author: MOORE, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. James BRETTHOLZ and Milton Santiago, Appellants.
    No. 1097, Docket 73-1895.
    United States Court of Appeals, Second Circuit.
    Argued July 19, 1973.
    Decided Oct. 3, 1973.

      Patrick M. Wall, New York City, for appellants.
    John L. Caden, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., and L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.
    Before MOORE and OAKES, Circuit Judges and TYLER, District Judge.

       Hon. Harold R. Tyler, Jr., United States District Judge for the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

James Brettholz and Milton Santiago appeal from judgments of conviction entered after trial by jury in the United States District Court for the Eastern District of New York. The indictment charged appellants and three other persons, Jerry A. Rosenblum, Jory Ira Prince, and Lon M. Posner, in three counts with violations of the federal narcotics laws: Count I charged defendants with knowingly and unlawfully possessing with intent to distribute one quarter kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1); Count II charged defendants with attempted distribution of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846; Count III charged defendants with conspiring to conceal, possess, and distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). A fourth count, naming appellant Santiago only, charged him with forcibly assaulting, impeding, and intimidating a federal narcotics agent engaged in the performance of his official duties, in violation of 18 U.S.C. §§ 111 and 1114.

Prior to trial, defendants Rosenblum, Prince, and Posner pleaded guilty to Count III, the conspiracy count, and appeared as government witnesses against appellants Brettholz and Santiago. Both appellants were found guilty as charged on the first three counts of the indictment; Santiago was also found guilty on Count IV. Brettholz was sentenced to a term of five years on each of the first three counts, the sentences to run concurrently, plus a parole term of three years, plus a fine of $1,000 on each count, for a total of $3,000. Santiago was sentenced to a term of five years on each of the first three counts, the sentences to run concurrently, plus a special parole term of three years; he was sentenced on Count IV to a term of imprisonment of three years, the sentence to run concurrently with those imposed under the first three counts of the indictment.

On appeal appellants raise no material issues of fact but argue (1) that reversible error occurred when the trial court permitted the introduction of testimony by co-defendant Posner that Brettholz had sold cocaine to Posner on ten prior occasions; and (2) that reversible error occurred when the trial court instructed the jury not to consider evidence which, appellants allege, tended to impeach the testimony of government witness Posner and supported the testimony of appellants. In addition, appellant Santiago argues (3) that the trial court committed plain and reversible error by failing to instruct the jury on the issue of self-defense with respect to Count IV, the assault count. We reject all three claims urged by appellants and, consequently, affirm the judgments of conviction.

A brief recital of the facts concerning this attempted sale of cocaine is necessary to a determination of the issues raised by appellants.

At trial the government’s evidence established that during the last week of July, 1972, after he had been contacted by government informer Gary Kaplan, co-defendant Jerry Rosenblum telephoned co-defendant Jory Prince for the purpose of securing one-half pound of cocaine. Prince in turn telephoned co-defendant Posner, who indicated that he would see whether he could find a source for the narcotic. Several days thereafter Posner contacted appellant Brettholz, informed the latter that he had a prospective purchaser of cocaine, and asked whether Brettholz could supply the drug. Brettholz told Posner to call back later that week; Posner did so and on that occasion Brettholz indicated that he could supply the half-pound of cocaine, and that he would meet with Posner the following day, August 5, 1972. (Trial Transcript, hereinafter “Tr.”, at 326-27).

The next day Brettholz met with Posner at the latter’s place of business, a car wash located in Far Rockaway, New York, which was co-managed by co-defendant Prince. Brettholz gave Posner a small sample of cocaine for the latter’s customer to “taste”, indicating that he would be able to supply only seven, and not eight, ounces of the drug. (Tr. 328-31). Posner then gave Brettholz the telephone number at co-defendant Prince’s home in Far Rockaway, instructing Brettholz to telephone him there at 7:30 that evening. (Tr. 331-32). After Prince himself had “tasted” the cocaine sample, he and Posner telephoned Rosenblum, who in turn contacted government informer Kaplan, with the information that the deal would be consummated that evening at the home of Jory Prince. (Tr. 152, 332). Kaplan quickly contacted the federal narcotics agent to whom he informed, Agent Hall, who made plans to be present with other agents and Kaplan in the vicinity of Prince’s home that evening.

At approximately 7:30 that night, the various characters in this narrative began to arrive at Prince’s house. First to arrive were Posner and Rosenblum, who went up to Prince’s upstairs bedroom for conversation. Posner had brought with him a brown shopping bag containing a scale with which to weigh the cocaine to be brought to the house by appellants Brettholz and Santiago; at trial Posner testified that the shopping bag had contained nothing but the scale. (Tr. 400, 433). In addition to the scale, Posner had brought the cocaine sample supplied earlier that day at the car wash by appellant Brettholz. (Tr. 336-37). Next to arrive at the house was government informer Kaplan, who secretly had been waiting in a parked auto with two federal undercover narcotics agents; Rosenblum went to the parked auto and accompanied Kaplan to the Prince house. All persons again convened in Prince’s upstairs bedroom. Kaplan “tasted” the cocaine, expressed approval, and was told to go back to his auto until the full supply of the drug had arrived. (Tr. 165, 178-79). At this same time the pre-arranged telephone call from Brettholz was received at the Prince residence. (Tr. 179, 340). Posner told Brettholz that “everything seemed to be all right, everything looked cool and he should come by.” (Tr. 340). Brettholz announced that he would do so after finishing his dinner.

At approximately 9:00 p.m. that evening appellants Brettholz and Santiago arrived at the house. The two men immediately went to the upstairs bedroom to confer with co-defendants Rosenblum, Posner, and Prince. (Tr. 341-43). After expressing concern at the number of autos parked outside, announcing that the cocaine was still in their auto, and looking around the house to chart an escape route just in case something went wrong (Tr. 185, 189), Brettholz, accompanied by Santiago, went back to their auto, to return to the house a few minutes later with the cocaine. Upon their return, Santiago positioned himself downstairs at the front door while Brettholz took the cocaine to the upstairs bedroom. (Tr. 190-91). Brettholz asked Rosenblum if he was the buyer; answering in the negative, Rosenblum ■then went outside to get the “purchaser,” government informer Kaplan. Rosenblum and Kaplan re-entered the house and were promptly searched for weapons by appellant Santiago, who was still keeping his vigil at the front door. (Tr. 127-28). Once upstairs Kaplan “snorted” or sampled the cocaine which Brettholz had brought, expressed satisfaction with the deal, and left the house, ostensibly to go to his auto for the purchase money. (Tr. 464).

Back at the auto, Kaplan informed the agents that the cocaine had arrived. At this point Kaplan and agents Hall and Lightcap went to the house. Lightcap waited outside. Santiago, still standing watch at the front door, latched the door after Kaplan and Agent Hall had entered, and admonished Kaplan for bringing others to the house against orders. (Tr. 467). Santiago, using colorful expletives to make his point, further warned Kaplan and Hall that nothing had better go wrong because “We f--people that f — us.” (Tr. 467). While Santiago was searching Hall for weapons, the latter unlatched the door to allow Agent Lightcap to enter; thereupon, Hall took out his badge, identified himself to Santiago as a federal agent (a fact which appellant Santiago disputes), and announced an arrest. (Tr. 469-70). Santiago responded by throwing a punch at Agent Hall and screaming, “Jimmy, Jimmy,” appellant Brettholz’s nickname. (Tr. 505). Other agents quickly entered the house and ran to the upstairs bedroom. Having heard all the commotion, defendants Prince, Posner, Rosenblum, and Brettholz went into action upstairs; Brettholz grabbed the cocaine and was seen by Agent Hall to be leaving out of a bathroom window. In the ensuing chaos, Brettholz escaped, only to turn himself in several days later. The other defendants were arrested on the spot.

After the arrests the agents conducted a search of the premises and the surrounding vicinity. A small plastic bag containing seven ounces of cocaine was found on the roof of a garage located directly behind the Prince house. (Tr. 528). The agents also found three small bags of marijuana in a shopping bag stuffed into a drawer of a bureau in Prince’s bedroom. (Tr. 537).

At trial both Brettholz and Santiago testified in their own defense, and each supported the other’s testimony. In essence, their defense was that they had gone to the Prince house not with the intention of selling cocaine, but for the purpose of buying marijuana from Posner for their personal use. The jury returned a guilty verdict on all counts of the indictment.

Appellants’ first argument on appeal is that the trial court committed reversible error by permitting a government witness, co-defendant Posner, to testify that he had bought cocaine from appellant Brettholz on ten occasions within a year prior to the transaction in question. Prior to Posner’s testimony the Assistant United States Attorney made an offer of proof to the trial court as to what Posner would testify, i.e., that Brettholz had sold cocaine to him on ten prior occasions. The prosecutor asked that the testimony be admitted on the theory that the ten prior sales “show[ed] that there was intent to distribute on the part of defendant [Brettholz] as opposed to being used for his own personal use.” (Tr. 136). The trial court ruled that the offered testimony would be admitted, as it later was over defense objection, on the ground that:

[I]t is pretty well established that proof of each commission of acts of a similar nature previously and not too remotely, of course, is some evidence of intent in a crime where intent is a necessary factor as it is in this case. (Tr. 137).
•X- * * -X- -X- -X-
I think the testimony would be admissible for the purpose I have stated a moment ago, that is, to show intent on the part of the defendant Brettholz. (Tr. 138).

Appellants contend that the admission of Posner’s testimony was reversible error since, they argue, “there was not and could not be any real issue of intent in the ease.” (Brief, hereinafter “Br.”, at 13). We disagree.

