author: ROSS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Katherine BUCKHANON, Appellant.
    No. 74-1213.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Nov. 13, 1974.

      Victor Sherman, Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for appellant.
    Joseph Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   ROSS, Circuit Judge.

After a jury trial Katherine Buckhan-on was convicted of two counts of possession with intent to distribute a controlled substance (heroin) in violation of 21 U.S.C. § 841(a)(1). She appeals alleging numerous errors by the court below. We affirm the conviction and judgment of the district court.

The facts disclosed at trial are as follows: On May 20, 1973, Arthur Buck-hanon, the defendant’s husband, and a young woman named Adele Holmes flew from Los Angeles to Minneapolis and sold eleven ounces of heroin to a government informant in a hotel room. This transaction was monitored electronically by federal narcotics agents, who recovered the heroin from the informant, Cornelius Clark. This incident was the basis of counts one and two, which charged Katherine with possession and with a sale of a controlled substance.

At the instigation of federal agents Clark began immediately to negotiate with Arthur for delivery to Minneapolis of an even larger quantity of the drug. These negotiations continued by telephone between Los Angeles and Minneapolis, culminating on May 23, 1973, when Arthur again arrived at the Minneapolis airport accompanied by a young woman, Cheryl Sneed. This time the agents did not wait for a sale and arrested both Arthur and Mrs. Sneed at the airport. In searching their luggage the agents found 29 ounces of heroin in Mrs. Sneed’s suitcase. This incident underlies count three, which charged Katherine with possession on May 23.

The fourth count charged Katherine with conspiracy to violate section 841(a)(1) between April 24, 1973, and May 24, 1973.

The government’s theory in charging Mrs. Buckhanon with these violations was that she was the source of the heroin carried to Minnesota by Arthur. Various witnesses testified for the government and their testimony tended to show that Katherine obtained narcotic drugs through a contact in Mexico and that she had given Arthur the heroin which was subsequently found in his possession in Minneapolis. The government claimed that Katherine thereby aided and abetted Arthur in his illegal possession in Minnesota and charged her as a principal under 18 U.S.C. § 2(a).

The defense attempted to show during the trial that Katherine and Arthur had experienced marital difficulties during the relevant time period and that they were estranged, so that they had no contact with one another. Witnesses testified for the defense that Katherine had not seen Arthur, so that she could not have given him any heroin. The defense also adduced evidence tending to show that another individual, government witness John Sneed, was the source of the drugs.

1. Suppression of evidence seized in search at airport.

Mrs. Buckhanon contends that the district judge erred in not suppressing the heroin evidence which was seized pursuant to a search of Cheryl Sneed’s suitcase by federal agents on May 23. It is argued that the agents had no probable cause to arrest Mrs. Sneed.

Arthur and Mrs. Sneed were arrested shortly after their arrival at the Minneapolis airport on May 23. Knowing that Arthur was negotiating with Clark, the informant, to deliver a sizable quantity of heroin to Minneapolis, federal agents had surveilled Arthur in Los Angeles and observed him board a flight for Minneapolis accompanied by the young woman who turned out to be Mrs. Sneed. In Minneapolis government agents observed Arthur and Mrs. Sneed get off the airplane and go to the baggage area of the airport. After retrieving her suitcase, Mrs. Sneed approached Arthur and tapped him on the shoulder. As they started to leave the baggage area Arthur was arrested. Mrs. Sneed observed the arrest and had made a move as if to leave the area when she, too, was placed under arrest.

The agents took the luggage from Arthur and Mrs. Sneed and took both of them and the luggage to an airport security office. Arthur was searched, as were his bags. When no heroin was discovered, Mrs. Sneed’s suitcase was opened and the drug was found therein.

It is clear that there was probable cause to arrest Cheryl Sneed under the rule recently reiterated by this Court in United States v. Peep, 490 F.2d 903, 906-907 (8th Cir. 1974).

We assess probable cause in terms of the eyes of a reasonably cautious and prudent peace officer in the circumstances of the moment. Probable cause to arrest depends “upon whether, at the moment the arrest was made, * * * the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). . . . And in making this assessment we do not isolate for independent analysis each factual circumstance, but rather we view the action of the arresting officers on the basis of the cumulative effect of such facts in the totality of the circumstances. . . . (Citations omitted.)

See also, Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968), cert. denied, 393 U.S. 1100, 89 S.Ct. 898, 21 L.Ed.2d 792 (1969).

