author: MATTHES, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Preston H. WILLIAMS, Appellant. UNITED STATES of America, Appellee v. Frankie Bell DUREN, Appellant.
    Nos. 74—1257, 74-1258.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Oct. 3, 1974.

      R. Thomas Day, Asst. Federal Public Defender, Kansas City, Mo., for appellant, Williams, in case No. 74-1257.
    Joseph P. Teasdale, Kansas City, Mo., for appellant, Duren, in case No. 74-1258.
    Anthony P. Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee in both cases.
    Before MATTHES, Senior Circuit Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

      Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   MATTHES, Senior Circuit Judge.

This consolidated appeal is from the judgment of conviction of each of the appellants, Preston H. Williams and Frankie Bell Duren, on the charge of transporting in interstate commerce a motor vehicle, knowing same to be stolen, in violation of 18 U.S.C. § 2312. The appellants, who are brothers-in-law, raise numerous issues. We affirm.

On August 3, 1973, a yellow 1967 Chevrolet Belair was stolen in Kansas City, Kansas. On the same day, the Kansas license plates on another ear in that city were stolen and eventually were affixed to the stolen car.

At approximately 11:00 a. m. on August 8, 1973, a Missouri Highway patrolman observed a yellow 1967 Chevrolet with Kansas license plates parked alongside a highway near Cabool, in southwest Missouri. At the time, one male was seated on the passenger side of the auto and a second male was closing the hood.

Early in the afternoon of the same day, the appellants were seen by a second highway patrolman, Edward E. Kelsey, near the Amos Bridges residence, about 20 to 30 miles from Cabool, standing by the stolen Chevrolet. At the time Trooper Kelsey did not know the car was stolen, and he did not stop. Terry Bridges, the grandson of the owner of the nearby house, offered to assist the appellants in restarting the vehicle. While Bridges obtained a wrench and gasoline and appellant Williams stood by, appellant Duren attempted to repair the fuel pump on the Chevrolet. At one point Williams, at Duren’s direction, poured gasoline into the carburetor while Duren attempted to start the car.

That afternoon, being unable to repair the vehicle, appellants opened the trunk of the car and removed a suitcase. The Bridges then drove Williams and Duren, along with their suitcase, to the nearby city of West Plains, Missouri, since the appellants ostensibly desired to obtain assistance at the Chevrolet garage there. Instead, however, the appellants went to the local bus station to inquire about departures from West Plains.

Meanwhile, Trooper Kelsey once again drove by the yellow Chevrolet, which now appeared to be abandoned along the highway near the Bridges home. By radio inquiry Kelsey learned that the vehicle had been stolen. After learning from the Bridges that they had driven the two men Kelsey had seen earlier by the car to West Plains, Kelsey drove there to search for the men. Around 5:30 p. m. he found Duren and Williams seated by a bridge in West Plains and placed them under arrest. The suitcase was nearby.

The precise circumstances surrounding the arrest and detention of the appellants in West Plains was the subject of testimony at a suppression hearing before trial. That testimony and the findings of the district judge indicate that Williams and Duren were advised of their constitutional rights immediately after arrest. Upon being informed that they were under arrest for suspicion of auto theft, they denied any involvement with any car and they denied that the suitcase was theirs. They were then taken to the local sheriff’s office in the county courthouse by Kelsey and a West Plains policeman. At the courthouse Duren and Williams were again given Miranda warnings, and Williams asked to speak with an attorney. The local prosecutor was called, and the prosecutor arranged for Williams to speak with a local attorney by telephone. Meanwhile the police attempted to obtain the fingerprints of the two men, since they had refused to give their names. Williams initially struggled with the officers in an attempt to resist being fingerprinted, but eventually cooperated. Each appellant gave a false name when Trooper Kelsey sought to fill out the personal data information accompanying each fingerprint card.

The following day Duren and Williams were interviewed separately and privately by an agent of the Federal Bureau of Investigation after each was again advised of his constitutional rights. Both waived the right to have an attorney present, and both spoke freely to the agent. Both denied any involvement with the car theft and once again gave fictitious names. The statements by Williams to the agent were admitted at trial.

The government proved that the fingerprints of Duren had been found on the hood, rearview mirror, and right-hand door of the stolen Chevrolet, while Williams’ fingerprints had been discovered on the hood of the car. Neither Williams nor Duren testified at trial, and the defense presented no other witnesses.

The appellants’ primary attack is that the evidence adduced at trial was insufficient to support the jury verdicts. They concede that if it is shown that a defendant is discovered in possession in one state of a vehicle recently stolen in another state and the defendant is unable to satisfactorily explain his possession, a jury may reasonably infer that the defendant not only knew that the vehicle was stolen but also that the defendant had transported the vehicle, or caused it to be transported, in interstate commerce. See, e. g., United States v. Thundershield, 478 F.2d 241 (8th Cir. 1973); United States v. Rhodes, 433 F.2d 1307 (8th Cir. 1970). See generally Annot., 15 A.L.R.Fed. 856. But they insist that there is insufficient evidence that either was in sole or joint possession of the stolen car, and that the jury therefore could not properly employ the abovementioned inferences to establish guilt.

“Possession” as applied to Dyer Act cases has been defined as “to have management, care, dominion, authority and control, singly or jointly.” United States v. Rhodes, supra, 433 F.2d at 1308, citing Lawrence v. United States, 400 F.2d 624, 627 (9th Cir. 1968). Obviously, the ability of the government to prove possession by the defendant and gain the benefit of the possessory inferences is a key factor in determining the outcome of a trial.

