author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. William WHITE, Defendant-Appellant.
    No. 152, Docket 73-1597.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 21, 1973.
    Decided Oct. 11, 1973.
    William Epstein, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for defendant-appellant.
    John D. Gordan, III, Asst. U. S. Atty., for the S.D.N.Y. (Paul J. Curran, U. S. Atty., Eugene F. Bannigan, Asst. U. S. Atty., for the S.D.N.Y., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

A few injudicious words uttered in the heat of battle by an Assistant United States Attorney may undo months of preparation by police, prosecutorial, and judicial officers. In some eases, the prosecutor’s excess zeal may be so egregious that it taints a conviction, requiring us to order a new trial. When, as in the instant ease, the trial is short and devoid of any other claims of error, seemingly trivial prosecutorial impropriety may stand out in bold relief. William White’s trial before Judge MacMahon and a jury lasted only two days and resulted in his conviction for assault with a dangerous weapon within the special territorial jurisdiction of the United States. 18 U.S.C. 113(c). All the evidence was presented on the first day, and the prosecution summation, judge’s charge, and verdict were delivered on the second. Although we deplore the Assistant United States Attorney’s comments, we do not believe they substantially prejudiced the defendant. Accordingly, we affirm.

We set forth the simple facts in this case so that the prosecutor’s remarks on summation may be weighed more meaningfully. On December 19, 1972, during the height of the Christmas rush, William White and David Goodson, co-workers at the Post Office at Eighth Avenue and Thirty-third Street, became embroiled in an argument. Although the reason for their disagreement is unclear, the fires of passion were stoked by the alcohol each had consumed that day. As White and Goodson entered the employees’ locker room, their argument erupted into pushing and shoving, and ended dramatically when White took a .32 caliber silver-plated revolver from his locker and shot Goodson in the right thigh.

At trial, White contended that he had brandished the weapon in self-defense and that he had fired it accidentally. To buttress this claim, White testified on direct examination that Goodson had “grabbed” his neck several times and that he fired the shot just after Goodson had moved “like he intended to go to his pocket for something.” Although Good-son conceded on cross-examination that he had reached into his pocket “like I had something,” he denied that he had gripped White’s throat. Had this been all the evidence, the jury would have faced a relatively simple, but factually close, question of credibility. White, however, contradicted himself on cross-examination. He admitted, for example, that he was not being threatened when he fired. Having thus rendered his self-defense claim untenable, White proceeded to undermine his statement that the shooting was accidental when, on re-cross-examination, he testified that the day after the incident he had informed a postal inspector that “the gun went off because all of a sudden my finger got itchy.”

Because the evidence of guilt was overwhelming, the jury deliberated for only three and one-half hours (including the luncheon recess) before finding White guilty. Judge MacMahon sentenced White to six months in prison and four and one-half years probation.

I.

As we have observed, appellant’s sole claim of error stems from the prosecutor’s summation. The solitary blemish on the record, however, is not so insignificant that we can ignore it without comment, especially in view of the frequency with which allegations of prose-cutorial misconduct have come before this court.

It is charged here that during his brief summation, comprising only ten pages of the transcript, the Assistant United States Attorney improperly asserted his own belief in White’s guilt. Our study of the record discloses that the prosecutor charged twice that White was “lying” and repeatedly indicated that the defense was “fabricated.” These tactics were unwise and unnecessary. Although we might expect a character in a Perry Mason melodrama to point to a defendant and brand him a liar, such conduct is inconsistent with the duty of the prosecutor to “seek justice, not merely to convict.” ABA Code of Professional Responsibility, Final Draft, 1969, Ethical Consideration 7-13,

at 79. See H. Drinker, Legal Ethics 148 (1953).

The prosecutor’s intemperate remarks might not have aroused the concern they have if they were uttered at the conclusion of a long and hotly contested trial. But, in a brief trial, and especially one in which the prosecutor’s summation was delivered the day after the evidence and the defense summation were presented, the impropriety assumes greater significance. Accordingly, it is better that we issue our admonition in this simple case than face a charge of greater prosecutorial impropriety in a difficult case.

II.

Although the prosecutor’s comments were ill-conceived, reversal is not warranted here if we view his conduct, as we must, in the context of the entire trial. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239, 242, 60 S.Ct. 811, 84 L.Ed. 1129 (1940); United States v. Berger, 295 U.S. 78, 85, 89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Benter, 457 F.2d 1174, 1178 (2d Cir.) cert, denied 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972); United States v. Grunberger, 431 F.2d 1062, 1069 (2d Cir. 1970). Proof of guilt was clear and convincing. The verdict was ensured by the defendant’s words, and not the prosecutor’s.

Although we are affirming the conviction, we seek by our admonition to remind the federal prosecutor once again of the delicate role he plays. When an Assistant United States Attorney appears in court, and especially in a trial before a jury, he represents and personifies the government. He must prosecute cases diligently and vigorously. The public expects no less. But, he must also perform his task with dignity and self-discipline. The public deserves no less. We recall Justice Black’s articulation of the prosecutor’s dilemma:

A prosecutor must draw a careful line. On the one hand, he should be fair; he should not seek to arouse passion or engender prejudice. On the other hand, earnestness or even a stirring eloquence cannot convict him of hitting foul blows.

Viereck v. United States, 318 U.S. 236, 253, 63 S.Ct. 561, 569, 87 L.Ed. 734 (1943) (Black, J., dissenting).

The exceedingly fine line which distinguishes permissible advocacy from improper excess is to be drawn within the concrete terrain of specific cases. See ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function 127 (1971). Accordingly, we do not intend to formulate per se rules or declare that certain words will automatically trigger mistrials or reversals of convictions. Certainly, advocates may marshal all inferences that the evidence supports and indulge in nonprejudicial flourishes of rhetoric. Eloquence is not misplaced in the courtroom. But the prosecutor’s comments in this case did not rise to the level of oratory or eloquence. He engaged, quite simply, in name-calling, but since the prejudice to appellant was minimal, we affirm.

      . The argument began at 3:50 p.m. Goodson testified that he had one beer and a shot of Chivas Regal at lunch. White, who was nicknamed “Wino” by his co-workers, had, true to his appellation, consumed one pint of wine prior to his encounter with Goodson.

      . On cross-examination, however, Goodson testified that he had seized White by the “collarbone.” Other inconclusive testimony was presented on the question of self-defense. The government called three postal co-workers who were in the locker room during the altercation. Each of these witnesses, however, saw only a fragment of the fight. Bernardo Trinidad offered no evidence concerning the neck-grabbing incident. Peter Ragaglia testified that he saw one of the combatants clutch the other by the throat, but could not recall whether White or Goodson was the assailant. Only Eddie Wright stated conclusively that he saw Goodson’s hands on White’s neck. Wright, however, saw this occur only once, not three times as White claimed.

      . Q. I am asking you whether he was threatening you at the time you shot him?
      A. No, he was not.
      Q. He was not?
      A. No.