In the instant case the arresting officers had knowledge of such facts and circumstances as would warrant a prudent man in believing that Mrs. Sneed was committing the offense of possessing heroin with intent to distribute. They knew that Arthur had been accompanied by a young woman (Adele Holmes) when he sold heroin to informant Clark on May 20; they had reasonably trustworthy information that the Buckhanons frequently used female couriers to accompany them on their drug runs; they had been told by other agents that Arthur and Mrs. Sneed had boarded the plane together in Los Ange-les; they knew that Arthur had been negotiating to sell heroin to Clark in Minneapolis; they saw Arthur and Mrs. Sneed máke contact in the Minneapolis airport. In short, they had every reason to believe that either Arthur or Mrs. Sneed or both of them were in possession of a substantial quantity of heroin.

A case very similar to this one on its facts is United States v. Lugo-Baez, 412 F.2d 435, 437-439 (8th Cir. 1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). In that case, too, all that the government agents knew was that Lugo-Baez was bringing heroin from Los Angeles to St. Louis on a certain flight and that he would be accompanied by a woman. Both were arrested upon arrival in St. Louis and the heroin was subsequently found by a policewoman in the companion’s undergarments. This Court concluded that there was probable cause for the warrantless arrests of both Lugo-Baez and his female companion.

Based on the foregoing we conclude there was probable cause to arrest Mrs. Sneed.

It is argued, however, that even if Mrs. Sneed’s arrest was proper, the agents should not have searched her suitcase without a warrant or hSr permission. We disagree. While the search of the luggage does not fall squarely within the search incident to arrest exception to the fourth amendment warrant requirement, we are convinced that this warrantless search was reasonable under the reasoning of United States v. Mehciz, 437 F.2d 145, 147 (9th Cir.), cert. denied, 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971).

We agree with the rationale of Mehciz and hold that the warrantless search involved in this case was constitutionally permissible. Luggage and other personal effects which are in the immediate possession of an individual at the time of his valid arrest may be searched without a warrant immediately subsequent to the arrest if there is probable cause to believe that they contain contraband. See United States v. Ciotti, 469 F.2d 1204, 1206-1207 (3d Cir. 1972), vacated on other grounds, 414 U.S. 1151, 94 S.Ct. 907, 39 L.Ed.2d 105 (1974); United States v. Robbins, 424 F.2d 57, 58-59 (6th Cir. 1970), cert. denied, 402 U.S. 985, 91 S.Ct. 1674, 29 L.Ed.2d 151 (1971). Cf., United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc).

2. Venue.

Mrs. Buckhanon maintains that venue was not proper in Minnesota and that this violated provisions of Article III, Section 2 and the sixth amendment of the Constitution, which provide that criminal trials are to be held in the state and district in which the alleged crime was committed. This argument is predicated on the fact that the jury acquitted the defendant of the conspiracy count, so that venue cannot be based on the rule that in a conspiracy situation venue lies in any district in which an overt act in furtherance of that conspiracy occurred. Hyde v. United States, 225 U.S. 347, 367, 32 S.Ct. 793, 56 L.Ed. 1114 (1912); United States v. Phillips, 433 F.2d 1364, 1368 (8th Cir. 1970), cert. denied, 401 U.S. 917, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). It is also urged that venue was improper because the indictment alleged possession in Minnesota while the evidence showed that Mrs. Buckhanon was not in that state during the pertinent times.

While it is true that “venue, unless properly waived, is an essential part of the government’s case in a criminal prosecution and must be established by adequate proof the burden of which is on the government,” Holdridge v. United States, 282 F.2d 302, 305 (8th Cir. 1960) (footnote omitted), there is no merit to the defendant’s argument here.

The government never claimed that Mrs. Buckhanon was physically present in Minnesota when Arthur was in the state in possession of heroin. Rather, the government’s entire case was based on the theory that the defendant had aided and abetted Arthur in his illegal possession and was chargeable as a principal under 18 U.S.C. § 2(a). The jury was instructed on this theory.

It is clear that an aider and abettor may be tried in the district in which the principal committed the substantive crime. United States v. Jackson, 482 F.2d 1167, 1178-1179 (10th Cir. 1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974); United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972); Hoss v. United States, 232 F. 328, 335 (8th Cir. 1916). There is no question but that Arthur was in the District of Minnesota when he was apprehended in the crime of possession of heroin. There was adequate proof that Katherine aided and abetted him in that possession. Therefore, venue was proper.