But this element of the offense, possession, can be proven by circumstantial evidence. United States v. Johnson, 412 F.2d 787 (6th Cir.), cert. denied, 396 U.S. 993, 90 S.Ct. 959, 25 L.Ed.2d 124 (1969); United States v. Costanzo, 395 F.2d 441, 446 (4th Cir.), cert. denied, 393 U.S. 883, 89 S.Ct. 189, 21 L.Ed.2d 157 (1968). Moreover, the jury must be free to intelligently review and evaluate all the evidence, drawing the logical consequence and inferences therefrom, in concluding whether possession has been established. In discussing the possessory inferences in Dyer Act cases and the tension these inferences create between the defendant’s right to acquittal absent proof of guilt beyond a reasonable doubt and the government’s right to an unfettered consideration of the evidence by the jury, the Fifth Circuit stated:

The inference allowed by unexplained possession is a powerful one. It is a substitute for direct proof of guilty knowledge and courts, both trial and appellate, should proceed with extreme care in determining whether the evidence sufficiently establishes a basis for the inference. Cautious vigilance must be maintained against the employment of a naked legal principle in a factual setting which provides no reasonable basis for the principle’s application. On the other hand, the jury must not be unduly inhibited in its search for truth; it must be permitted to draw fair and reasonable inferences from creditable evidence. [Emphasis in original.]

Hale v. United States, 410 F.2d 147, 150 (5th Cir.), cert. denied, 396 U.S. 902, 90 S.Ct. 216, 24 L.Ed.2d 179 (1969).

In resolving the possession issue, we must review the evidence in the light most favorable to the jury verdict. Moody v. United States, 477 F.2d 548 (8th Cir. 1973); United States v. Rhodes, supra. Employing such a standard of review, we find that the evidence showing Duren’s possession of the stolen Chevrolet overwhelmingly supports the verdict of the jury in his ease.

Appellant Williams, on the other hand, relies on this court’s opinion in Baker v. United States, 395 F.2d 368 (8th Cir. 1968), in which the Dyer Act conviction of an 18 year old youth was overturned because the only indication of possession of the stolen car by the youth was evidence that he had entered the car in Little Rock, immediately learned from the occupants that it was stolen, and then rode in the stolen vehicle to St. Louis. We held that it was improper for the jury to infer possession from such a scanty record, and then infer the presence of the other necessary elements of the crime based upon this questionable initial inference of possession.

The courts of appeals are in apparent agreement that mere presence in a stolen automobile, even with knowledge that it is stolen, cannot in itself serve as sufficient proof of possession of the vehicle. See, e. g., Lawrence v. United States, supra; Julian v. United States, 391 F.2d 279 (9th Cir. 1968); Baker v. United States, supra; Wheeler v. United States, 382 F.2d 998 (10th Cir. 1967). But cf. Baker v. United States, supra, 395 F.2d at 372-373 (Blackmun, J., dissenting). Thus one court, in explaining the reversal in Baker v. United States described Baker as “a case . in which the jury was allowed to infer possession from the defendant’s mere presence in the car and from that possession infer interstate transportation of the stolen car.” United States v. Stanley, 433 F.2d 637, 639 (5th Cir. 1970).

Here, the government has shown more than mere presence in the car on the part of Williams. Compare Julian v. United States, supra, with United States v. Rhodes, supra. Williams assisted Duren in attempting to restart the car. His fingerprints were found on the hood of the auto. He, like Duren, attempted to conceal his identity and association with the stolen car, and he resisted the fingerprinting process. See United States v. Robertson, 417 F.2d 873 (5th Cir. 1969). Thus, the jury could reasonably and properly conclude from the evidence that Williams was in joint possession of the stolen vehicle with his brother-in-law, Frankie Duren.

In any event, we conclude that the actions of Williams viewed as a whole could reasonably be considered by the jury as showing beyond a reasonable doubt that Williams aided or abetted a violation of the Dyer Act, and should be held culpable as a principal. 18 U.S.C. § 2. See Smith v. United States, 403 F.2d 689 (5th Cir. 1968). See also United States v. Callahan, 439 F.2d 852 (2d Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971). See generally Perkins on Criminal Law 657-663 (1969). Williams’ false exculpatory statements, his concealment of identity, and his participation in the misrepresentation to Terry Bridges that he and Duren were from St. Louis, when they actually were from Kansas City, are all significant and probative evidence that Williams knew that the car was stolen and, with such knowledge, assisted in the transportation of the vehicle.

Accordingly, we find that the evidence was sufficient to support the conviction of each appellant.

Appellants also contend that they were substantially prejudiced and denied a fair trial by the following comment of the attorney for the government during his closing argument:

Now, let me leave you with this final thought. Think of the scales of justice, think of the two scales of justice, and think about what the evidence has been from the witness stand in this case, and think on one side of the scales, the prosecution and how that scale goes down for guilt and think about the evidence on the other scale from the witness stand and what evidence has there been from the witness stand, you look at that scale and that scale tells you that beyond a reasonable doubt, ladies and gentlemen, these two defendants are guilty as charged in this case.

The appellants assert that this reference to “the two scales of justice” was a subtle comment on the appellants’ failure to testify at trial and hence they were denied a fair trial. See, e. g., Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). Since no timely objection was made to the prosecutor’s argument either during or after the completion of closing arguments, reversal is warranted only if plain error can be shown. United States v. Lawson, 483 F.2d 535 (8th Cir. 1973), cert. denied, 414 U.S. 1133, 94 S.Ct. 874, 38 L.Ed.2d 757 (1974).

The test for determining whether a statement before the jury by the judge or prosecutor was an improper comment upon a defendant’s failure to testify has been defined as

whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.

See, e. g., United States v. Biondo, 483 F.2d 635, 644 (8th Cir. 1973), cert. denied, 415 U.S. 947, 94 S.Ct. 1468, 39 L.Ed.2d 563 (1974); United States v. Mahanna, 461 F.2d 1110, 1114-1115 (8th Cir. 1972); Davis v. United States, 357 F.2d 438, 441 (5th Cir.), cert. denied, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210 (1966).

We believe that the remark attacked by the appellants does not meet this test. Consideration thereof within the context of the whole record does not evince a manifest intent by the prosecutor to draw the attention of the jury to the failure of the appellants to testify, nor is it likely that the jury would even consider it an oblique reference to the appellants’ silence. Moreover, counsel for the appellants stressed in closing argument the right of a defendant not to testify and the trial court instructed the jury that no presumption or inference of guilt could be drawn from the failure of Duren and Williams to take the stand.

The appellants also urge that they were denied fifth and sixth amendment rights during their detention in West Plains. They consequently urge that the trial court erred in allowing testimony at trial concerning the false exculpatory statements made by Williams to law officers while in custody in West Plains.