      . In at least six cases in the last six months appellants have included allegations of prosecutorial misconduct at trial among their claims of error on appeal. See United States v. Santana, 485 F.2d 365, 370-371 (2d Cir. 1973) (prosecutor’s remarks in summation justified as responsive to defense allegations); United States v. Drummond, 481 F.2d 62 (2d Cir. 1973) (conviction reversed because of prejudicial statements by Assistant United States Attorney) ; United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973), cert, denied (1973), 414 U.S. 855, 94 S.Ct. 157, 38 L.Ed.2d 105 (prosecutor’s comments in summation justified as responsive to defense counsel’s charges) ; United States v. Fernandez, 480 F.2d 726, 741 n. 23 (2d Cir. 1973) (prosecutor’s summation criticized) (conviction reversed on other grounds) ; United States v. Miller, 478 F.2d 1315, 1317 (2d Cir. 1973), cert, denied (1973), 414 U.S. 879, 94 S.Ct. 61, 38 L.Ed.2d 125 (prosecutor’s remarks in summation were “ill conceived” but not prejudicial) ; United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert, denied (1973), 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (improper statement by prosecutor during presentation of evidence cured by trial judge’s strong corrective measures). See also United States v. Archer, 486 F.2d 670 (2d Cir. 1973) (investigative tactics criticized).

      . White claims also that he was prejudiced by the prosecutor’s misstatements of the evidence and exaggeration of the strength of the government’s case. Our careful scrutiny of the record indicates that the sole factual defect in the summation was the prosecutor’s suggestion that White had walked “calmly” to his locker to secure his gun. The record, however, is bare of evidence on this score. If White had retreated hastily, it would have been some support for his claim of self-defense. Certainly, the statement that White walked calmly, twice mentioned by the prosecutor in summation, undermined the defense and was a characterization without basis in the record. White’s other attacks on the summation are without merit.

      . “One final word in this case: You must, when you enter your deliberations, decide which of the witnesses is telling the truth. The evidence in this case shows that at least one of them is lying. I suggest to you, ladies and gentlemen, that the evidence in this case shows that that man [indicating] is that one.
      AVhat is the evidence that shows he is lying? Well . . . .”

      . For example, the prosecutor charged that “the defendant has fabricated these incidents in order to bolster a specious, meritless argument.”

      . At oral argument — by an Assistant other than the trial Assistant — the government attempted to distinguish between the noun and verb forms of the word “lie.” Although we appreciate the government’s concern with grammatical niceties, we reject the argument. Whether the arrows in the quiver are verbs or nouns, when shot with the skill of a trained archer, their sting is equal.

      . We note that no objection was interposed to the summation, nor was there a request for curative instructions until after the judge had charged the jury, and then only in general terms.
      In the absence of objection, Judge Mac-Mahon did not curtail the prosecutor’s summation, nor did he charge the jury to disregard these remarks. He did, however, properly instruct the jury that it was the final arbiter of facts:
      It is your memory of the evidence that controls. It is not the way I remember it, nor the way that the lawyers remembered it yesterday or this morning, as they made their closing arguments. If your memory squares with what the lawyers have said you may accept their version of the facts. But to the extent that you have a different recollection, you are bound by your roll [sic] to rely on your own memory.
      Counsel did express Iris displeasure with the summation in his motion to set aside the verdict.

      . We are reminded also of Justice Sutherland’s frequently quoted comment on the role of the federal prosecutor;
      The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
      Berger v. United States, supra, 295 U.S. at 88, 55 S.Ct. at 633.


source: Caselaw Access Project

author: ROSS, Circuit Judge. LAY, Circuit Judge

license: Public Domain

text:
    Robert O. O’REILLY, Appellant, v. UNITED STATES of America Appellee.
    No. 73-1016.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973.
    Decided Aug. 28, 1973.
    Rehearing and Rehearing En Banc Denied Sept. 26, 1973.
    Stay Denied Nov. 5, 1973. See 94 S.Ct. 351.
    Certiorari Denied Nov. 19, 1973.
    See 94 S.Ct. 546,

      Sherman Bergstein, Minneapolis, Minn., for appellant.
    Neal Shapiro, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

Robert O. O’Reilly appeals his conviction, after a jury trial, of violations of 21 U.S.C. § 841(a)(1), sale of cocaine. We affirm the judgment of conviction.

The facts, briefly stated, are these: Agents of the Bureau of Narcotics and Dangerous Drugs (BNDD), made arrangements with a man named Armstrong to buy cocaine from O’Reilly. On two occasions, January 24, 1972, and January 28, 1972, O’Reilly was observed in the Armstrong residence by government agents hiding in a closet. As to each date the agents testified that O’Reilly entered the room and gave Armstrong a condom containing white powder — cocaine. On each date O’Reilly drove to the Armstrong residence in his 1964 Chevrolet.

On April 17, 1972, the agents, after procuring an arrest warrant, “staked out” the O’Reilly residence at about 10 a. m. The agents waited about two blocks away, and O’Reilly was observed leaving his residence and entering his car. A few blocks from the residence the agents arrested O’Reilly and seized his 1964 Chevrolet. The car was finally towed to the agents’ office where it was inventoried. The inventory produced marijuana, “baggies”, a scale, needles and syringes.

The material obtained during the search was entered into evidence after O’Reilly had taken the witness stand and denied that he sold cocaine to Armstrong, asserting that he went to the Armstrong residence simply to buy marijuana and was tricked by Armstrong so that it only appeared that O’Reilly was selling cocaine to Armstrong.

O’Reilly does not directly challenge the sufficiency of the evidence to support the conviction, but claims that the search was illegal and that the evidence obtained thereby was improperly admitted for that reason and because it was evidence of a subsequent unrelated offense.

Search and Seizure

O’Reilly claims that the seizure of the car and the subsequent search thereof were unlawful, thereby necessitating the suppression of the fruits of the inventory. In making our determination of this issue, we turn first to the legality of the seizure of the car.

O’Reilly claims the seizure, three months after the sale of cocaine for which he was indicted, was illegal since it was without a warrant and there was no probable cause to believe that he was carrying narcotics in the car on the day of the seizure.

The Government contends that the car was seized under authority of 21 U.S.C. § 881(a)(4) which provides for forfeiture to the United States of all vehicles used for the transportation or sale of narcotics classified as controlled substances; that 21 U.S.C. § 881(b)(1) provides that no seizure warrant is required where, as here, the seizure is incident to an arrest; that the agents had observed O’Reilly using this same car in going to and from the point of sale of cocaine on both January 24 and January 28, 1972; that the delay of three months in making the seizure did not vitiate the Government’s right to do so under 21 U.S.C. § 881(a)(4).

It seems clear that the seizure was made pursuant to a valid arrest based on an arrest warrant, the legality of which is not challenged. It is equally clear from the evidence that the officers had probable cause to believe that the car was owned by O’Reilly and had been used by him three months earlier to transport a controlled substance to a point at which it was illegally sold by him to a Government informer. See United States v. Weaver, 471 F.2d 18, 19 (5th Cir. 1973). Therefore, the only possible argument O’Reilly can have concerning the seizure is that the seizure was three months after the illegal use.

The cases have uniformly upheld seizures after the initial illegal transaction. United States v. Mills, 440 F.2d 647, 648 (6th Cir.), cert, denied, 404 U.S. 837, 92 S.Ct. 127, 30 L.Ed.2d 70 (1971) [criminal case, seizure occurred “later that day”]; Interbartolo v. United States, 303 F.2d 34, 37 (1st Cir. 1962) [civil forfeiture, 17-day time lapse]; Weath-ersbee v. United States, 263 F.2d 324, 326 (4th Cir. 1958) [civil forfeiture, 3-month time lapse]; Sanders v. United States, 201 F.2d 158, 159 (5th Cir. 1953) [civil forfeiture; period unstated] ; United States v. One 1951 Oldsmobile Sedan, 129 F.Supp. 321, 324 (E.D. Pa.1955) [civil forfeiture, 3-month time lapse]; United States v. One 1952 Ford Victoria, 114 F.Supp. 458, 459 (N.D. Cal.1953) [civil forfeiture, 3-hour time lapse]; In re One 1962 Volkswagen Sedan, 105 Ariz. 315, 464 P.2d 338, 339-340 (1970) [civil forfeiture, 2½ month time lapse]; People v. One 1951 Chevrolet 2-Door, 157 Cal.App.2d 30, 320 P.2d 881 (1958) [civil forfeiture, period unstated] .

