do so, after a frisk. Appellant’s counsel conceded at argument that none of these happenings at Detroit violated appellant’s Fourth Amendment rights.

Rendered suspicious by all of the above, the airline supervisor related the facts to Detective Schmidt of the Michigan State Police, who was headquartered at the airport. Detective Schmidt testified that the large amount of cash Miss Riggs was carrying, and the unusual way in which she was carrying it, led him immediately to suspect that she was engaged in narcotics traffic. A check revealed that while the state police had no record for “P. Griggs”, they did have one for Cynthia Joyce Griggs, also known as Betty Jackson, a young black female who had been arrested in 1966 on a narcotics charge but whose case had been dismissed after the main prosecution witness was murdered. The Detroit Police Department reported that Cynthia Joyce Griggs had been recently arrested with nine other persons on a narcotics charge as a result of a search of her apartment which also turned up three handguns and a shotgun, and that she was currently on bail. The Detroit office of the Federal Bureau of Narcotics and Dangerous Drugs confirmed that Cynthia Griggs was known to them as a narcotics dealer.

Believing, not unreasonably, that the “P. Griggs” ticketed on the flight might in fact be Cynthia Joyce Griggs, Detective Schmidt passed on to Detective Stone of the Port of New York Authority Police at LaGuardia Airport all the information that had been collected. Plainclothesmen dispatched to meet the flight from Detroit reported that the woman had left in one taxi and the two men in another. Detective Stone then notified each of the airlines and the United States Marshal’s anti-hijacking detail at LaGuardia of all the above and of the likelihood that the three might be returning after having made a buy of narcotics; he added, apparently only on the strength of the Detroit Police report, that they might be carrying weapons.

About 1:40 P.M. an American Airlines supervisor at LaGuardia telephoned Detective Stone that a woman fitting the description of P. Griggs had purchased with cash a one-way ticket for a 1:55 flight to Detroit and was in the lobby at Gate 9. Stone instructed the supervisor to call the United States marshals while he and his partner proceeded to the Gate.

The supervisor called Deputy Marshal Huttick, who had been informed of the facts earlier related by Detective Stone; he told Huttick that a woman matching Griggs’ description was in the lobby at Gate 9 awaiting a return flight to Detroit, mentioned that on this occasion the ticket had been bought in the name of “Fairh Riggs,” and added that she met the “profile.” Huttick and his partner O’Flaherty immediately went to Gate 9. Riggs had already entered the jetway, but they stopped her before she boarded the plane. They showed their credentials and said they were making a security cheek. O’Flaherty asked to see the plane ticket, found it was indeed in the name of “F. Riggs,” and asked for some verification. Placing on the floor in front of her a leather camera case which had previously been strapped over her shoulders, appellant opened her purse and produced a utility bill bearing the name “Farah Jackson.” O’Flaherty asked for better identification. Appellant again opened her purse, wider this time; both marshals saw on the top a clear plastic bag containing white powder. Riggs fumbled with her purse for a. few seconds and pulled out a letter from the utility company also addressed to “Farah Jackson.” O’Flaherty then flipped open the top of the camera case, saw two plastic bags filled with white powder, and money stuck underneath the bags and on the sides. Miss Riggs, her pocketbook and camera bag were taken to the marshal’s office, where field tests confirmed that the bags contained 1.9 kilograms of 75% pure heroin. Riggs was then formally placed under arrest.

Appellant argues that because the American Airlines “profile” did not quite conform to the Federal Aviation Administration profile discussed in United States v. Lopez, 328 F.Supp. 1077 (E.D.N.Y.1971) and United States v. Bell, supra,, 464 F.2d 667, and because the marshals did not in good faith believe that Riggs constituted a threat to the security of the airplane, there was no justification for anti-hijacking measures. We need not pass upon these arguments, nor on the question, raised in United States v. Meulener, 351 F.Supp. 1284 (C.D.Cal.1972), how clearly the subject of an anti-hijacking search must be warned that he can avoid the search by declining to board the airplane. See also United States v. Bell, supra, 464 F.2d at 675 (Friendly, C. J., concurring). For we hold that the Deputy Marshals’ request for identification as appellant attempted to board her return flight was justified, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), by their reasonable suspicion that Riggs was in fact Cynthia Joyce Griggs and had made a purchase of narcotics which she was about to transport to Detroit with a view to distribution, and that their search of her camera case was justified both by the probable cause which they then possessed to arrest her for that crime and by their reasonable suspicion that she might be armed.

A number of “specific and articulable facts,” Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 provided an adequate basis for the marshals’ reasonable suspicion to justify the minimal intrusion upon appellant’s privacy represented by a request for identification. We start with her purchase of airplane tickets, with cash taken not from a purse but a brown paper bag, and the efforts of appellant and her two companions to avoid any appearance of recognition. Compare United States v. Canieso, 470 F.2d 1224, 1226, 1230 (2 Cir. 1972). We add her carrying “stacks of money,” doing this in a brown paper bag, and lying about the bag’s contents to the Detroit airline supervisor. This was enough to create the suspicion that appellant was going to New York on no ordinary errand but on one for which large sums of cash on the barrelhead would be needed — something characteristic of narcotics purchases, as the Michigan state police detective knew from his experience in similar situations. These suspicions were confirmed when Riggs returned to LaGuardia Airport — only two hours after arrival — with the brown paper bag now accompanied or supplanted by a camera case — and bought a ticket back to Detroit.

Arguably this alone would have sufficed to justify a demand for identification under Adams v. Williams, supra, 407 U.S. at 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612, but we need not so decide. Appellant’s eastbound ticket had been in the name of “P. Griggs.” The police could reasonably have been suspicious under the circumstances that this was another alias designed to conceal that appellant was really Cynthia Joyce Griggs, with her record of arrests for narcotics offenses and reputation as a narcotics dealer. Appellant’s purchase of her return ticket in the name “F. Riggs” only added to the cohfusion surrounding her real identity. And when, in response to the marshal’s initial inquiry, she presented identification in the form of a utility bill addressed to “Far-ah Jackson,” a name not tallying either with that on her incoming or her outgoing ticket, this increased the confusion and heightened the suspicion that she might be Cynthia Joyce Griggs, since Michigan State Police records had revealed that the latter also used the alias Jackson. Deputy Marshal O’Flaherty was thus quite justified in demanding further identification — a demand that led to the opening of the purse and the “plain view” of the bag of clear white powder. Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. 1921, 32 L.Ed.2d 612.

