author: ELY, Circuit Judge:

text:
    Wendell RAIFORD, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-2134.
    United States Court of Appeals, Ninth Circuit.
    Aug. 1, 1973.
    Wendell Raiford, pro per.
    Sidney E. Smith, U. S. Atty., Thomas C. Frost, Asst. U. S. Atty., Boise, Idaho, for appellee.
   OPINION

Before HAMLIN, KOELSCH and ELY, Circuit Judges.

ELY, Circuit Judge:

The appellant is a federal prisoner, convicted of having violated 18 U.S.C. § 2314 and, on November 19, 1971, sentenced to confinement under the provisions of the Youth Corrections Act. At the time of the sentencing, the District Judge carefully advised Raiford, in the presence of his defending attorney, of his right to appeal. Raiford expressly waived that right, both orally and in writing. Approximately five months later on April 24, 1972, he filed a motion for relief under 28 U.S.C. § 2255. In denying this motion, properly, we think, the District Court recited:

“The grounds alleged in the petition are difficult to ascertain as the language used is stilted, conclusionary and nearly unintelligible. However, a careful reading seems to leave me with the impression that the gist of petitioner’s complaint lies in the admission of certain evidence at the trial dealing with the source of certain money orders, the cashing of which formed a basis of the charges for which petitioner was convicted. At best the petition makes it clear that such issues should have been presented by way of direct appeal. No showing is made why these issues were not made the basis of an appeal. The provisions of 28 U.S.C.A. § 2255 are not intended to provide a substitute for direct appeal.”

Thereafter, on June 1, 1972, Raiford filed in the District Court a document which he, acting in propria persona, designated “Writ of Coram Nobis in Forma Pauperis”. In this document Raiford undertook to explain why he had not appealed from the court’s judgment of conviction. He alleged that the advice of his appointed counsel was “not to pursue appeal in this matter, which petitioner now finds was erroneous and incompetent advice.” Continuing, Raiford asserted, “At the time that the petitioner was advised of his right to appeal, he relied solely on his attorney for advice and he was ignorant of the mistake that his attorney was making in forfeiting the right to appeal.”

The District Court summarily rejected the relief sought by Raiford in the second document, treating it as a motion for leave to take an untimely appeal. We have concluded that this was error and that the District Court should have treated the document filed on June 1, 1972, as a second application for relief under 28 U.S.C. § 2255. In his first motion, Raiford merely alleged, in effect, that much testimony which might have operated in his favor was not presented at his trial. There is nothing, however, in the first motion which alleged that Raiford had been deprived of the effective representation of counsel. Although the second document filed by Raiford is crude, it does, as we interpret it, raise the constitutional issue of the lack of effective representation by competent counsel. The District Court may have deemed the allegation too vague and imprecise. In that event, however, it would have been the “better practice to direct [Raiford] ... to amend his application, rather than to deny the application.” Oliver v. United States, 398 F.2d 353, 355 n.5 (9th Cir. 1968), citing Sanders v. United States, 373 U.S. 1, 19, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). But here, as in Oliver, our affirming the District Court’s Order “will not stand in the way of a new application” by Raiford. The denial here involved “without a hearing is not a denial on the merits, and since in any event, res judicata does not apply in section 2255 proceedings [citing Gomez v. United States, 396 F.2d 323 (9th Cir. 1968)] such a denial is without prejudice and a failure to direct amendment rather than to deny outright is not a ground for reversal.” Oliver, supra at 356 n.5.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Dennis NEWTON, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2857.
    United States Court of Appeals, Fifth Circuit.
    Aug. 14, 1973.
    James H. Randals, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen. of Tex., Austin, Tex., for respondent-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.
   PER CURIAM:

Dennis Newton has applied to this court for a certificate of probable cause and leave to appeal in forma pauperis from the District Court’s denial of his petition for habeas corpus. We grant the certificate, grant leave to appeal IPP, and remand the case to the District Court.

Newton, convicted in Texas state court for robbery by assault, sought and was denied habeas relief in the Texas Courts. He filed a federal petition and the District Judge found that two of his contentions made therein had not been considered by or meaningfully presented to the state courts. These were a claim that he had been subjected to an illegal search and seizure, and a claim that after arrest he was held incommunicado, beaten, denied medical attention and not told of his Miranda rights. The District Judge dismissed the petition for failure to exhaust.

In his application to this court, petitioner, through counsel, states that “the narative [sic] statement of facts of the 1962 conviction presently challenged shows that the evidence seized in the alleged illegal search and seizure was never introduced at trial and that the alleged police brutality likewise did not result in the admission of any evidence at trial.” This concession now made by counsel perhaps explains why the two grounds, though raised in the state petition, were not formally ruled upon by the Texas courts. The concession lays these grounds to rest once and for all, United States v. Colbert, 474 F.2d 174 (CA 5, 1973); Green v. United States, 460 F.2d 317 (CA 5, 1972); Jackson v. Smith, 435 F.2d 1284 (CA 5), cert. denied, Jackson v. Dutton, 402 U.S. 947, 91 S.Ct. 1639, 29 L.Ed.2d 116 (1971). Bearing in mind the principles of comity that undergird the exhaustion requirement, it serves no interest, state or federal, to remand to the state courts for a ruling that arguably should have been made in the state proceedings on issues which petitioner concedes are lacking in merit. We remand to the District Court in order that it may consider the other grounds in petitioner’s federal application.

Certificate of probable cause and leave to appeal in forma pauperis are granted, and the case is remanded for further proceedings consistent herewith.

      . It is appropriate to dispose of this case summarily. See Groendyke Transport., Inc. v. Davis, 5th Cir. 1969, 406 F.2d 1158.


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sheria HARVEY, Defendant-Appellant.
    No. 73-1577
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 8, 1973.
    William L. Crull, III, New Orleans, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

Defendant-appellant Harvey was convicted by a jury of interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. We affirm.

Police officers observed Harvey and a friend get out of a car, remove two tires from the trunk, place them on the sidewalk, and then walk away on seeing the police car. A police check revealed that the ear from which Harvey had alighted was stolen. Harvey and his friend were then arrested and jailed.

Harvey contends that the statement he gave to FBI agents who questioned him after his arrest was inadmissible at trial because it was not voluntary. He bases this contention on these facts: he was suffering from methadone withdrawal symptoms; he was attempting to secure the release of his friend, who was critically ill; the agents destroyed their interview notes after the notes were typed. The record reveals that after Harvey’s arrest, he was questioned by FBI agents. They read him the Miranda, (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) warnings, showed him the card on which the warnings were printed, asked him if he understood, and had him sign the waiver form. Harvey told the agents that he was beginning to suffer some withdrawal symptoms, his arrest having prevented him from receiving his daily treatment under the Methadone Sustenance Program. His worst symptom was a headache, which he did not describe as particularly severe. Medical expert testimony at trial was that at that point, Harvey would have been more susceptible to suggestion, but that he would know what he was doing. The FBI agents testified that Harvey seemed lucid to them. Harvey signed the waiver form; he did not seek to terminate the interrogation; he did not complain that his headache impaired his eompre-hension. Harvey testified that he was concerned about obtaining the release of his critically ill friend. Apparently he thought that some sort of statement would achieve that result, which in fact it did. The agents testified that Harvey told them during interrogation that he saw the car on a Chicago street, that it was unlocked, and that the ignition had been hot-wired. They further testified that he said that the car appeared to him to have been stolen already, that he had no difficulty in starting it, and that he later drove it to New Orleans. Harvey testified at the trial, saying that he merely told the agents that he was “responsible” for the car. He testified in detail that he bought the car from a friend who was supposed to forward the title papers. He said that the agents were not interested in hearing about this alleged transaction.

On appeal, Harvey alleges that the typed statement does not reflect what he actually told the agents, and that their destruction of their original notes was to cover up discrepancies. The conflict in Harvey’s and the agents’ testimony created a question of fact to be resolved by the jury, which did not find that Harvey’s version was more credible than the version recounted by the agents. The factual issue was appropriately presented to the jury, and under these circumstances it is not our function to overturn the jury’s findings. The record does not contain any support for finding that Harvey was so incapacitated that as a matter of law his statement was involuntary. Therefore, it was admissible at trial.

Harvey also contends that his motion for acquittal should have been granted. There was substantial evidence presented by the Government consistent with the hypothesis of the defendant’s guilt. The defendant’s own testimony was consistent with the theory of his innocence. This conflict was appropriately resolved by the jury, which apparently did not credit Harvey's testimony.

We have considered the other issues presented on appeal, and we find them to be without merit.

Affirmed.

      . Harvey testified at the trial that he is illiterate. His “reading” the card would, therefore, be meaningless; however, he did not tell the agents that he was unable to read the card, nor did he evidence a failure to comprehend the significance of the oral Miranda warnings.

      . “On a motion for judgment of acquittal, tlie test is whether, taking the view most favorable to the Goverment, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir. 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir. 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir. 1967, 374 F.2d 878, 881.” United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971).

      . They were: whether failure to give a requested jury charge was error, whether a driver’s license and social security card which the defendant falsely represented to be his own were inadmissible at trial, and whether the Government’s statement at trial that the State still needed the documents was an impermissible reference to pending prosecution.


author: PICKETT, Circuit Judge.

text:
    SARASOTA OIL COMPANY and Rockland Oil Co., Plaintiffs-Appellants, v. GREYHOUND LEASING AND FINANCIAL CORPORATION, Defendant-Appellee.
    No. 72-1788.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 24,1973.
    Decided Aug. 22, 1973.
    Rehearing Denied Sept. 18, 1973.

      George N. Otey, Ardmore, Okl. (R. Rhys Evans, Ardmore, Okl., with him on the brief), for plaintiffs-appellants.
    Louis P. Bickel, Johnson, Bromberg, Leeds & Riggs, Dallas, Tex. (Robert J. Emery, Lytle, Soule & Emery, Oklahoma City, Okl., with him on the brief), for defendant-appellee.
    Before PICKETT, HILL and DOYLE, Circuit Judges.
   PICKETT, Circuit Judge.

Sarasota Oil Co. and Rockland Oil Co. appeal from a denial of their claim to certain proceeds of a class action lawsuit in which Greyhound Leasing and Financial Corp. recovered damages for underground trespass on an oil and gas lease.