Two of these cases have recognized that delayed seizure may be justified because of undercover activity. Weathersbee v. United States, supra, 263 F.2d at 326; In re One 1962 Volkswagen Sedan, supra, 464 P.2d at 339-340. The theory of at least the federal cases appears to be that forfeiture occurs at the moment of illegal use, although physical seizure occurs thereafter. Hence the Government does not waive its right to forfeiture by failure to seize promptly.

Likewise, the three-month delay between the offense and the issuance of the arrest warrant was not unlawful. In United States v. Wilson, 342 F.2d 782, 783 (2d Cir.), cert, denied, 382 U.S. 860, 86 S.Ct. 119, 15 L.Ed.2d 98 (1965), a delay of a little over fifteen months between the offense and the issuance of the arrest warrant, in a narcotics case, was upheld where there was no showing that the delay in obtaining the warrant was prejudicial, or part of a deliberate, purposeful and oppressive design for delay.

For these reasons we hold that the seizure was legal and proceed to the question of the search of the car after it was seized.

Once the car was legally seized, pursuant to the federal forfeiture statute, the arresting officers were entitled to inventory the contents of the car and take possession of the items found therein. In Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the Supreme Court ‘held that where an auto was lawfully seized, pursuant to a state statute providing for forfeiture of an auto used in illegal narcotics sales, the later search thereof was reasonable under the fourth amendment and the evidence obtained thereby admissible against Cooper in a narcotics prosecution. In so doing the Supreme Court stated:

“It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it. It is no answer to say that the police could have obtained a search warrant, for ‘[t]he relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ United States v. Rabinowitz, 339 U.S. 56, 66 [70 S.Ct. 430, 435, 94 L.Ed. 653]. Under the circumstances of this case, we cannot hold unreasonable under the Fourth Amendment the examination or search of a car validly held by officers for use as evidence in a forfeiture proceeding.” Id. at 61-62, 87 S.Ct. at 791.

Likewise, in United States v. Young, 456 F.2d 872 (8th Cir. 1972), this Court upheld a search of a car where there was probable cause to arrest the occupants for passing counterfeit notes and where the vehicle was seized under the authority of 49 U.S.C. § 783, a seizure statute relating to counterfeiting which is similar to the narcotics forfeiture statute. In Young this Court stated:

“It is readily apparent that § 783, like the California statute in Cooper, does not by its terms specifically authorize a search of vehicles seized thereunder, and that the language of the statute arguably does not justify seizure until evidence of the appropriate illicit activity has been found. However, here, as in Cooper, the police possessed lawful custody of the automobile for a reason closely related to Young’s arrest and the object of the search was related to that arrest. Thus, as in Cooper, there is a close relationship of the search to the nature of the arrest, as well as to the reason the vehicle was in custody. These facts and this relationship bring this case within the reach of Cooper and require us to conclude that the District Court erred in suppressing the 8 counterfeit notes. We simply cannot hold unreasonable under the Fourth Amendment the search and consequent seizure present under the facts of this case.” Id. at 875. (Footnotes omitted.)

For these reasons we hold the seizure and subsequent search of the car to have been valid.

Evidence of Another Crime

In addition to claiming that the search was illegal, O’Reilly’s counsel claimed that the evidence obtained in the search was inadmissible because it tended to prove a separate and distinct crime by O’Reilly three months after the commission of the crime with which he is charged. The Government claims that the evidence was admissible to prove motive or intent.

On direct examination by his attorney, O’Reilly admitted that he used marijuana, had been convicted of possession of one pound of marijuana and denied using or selling any other controlled substance. The items which the Government introduced in evidence which were obtained in the search were (1) a 1.5-pound brick of marijuana; (2) 14 plastic “baggies”; (3) a package of marijuana seeds; (4) a package of marijuana “stems”; (5) a sack containing six syringes and five hypodermic needles; (6) a small scale. O’Reilly admitted that the baggies, scale and marijuana belonged to him but denied owning the syringes and needles.

O’Reilly’s defense was that he was an occasional marijuana buyer, and that he was tricked by Armstrong. O’Reilly testified that he went to the Armstrong residence expecting to buy marijuana, but instead, upon his arrival, Armstrong, who was momentarily out of sight of the agents hiding in the closet, handed a condom of cocaine to O’Reilly. When O’Reilly handed it to Armstrong in view of the agents this made it appear that O’Reilly was selling cocaine. By admitting that he had handed the cocaine to Armstrong, but only by way of returning it, O’Reilly indirectly raised the issue of intent. While it is well recognized that evidence of other criminal activity is not admissible, it has also been held that such evidence may be adduced to prove motive or intent, and for certain other limited purposes. See, e. g., United States v. Cochran, 475 F.2d 1080, 1082 (8th Cir. 1973); United States v. Lewis, 423 F.2d 457, 459 (8th Cir.), cert, denied, 400 U.S. 905, 91 S.Ct. 146, 27 L.Ed.2d 142 (1970); C. McCormick, McCormick on Evidence, § 190 at 450-451 (Cleary ed. 1972). Indeed, this Court specifically held in United States v. Lewis, supra, 423 F.2d at 459, that “[i]n prosecutions for violation of narcotics laws, the defendant’s complicity in other similar narcotics transactions may serve to establish intent or motive to commit the crime charged.

. . . "

O’Reilly claims that such a rule should not apply to transactions subsequent to the commission of the alleged crime. However, this Court has recently held that the fact that the other criminal activity took place subsequent rather than prior to the alleged crime “does not on that ground alone make it incompetent to establish intent or motive . . . .” McConkey v. United States, 444 F.2d 788, 790 (8th Cir.), cert, denied, 404 U. S. 885, 92 S.Ct. 223, 30 L.Ed.2d 168 (1971). There, as here, some of the subsequent acts occurred three months after the time of the offense alleged in the indictment.

We therefore hold that at least the syringes and needles were properly admitted into evidence for the purpose of showing intent. It should be observed that the Government apparently abided by this Court’s suggestion in United States v. Crawford, 438 F.2d 441, 448 (8th Cir. 1970), that the Government should defer evidence of this sort until the defense makes it necessary. See also McCormick on Evidence, supra, § 190 at 452. Thus when the defense raised the motive and intent question by contending that O’Reilly was nothing more than an occasional marijuana buyer with no reason to sell cocaine, it was proper for the Government to rebut the contention with evidence tending to prove the defendant did in fact have some connection with hard narcotics.

As to the marijuana, seeds, stems, scale, and baggies, it is clear that this evidence related solely to marijuana and as such was redundant. The admission of it was not prejudicial to O’Reilly. His defense was based upon his own use of marijuana, admitting on direct examination that he had been convicted of possessing one pound of marijuana. But more importantly, on cross-examination, prior to the introduction of the questioned evidence, O’Reilly admitted that he procured and distributed marijuana for his friends, although he denied selling marijuana as a business venture.

For the reasons hereinbefore expressed, the judgment of conviction is affirmed.

LAY, Circuit Judge

(dissenting):

I respectfully dissent. I do so for two distinct reasons.