3. Evidence of other criminal conduct.

During the course of the trial some evidence was admitted, over objection, concerning other drug-related criminal conduct of Mrs. Buckhanon. Most of this evidence dealt with other incidents closely related in time to the two Minneapolis transactions in which various government witnesses had seen narcotic drugs in the Buckhanon household, had seen Katherine in possession of drugs, had heard Katherine discuss her activities relating to drugs or had been told by Arthur that he obtained narcotics from Katherine. Defendant claims that none of the exceptions to the rule against admission of evidence of past criminal conduct is applicable here because there was no genuine issue of identity, motive, intent, plan or absence of mistake or accident.

The trial court admitted this evidence on the theory that it went to establish the requisite intent. We do not agree that it was admissible for this purpose ; however, we are satisfied that there was an issue regarding the identity of the source of the heroin and that this evidence was proper to show a larger continuing plan or scheme and thus, indirectly, the identity of the culprit.

Professor McCormick points out that evidence of past criminal conduct is properly admitted

[t]o prove the existence of a larger continuing plan, scheme, or conspiracy, of which the present crime on trial is a part. This will be relevant as showing motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.

C. McCormick, Law of Evidence § 190, at 448-49 (2d ed. 1972). (Emphasis supplied.)

In Sears v. United States, 490 F.2d 150, 152-153 (8th Cir. 1974), intent was not in issue because it was not an element of the crime. However, the court permitted the introduction of evidence of other similar criminal acts “to show knowledge, as well as a common criminal scheme or plan, in negation of the likelihood that the crime was committed as a result of inadvertence, accident or mistake.” In this case Mrs. Buckhanon was actively disputing the identity of the individual who had given the heroin to Arthur. The government could introduce evidence of prior similar criminal conduct which showed the larger continuing plan whereby Mrs. Buckhanon obtained heroin from a source in Mexico and distributed it to various locations across the country.

4. Refusal to allow attorney to testify.

During its rebuttal the government put a witness named Barbara King on the stand. Mrs. King testified that she had been at Mrs. Buckhanon’s home the night before Arthur’s first drug run to Minneapolis and had seen Mrs. Buckhan-on meet with Arthur, place a phone call and receive a package at the door.

The defense attorney sought to call himself as a witness to impeach Mrs. King's testimony by attempting to show bias. Out of the hearing of the jury the attorney made an offer of proof alleging that Mrs. King had requested $2,500 which Mrs. Buckhanon supposedly owed her in return for testifying favorably for the defendant. This “extortion” supposedly occurred during a telephone conversation between the attorney and Mrs. King to which there were no other witnesses.

The question of whether an attorney for one of the parties should be allowed to testify at the trial is one within the discretion of the trial judge. Gajewski v. United States, 321 F.2d 261, 268 (8th Cir. 1963), cert. denied, 375 U.S. 968, 84 S.Ct. 486, 11 L.Ed.2d 416 (1964). And while an attorney for a party is not incompetent to testify, United States v. Fiorillo, 376 F.2d 180, 185 (2d Cir. 1967), it is true that “[c]ourts are especially reluctant, and rightfully so, to allow lawyers . to be called as witnesses in trials in which they are advocates.” Gajewski v. United States, supra, 321 F.2d at 268. We find no abuse of discretion in this case.

5. Admission of out-of-court declarations.

Defendant argues that certain hearsay statements made by Arthur to various witnesses and testified to by them should not have been admitted. These statements were, generally, damaging to Katherine’s case, since they tended to show that she routinely supplied heroin to Arthur.

These hearsay statements were admitted because a conspiracy had been charged and there is, of course, an exception to the hearsay rule which allows out-of-court statements made by a co-conspirator during the progress of the conspiracy to be used against fellow conspirators. Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Delaney v. United States, 263 U.S. 586, 590, 44 S.Ct. 206, 68 L.Ed. 462 (1924); Proposed Federal Rule of Evidence 801(d)(2)(E), H.R. 5463, 93d Cong., 2d Sess. 27 (1974). It is, in essence, not considered to be hearsay at all.

However, Mrs. Buckhanon claims that because the jury acquitted her of the conspiracy count, this rule should not have been applicable and that the alleged hearsay merely served to prejudice her case on the substantive counts. There is no merit to this claim.