Greyhound was the operator of an oil and gas lease, known as the Sarasota Tract, in which it owned a 49.582% working interest. The Joiner City Unit, an adjacent corporate operator, damaged the oil reserves under the Sarasota Tract by underground flooding with salt water. Sarasota and Rockland each owned a % royalty in the Sarasota Tract. Greyhound, through a Rule 23(b)(3) class action for all parties owning any interest in the Sarasota Tract, sought damages from the Joiner City Unit for the underground trespass. Sarasota and Rockland, after notice of the action and of their right to be excluded therefrom in accordance with 23(e)(2) Fed.R.Civ.P., exercised that right and were duly excluded. The propriety of the class action is not questioned.

A judgment in the total sum of $386,440.11 was recovered in the class action. The judgment specifically excluded any amounts pertaining to the loss of royalty interests owned by Sarasota and Rockland. Greyhound’s share of the judgment was $198,040.85.

Sarasota and Rockland brought this action claiming that the recovery' by Greyhound is a substitute for produced oil and that Greyhound’s contractual obligation to pay royalties therefrom is not affected by their withdrawal from the class action. The trial judge granted Greyhound’s motion to dismiss, concluding that “[hjaving taken the position that their royalty interests should not be involved in [the class action], Sarasota Oil Company and Rockland Oil Company are now estopped to assert any claim against Greyhound Leasing and Financial Corporation for the value of their royalty interests.” This conclusion presents the issue on this appeal.

The parties having rights under the Greyhound lease, including Sarasota and Rockland, were injured by a common water flooding, and although the amounts of their claims might vary, the issue presented is one containing a common question of law and fact.

All members of a class of this nature have an absolute right to be excluded from the case if that right is exercised within the time specified in a notice required to be given by Rule 23(c)(2). One of the primary purposes of the notice requirement is to afford an opportunity for (b)(3) class members to avoid being bound by a class action judgment and to permit them to litigate their own claims, but those who elect to be excluded cannot participate in the benefits of a successful class action. Knuth v. Erie-Crawford Dairy Cooperative Association, 326 F.Supp. 48 (W.D. Pa.1971), modified on other grounds, 463 F.2d 470 (3d Cir. 1972), cert. denied, 410 U.S. 913, 93 S.Ct. 966, 35 L.Ed.2d 278 (1973). The right to intervene after judgment is precisely what the 1966 amendments to Rule 23 were intended to prevent in (b) (3) class actions. Shane v. Northwest Industries, Inc., 49 F.R.D. 46 (N.D.Ill.1970); Minnesota v. United States Steel Corp., 44 F.R.D. 559 (D.Minn.1968); Advisory Committee’s Note, Proposed Rules of Civil Procedure, 39 F.R.D. 98, 106 (1966); Wright and Miller, Federal Practice & Procedure: Civil §§ 1753, 1787 (1st ed. 1972); 3B Moore’s Federal Practice ¶¶ 23.55, 23.60 (2nd ed. 1969). The oil reserves from which Sarasota and Rockland were entitled to royalties were destroyed by an unlawful flooding of the leased property. All that remained was a cause of action for damages, including the loss of the Sarasota and Rockland royalties, which could have been determined in the class action. This action is an ingenious attempt to get back into a class action lawsuit and take advantage of a judgment after electing not to participate.

Affirmed.

      . Rule 23 (c) in part reads :
      “(2) In any class action maintained under subdivision (b) (3), the court shall direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that (A) the court will exclude him from the class if he so requests by a specified date; (B) the judgment, whether favorable or not, will include all members who do not request exclusion; and (0) any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
      “(3) The judgment in an action maintained as a class action under subdivision (b) (1) or (b) (2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b) (3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c) (2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.”


text:
    Garris S. McFADDEN, Appellant, v. BALTIMORE STEAMSHIP TRADE ASSOCIATION et al., Appellees.
    No. 73-1280.
    United States Court of Appeals, Fourth Circuit.
    Submitted July 12, 1973.
    Decided Aug. 30, 1973.

      Whitworth Stokes, Washington, D. C., on brief for appellant. _
    A. Adgate Duer, Barrett W. Freedlander, Niles, Barton & Wilmer, Baltimore, Md., on brief for appellees Steamship Trade Association of Baltimore, Inc., and Terminal Shipping Co.
    Anthony A. Abato, Jr., Cosimo C. Abato, Bracken & Abato, P. A., Baltimore, Md., on brief for appellees International Longshoremen’s Assn., Local 953 and International Longshoremen’s Assn.
    Before RUSSELL, FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

This appeal is from a judgment dismissing a complaint for damages and in-junctive relief filed in the district court by Garris S. McFadden against the International Longshoremen’s Association, one of its locals, and the Terminal Shipping Company. In his complaint Me-Fadden alleged that the ILA and Local 953 denied him membership in the local and employment as a checker because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (1), and the Civil Rights Act of 1964, 42 U.S.C. § 1981. In addition he alleged that Terminal fired him from employment in retaliation for filing charges of discrimination in 1969 against Terminal, the Steamship Trade Association of Baltimore, Inc., and a number of other stevedoring companies in Baltimore, in violation of 42 U.S.C. § 2000e-3(a). The case was tried before the district judge who found that McFadden was not entitled to the relief sought and entered judgment for the defendants, 352 F.Supp. 403. Specifically, the court found that the denial of membership in Local 953 to McFadden was in no way arbitrary or discriminatory or that the unions in question breached their duty to fairly represent him in obtaining membership. The court further found that contrary to McFadden’s assertion of retaliation he was fired for pilferage. We think the record fully supports these findings and we refuse to upset them as clearly erroneous. See Glasscock v. United States, 323 F.2d 589 (4th Cir. 1963).

Accordingly, we grant the motion for summary affirmance and affirm the judgment.

Affirmed.

      . Initially STA was named as a defendant, the allegation being that it was involved in the alleged discriminatory practices on the part of ILA and Local 953. The district court, however, found that it was not an indispensable party to the suit and granted STA’s motion for summary judgment. In view of our holding we find no need to consider the correctness of STA’s dismissal from the suit.


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank Hinsley NUNEZ, Defendant-Appellant.
    No. 73-1252.
    United States Court of Appeals, Ninth Circuit.
    Aug. 3, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 594.

      Oscar B. Goodman (argued), of Goodman & Snyder, Las Vegas, Nev., for defendant-appellant.
    Alice A. Wright, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for plaintiff-appel-lee.

      Before HAMLIN and CARTER, Circuit Judges, and BOLDT, District Judge.

       Honorable George H. Boldt, Senior United States District Judge, Western District of Washington, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

Appellant Frank Hinsley Nunez was charged and convicted in Count 1 of conspiring between December 1, 1971, and February 22, 1972, to import marijuana from Mexico to the United States in violation of 21 U.S.C. §§ 960(a) and (b), and 952(a). In Counts 2, 4, 6 and 8 he was charged with and convicted of importing marijuana into the United States in violation of the same sections. In Counts 3, 5, 7 and 9 he was charged with and convicted of possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and (b).

He was sentenced on Count 1 to five years, and on each of the substantive counts to five years, to run concurrently with each other but consecutive to the sentence on Count 1.

Eight other defendants were named in the indictment as co-conspirators: Michael Robert Clark, Roy George Emerzi-an, Jr., Michael John Hindman, Gerald Marshall Jewell, Richard Lee Morgan, Roger Lee Mason, Steve Michael Rutledge and Charles Leon Gray. Various of these parties were named as co-defendants in the substantive counts. Only Nunez was tried. There were no objections to the instructions of the trial court. Nunez appeals from the convictions.

Emerzian testified at the trial. He entered a plea of guilty to one count in the indictment. He was sentenced under the Youth Corrections Act and placed on probation. Rutledge testified at the trial. He was an addict and entered a guilty plea to one of the charges. He was sentenced under the Youth Corrections Act and placed on probation. Mason testified at the trial. He was arrested on a charge of parole violation growing out of a state robbery charge. His parole was revoked in March 1972. He was incarcerated in a California institution at the time of his testimony. The charges against him in the present case were dismissed.

Morgan pled guilty to two counts in the indictment. He was sentenced to concurrent terms of five years. Clark pled guilty to the conspiracy count. He was sentenced under the Youth Corrections Act and placed on probation. Hindman pled guilty to one count and was sentenced to a term of three years. Jewell pled guilty to one count and was sentenced to custody under the Youth Corrections Act. Gray pled guilty to one count and was given a split sentence of four years, with probation granted on condition that six months be served in a jail-type institution.

Nunez raises two contentions:

(1) Whether the trial court erred in admitting evidence of prior similar acts occurring before the period of the conspiracy specified in the indictment; and

(2) Whether the trial court erred in admitting statements by co-conspirators, implicating Nunez, where independent evidence implicating him was also introduced into evidence.

We affirm.

I.

Prior Similar Acts

The trial court admitted evidence of four different series of events on the ground that they constituted prior similar acts bearing on the issues of plan, state of mind, intent, and lack of innocent purpose. The law is clear that such similar acts are admissible. United States v. Jiminez-Robles (9 Cir. 1969) 415 F.2d 308; United States v. Rodriguez (9 Cir. 1972) 459 F.2d 983, cert. denied, 409 U.S. 865, 93 S.Ct. 158, 34 L.Ed.2d 113; United States v. Hasley (9 Cir. 1972) 465 F.2d 968.

Here the conspiracy and the substantive counts involved charges of smuggling large amounts of marijuana from Mexico into the United States by airplanes and thereafter moving the marijuana in automobiles. The seats were generally removed from the plane in order to carry a large load of marijuana. The four sets of acts detailed below were sufficiently recent and similar in character as to be admissible under the general rule above.

(1) Emerzian testified that on February 28, 1971, prior to the conspiracy alleged in the indictment, Nunez and his wife came to Morgan’s home in Fresno, California, where Emerzian was present. This was just prior to a trip to Phoenix, Arizona, to spend the night and then go on to Mexico. The four of them, Emerzian, Morgan, Nunez and his wife, went to the airport at Chandler Field in Fresno in a station wagon. Morgan and Emerzian unbolted seats from an airplane in the presence of Nunez and his wife. The seats were placed in the station wagon. Nunez’ wife left with the seats in the station wagon and Nunez, Morgan and Emerzian left in the airplane for Phoenix, stayed there two nights, then flew to a dirt strip near Cu-liacan, Mexico, to pick up marijuana. Emerzian, Morgan and Nunez were present when the marijuana was loaded into the plane.