The defendant was charged with the sale of cocaine in violation of 21 U.S.C. § 841(a)(1). These alleged sales occurred on January 24 and January 28 of 1972. Approximately three months later the agents upon seizure of defendant’s vehicle pursuant to 21 U.S.C. § 881(a) (4)-(b) (1) inventoried the seized vehicle and found (1) a one-pound, ten-ounce brick of marijuana; (2) fourteen plastic “baggies”; (3) a package of marijuana seeds; (4) a package of marijuana “stems”; (5) a sack containing six syringes and five hypodermic needles; and (6) a small scale. The trial court found this evidence was admissible in defendant’s trial on the ground that it was relevant to show intent at the time of the alleged sales. I think this ruling prejudicial. This court has held many times in the past that to show intent, the past criminal conduct must be similar in type to that for which the accused is indicted. See, e. g., Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); Williams v. United States, 272 F.2d 40 (8th Cir. 1960). It is improper to admit evidence of a crime unrelated in any particular to the one with which defendant was charged. Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943); United States v. Christian, 427 F.2d 1299 (8th Cir.), cert, denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148 (1970); United States v. Bucur, 194 F. 2d 297 (7th Cir. 1952). “If there is a genuine issue in the case as to . intent . . . relevant evidence of other crimes is generally admissible. But there must appear to be some real connection between the earlier conviction and the alleged crime beyond the allegation that both acts sprang from a vicious disposition.” Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir. 1966) (citations omitted); see also Hurwitz v. United States, 229 F. 449, 453 (8th Cir.), cert, denied, 266 U.S. 613, 45 S.Ct. 95, 69 L.Ed. 468 (1924). The policy behind this requirement was set forth in Weiss v. United States, 122 F.2d 675, 683 (5th Cir.), cert, denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).

“The argument as to admissibility is purely from the point of view of the doctrine of chances. Wigmore says that the mind intuitively applies this process of reasoning, namely, ‘that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element to be the true explanation of them.’ ”

Here there was no similar act or offense shown. Assuming the evidence of defendant’s possession of marijuana was harmless, which to me in light of all attendant circumstances is tenuous, the evidence of defendant’s possession of the six syringes and five hypodermic needles was clearly prejudicial. What this has to do with the sale or distribution of cocaine three months before is vague and uncertain. The use of cocaine, unlike heroin, does not necessarily depend on injection apparatus such as needles and syringes, and even if it did, there is no showing that. defendant’s possession three months later is in any way related to any similar sale or transaction to the crime charged. The possession of the items does not show that defendant is a dealer in hard narcotics. This evidence did nothing more than to fasten the jury’s attention upon prejudicial matters, which allowed them to feel that the defendant, even if not guilty of the specific crime the government had charged him with, was a threat to society and should be punished.

A defendant charged with a criminal offense should be tried only on the facts relevant to the crime. When evidence of other acts or offenses is to be admitted for the collateral effect of substantiating “criminal intent”- — -the government should carry an exacting burden of showing close similarity in both time and circumstance to the offense charged in order to safeguard against the obvious prejudicial effect. This did not happen here. Cf. White v. United States, 294 F.2d 952 (9th Cir. 1961); Paris v. United States, 260 F. 529 (8th Cir. 1919).

However, assuming the evidence can in some way be rationalized as related to the offense charged, I would additionally rule that the evidence should have been excluded as illegally seized. The search is allegedly justified because of the seizure of the automobile pursuant to 21 U.S.C. § 881 and the reasoning of the Supreme Court in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The pertinent parts of Section 881 read as follows:

“(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate, the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) ....
“(b) Any property subject to forfeiture to the United States under this title may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when—
(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(4) the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of this title.”

The statutory authority under which the car is seized does not in itself make the warrantless search of the car reasonable. The test of the search is still one of reasonableness under the Fourth Amendment. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788 (1967); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The search of the car, some three months after the alleged offense in question, was not in any way “closely related” to the reason the defendant was arrested. There is no showing that there was any connection in point of time and circumstance between the offense and the search. Admittedly the officers did not have probable cause to search the vehicle. Under these circumstances, notwithstanding the consequences flowing from civil forfeiture and holdings which might validate belated seizures, there still remains the question whether a belated search is reasonable under the Fourth Amendment.

Under Cooper, supra, the Court held it was reasonable for officers who have lawfully seized an automobile to inventory it — thus validating the search. The difficulty with the present case is in resolving whether the automobile was lawfully seized. The statute requires that seizure of property may be only “upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court having jurisdiction over the property.” (Emphasis ours). No process was obtained here. The majority relies on the government’s claim that process is not necessary in the present case because the property to be seized fell under two of the exceptions listed in 21 U.S.C. § 881(b)(1) and (4): first, that the seizure was incident to an arrest and second, that the Attorney General had probable cause to believe that the property had been used or was intended to be used in violation of the subchapter.

The exceptions under subsection 4 dealing with “probable cause” would be self-defeating if they meant that process to seize property is not required in every case where the property has been used in violation of the Act. If the process requirement has any meaning it must be that process is necessary unless there exists probable cause that Section 881(a) is being contemporaneously violated and the exigencies of the surrounding circumstances make the requirement of obtaining process to seize the vehicle unreasonable and unnecessary. There is no justification that probable cause under subsection (a) should exclude timeliness as a prerequisite to seizure and search as is otherwise read into the contemporaneous requirement governing probable cause to obtain a search warrant. As stated in House v. United States, 134 U.S.App.D.C. 10, 411 F.2d 725, 728 (1969), cert, denied, 339 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 574 (1970), there is “a necessity for search reasonably referable to a contemporaneous violation of law.” In our ease the police may have had cause to believe that the vehicle had previously been used to transport narcotics, some three months before. However, the facts surrounding the defendant’s belated arrest and the seizure of the automobile did not present any exigency or necessity such that the police could not have obtained lawful process to seize the vehicle. Without such a foundational basis to apply the exceptions in § 881(a)(1) and (4) the statutory requirement of process is otherwise rendered meaningless.

Similarly, I believe that the seizure of the car “incident to the arrest” was likewise illegal for failure to obtain lawful process for seizure of property as required by the statute. The arrest and seizure was not made contemporaneous to the offense in question. The obvious intent behind the statutory exception allowing warrantless seizure incident to arrest is where a felon is apprehended contemporaneous to the crime. When such a timely arrest occurs the requirement of process to seize the vehicle is not then needed since the police are confronted with an immediate justifiable and reasonable basis for impounding the car and inventoring its content. Under such circumstances the seizure and search are closely related in time and circumstance to the commission of the offense. Here the arrest was three months after the offense. Admittedly, the subsequent search had little or nothing to do with the offense under investigation.

I would reverse the judgment of conviction and grant a new trial.

      . Similarly, the requirement of timeliness for execution of a search warrant has been codified in the Federal Rules of Criminal Procedure. Rule 41(c) and (d) read in pertinent part as follows :
      “(e) Issuance and Contents — [A warrant] shall command the officer to search forthwith the person or place named for the property specified.
      “(d) Execution and Return with Inventory. —The warrant may be executed and returned only within 10 days after its date.” See Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).


author: PER CURIAM:

text:
    UNITED STATES of America ex rel. Robert RICE, Relator, v. Leon J. VINCENT, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent.
    Docket No. 73-2195-6.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 14, 1973.
    Decided Sept. 5, 1973.