The law in this Circuit is that evidence of prior similar acts is admissible “for all purposes except to show the criminal character or disposition of the defendant.” United States v. Warren, 453 F.2d 738, 745 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972). See also, United States v. Deaton, 381 F.2d 114, 117 (2d Cir. 1967); United States v. Knohl, 379 F.2d 427, 438 (2d Cir. 1967); United-States v. Bozza, 365 F.2d 206, 213 (2d Cir. 1966); McCormick, Evidence § 190, at 447 et seq. (2d ed. 1972). The case law and the legal scholars uniformly indicate that such evidence is admissible if offered to prove knowledge, intent, or design on the part of the defendant; 2 Wigmore, Evidence § 300, at 192-93 (3d ed. 1940); McCormick, supra, Evidence § 190 at 449; United States v. DeCicco, 435 F.2d 478, 483 (2d Cir. 1970). In ruling on the admissibility of such evidence, the trial judge is required to balance all of the relevant factors to determine whether the probative value of the evidence outweighs its prejudicial character. Spencer v. State of Texas, 385 U.S. 554, 561, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); United States v. Deaton, supra, 381 F.2d at 117. As summarized by one scholar,

the problem is not merely one of pigeonholing, but one of balancing, on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.

McCormick, supra, Evidence § 190 at 453. See United States v. Byrd, 352 F.2d 570, 574 (2d Cir. 1965).

Appellants place great reliance upon the concurring opinion of Judge Lumbard in United States v. DeCicco, supra, and upon opinions from other circuits, for the proposition that evidence of similar prior acts is not admissible unless the defendant himself has first raised the issues of motive or intent. See 435 F.2d at 486. Appellants’ reliance is misplaced, however, since the cases in this Circuit provide otherwise. See, e. g., United States v. Freedman, 445 F.2d 1220, 1224 (2d Cir. 1971), where we held:

Evidence of similar acts by a defendant is admissible to prove his knowledge, intent, or design if knowledge, intent, or design “is placed in issue in the case at trial, either by the nature of the facts sought to be proved by the prosecution or the nature of the facts sought to be established by the defense.” United States v. DeCicco, 435 F.2d 478, 483 (2 Cir. 1970).

See also, United States v. Birrell, 447 F.2d 1168, 1172 (2d Cir. 1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed.2d 675 (1972); United States v. Egenberg, 441 F.2d 441, 443-44 (2d Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 530, 30 L.Ed.2d 546 (1971); United States v. Klein, 340 F.2d 547, 549 (2d Cir.), cert. denied, 382 U.S. 850, 86 S.Ct. 97, 15 L.Ed.2d 89 (1965).

In the case before us, intent was placed in issue by the defendants themselves in maintaining that they had gone to the Prince house not with the intention of selling cocaine (although the proof overwhelmingly showed otherwise) , but with the intention of purchasing marijuana for their own use. Under the circumstances, it cannot be said that the trial court abused its discretion in determining that the probative value of Posner’s testimony as to the ten prior cocaine transactions outweighed its prejudicial effect. Inasmuch as the prior acts of Brettholz involved a situation virtually identical to the transaction for which appellants were indicted, and inasmuch as intent was an element of the defense case, there was no error in the admission of Posner’s testimony.

Appellants next argue that reversible error was committed at trial when the trial court, pursuant to defense counsel’s motion, excluded certain evidence from jury consideration. A statement of the circumstances surrounding the trial judge’s ruling will make evident our reasons for rejecting appellants’ second argument on appeal.

On cross-examination, government witness Posner, who had already pleaded guilty to the conspiracy count of the indictment, testified that he had taken a scale to Prince’s house in a brown shopping bag for the purpose of weighing the cocaine, and that the shopping bag had contained nothing but the scale. (Tr. 393-94). Posner specifically denied that he had also carried marijuana to the Prince house in the shopping bag containing the scale. (Tr. 400-01, 433). Later in the trial another government witness, one of the arresting agents, testified that a search of the Prince bedroom had disclosed three small plastic bags of marijuana, found in a brown shopping bag that was stuffed in the drawer of a bureau. The three small bags of marijuana were marked for identification as Government Exhibits 3, 4, and 5.

Thereafter, the last government witness, a chemist for the Bureau.of Narcotics and Dangerous Drugs, testified that his chemical analysis had shown that the plastic bag found on the garage roof near the Prince house contained cocaine, and that Government Exhibits 3, 4, and 5 contained marijuana. Defense counsel, Attorney Gerling, moved to strike all of the chemist’s testimony on the ground of relevancy, arguing that the four exhibits (the cocaine plus the three bags of marijuana) had not been sufficiently connected to the appellants. The prosecutor later offered the four exhibits into evidence, and defense counsel objected to all four. The trial court immediately called for a side-bar conference with counsel, seeking clarification regarding defense counsel’s position as to the cocaine and three marijuana exhibits. After hearing defense counsel’s objections to the admission of the marijuana exhibits, the court admitted the cocaine and, pursuant to defense counsel’s motion, excluded the marijuana exhibits. The court then addressed the jury as follows (Tr. 573):

You have heard testimony and reference made to marijuana, three packages of marijuana.
They have no relationship whatsoever to this case and you are to give no consideration to them whatsoever. In other words, you are to treat them as something you have never heard about here in this courtroom.

It is to be noted that the foregoing matters occurred during the government’s direct case, after defense counsel had cross-examined Posner as to whether he had brought marijuana to Prince’s house on the night in question. On the defense case both appellants testified on their behalf and, as noted previously, their defense was that they had gone to the Prince house not to sell cocaine, but to purchase marijuana, a defense which defense counsel reiterated in summation.

At the close of the evidence and prior to the summations of counsel, defense counsel requested a jury instruction, granted by the trial court, making it clear to the jury that appellants were not charged with the purchase or attempted purchase of marijuana, but only with the attempted sale of cocaine (Tr. 904):

MISS GERLING: * * *
I have one request, and it is so simple I did not bother writing it out. I would like your Honor to so charge the Jury that this is a cocaine case, that my defendants are accused of the intent to sell and distribute cocaine, and not marijuana, that they are not being charged with the purchase or attempted purchase of marijuana.
The Court: Yes, I will do that.
In its charge to the jury, the trial court carefully discussed each count of the indictment, stressing that the crimes charged related to the drug cocaine; the court made no reference to marijuana in its instructions. After the charge, defense counsel requested a jury instruction “insofar as the marijuana is concerned,” (Tr. 1019), which the court denied, with defense counsel taking an exception.

On appeal appellants argue that, as a result of the trial court’s instruction to the jury to disregard the government’s marijuana testimony and exhibits (which instruction defense counsel had specifically requested), they were unable to impeach Posner’s credibility since they were “deprived of the force of compelling physical evidence that Posner had lied when he denied bringing marijuana to Prince’s house.” (Br. 25). We find no merit in this contention.

The language we have quoted from the trial transcript clearly establishes that defense counsel herself requested, and was granted, a court ruling by which the “compelling physical evidence,” i.e., the three government marijuana exhibits, were removed from the jury’s consideration. The trial court quite properly sustained defense counsel’s objection to those exhibits and excluded them, since appellants were not charged in the indictment with any marijuana offenses. Nor did defense counsel ever withdraw her objection to the marijuana evidence.

Appellants’ final contention on appeal relates to Count IV of the indictment, in which appellant Santiago was .charged with assaulting federal agent Hall when the latter and government informer Kaplan entered the Prince house through the door being guarded by Santiago. Hall testified that, after identifying himself to Santiago as a federal agent, Santiago punched him and began to holler, “Jimmy, Jimmy,” which was appellant Brettholz’s nickname. At trial Santiago testified that he could not remember whether Hall had identified himself as a federal agent prior to the commencement of the physical struggle. (Tr. 747-49).

On appeal Santiago argues that the trial court committed error by not instructing the jury on a theory of self-defense since, he argues, in both his trial testimony and in defense counsel’s summation, the self-defense theory had been clearly raised. This contention is wholly without merit, for the record shows that (1) Santiago’s testimony on direct did not clearly establish that he had assaulted Agent Hall in self-defense; (2) although in summation she alluded to the theory, defense counsel did not request an instruction concerning the self-defense allegation; and (3) defense counsel did not take an exception to the court’s failure to give the instruction which she had not requested. Under these circumstances it was not error, and certainly not “plain error,” for the trial court to omit a reference to the self-defense theory in its jury charge.

The judgments of conviction are affirmed.

      . Following appellants’ trial, Rosenblum and Prince were each sentenced to a term of imprisonment of six months, plus a special parole term of five years. Posner was sentenced to a term of imprisonment of eighteen months, plus a special parole term of five years. After sentencing, the trial court, on government motion, dismissed Counts I and II against each of these defendants.

      . The colloquy between trial court and defense counsel (Tr. 572) was as follows :
      Miss Gerling: As to Government’s Exhibits 3, 4 and 5, the Government has not in-eluded them in the indictment, this is not part and parcel of the indictment.
      The Court: As I understand it now, Miss Gerling, your objection is to the introduction into evidence of three of the Exhibits numbered 3, 4 and 5 for identification, that is to say their receipt in evidence, as well as to Exhibit number 1 previously marked for identification into evidence; is that correct?
      Miss Gerling: Yes, sir.
      The Court: So far as your motion is directed or your objection, rather, is directed to the three packages of what has been characterized here as marijuana, your motion is granted, that is your objection is sustained.
      It is denied as to the package containing what the chemist has stated is cocaine.