The assertion that the appellants were denied due process and that their statements in West Plains were coerced was the subject of a motion to suppress and an evidentiary hearing before Judge Collinson prior to trial. At the conclusion of the hearing, Judge Collinson credited the testimony of various law enforcement officials and found that the statements of the appellants were voluntarily made without fear or coercion.

After a careful review of the record of the suppression hearing, we find that the district judge’s findings are supported by substantial evidence and are not clearly erroneous. Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972). Consequently, we decline to disturb the trial court’s suppression ruling.

Appellant Williams also asserts that he was denied his sixth amendment right to counsel at the time he made the exculpatory statements introduced at trial, and that therefore the trial court should have excluded testimony relating to these statements. We note that the district court was not given the opportunity to consider this contention at the suppression hearing, since the issue was first raised by the appellants on this appeal.

After reviewing the transcript of both the suppression hearing and the trial, we find no merit to appellants’ sixth amendment claim. Williams was fully advised of his rights by the state law enforcement officials and was allowed to speak with an attorney when he requested the opportunity to do so. The following day he was again fully advised of his constitutional rights by a federal law enforcement officer, but he willingly volunteered exculpatory statements after waiving his right to request the presence of an attorney. It is apparent from the record that Williams knew that the private questioning on the second day was by a federal officer investigating federal crimes, rather than by the state authorities as on the previous day, and that he knew he could reassert his right to assistance of counsel. Consequently, we find that Williams' waiver of counsel before talking to the FBI agent was knowing and intelligent, and given voluntarily and without compulsion. See United States v. Grady, 423 F.2d 1091 (5th Cir. 1970). See also United States v. Hodge, 487 F.2d 945 (5th Cir. 1973). Cf. United States v. Scogin, 459 F.2d 182 (8th Cir.), cert. denied, 409 U.S. 865, 93 S.Ct. 159, 34 L.Ed.2d 114 (1972).

Appellants’ other claims of error, some of which are raised here for the first time, have been carefully considered and found lacking in merit. Concluding as we do that the appellants received a fair trial, we affirm.

      . The appellants sought to suppress as evidence certain exculpatory statements made by them to law enforcement officials while in custody in West Plains, raising as the sole ground for suppression the assertion that the statements were obtained by eoercion and fear, in violation of the appellants’ fifth amendment rights. The district court found no evidence that appellants’ statements had been coerced and denied suppression.

      . The aiding and abetting issue was properly submitted to the jury, without, objection.


source: Caselaw Access Project

author: LAY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Thomas CLEMONS, Appellant.
    No. 74-1147.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Oct. 3, 1974.

      Jack S. Nordby, St. Paul, Minn., for appellant.
    Daniel Scott, Asst. U. S. Atty., Minneapolis, Minn., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   LAY, Circuit Judge.

Thomas Clemons appeals his conviction on two counts: (1) possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and (2) conspiracy in violation of 21 U.S.C. § 846. On appeal the defendant challenges the denial of his motion to suppress certain evidence, the .admission into evidence of the defendant’s arrest in a California drug investigation, the admission on the conspiracy count of phone conversations to which the defendant was not a party and the sufficiency of the evidence. We uphold the warrantless search and seizure, but find that the admission into evidence of defendant’s arrest in California and related testimony constituted prejudicial error. We reverse and remand for a new trial.

Upon receiving an informant’s tip on April 18, 1973, federal narcotics agents observed the defendant Clemons arrive at the Minneapolis-St. Paul airport from Los Angeles, accompanied by a woman named Jackie Thomas, an alleged courier of drugs. About an hour later, Jackie Thomas called the informant, Cornelius Clark, telling him that they were waiting at the St. Paul Holiday Inn. The informant was thereafter searched by the agents, equipped with a transmitting device and sent to room 315 of the Holiday Inn for a prearranged purchase of some heroin. After the agents heard Clark’s signal transmitted, indicating he had observed heroin, the agents went to the door and identified themselves. Jackie Thomas ran to the bathroom and attempted unsuccessfully to flush the heroin down the toilet. Upon receiving no response and hearing the toilet being flushed, the agents broke into the room. Both Thomas and Clemons were arrested and a grapefruit-sized package of heroin was seized from the bathroom waste basket.

The defendant urges that the warrantless search of the bathroom resulting in discovery of the heroin was unlawful. We must disagree.

The warrantless entry into the hotel room was not illegal. The officers clearly had probable cause to make the arrest. When the officers had adequate reason to believe that permission to enter had been denied, reasonable force to effect entry was permissible. See Stamps v. United States, 436 F.2d 1059, 1060 (9th Cir. 1971); cf. Sabbath v. United States, 391 U.S. 585, 588-589, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). Whether the search took place moments before or after the arresting officer took the defendant into custody is not material here. The search was not necessary to establish probable cause for the arrest. See United States v. Skinner, 412 F.2d 98, 103 (8th Cir. 1969). Nor do we find the search violative of the Chimel rule. The bathroom was immediately adjacent to where Thomas and Clemons were standing. The officers had every right to look inside it to see if other persons might be within. See United States v. Blake, 484 F.2d 50, 56-57 (8th Cir. 1973). The heroin was in plain sight. In fact, the officer observed that “it” was visible from the doorway of the bathroom. In any event we hold the seizure reasonable and lawful.

The Subsequent Arrest

At trial over objection, the government introduced evidence that Clemons was arrested for possession of narcotics in California on June 25, 1973, two months after his Minnesota arrest. The government called a deputy sheriff from California who testified that he had orders in June of 1973 to stop a certain Buick Riviera. Upon locating the car he arrested Clemons, who was the driver, and his three passengers. A warrant was then obtained, and a search of that car turned up 67 prophylactics of heroin (the heroin found in Minnesota was similarly packaged) concealed in the kick panel of the driver’s door, as well as three ounces of cocaine inside the rear armrest. This testimony was supplemented by five photographs of the car, the secret kick panel compartment, and the drugs seized in California. These photographs were received as exhibits and shown to the jury. Cross-examination disclosed that Clemons did not own the car, that he was not named or described in either the sheriff’s stop order or the search warrant, and that only James Earl Ray, a passenger and apparently the person who built the secret compartment, was ever charged with a crime arising from that incident. There was no evidence that Clemons knew that drugs were concealed within the structure of the car. No proof was offered that Ray or the other passengers were in any way connected with the Minnesota heroin sale for which Clemons was on trial.