This Court has held that declarations by a co-conspirator are not hearsay and are admissible even if a conspiracy has not been charged by the government, so long as there is independent evidence of concert of action. United States v. Richardson, 477 F.2d 1280, 1282-1283 (8th Cir.), cert. denied, 414 U.S. 843, 94 S.Ct. 104, 38 L.Ed.2d 82 (1973); United States v. Sanders, 463 F.2d 1086, 1088 (8th Cir. 1972); United States v. Schroeder, 433 F.2d 846, 849 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971) and sub nom. Allen v. United States, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636 (1971). In the instant case there was, in fact, a conspiracy charged and independent evidence of concert of action. It follows that the out-of-court statements of others involved in the criminal plan were admissible.

6. Sufficiency of the evidence.

In reviewing the sufficiency of the evidence we are guided by the axiomatic principle that we must view the evidence in the light moát favorable to the verdict. United States v. Gaskill, 491 F.2d 981, 982 (8th Cir. 1974). A complete review of all the evidence would serve no purpose here for we are convinced, as was the trial judge, that there was “overwhelming evidence of guilt.”

We have examined each of the other assignments of error set forth by the appellant and have found them to be without merit. For the foregoing reasons the conviction of the appellant is affirmed.

      . The purpose of evidence bearing on intent is to negate an innocent mental state after the act charged has been established as having been done by the defendant. 2 J. Wig-more, Wigmore on Evidence § 304, at 202 (3d ed. 1940). In the instant case the defendant was seriously contesting that she had given the heorin to Arthur, but was willing to stipulate that if she committed the crime, she had the requisite criminal intent. Tims, intent was not seriously in issue, and the plea of not guilty did not make it an issue. See C. McCormick, Law of Evidence § 190, at 452 n. 54 (2d ed. 1972) ; United States v. Broadway, 477 F.2d 991, 994 (5th Cir. 1973).

      . Mrs. Buekhanon has filed a Motion for New Trial based on newly discovered evidence under Fed.R.Crim.P. 33 with this Court. We deny the motion without prejudice to her right to reapply to the district court under the rule.


source: Caselaw Access Project

author: WEIS, Circuit Judge.

license: Public Domain

text:
    James R. KEPHART, Appellant, v. Elliot L. RICHARDSON, Secretary, Department of Health, Education and Welfare, Appellee.
    No. 74-1156.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) Sept. 18, 1974.

      Decided Nov. 19, 1974.

      Thomas A. Swope, Jr., Swope & Swope, Ebensburg, Pa., for appellant.
    Richard L. Thornburgh, U. S. Atty., James A. Villanova, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
    Before VAN DUSEN, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

WEIS, Circuit Judge.

While silence may be golden in the adage, silence in the Social Security records of employment may have quite a contrary effect on a claimant for disability benefits who must establish a wage earning history. In this appeal from a denial of benefits, we conclude that, while the absence of earnings entries is statutorily denominated evidence of nonemployment, it may be outweighed by credible testimony of the claimant which fills the void. Because the administrative process failed to properly consider the positive evidence which might have eliminated the negative, we remand for further proceedings.

Claimant James R. Kephart began to work in the coal mines of Pennsylvania at the age of 14 and continued there for more than thirty years. After the mines near his home closed in 1959, he embarked upon a series of light laboring jobs with various concerns in the construction field and in agriculture. In 1969, he was unable to continue employment because his physical condition had deteriorated. He applied for disability benefits at that time pursuant to the provisions of the Social Security Act.

After a hearing before an administrative law judge, the Secretary denied benefits because he found that Kephart had not worked the requisite number of quarters to have been covered under the Act when he became disabled. This determination was made primarily because the Secretary’s records did not show any payments of wages during the years 1960, 1961, 1962, 1963 and 1965, although the claimant produced evidence that he had been employed during this period. On appeal, the district court granted summary judgment for the Secretary.

In 1964 and from 1966 to 1969, Kep-hart worked at various times for a number of construction companies which duly filed returns of his earnings. From 1960-1963 and in 1965, however, he worked on a piecework basis as a crop picker for a number of farmers near his home. He filed an affidavit, joined in by his wife and three other persons, in 1972 asserting that he worked for Hoover Brothers of New Paris, Pennsylvania in the months of July, August, September and November of 1960, 1961, 1962, 1963 and 1965, and for a Ray Glessner in October of each of those years. At the hearing, Kephart testified that he worked as a farmhand during the years 1961, 1962, 1963, and 1965, adding that on a “couple” of occasions his wife worked with him.