Nunez stayed in Mexico and Morgan and Emerzian flew to Palm Springs, California, and on to Palo Alto, California, where the marijuana was unloaded into a van after a phone call by Morgan.

(2) Three days later, Morgan and Emerzian flew back to Culiacan, Mexico, for another load of marijuana and met Nunez. A large amount of money was handed from Morgan to Nunez and from Nunez to the “people down there.”

The next day, Frank [Nunez] left to go back to the United States, probably by bus. Morgan and Emerzian flew back to Palm Springs, California, with the marijuana and transported it to Watsonville, California.

(3) Rutledge, another co-conspirator, testified that about Thanksgiving in 1971, he went with John Plemons to Los Angeles, where they picked up Nunez. He was introduced to Nunez by Plemons and they drove back to a house near Tarzana, California. Nunez and Ple-mons loaded the trunk of the car with 20 sugar sacks containing numerous kilos of marijuana. They returned to the motel where they had picked up Nunez and several of the kilos were opened in the presence of Nunez to make sure it was marijuana. Plemons and Rutledge then drove back to Fresno and on to San Francisco with the marijuana.

(4) An airplane was seized on April 6, 1971, along with 900 pounds of marijuana. Richard Morgan was arrested. A note was found in the plane (Ex. 140) in Nunez’ handwriting, reading:

“Rich;
You are going to land at a different strip. Pm still here where they’re packing, but I’ll be there when you land. The guy with the yellow shirt will fly back with you to show you the place to land.
P.S. Don’t worry, everythings O.K.
Frank.”

II.

The Conspiracy and the Substantive Counts

We relate in summary form the evidence as to Counts 2 through 7, and the facts concerning the dumping of a load of marijuana at Thermal, California. Apparently this incident was not the subject of a count in the indictment, but was a part of the conspiracy.

Concurrent sentences were imposed on Nunez on all substantive counts. Under the concurrent sentence doctrine of Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943), and Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), we do not review the sufficiency of the evidence as to Counts 2, 3, 8 and 9.

(a) The Marijuana Dump at Thermal

Mason, a pilot, testified he lived in Kerman, California, near Fresno. He met Morgan in Fresno some months before the date of his testimony. Morgan asked him if he would be interested in smuggling marijuana. Morgan was to set up the plan, and find an airplane and a road or alfalfa field to land in. He was to pay Mason $10,000 a trip. In December 1971, Morgan gave him the money to rent a plane in Lompoc, California. Mason then met Emerzian through Morgan. Mason and Emerzian flew the plane to Culiacan, Mexico. Emerzian had been there before and showed Mason the landing strip. They loaded it with marijuana and flew back to the United States. Because of trouble with the plane, they landed at Thermal, California, in the Imperial Valley. There they dumped the marijuana and the empty gasoline cans in a pile on the side of the runway.

Emerizan called Morgan. As a result of the call, Rutledge and one Richard Dillon came down from Fresno in a red Chevrolet pickup and met Mason. They had to abandon the marijuana.

Mason and Rutledge flew back to Ker-man. Emerzian and Dillon drove back to Fresno in the red Chevrolet pickup.

On his return, Mason talked to Morgan, who told him that the load was half paid for; that there would be no more trips until Frank [Nunez] found out for sure that the police or the authorities had picked up the marijuana load; that he [Nunez] had evidently thought they were trying to steal the load.

Mason took Rutledge back to Morgan’s apartment in Fresno. Morgan repeated the same statement and also said Frank [Nunez] was upset about losing the load.

Rutledge, a co-conspirator, testified that he was introduced to Morgan by John Plemons about December 1, 1971. Morgan told him how the smuggling operation would be conducted. He was to assist in the take-off, take the seats out of the plane, and upon returning from Mexico, unload the airplane and drive by car from 50 to 70 miles and then meet someone.

Rutledge went with Plemons and Morgan to buy a truck. Morgan, under the assumed name of John Fletcher, bought a red Chevrolet pickup with a white camper on it.

Rutledge helped Emerzian and Mason with the smuggling trip which resulted in dumping the load of marijuana at Thermal.

Emerzian, another co-conspirator, testified about his smuggling activities after the beginning of the conspiracy on December 1, 1971. Before December 9, 1971, Morgan asked him to take a pilot down to Mexico. The pilot, he later learned, was Mason.

Emerzian and Mason flew from Ker-man, California, to Culiacan, Mexico, and back. Emerzian confirmed Mason’s testimony about the trip and the dumping of the marijuana at Thermal.

(b) Counts 2 and 8

Count 2 charged Nunez, Mason and Morgan with smuggling marijuana on or about December 18, 1971. Count 3 charged Nunez, Mason, Morgan, Jewell and Rutledge with possessing marijuana with intent to distribute on the same date.

Mason testified that Morgan contacted him again about mid-December 1971. Morgan said everything was fine; that Frank [Nunez] had a friend in Palm Springs; that the authorities did pick up the load at Thermal and that “we were ready to go again.”

Shortly before Christmas 1971, Morgan and Mason picked up a plane at Whitman Field in the San Fernando Valley, and flew to Casa Grande, Arizona.

On December 19, 1971, Morgan rented Room 5 at the Western Sundown Motel. Rutledge had already checked into Room 16 at the motel on December 17, 1971, under the name of Steve Martin. Rutledge picked them up at the airport in a yellow Ford pickup. Morgan stated that Frank [Nunez] owned the pickup.

Morgan, Rutledge and Mason flew the plane and sought out a place to land it south of Casa Grande. Later they drove out in the pickup and selected a place where the plane could land on its return from Mexico.

The following morning, Morgan and Rutledge dropped Mason off at Three Point Airport in Casa Grande, Arizona, and Mason took off for Mexico. The seats in the plane had been removed.

Mason picked up a load of marijuana in Mexico and flew back to the place selected near Casa Grande. Rutledge drove up in the yellow Ford pickup and the marijuana was loaded into it.

Jewell, another co-conspirator, was registered in Room 407 at the Francisco Grande Hotel in Casa Grande on December 18 and 19, 1971. He drove up in a red Chevrolet pickup with California plates — the same one that Rutledge and Dillon had driven down to Thermal. The marijuana was trahsferred to the red Chevrolet pickup from the yellow Ford pickup. Jewell was supposed to drive the load back to Fresno.

Rutledge testified that about December 20, 1971, he met with Morgan. Morgan told him that “he had to do two loads, arrange two loads for Frank [Nunez] and then the third load he would receive the entire proceeds from, would be actually like his load of marijuana and he would make all the money on it.”

Morgan gave Rutledge the keys to the yellow Ford truck and told him to drive it to Casa Grande, Arizona. He registered into Room 16 at the Western Sundown Motel on December 17, 1971, under the name of Steve Martin.

Two days later, on December 19, Morgan and Mason arrived and checked into Room 5 of the Sundown Motel. The three of them flew around in a plane looking for a landing strip, then drove the yellow Ford pickup out to look the area over.

Morgan later returned to Fresno. Rutledge helped Mason take off in the plane. Mason left for Mexico at 4:30 a. m., and Rutledge was to meet him on his return about 6:00 p. m.

On Mason’s return they unloaded the marijuana from the plane into the yellow Ford pickup and parked it in from of the room at the Sundown Motel. He received a call from Jewell, who arrived in the red Chevrolet pickup. Rutledge, Mason and Jewell drove the two pickups to an uncompleted housing development across the street from the Casa Grande airport, and transferred the marijuana from the yellow Ford to the red Chevrolet.

(c) Counts k and 5

Count 4 charged Clark, Morgan and Nunez with importing marijuana about January 1, 1972, and Count 5 charged Clark, Morgan, Nunez, Rutledge and Jewell with possession of marijuana with intent to distribute, on the same date.

Rutledge testified that he was instructed by Morgan to fly to Phoenix and that he was met at the airport by Morgan and Clark. The following day he helped Clark take off from the Casa Grande airstrip for a flight to Mexico, and helped unload the marijuana from the plane upon Clark’s return. Rutledge and Clark returned to the Double-tree Inn at Scottsdale, where they were staying, and Morgan and Jewell were awaiting them.

Rutledge testified that Morgan made a phone call from a room in the Double-tree Inn “to Frank [Nunez] and he just told him everything went okey.” The marijuana was then moved to and unloaded at the 62nd Street house in Scottsdale.

Richard Morgan, under the name of Richard Martin, registered at the Dou-bletree Inn at Scottsdale, Arizona, in Room 206, on December 29, 1971, and stayed through January 4, 1972. The registration was for two people. Probably a third person occupied the room, since the hotel bill showed an additional room charge of $3.00.

The records of the Doubletree Inn show a long distance call on January 2, 1972, from Room 206 by a Richard Martin to Nunez’ number in Fresno. As shown in Appendix II, there were numerous phone calls from December 29 to January 4 from the Doubletree Inn, where Rutledge, Morgan and Clark were staying, to Nunez’ phone number in Fresno. Most of the calls were collect and accepted at Nunez’ number in Fresno.

(d) Counts 6 and 7

Count 6 charged Nunez, Morgan and Hindman with importing marijuana on January 7, 1972. Count 7 charged Nunez, Morgan, Hindman, Jewell and Gray with possessing marijuana with intent to distribute, on the same date.

Mason testified that he and Morgan prepared for another trip in early January, but it was called off by a call from Morgan when Mason arrived at Palm Springs. The seats had been taken out of the plane.

Morgan told Mason:

“Frank had lost an airplane and a couple of vehicles and a stash house. He was out a lot of money because of bail and so forth, and we wouldn’t do anything for a while.”

On January 4, 1972, Hindman registered into Room 256 at the Sun Dancer Hotel in Phoenix and stayed two nights. On January 6, 1972, he registered into Room 307 at the Casa Grande Motel in Casa Grande, and stayed through January 6 or 7, 1972. Hindman was the pilot for the load of marijuana.