      . The colloquy between defense counsel and the trial court continued as follows:
      The Court: Incidentally, your witnesses opened the door to what gave you considerable concern when the trial began. You manifested concern about the possibility of bringing in the question of marijuana so that the Jury might be affected by the fact that they were dealing here with a young defendant or defendants who used marijuana.
      Miss Gerling: I was concerned only as to the evidence against my defendants, not to go against the credibility of the witnesses. I was concerned that the marijuana would go into evidence as the cocaine would. That was my concern. We opened the door to the marijuana, yes, but not as a charge in this ease. We opened it to go against the credibility of the witnesses in this case. (Tr. 904-05).
      * :¡: % *
      Miss Gerling: * * * The only instruction I ask [is] for you to remind the Jury that this involves the unlawful intent to distribute cocaine, and not marijuana.
      The Court: Of course.
      Miss Gerling: Thank you.
      The Court: As a matter of fact, as to the offer of sale of marijuana, not only has there been no evidence of it, but it would be contrary to the charges contained in the indictment.
      Miss Gerling: Yes, sir. Thank you. (Tr. 908-09).

      . Miss Gerling: * * * [Y]our Honor, I am going to respectfully request that your Honor instruct the jury insofar as the marijuana is concerned.
      The Court: To do what?

        Miss Gerling: Instruct the jury insofar as the marijuana in this case is concerned.
      The Court: No, I decline to do that.
      Miss Gerling: I respectfully except. (Tr. 1019).


source: Caselaw Access Project

author: MULLIGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Elvin Lee BYNUM et al., Appellants.
    Nos. 1137-1142, Dockets 72-1857, 72-1884, 72-2101, 72-1763, 72-2142, 72-2143.
    United States Court of Appeals, Second Circuit.
    On Submission to the Court July 2, 1973.
    Decided Sept. 24, 1973.

      W. Cullen MacDonald, Asst. U.S. Atty., New York City (Paul J. Curran, U.S. Atty., Southern District of New York, John W. Nields, Jr., Asst. U.S. Atty., of counsel), for appellee.
    Henry J. Boitel, New York City, for appellant Bynum.
    Patrick M. Wall, New York City, for appellants Cordovano, Wright, Small, Mitchell, Garnett, Dyson, Birnbaum, Feroldi and Nedd.
    H. Elliot Wales, New York City (Michael P. Di Renzo, New York City, on the brief), for appellants Coniglio and Tuzzolino.
    Jerome Lewis, New York City, for appellant Mele.
    Frank A. Lopez, Brooklyn, N. Y., for appellant Altamura.
    Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

On a previous appeal to this court we remanded this case to the trial judge, Hon. Milton Pollack, United States District Judge, Southern District of New York, for a hearing to determine whether certain wiretap evidence used at trial had been legally obtained. United States v. Bynum, 475 F.2d 832 (2d Cir. 1973). After the hearing, Judge Pollack issued his findings of fact and conclusions of law, upholding the validity of the wiretaps. 360 F.Supp. 400 (S.D.N.Y.1973). We now affirm the convictions in all respects.

I. THE FACTS

On October 13, 1971 an indictment was filed, charging appellants Bynum, Cordovano, Wright, Small, Mitchell, Gar-nett, Dyson, Coniglio, Mele, Feroldi, Altamura, Birnbaum, Tuzzolino and Nedd with conspiracy to deal unlawfully in narcotic drugs in violation of 21 U.S.C. §§ 173, 174 (repealed 1970) and 26 U.S.C. §§ 4705(a), 7237(h) (repealed 1970). All appellants were found guilty on this charge. The second count of the indictment separately charged appellant Nedd with carrying a firearm during this conspiracy in violation of 18 U.S.C. § 924. Nedd was found guilty on this charge.

The primary purpose of the conspiracy, which was alleged to exist chiefly in New York City, from January 1, 1970 until April 30, 1971, was to obtain, process and distribute large amounts of narcotic drugs which had been unlawfully imported into the United States. The furtherance of the common scheme involved one unsuccessful robbery, together with the near fatal shooting of the victim, another aborted robbery and an elaborate plan to murder a corrupt New York City patrolman, who was thought to be cooperating with the authorities. The Government’s case rested principally upon the evidence of George Stewart, a veteran and former college student, whose record was respectable until he invested in a Manhattan restaurant which eventually stripped him of his resources and indebted him to appellant Cordovano, a customer. At Cordovano’s suggestion Stewart embarked on a career of selling cocaine in order to repay his debts. Cordovano and Bynum were the key figures in the drug conspiracy here revealed. Bynum was the banker for the group, supplying large sums of money for the purchase of heroin and cocaine. He and Cordovano supplied the drugs and supervised their mixing, cutting, packaging and distribution through Harlem. The distributors there were Wright, Small, Mitchell, Garnett and Dyson. The suppliers of the ring were Altamura, Mele, Coniglio, Tuzzolino, Birnbaum and Feroldi who normally operated through Cordovano.

From May 1970 on, Stewart sold heroin and cocaine for Cordovano on a consignment basis, sharing the profits. Stewart was eventually introduced to Bynum, Coniglio and Mele by Cordovano, and Stewart’s role in the group became increasingly important. In September 1970, Cordovano purchased 5 kilos of heroin from Coniglio and Mele for $72,500 in cash which had been supplied by Bynum. Stewart picked up the heroin. Some of the drugs were delivered to Bynum through Cordovano and the remainder were stored in Stewart’s girlfriend’s apartment. At Cordovano’s instruction, Stewart delivered 2 kilos on October 29th to a customer, Shaw, who paid him $38,000. Shaw in turn unwittingly resold to an undercover agent. Stewart was arrested at this sale and was found to possess % of a kilo of heroin as well as a gun. Bynum supplied the collateral for Stewart’s bail bond. In December 1970, Stewart was rearrested since a prior sale had also resulted in another resale to an undercover agent. It was at this juncture that Stewart was approached by the Government and agreed to become an informant.

On January 10, 1971, Stewart, at Cordovano’s request, proceeded to Bynum’s residence with a device for sealing plastic bags. Wright, who was expected to arrive with 2 kilos of heroin to be cut, appeared without the drugs since he was apprehensive of police detection. Bynum, Wright and Garnett left Stewart for another location. Later in the evening they returned to Bynum’s apartment complaining of nausea resulting from the inhalation of heroin dust during the cutting operation. Cordovano subsequently brought to Bynum’s apartment 5 kilos of cocaine which he stated he had purchased from Altamura. Bynum cut Yz kilo of this cocaine with an adulterant. Stewart took a sample of this and the balance was given to Wright. The 4Yz kilos of uncut cocaine were stored at the apartment of Stewart’s girlfriend and at Cordovano’s mother’s apartment. Later in January, Stewart met Cordovano, Altamura, Coniglio and Mele at a wake. It was at this point that their conversations indicated that there was a serious shortage of drugs foi’ the local market. Altamura stated that he had a source but the promised sale eventually fell through when his seller demanded $36,000 for 2 kilos of heroin on February 19, 1971.

At this point, desperate to obtain heroin, the core group adopted less orthodox but predictable means of assuring their continuing business. Cordovano and Bynum discussed with Stewart the possibility of robbing one Marty Carlin, a drug dealer who they believed had large quantities of heroin and cash stored in his safe. The plan was that Nedd and one Michael Libbers (an original co-defendant whose motion to dismiss was granted below) would take Carlin to an apartment selected by Stewart where Carlin would be “persuaded” to reveal his safe’s combination. Eventually, in March 1971, Bynum, Nedd, Cordovano and Stewart made the final plan to rob Carlin. Nedd located Carlin at a west-side hotel, but Carlin resisted and was shot by Nedd. Although he was seriously wounded, Carlin was able to identify Nedd as his assailant. When Nedd was subsequently arrested in New Jersey, he had jewelry belonging to Carlin as well as identification papers belonging to another victim of the attempted robbery.

In the meantime, other efforts were made to secure heroin. On February 25, 1971, Stewart was given $65,000 in cash at Bynum’s direction to pay to Altamura for heroin to be turned over for cutting and sale to Garnett and Dyson. Altamura had only cocaine and no heroin. It was then decided to purchase 2 kilos of heroin from Birnbaum whose source was Feroldi. After giving a kilo of plaster in order to cautiously test the delivery plans, Feroldi finally delivered a kilo of heroin on March 13, 1971 to Stewart and Cordovano. Cordovano brought it to Bynum at Dyson’s home for cutting. It proved to be impure in quality and somewhat less in quantity than represented.

On March 29, 1971, after meetings with Cordovano, Altamura delivered 2 kilos of heroin to Cordovano and Stewart who brought it to Bynum at Dyson’s house. Bynum, Dyson, Garnett, Mitchell, Wright, Cordovano and Stewart, all participated in the cutting and packaging of the drug.

Early in April, 1971, Cordovano and Stewart held separate meetings with Tuzzolino and with Coniglio and Mele for a 5 kilo purchase of heroin. A 2 kilo purchase of heroin was made from Tuzzolino using Feroldi’s car to make delivery to Stewart who in turn delivered it to Cordovano. After a variety of furtive maneuvering, this was followed by the usual cutting and repackaging operation at Dyson’s residence with Bynum, Cordovano, Stewart, Garnett, Dyson and Small participating.

Cordovano and Bynum also proceeded to plan with Moody (a prosecution witness) to steal heroin and money from two drug dealers in Washington, D. C. Feroldi was an added starter, participating in the planning in mid-April, 1971. The theft was never consummated despite a trip to Washington by Feroldi and Moody who were telephoning Cordovano for advice. They left behind them in Washington police uniforms, chloroform, tape, a sledge hammer and a trunk with a .38 caliber pistol in it. Bynum paid some of their expenses for this aborted scheme.