A response to a questionnaire from the Social Security Administration by Glessner Farms and a report of an interview with the employer were introduced into evidence at the hearing. These exhibits established that the claimant and his wife had indeed harvested potatoes but stated that only one check had been issued to the husband for the labors of both. The Hoover Brothers partnership had been dissolved before the questionnaire had been sent, and the response to it was not to the point.

On the basis of the testimony and affidavits, the hearing officer found that the government’s records, which showed no agricultural earnings in the years in question, demonstrated that the claimant had insufficient quarters of coverage. The hearing officer held that the Gles-sner evidence “. . . cannot be viewed as substantial evidence . sufficient to rebut the presumption of validity accorded by law to the Secretary’s wage records ... I view the mere naked assertion by the claimant in his affidavit and in his testimony at the hearing with respect to earnings from Hoover Bros, to be insufficient evidence to rebut the presumption of validity with which the Act cloaks the Secre-try's records.”

The issue in this case is a very narrow one and is focused on the determinations to be made when a claimant alleges that he did in fact work during a given period of time for which the government’s records are silent. We con-elude that a claimant is entitled to substantiate his position and that this evidence must be given consideration by the Social Security Administration.

42 U.S.C. § 405(c)(2) provides that on the basis of information submitted to the Secretary and after such verification as deemed necessary, he shall maintain records of wages paid to an individual. The next subsection, (3), provides that such records may be evidence in proceedings before the Secretary and that “[t]he absence of an entry in such records as to wages alleged to have been paid to ... an individual in any period shall be evidence that no such wages were paid . . . during such period.” Subsection (4) discusses the Secretary’s authorization to correct the records, providing in subpart (A) that the records as to wages paid “shall be conclusive.” Subpart (B) recites that “the absence of an entry . . . as to wages alleged to have been paid . . . during any period shall be presumptive evidence that no such alleged wages were paid tf

While there may be some question as to whether subsection (3) or (4) sets the evidentiary standard to be used for hearings before an administrative law judge, we do not find any material inconsistency. Read together, they clarify what Congress intended to be the scope of the presumption as to wage records.

Presumptions in the law serve a useful purpose and have caused more than their share of judicial and scholastic commentary. We need not go much further here than to refer briefly to Wig-more on Evidence §§ 2490 and 2491 and to the frequently quoted statement, “Presumptions . . . may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.”

Wigmore agrees with this view and states that it is erroneous to hold, as some courts do, that after positive evidence has been introduced in a case, the presumption does not vanish but may be submitted to the fact finder for consideration along with the positive evidence. He notes that a presumption should have no artificial probative force, once contrary evidence has been introduced.

Congress resolved that disagreement in the narrow area in which we find ourselves here. The fact of absence of an entry is “evidence” and must be considered along with any other evidence that may be introduced. At the same time, the “presumptive” effect is not conclusive since the statute makes a sharp distinction between a positive entry which is given such conclusive status and the absence of entries which is only “evidence.” The differing treatment has a rational basis. A claimant should not be deprived of the benefits to which the positive record entitles him, but he should not be precluded from entitlement where he can produce evidence to fill a void in a silent record.

As we read the statute, therefore, the fact that the records show no earnings is merely one evidentiary fact which must be weighed against other evidence produced by the claimant. In this situation, the usual burden of proof applies — that is, if the evidence supporting the claimant preponderates, he is entitled to prevail. We see nothing in the statute which requires the claimant to rebut the negative condition of the records by “substantial evidence.” Cf. Thacker v. Gardner, 268 F.Supp. 663 (W.D.Va.), aff’d 387 F.2d 387 (4th Cir. 1967). In most claims this subtle difference will have little practical effect, but in close cases it may be important. Since the hearing officer applied an incorrect standard in appraising the evidence here, it must be reassessed.

It follows that the usual tests of credibility must be applied to the claimant’s testimony. If it is credible, it must be given the same weight in refuting a silent record that it would be entitled to in any other phase of the case. In making such judgments, of course, the hearing officer is concerned with more than simply whether the claimant is being truthful to the best of his ability. Thé fact finder must consider factors such as accuracy of memory, opportunity to know the pertinent facts, and ability or inability to present them because of educational or intellectual deficiencies. He must also weigh the possible effects of bias, conscious or otherwise. If, after applying the usual tests, the hearing officer is convinced that a claimant has presented objectively accurate facts, then his testimony is evidence which cannot be disregarded, whether corroborated or not. Corroboration is not essential to reach a determination; it is only an aid to minimize doubts which the fact finder might otherwise harbor.