The district judge attempted to minimize the prejudicial impact of this evi-. dence. Before receiving it, he sent the jury out and heard argument on the question from counsel. Before the witnesses were called, he explained to the jury that Clemons was not being tried for the California incident and that the evidence was to be considered only “as it may relate to the defendant Clemons’ state of mind or intent or knowledge and to show possible absence of mistake or accident.” A similar cautionary instruction was included in the charge to the jury.

The general rule is that evidence of other crimes by the accused, not charged in the indictment and not part of the same transaction or occurrence charged therein, is inadmissible. The defendant is to be convicted, if at all, on the evidence showing him to be guilty of the particular offense charged. To admit evidence of other crimes possibly committed by the defendant prejudices him before the jury. United States v. Crawford, 438 F.2d 441, 446-447 (8th Cir. 1971); Kempe v. United States, 151 F.2d 680, 687 (8th Cir. 1945).

There are, however, some narrow exceptions to that general rule of exclusion. As we have often observed, where there is a genuine issue as to identity, motive, intent, preconceived plan, entrapment, or absence of mistake or accident, evidence of other crimes may be admissible if carefully limited to that issue. See, e. g., United States v. Lewis, 423 F.2d 457, 459 (8th Cir. 1970). Before any such evidence is admitted, however, it must be shown that (1) an issue on which other crime evidence may be received is raised; (2) that the proffered evidence is relevant to that issue; (3) that the evidence is clear and convincing; and (4) that the probative worth outweighs the probable prejudicial impact.

Whether an issue has been raised for purposes of receiving evidence of other crimes depends upon both the elements of the offense charged and the nature of the defense presented. In the instant case, it was incumbent upon the government to show that the appellant possessed heroin knowingly and willfully with intent to distribute. 21 U.S.C. § 841(a)(1). Further, the defense in cross-examination tried to suggest that Clemons’ part was due to inadvertence and mistake. We will assume, therefore, that knowledge and intent, issues on which other crime evidence may be admitted, were properly at issue.

To be used for this purpose, the criminal conduct must involve an offense similar in kind and reasonably close in time to the charge at trial. United States v. Lewis, supra; Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969); Love v. United States, 386 F.2d 260 (8th Cir. 1967); Wakakson v. United States, 367 F.2d 639 (8th Cir. 1966); 2 Wigmore, Evidence 200-201 (1940). Those requirements were satisfied here; Clemons’ California arrest, like that in Minnesota, was for possession of so large a quantity of heroin that intent to deliver could reasonably be inferred. Only two months separated the two events.

It is not enough, however, for the government to meet the tests of materiality and relevancy. Before evidence of other crimes is admissible, the trial judge must decide whether there exists sufficient evidence of other crimes, and further determine that the probative worth of the evidence outweighs the probable prejudicial effect.

We have held that evidence of other crimes cannot be admitted if it is “of vague and uncertain character.” United States v. Spica, 413 F.2d 129, 131 (8th Cir. 1969); Kraft v. United States, 238 F.2d 794, 802 (8th Cir. 1956); Gart v. United States, 294 F. 66 (8th Cir. 1923). It is the rule in this circuit as well that other crime evidence must be “clear and convincing.” See, e. g., United States v. Spica, supra; Kraft v. United States, supra.

Where prior conduct is to be admitted to show knowledge and intent, the proof must be complete enough and the fact situation proved must clearly warrant a jury finding that that prior conduct was intentional or knowing. For example, we have approved the admission, in relation to similar offenses, of proof that the defendant had completed prior sales of narcotics, United States v. Lewis, supra; had passed numerous forged checks from the same series, United States v. Spica, supra; had previously assaulted a homicide victim, Wakakson v. United States, supra; or had solicited other high school girls for Mann Act violations, Neff v. United States, 105 F.2d 688 (8th Cir. 1939). Where the surrounding circumstances were adequately established, this was admissible because such conduct is relatively unlikely to be committed without knowledge or intent.

Where, however, the prior conduct proved has been equally consistent with an innocent explanation or is simply too incomplete, we have reversed. In Gart v. United States, supra, the defendant was charged with unlawful possession and sale of narcotics. At trial, proof was admitted that the defendant had previously been seen delivering a package to someone else on a Denver street. There was no testimony, however, as to the contents of that package. We reversed, finding that this was not clear and convincing proof of an offense “but merely proof of a suspicious circumstance.” 294 F. at 67. The court likewise reversed a conviction for mail fraud where proof in the form of letters to the defendant from the Minneapolis Tribune was admitted on the issue of fraudulent intent. The letters accused the defendant of being “very dilatory” in delivering merchandise and refunds to customers answering his advertisement placed in that newspaper. We held it too prejudicial to require the defense to meet “mere accusations of some other offense.” Kraft v. United States, supra. Accord, United States v. Broadway, 477 F.2d 991, 995 (5th Cir. 1973).

We think that the government failed to prove by clear and convincing evidence that Clemons did commit another similar offense. The evidence showed only that Clemons once drove another man’s car in which a secret compartment containing drugs had been built in such a manner that it was apparently not visible even from inside the car. Uncontradieted evidence showed that James Earl Ray, not Clemons, had constructed the compartment. Since those facts are equally consistent with Clemons’ mere innocent proximity to cleverly concealed drugs, they do not amount to clear and convincing proof of other similar criminal conduct, and it was error to admit that proof.

It is necessary to decide whether this error prejudiced the defendant. We find that it did. The danger of prejudice to the defendant due to admission of evidence of other crimes is always great. The possibility that the jury may convict for a crime not charged in the indictment or on the basis of guilt by association is heightened where, as here, prior crime evidence shows that the defendant’s acquaintances dealt in drugs, even if proof is lacking that the defendant aided in or even knew of those activities. Judge Heaney recently noted:

In today’s society, possibly no act is more abhorred than the selling of narcotics. And nothing makes it more difficult for a defendant to receive a fair and unbiased trial than for the jury to think that the defendant or his acquaintances are men of bad character.