      Robert A. Goldschlag, Asst. Dist. Atty. for New York County, New York City (Frank S. Hogan, Dist. Atty. for New York County, New York City, on the brief), for respondent.
    Lewis M. Steel, New York City, for relator.
    Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.
   PER CURIAM:

The District Attorney for New York County on behalf of respondent has moved for a stay of an order entered August 3, 1973 in the Southern District of New York, Harold R. Tyler, Jr., District Judge, releasing relator, a state prisoner, on $10,000 bail pending respondent’s appeal to our Court from an order entered by Judge Tyler on July 17, 1973, 361 F.Supp. 843, granting relator’s petition for a writ of habeas corpus unless relator is retried by the State of New York within 60 days.

Following reversal by the New York Court of Appeals, People v. Baker, 23 N.Y.2d 307, 244 N.E.2d 232, 296 N.Y.S.2d 745 (1968), of an earlier conviction of relator of murder in the first degree, attempted murder in the first degree and attempted robbery in the first degree, relator was retried and convicted of the same offenses on April 9, 1970 in the Supreme Court, New York County. He was sentenced to life imprisonment. The latter conviction was unanimously affirmed by the Appellate Division on May 23, 1972. People v. Rice, 39 A.D.2d 840, 332 N.Y.S.2d 1010 (1st Dept. 1972). Relator’s appeal to the New York Court of Appeals from his second conviction is now pending.

Judge Tyler ordered relator released on bail pending respondent’s appeal to this Court on the ground that relator’s “backers and friends” will assert sufficient influence or control over him to prevent him from fleeing. We disagree. He was living with his mother and grandmother at the time of the two murders with which he is charged. He faces a life sentence if his 1970 conviction is affirmed by the New York Court of Appeals. We agree with respondent that relator should not be released on bail pending respondent’s appeal to this Court from the district court’s order granting relator’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1970). In other § 2254 cases where the district court has granted the writ, this Court has carefully refrained from granting bail, e. g., United States ex rel. Miller and Quinones v. LaVallee (Docket No. MR 4212, decided September 21, 1970); United States ex rel. Vincent Cerullo v. Follette (Docket No. 33381, decided March 3, 1969); United States ex rel. Joseph v. LaVallee (Docket No. 32950, decided December 17, 1968).

Accordingly, we grant respondent’s motion to stay the district court’s order of August 3, 1973 releasing relator on bail. Our stay will remain in effect until the decision of our Court on respondent’s appeal from the district court’s order of July 17, 1973. We also order that respondent’s appeal in this Court be expedited as follows: respondent’s brief and appendix shall be filed on or before September 20, 1973; relator’s brief and appendix shall be filed on or before October 10, 1973; and the appeal shall be heard during the week of October 15, 1973.

Motion for stay granted; appeal expedited.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Henry LEWIS, Defendant-Appellant.
    No. 73-2336
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 19, 1973.

      James D. Sullivan, court-appointed, Mobile, Ala., for defendant-appellant.
    Charles White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

In this appeal from his conviction on two counts of distribution and possession with intent to distribute Seconal and Tuinal, Schedule III controlled substances, in violation of 21 U.S.C.A. § 841(a)(1), Lewis raises two issues: First, that the District Court erred in refusing to require the prosecution’s informer-witness to identify his regular employer; and second, that the prosecution introduced an invalid prior felony conviction to impeach Lewis’ testimony. The first complaint lacks merit. The second cannot be adjudged without the hearing which we now require to determine whether Lewis was represented by, or validly waived, counsel at the prior conviction.

During cross-examination of Raymond Earl Chapman, an undercover agent and informer for the Bureau of Narcotics and Dangerous Drugs, Lewis’ counsel asked whom he normally worked for. Chapman was reluctant to answer, and the District Court did not require him to do so. However, full information about Chapman’s identity, background, residence and type of work was elicited during direct and cross-examination. Lewis had full opportunity to identify and place Chapman in his proper setting. He, therefore, was not denied the right to confrontation. Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L. Ed. 624 (1931); Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); United States v. Alston, 460 F. 2d 48 (5th Cir., 1972).

Lewis took the stand in his own defense and denied selling the “red birds” and “Christmas trees” to the government agents. On his cross-examination, the District Court admitted, over objection, evidence of a 1961 federal felony conviction for mail theft. The record of commitment and judgment indicated that Lewis had “. . . elected to proceed without counsel and entered a guilty plea.” On appeal, Lewis asserts that, as he neither waived nor had counsel at his plea of guilty in 1961, it was invalid and unavailable to impeach his character in the present case.

In Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), the Supreme Court precluded the use for impeachment purposes of a conviction which was constitutionally invalid because the accused was denied the right to counsel. The disposition of this appeal turns on the question of whether Lewis was denied counsel at his earlier conviction. The District Court here correctly discerned the Loper rule but erred in accepting the statement in the commitment and judgment document, “he elected to proceed without counsel,” as a conclusive indication that Lewis had known of his right to counsel; had known of his right, if indigent, to appointed counsel; and had knowingly, voluntarily and intelligently waived these rights.

Faced with the challenge to the government’s use of an assertedly unconstitutional conviction for the purpose of impeachment, the Court properly put on the government the burden of defending the prior conviction. Craig v. Beto, 458 F.2d 1131 (5th Cir., 1972); Gutierrez v. Estelle, 474 F.2d 899 (5th Cir., 1973). But a minute entry or unsubstantiated statement in an official document, such as the government utilized here, does not provide a sufficient basis for the trial judge, or for us, to conclude that the appellant voluntarily and knowingly waived his right to counsel. Dulin v. Henderson, 448 F.2d 1238 (5th Cir., 1971); Loper v. Beto, supra; Molignaro v. Dutton, 373 F.2d 729 (5th Cir., 1967).

This issue has arisen frequently in the contest of collateral attacks on judgments. See Craig v. Beto, supra; Gutierrez v. Estelle, supra; Loper v. Beto, supra. In those cases, the natural solution was remand for an evidentiary hearing. Although this case is a direct criminal appeal, the efficient course here as well is remanded to the District Court for an evidentiary hearing on whether Lewis was represented or had validly waived his right to counsel at his 1961 conviction. See Mitchell v. United States, 482 F.2d 289 (5th Cir., 1973).

As in United States v. Impson, 482 F. 2d 197 (5th Cir., 1973), this case presents an appropriate situation for a Jackson v. Denno type of posttrial hearing. In Impson, the issue was probable cause for a search which led to incriminating evidence and contraband. We pointed out that the lack of a determination that probable cause existed did

. not go to the validity of the conviction. Whether there is probable cause for the search is not a matter with which the jury is concerned or which could in any way influence its decision. The evidence either is, or is not, admissible and that is a determination in the first instance to be made by the trial judge.

482 F.2d at 199.

In Lewis’ situation, the presence or waiver of counsel at his previous conviction is the same sort of issue as probable cause in Impson’s case. It does not directly undermine the validity of Lewis’ present conviction; the jury is uneon-cerned, and the existence or waiver of counsel is determinative of the admissibility of the prior conviction.

If the prior conviction met the appropriate constitutional standards, the present conviction stands. If it did not, the present conviction must be set aside and a new trial held. Consequently, we vacate the judgment of conviction and remand for consistent proceedings, including a resentence if the evidence of the prior conviction was validly admitted.

Vacated and remanded.

      . Cf. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

      . Lewis’ situation does not fall within the exception to the Loper decision developed in United States v. Nadaline, 471 F.2d 340, 347 (5th Cir., 1973). In Nadaline, we held that the “rule does not apply if the impeachment is justified by specifically false testimony given while on the witness stand.” Here, the prosecutor did not introduce Lewis’ prior conviction to refute any specific testimony but simply to impeach Lewis’ character and veracity in general.