On April 29, 1971, the partnership business came to an abrupt termination. Bynum and Garnett advised Stewart that an informant had betrayed them. He was identified as corrupt New York City patrolman Wollack who was believed to be talking to federal authorities. Cordovano and Bynum planned that Garnett was to have Wollack visit her home on a pretext. Cordovano and Stewart were to follow him from Garnett’s home to the meat market operated by Bynum and Cordovano where he was to be knocked out, searched for bugging equipment, shot to death and placed in a plastic bag. Stewart, who at this point was fully accepted as a member of the core group, even purchased surgical gloves at Bynum’s suggestion that the gloves would foil any paraffin test indicating that the apprehended person had recently fired a gun. Stewart fortunately alerted the authorities. Cordovano and Stewart were apprehended en route to the scene, and each was found to possess a loaded hand gun. Two other loaded guns were found in the car.

While the furtive and devious movements of drug conspiracies such as this are unfortunately routinely encountered in the federal courts of this circuit, the detailed facts which amply document and support the Government’s case here, are uniquely provided by the informant witness Stewart, whose regular reports to Government agents enabled them to independently make surveillance and confirm the conspiracy and the overt acts charged in the indictment. Thus Stewart’s “sample” of cut cocaine received from Bynum on Jaunary 10, 1971 was turned over to agents on January 19, 1971. The $65,000 in cash delivered to Stewart on February 25, 1971 at Bynum’s request was later photographed by agents. Birnbaum’s attempted delivery on March 2, 1971 was subjected to surveillance by agents. The Altamura sale on March 29, 1971 and the subsequent cutting operation were observed by agents. The April 9, 1971 Tuzzolino sale and cutting operation were also under surveillance, with Stewart managing to discard packages which were recovered by agents who were able to determine that pure heroin traces still adhered to the original containers.

II. A SINGLE CONSPIRACY

Defendants Birnbaum, Altamura, Tuzzolino, Coniglio, Mele, Wright, Small, Mitchell, Garnett and Dyson seek reversal of their convictions on the ground that the Government did not prove one conspiracy but rather multiple individual conspiracies. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). The Government established beyond a reasonable doubt a large scale drug sale conspiracy in this case between January 1970 and April 1971. The pattern is now familiar. Raw drugs in large quantities have to be imported and supplied. In this case the core operators Bynum and Cordovano, respectively, supplied the capital and the contact with the suppliers who provided the raw material. The raw drugs then had to be adulterated or cut, packaged and then resold to purchasers who eventually made them available to the victims. In more normal business ventures this would be described as a vertically integrated loose-knit combination. The point of course is that each level of the operation depends upon the existence of the other, and the mutual interdependence of each is fully understood and appreciated by the other. This knowledge on the part of Bynum and Cordovano operating in the middle layer is obvious. The supplier defendants Birnbaum, Altamura, Feroldi, Tuzzolino, Coniglio and Mele could not reasonably suppose that the large amounts of raw cocaine and heroin received by Bynum and Cordovano were not to be resold at the tremendous profits this business produces. The defendants Wright, Small, Mitchell, Garnett and Dyson who participated in the cutting, repackaging and distribution of the drugs understood fully the roles of Bynum and Cordovano and that suppliers of the raw drugs had to be involved. This is the usual chain conspiracy encountered in drug cases. “Thus the conspirators, at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole.” United States v. Tramaglino, 197 F.2d 928, 930 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952), quoting United States v. Bruno, 105 F.2d 921, 922 (2d Cir.), rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See also Blumenthal v. United States, 332 U.S. 539, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Vega, 458 F.2d 1234 (2d Cir. 1972); United States v. Agueci, 310 F.2d 817 (2d Cir. 1962), cert. denied, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1963). The fact that not all of the defendants may have known and worked directly with all of the others is not significant since it is clearly established that each knew from the scope of the operation that others were involved in the performance of functions vital to the success of the business. United States v. Calabro, 467 F.2d 973, 982-983 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973).

The on-going nature of the partnership here and the roles assigned to the cast were established clearly in the record. The period of the conspiracy here, moreover, is comparatively short (16 months compared to 9 years in United States v. Borelli, 336 F.2d 376 (2d Cir. 1964), cert. denied, 379 U.S. 960, 85 S.Ct. 647, 13 L.Ed.2d 555 (1965)), so that the participation of the defendants in the Bynum-Cordovano Harlem operation is more easily established.

With respect to the individual defendants who claim discrete conspiracies, we find ample proof of participation in the single conspiracy charged within the principles enunciated in the prior cases. Wright, Small, Garnett and Dyson were closely allied with Bynum and Cordovano in the cutting and packaging operation. Garnett and Dyson were girlfriends of Bynum, and Wright had worked for him for many years. They were obviously trusted associates. Wright’s presence at cutting operations on the evening of January 10, 1971 was established. Moreover, Wright warned of police activity which resulted in a changing of plans as to the place of cutting. He was present later that evening at Garnett’s home where Cordovano had produced 5 kilos of heroin and received % kilo from Bynum. On March 29 he was also present at the cutting operation and departed with one of the three bundles of adulterated heroin. Small, a friend and part-time employee, and Mitchell, also a friend of Bynum, were present at the March 29 cutting party and were assigned the two other bundles. Small was also present at the cutting operation on April 9, 1971. It is clear that the relationship here among the cutters and distributors was continuing, intimate and pursuant to common scheme or plan.

The connections of the suppliers with the operation were broad and extensive. Coniglio and Mele made the $72,500 sale to Cordovano in September, 1970. In January, 1971, they advised Stewart of the lack of heroin on the market and offered to sell 5 kilos to Cordovano in April, 1971, for $100,000. Their continuing willingness to participate is patent. Altamura supplied Cordovano with the 5 kilos of cocaine cut on January 11, 1971; he drove Cordovano to meet Bynum in February, 1971; he attempted to purchase 10 kilos of heroin at the same time; he spoke to Cordovano and Stewart numerous times in February and March, and finally delivered 2 kilos of heroin on March 29, 1971. He was entrusted with $49,000 in cash to make a purchase for the partnership. Birnbaum, who initially introduced a buyer to Cordovano and Stewart in the summer of 1970, appeared as a seller in February, 1971, offering Cordovano and Bynum 5 kilos of heroin for $90,000. He and his source, Feroldi, continued to promise delivery and on March 13 a kilo sale of heroin resulted after Feroldi had been given $15,000 and a gun by Cordovano. Feroldi promised to continue to search for a source. On March 2, 1971, Birnbaum had been entrusted with $38,000 to make a heroin purchase which was never consummated and the money was returned. Tuzzolino appears in April, 1971, as a prospective supplier of 5 kilos of heroin for $105,000 and was entrusted with $15,000 in cash. After several meetings, a 2 kilo sale was transacted.

While some of the suppliers may not have known the identity of other sellers, the inference was justified that each knew his supplies were only a small part of the raw drugs which the extensive Bynum-Cordovano operation processed and sold. See Blumenthal v. United States, supra, 332 U.S. at 554-555 n.14, 68 S.Ct. 248. In view of the large amounts of hard drugs involved and the large amounts of money advanced to suppliers, there is no question but that the Bynum-Cordovano partnership was conducting a regular business on a steady basis with numerous suppliers who intentionally and knowingly were either looking to or maintaining a close relationship with a solvent, ongoing apparatus.

III. SEVERANCE

A. The Court’s Charge

In view of this evidence of one conspiracy, the refusal to grant severances was proper. Some of the appellants, notably Mele and Coniglio, argue that there was prejudice in failing to sever since the court below charged: “if you find that the Government has failed to prove the existence of only one conspiracy you must find the defendants not guilty.” This is urged to be a prejudicial “all or nothing charge” condemned by this court in United States v. Borelli, supra, and in United States v. Kelly, 349 F.2d 720 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). The argument in essence is that no jury would acquit all of the defendants since Bynum and Cordovano were clearly active in all of the ventures undertaken by the group. Hence the jury would convict all rather than let the principal malefactors go free. We cannot accept the argument since it fails to consider other portions of the trial court’s charge which made it perfectly clear to the jury that if each of the defendants was not a knowing participant in the single conspiracy he must be acquitted. In short, it was not an “all or nothing charge.” The court carefully charged:

In determining whether any defendant was a party, each is entitled to individual consideration of the proof respecting him or her, including any evidence of his or her knowledge or lack of knowledge, his or her status as a partner, manager or supervisor, his or her participation in key conversations, his or her participation in the plan, scheme or agreements alleged.
If you decide that the charged conspiracy existed between any of the defendants, you must then decide as to each defendant individually whether he or she joined the conspiracy with knowledge of either one or both of its purposes as alleged in the indictment.

Judge Pollack meticulously charged the elements and characteristics of the single conspiracy and summarized the Government’s evidence as to each defendant and the evidence, if any, of each defendant who presented testimony. This alone takes up eighteen pages of the record. The contention therefore that the charge was prejudicial and in violation of Borelli and Kelly, is unsupportable.

B. The Crimes of Violence

The principal thrust of appellants’ argument that multiple conspiracies existed rather than the single conspiracy charged in the indictment, lies not in the drug supply process and sales activity of the defendants but rather in the evidence presented to the jury of the attempted robbery and shooting of Martin Carlin, the planned robbery of the drug dealers in Washington, and the plan to murder the New York City policeman, Wollack. Those defendants, primarily Bynum and Cordovano, who participated in the crimes, claim that they were prejudiced by the evidence of “other crimes” and those conspirators who were not directly implicated claim prejudice by the “spill over” effect on the jury which would prejudice their right to a fair trial. Kotteakos v. United States, supra.