United States v. Crawford, supra, 438 F.2d at 446. See also Osborne v. United States, 351 F.2d 111, 117-118 (8th Cir. 1965).

Further, considerable time at the trial was devoted to serving up this incident, with extensive questioning of two witnesses as well as introduction of five photographs of the drugs seized in California.

Under these circumstances, we cannot say beyond a reasonable doubt that the erroneously admitted evidence did not influence the jury’s verdict, so we reverse and remand for a new trial. This is not to say a different verdict will or should be reached. We simply cannot say beyond a reasonable doubt that the verdict would have been the same had evidence of the California arrest been excluded. See Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Stabler, 490 F.2d 345, 349 (8th Cir. 1974.)

Reversed and remanded.

      . In view of our holding we find it not necessary to pass on the other issues raised.

      . Chimel v. California, 395 U.S. 752, 762-763, 89 S.Ct. 2064, 23 L.Ed.2d 685 (1969).

      . As Judge Walter H. Sanborn said in the early case of Paris v. United States, 260 F. 529, 531 (8th Cir. 1919) :
      Such evidence tends to draw the attention of the jury away from a consideration of the real issues on trial, to fasten it upon other questions, and to lead them unconsciously to render their verdicts in accordance •with their views on false issues rather than on the true issues on trial. Speaking of evidence of other similar offenses, the Circuit Court of Appeals of the First Circuit, in the case last cited (Fish v. United States, 215 F. 544, 545 L.R.A. 1915A, 809), well said: “Evidence of this character necessitates the trial of matters collateral to the main issue, is exceedingly prejudicial, is subject to being misused, and should be received, if at all, only in a plain case.”

      . An example of admissibility depending upon the elements of the crime is when other crime evidence is submitted on the issue of intent. While normally this would be permitted, see Von Feldt v. United States, 407 F.2d 95 (8th Cir. 1969), it is reversible error to so admit it when specific intent is not an element of the offense charged. See Hamilton v. United States, 409 F.2d 928 (5th Cir. 1969); United States v. Klass, 166 F.2d 373 (3d Cir. 1948); cf. Sears v. United States, 490 F.2d 150, 152 (8th Cir. 1974); United States v. Crawford, supra, 438 F.2d at 447 n. 14.

      . Where the defense suggests, either through cross-examination or in its case in chief, entrapment, Sherman v. United States, 356 U. S. 369, 375, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); United States v. Brown, 453 F.2d 101 (8th Cir. 1971); procuring agent, United States v. Simons, 374 F.2d 993 (7th Cir. 1966); lack of intent or knowledge, accident, etc., then prior crime evidence may be admitted.

      . The final requirement for admission of other crime evidence addresses itself primarily to the judgment of the trial court. The judge must determine whether the probative worth of such evidence outweighs its potential for prejudice. See United States v. Brown, 453 F.2d 101, 110-111 (8th Cir. 1972) (Bright, J., concurring); United States v. Lewis, supra, 423 F.2d at 459; Wakakson v. United States, supra, 367 F.2d at 645. This problem, as Judge Bright recently noted, is not susceptible of mechanical solution. United States v. Brown, supra, 453 F.2d at 110. Instead it requires
      balancing, on the one side, the actual need for the other crimes-evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed, and that the accused was the actor, and the strength or weakness of the other crimes-evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to over-mastering hostility. ' C. McCormick, Evidence 332 (1954).
      Having determined that admission of the California arrest was error because not clear and convincing, we need not decide what would have been the proper balance here had that not been the case.


author: PER CURIAM: LUMBARD, Circuit Judge

text:
    John Wesley RALLS, Petitioner-Appellee, v. John R. MANSON, Commissioner of Correction of the State of Connecticut, Respondent-Appellant.
    No. 1177, Docket 74-1682.
    United States Court of Appeals, Second Circuit.
    Argued June 14, 1974.
    Decided July 5, 1974.

      Lumbard, Circuit Judge, filed concurring opinion.
    Jerrold H. Barnett, Asst. State’s Atty. for New Haven County, New Haven, Conn., for respondent-appellant.
    Morton P. Cohen and David S. Golub, University of Connecticut School of Law Legal Clinic, West Hartford, Conn., for petitioner-appellee.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

Respondent-appellant, John R. Manson, Commissioner of Correction of the State of Connecticut, appeals from a judgment entered May 10, 1974 in the United States District Court for the District of Connecticut, M. Joseph Blu-menfeld, District Judge, granting a petition for a writ of habeas corpus filed by petitioner-appellee, John Wesley Ralls, a state prisoner presently incarcerated at the Connecticut Correctional Institution at Somers where he is serving a sentence of life imprisonment imposed after his conviction by a jury of second degree murder. We reverse the judgment of the District Court and dismiss the petition for a writ of habeas corpus.

Ralls was indicted on June 15, 1970, charged with the murder on March 1, 1970 of his mother-in-law, Mrs. Barbara Howell, in Hamden. After a two week jury trial before Honorable Louis George in the Superior Court for New Haven County, Ralls was convicted on November 17, 1970 of second degree murder. He was sentenced on December 11, 1970 to life imprisonment. Throughout proceedings in the Superior Court, including the trial, Ralls was represented by the Public Defender for New Haven County.

On December 30, 1970, the same Public Defender, who in the meanwhile had been appointed to represent Ralls on appeal, filed in the Superior Court a timely notice of appeal to the Supreme Court of Connecticut from Ralls’ murder conviction. On October 28, 1971, at Ralls’ request, the Public Defender who had represented him up to that point and who had begun processing his appeal was permitted to withdraw as Ralls’ appellate counsel. In his place, a Special Public Defender was appointed by the Superior Court to represent Ralls on appeal and he has done so continuously to date. This Special Public Defender is a lawyer whom Ralls specifically requested be appointed to represent him on appeal.

During the period of approximately three and one-half years from the filing of the notice of appeal to the present date, various steps have been taken pursuant to the Connecticut Practice Book to perfect Ralls’ direct appeal to the state Supreme Court. We have been informed that the printed record on appeal was filed with the Supreme Court on October 31, 1973; that the Supreme Court has fixed a briefing schedule that calls for all briefs to be filed by September 18, 1974; and that the Supreme Court has scheduled the argument of the appeal at its October 1974 term, which means that the appeal will be argued during October.