From January 4 to 8, 1972, various law enforcement agencies conducted a surveillance of the yellow Ford pickup, the red Chevrolet pickup, a Buick Riviera and the stash house at 12820 N. 62nd Street in Scottsdale, Arizona, eventually resulting in the arrests of co-conspirators Gray, Hindman, Jewell and Clark.

The officers also kept under observation the Holiday Inn and Doubletree Inn in Scottsdale; the Casa Grande Motel, and Francisco Grande Hotel and airport, in Casa Grande; Falcon Field, an airport at Mesa, Arizona; and a Cessna airplane, No. N3969G, which was located at Falcon Field. The yellow Ford pickup was followed and observed at various places — at Falcon Field, at the house on 62nd Street, at the Holiday Inn, and elsewhere. Also, the Buick Riviera was followed and observed in various places, including the house on 62nd Street.

On January 4, 1972, Rutledge and Clark were observed at Falcon Field in the yellow Ford pickup. They flew off in. the Cessna plane, No. N3969G. On January 5, 1972, they moved out of the Doubletree Inn and went to the stash house on 62nd Street. Rutledge had been staying in Room 178 at the Holiday Inn. On January 6, Hindman flew the Cessna plane from Falcon Field to the Francisco Grande Airport. Jewell arrived with the yellow Ford pickup in the parking lot at the Francisco Grande Hotel.

On January 7, the Cessna plane took off with apparently Hindman piloting it, since he was missing from his room. The plane returned that evening and landed at Eloy Airport near Casa Grande. Hindman was seen going into the Francisco Grande Hotel.

On January 7, the yellow Ford pickup left the 62nd Street house. The Ford pickup was stopped and the driver Gray arrested. The pickup contained green garbage bags containing 774 pounds of marijuana in kilo bricks. On the same day the airplane was seized and marijuana debris taken from it.

Hindman was arrested in his room. Jewell was also arrested. A search warrant was secured for the stash house on 62nd Street, and was served at 5:00 a. m. on January 8, 1972. Marijuana was found in the house. The Buick Riviera and the red Chevrolet pickup were seized.

Discussion

1. Sufficiency of the Evidence as to the Conspiracy

From the foregoing it is clear that the conspiracy existed as alleged in Count 1 of the indictment, involving Mason, Morgan, Jewell, Rutledge, Clark, Hindman, Gray and Emerzian. The only real question is whether Nunez was connected to the conspiracy.

“Once the existence of a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it.” United States v. Knight (9 Cir. 1969) 416 F.2d 1181, 1184 (quoting); Fox v. United States (9 Cir. 1967) 381 F.2d 125, 129; Diaz-Rosendo v. United States (9 Cir. 1966) 357 F.2d 124, 130, cert. den., 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83; United States v. Iacovetti (5 Cir. 1972) 466 F.2d 1147, 1154, cert. den. (1973), 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270.

Certain facts and events definitely connect Nunez with the conspiracy.

The Yellow Ford Pickup

On November 19, 1971, Cram, a salesman at Quality Car Company in Phoenix, sold a 1969 yellow Ford pickup to a “Frank Martin” for $3,300, which Martin paid for with thirty-three $100 bills. The sales document was Exhibit 3. There were received in evidence applications for driver’s licenses: Exhibit 100, application by Frank Nunez; Exhibit 101, application by Frank Martin; each with a signature and a thumbprint. The signatures on the two driver’s licenses, Exhibits 100 and 101, and Exhibit 3, the bill of sale, were the same.

Exhibit 106 was a thumbprint of Nunez taken during the trial. The thumbprints from Exhibits 100, 101 and 106 were identical. Clearly, Nunez owned the yellow Ford pickup.

The prior acts and events invloving Nunez could be considered by the jury as to Nunez’ intent in the use of the Ford pickup.

The jury could infer that the use of the Ford by the co-conspirators was with Nunez’ consent, and that his intent was to further the smuggling venture.

The Buick Riviera

The Buick Riviera was observed on various occasions during surveillance of the co-conspirators. It was seized at the 62nd Street house. In it was the pink slip for the car, Exhibit 45, which showed registration to Flores Frank Garcia, 1622 North Delmar, Fresno, California, and legal ownership in P. J. Eads, 3655 East Tulare Street, Fresno, California.

The facts about the Buick Riviera were as follows:

Joe Garcia Perez identified Exhibit 45 as the pink slip to a 1967 Buick Riviera. He had purchased the vehicle from P. J. Eads. He put the car in the name of his brother, Frank Garcia Flores [sic], but Garcia Perez continued to drive the car. He then talked to Nunez and wanted to sell the car. Nunez said he could get a buyer. Garcia Perez secured the pink slip from his brother, had his brother sign it over, and gave it and the car to Nunez. Later, Nunez gave him $1,500 or $1,600 and indicated he had sold the car in Garcia Perez’ behalf.

Thus when the pink slip was found at the time of the seizure of the Buick Riviera, it was apparent that Nunez had never transferred the ownership of the car, but had retained it for himself.

There was further confirmation of this fact by the finding in the Buick Riviera of a hotel bill (Ex. 44) from the Hyatt House Hotel in Palo Alto, California. Nunez registered into the hotel on December 12, 1971, under the name of Frank Nunez, with an address at 4475 N. Chestnut, Fresno, California. Nunez lived at this address. Also, the Buick Riviera was seen in August 1971 in front of Nunez’ home at the above address. On another occasion, Nunez was observed driving the Buick Riviera.

The prior acts and events involving Nunez also bear on the problem of the Buick Riviera. The jury could infer his intent to allow the other co-conspirators to use the Buick Riviera in the smuggling venture.

The Posting of Bail by Nunez

After the seizure of the cars, the search of the 62nd Street house and the arrest of various of the defendants, Nunez made bail for Hindman, Jewell and Gray.

The facts show that Mrs. Hindman called Awbrey, a bail bondsman, and gave him a number to call in Fresno. Nunez lived in Fresno. On his call Aw-brey reached a babysitter. The babysitter advised Awbrey where Nunez could be reached. The jury could infer that the babysitter was in Nunez’ home in Fresno.

Awbrey reached Nunez by phone and later met him and arranged for bail. Awbrey quoted Nunez as saying he had never seen nor met Hindman, Jewell or Gray and didn’t know any of them. Nevertheless, he posted bail for the three co-conspirators, paid Awbrey $1,600 for the bail bond, and pledged his clothing store, furniture and fixtures, worth $32,000, as security for the bond. From this the jury could reasonably infer that Nunez, in bailing out the three co-conspirators, was acting in furtherance of the conspiracy.

The prior act and events involving Nunez have a bearing on Nunez’ intent in posting bail. The jury could infer he did so to further the smuggling venture and not for some humanitarian motive for men he did not know.

Nunez’ Arrest

Nunez was arrested on May 11, 1972, in Madera, California. He was in company with Richard Lee Morgan, one of the co-conspirators, while Morgan was under surveillance prior to being arrested.

The Phone Calls

Many phone calls on or near the dates of Counts 2 through 7 were introduced into evidence by the telephone bills of Nunez and various co-defendants, and from the bills for the phone in the stash house on 62nd Street.

They fall into several categories: (1) Calls to and from Nunez’ phone in Fresno. We set forth these calls in Appendix I. (2) Calls to the phone number of a Manuel Nunez in Redwood City, from the phones of Nunez and other co-defendants. (3) Calls from the phones of Nunez and other co-defendants to the phone number of the Monterey Fairground Travelodge. It is apparent that the phone number of Manuel Nunez and the Travelodge were important cogs in the communication system of Nunez and his co-defendants. (4) Calls between the phone numbers of various of the co-defendants. We set forth in Appendix II the calls in categories 2, 3 and 4.

These phone calls, and particularly those to and from the Nunez phone in Fresno, were devastating as to Nunez. The pattern of the calls could not have been a coincidence or unrelated to the conspiracy. They picture Nunez as “Mister Big,” the leader and brains of the conspiracy.

Viewing the evidence in a light most favorable to the Government, as we must, we hold the evidence was sufficient to support the conviction of Nunez on the conspiracy count.

2. Sufficiency of the Evidence as to the Substantive Counts

As to Counts 4 and 5, the yellow Ford pickup figured prominently in the transaction. The Ford belonged to Nunez, under an assumed name, Frank Martin, under which assumed name Nunez also had a driver’s license. Rutledge picked up Mason and Morgan at the airport in Casa Grande, Arizona, in the Ford. The Ford was used to survey a place to land when the plane returned from Mexico with the load pf marijuana. The Buick Riviera was used by various co-conspirators.

When Mason flew back to the strip, the marijuana was loaded into the Ford and then transferred to the red Chevrolet.

Morgan made a phone call from Rutledge’s room in the Doubletree Inn to “Frank [Nunez] and he just told him everything went okey.”

As to Counts 6 and 7, the surveillance leading up to the seizure of the yellow Ford pickup with a load of 774 pounds, of marijuana, covered the yellow Ford pickup belonging to Nunez, and the Buick Riviera, which the jury could infer belonged to him. The Buick Riviera was previously seen in front of Nunez’ house and Nunez had been seen driving it. The pink slip was found in the Buick Riviera. It was apparent the car had never been registered after Nunez received the car and the pink slip from Perez and paid him $1,500 or $1,600.

We hold there was sufficient evidence to sustain the conviction of Nunez on Counts 4 and 5 and on Counts 6 and 7. The jury was properly instructed that to find a defendant guilty, it need only be shown that as an aider and abettor he associated himself with the venture and did some act to make the venture succeed. Thus the jury could find that Nunez acted as an aider and abettor in the transactions in Counts 4 and 5, and 6 and 7.

In addition, the phone calls discussed, supra, tie Nunez into the transactions in Counts 4 and 5, and Counts 6 and 7. The jury could infer that although Nunez was not present, he was masterminding the transaction.

3. Other Contentions

Nunez complains of the admission into evidence against him of statements by co-conspirators referring to Frank [Nunez]. He contends: (1) there was insufficient “independent evidence that at the time of the declaration, the declarant and the other person were engaged in a concert of action involving the claimed conduct in question,” citing United States v. Adams (9 Cir. 1971) 446 F.2d 681, 683, cert. den. 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257; and (2) that the admission of the evidence of Mason, Rutledge and Emerzian reporting Morgan’s declarations violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.