The actual participants in the crimes rely on the line of cases presented by United States v. Byrd, 352 F.2d 570 (2d Cir. 1965), and United States v. Deaton, 381 F.2d 114 (2d Cir. 1967), which hold that evidence of other crimes is admissible except when offered solely to prove criminal character. The other defendants maintain they were not responsible for the violent acts since these crimes were not within the fair import of the conspiracy as they understood it (United States v. Peoni, 100 F.2d 401, 403 (2d Cir. 1938)), and thus the trial court erred in not granting them a severance.

In this case the; planned robberies and murder were not “other crimes” at all; they were part and parcel of the single drug conspiracy charged in the indictment. E. g., United States v. Leftwich, 461 F.2d 586, 589 (3d Cir. 1972); United States v. Persico, 425 F.2d 1375, 1384 (2d Cir.), cert. denied, 400 U.S. 869, 91 S.Ct. 102, 27 L.Ed.2d 108 (1970); Ignacio v. Territory of Guam, 413 F.2d 513, 519-520 (9th Cir. 1969), cert. denied, 397 U.S. 943, 90 S.Ct. 959, 25 L.Ed.2d 124 (1970); Rodriguez v. United States, 284 F.2d 863, 867 (5th Cir. 1960), cert. denied, 368 U.S. 1001, 82 S.Ct. 632, 7 L.Ed.2d 540 (1962). Moreover, as to the other defendants, these were not extramural frolics of wanton criminals introduced by the Government to establish to the jury that wicked men were in the dock. The Bynum-Cordovano group which was conducting an enormously profitable business, was faced early in 1971 with a shortage of heroin and cocaine. They discussed this with their suppliers and were desperately seeking new sources of hard drugs. The planned theft from Carlin, a drug dealer, was to supply heroin for the purpose of the conspiracy. His shooting was in furtherance of that purpose. The aborted Washington burglary was conceived by Cordovano and Bynum for the purpose of obtaining heroin and money. The planned killing of Wollack was to silence a suspected informant and thus to preserve the viability of the conspiracy. The suppliers here were acutely aware of the shortage; that the “core group” would resort to violence to secure hard drugs or to protect the venture, could hardly be unanticipated or unexpected. See Rodriguez v. United States, supra.

We fail in any event to appreciate the defendants’ argument that evidence of these crimes was so prejudicial as to arouse the “irrational passions of the jury” (United States v. Kaufman, 453 F.2d 306, 311 (2d Cir. 1971)), or to create in the jury “overmastering hostility.” C. McCormick, Evidence § 190, at 453 (2d ed. E. Cleary 1972). Whether or not a jury will be so inflamed by allegedly extraneous criminal activity will of course depend upon what crime they have been accused of committing. United States v. Williams, 470 F.2d 915, 918 (2d Cir. 1972). The appellants here were engaged for profit in a major hard drugs venture in Harlem which not only dehumanized its ultimate customers but unquestionably spawned myriad crimes in a community already misery-ridden. No jury in New York can be unaware of the dimensions and consequences of the major operation which was graphically portrayed here. The revulsion of the average citizen to this traffic need not be documented. How evidence of the concomitant robbery, assault or even planned murder here could be so exacerbating as to render the jury’s judgment irrational, we are unable to understand. We are not dealing with minor league addicted street pushers but with well-financed brazen professionals engaged in a large-scale criminal undertaking, in which corruption and violence are endemic. The euphemistic description of these activities as transactions in “contraband” does not disguise the true nature of the wicked alliance here established. Moreover, the trial judge’s careful marshaling of the evidence, as we have pointed out, made it clear that the participation of each defendant must be determined by his own actions and not the acts of the others. The jury therefore was capable of determining which defendants had participated in the violence.

IV. The Wire Taps

The Government was authorized by District Judge Anthony J. Travia, Eastern District of New York, on January 29, 1971 to overhear and electronically record telephone conversations at the home of the defendant Garnett, Bynum’s girlfriend; her home was the site of subsequent meetings and cutting operations of the defendants. The order was based on an affidavit stating that four reliable informants had indicated that Bynum was engaged in a large drug distribution business and used Garnett’s phone in this business. The affidavit further recited that Bynum had corrupted state and federal officers, that he had a previous narcotics conviction, and that he was reputed to have caused the killing of some 18 people. The order authorized the wiretap for 20 days and contained the statutory directive (18 U.S.C. § 2518(5)) that the interception of communications be conducted in such a way as to minimize the interception of communications not otherwise subject to interception. On February 12, 1971, a second wiretap was authorized on another phone in the Garnett residence for 20 days duration. The tap on the first phone was extended by Judge Travia on February 18, 1971 until March 3, 1971 so that it expired on the same day as the second tap. For five weeks these phones were monitored and conversations were recorded, eight of which were introduced at the trial and played for the jury. The issuance of the authorization for the wiretap and the recordation of the conversations of some of the defendants has given rise to a number of arguments on appeal.

A. Authorization and Necessity

Appellants claim that the application for the wiretap order was improperly authorized since the application was not approved by the Attorney General or a specially designated Assistant Attorney General as required by statute (18 U.S.C. § 2516(1) ) but rather by an Executive Assistant to the then Attorney General. The precise question has been before this court on several occasions and has been decided adversely to appellants’ position, and we are now bound by these precedents. United States v. Becker, 461 F.2d 230, 235-236 (2d Cir. 1972); United States v. Pisacano, 459 F.2d 259 (2d Cir. 1972)

It is further urged that the applications for the wiretaps were defective in failing to establish that resort to this means of surveillance was necessary as required by 18 U.S.C. § 2518(1) (c). A reading of the detailed affidavits which were submitted in support of the wiretap and which form part of this record, indicating reason to believe that Bynum had engaged in the corruption of officials and violence against informants, and that he was a long time narcotics violator, amply supports the issuance of the orders here made.

B. Minimization

The remand for an evidentiary hearing here was prompted by the argument on the initial appeal in this case that there was a failure by the Government to minimize the interception of innocent conversation on the two telephones tapped at 855 Linden Boulevard, in violation of 18 U.S.C. § 2518(5) which mandates the inclusion of a “minimization” provision in the order authorizing the electronic surveillance. District Judge Pollack held such evidentiary hearings on April 9, May 10, 11 and 14, 1973. On June 6, 1973 he filed a 64 page opinion containing findings of fact and conclusions of law, in which he made an exhaustive analysis of the calls which were intercepted, the identity of the eonversants, the length of the calls, the actual conduct of the surveillance by the Assistant United States Attorney and the inspectors of the Bureau of Narcotics and Dangerous Drugs (BNDD) and the continuing supervision of Judge Travia, to whom the Government was reporting regularly pursuant to his order. Judge Travia also appeared as a witness in the hearing before Judge Pollack. In view of the extensive opinion below, we see no point in repeating the minutiae necessarily developed in the record analyzing the surveillance.

We commence with the observation that the mere fact that every conversation is monitored does not necessarily render the surveillance violative of the minimization requirement of the statute. See United States v. Cox, 462 F.2d 1293, 1301 (8th Cir. 1972); United States v. Leta, 332 F.Supp. 1357, 1360 n.4 (M.D.Pa.1971). It is also obvious that no electronic surveillance can be so conducted that innocent conversation can be totally eliminated. Before a determination of innocence can be made there must be some degree of eavesdropping. The record here discloses that out of 2058 completed phone calls, 1277 of them (more than half) were completed in less than 2 minutes. Since, in a case of such wide-ranging criminal activity as this, it would be too brief a period for an eavesdropper even with experience to identify the caller and characterize the conversation as merely social or possibly tainted, we eliminate these calls from consideration. See United States v. Sisca, 361 F.Supp. 735, at 744 (S.D.N.Y.1973); United States v. Focarile, 340 F.Supp. 1033, 1050 (D.Md.), aff’d sub nom., United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194 (1973); United States v. La Gorga, 336 F.Supp. 190, 196 (W.D.Pa.1971). Our concern is with the 781 conversations which lasted 2 or more minutes.

In determining whether or not these calls were susceptible to minimization, there is patently no mechanical, hard and fast formula applicable. We look first to determine whether or not the Government could anticipate or, during the course of the surveillance, detect some pattern of innocent conversation which could be eliminated from scrutiny. The facts and events detailed earlier in this opinion supported the Government’s expectation at the time of the initiation of the taps, that Bynum was operating a massive drug business headquartered at 855 Linden Boulevard. We cannot accept appellants’ suggestion that this was just another large drug operation. The conspiracy here unveiled was not limited to drug peddling, but included larceny, robbery and murder among its ingredients. The taps were further authorized because Bynum was suspected of corrupting local police as well as federal agents to assure the continuing success of the venture. Bynum, as we have indicated, was no pedestrian punk or common hoodlum. He had acted as an informant for the Government in previous drug cases and was well versed in narcotic investigative techniques. His contacts included not only law enforcement agents but also corrupt attorneys who were suspected of being implicated in the drug operation. He had arrived in New York in modest circumstances at best and within several years, according to his own testimony, had attained a net worth of more than a million dollars and a taxable income in 1971 of $120,000 allegedly on income from “legitimate” businesses, including a clothing store, record shop and the “Kosher” wholesale meat market which he operated with Cordovano (and which, had it not been for the intervention of the authorities, would have been the situs for the murder of Patrolman Wollack).