Backing up for a moment, Ralls filed his original petition for a writ of habeas corpus in the District Court on October 17, 1973, and an amended petition was filed on December 21, 1973. By agreement of counsel in the habeas corpus proceedings, the District Court decided the case on the state court record, supplemented by various affidavits, exhibits and stipulations. No evidentiary hearing was held. On May 7, 1974, the District Court filed a memorandum of decision holding, first, that despite the pendency of Ralls’ direct appeal to the state Supreme Court, it cannot be said that he has failed to exhaust state remedies as required by 28 U.S.C. § 2254(b) (1970); second, that of Ralls’ five substantive claims of alleged denial of federal constitutional rights at his state trial, two should be sustained (i. e. “(1) that the jury was improperly informed of his prior arrests”, and “(2) that the trial judge’s instructions to the jury applied improper pressure on the jury to agree to a verdict”); and, third, that Ralls should be discharged from custody unless afforded a new trial within sixty days. On May 20, the District Court entered an order staying execution of its judgment pending an expedited appeal to our Court. On June 4, we granted appellant’s motion for an expedited appeal and we heard the appeal on June 14. At our request, counsel for each side furnished to us, prior to argument, short statements of their respective versions of the essential evidence at the Superior Court trial.

We do not reach the merits of Ralls’ substantive claims; nor do we express any opinion as to whether they present issues of federal constitutional dimensions.

We reverse the judgment of the District Court and dismiss the petition solely on the ground that Ralls has failed to exhaust state remedies as required by § 2254(b). Picard v. Connor, 404 U.S. 270 (1971); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2 Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2 Cir.), cert. denied, 409 U.S. 1045 (1972).

While we deplore the delay in obtaining review of Ralls’ murder conviction by direct appeal to the Supreme Court of Connecticut, we hold, on the totality of the facts and circumstances presented by the record before us, that this case does not present a clear denial of constitutional rights sufficient to justify federal intervention. Specifically, we hold that there is neither “an absence of available State corrective process [nor] the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” § 2254(b) (last clause). The delay here in processing the direct appeal is not the equivalent of a complete absence of effective state appellate process and therefore does not excuse the failure to exhaust state remedies.

We reverse the judgment of the District Court and dismiss the petition for a writ of habeas corpus.

LUMBARD, Circuit Judge

(concurring) :

I concur, but for reasons different from those stated in the court’s per cur-iam opinion. The procedural history in this case shows not so much that the state prisoner has failed to exhaust his remedies but rather that the pursuit of those remedies has exhausted him. Were it not for the considerations which persuade me that the petition should be dismissed, I would think the petition raised very serious questions of due process because the enjoyment of the right to appeal has been so long delayed by action of the state and its judicial officers that the right has been nullified in large part.

This is another petition by a state prisoner who makes no pretense that he was innocent of the crime for which he was convicted — here the calculated murder of his mother-in-law — but who, nevertheless, seeks relief in the federal courts although the alleged defects which he claims occurred in the state proceedings relate only to evidentiary and procedural rulings which could not have affected the integrity of the finding of his guilt. After reviewing several thousand such petitions during 19 years on the federal bench, I have seen only two or three where a claim of innocence could be seriously advanced. As I agree with all that Mr. Justice Powell, writing also for the Chief Justice and Mr. Justice Rehnquist, has so persuasively stated in his concurring opinion in Schneckloth v. Bustamonte, 412 U.S. 218, 250-275, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and what our colleague Judge Friendly has written, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970), I think the time has come to limit consideration of such petitions to those few, rare cases where there is a colorable claim of innocence and an alleged error of constitutional dimensions which goes to the integrity of the fact finding process.

The uncontroverted proof produced by the state at the four-day trial showed beyond any doubt that Ralls killed his mother-in-law by firing four bullets into her body at close range.

On Sunday, March 1, 1970, at about 1:00 or 1:30 in the afternoon, the body of a woman was discovered on the floor of a maroon Chevrolet parked behind the First National Store on Dixwell Avenue in Hamden, Connecticut. The woman, Barbara Howell, Ralls’ mother-in-law, had died of multiple gunshot wounds in the head and chest from a .32 caliber automatic pistol. The time of death was estimated to be between 9:00 and 11:00 that morning. A search of the Chevrolet revealed three .32 caliber shell casings. The only identifiable fingerprint in the car, taken from the right vent window, was shown to be Ralls’ thumbprint.

Ralls was separated from his wife Gwendolyn and lived at his parents’ house with his three daughters. Benjamin Rawls, Ralls’ father, saw him leave the house in his black Oldsmobile around 9:30 on the morning of March first. He was going to the deceased’s house to pick up some of his daughters’ clothes that had been left there. He returned shortly before 10:00. Benjamin Rawls saw petitioner talking with the deceased and a third man near the deceased’s automobile, the maroon Chevrolet. Rawls later saw his son drive away in the Chevrolet with Barbara Howell. Rawls said that his son returned to the house around 3:00 that afternoon and left again around 6:00 or 7:00 that night. Benjamin Rawls also had previously told the police he had found a .32 caliber bullet on the floor in his son’s room a few days before March first.

Ada Rawls, petitioner’s mother, testified that her son came home at about 5:00 on the morning of March first. She told him to call his sister, who had received a letter to him from his wife. Ralls made the telephone call and was upset by the letter which was read to him. Ralls then went to his room to lie down. He got up around 9:00 and drove to Mrs. Howell’s home to pick up the clothes, returned about 9:20 or 9:30 with the clothes, and left again. He came back about 3:00 that afternoon. Mrs. Rawls testified that she did not know about Ralls’ feelings toward his mother-in-law, but she had previously told the police that Ralls had threatened to “get” his wife and mother-in-law.

Ralls’ daughter Sharon, aged 8, testified that her sister Michell, aged 5, had laid a gun on the floor' of their bedroom in the presence of her sister Jacquelyn and herself. Jacquelyn, aged 9, testified that her sister had said that morning that their father was going to hurt their grandmother, but that she asked him and he had said “no.”