At this time the Deputy Marshals had probable cause to arrest appellant for a narcotics offense. If they had done so, a search of the camera case would have been justified under the “grabbing-distance” principle of Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, Riggs was not formally placed under arrest until after tests confirmed that the white powder was heroin, and the Government does not contend that Riggs was arrested de facto prior to the search of the camera case, although we suspect that her chances of being released without being arrested were exceedingly poor. In United States v. Gorman, 355 F.2d 151, 159-160 (2 Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966), we left open the question whether an incidental search which would have been justifiable after an arrest is equally so when there was probable cause for arrest but arrest was postponed; we indicated that, absent controlling contrary authority, of which there then was none, we would follow Mr. Justice Traynor in People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531, 533 (1955), and uphold such a search. The justification for such an intrusion is the probable cause to believe that the individual has committed a crime and the need for immediate action to prevent the use of weapons against the arresting officer or destruction of evidence of the crime, see Chimel v. California, supra, 395 U.S. at 763, 89 S.Ct. 2034, 23 L.Ed. 2d 685; postponement of the further intrusion of arrest does not remove the justification for the search and in no way prejudices the individual’s Fourth Amendment rights. Subsequent authorities have now established that view as firmly as anything short of a Supreme Court decision can. See Bailey v. United States, 128 U.S.App.D.C. 354, 389 F.2d 305, 308 (1967) (Wright, J.) (dictum); id. at 316 (Leventhal, J., concurring); Henderson v. United States, 405 F.2d 874, 875 (5 Cir. 1968), cert. denied, 395 U.S. 906, 89 S.Ct. 1747, 23 L.Ed.2d 219 (1969); United States v. Skinner, 412 F.2d 98, 103 (8 Cir.), cert. denied, 396 U.S. 967, 90 S.Ct. 448, 24 L.Ed.2d 433 (1969); United States v. Thomas, 432 F.2d 120, 122 (9 Cir. 1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 587, 27 L.Ed.2d 634 (1971); United States v. Brown, 463 F.2d 949, 950 (D.C. Cir. 1972); United States ex rel. Farrugia v. Bhono, 256 F.Supp. 391 (S.D.N.Y.1966) (Weinfeld, J.). We therefore hold that the marshal’s search of the camera case was a valid search based, on probable cause for appellant’s arrest and the fruits of the search were fully admissible against her.

Beyond that, there is another basis for upholding the marshal’s cursory examination of the camera case. The plain view of the plastic bag containing white powder, along with the other circumstances we have noted, justified the marshals in detaining appellant for the short interval needed to subject the powder to chemical analysis. Terry held that “When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,” he may conduct a limited protective search for concealed weapons, 392 U.S. at 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889, and the Court reaffirmed this in Adams v. Williams, supra, 407 U.S. at 146, 92 S.Ct. 1921, 32 L.Ed.2d 612. Here the camera case was on the floor directly in front of appellant; it was unlocked; the top needed only to be “flipped” open to get inside it. If the camera case had in fact contained a weapon, Riggs could have easily and quickly grabbed it. Moreover, the marshal’s initial search was carefully limited to the quick inspection of the camera case necessary to determine if it contained a weapon. It may be true, as the district court noted, D.C., 347 F.Supp. at 1103, that “the belief that this defendant might be carrying a weapon rested upon fragile grounds,” but courts should not set the test of sufficient suspicion that the individual is “armed and presently dangerous” too high when protection of the investigating officer is at stake. Although the deputy marshals had not received such a specific warning about the present possession of weapons as that in Adams v. Williams, the report of Detective Stone did give reason for fear that Riggs might be carrying a weapon, and their own investigation, during which they had observed her to be carrying what they reasonably and correctly believed to be heroin, and during which she had identified herself with the name “Jackson,” tended to corroborate their suspicions that appellant might in fact be the Cynthia Joyce Griggs who was considered dangerous by the Michigan and Detroit police. Finally, that the marshals were in fact genuinely concerned by the possibility that Riggs was armed is confirmed by their actions immediately following the quick check of the camera case; since regulations prohibited them from frisking a female, they walked her through a magnetometer to determine if she were carrying a concealed weapon.

Affirmed.

      . The camera bag was later found by the marshals to contain $4800 in cash.

      . Appellant does not contend that the marshals lacked authority to make an investigatory stop apart from their powers under the anti-hijacking program. There would be no merit in such a contention. 18 U.S.C. § 3053 provides that “United States marshals and their deputies . . . may make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States . . . .” Although this statute does not. in terms give marshals authority to make investigatory stops, we think that the power to take reasonable law enforcement steps short of, but which may well lead to an arrest can be fairly implied from the grant of powers of arrest. Cf. United States v. Krapf, 285 F.2d 647, 650 (3 Cir. 1960). It should be noted that although many states have enacted specific grants of stop and frisk jiowers since the Supreme Court’s decision in Terry v. Ohio, supra, the majority of states still do not provide explicit statutory authorization for, the stop and frisk, considering these powers to derive from the police’s general law enforcement authority. See ALI, A Model Code of Pre-Arraignment Procedure 105-06 (Official Draft No. 1, 1972).
      It is true that 28 U.S.C. § 570 provides that “A United States marshal and his deputies, in executing the laws of the United States within a State, may exercise the same powers which a sheriff of the State may exercise in executing the laws thereof,” and that the New York stop and frisk law, N.Y.Crim.Proc. Law § 140.50 (McKinney 1971), does not include “sheriffs” within New York City within its grant of authority, see id. § 1.20(33), (34). But § 570 should not be construed as a limitation on the powers otherwise possessed by federal marshals, see United States v. Krapf, supra, 285 F.2d at 650, particularly in this case sincé § 3053 is a later statute which was intended to provide congressional authorization for the powers of United States marshals independent of the vagaries of state laws. See H.R.Rep. No. 283, 74th Cong., 1st Sess. 2 (1935). Moreover, § 570 is derived from the Act of February 28, 1795, ch. 36, § 9, 1 Stat. 425, passed at a time when the word “sheriff” referred to the general law enforcement authority of the state. It seems likely that the meaning of “sheriff” in § 570 is properly to be supplied by reference to this congressional understanding rather than by state law; Congress could not have intended that the drastic narrowing of the traditional role of the sheriff, at least in New York City, as his functions were assumed by police officers, should correspondingly reduce the powers of federal marshals.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sidney ROSENSTEIN et al., Defendants-Appellants.
    Nos. 111, 112, Dockets 72-1092, 72-1190.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 14, 1972.
    Decided Jan. 26, 1973.

      James M. LaRossa, New York City (Gerald L. Shargel and Ronald P. Fis-chetti, New York City, on the brief), for defendants-appellants, Sidney Rosenstein and Mclnerney Sales, Inc.
    Norman S. Ostrow, New York City (Royall, Koegel & Wells, James B. Weid-ner and James M. Ringer, New York City, of counsel), for defendants-appellants, Irving Braverman and Foremost Brands, Inc.
    Gary P. Naftalis, Asst. U. S. Atty., New York City (Whitney North Seymour, Jr., U. S. Atty., S.D.N.Y. and Gerald A. Feffer and John W. Nields, Jr., Asst. U. S. Attys., New York City, of counsel), for plaintiff-appellee.
    Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

These are appeals by Sidney Rosen-stein, Irving Braverman, Foremost Brands, Inc. and Mclnerney Sales, Inc. from judgments of conviction entered in the United States District Court for the Southern District of New York on January 11, 1972 after trial before Hon. Thomas F. Croake, United States District Judge, and a jury. Judgments affirmed.