Even more grotesque is the fact that Bynum testified that through a contact in the Telephone Company, whom he named, he was made aware almost immediately of the existence of both of the taps made on the phones at 855 Linden Boulevard. It is incongruous therefore to advert to an expectation of privacy (Katz v. United States, 389 U.S. 347, 351-353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) under circumstances such as these. See United States v. Pui Kan Lam, 483 F.2d 1202, 1205-1206 (2d Cir. 1973). Although Bynum did reside at this address with one of his mistresses (Garnett) and his child, it can hardly be characterized as such a normal domestic menage, that the Government could have anticipated some pattern of orthodox social calls. On the contrary, the reasonable anticipation on the part of the Government, as the court below recognized, was that surreptitious, illegal activity would be conducted on the premises and over the telephone. Furthermore, while natural caution dictates that drug related conversations will be disguised and cryptic, in view of Bynum’s awareness of the surveillance, the efforts to obfuscate and confuse the eavesdropper would have been more pronounced than usual.

In view of all of these factors we cannot conceive that either the Assistant United States Attorney or Judge Travia could formulate any detailed screening instructions which could effectively minimize licit telephone interception. The record below establishes that on January 29, 1971, the Assistant United States Attorney and two inspectors of the BNDD submitted to Judge Travia the application for surveillance and personally discussed the breadth of the conspiracy and the difficulties embraced in the surveillance. The record makes it apparent that all were fully aware of the statutory requirements, including the minimization provision and the need to screen out innocent calls. Since it was known that lawyers were suspected of involvement, monitoring agents were specifically instructed not to intercept privileged conversations. The calls were in fact received and monitored but no serious argument is made here that privileged calls were intercepted. For the first time in New York apparently, in view of the charge of corruption, out-of-town BNDD agents, all of the rank of Inspector, were imported to conduct the surveillance and, in order to cope with the jargon anticipated, 2 were assigned in tandem to each tap on a 24 hour basis. Judge Travia moreover insisted upon written reports on a regular basis covering short periods of the tap. In addition to written summaries and detailed logs which were submitted to him on February 4, 8, 16, 18, 24 and March 1 and 8, 1971, there were supplemental meetings and conversations throughout the period of the surveillance. In our view, the degree of judicial supervision is an important factor in determining whether a good faith effort to minimize was attempted. See United States v. Cox, supra, 462 F.2d at 1301. We agree with the finding of the court below that the taps were closely and conscientiously supervised by Judge Travia.

The Government maintains that in fact 85% of the conversations recorded were relevant to the authorized investígation. We are, however, unable to determine whether the estimate is accurate. Statistics in this area are properly suspect. What is significant in our view is that appellants’ principal contention on appeal on this issue is that some 73 calls of 3 minutes or more duration involved conversations between Bynum’s infant’s babysitter, Donna, and her friends and classmates which were clearly innocent. The argument is made that in view of the length of the investigation and the pattern of innocence emerging from these calls, they should not have been intercepted.

The Government’s contention in response, that although all conversations were recorded only 90% of them were in fact monitored by the agents, is not persuasive. We need not determine, however, whether the interception prohibited by the statute is aural intrusion or mechanical recordation. The difference here between what was monitored and what was recorded is insignificant and in fact not measurable (having been based on one agent’s estimate).' Assuming arguendo that there was a total interception of all of Donna’s calls, we do not find a violation of the statute or any constitutional infirmity in their interception.

Our own examination of the logs supports the contention that Donna’s conversations with friends were banal and for the most part devoid of content which would assist the investigation at issue. Of course, in making this retrospective judgment that the Donna calls were innocent, we enjoy the acuity of hindsight. United States v. La Gorga, supra, 336 F.Supp. at 196. While such conversations might well commence with teenage trivia, the eavesdropper, unless possessed of the prescience of a clairvoyant, could hardly predict when they might become relevant or when they might be interrupted by an adult with more pressing problems. Id. The record in fact reveals that Donna’s innocence did not immediately become apparent. Even when it became obvious, Donna was also used to transmit messages and on occasion did reveal the whereabouts of Bynum and the company he was keeping.

Considering all of the circumstances set forth — the broad range of alleged criminality, Bynum’s awareness of the taps, the supervision by Judge Travia— we agree with the court below that there was no violation of the minimization requirement of the statute.

V. OTHER ARGUMENTS

Appellant Bynum argues that he was denied the effective assistance of trial counsel because his trial counsel had at one time represented the Government witness Stewart. Appellant relies on a recent decision of this court, United States v. Alberti, 470 F.2d 878 (2d Cir. 1972), cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973) for the proposition that the trial judge should have conducted a hearing to determine whether or not a conflict exists. Contrary to his present position, the record contains an affidavit by Bynum indicating that he knew of his counsel’s representation of Stewart at the beginning of the trial. Although Bynum was represented by two attorneys throughout the trial, no request for a hearing on this question was ever made until after the trial, and then on the basis of newly discovered evidence. It was properly denied by the trial judge. The representation of Stewart by Bynum’s trial counsel was in a totally unrelated matter, an assault charge in a state court. There is no prejudice in any event since Stewart was acquitted and any avenue of cross-examination on this point would be fruitless. Moreover, the court below found that trial counsel had represented Bynum in an extremely competent manner. Under these circumstances we find no possible conflict of interest. Olshen v. McMann, 378 F.2d 993, 994 (2d Cir.), cert. denied, 389 U.S. 874, 88 S.Ct. 165, 19 L.Ed.2d 157 (1967).

Appellant Birnbaum claims that there was reversible error committed because Stewart referred to the fact that Birnbaum was in jail for several months. The record discloses that the trial judge promptly admonished the jury to disregard and completely erase the remark from their minds. There is no basis for reversal. United States v. Stromberg, 268 F.2d 256, 269 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959).

In his “Reply and Supplemental Brief” appellant Altamura urges that the trial judge committed “plain error” in failing to charge the jury on the law and facts in regard to his alibi defense. Having failed to either request such a charge or to make a timely objection in accord with Fed.R.Crim.P. 30, Altamura cannot complain now. Goldsby v. United States, 160 U.S. 70, 77, 16 S.Ct. 216, 40 L.Ed. 343 (1895); Lewis v. United States, 373 F.2d 576, 579 (9th Cir.), cert. denied, 389 U.S. 880, 88 S.Ct. 116, 19 L.Ed.2d 173 (1967); United States v. Tramaglino, supra, 197 F.2d at 932.

Appellants Mele and Coniglio complain that unique circumstances prevented the latter from testifying at the trial. In June 1971 Coniglio was convicted after a jury trial in the Eastern District of New York, of violating the narcotics laws. On June 15, 1972, this court reversed that conviction because the prosecution had suppressed certain relevant evidence. United States v. Mele, 462 F.2d 918 (2d Cir. 1972). Thus the argument is that had Coniglio testified in the instant April-May, 1972 trial, he would have been subjected to damaging cross-examination about his prior narcotics conviction, a conviction eventually overturned because of prosecutorial misconduct. The fallacy lies in the fact that Coniglio possessed, and failed to exercise, the right to request a prior ruling from the trial judge on whether the earlier conviction could be used on cross-examination. See, e. g., United States v. Palumbo, 401 F.2d 270 (2d Cir. 1968), cert. denied, 394 U.S. 947, 89 S.Ct. 1281, 22 L.Ed.2d 480 (1969). Having neglected to make such an application below, the appellants are now in no position to urge that Coniglio was unfairly prevented from testifying.

Levis Nedd, along with some of the other defendants, complains that his in-court identification by Martin Carlin, the victim of the robbery, was the product of an impermissibly suggestive photographic display. Of course, “our inquiry must be whether under all the circumstances [the allegedly improper photographic display] gave rise to a very substantial likelihood of irreparable misidentification .... Moreover, in determining whether or not the suggestive photographic identification procedure resulted in misidentification, we may properly consider the other factors which were before the jury and were properly admissible which tend to establish that there was not substantial likelihood of misidentification.” United States ex rel. Gonzalez v. Zelker, 477 F.2d 797, 801, 803-804 (2d Cir. 1973). Even assuming that the photographic display was impermissibly suggestive, the other evidence against Nedd was so overwhelming that the possibility he was the victim of misidentification is remote in the extreme. Stewart not only testified that Nedd was in on the planning of the robbery, but also related a subsequent conversation in which Nedd graphically described the circumstances surrounding his shooting of Carlin. In addition, when arrested in New Jersey, Nedd possessed jewelry and rings stolen from Carlin as well as an identification taken from another victim of the attempted robbery. See United States ex rel. Springle v. Follette, 435 F.2d 1380 (2d Cir. 1970), cert. denied, 401 U.S. 980, 91 S.Ct. 1214, 28 L.Ed.2d 331 (1971). There was no constitutional infirmity here.

We have considered all arguments urged on us by appellants and find them to be without merit.

Affirmed.

      . Tlie disposition of the charges against other defendants as well as a list of those who were named as co-conspirators but not as co-defendants, are set out in our prior opinion. United States v. Bynum, 475 F.2d 832, 834 n.2 (2d Cir. 1973).

      . Bynum testified that lie posted collateral for Small’s, Wright’s and Mitchell’s bail bonds after their arrests on the present charges. Defendant Garnett pledged her house as collateral for Cordovano’s bond.

      . See C. McCormick, Evidence § 190, at 451 & n. 48 (2d ed. E. Cleary 1972).

      . Bynum learned of the first proposed wiretap before Judge Travia signed the authorization. He had the second phone installed and the agents learned of this through their tap on the first phone.