As we have shown above, there was clear evidence that Morgan, the declax*-ant, quoted by the other co-conspirators, and Nunez were a part of the conspiracy.

Where, as here, the admission of the evidence complained of comes within an exception to the hearsay rule concerning statements of co-conspirators, this court has rejected attacks based on the Confrontation Clause of the Sixth Amendment. United States v. Griffin (9 Cir. 1970), 434 F.2d 978, 984, cert. den., sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971); and United States v. Adams, supra, 446 F.2d at 683. In Adams, as in our case, there was ample other evidence pointing to the guilt of the defendant. Nunez was not px'ejudiced by lack of confrontation. United States v. Sidman (9 Cir. 1972) 470 F.2d 1158, cert. den., 409 U.S. 1127, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973), is not in point. There the conspiracy had ended and the hearsay statement did not come within the exception to the hearsay rule pertaining to federal conspiracy trials. Id., 470 F.2d at 1171.

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) is not controlling since there the extrajudicial statement was a confession of a declarant implicating the defendant. United States v. Ellsworth (9 Cir., 1973), 481 F.2d 864, at 871. The statement in Bruton was not one in furtherance of a conspiracy or a common scheme within the recognized exception to the hearsay rule. See Dutton v. Evans, 400 U.S. 74, 85-86, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). It was -not the intent of Bruton to nullify the co-conspirator exceptions to the hearsay rule. United States v. Projansky (2 Cir. 1972) 465 F.2d 123, 137-8, cert. den., 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299.

Nor does Dutton, supra, control. There the Court considered a state statute and declined to rule on the hearsay exception embodied in federal law concerning conspiracies. Id. 400 U.S. at 82-83, 91 S.Ct. 210. The Court stated:

“For this Court has never indicated that the limited contours of the hearsay exception in federal conspiracy trials are required by the Sixth Amendment’s Confrontation Clause.” Id. at 82, 91 S.Ct. at 216.

Most of the items of testimony complained of, containing declarations by Morgan, were clearly evidence in furtherance of the conspiracy. The only vice in some of them was the reference to “Frank.” For example, Morgan’s statement to Mason that the load was half paid for and there would be no more trips until it was certain the police or the authorities had picked up the marijuana that had been dumped at Thermal, was to that extent a statement of fact and not subject to objection. The statement that Frank had a friend in Palm Springs and that the authorities did pick up the load at Thermal and that “We were ready to go again,” is a statement of fact and not a recital of something said by another co-conspirator. Morgan’s statement about the three loads, apart from the reference to Frank, that the third load was Morgan’s and he would receive the entire proceeds from it, was not otherwise subject to objection. Morgan’s phone call from Rutledge’s room at the Doubletree Inn, in which he called Frank by name and told him everything went okey, was a matter within the observation of the witness and in no wise subject to objection. Likewise, the statement that Frank had lost an airplane, a vehicle, a stash house and a lot of money, was a statement of facts which bore upon the conspiracy and not a recital of anything that Frank had said.

In view of the overwhelming evidence tying Nunez into the conspiracy, we cannot say that the testimony referring to acts or statements of Nunez was prejudicial. If there was error, it was harmless.

The judgments of conviction are affirmed.

APPENDIX I

Calls to and from Nunez’ home

The following charts the calls by various dates to or from the phone number of Nunez (Fresno 291-5125), to or from the phone numbers of other co-defendants, and to the phone number of Manuel Nunez and the Monterey Fairground Travelodge.

12/16/71 — 291-5125 (Nunez) Fresno to 368-2446 (Manuel Nunez) (Redwood City)

12/18/71-291-5125 (Nunez)

12/18/71-291-5125 (Nunez)

12/18/71 — 291-5125 (Nunez) accepted a collect call from a public phone in Redwood City (Manuel Nunez?)

291-5125 {Nunez) Fresno to 368-2446 {Manuel Nunez) (Redwood City) 12/20/71-(7:17 p.m.)

12/20/71 — 291-5125 (Nunez) Fresno to 846-9427 {Mason) (7:55 p.m.) (Kerman)

12/20/71-(7:57 p.m.) -291-5125 (Nunez) Fresno to 368-2446 {Manuel Nunez) (Redwood City)

12/29/71-947-5411 Doubletree Inn (Morgan, Clark and Rutledge staying at Inn); collect call to 291-5125 (Fresno) (Nunez)

12/30/71-three similar collect calls to (Nunez)

12/31/71-a similar collect call to (Nunez)

Appendix I Continued on Following Page

APPENDIX I (Continued)

Calls to and from Nunez’ home (Continued)

12/30/71 — 948-6691 (stash house) to 291-5125 (Fresno) {Nunez)

12/31/71 — from public telephone in Eloy, Arizona — collect call to 291-5125 (Fresno) {Nunez)

1/1/72 — three more collect calls from Doubletree Inn to {Nunez)

(Approximate date of load)

1/2/72 — 947-5411 Doubletree Inn (Room 206; Frank Morgan registered as Frank Martin)- — call to 291-5125 (Fresno) {Nunez)

1/2/72- — -291-5125 {Nunez) to 948-6691 — stash house, Scottsdale 1/2/72 — three more collect calls from Doubletree Inn (947-5411) to 291-5125 (Fresno) {Nunez)

1/2/72 — two collect calls to 947-5411 (Doubletree Inn) from Fresno numbers and charged to 291-5125 {Nunez)

1/2/72 — call from phone in Fresno to stash house, Scottsdale (948-6691) and charged to 291-5125 {Nunez)

1/3/72 — collect call from Doubletree Inn {Morgan, Clark, Rutledge at Inn) and charged to 291-5125 {Nunez)

1/3/72 — 291-5125 {Nunez) Fresno — two calls to 363-2446 (Redwood City) {Manuel Nunez)

1/4/72 — Sun Dancer Hotel, Phoenix — {Hindman, Room 256) to Fresno 291-5125) {Nunez)

1/5/72- — two similar calls to Fresno 291-5125 {Nunez)

1/4/72 — 367-5935 {Hindman) to Fresno 291-5125 {Nunez)

1/5/72 — 948-6691 (stash house) to Fresno 291-5125 {Nunez)

1/7/72 — -948-6691 (stash house) to Fresno 291-5125 {Nunez)

(Date of arrests)

1/6/72 — 291-5125 {Nunez) Fresno to Monterey Fairground Trave-lodge

1/7/72 — a similar call

1/8/72 — call from phone in Sweet Home exchange, Lebanon, Oregon {Hindman) to Fresno 291-5125 {Nunez)

1/12, 13, 14 and 15 — four calls from 291-5125 {Nunez) Fresno to the Monterey Fairground Travelodge 1/14/72 — 367-5935 {Hindman) to Fresno 291-5125 {Nunez)

APPENDIX II

Other phone calls

There were three situations that need explanation to better understand the phone calls.

(1) Manuel Nunez lived in Redwood City with phone number 368-2446. We cannot find in the record whether or not he was identified as a relative of appellant Nunez or otherwise. However, regardless of his identity, there is a series of calls to Manuel Nunez’ number from Frank Nunez’ phone number; and calls from phone numbers linked to the following co-defendants to Manuel Nunez’ number: Jewell, Steve Rutledge (Steve Martin), Emerzian, Morgan and Mason. The only reasonable inference is that Manuel Nunez or his phone number was a cog in the communication system between Frank Nunez and his co-defendants.

(2) Richard Martin (Morgan). Rutledge testified he was met at the Phoenix Airport by Morgan and Clark. When Clark returned from Mexico with his load of marijuana, Rutledge testified that he and Clark returned to the Dou-bletree Inn at Scottsdale, where they were staying. Morgan and Jewell were waiting for them.

There is a registration on December 29, 1971, under the name of Richard Martin for Room 206 in the Doubletree Inn in Scottsdale, Arizona, for two persons. Possibly a third person stayed in the room. Rutledge testified further that Morgan made a phone call to “Frank” [Nunez] from the room in the Doubletree Inn. On January 2, a long distance call was made from “Martin” in Room 206 to Nunez’ number in Fresno (291-5125) and other calls were made from the Doubletree Inn, where Morgan, Rutledge and Clark were staying, to Nunez’ number in Fresno, both before and after January 2,1972.

Calls from Room 206 were made by co-defendants Rutledge (Steve Martin) and Clark. Collect calls were accepted by Room 206 from Jewell and Richard Martin and from a pay phone in Casa Grande. It is clear that Richard Martin was Richard Morgan, one of the principal co-defendants.

(3) Monterey Fairground Travelodge. Calls were made from Nunez’ number in Fresno (291-5125) to the phone number of the Lodge (373-3381) and from the following co-defendants’ phone numbers to the Lodge:

Hindman. There was a call on January 4, 1972, from Room 256 in the Sun Dancer Motor Hotel in Phoenix where Hindman was staying to the Monterey Fairground Travelodge (373-3381), and a call the same day to Nunez’ number in Fresno (291-5125). On January 5, there were two calls to the Monterey Lodge (373-3381), and two calls to Nunez’ phone in Fresno (291-5125). Hind-man moved to Room 307 at the Francisco Grande Hotel in Casa Grande, Arizona. On January 6 and 7, calls to Monte-rey Fairground Travelodge (373-3381) were charged to Room 307. There were calls from Hindman’s phone (Sweet Home exchange, Lebanon, Oregon) (367-5935) to the Monterey Fairground Travelodge (373-3381) on February 2, 1972.

Nunez. On January 6 and 7, 1972, the same date of the calls from Hind-man’s room in the Francisco Grande Hotel to Nunez’ number in Fresno, calls were made from defendant’s number in Fresno (291-5125) to the Lodge (373-3381). Calls were made on January 12, 13 and 14 and 15 from 291-5125 (Nunez) to the Lodge. •

Emerzian’s number (224-5012) shows a call from Fresno to the Lodge (373-3381) on January 12, 1972; another call on January 13; and two calls on January 17,1972.

It is a reasonable inference that someone at the number at the Travelodge was another important cog in the communication system of Nunez and his co-defendants.

THE SUMMARY OF THE PHONE CALLS

We have adopted, with certain minor corrections after checking the exhibits, the summary prepared by the Government of the other phone calls.