The Indictment filed on December 4, 1968 contained 13 counts. Count 1 charged all defendants with conspiracy to defraud the United States of federal income taxes and to commit offenses against the United States in willfully evading income taxes in violation of Title 26, United States Code, Section 7201 and in violation of Title 18, United States Code, Section 2, by aiding and abetting such violations. The balance of the counts were for substantive violations of these sections by the individual and corporate defendants. All were found guilty of the conspiracy counts and the applicable substantive counts. On January 11, 1972, Judge Croake imposed the following sentences:

Sidney Rosenstein, 18 months in prison concurrently on each count, a total fine of $100,000 plus one-half the cost of prosecution;

Irving Braverman, 18 months in prison concurrently on each count, a total fine of $100,000 plus one-half the cost of prosecution;

Mclnerney Sales, Inc. and Foremost Brands, Inc. were each fined a total of $40,000;

Rosenstein and Braverman are presently enlarged on bail and payment of fines and costs has been stayed pending appeal.

I. THE FACTS

The investigation of this complicated case was commenced by Internal Revenue Service in 1964 and did not terminate until late in 1967. It involved interviewing a great number of witnesses in the United States as well as foreign nationals in Switzerland and Liechtenstein. In a trial which lasted six weeks, the Government presented some 75 witnesses and over 1000 documents as exhibits. The defendants did not testify.

The Government’s proof established without any doubt that from May, 1960 until 1967 Braverman and Rosenstein and their wholly owned corporations, Foremost and Mclnerney, brazenly and fraudulently evaded United States income taxes by creating a dummy Liechtenstein corporation, called Continental Trade Establishment (CTE), to which they diverted payments of $1.6 million in commissions from October 1, 1961 to January 31, 1965 and which, in turn, were deposited in a secret account at the Bank Leu, Zurich, Switzerland.

Braverman and Rosenstein and their corporate alter egos, Foremost and Mc-lnerney, acted as sales representatives for American manufacturers in the sale of their products to United States Military Post Exchanges throughout the world. In return for their services, they received commissions of about 6% on gross sales. In May, 1960, Braverman and Rosenstein created CTE in Liechtenstein and opened an account at the Bank Leu in Zurich. Their American clients were then asked to make all commission cheeks on sales to overseas PX’s payable to CTE and to forward them to Dr. Herbert Batliner, Haupstrasse 22, Vaduz, Liechtenstein, instead of to Foremost or Mclnerney, the previous payees. Sometime in 1966 the instructions were changed and the checks were forwarded to Dr. Alfred Buehler at the same Liechtenstein address. Batliner and Buehler were both Liechtenstein attorneys and Haupstrasse 22 was a two-story building which housed Batliner’s law office and a shoe store. Representatives of 42 American manufacturers testified at trial as to the payment arrangements and the Government produced checks, payable to CTE and deposited in the Swiss Bank, totalling $1,604,409.59 for foreign PX commissions from October 1, 1961 through January 31, 1965. It is not disputed that no United States income taxes have ever been paid by the appellants on these commissions.

The evidence of the Government that CTE was utilized as a shell and a device for the appellants and was not in fact a viable operating entity, was overwhelming. A dozen American manufacturers were advised by Rosenstein, Braverman or their employees that CTE was actually their company. All the activities performed by Rosenstein and Braverman prior to May, 1960, continued. The same cast of characters continued to travel to European PX’s, displaying samples and catalogues and arranging appointments between buyers and sellers. PX representatives testified at trial and produced log books from Wies-baden and Nuremberg, Germany, the buying centers for the military establishment where sales representatives were required to check in. This testimony and these documents establish that while Rosenstein and Braverman continued to appear for their American clients, no one ever heard of or met either Batliner or Buehler who apparently never appeared to represent their company. Only one of the 15 PX buyers who testified had even heard of CTE. Even more telling is the testimony of Peter Roussos and Robert Naar, exclusive resident representatives for Foremost in parts of Europe from 1960 to 1964. They testified that only Braver-man and Rosenstein or themselves represented the 42 American manufacturers whose commission checks to CTE constitute the basis for this indictment. Neither was ever employed by CTE and in fact neither had ever heard of CTE. There is no indication that CTE ever performed any services. In fact there is evidence to establish that Braverman and Rosenstein had CTE stationery and cards printed. ,The correspondence and contracts, prepared on these letterheads, were signed by their employees, falsely identifying the employees as CTE officers. Rosenstein also directed that Bat-liner’s signature be forged on these letters. When he learned of this, Batliner resigned as a CTE director to be replaced by Buehler. The evidence of the PX representatives, the American manufacturers and the employees of Foremost and Mclnerney, plus the obvious efforts of Rosenstein and Braverman to create an appearance of activity amply demonstrate the charade. The reading of a voluminous record compels the conclusion that CTE had only one function: it was the receptacle of the income earned by the appellants from their representation of American producers of goods sold to foreign post exchanges. It was created by the defendants in an elaborate but futile effort to avoid American income taxes.

The principal argument raised on appeal is that the admission into evidence of the records of CTE, Government Exhibits 1020-23 and 1025-29, constituted reversible error.

II. THE LIECHTENSTEIN DOCUMENTS

a) The Business Records Exception

The exhibits in question were produced toward the close of its case, by a Government witness, Dr. Peter Monauni, one of three Liechtenstein attorneys resident at Haupstrasse 22, Vaduz, Liechtenstein. Dr. Batliner had refused to come to the United States at the time of the trial to testify. Instead he sent Dr. Monauni who had been associated with him for ten years. Dr. Monauni’s direct testimony bolstered the other evidence in the case as to CTE’s true character. He knew it simply as a client of his firm; to his knowledge it conducted no business of any description at the law office headquarters except for the forwarding of mail and checks.

Monauni produced a CTE file containing Exhibits 1020-23 and 1025-29. The Government offered the documents under the business records exception to the hearsay rule, 28 U.S.C. § 1732. Essentially the statute provides that any writing or record, made as a memorandum of any act, transaction, occurrence or event, if made in the ordinary course of one’s business and if it was the regular course of such business to make such record at the time or reasonably thereafter, is admissible as evidence of the act, transaction, occurrence or event. We agree with the appellants that the documents were not properly admissible under the statutory business record exception. The fact that Dr. Monauni did not personally keep the books and records would not render them inadmissible (United States v. New York Foreign Trade Zone Operators, Inc., 304 F.2d 792, 796 (2d Cir. 1962)), but someone who is sufficiently familiar with the business practice must testify that these records were made as part of that practice. United States v. Delgado, 459 F.2d 471, 472 n. 5 (2d Cir. 1972); Cullen v. United States, 408 F.2d 1178 (8th Cir. 1969); United States v. Dawson, 400 F.2d 194, 198-199 (2d Cir. 1968), cert. denied, 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed. 567 (1969). Dr. Monauni’s testimony did not rise to this level of requisite knowledge. He not only did not keep the records, he did not even know from his own personal knowledge that they were kept in Batliner’s office. He did not testify to the business practice of CTE or that it was the practice to keep the documents which were introduced.