      . 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).


text:
    James Goff HAZELTINE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2019
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    Oct. 16, 1973.
    Rehearing and Rehearing En Banc Denied Jan. 16, 1974.

      James Goff Hazeltine, pro se.
    William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., W. E. Smith, Asst. U. S. Atty., Fort Worth, Tex., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Hazeltine pled guilty to charges of various violations of 18 U.S. C. § 2312. On September 19, 1968, Ha-zeltine was sentenced by the district court with his attorney present.

Hazeltine contends before this court that his constitutional rights were violated at sentencing because the trial judge improperly considered certain prior convictions, those convictions being invalid under Gideon v. Wainwright, 373 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (1963).

This court has carefully considered the record of the proceedings below and finds Hazeltine’s contentions to be almost identical to those considered by this court in the recent opinion of William A. Mitchell v. United States of America, 5 Cir., 482 F.2d 289, 1973. In Mitchell, this court remanded the case, saying:

The district court should on remand determine the validity or invalidity of each of the three challenged prior convictions in accordance with the principles stated in this opinion, and if it determines one or more of them to be invalid, it should resentence appellant without considering the invalid conviction or convictions.
We do not suggest any limitation on the exercise of the district court’s discretion as to the duration of a new sentence, if resentencing should prove necessary, or any limitation on the matters the district court may consider in arriving at a new sentence, except that prior convictions invalid under Gideon v. Wainwright may not be considered. Tucker requires this exclusion. The traditional breadth of the district court’s discretion to consider other matters and impose a sentence within statutory limits remains unchanged. See 2 C. Wright & A. Miller, Federal Practice and Procedure, § 526 (1969).

This court then, following its opinion in Mitchell, vacates the judgment of the district court and remands this case for proceedings not inconsistent with this opinion.

Remanded.

      . The principles for determining the validity or invalidity of challenged prior convictions are set out in this court’s opinion in Mitchell and should be adhered to in this case.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harland L. RADUE, Defendant-Appellant.
    No. 73-2182
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 5, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 19, 1973.

      Gary P. Smith, Birmingham, Ala., (Court-appointed), for defendant-appellant.
    Wayman G. Sherrer, U. S. Atty., Melton L. Alexander, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

The United States filed an information charging appellant Radue in count one with willfully failing to make an income tax return and in count two with willfully failing to supply required information on IRS form 1040, both in violation of 26 U.S.C. § 7203 (1970). At the arraignment, Radue waived counsel and entered a plea of not guilty. The trial resulted in a jury verdict of guilty as to both counts, and accordingly the judge sentenced Radue to concurrent terms of one year on each of the two counts. We affirm.

The contentions raised in this pro se appeal are expressed in a somewhat disjointed and imprecise manner. Nevertheless, after an exacting scrutiny of the briefs filed, we have endeavored to identify these contentions and characterize them as follows. First, that because the government alleged income in the criminal information in the amount of $13,237 and only proved that Radue had an income of $12,793.14, there was a fatal variance between the pleading and proof. Second, that the two counts pleaded in the information were duplicitous. Third, that the judgment and conviction must fail because the jury was unconstitutionally impanelled. Fourth, that the criminal information itself was unconstitutional and void, because it was unverified. Fifth, the criminal prosecution itself was illegal because it was not preceded by some form of administrative action. And finally, the trial court committed numerous errors in its instructions to the jury.

Radue’s most substantial contention is the second, namely that the two counts contained in the information were duplicitous. Because Radue filed a blank form 1040 as a protest, the government was faced with a dilemma. Since a “blank” 1040 form does not constitute a return, see United States v. Douglass, 476 F.2d 260 (5th Cir. 1973), the government could elect to prosecute for failure to file. Conversely, since a blank form obviously omits certain information, the government could elect to prosecute for failure to supply information. The government resolved the dilemma by including both counts in the information. In view of the sentence imposed by the trial court, we reject Radue’s contention under the concurrent sentence doctrine, see Harabayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774, 1778 (1943); United States v. Cawley and Wiggs, 481 F.2d 702, 711 (5th Cir. 1973); United States v. Payne, 467 F.2d 828, 831 (5th Cir. 1972).

The other contentions raised on appeal lack merit. Accordingly, we affirm the judgment of the district court.

Affirmed. The defendants assign error to the admission of this evidence.

      . § 7203 Willful failure to file return, supply information or pay tax

      Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015), keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.
      As amended June 28, 1968, Pub.L. 90-364, Title I, § 103(e) (5), 82 Stat. 264.

      . The trial court did appoint counsel to assist in the preparation of Radue’s defense. Despite Radue’s continued rejection of assistance, counsel persisted in attempting to oversee the conduct of the trial and in offering assistance on appeal. We commend counsel for his perseverence in this matter. After continued difficulty with Radue, including his refusal to permit counsel to file a brief on this appeal, court appointed counsel has filed a motion seeking to be relieved as counsel. We have now granted that motion.


text:
    UNITED STATES of America, Appellee, v. Charles HOGAN, Appellant. UNITED STATES of America, Appellee, v. Michael Devonzal WILLIAMS, Appellant.
    Nos. 73-1350, 73-1503.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 1, 1973.
    Decided Oct. 16, 1973.

      James B. McIntyre, Charleston, W. Va. ■ (McIntyre & Swisher, Charleston, W. Va., on brief), for Charles Hogan.
    John A. Field, III, U. S. Atty., S.D. W.Va., for the United States in No. 73-1350.
    Robert M. Harvey, Charleston, W. Va., for Michael Devonzal Williams.
    Ray L. Hampton, II, Asst. U. S. Atty. (John A. Field, III, U. S. Atty., S.D. W.Va., on brief), for the United States in No. 73-1503.
    Before BUTZNER, RUSSELL, and WIDENER, Circuit Judges.
   PER CURIAM:

In each of these cases, charging distribution of heroin in violation of 21 U. S.C. § 841(a)(1) (1970), the government offered proof that the defendant had previously trafficked in the drug. This evidence included not only the details of the earlier transactions, but also expert testimony that the heroin had been identified by laboratory analysis. The heroin seized on previous occasions was exhibited, and witnesses testified that its appearance and packaging resembled the drug involved in the transactions for which the defendants were on trial.

In United States v. Samuel, 431 F.2d 610, 612 (4th Cir. 1970), we held that the trial judge did not abuse his discretion in permitting the introduction of evidence of prior drug sales closely related in time and location to prove the motive of the accused and to show that his act was not inadvertent, accidental, unintentional, or without guilty knowledge. While there are factual differences, the principles expressed in Samuel govern these cases, and we find no error in the introduction of the evidence about which each defendant complains.

In each case, before the jury indicated any deadlock, the district judge gave a version of the Allen charge that had been approved in Orton v. United States, 221 F.2d 632 (4th Cir. 1955). Though we find no reversible error, our affirmance does not indicate a preference for that charge. Since our decision in Orton, both the American Bar Association and the Committee on the Operation of the Jury System have reexamined the Allen charge and recommended modifications designed to assure its fairness. In United States v. Sawyers, 423 F.2d 1335, 1342 (4th Cir. 1970) , and in United States v. Davis, 481 F.2d 425, 428 (4th Cir. 1973), we suggested use of the modified version of the charge, which is set forth in the margin of Sawyers, 423 F.2d at 1342 n. 7. We again call this recommendation to the attention of the trial judges in this circuit. With respect to the defendants’ complaints about the timing of the charge, we find no error. United States v. Martinez, 446 F.2d 118 (2d Cir. 1971) .