Gwendolyn Ralls, petitioner’s wife, had left him in September 1969 after he had stabbed her in the leg. In May 1969 she had had Ralls arrested for aggravated assault when he hit her with a whiskey bottle. She also testified that petitioner had often threatened to kill her mother and herself.

Donald Rawls, the petitioner’s brother, testified that on the two nights before March 1, his brother had shown him a gun, which his brother had said was a .32 caliber automatic. He also said that Ralls had told him that his wife would not live to see Monday, and that his mother had said that Ralls had told her that he would “get” both his wife and mother-in-law. Donald Rawls further testified that Ralls felt his mother-in-law had kept his wife from him.

Samuel Bowens testified that Ralls came to his apartment in West Haven on March 1 between 10:30 and 11:00. Ralls asked him to cash a $500 U.S. Chemical Company check. Since Ralls owed him money, Bowens gave him about $300 for the check.- Ralls left at about 11:00. Bowens did not see any car driven by Ralls, but did recall that Ralls said nothing about his car breaking down or running out of gas.

In February 1970 Charles Cook worked with Ralls at the U.S. Chemical Company, where Ralls was a production manager. One day he saw Ralls take a gun, which Cook thought was an automatic, out of a paper bag. Also in February Donna Burkman, the office manager at U.S. Chemical, was told by Ralls that if he had had a gun “last night” he would have killed his mother, mother-in-law, and three children. He said that his mother-in-law interfered with his marriage. After the murder, on March 2 and 3, Burkman found that two payroll checks made out to Ralls in advance and five blank checks, as well as $80 in petty cash, were missing from the office. One of these checks was the check Bowens cashed.

Ralls was arrested on the afternoon of March 4. A search incident to arrest found the five checks taken from the U. S. Chemical Company. After being given the Miranda warnings and being booked, Ralls told detectives that on Saturday evening, February 28, his car broke down in front of a Dunkin’ Donut Shop in West Haven. Hitchhiking, he was driven home by an unknown man. The next morning he started to walk to his mother-in-law’s house, but was picked up and driven there by Jimmy Senior, a friend. Barbara Howell drove him home where they arrived at about 9:45. He had told her about his ear running out of gas and asked her to take him to it. They first stopped at an Atlantic gas station on the corner of Goodrich Street and Shelton Avenue where he filled a gas can that was in her car. They arrived at his ear between 10:15 and 10:30. He poured the gasoline into his car’s tank from the can, started the car, and returned the can. Barbara Howell then drove away and that was the last he saw of her. Ralls explained that he went into hiding because he knew that he would be-blamed when he heard of the murder on the evening of March first.

Several witnesses contradicted Ralls’ account of his whereabouts. Jimmy Senior testified that he saw Ralls on March 1 between 10:30 and 11:00, walking in a direction away from Dixwell Avenue. Senior stopped his car and Ralls asked to be driven to his own car on Winchester Avenue, the street on which Barbara Howell lived. The ride took about three minutes.

To further contradict Ralls’ story, a policeman from West Haven who was on duty the night of February 28 testified that there had been no complaints about a disabled car in front of the Dunkin’ Donut shop. An employee who arrived at the donut shop early on the morning of March 1 testified that he saw no car parked where Ralls said he had left his car. Likewise, the manager of the car-wash next door testified that he saw no car parked there that morning. In addition, the two attendants who were working at the gas station where Ralls said he and Barbara Howell had stopped, testified that they knew Ralls and had not sold him or anyone else that morning any gasoline in a gas can. Finally, no gas can was found in Barbara Howell’s car.

Ralls presented no evidence in his defense.

Thus, it is not surprising to find that no serious claim is made that Ralls is innocent. Indeed, no such claim could be made as every circumstance points to him as the killer of Barbara Howell.

In any event, the two grounds upon which Judge Blumenfeld granted the writ fall short of being errors of constitutional dimension.

The first ground relied upon by the district court was the allegedly improper admission of the fact that Ralls had a prior criminal record. This occurred during the examination of the state police fingerprint expert who testified that he compared the print found in the maroon Chevrolet with a fingerprint card of Ralls on file in central bureau for all criminal arrest records in Connecticut. At this point the trial judge cautioned the jury that the prior arrest might have been a minor matter and it did not affect this case. The jury was then excused and Ralls’ counsel moved for a mistrial, which was denied. When the jury returned, the trial judge again instructed them that they were not to take into account any prior arrest record and that the card could have been in the file because of a job application. The card itself was admitted into evidence.

The district court concluded that the admission of the fingerprint card was prejudicial error under the three-part test for admission of materials implying that defendant has a prior criminal record which we announced in United States v. Harrington, 490 F.2d 487 (2d Cir. 1973), and so violated Ralls’ due process right to a fair trial. Even assuming that the district court correctly applied the Harrington, standard, the problem with its conclusion is that Harrington, as well as the other cases it cited, was an instance of a federal court of appeals exercising its supervisory powers over the admission of evidence in the district courts. It goes without saying that in state prisoner habeas petitions the question is a very different one — • whether the petitioner’s right to a fair trial as guaranteed by the due process clause was violated. See, e.g., Jones v. Haskins, 459 F.2d 479 (6th Cir. 1972).

Here the record does not show that the admission of the fingerprint card deprived Ralls of due process. There was a legitimate purpose for introducing the card: showing how the witness had identified the fingerprint in the Chevrolet. The jury was not told what crimes Ralls was supposed to have committed previously and was carefully instructed by the trial judge. Finally, whatever prejudicial effect the admission of the fingerprint card had was vitiated by the later testimony, not objected to, by Ralls’ wife that Ralls had been arrested in 1969 after she had charged him with aggravated assault.

In Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), the Supreme Court upheld a state procedure where the jury was told for purposes of sentencing under a recidivist statute the prior convictions of the defendant, but was carefully instructed that such convictions were not to be used in determining the guilt or innocence of the defendant. What the Court said in Spencer applies here as well:

To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.
* -X- * -X- -x-
Cases in this Court have long proceeded on the premise that the Due Process Clause guarantees the fundamental elements of fairness in a criminal trial. . . . But it has never been thought that such cases establish this Court as a rule-making organ for the promulgation of state rules of criminal procedure.