Some of the Liechtenstein documents were letters from third parties who clearly were not working for CTE. They “were not made in the regular course of the business of the company in whose filéis they were found .” Phillips v. United States, 356 F.2d 297, 307 (9th Cir. 1965), cert. denied, 384 U.S. 952, 86 S.Ct. 1573, 16 L.Ed.2d 548 (1966). The requirements of the Business Records Rule are not fulfilled by a showing that the addressee routinely kept a file of such correspondence. It must appear that the letter was written in the regular course of its author’s business. See Johnson v. Lutz, 253 N.Y. 124, 170 N.E. 517 (1930).

While the records were not admissible as business records, we cannot agree with the appellants’ contention that we cannot sustain their admission on the basis of some other exception to the hearsay rule. The rule stated by Wig-more is “[a]n offer of a fact for an inadmissible purpose A is properly excluded, though the same fact would have been admissible for purpose B.” 1 J. Wigmore, Evidence § 17, at 320 (3d ed. 1940) (emphasis in original, footnote omitted). (See People v. Zackowitz, 254 N.Y. 192, 200, 172 N.E. 466 (1930)).

The Government now urges that these documents are admissible either as admissions by the defendants or as declarations by conspirators, which like the Business Records Rule are further recognized exceptions to the hearsay rule. Here there is no difference in the purpose for which the evidence is sought to be admitted on the alternative grounds. The purpose of admission under any such exception is to establish the truth of that which is contained in the declaration which otherwise would be hearsay. This distinguishes Shepard v. United States, 290 U.S. 96, 54 S.Ct. 22, 78 L.Ed. 196 (1933) and United States v. DeMasi, 445 F.2d 251 (2d Cir.), cert. denied, 404 U.S. 882, 92 S.Ct. 211, 30 L.Ed.2d 164 (1971), relied upon by appellants.

Shepard was a case in which an army officer had been accused of murdering his wife by adding bichloride of mercury to her liquor. There was testimony that the sick wife made the statement “Dr. Shepard has poisoned me.” She also inquired if there was enough of the liquor left to have tests made. These statements were offered as dying declarations, an exception to the hearsay rule. Since there was a lack of evidence that the declarant spoke without hope of recovery, the statements were held by the Supreme Court to be not admissible for their truth as dying declarations. The Government argued alternatively that the statements were admissible for a different purpose, to wit, they were admissible to rebut evidence of defendant’s witnesses that the victim had suicidal tendencies since the statements indicated a will to live. The alternative purpose was clearly untenable since no limiting instructions had been given to alert the jury to the different purpose for which the evidence was offered. Had the conviction been sustained the prejudice to the defendant from the admission of the accusation now urged as simply indicative of a will to live and no more, is obvious. As Mr. Justice Cardozo observed in characteristic language “The reverberating clang of those accusatory words would drown all weaker sounds.” Shepard v. United States, supra, 290 U.S. at 104, 54 S.Ct. at 25.

DeMasi is like unto Shepard. There the Government offered certain statements made by a decedent to two witnesses. The statements were offered for their truth as exceptions to the hearsay rule. On appeal this court found that the declarant was not a conspirator and his statements were inadmissible hearsay. The Government’s alternate argument that the statements were admissible for another purpose, was rejected: “The Government’s alternate theory to justify the admissibility of the declaration, that the statement was relevant to prove the victim’s state of mind, was not suggested at trial, and the court did not instruct the jury with reference to it; therefore we will not consider it.” United States v. DeMasi, supra, 445 F.2d at 256 (emphasis added and footnote omitted).

The situation we encounter here is clearly distinguishable. The alternative theories proposed are equally exceptions to the hearsay rule. The Government is asserting that the documents are admissible for the same purpose, to establish the truth of what they say. No different or other limiting instruction to a jury was necessary no matter what the theory of admission. The prejudice of the lack of such instruction, so clear in Shepard and De-Masi, is not at all present here.

b) Declarations of Co-Conspirators

If the documents were admissible as declarations of a conspirator, appellants argue that the trial court would have had to find that the defendant’s participation in the conspiracy had been established by a fair preponderance of the evidence aliunde. United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); Levie, Hearsay and Conspiracy: A Reexamination of the Co-conspirators’ Exception to the Hearsay Rule, 52 Mich.L.Rev. 1159, 1176-78 (1954); Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 922, 987 (1959).

Since the documents were not offered as declarations of conspirators there was no occasion for Judge Croake to find on the record that each of the defendants was a member of the conspiracy. We believe that the evidence submitted by the Government prior to' the admission of the disputed documents fully supported such a finding. The testimony of the representatives of the 42 American manufacturers clearly established by a fair preponderance of the evidence, the test here applicable, that Braverman and Rosenstein had jointly contacted all of their American clients requesting that commission checks theretofore payable to either Foremost or Mclnerney be made payable to CTE. Moreover, representatives of Ideal Toy, North Shore Sportswear, Genesco, Leeds Travelwear, Burlington Industries, To.bin-Hamilton, National Togs, Blue Bell, Inc., Prince Gardner Wallets, Adler Company, and My Toy Company testified that Rosenstein, Braverman or their employees advised them that CTE was Braverman’s and Rosenstein’s company. The testimony of PX employees that despite the 1960 change to CTE, the same personnel continued to represent Foremost and Mclnerney and that Batliner, Buehler and CTE were unknown to them, was further proof that CTE was a shell devised by the defendants to siphon off commissions. In addition to all of this, some of the documents which will be discussed later in this opinion were admissible in any event as admissions. The fact that some of these exhibits might have been admitted after the co-conspirator documents is not material since it is well established that the determination as to whether the prosecution has laid the foundation for the admission of the co-conspirator’s statements can be made at the close of the Government’s case. United States v. Geaney, supra, 417 F.2d at 1120; United States v. Sansone, 231 F.2d 887 (2d Cir.), cert. denied, 351 U.S. 987, 76 S.Ct. 1055, 100 L.Ed. 1500 (1956).

In our view Judge Croake could have properly made the determination that the Government had laid a proper foundation for the admission of these documents as statements of co-conspirators made in furtherance of this continuing scheme to defraud the United States of taxes. The fact is that he made no such ruling and none was requested. We nonetheless hold that this court can made the post hoc determination on appeal.

We should emphasize that the function of determining whether or not the proper foundation for the admission of these documents has been made is judicial and that the jury may not properly reassess the propriety of the court’s determination. United States v. Ragland, 375 F.2d 471, 478-479 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1963); Carbo v. United States, 314 F.2d 718, 735-738 (9th Cir. 1968).

It is difficult to see what value the declarations could have as proof of the conspiracy, if before using them the jury had to be satisfied that the declarant and the accused were engaged in the conspiracy charged; for upon that hypothesis the declarations would merely serve to confirm what the jury had already decided. United States v. Dennis, 183 F.2d 201, 230-231 (2d Cir. 1950) (L. Hand, J.), aff’d on other grounds, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951).