      . We note that the federal courts are divided on this question. See United States v. Roberts, 477 F.2d 57 (7th Cir. 1973); United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), cert. granted, 411 U.S. 905, 93 S.Ct. 1530, 36 L.Ed.2d 194 (1973).

      . The court below held, and the Government argues here, that the statutory provision requiring that interceptions of communications be minimized (18 U.S.C. § 2518(5)) was intended to limit only the hearing and not the recordation of conversations. Authority for this view is said to be found in the words of the statute itself. The statute defines “intercept” as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” 18 U.S.C. § 2510(4). The statute also draws a distinction between interception and recordation in § 2518(8) (a), which requires that the “contents of any . . . communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device.” Any recording made under this subsection is to be “done in such' a way as will protect the recording from editing or other alterations.” See United States v. Huss, 482 P.2d 38 (2d Cir. 1973).
      Appellants respond that the statute was never intended to permit recordation of all conversations. Such a construction would, in their view, allow the Government or anyone else to legally create a tape library of the conversations of any citizen. If such reasoning were applied to the situation of a warrant covering tangible items, seizure of the contents of a whole house would be permissible, in their view, on the ground that to do so would prevent any destruction or disappearance of exculpatory evidence. Appellants contend that this question has been resolved in their favor by earlier cases (United States v. King, 335 F.Supp. 523 (S.D.Cal.1971), rev’d on other grounds, 478 P.2d 494 (9th Cir. 1973); United States v. Leta, 332 F.Supp. 1357, 1360 n.4 (M.D.Pa.1971)).


author: DONALD RUSSELL, Circuit Judge: BUTZNER, Circuit Judge

text:
    Leonard W. FERGUSON, Appellant, v. John S. GATHRIGHT, Superintendent Bland Correctional Farm, Appellee.
    No. 72-1816.
    United States Court of Appeals, Fourth Circuit.
    Argued May 9, 1973.
    Decided Oct. 8, 1973.

      Barry Nakell, Chapel Hill, N. C. (court-appointed), for appellant.
    Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The appellant, hereinafter referred to as the petitioner, was convicted of driving a motor vehicle after his driving license had been revoked under the provisions of the Virginia Habitual Offender Act. He seeks habeas relief, arguing that the revocation of his driving license was invalid for failure of the State, at his revocation hearing, to furnish him counsel. After exhaustion of State remedies, he filed his federal action. The District Court denied relief and we affirm.

It would be sufficient to sustain the action of the District Court that the petitioner does not allege that he was indigent at the time of the revocation hearing. Absent such a claim, there can be no basis for appointed counsel under any circumstances. While he is appearing by appointed counsel on this appeal, he was represented at his trial in the State Court both by retained counsel and appointed counsel. If he could retain counsel at that point, it is not improbable that he was equally able to employ counsel at the time of his revocation hearing; at the least, he should negative such inference by an affirmative allegation of indigency. We would not, however, rest our decision on the failure of the petitioner to allege indigency. We are of the firm opinion that whether the petitioner was indigent or not, there was no obligation on the part of the State to furnish him counsel at his license revocation hearing.

A right to counsel must find its constitutional basis in either the commands of the Sixth Amendment or the general guarantee of fundamental due process granted by the Fourteenth Amendment. The petitioner apparently rests his claim primarily on the Sixth Amendment. In pressing such claim, he is confronted at the outset with the fact that the right to counsel given by the Sixth Amendment extends only to criminal or quasi-criminal cases, and proceedings for the revocation of a driver’s license under the Virginia Habitual Offender Act have been authoritatively held to be a civil and not a criminal action. The petitioner argues, however, that, because the revocation proceedings provide a. basis for the subsequent prosecution for the crime of driving without a license or permit, they must be deemed an integral and essential part of that prosecution. Following this argument, he contends the license revocation proceedings, similar to a parole revocation proceeding, must be regarded as quasi-criminal and thus within the coverage of the Sixth Amendment. There is, though, a fatal flaw in this analogy. At the parole revocation, an adverse finding brings an immediate and automatic loss of liberty. No such result follows from a license revocation. In the latter situation, the defendant loses simply his right to operate a motor vehicle on the public highways; he suffers no loss of liberty or threat of incarceration. He is not substantially different in condition from thousands of others, who, for one reason or another, have been denied, or have suffered a loss of, a driving permit. He comes under the threat of incarceration only if he subsequently determines to take the law into his own hands and to operate a motor vehicle on the public highway without a valid permit.

His situation, in those circumstances, is substantially similar in principle to that of the person, who, denied a renewal of his license because of impaired vision or other cause, drives a motor vehicle on the public highway. It is his subsequent defiance of the law, and only indirectly his revocation proceedings, that brings into play the criminal processes and places him in peril of imprisonment. Actually, he is in no substantially different situation legally from the status of one whose license as an insurance agent has been revoked and who subsequently has violated the law by continuing to act as an agent. It has been held that such agent was not entitled to counsel at his revocation hearing because the hearing is civil and not criminal and it does not become quasi-criminal simply because he may later be prosecuted for acting as an agent without a license.’ Again, the defendant’s situation in this regard cannot be differentiated on principle from that of the security salesman. He, it has been held, is not entitled under the Securities Act to appointed counsel in a proceeding to revoke his license to act as a security salesman and this is true even though he may involve himself in the criminal net if he voluntarily chooses thereafter to act as a security salesman. Again, his situation is analogous to the charitable foundation whose right to operate under state license bingo games was revoked without benefit of counsel. If the foundation, after that revocation, had operated bingo games, it would have been subject to the criminal gambling laws but that fact did not make the license revocation proceedings quasi-criminal so as to require appointment of counsel under the Sixth Amendment.

The petitioner contends that the license revocation proceeding in this case is unique and differs from other situations because at the prosecution for driving without a license he is foreclosed from attacking collaterally the revocation itself, and, for this reason, the revocation proceeding and the criminal prosecution for driving without a license must be treated as a single criminal action in which at every critical stage— which will include the revocation hearing — he was entitled to counsel under the Sixth Amendment. It is by no means clear that this same situation does not prevail in the other license cases we have noted. But this argument, as applied specifically to a driving license revocation, was effectively answered in Franklin v. District of Columbia, supra, 248 A.2d at 679, where the Court said that the defendant “cannot now collaterally attack either the initial revocation or the subsequent denials of his applications for the reissuance of his permit in an effort to justify his unilateral decision that he was entitled to operate a motor vehicle without a valid permit.”

Nor will Chewning v. Cunningham (1962) 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442, involving the Virginia recidivist statute, which is cited by the petitioner, lend any support to his contentions. In the first place, as Justice Douglas points out in the majority opinion, a proceeding under the Virginia recidivist statute had been held by the Virginia Courts to be a “criminal” action (368 U.S. at 445, 82 S.Ct. 498). As a concededly “criminal” proceeding, it was within the express language of the Sixth Amendment. Further, the result of a judgment under the statute was an enhancement in the defendant’s imprisonment. As we have already observed, no such result follows from an adjudication in the license revocation hearing authorized under the Habitual Offender Act. Moreover, Justice Harlan points out in his concurring opinion, the recidivist statute gives the defendant no notice prior to actual trial that the statute is to be invoked or the basis on which it is to be invoked, a circumstance which makes the appointment of counsel compelling. No such attack can be leveled at the Act under review; it expressly provides for prior notice. Under no circumstances then, can a proceeding under the Virginia recidivist statute be likened to one for revocation of a driver’s license under the Habitual Offender Act.

It remains to consider whether the appointment of counsel at the revocation hearing was required as a part of fundamental due process, under the Fourteenth Amendment. It may be conceded that due process will demand that notice and opportunity to be heard be given to a defendant at the revocation hearing. Reese v. Kassab (3-judge Ct. Pa.1971) 334 F.Supp. 744, 746-747; cf., however, Stauffer v. Weedlun (1972) 188 Neb. 105, 195 N.W.2d 218, appeal dismissed 409 U.S. 972, 93 S.Ct. 307, 34 L.Ed.2d 236, noted 52 Neb.L.Rev. 412 (1973). The Virginia statute meets this standard: It provides for both notice and opportunity to be heard on the part of the defendant. But due process does not go farther and require the appointment of counsel any more than it would require appointment in a proceeding to terminate welfare payments, in child dependency proceedings, in police disciplinary actions, in garnishment of wages, in ejectment proceedings involving public housing, in prejudgment replevin, in proceedings to purge the voting rolls, or in expulsion from the United States Military Academy. In all these proceedings, important civil rights — rights as important, in some instances more important, than, the right to operate a motor vehicle — are involved. In none, however, is the appointment of counsel constitutionally mandated.

“Due process” is not a “rigid form” but is “a flexible concept,” which depends for its application on a careful balancing of public as against private interest. Hagopian v. Knowlton, supra. What is involved here is a revocation hearing under an habitual offender act but what is determined in this context is equally applicable in principle to a revocation of a driver’s license under the point-system, a system that has long been recognized and is in vogue in thirty-four states. Acting under either the habitual offender act or under the point-system, states revoke thousands of drivers’ licenses, not as punishment but in a proper concern for public safety on the highways. If counsel must be furnished indigents in all such proceedings, a procedure which was intended as an expeditious method of ridding the highways of dangerous drivers and of protecting the public would become an intolerable burden on the bar and a cumbersome procedure. A proper balancing of public versus private interest would not justify such a requirement.

In summary, neither under fundamental due process nor under the Sixth Amendment can it be fairly concluded that appointment of counsel in a driving license revocation proceeding under the Virginia Habitual Offender Act is mandated.

The judgment of the District Court is affirmed.