Charles Hogan has assigned a number of additional errors. Having considered them, we find no cause for reversal.

Accordingly, the judgments are affirmed.


text:
    Walter THOMAS, Jr., Petitioner-Appellant, v. W. J. ESTELLE, Respondent-Appellee.
    No. 72-3822
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1973.
    Walter Thomas, Jr., pro se.
    John L. Hill, Atty. Gen., Thomas M. Pollan, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Rule 16, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 P.2d 409.

   PER CURIAM:

This Texas state prisoner habeas applicant was a co-defendant with Cariston Thornton in a conviction on charges of robbery by assault. We affirmed the denial of federal habeas relief to Thornton. See Thornton v. Beto, 5 Cir., 1972, 470 F.2d 657. We now affirm the denial of federal relief to Thomas.

Five assignments of error are properly before this court: (1) that evidence was illegally obtained, (2) that Thomas was subjected to an illegal lineup, (3) that the prosecution made prejudicial remarks before the jury, (4) that a motion for severance should have been granted to allow appointed counsel more time to prepare for trial, and (5) that evidence of prior convictions was improperly presented to the jury.

We found assignments numbered (1), (2), and (3) to be without merit in Thornton, supra. We again find these assignments to be without merit.

There was no error in the denial of a severance or continuance based on the late reentry of Thomas’ appointed counsel into the ease. There had been a good deal of backing and filling with respect to whether Thomas wished representation by the appointed counsel or by a retained attorney. There was no showing whatever of prejudice.

Assignment of error numbered (5) is likewise without merit.

Appellant seeks to raise two additional grounds for habeas relief in this court: (1) that he was prejudiced by being tried while clad in jail clothes, and (2) that his counsel was ineffective. We will not consider these contentions. If Thomas has not already done so, he must exhaust his state remedies by asserting these new grounds in state court. He may thereupon assert them' in the federal district court.

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    AMERICAN FAMILY LIFE ASSURANCE CO. OF COLUMBUS, Plaintiff-Appellant, v. BLUE CROSS OF FLORIDA, INC., and Blue Shield of Florida, Inc., Defendants-Appellees.
    No. 72-3447.
    United States Court of Appeals, Fifth Circuit.
    Nov. 5, 1973.
    Malcolm A. Hoffmann, Bernard Zucker, Robert W. Bigger, Jr., Edward A. Woolley, New York City, Carey, Dwyer, Austin, Cole & Selwood, P. A., Miami, Fla., David Bender, New York City, for plaintiff-appellant.
    James J. Kenny, Miami, Fla., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge:

The American Family Life Assurance Company of Columbus, Georgia, sued Blue Cross and Blue Shield of Florida. The complaint charged that enforcement of a “coordination of benefits” provision contained in defendants’ plans for hospital and surgical benefits violated Section 1 of the Sherman Act, 15 U.S.C. § 1. Specifically, it was urged that the practice constituted boycott, coercion, intimidation, and other prohibited restraints of trade. A plan covering the municipal employees of Miami Beach was especially challenged.

After a Bench trial on the merits, the District Court dismissed the complaint, American Family Life Assurance Company of Columbus v. Blue Cross of Florida, Inc.,. 346 F.Supp. 267 (S.D., Fla., 1972). We affirm.

It is to be noted that prior to the beginning of this litigation plaintiff had sought temporary and permanent injunc-tive relief against eight large commercial health insurance carriers in the Northern District of Georgia. That case was reviewed by this Court as to the denial of preliminary injunctive relief and the denial was affirmed, American Family Life v. Aetna Life Insurance Company, 5 Cir., 1971, 446 F.2d 1178. That decision, of course, did not go to the merits.

The primary business of American Family Life is the sale of cancer plan insurance policies which provide for payment solely in the event of certain expenses incurred in connection with a confirmed diagnosis of cancer. Such payments are made regardless of any benefits paid on the same risk by other insurance companies.

Blue Cross, a non-profit corporation, operates a hospital service plan.

Blue Shield, likewise a non-profit corporation, operates a medical or surgical plan.

Although there is some cavil to the contrary, both of these defendants are clearly subject to the supervision and regulation of the Florida Department of Insurance.

The coordination of benefits, sometimes referred to as “COB”, is at the heart of the controversy. COB simply means that if the same hospital, surgical or medical risk is covered by more than one insurance carrier then the company insuring with a COB provision in its policies may reduce the amount of its payments by that payable from some other coverage. In other words, the claimant may not recover twice for the same expenses. If more than one policy of insurance has a COB provision then the primary carrier rule is applied.

The District Court described COB as follows:

“Adoption of a model COB provision was recommended in December 1962 by four trade associations of private health insurance companies, namely, the Health Insurance Association of America, the Life Insurance Association of America, the American Life Convention and the Health Insurance Council. COB has as its primary characteristic a structure of priority of claim payments which enables broad risk accident and health insurance carriers to reduce the amount of premiums paid out by limiting the claimants to a single payment of benefits for a single medical risk.
“If two or more policies would result in payment for more than 100% of the expenses, then coordination of benefits is applied. If, therefore, as is not infrequently the case in the event of a serious injury or illness, two or more policies, with or without coordination of benefits, provide together total benefits less than the expenses, coordination is not applied. For example, if as a result of a serious illness, hospital and medical expenses of $10,000 are incurred, and under two group policies a total of $7,500 is available, coordination of benefits would not apply at all. If hospital and medical expenses of $1,000 are incurred and $800 is available under one policy and $800 under another, and if either one or both of the policies have a coordination of benefits clause, then rather than paying $1,600, the total benefits under both policies would be limited to $1,000 by application of the coordination of benefits clause or clauses.
“When both policies have a coordination of benefits clause, then an order of benefits rule — the primary carrier rule — is applied. Under these rules, for example, the husband’s carrier is considered primary and the wife’s carrier secondary so that in the example, the husband’s carrier would pay $800 and the wife’s carrier would pay only $200 to bring the total up to 100%. When only one of the policies has a coordination of benefits clause, then the carrier without a coordination of benefits clause, such as the plaintiff, would always be deemed primary. This is known as the automatic primary rule or the dumping clause.
“The carrier without a coordination of benefits clause pays no more in that event than it has obligated itself to pay by its policy contract and the operation of the automatic primary rule or dumping clause cannot cause such a company to pay more than it would pay whether or not the other company had a coordination of benefits clause.”

With the approval of the Insurance Commissioner of Florida (as the District Court found), the appellees began to write group hospital and group medical or surgical service plans with a coordination of benefits provision. They have continued also to write this coverage without coordination of benefits provisions and a substantial number of subscribers are covered by such group contracts.

The District Court expressly found that the initiation of the COB provisions was done without any intent to harm the plaintiff’s business, but rather was done so that Blue Cross and Blue Shield could remain competitive in the field of broad risk group health and accident insurance; the purpose was to avoid always paying first under the “dumping clause” of the model COB provision which had been adopted on a widespread basis by the private insurance industry in 1963 and 1964. The “dumping clause” is the portion of the Blue Cross-Blue Shield COB plan to which American Family Life objects.

American Family Life contends that its allegations of boycott are supported by what took place in Miami Beach. Since January, 1967, the appellees have provided group health and accident insurance coverage for the employees of the City of Miami Beach. The contract with the city includes a COB provision, so required by the city in its specifications for bids on the coverage.