In sum, the determination by an appellate court that the documents could appropriately have been found admissible by the trial judge, as statements of co-conspirators, does not in any way impinge upon any jury function. No instructions of the trial judge were necessary either to caution the jury as to any limited purpose for which the documents were received or that they might review his assessment that a proper foundation was laid. It is difficult therefore to see any impropriety in now accepting alternate bases for admission of the questioned documents, any objections sought to be levelled on the alternative grounds can and have been made here.

There is authority for our position. Orser v. United States, 362 F.2d 580 (5th Cir. 1966), is directly in point. The trial court, over objection that statements made in the presence of the defendant were hearsay, admitted them on the theory that it was an accusation made against the defendant and since he had not denied them, they were admissible as implied admissions. On appeal, the court found them not to be admissible on this basis, but nevertheless admissible as declarations by co-partners in crime. Even though the trial court had made no finding that a conspiracy existed, the appellate court found that there was ample evidence of the conspiracy upon' which the trial court could have predicated such finding, hence no prejudice could be found. 362 F.2d at 585-586.

c) Admissions

We further find that many of the documents which were admitted were admissible in any event as admissions. For example, many are letters containing directions to Batliner and Buehler to execute contracts, and establish that Rosenstein and Braverman were the operating executives of CTE. Most incriminating is Exhibit 1025, a letter signed by both Rosenstein and Braverman addressed to Batliner in which they describe themselves as “equal partners and holders of the founder rights” of CTE.

After an examination of these exhibits we are convinced that the vast majority of the documents admitted were admissible either as admissions or statements in furtherance of the conspiracy. Those which were not do not in our view constitute prejudicial error in light of the overwhelming proof of the Government. There is no real problem of authenticity here since the letters and documents which were admissible were signed by either Rosenstein or Braverman or both. That the signatures were those of the defendants was virtually conceded at trial. The argument now made that making an issue of their validity on trial would have increased the importance of these documents in the minds of the jury, is not at all persuasive. In view of the admittedly inculpatory character of the documents, it is inconceivable that tactical considerations would have prevented defendants from controverting their authenticity. It is further relevant that the Government had handwriting experts available to establish that the signatures were genuine in the event that their validity was questioned.

II. OTHER ARGUMENTS

a) Attorney Client Privilege

The appellants have raised several other arguments on appeal which are of less substance. The claim is made that the use of the CTE documents and the testimony of Dr. Monauni constituted a violation of the attorney-client relationship. Although Batliner and Buehler were attorneys, the posture of the defendants has been decidedly ambivalent as to their true roles. The theory of their defense initially at least, was that Batliner and later Buehler were businessmen operating a bona fide successor firm to Foremost and Mclnerney, engaged in the business of representation of American firms selling goods to European PX’s. The letters for the most part reveal that they were in fact puppets who were being directed by Braverman and Rosenstein to sign contracts, forward cheeks to Bank Leu, order business cards and to arrange for letters of credit. Batliner’s letters are routine responses and requests for authority to pay Liechtenstein taxes. “Where an attorney and his client are engaged in business dealings as was the case here the attorney-client rule does not apply.” Lowy v. Commissioner, 262 F.2d 809, 812 (2d Cir. 1959).

Appellant Braverman argues that Ex. 1025 is privileged. This is the letter signed by both individual defendants in which they describe themselves as equal partners in CTE and advise Batliner of Buehler’s appointment to the administrative board of CTE as well as naming another anstalt as the representative of CTE. Batliner is directed in the letter to make the necessary “decisions” concerning the change of residence and in the board and to have these “decisions” registered with the Trade Registry in Vaduz. Despite the use of the word “decisions” it seems evident that Batliner was in fact confronted with a decision previously made by the defendants and simply ordered to perform the ministerial task of amending corporate records.

Even if we make the assumption that the letter represents what would be a privileged communication and not a routine business arrangement, the privilege does not protect communications during the commission and in furtherance of the felony. United States v. Bob, 106 F.2d 37, 40 (2d Cir.), cert. denied, 308 U.S. 589, 60 S.Ct. 115, 84 L.Ed. 493 (1939). The suggestion that since there was no crime committed in Liechtenstein, the attorney-client privilege remained intact, is not at all persuasive. The privilege is that of the client who in this case are American citizens whose scheme to evade United States income taxes is unquestionably criminal. The situs of their attorneys or of the documents produced here is irrelevant. The evidence of the criminal conspiracy here dehors this document is in any event substantial, as we have previously indicated.

b) Constitutional Right of Privacy

Appellants argue that the Liechtenstein documents were improperly seized in violation of their Fourth and Fifth Amendment rights. We find that there was no “seizure” of corporate records here by governmental agents. Monauni appeared with the records Bat-liner had turned over to him and Government Agent Brozen, who accompanied him to the United States, testified that he was unaware of the fact that Monauni had even brought the file until he arrived. There is no showing here of “official misconduct” which would trigger Fourth Amendment rights and attendant exclusionary rules. Coolidge v. New Hampshire, 403 U.S. 443, 487-488, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The request for an evidentiary hearing on this question was properly denied. Agent Brozen was thoroughly examined on this point in the trial. The defense motion to depose Batliner before trial under Fed.R.Crim.P. 15 was properly denied by Judge Tenney (United States v. Rosenstein, 303 F.Supp. 210, 212 (S.D.N.Y.1969)) since the only allegation made to support the motion was that counsel had “reason to believe” that Bat-liner would not attend any trial in the United States. This was deemed insufficient to establish factually that the witness could not be present. This determination was properly within the discretion of the judge. United States v. Birrell, 276 F.Supp. 798, 822 (S.D.N.Y.1967). During the course of the trial when counsel for the defendant during his cross-examination of Monauni, indicated his interest in examining Batliner, the Government indicated that Batliner had stated that he would not testify at that time. However, the Government twice offered, in the presence and out of the presence of the jury, to accompany defense counsel to Liechtenstein to take his deposition. The offer was not accepted. The argument that appellants were deprived of their right to confront Batliner is not supported by the record.