Phone Calls — December 17-27, 1971 (Counts 2 and 3)

On December 17, 1971, Steve Rutledge registered and checked into Room 16 at the Western Sundown Motel in Casa Grande, Arizona, under the name of Steve Martin. He testified that he was to wait there for a contact by Morgan; that after two days Morgan and Mason showed up, calling him from the airport at Casa Grande.

Roger Mason testified that he and Richard Morgan flew from California to Arizona, landing at the Three Point Airport near Casa Grande; and that they checked into the same motel together and shared the same room. Records show it was Room 5.

A registration slip from the Francisco Grande Hotel in Casa Grande, shows that a Gerald Jewell registered into Room 407 on December 18, 1971. The Francisco Grande’s records show a long distance phone call made from Room 407 by “Jerry Jewel” on December 19, 1971, at 2:42 a. m., to Manuel Nunez in Redwood City, California.

The telephone bill for defendant Nunez’ number (listed under his alias of Frank Martin) in Fresno, California, shows calls to the phones of Manuel Nunez and Mason. It shows a call on December 16, 1971, to Manuel Nunez in Redwood City; shows two calls to Manuel Nunez’ phone on December 18; and on December 18, a collect call from a public phone in Redwood City was accepted at the Nunez’ number. On December 20, two calls were placed from Nunez’ home phone to Manuel Nunez’ phone, one at 7:17 p. m. and one at 7:57 p. m. At 7:55 p. m., two minutes before the second call, a call was made from Nunez’ number to Mason’s number in Kerman.

Calls made from Room 16 of the Western Sundown Motel, which was occupied by Steve Rutledge registered as Steve Martin, were as follows: the morning of December 17, a call was made to Emerzian’s phone in Fresno; the morning of December 19, a call was made to Manuel Nunez’ number.

Calls were made from Room 5 of the Western Sundown Motel, which was occupied by Morgan and Mason during this time, as follows: on the morning of December 19, two calls were made to Mason’s number; on December 20, two calls were made to Emerzian’s number; on the morning of December 21, a call was placed to Emerzian’s number and another to Mason’s number; at 1:25 a. m. on December 22, a call was placed to Emerzian’s number and at 9:00 a. m. a call was placed to Mason’s number. On December 22, seventeen calls were placed from Room 11, sixteen by Martin and one by “Roger.” Roger was Mason’s first name. One of the calls was to Emerzian’s number and another to Mason’s number.

The telephone bill for Emerzian’s (and Morgan’s) number in Fresno reflects a collect call from the Western Sundown Motel on December 17, 1971, and two telephone calls to that motel the evening of December 18. The bill also shows that six calls were made in early December to Mason’s phone in Kerman.

Emerzian’s phone bill also shows that on December 19, 1971, a collect call was made from a public telephone in Casa Grande, Arizona, to Manuel Nunez’ number and charged to Emerzian’s phone. Emerzian’s phone bill further shows that between December 18 and 27, five calls, one at 5:55 a. m. on December 19, were placed to Mason’s number. On December 20, a call was placed to Manuel Nunez’ number and a collect call was received from the Western Sundown Motel. On December 21, another call was placed to Manuel Nunez’ number and two collect calls were received from the Western Sundown Motel. Also on December 21, there was a call from a public telephone in Fresno to Manuel Nunez’ number, and another call from a public telephone to Manuel Nunez’ number, billed to Emerzian’s number. On December 22, there was a call from a public telephone in Fresno to the Western Sundown Motel, billed to his number. Also on December 22, a call from a public telephone in Oakland, California, to Manuel Nunez’ number was billed to this number.

Other records show that during the period of December 18 through December 22, 1971, many calls were made from the rooms of co-defendants Jewell (Room 407 of the Francisco Grande), Rutledge (Room 16 of the Western Sundown Motel) and Morgan and Mason (Room 5 of the Western Sundown Motel) in Arizona, to the telephone of Manuel Nunez in Redwood City, California. During this same period of time calls were made to Manuel Nunez’ number from Emerzian’s and Morgan’s number in Fresno, to which the co-defendants were also placing calls, and from a public telephone in Casa Grande. During this same period of time Nunez’ number shows four calls to Manuel Nunez’ number in Redwood City and a collect call from a public telephone in Redwood City.

During the period of December 19 through 22, calls were placed from the room of co-defendants Morgan and Mason (Room 5 of the Western Sundown Motel) to Mason’s number in Kerman. On December 20, a call from Nunez’ number, to Mason’s number.

Phone Calls — December 29, 1971, to January U, 1972 (Counts 4 and 5)

Rutledge testified he came to Phoenix to assist in the load and was met at the Phoenix Airport by Morgan and Clark. The next day he helped Clark to take off from the Casa Grande airstrip and to unload the plane upon his return. Rutledge testified that when he' and Clark returned to the Doubletree Inn in Scottsdale, where they were staying, Morgan and Jewell were waiting there. Morgan made a phone call to Frank, telling him everything went okey.

On December 29, 1971, a party of two checked into Room 206 of the Doubletree Inn under the name of Richard Martin, and stayed through January 4, 1972. The records indicate that, while two people initially registered into Room 206, on the second day the rate went up $3.00 per night, showing that most likely another bed had been put into the room.

The records of the Doubletree Inn show a long distance call was made from Room 206 by a Richard Martin at 6:39 a. m. on January 2 to Nunez’ number in Fresno.

The records of the Doubletree Inn show also a telephone call made from Room 206 the morning of January 2, 1972, by a Steve Martin (Rutledge’s alias) to Area Code 209 in California; a call made from Room 206 under the name of Clark to Area Code 408 in California ; a collect -call to Room 206 was made on January 3 from a “Jerry Jew” in Fresno. (The custodian of the hotel records testified the call was from a “Jerry Jewell.”) There is also a record of a collect' call to Steve Martin in Room 206 from a Richard Martin at Area Code 209 in California; and a collect call to Room 206 from a pay phone in Casa Grande on January 2.

The telephone bill for Nunez’ number for this period shows that on December 29, 1971, a collect call was accepted at his number from the Doubletree Inn in Scottsdale, where Rutledge, Clark and Morgan were staying. Three more collect calls from the Doubletree Inn were accepted the next day, December 30. On December 31, a collect call from a public telephone in Eloy, Arizona, was accepted. On the same date another collect call from the Doubletree Inn in Scottsdale was accepted. On January 1, 1972, the approximate date of the load, three more collect calls were made from the Doubletree Inn to Nunez’ phone. On January 2, a call was made from the Nunez phone , to the phone at the stash house on 62nd Street in Scottsdale. On January 2, three more collect calls from the Doubletree Inn were received. Also on January 2, two more calls were made to the Doubletree Inn from different telephones in Fresno and charged to the Nunez’ number. Again on January 2, a call was made from a telephone in Fresno to the stash house on 62nd Street in Scottsdale and charged to the Nunez phone. On January 3, two calls were made to Manuel Nunez in Redwood City, California and a collect call was received from the Doubletree Inn on January 3, 1972, and accepted at Nunez’ number.

A telephone was installed at the stash house at 62nd Street in Scottsdale on December 30, 1971.

The telephone bill for the stash house shows that a call was made to Nunez’ number on December 30,1971.

The telephone bill for Emerzian’s (and Morgan’s) number at Fresno shows that on January 4 three calls were placed to the Doubletree Inn; two collect calls were received from the Double-tree Inn; and four calls were made to Manuel Nunez in Redwood City. Also on January 4, a collect call was received from the stash house on 62nd Street and another collect call was received from the Holiday Inn in Scottsdale.

On January 4, Steve Rutledge was staying at the Holiday Inn. He had cheeked out of the Doubletree Inn and into Room 178 of the Holiday Inn in Scottsdale after the conclusion of the second load of marijuana. The records of the Holiday Inn show that on January 4, 1972, a party of two registered into Room 178 under the name of Steve Rutledge from Fresno, California, and stayed one night.

The records also show that on January 3 a call was made to Manuel Nunez in Redwood City from Nunez’ phone, and on January 4 a call was made from the phone of co-defendants Emerzian and Morgan to Manuel Nunez.

Phone Calls — January 5,1972, to January 1J, 1972 (Counts 6 and 7)

These counts involve the raid on the stash house at 62nd Street in Scottsdale and the seizure of defendant’s yellow Ford pickup which was found to contain 774 pounds of marijuana.

Mike Hindman was the pilot for a load of marijuana seized January 7, 1972. The registration card from the Sun Dancer Hotel in Phoenix shows that Mike Hindman registered into Room 256 on January 4, 1972, for two nights.

The records of the Sun Dancer Hotel show two long distance calls were placed from Room 256 by “Hineman” on January 4: one was to the Nunez’ phone and the other was to Hindman’s unlisted number in Lebanon, Oregon; that on January 5, 1972, six long distance calls were placed from Room 256 by Hind-man; of these, two were to his home phone in Oregon and two were to Nunez’ telephone at his home in Fresno.

On January 6, 1972, Hindman registered at the Francisco Grande Hotel in Casa Grande, Arizona, in Room 307. He checked out on January 7.

The records of the Francisco Grande show that on January 6 a call was made from Room 307 by “Heinman” to the stash house at 62nd Street; calls were made on January 6 and 7 from Room 307 to Hindman’s home phone in Oregon; and calls on January 6 and 7 from Room 307 to the Monterey Fairground Travelodge in Monterey, California. Nunez’ telephone bill shows that he also made calls to the Monterey Fairground Travelodge on January 6 and 7.

The telephone bill for Hindman’s phone in Oregon shows that on January 4, 1972, two days before Hindman checked into the Francisco Grande, a call was made from his phone to Nunez’ phone. Hindman’s telephone exchange in Oregon was Sweet Home. A telephone bill of Nunez shows that on January 8 he received a call from a public telephone at Sweet Home, Oregon. Another of Hindman’s telephone bills shows that on January 14 a call was placed to Nunez’ number.

The telephone bill for the stash house at 62nd Street in Scottsdale shows that on January 5 a call was placed to Nunez’ phone; and that on January 7, the date of the arrests, a call was made to Nunez’ phone.