These decisions on credibility are not always easy, but they must be made by the administrative hearing officer if the courts are to fulfill their function. As we said in Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974):

“In our view an examiner’s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s decision is supported by substantial evidence. It is incumbent upon the examiner to make specific findings — the court may not speculate as to his findings.”

The decision of the hearing officer also speaks of the “presumption of validity with which the Act cloaks the Secretary’s records.” If, by that phraseology, the officer meant that these records are entitled to the deference usually extended to matters covered by the presumption of administrative regularity, then the statement was not correct. A presumption of regularity surrounds public officers to the extent that, in the absence of contrary evidence, a reviewing court assumes that they have properly discharged their official duties. See 2 Davis, Administrative Law Treatise § 11.06. Although we can assume that the Secretary properly compiled the wage data received from employers, it does not follow that the submitted information was accurate in the first instance.

Our review of the evidence in the case sub judice does not lead us to a conclusion that the farmers and fruit growers who may have hired the claimant on a piecework basis were excessively concerned with maintaining records in exhaustive detail. Since none of them testified or submitted detailed statements, we make this reference only as an indication of one of the factors which should be developed before determining the weight to be given to the absence of wage entries for the plaintiff here.

After Kephart initiated his claim, he advised the Social Security regional office of the names of his alleged agricultural employers. The Administration then sent a questionnaire to those persons but in most cases received equivocal responses focused mainly on the lack of records. The issue here is not whether the employer’s records were complete but whether Kephart in fact worked for these individuals and, if he did, for what period of time. The government, however, did not follow up by even so much as a telephone call or letter requesting clarification of the incomplete data received from the alleged employers. Having undertaken to make an investigation of this portion of the claim, in fairness the government should have undertaken to secure further explanations. We think it pertinent, once more, to repeat what we said'in Hess v. Secretary of Health, Education, and Welfare, 497 F.2d 837, 840 (3d Cir. 1974):

“Although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails . . . We do not say that an administrative law judge must search out all the relevant evidence which might be available, since that would in effect shift the burden of proof to the government. But, these proceedings are extremely important to the claimants, who are in real need in most instances and who claim not charity but that which is rightfully due as provided for in Chapter 7, Sub-chapter II, of the Social Security Act.”

Since we find that the hearing examiner applied an improper standard in weighing the evidence dealing with Kep-hart’s employment and that there was not a full development of other evidence on this point, the judgment of the district court will be vacated and the matter remanded to the district court with directions for remand to the Social Security Administration for further proceedings consistent with this opinion.

      . 42 U.S.C. § 401 et seq.
      Kephart was found to be eligible for “black lung” benefits, but the criteria for that program are different from those for social security disability.

      . A “quarter” is a three calendar month period in which an individual receives a specified amount of wages. 42 U.S.C. § 413(a) (2).

      . The small sum of $2.67, shown as earnings in 1961, has not been explained, but it is minimal, has no effect on this case in any event, and will be disregarded.

      . During the hearing, claimant’s counsel suggested to him that he returned to work in 1961 and apparently misled Kephart into also stating 1961. The Glessner exhibits showed that the claimant had been employed in 1960.

      . One of the former partners recited that if any social security payments had been due for Kephart, deductions would have been made by the partnership. This partner also indicated that the amounts paid by the Hoover Brothers to Kephart were “unknown” for the years 1960-1963. The form in which this statement was made instructs the employer as follows: “If no wages were paid in the periods checked below, write ‘None.’ If the amounts are unknown, write ‘Unknown.’ ” Notably, the questionnaire did not deny that Kephart had worked for the partnership.
      Another questionnaire was completed by a Wilmer Taylor, indicating that no wages were paid to Kephart but that he had been “paid on a per bushel basis.” Taylor’s connection with the case was not developed further in the record.

      . Had the Secretary adopted Kephart’s proof of agricultural employment, the earnings requirement of the Act would have been met. The Secretary concedes that the official employment records establish 15 quarters during the 40 quarters prior to the disability. The remaining coverage needed to attain the 20 quarter minimum would have been credited as a result of Kephart’s work for Glesner and Hoover Brothers or for Hoover Brothers alone. See 42 U.S.O. § 413(a) (2) (iv).
      Whether Kephart qualifies under the Act’s definition of disability is not presented by this appeal since a determination that he was ineligible for the benefits because of insufficient coverage precluded a decision on the merits of the claim.

      . Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65 (1924). See IX Wigmore on Evidence, § 2491, at 290 n. 6.

      . The only exception was the Glessner memo which was introduced at the hearing.