It is not disputed that a corporation has no Fifth Amendment privilege (Wilson v. United States, 221 U.S. 361, 384-385, 31 S.Ct. 538, 55 L.Ed. 771 (1911)); and in any event neither Rosenstein nor Braverman, even though they were the alter egos and sole owners of CTE, can assert Fifth Amendment privileges when corporate records are used against them. United States v. Fago, 319 F.2d 791 (2d Cir. 1963). Even viewed as personal papers rather than as corporate records, we find no Constitutional violation. The papers were in the possession of Batliner who surrendered them through Monauni without Government compulsion. The documents were not privileged and we find no legitimate expectation of privacy or confidentiality under the Fourth or Fifth Amendments. Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973).

c) Pre-Trial Delay

The claim of Braverman and Foremost that there was such inor-díñate delay in the prosecution of this case so as to deny them due process of law is not tenable. Pre-indictment delay is premised on the fact that the conspiracy commenced in 1960 and terminated in 1967 with substantive violations committed from December 1962 through April 15, 1965. The indictment was returned on December 4, 1968. We find no merit in the argument that this delay was unreasonable. There is no suggestion of Government design to create delay and no showing of prejudice. In fact the investigation required here to produce the witnesses and documents in the United States and Europe, placed a tremendous burden on the Government which was dealing with a massive, albeit crude, scheme to defraud. The post-indictment delay from December 4, 1968 to October 26, 1971 was not excessive in our view within the criteria established in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). There was no demand by the defendants for a trial and no specific instances of prejudice resulting from delay. Again the complicated character of the case is an element to be considered (407 U.S. at 531, 92 S.Ct. 2182). It is also noteworthy that although the Government had placed the case on the calendar in May, 1970, to secure a trial date, defense counsel requested adjournments until the Spring of 1971 because of his own trial schedule. At that time substituted counsel requested a delay until the Fall of 1971.

Finally, Judge Croake properly denied defendants’ motions for discovery under Rules 16(a) and 16(b), Fed.R. Crim.P., as overbroad. United States v. Jordan, 399 F.2d 610, 615 (2d Cir), cert. den., 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968). Again we find no showing of prejudice in the denial of the discovery orders here where the Government voluntarily made available prior to trial most of its documentary evidence, i. e., the checks made payable to CTE by the manufacturers in payment of the sales commissions.

After reviewing all of the appellants’ arguments on appeal, we affirm.

      . 28 U.S.C. § 1732 provides in pertinent part:
      (a) In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record .of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, oceur-rence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event or within a reasonable time thereafter.
      All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but such circumstances shall not affect its admissibility.
      The term “business,” as used in this section, includes business, profession, occupation, and calling of every kind.

      . We note that the new Federal Rules of Evidence do not classify admissions or co-conspirators’ declarations as exceptions to the hearsay rule, but rather as statements which are not hearsay. Fed.R.Evid. 801(d)(2). See United States v. Puco, 476 F.2d 1099 n. 3 (2d Cir., 1973). In any event they are admissible to establish the truth of what is said. C. McCormick, Evidence § 239, at 503-04 (1954).

      . For example, Abe Kent and Miriam Gittleson, employees of the Ideal Toy Corporation, testified that defendant Rosen-stein had called and requested that Rosen-stein’s commission cheeks be sent to CTE, the “subsidiary” corporation.
      Rubin Bass, president of North Shore Sportswear, testified in part:
      Q. . Just what did Azzaro (an employee of Mclnerney) say to you and what did you say to Mr. Azzaro?
      A. To mail the checks overseas.
      Q. What did he say?
      A. This would cover his commissions to Mclnerney Sales.
      Q. Do you recall whether or not Mr. Azzaro indicated anything about the nature of who owned the companies or who the companies were? (Objections of defense counsel)
      A. All he said is that all these companies are one and not to worry what name we make it out, it will cover the commissions. (Tr. 467)
      Mr. Bass further testified that despite the payments to CTE', he continued to deal with the same people, Rosenstein and Azzaro, at Mclnerney. No one from Europe performed any services for him.
      Francis Parker, an employee of Genes-oo, testified that his company’s sales representative was Foremost Brands. At the request of defendant Bravez-man, Genesco employed CTE and began paying commissions to the latter. Braverman indicated to Parker that Foremost and OTE wez-e the “same” organization.

      . This is in contrast to the rule with regard to confessions followed in some jurisdictions. Under the so-called “Massachusetts Rule” the trial judge initially determines whether the defendant’s confession is voluntary. If the court admits the confession, the jury is instructed that they may ignore it if they disagree with the court and believe the confession to have been coerced. See Jackson v. Denno, 378 U.S. 368, 378 n. 9, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

      . Standard Oil Co. v. Moore, 251 F.2d 188, 217-218 (9th Cir. 1957), cert. denied, 356 U.S. 975, 78 S.Ct. 1139, 2 L.Ed.2d 1148 (1958), relied upon by appellants is distinguishable. In that case the documents held inadmissible under the Business Records Rule, were urged on appeal, as in this case, to be admissible as either admissions or declarations of co-conspirators. The appellate court had to remand for a new trial since for the most part the “admissions” consisted of inter-office memos of employees and agents of the corporation to their principals and not to third parties. They were intramural statements and there had to be some showing that they represented the position of the corporation. No such problem exists here. For the most part the letters here were signed by Braverman and Rosenstein who were of course, in fact, the alter egos of the corporation. There- • fore no independent or collateral finding of authority was here required.

      . The charge of Judge Croake here was entirely proper with respect to the admissibility of one conspirator’s statements or declarations made in furtherance of the conspiracy against other persons found to be members. Therefore no further instruction was necessary with respect to the theory of admissibility of the Liechtenstein documents. See United States v. Baker, 419 F.2d 83, 88-89 (2d Cir. 1969), cert. denied, 397 U.S. 971, 976, 90 S.Ct. 1086, 25 L.Ed.2d 265 (1970).
      See also United States v. Ross, 321 F.2d 61, 68-69 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963), where Chief Judge Friendly oberved: “ [W] e should hardly be warranted in reversing for the admission of evidence simply because the judge did not place his ruling on the ground that would most readily have supported it.”

      . For example, a letter dated June 20, 1963 from defendant Braverman to Dr. Batliner reads as follows:
      I am herewith returning both contracts from Dan River International.

        Please sign both copies for Continental Trade and return same to my attention.
      Comparable instructions appear in letters from Braverman, dated March 14, 1963, April 4, 1963, September 3, 1963 and May 28, 1964,

      . Appellants vigorously attack the admission of Government’s Exhibit 1029 which was a list of expenses of CTE including the names of Braverman and Rosenstein. The expenses totalled $54 and the Government argued to the Jury that such minimal expenses for OTE which purportedly was engaged in substantial business, was indicative of its mere “mail drop” function. Since the memo was unsigned, it was not admissible on the alternate grounds we have accepted. However, that this was the true function of OTE is so clearly established by the other evidence, witnesses’ testimony as well as the admissible documents, that we do not consider its admission here prejudicial. It was merely cumulative to that properly admitted evidence.


author: CHOY, Circuit Judge:

text:
    Oliver LANNING, Plaintiff-Appellant, v. O. E. SERWOLD, Jr., et al., Defendants-Appellees.
    No. 71-1934.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1973.

      William D. Cameron (argued), of Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for plaintiff-appellant.
    J. Paul Coie (argued), John L. Weinberg, of Perkins, Coie, Stone, Olsen & Williams, Robert W. Thomas, of Lane, Powell, Moss & Miller, Seattle, Wash., for defendants-appellees.
    Before CHOY and GOODWIN, Circuit Judges, and SOLOMON, District Judge.

       The Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation.

   CHOY, Circuit Judge:

The sole issue presented for our disposition is whether the district court properly concluded that the complaint brought by Lanning should be dismissed pursuant to F.R.Civ.P. 12(b) (6) for failure to state a claim. We affirm in part and reverse in part, and remand for trial.