The telephone bill for Emerzian’s number shows a call to Mason’s phone on January 4. A call was made at 12:31 a. m. on January 5 to the Holiday Inn in Scottsdale, and on the same day a collect call was received from the Holiday Inn. On January 8, a call was placed to Mason’s number and on January 9 a call was placed to Manuel Nunez’ number. On January 10, five calls were made to Manuel Nunez’ number and between January 10 and 17 three calls were made to Mason’s number.

On January 12, 13 and 17, a total of four calls were made to Monterey Fairground Travelodge.

Counts 8 and 9

No record of phone calls was introduced as to Counts 8 and 9. As mentioned above, under the concurrent sentence doctrine, we have not considered Counts 8 and 9.


author: DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clovis Carl GREEN, Jr., Defendant-Appellant. Clovis Carl GREEN, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    Nos. 72-1839, 73-1189.
    United States Court of Appeals, Tenth Circuit.
    July 19, 1973.
    Rehearing Denied Aug. 15, 1973.
    Certiorari Denied Dec. 3, 1973.
    See 94 S.Ct. 583.
    Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for appellee.
    Charles E. Grover, Denver, Colo., for appellant.
    Before HILL, JONES and -DOYLE, United States Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   DOYLE, Circuit Judge.

This is a case like Johnson v. United States, 10 Cir., 485 F.2d 240, decided this day, in which the appellant challenges the validity of his sentence based on his not having been allowed to see the presentence report and a psychiatric report.

The appellant here was convicted in the District of Kansas on a two count Dyer Act charge. The court sentenced him pursuant to the indeterminate sentencing act, 18 U.S.C. § 4208(a)(2) to a maximum of four years. Appellant filed in the trial court a motion for reduction of sentence pursuant to Rule 35, Federal Rules of Criminal Procedure. This motion was denied, the court finding that the sentence was valid. Subsequently, the appellant filed a motion pursuant to 28 U.S.C. § 2255, which motion was also denied. Both judgments have been appealed and are consolidated.

Appellant maintains that his rights were violated because he was denied an opportunity to view the presentenee report. However, the record discloses that his counsel did see it. Appellant therefore maintains that he had a right to see the presentence report independently and that this right is not satisfied by submission of it to his attorney. We disagree with this contention.

Rule 32(c)(2), Federal Rules of Criminal Procedure, vests the discretion with respect to this in the trial court. The issue as to whether the presentence report should be turned over to the defendant is an embattled one but until now at least the cases hold that the trial court has the discretion to withhold it as such, even though it may now be required to disclose to the defendant those parts of it which it is taking into consideration in pronouncing sentence. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Stidham, 459 F.2d 297, 299 (10th Cir. 1972) and cases cited therein. The courts have recognized that presentence reports often contain information which is entitled to be protected in the interest of continuing the flow of facts concerning the accused. See United States v. Schipani, 435 F.2d 26 (2d Cir. 1970); Baker v. United States, 388 F.2d 931, 933 (4th Cir. 1968); Annot., “Defendant’s Right to Disclosure of Presentence Report,” 40 A.L.R.3d 681 (1971). The judge has an interest in encouraging a broad scope of knowledge so as to insure intelligent and effective sentencing.

Inasmuch as the presentence report here was submitted to trial counsel, we are unable to perceive any abuse of discretion on the part of the trial court in not furnishing the appellant personally with a copy of the report. See United States v. Dockery, 145 U.S.App.D.C. 9, 447 F.2d 1178, cert. denied, 404 U.S. 950, 92 S.Ct. 299, 30 L.Ed.2d 266 (1971).

The next point advanced is that one of the prior convictions of the accused is invalid because appellant was not represented by counsel. He relies on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) and the Supreme Court’s more recent decision in United States v. Tucker, supra. The Tucker case required a resentencing where the trial court had explicitly considered two convictions which were later vacated on the basis of the Supreme Court’s ruling in Gideon v. Wainwright, supra. Here, however, the trial court indicated that it did not take into account the conviction in question. The judge disavowed any reliance upon the prior conviction. Hence, the ease is distinguished from Tucker and the sentence is not invalid on this account. See United States v. DeVore, 423 F.2d 1069, 1075 (4th Cir. 1970); United States v. Trice, 412 F.2d 209, 210 (6th Cir. 1969).

Finally, appellant maintains that the report furnished by the Medical Center at Springifeld, Missouri, of the examination of him, pursuant to 18 U.S.C. § 4244, contained false and vindictive information, whereby he is entitled to an evidentiary hearing and • resentence. Thus, the appellant claims the right to have a trial and an opportunity to rebut the presentence report in its entirety. He claims this as an ingredient of due process. The cases do not support this claim. Williams v. Oklahoma, 358 U.S. 576, 584-585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Hoover v. United States, 268 F.2d 787, 790 (10th Cir. 1959).

As previously noted, the appellant’s counsel examined the presentence report, presumably in its entirety, and there was no objection to its accuracy prior to the sentencing. Appellant now attempts to once again litigate the insanity issue by challenging the Medical Center’s diagnosis. In so doing he would impeach the jury’s verdict that he was sane. Inasmuch as the issue was fully presented and considered, and in view of the fact that there was very substantial evidence presented which included a report from the Wyoming State Hospital, a report from a Denver psychiatrist who testified for the appellant at trial and a report from a Kansas psychiatrist, it cannot be said that the judge was not fully advised. Accordingly, we conclude that the trial court acted properly in rejecting the appellant’s demand for an evidentiary hearing in respect to the psychiatric material in the presen-tence report. See Jordan v. United States, 421 F.2d 493, 498 (9th Cir. 1970).

In summary, we hold that the court fulfilled its obligation to communicate to the accused information relied on in pronouncing sentence so that the accused could correct or explain that information.

We see no merit in any of the defendant’s contentions. Accordingly, the judgments of the trial court should be and the same are hereby affirmed.

      . The record discloses the following:
      THE COURT:
      * :H * * *

      Now, the Court has ordered a pre-sentence investigation in regard to this matter. Mr. Sieve, have you had a chance to examine the pre-sentence report and discuss its contents with your client?

        MR. SIEVE: Yes, I have, Your Honor. THE COURT: Do you have anything to say?
      MR. SIEVE: No, Your Honor, except that the defendant would like it put in the record that lie has not been allowed, to have in his possession and go over a copy of this pre-sentence investigation report himself. I have some comments as to his sentencing, yes, sir.
      THE COURT: He does not have a right to see the pre-sentence report and that’s all there is to it and you can note your objection in that regard. I’ll hear your comments about it.

      . Rule 32(c) (2) provides:
      (2). Report. The report of the pre-sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presen-fence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.

      . Justice Black recognized this in Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) when he said:
      A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial. (Footnote omitted.)


text:
    AETNA INSURANCE COMPANY, Plaintiff-Appellant, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Defendant-Appellee.
    No. 73-1514
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 7, 1973.

      James A. Dixon, Jr., Miami, Fla., for plaintiff-appellant.
    Daniel V. Ligman, Coral Gables, Fla., Jeanne Heyward, Miami, Fla., for defendant-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

We affirm on the basis of the findings of fact and conclusions of law of the trial court, appended hereto.

Affirmed.

APPENDIX

[Title Omitted]

[Filed December 26, 1972]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I.

STATEMENT OF THE CASE

1. This is a declaratory judgment action filed by Plaintiff, Aetna Insurance Company, against Defendant, Fidelity & Casualty Company of New York, seeking a declaration of its rights regarding insurance policies issued by Aetna and Fidelity.

2. By pre-trial stipulation the parties agreed that there were no disputed facts, or facts which remain to be litigated at trial; and that only the following issues of law remain to be determined by the Court:

(1) Whether or not the Plaintiff and Defendant insurance companies should contribute an equal share to the satisfaction of the judgment obtained by Cleveland Andrews vs. Winn Dixie Stores, Inc., and James Hunt.

(2) Whether or not the Indemnification Agreement between American Insulation Contractors, Inc., and Winn Dixie Stores, Inc., takes precedence and is controlling over the insurance coverage of American Insulation Contractors, Inc., and Winn Dixie Stores, Inc., and makes the insurance coverage immaterial and irrelevant.

II.

FINDINGS OF FACT

1. Plaintiff and Defendant are foreign insurance companies admitted to do business in the State of Florida.

2. Plaintiff, Aetna Insurance Company, insured American Insulation Contractors, Inc.

3. Defendant, Fidelity & Casualty Company of New York, insured Winn Dixie Stores, Inc., and James Hunt.

4. At all times material hereto, James Hunt was an employee of Winn Dixie Stores, Inc., acting within the scope of his employment.

5. On or about December 18, 1968, American Insulation Contractors, Inc. entered into an agreement with Winn Dixie Stores, Inc. whereby American agreed to indemnify and hold Winn Dixie harmless for any claim or loss arising out of the presence or activity of American Insulation on Winn Dixie’s premises notwithstanding said accident was caused in whole or in part by the negligence of Winn Dixie or its employees.

6. On March 29, 1969, Cleveland Andrews, an employee of American Insulation Contractors, Inc., was employed to perform certain work on behalf of his employer at the warehouse owned, operated and controlled by Winn Dixie Stores, Inc., and was injured by a tow motor vehicle owned by Winn Dixie Stores, Inc., and operated by James Hunt within the scope of his employment.

7. Cleveland Andrews filed suit in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida, Case No. 70-3195, seeking to recover damages from Winn Dixie Stores, Inc. and James Hunt by reason of personal injuries sustained as a result of the accident.

8. The Amended Complaint of Cleveland Andrews charged Winn Dixie Stores, Inc. with negligent maintenance of its premises and James Hunt with negligent operation of a tow motor.

9. Cleveland Andrews recovered a judgment in the amount of $68,500 plus costs against Winn Dixie Stores, Inc., and James Hunt. A Crossclaim for indemnification of Winn Dixie Stores, Inc. vs. James Hunt was denied by the Trial Judge in Case No. 70-3195, in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida. The finding of the Judge on the Crossclaim was that James Hunt and Winn Dixie Stores, Inc. were joint tort feasors, and that Winn Dixie Stores, Inc. was not entitled to indemnification from James Hunt.