The District Court thought there was “serious question” as to whether American Family Life sells group insurance as that term is used in the Blue Cross-Blue Shield insurance contract with Miami Beach employees; nevertheless, the ap-pellees applied the provision to the cancer policies of the appellant because they were sold through a franchise group (payroll payment) plan. Obviously, the employees would object to paying two premiums in order to obtain one coverage as to cancer, so 58 of the 119 employees either cancelled or allowed their American Family Life cancer policies to lapse.

The Court proceeded to find, however, that:

“A single-risk policy such as the AFL Cancer Plan covers only one risk of disease in the vast market of policies covering medical risks, and the number of times the Blue Cross-Blue Shield COB provision is applied against plaintiff’s policy is necessarily miniscule as compared with the payments made under the broad-risk policies. This is true since a concurrence of three factors must occur before such an application of COB is made by the defendants. The insured must be covered by the plaintiff’s policy and that of the defendants, and the insured must have purchased his cancer risk policy from the plaintiff through a franchise group (payroll payment) plan.”

American Family Life contended that the application of the Blue Cross-Blue Shield COB to their policies in Miami Beach constituted a boycott and amounted to a restraint of trade within the terms of Section 1 of the Sherman Act.

Blue Cross-Blue Shield took the position that there was no competition between them and American Family Life, hence there could be no violation of Section 1 because there was no restriction or abridgment of competition in the market place.

From the record before us it is evident that Blue Cross-Blue Shield do compete with commercial insurance companies engaged in broad risk hospital and medical insurance.

At the trial, American Family Life’s President testified that his company does not engage in the general health and accident business in Florida, it does not sell cancer policies in Florida in competition with appellees (who write broad risk coverage), and it does not make any effort to write or sell cancer policies in Florida as a substitute for the insurance coverage sold there by the appellees.

The District Court held that American Family Life’s cancer insurance business was not competitive in Florida with the broad group hospital, medical, and surgical coverage written by Blue Cross-Blue Shield; that the consequences of COB as applied to American Family Life was only a side effect of appellees’ moves to remain competitive in their own broad group insurance market. Therefore, said the Court, appellants had shown no entitlement to Sherman Act Section 1 relief, citing Apex Hosiery Company v. Leader, 310 U.S. 469, 60 S.Ct. 982, 84 L.Ed. 1311 (1940)), and Prepmore Apparel, Inc. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 431 F.2d 1004.

The Court recognized that Apex was factually dissimilar but relied on the specific language therein appearing that:

“Labor cases apart, which will presently be discussed, this Court has not departed from the conception of the Sherman Act as affording a remedy, public and private, for the public wrongs which flow from restraints of trade in the common law sense of restriction or suppression of commercial competition. In the cases considered by this Court since the Standard Oil Co. case in 1911 some form of restraint of commercial competition has been the sine qua non to the condemnation of contracts, combinations or conspiracies under the Sherman Act . . ."

American Family Life, the appellant, now seeks reversal on the following grounds:

1.

The District Court erred in holding that there must be competition in order to have a Sherman Act Restraint of Trade;

2.

Even if competition is an indispensable prerequisite, the finding that there was no competition is clearly erroneous ;

3.

The findings that American Family Life was not excluded from the cancer insurance market, that Blue Cross-Blue Shield did not intend to injure American Family Life, and that there was no coercion or intimidation are clearly erroneous; and finally,

4.

Blue Cross-Blue Shield are not exempt from the Anti-Trust Laws by reason of the McCarran-Ferguson Act, 15 U.S.C., §§ 1011-1013.

Blue Cross-Blue Shield respond that the fundamental principle expressed by Apex, and not yet abandoned by the Supreme Court, is that some form of restriction or suppression of competition is the sine qua non of Section 1 of the Sherman Act. They admit that one does not have to be a competitor to bring a Section 1 suit, as, for example, a purchaser is not in competition with a seller but he may be injured by the restriction or suppression of competition between the seller and others and thus may invoke the benefits of the Sherman Act.

The acts, practices, methods, and operations of the respective insurance company litigants are not in dispute. The disagreement centers on the consequences — anti trust or no anti trust. In this setting we raise sua sponte the principle that a judgment which is correct in ultimate effect will not be disturbed on appeal even if the lower court relied on the wrong ground or gave an untenable reason for its decision, Texaco, Inc. v. Holsinger, 10 Cir., 1964, 336 F.2d 230, cert, denied 379 U.S. 970, 85 S.Ct. 669, 13 L.Ed.2d 563; Mindes v. Seaman, 5 Cir., 1971, 453 F.2d 197; McLain v. Lance, 5 Cir., 1945, 146 F.2d 341, cert, denied 325 U.S. 855, 65 S.Ct. 1183, 89 L.Ed. 1979.

We think the correct standard for the determination of the issue now before us was enunciated by the Third Circuit in Travelers Insurance Company v. Blue Cross of Western Pennsylvania, [dated July 10, 1973], 481 F.2d 80:

“The antitrust laws, however, protect competition, not competitors; and stiff competition is encouraged, not condemned.”

This statement was preceded by the observation that:

“In its negotiating with hospitals, Blue Cross has done no more than conduct its business as every national enterprise does, i. e., get the best deal possible * * * Blue Cross passes along the saving thus realized to consumers.”

That is the situation here. American Family Life does not write broad coverage hospital and medical insurance. Blue Cross-Blue Shield do write such coverage. American Family Life sells cancer plan policies. Blue Cross-Blue Shield writes such coverage only as incidental to or as a part of its broad coverage which protects the insured as to many diseases or disabilities. When they include COB in their policies these companies are simply providing that to a certain extent they shall not make the payments received or to be received from some other insurance policy, thus reducing the cost of their broad risk coverage as well as its cost to the insured.

This may be tough competition for American Family Life, which chooses to concentrate on only one dread risk, but the test is whether any restraint of trade thus caused is reasonable, Northern Pacific Railway Company v. United States, 356 U.S. 1, 78 S.Ct. 514, 2 L.Ed. 2d 545 (1958). In our opinion, there is no logical way in the context of this case by which the COB provisions can be pronounced “unreasonable”. We cannot say under § 1 of the Sherman Act that an insurance company insuring against only one risk is entitled to dictate the terms upon which broad risk companies may offer their benefits to those individuals who need protection against many risks.

Stated another way, may the Blue Cross-Blue Shield COB provisions be invalidated under the Sherman Act so that American Family Life may write its cancer policies in the form it desires while at the same time denying the same right to Blue Cross-Blue Shield as to broad coverage? We think not, and we so hold.

While the District Court apparently chose to base its dismissal on “no competition”, we base ours on the view that the record fails to reflect any prohibited competition.

In this context we attribute no controversial significance to what occurred as to the contract with the City of Miami Beach. There the insurer asked for bids on coverage that would include COB provisions. American Family Life did not offer a bid. It does not write the type of insurance which the purchasers desired.

The Judgment of the District Court is

Affirmed.

      . The appellees also argue in extenso that the situation sub judice is governed by the Mc-Carran-Ferguson Act because they are regulated by the Insurance Commission of the State of Florida and are not guilty of a boycott. McCarran-Ferguson provides that insurance business where regulated by state law is excluded from Sherman Act coverage in the absence of agreements or acts of boycott, coercion, or intimidation. The District Court made no findings of fact or conclusions of law on this point. Consequently, we intimate no opinion thereon.