Lanning is seeking damages on four separate claims. The first claim is predicated on alleged violations of Section 10(b), Securities Exchange Act of 1934, 15 U.S.C. § 78j (b), and SEC Rule 10 b-5, 17 C.F.R. § 240.10b-5. The remaining three claims are state pendent claims based on common law fraud, violations of Washington securities law, and tortious interference with a contractual relationship. Since there is no independent federal jurisdictional basis for the three state claims, these claims were dismissed when the federal claim was found wanting. We focus our attention on the federal claim.

Lanning’s complaint asserts two separate Rule 10b-5 violations. First, his efforts to buy 500 unidentified shares of Poulsbo Rural Telephone Association (PRTA) stock for $15 a share from minority shareholders were wrongfully frustrated by a deceptive letter mailed by defendant Serwold, President of PRTA, to all PRTA stockholders. The letter falsely told of discussions with persons interested in the purchase of or merger with the company, and of the stock having a book value of $114.55 per share. Accordingly, Lanning alleges that his cost for the shares would be $300 to $600 per share instead of $15, so he demands judgment for $142,500 or an order requiring Serwold and PRTA to sell him 500 shares at $15 per share. Second, he purchased 136 shares of PRTA from two ladies at $15 per share and presented the certificates with the proper endorsements to PRTA so that they could register the transfer. Instead of registering the transfer Serwold falsely informed the ladies by telephone that the stock’s book value was $115 per share, that two firms were negotiating to buy PRTA for at least $300 per share and that he hated to see old stockholders “lose out.” He advised them that two attorneys, defendants Niemeier and Green, would help them defeat the sale and recover the 136 shares. Niemeier knowingly confirmed the misrepresentations and referred the ladies to a Seattle attorney who filed an action for the ladies to rescind the sale and to enjoin PRTA from transferring record ownership of the 136 shares to Lanning. Green falsely testified as to the fictitious negotiations. Lanning defeated this suit, but in doing so he incurred $3,897.64 in costs and expenses.

THE 500 SHARES CLAIM

We agree with the district court that Lanning lacked the requisite standing as to the 500 shares he claimed he could not buy at $15 per share because of Serwold’s fraudulent misrepresentations. Since Lanning had no relationship with anyone either as a purchaser or seller of the securities involved with the alleged rule violation, no claim for relief cognizable under Section 10(b) was presented. Mt. Clemens Industries, Inc. v. Bell, 464 F.2d 339 (9th Cir. 1972).

THE 136 SHARES CLAIM

We find here the requisite prior contractual relationship between Lanning and the two ladies who sold him the 136 shares. But appellees contend as the district court ruled, that any fraud occurred after the sale had been consummated and that the fraud did not impair the value of the securities purchased by Lanning so that the claim is outside the ambit of federal securities law. We do not agree.

Lanning was a purchaser of stocks and the wrong done to him was in connection with this purchase. “Section 10(b) must be read flexibly, not technically and restrictively. Since there was a ‘sale’ of a security and since fraud was used ‘in connection with’ it, there is redress under § 10(b), whatever might be available as a remedy under state law.” Supt. of Insurance v. Bankers Life & Cas. Co., 404 U.S. 6, 12, 92 S.Ct. 165, 169, 30 L.Ed.2d 128 (1971). In Bankers Life, supra, the Supreme Court rejected the argument that the fraud must affect the investment value of the securities. Accord, A. T. Brod & Co. v. Perlow, 375 F.2d 393, 396-397 (2nd Cir. 1967). Here, in essence, Lanning had to pay nearly $4,000 more for the 136 shares because of Serwold’s misrepresentations.

There is no requirement in either the statute or the rule that the fraud must occur prior to the consummation of the sale. Both condemn fraud in connection with a sale. Here the fraud was directly related to the sale of the securities.

PENDENT CLAIMS

The district court should assume jurisdiction over the pendent state claims relating to the purchase of 136 shares.

However, any state claims relating to the attempted purchase of the 500 shares should be dismissed because there is no federal jurisdictional basis for these claims. Since the federal claim relating to this aspect of the ease was dismissed prior to trial, these pendent claims should also be dismissed. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). Moreover, these claims cannot be considered as being ancillary to any action based on the purchase of the 136 shares. The claims do not arise out of the same transaction or occurrence, nor are they auxiliary, accessorial or subordinate to the purchase of the 500 shares. See L & E Co. v. United States of America, 351 F.2d 880 (9th Cir. 1965); Glens Falls Indemnity Co. v. United States ex rel. Westinghouse Electric Supply Co., 229 F.2d 370 (9th Cir. 1955).

Affirmed in part; reversed in part; and remanded.

      . The dismissal was of the complaint, not the action. Normally this is not an appealable order. But we find that there are special circumstances which permit us to treat the order as final. It appears that the action could not have been saved by any amendment of the complaint which Lanning could reasonably be expected to make. Ruby v. Secretary of the Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011, 87 S.Ct. 1358, 18 L.Ed.2d 442 (1967).

      . In pertinent part, Section 10(b) provides :
      “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange—
      # ifc * *
      (b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.”

      . The rule provides:
      “It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
      (1) To employ any device, scheme or artifice to defraud,
      (2) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
      (3) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person in connection with the purchase or sale of any security.”


text:
    Thomas Scott DeLONG, et al., Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-3494
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 5, 1973.

      Thomas Scott DeLong, and others, pro se.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellants are presently serving three-year federal sentences imposed pursuant to convictions on guilty pleas for violating the Dyer Act, 18 U.S.C. § 2312. Shortly after they were arrested for this violation in Texas, the appellants waived removal hearings and were delivered into the custody of a United States Marshal for the Western District of Oklahoma pursuant to a complaint pending in that district which also charged a Dyer Act violation. After assuming custody of the appellants in Oklahoma, the federal officers delivered them to Oklahoma state officials for prosecution on a state charge, without requiring the issuance of a writ of ha-beas corpus ad prosequendum. After they had served their Oklahoma state sentences, appellants were returned to federal custody in the Northern District of Texas, and were convicted of the Dyer Act offense.

In the court below, appellants sought relief pursuant to 28 U.S.C. § 2255, contending that the federal officials’ failure to require the issuance of a writ of habeas corpus ad prosequendum before surrendering custody to Oklahoma state officials deprived the court below of jurisdiction to try them for the Dyer Act offense. The court below denied relief, and we affirm. It is settled that where one sovereign surrenders a prisoner to another sovereign for trial, sentencing, and execution of the sentence before he is to be returned to the custody of the sovereign first having jurisdiction, the prisoner has no standing to attack the agreement between sovereigns and the surrendering sovereign has not thereby waived its right to have the prisoner returned to its custody for trial. Bullock v. Mississippi, 5th Cir. 1968, 404 F.2d 75.

Affirmed.


text:
    UNITED STATES ex rel. Paul E. ARZONICA, Appellant, v. Walter G. SCHEIPE, Warden, et al.
    No. 72-1105.
    United States Court of Appeals, Third Circuit.
    Submitted on briefs Jan. 29, 1973.
    Decided Feb. 27, 1973.