10. Winn Dixie Stores, Inc. satisfied the judgment of Cleveland Andrews vs. Winn Dixie Stores, Inc., and James Hunt. Thereafter, Winn Dixie Stores, Inc. brought suit against American Insulation Contractors, Inc. based on the Indemnification Agreement. A judgment was entered in favor Winn Dixie in the amount of $68,500.00, plus interest and costs and attorneys’ fees in the total sum of $84,116.79, which said judgment has been satisfied based on the Indemnification Agreement between Winn Dixie Stores, Inc. and American Insulation Contractors, Inc. A draft in the amount of $84,116.79 was issued by the Plaintiff Aetna in this case on behalf of its insured, American Insulation Contractors, Inc.

11. American Insulation Contractors, Inc. filed a Third Party action in case No. 70-3195, in the Circuit Court of the 11th Judicial Circuit, in and for Dade County, Florida, against James Hunt for indemnification, which said third party action was dismissed and a judgment was entered in favor of James Hunt.

12. Both parties moved for Summary Judgment. Aetna’s Motion for Summary Judgment alleged that there was no genuine issue as to any material fact, that the issue is purely a matter of law and that it was entitled to a judgment in its favor of $41,058.40. Fidelity & Casualty’s Motion for Summary Judgment alleged that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law.

CONCLUSIONS OF LAW

13. The Court has jurisdiction of the parties and the subject matter.

14. The Indemnity Agreement between American Insulation Contractors, Inc. (Aetna’s insured) and Winn Dixie Stores, Inc., (Fidelity & Casualty’s insured) controls all the rights and obligations of the parties and their privies (the insurers). The fact that Winn Dixie and American Insulation carried public liability insurance does not detract from or modify the Indemnity Agreement entered into between Winn Dixie and American Insulation. Harrison v. American Fire and Casualty Company, Fla.App.1969, 226 So.2d 28; Hu-set v. Milwaukee Dressed Beef Co., 1970, 46 Wis.2d 317, 174 N.W.2d 740; North Central Airlines, Inc. v. City of Aberdeen, 8 Cir. 1966, 370 F.2d 129; Northern Natural Gas Company v. Roth Packing Company, 8 Cir. 1963, 323 F.2d 922; Busch & Latta Paint Co. v. Woermann Const. Co., 1925, 310 Mo. 419, 276 S.W. 614.

15. Therefore, Plaintiff, Aetna Insurance Company, cannot recover in this case and Defendant Fidelity & Casualty Company of New York is entitled to a judgment in its favor and to recover its lawful costs expended herein, such costs to be taxed hereinafter on due notice and hearing.

Done and Ordered in Chambers at Miami, Florida, this 26th day of December, 1972.

/s/ NORMAN C. ROETTGER, Jr.

United States District Judge.


author: CRAVEN, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. 20 “DEALER’S CHOICE” MACHINES AND COIN CONTENTS OF $3.50, Appellee. UNITED STATES of America, Appellee, v. 20 “DEALER’S CHOICE” MACHINES AND COIN CONTENTS OF $3.50, Appellant.
    Nos. 72-1976, 72-1977.
    United States Court of Appeals, Fourth Circuit.
    Argued May 8, 1973.
    Decided Aug. 30, 1973.
    Wistar D. Stuckey, Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on brief), for appellant in No. 72-1976 and for ap-pellee in No. 72-1977.
    Donald W. Tyler, Columbia, S. C. (Kermit S. King, Columbia, S. C., on brief) for appellee in No. 72-1976 and for appellant in No. 72-1977.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and BUTZNER, Circuit Judges.
   CRAVEN, Circuit Judge:

By this action, the United States sought the forfeiture, for failure to pay the required tax, of 20 “Dealer’s Choice” mechanical poker machines, alleging them to be coin-operated gaming devices as defined in 26 U.S.C. § 4462(a)(1). The district court found that the machines in question were coin-operated gaming devices within the statute. The court held, however, that the fifth amendment privilege was a bar to the forfeiture. United States v. 20 “Dealer’s Choice” Machines and Coin Contents of $3.50, 341 F.Supp. 1147 (D.S.C.1972). We think the finding of the court that the machines are within the statutes was not clearly erroneous. But because we hold that the fifth amendment is not a bar to the taxation or forfeiture of the machines, the decision of the district court must be reversed.

I.

The machines in question were fully described by the district court, 341 F.Supp. at 1148-1150, and the description need not be repeated here. The district court held that in the operation of the machines there was a substantial element of chance, and that the element of chance was kept substantial even as the skill of a player increased. The machines are thus similar to those involved in United States v. Korpan, 354 U.S. 271, 77 S.Ct. 1099, 1 L.Ed.2d 1337 (1957). “The machines also involved an element of chance sufficient to meet the requirements of [the statute], although skill may have had some part in playing them successfully.” 354 U.S. at 273-274, 77 S.Ct. at 1101. It is urged on appeal that the element of chance must be inherent in the machine itself. This is not required. See Tooley v. United States, 134 F.Supp. 162, 167 (D.Nev.1955). There must be a substantial element of chance in operating the machines. See United States v. 24 Digger Merchandising Machines, 202 F.2d 647, 649-650 (8th Cir.), cert. denied, 345 U.S. 998, 73 S.Ct. 1140, 97 L.Ed. 1404 (1953). What must be inherent in the machine are gaming features to distinguish the machine from a vending machine under 26 U.S.C. § 4462(b). Harvey v. United States, 214 F.Supp. 80, 83-84 (D.Or. 1962). See Szybski v. United States, 220 F.Supp. 806, 810 (E.D.Wis.1963).

Since the findings of the district court are not clearly erroneous, we thus hold the machines to be coin-operated gaming devices within the statute.

II.

As to the asserted fifth amendment defense, the district court found that to register these machines as coin-operated gaming devices would be an admission that they violate state statutes and would provide a link in the chain of evidence to prove guilt. The court thus held that the fifth amendment barred the forfeiture under Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L. Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed. 2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923 (1968), as applied to civil forfeiture proceedings by United States v. United States Coin & Currency [Angelini], 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971). We disagree.

The Court in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), stated:

The issue before us is not whether the United States may tax activities which a State or Congress has declared unlawful. The Court has repeatedly indicated that the unlawfulness of an activity does not prevent its taxation, and nothing that follows is intended to limit or diminish the vitality of those cases. . . . The issue is instead whether the methods employed by Congress in the federal statutes are, in this situation, consistent with the limitations created by the privilege against self-incrimination guaranteed by the Fifth Amendment.

390 U.S. at 44, 88 S.Ct. at 700. We must determine whether the statutory methods in the present case are like those in Marehetti-Grosso-Haynes or like those we held enforceable despite fifth amendment objection in United States v. Walden, 411 F.2d 1109 (4th Cir.), cert. denied, 396 U.S. 931, 90 S.Ct. 271, 24 L.Ed.2d 230 (1969).

In Marchetti the statutes were “directed at a small number of people who are inherently suspect of illegal activities,” and the area was permeated with criminal statutes. The operation of coin-operated devices, such as those involved here, is not so universally prohibited by state criminal statutes as was the wagering involved in Marchetti and Grosso, Nor is the statute directed at a small number of people. For example, in 1969 the $250 special tax was paid on approximately 19,000 devices, while the occupational wagering tax was issued for only 3,527 persons. For the same period tax revenue from the coin-operated gaming devices totaled approximately $12,345,000, which is approximately three times greater than the wagering tax revenue involved in Marchetti-Gros-so and six times greater than the narcotics tax revenue involved in Leary.

In Walden, where we held the fifth amendment privilege was not a defense to charges of violating the distilled spirits taxing statutes, we stated:

However, unlike the situation in Mar-chetti, the record does not suggest a practice nor a congressional purpose of making available to state officers the information obtained. Absent proof of such a practice, or at the very least, proof of purpose of federal agents to report registrations to state prosecuting authority, appellants . . . fail to establish that they would have been substantially endangered by compliance with the federal statutes. That alone distinguishes Marehetti-Grosso-Haynes.

411 F.2d at 1112-1113. There is likewise absent in the present case any evidence of the practice of federal agents to report the acquisition of tax stamps to state authorities, and the congressional purpose is apparently that such information will not be made available. In 1968 Congress amended 26 U.S.C. § 6806 and 26 U.S.C. § 7273 so that the special tax stamp required of coin-operated gaming devices need not be conspicuously posted. Likewise, the statutory requirement that a list of all persons who have paid special taxes be maintained for public inspection has been repealed, and such information is not generally available. One of the reasons for the amendments and repeal of these statutes was to avoid the self-incrimination problems present in Marchetti-Grosso-Haynes.

Since the coin-operated gaming devices taxes are not directed at a small group of persons whose activities are inherently suspect, and since there is no evidence that compliance with the federal statutes will provide a substantial danger of incrimination under state statutes, we hold that the fifth amendment is not a bar to the forfeiture action. Accordingly, the decision of the district court is

Reversed.

      . 26 U.S.C. § 4461 (1970), imposes a special tax of $250 per year for each coin-operated gaming device maintained for use on a person’s premises.

      . 26 U.S.C. § 4462(a) provides:
      For purposes of this subcliapter, the term “coin-operated gaming device” means any machine which is—
      (1) a so-called “slot” machine which operates by means of the insertion of a coin, token, or similar object and which, by application of the element of chance, may deliver, or entitle the person playing or operating the machine to receive cash, premiums, merchandise, or tokens, or
      (2) . . .

      . United States v. Walden, 411 F.2d 1109, 1111 (4th Cir.), cert. denied, 396 U.S. 931, 90 S.Ct. 271, 24 L.Ed.2d 230 (1969). See Leary v. United States, 395 U.S. 6, 13, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

      . See, e. g., United States v. One Bally Bounty In-Line, etc., Pinball Mach., 261 F.Supp. 187 (D.Md.1966).

      . 26 U.S.C. § 6806 (1970), formerly 68A Stat. 831 (1954) ; 26 U.S.C. § 7273 (1970), formerly 68A Stat. 866 (1954).

      . 26 U.S.C. § 6107 (1970) was repealed by the Gun Control Act of 1968, Pub.L. No. 90-618, Title II, § 203(a), 82 Stat. 1235.

      . See 26 C.F.R. § 301.9000-1 (1972).

      . Conference Rep.No.1956, 90th Cong., 2d Sess. (1968), 1968 U.S.Code Cong. & Admin.News 4435; S.Rep.No.1501, 90th Cong., 2d Sess. (1968).