Affirmed.

BUTZNER, Circuit Judge

(dissenting) :

In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the Court held that, absent a valid waiver, no person could be imprisoned for any offense unless he was represented by counsel at his trial. Specially concurring, Mr. Justice Powell urged that the right to counsel at trials for petty offenses should be determined on a case by case basis. As an example of the serious consequences arising out of the deprivation of property rights and interests when no jail sentence is involved, he wrote, “Losing one’s driver’s license is more serious for some individuals than a brief stay in jail.” 407 U.S. at 48, 92 S.Ct. at 2018. The majority found it unnecessary to consider, on the record of that case, the situation to which Mr. Justice Powell had adverted. 407 U.S. at 37, 92 S.Ct. 2006. The problem, recognized but undecided in Argersinger, confronts us now.

Ferguson’s operator’s license was revoked for ten years at a hearing where he was not represented by counsel. While the Virginia act authorizing the revocation of a license speaks in terms of denying the privilege of operating a car, Va.Code Ann. § 46.1-387.1 (1968), it is now settled that the privilege to drive cannot be withdrawn without the procedural due process required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Bell, however, does not supply a simplistic answer to the issue before us because due process does not always include the right to counsel.

Ferguson insists upon an unqualified right to representation at a revocation hearing; the state denies the existence of such a right altogether. Shunning both absolutes, I would adopt for revocation hearings the intermediate approach suggested by Mr. Justice Powell in Argersinger for petty offenses. I would not at this time, in the light of our present experience regarding license revocation proceedings, formulate a per se rule for the right to counsel at the revocation hearing. Frequently, the issues at this hearing will be very simple. The identity of the driver whose license is to be revoked is not questioned, and the fact that he has been convicted of specific previous offenses stands admitted. There is little to be done save a ministerial application of the statute. In these circumstances, the absence of counsel is not likely to cause prejudice.

On the other hand, I do not favor a per se rule against - the right to counsel. Without going into detail, it is apparent that some of the issues in a revocation proceeding may present complex legal and factual questions. See Note, The Virginia Habitual Offender Act, 26 Washington and Lee L.Rev. 271 (1969). To identify and present these issues effectively, either initially or on appeal, the assistance of counsel is necessary. In those exceptional circumstances when the fairness of the revocation proceeding will be impaired by the absence of counsel, I would hold that a person is entitled to representation unless he validly waives this right. Cf. Bearden v. South Carolina, 443 F.2d 1090, 1094 (4th Cir. 1971), cert. dismissed, 405 U.S. 972, 92 S.Ct. 1199, 31 L.Ed.2d 256 (1972); Jones v. Rivers, 338 F.2d 862, 879 (4th Cir. 1964) (Haynsworth, J., concurring specially).

Ferguson was convicted of driving after his license had been revoked, and he was sentenced to three years in prison. Although he was represented at that trial, his counsel could not question the issues determined at his uncounseled revocation hearing. Therefore, I would hold that — absent a valid waiver — a person cannot be constitutionally imprisoned when an essential element of his crime was conclusively adjudicated in a license revocation proceeding where he was prejudiced by the lack of counsel. Cf. Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). Accordingly, I would remand the case to the district court with directions that it ascertain (1) whether Ferguson validly waived counsel at the revocation hearing, and (2) if not, whether he was prejudiced by the absence of counsel. If he is able to establish prejudice, the writ of habeas corpus should issue, and he should be discharged from custody. The order, however, should be stayed for a reasonable time to allow the state, if it be so advised, to retry him in a proceeding where he can collaterally challenge the revocation of his license. If he was not prejudiced, his petition should be denied.

      . Sections 46.1-387.1 et seq., Virginia Code.
      Adopted in 1968, the Virginia Habitual Offender Act defines an habitual offender as one who has accumulated within a ten-year period three or more convictions of certain listed traffic offenses, or twelve or more convictions of certain other traffic offenses. When any person has accumulated sufficient convictions to meet the definition of habitual offender under the Act, the Commissioner of Motor Vehicles submits transcripts of such convictions to the Commonwealth Attorney, who then is directed to file an information charging the person with being an habitual offender. The court then files notice to show cause against the person involved, and, if at a hearing, it is found that the person noticed is the person who was convicted and that the requisite convictions are included, then the person is ordered to surrender his driver’s license. He may not obtain a new license for ten years and until a court authorizes it. During the period his license is revoked and ordered surrendered, he is not entitled to drive a motor vehicle on the public highways and, if he does, he may be prosecuted and subjected to a prison sentence. Of course, at any trial charging him with the operation of a motor vehicle on the public highways after his driver’s license had been revoked and ordered surrendered, he would be entitled to the appointment of counsel and in this case, counsel was appointed for the petitioner. It seems to be the rule that when so charged, the issue is whether the person charged did drive a motor vehicle without a driver’s license after he had been adjudged an habitual offender and he is not entitled in that proceeding to attack collaterally the judgment in the revocation hearing. See, Franklin v. District of Columbia (D.C.App.1968) 248 A.2d 677; Michels v. Motor Vehicle Division (Colo. App.1973) 506 P.2d 1243, 1245.
      For a general discussion of the Virginia Act, see Note, The Virginia Habitual Offender Act, 26 Wash. & Lee L.Rev. 271 (1969).

      . This amendment was made applicable to the States by the Fourteenth Amendment. Pointer v. Texas (1965) 380 U.S. 400, 403-406, 85 S.Ct. 1065, 13 L.Ed.2d 923; United States ex rel. Harris v. State of Illinois (7th Cir. 1972) 457 F.2d 191, cert. denied, 409 U.S. 860, 93 S.Ct. 147, 34 L.Ed.2d 106.

      . Hannah v. Larche (1960) 363 U.S. 420, 440, n. 16, 80 S.Ct. 1502, 4 L.Ed.2d 1307 reh. denied 364 U.S. 855, 81 S.Ct. 33, 5 L.Ed.2d 79; United States v. Zucker (1896) 161 U.S. 475, 480-481, 16 S.Ct. 641, 40 L.Ed. 777; Madera v. Board of Education of City of New York (2d Cir. 1967) 386 F.2d 778, 780, cert. denied 390 U.S. 1028, 88 S.Ct. 1416, 20 L.Ed.2d 284; Hullom v. Burrows (6th Cir. 1959) 266 F.2d 547, 548; Suess v. Pugh (D.C.W.Va.1965) 245 F.Supp. 661, 665.

      . Prichard v. Battle (1941) 178 Va. 455, 17 S.E.2d 393, 395; Huffman v. Commonwealth (1970) 210 Va. 530, 172 S.E.2d 788, 789; Virginia ex rel. Shifflett v. Cook (D.C.Va. 1971) 333 F.Supp. 718, 720, aff’d by memorandum decision dated October 2, 1971.
      This accords with the general view taken of such proceedings. See, Commonwealth v. Harris (1939) 278 Ky. 218, 128 S.W.2d 579, 580-581; Parker v. State Highway Department (1953) 224 S.C. 263, 78 S.E.2d 382.

      . See, Gottschalk v. Sueppel (1966) 258 Iowa 1173, 140 N.W.2d 866.

      . It is true that the penalty imposed, should he drive a motor vehicle after his license has been revoked, is more severe than in those instances where the flagrancy of offenses is not as aggravated. This is a matter, however, of degree and does not relate to the principle involved in the right to drive a motor vehicle on the public highways.

      . Woodham v. Williams (Fla.App.1968) 207 So.2d 320, 322; and Section 626.671, Fla. Stats.Ann.

      . Boruski v. Securities and Exchange Commission (2d Cir. 1965) 340 F.2d 991, 992, cert. denied 381 U.S. 943, 85 S.Ct. 1780, 14 L.Ed.2d 706; Nees v. Securities and Exchange Commission (9th Cir. 1969) 414 F.2d 211, 221.

      . Section 78ff, 15 U.S.C.A.

      . Cooley’s Foundation v. Legalized Games Commission (1963) 78 N.J.Super. 128, 187 A.2d 731, 738, pet. for certification to the Supreme Court, Appellate Div. denied, 40 N.J. 212, 191 A.2d 57.

      . Goldberg v. Kelly (1970) 397 U.S. 254, 270, 90 S.Ct. 1011, 25 L.Ed.2d 287.

      . Stanley v. Illinois (1972) 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551.

      . Grabinger v. Conlisk (D.C.Ill.1970) 320 F.Supp. 1213, 1218, aff’d (7 Cir.) 455 F.2d 490.

      . Sniadach v. Family Finance Corp. (1969) 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349.

      . Caulder v. Durham Housing Authority (4th Cir. 1970) 433 F.2d 998, 1003-1004, cert. denied 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed.2d 539.

      . Fuentes v. Shevin (1972) 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556.

      . See, Pierce v. Superior Ct. (1934) 1 Cal.2d 759, 37 P.2d 460, 96 A.L.R. 1020.

      . Hagopian v. Knowlton (2nd Cir. 1972) 470 F.2d 201, 211-212.

      . Due process does not even make mandatory appointment of counsel in a habeas proceeding, where loss of liberty by reason of unconstitutional deprivations is the issue. See Burston v. Caldwell (5th Cir. 1973) 477 F.2d 996.

      . Virginia ex rel. Shifflett v. Cook, supra (333 F.Supp. at 720); Smith v. State (Md. 1973) 17 Md.App. 217, 301 A.2d 54, 64.

      . The scope of this problem in Virginia and the factual rationale behind the Act is well supplied by the statistics set forth in note 1, 26 Wash. & Lee L.Rev. 271, supra.