      Paul E. Arzonica, pro se.
    John E. Ruth, Marx, Ruth, Binder & Stallone, Reading, Pa., for appellees.
    Before SEITZ, Chief Judge, ALDI-SERT, Circuit Judge, and LACEY, District Judge.
   OPINION OF THE COURT

PER CURIAM:

Appellant, a state prisoner, filed a complaint under 42 U.S.C. § 1983 against the warden and the County Prison Board of Berks County, Pennsylvania. The district court properly dismissed the action against the board. United States ex rel. Gittlemacker v. City of Philadelphia, 413 F.2d 84 (3d Cir. 1969). The gravamen of his complaint seeking money damages against the warden is that while awaiting trial for a state offense at the Berks County Prison, he was placed in solitary confinement and then transferred to a state institution following a jail break by three other prisoners. He alleges constitutional deprivations by reason of (1) his transfer to the state prison, (2) his being placed in solitary ■ confinement at Berks immediately prior to the transfer and on three brief occasions when he was returned to Berks for court appearances, and (3) statements made by the warden to probation officers preparing a presentence report for the state court.

We hold that this last mentioned allegation does not constitute a cause of action for which relief may be granted under § 1983, nor does the allegation relating to the transfer from the county to the state prison.

As to the remaining allegation, the district court reasoned that since four inmates escaped from a cell block where plaintiff was housed, the warden “decided to move the plaintiff to solitary confinement. This was purely an internal administrative matter of a state penal institution and no cause of action averring under the Civil Rights Act. There are no violations of the plaintiff’s constitutional rights.” It would appear from the plaintiff’s complaint that the prisoners escaped from the same “cell that Plaintiff occupied.”

At the time of its decision, the district court did not have the advantage of Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972), and United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197 (3d Cir. 1973). These are new decisions based on facts strikingly dissimilar to the case at bar. For example, First Amendment overtones emanating from suppression of a prison newsletter were present in Gray. We are not prepared to give literal efficacy to isolated excerpts from language of that opinion which would otherwise suggest that “any transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing does not . meet minimal due process requirements.” Indeed, Judge Van Dusen qualified this otherwise sweeping statement with the phrase, “absent unusual circumstances.”

We therefore deem it appropriate to state that Gray may not be interpreted as announcing a per se rule that any transfer of a prisoner to solitary confinement without notice of charges or a hearing constitutes a constitutional deprivation. The rule of reason still prevails; the exigencies of acute and critical situations in prison may require swift and decisive administrative action without the fear of exposing prison officials to the threat of subsequent liability for money damages arising out of decisions made in the good faith exercise of administrative discretion. Moreover, the holding in Tyrrell was predicated upon an allegation of nine months’ segregation. Clearly, this was an example of “substantial punishment,” described in Gray as necessitating establishment of constitutional safeguards.

Gray and Tyrrell followed courses previously uncharted in this circuit and the full impact of their holdings remains to be defined. Additionally, because of the novelty of their doctrines, this court is yet to be faced with the question of whether there may be only prospective application of their teachings. See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).

For our immediate purposes, however, we remand these proceedings to the district court for reconsideration of the solitary confinement issue. Our action must not be construed as deciding that Gray and Tyrrell are retroactive or, if so, that their precise holdings are applicable to the circumstances at bar.

The judgment of the district court is affirmed in all respects except that portion relating to the solitary confinement in Berks County Prison. That portion of the judgment is vacated and the proceedings remanded with a direction to proceed in accordance with the foregoing discussion.


text:
    UNITED STATES of America and David A. Thompson, Special Agent, Internal Revenue Service, Appellees, v. MID-WEST BUSINESS FORMS, INC., and Fred Borneman, President of Mid-West Business Forms, Inc., Appellants.
    No. 72-1455.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 13, 1973.
    Decided March 1, 1973.

      Fred L. Hall, and William A. Wear, Springfield, Mo., filed appendix and brief for appellants.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Robert E. Lindsay, Attys., Tax Div., Dept, of Justice, Washington, D. C., Bert C. Hurn, U. S. Atty., and Paul Anthony White, Asst. U. S. Atty., Kansas City, Mo., on brief for appellees.
    Before LAY and BRIGHT, Circuit Judges, and NICHOL, District Judge.

       Sitting by designation.

   PER CURIAM:

Fred Borneman, President and sole shareholder of Mid-West Business Forms, Inc., appeals from an order of the United States District Court for the Western District of Missouri, directing him to comply with a summons issued by the Internal Revenue Service pursuant to 26 U.S.C. § 7602. The summons required Borneman to appear, testify and produce the records of Mid-West Business Forms, Inc. Borneman refused to comply with the summons, claiming that to do so would violate his Fifth Amendment privilege against self-inerimination. Borneman claims the general rule which provides that the privilege is not available to a corporate officer to prevent disclosure of corporate records does not apply since Mid-West Business Forms is organized under the Internal Revenue Code as a Subchapter S corporation. He contends that since any tax liability of the corporation must neees-sarily be addressed to him as an individual, he has the right to rely on his Fifth Amendment privilege in any tax investigation of the corporation. We disagree and affirm the order of the district court.

An identical claim was recently rejected by the Tenth Circuit in United States v. Richardson, 469 F.2d 349 (1972). After a thorough analysis of the legislative history surrounding the Subchapter S corporation, the Richardson court concluded that although the tax laws allowed income to be channeled from the corporation to the shareholders, it was not the intent of Congress to eliminate the corporation itself or to convert it into a partnership for tax or other purposes. See also 7 Mertens, Law of Federal Income Taxation, § 41B.22 at 36 (1967). We find the reasoning of the Richardson court persuasive and controlling here.

The defendant also contends that since the agent who issued the summons was with the Intelligence Division of the Internal Revenue Service, this necessarily establishes that the sole purpose of the investigation was to gather information upon which to base a criminal prosecution. However, the district court, after reviewing the entire record, found that the summons was not issued with the singular intent to bring a criminal prosecution. We cannot say that such a finding was clearly erroneous.

The order of the district court enforcing the summons is affirmed.

      . See Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906); United States v. Giordano, 419 F.2d 564 (8 Cir. 1969), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970). This lias been held to be true even where the corporation has only one stockholder. See United States v. Bell, 448 F.2d 40 (9 Cir. 1971); United States v. Bowman, 435 F.2d 467, 469-470 (3 Cir. 1970); Hair Industry, Ltd. v. United States, 340 F.2d 510 (2 Cir. 1965), cert. denied, 381 U.S. 950, 85 S.Ct. 1804, 14 L.Ed.2d 724.

      . Of course, the fact that the investigation might ultimately lead to a criminal prosecution does not render the summons outside the scope of Section 7602. All that is necessary is that the summons be “issued in good faith and prior to a recommendation for criminal prosecution.” Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580 (1971); see also United States v. Richardson, supra.