385 U.S. 562, 563-564, 87 S.Ct. 653-654.

The second ground on which the district court granted the writ was the alleged coercion of the jury by the trial judge. About two hours and forty-five minutes after the jury began its deliberations, the trial judge called them in because of the hour (5:00 p.m.). The judge told them that he was not trying to hurry them, but that he would like to know if they thought that sandwiches or a full dinner would be necessary. He then said, “I cannot allow you to leave before I have some sort of verdict. You could readily see, if somebody got sick overnight, I would have to declare a mistrial, and this case would have to start all over again. It would be an impossibility.” He then asked if sandwiches would be enough. A juror told him that it would probably be quite a while before they came in with a verdict.

Later, at 8:07 the trial judge called in the jury and delivered the following instruction :

I sense that you must be having a little difficulty in reaching your verdict. However, as I have told you time and again, your verdict must be unanimous. It is true, of course, that a verdict to which each juror agrees, has got to be his own conclusion and not the mere acquiescence in or the conclusions of his fellows.
That does not mean that each juror should pursue his own deliberations and judgment with no regard for the arguments and conclusions of his fellows, or that having reached a conclusion, he or she should obstinately adhere to it without a conscientious effort to test its validity by the views entertained by the other jurors.
I am not telling you what to do. I am going to send you back in. Follow that theory, that you will resolve yourselves to do your duty and follow the thoughts of other jurors whom, I am sure, are equally as wise and have heard the same evidence. You may return to the jury room, and I hope it has shed some light. Thank you.

About an hour later the jury sent the judge a question asking if they alone determined whether the death penalty or life imprisonment should be imposed for a conviction of first degree murder. The judge answered affirmatively and ten minutes later the jury brought in a verdict of guilty of murder in the second degree.

The district court concluded that these supplemental instructions by the trial judge unconstitutionally compelled jurors voting for a minority position to acquiesce in the majority’s position. The court first focused on the 5:00 p. m. statement where the judge told the jury that they had to reach a verdict. The court relied on the Supreme Court’s brief opinion in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965), where a conviction was reversed on the ground that the district judge coerced a jury by telling them that they had to reach a verdict. But it should be noted once again that Jenkins was a case concerning a federal appellate court supervising the lower courts. Furthermore, the district judge had initially told the jury that the case was a simple one and should not detain them long. After two hours the jury sent back a note saying that it was hopelessly deadlocked. The district judge then said that he was not going to accept that and that the jury had to reach a decision. Jenkins v. United States, 117 U.S.App.D.C. 346, 330 F.2d 220, 221 & n. 2 (1964) (Wright, J., dissenting).

The situation in the instant case was very different. The remarks of the trial judge occurred in the course of an inquiry concerning whether it would be necessary to feed the jurors. Indeed, the judge’s comments can be read as telling the jury that they could not go home once they had begun deliberations. Here, unlike Jenkins, the trial judge gave a further instruction three hours later.

The district court also found that the instructions given at 8:07 impermissibly coerced any jurors voting in the minority. While the trial judge’s charge did not follow verbatim the charge in Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896), which was derived from cases like State v. Smith, 49 Conn. 376 (1881), the question before us is not what the federal courts should do, but rather what due process requires state courts to do. The trial judge here clearly told the jurors that each juror must reach his own conclusion and not just acquiesce in the majority’s verdict. The trial judge’s comment to the jury to follow the thoughts of other jurors is not significantly more prejudicial than the Allen charge instruction that minority jurors should reconsider their opinions. See, e. g., United States v. Jennings, 471 F.2d 1310, 1313-1314 (2d Cir.), cert. denied, 411 U.S. 935 (1973); United States v. Kenner, 354 F.2d 780, 782-84 (2d Cir. 1965), cert. denied, 383 U.S. 958, 86 S.Ct. 1223, 16 L.Ed.2d 301 (1966).

In conclusion, such a charge seems to me to be well within the province of the state courts to pass upon in accordance with state practice in situations where the jury seems unable to agree. As the states may provide for convictions in criminal cases by less than unanimous verdict, Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), it would seem to follow that the means whereby unanimity is reached, including such a matter as a supplemental charge, is not to be judged by the standards which we apply in federal criminal trials where unanimity is a constitutional requirement. Thus the district judge was treading on territory which is better left for decision by our brethren of the state courts.

There being no reason whatever to doubt the guilt of the defendant, and little if any basis to believe that any rulings of the state court raise questions of such constitutional dimension as to justify federal court scrutiny and correction, the district court should have dismissed the petition.

At the same time it should be pointed out that in any case where guilt may be open to serious question and where claims of constitutional dimension find a basis in the record, the federal district court need not stand by while the years pass and the state appellate process makes the speed of a snail seem spectacular by comparison. At the least, due process would require the defendants who must endure such an appeal be admitted to bail, lest they end by serving all or most of their sentence before the propriety of the conviction has been determined.

We understand that the Connecticut practice of making a finding is now under careful review. Apparently, the practice has been found to be a time-consuming expensive and altogether archaic practice which puts an unnecessary burden on counsel and the trial judge, and results in inordinate delay. Of course, it is not for the federal courts to devise rules for state practice. But if such rules play a part in the denial of constitutional rights, the fact that their use is tolerated would be no excuse for delays which might substantially diminish or nullify due process rights.

For the above reasons, the order of the district court should be reversed with directions to dismiss the petition.

      . See State of Connecticut v. John W. Ralls, XXXV Conn.Law Journal, No. 51, pages 3-4 (June 18, 1974); and see note 5, infra.

      . Ralls has been represented in the federal habeas corpus proceedings by counsel other than his state appellate counsel; but his federal and state counsel have conferred together during the pendency of the habeas corpus proceedings, as we were informed at the oral argument of the instant appeal.

      . Ralls’ counsel informed us at the oral argument of the instant appeal that these five substantive claims are essentially the same claims that Ralls intends to raise on his direct appeal to the Supreme Court of Connecticut.

      . IVe likewise deplore delays on direct appeals in criminal cases in other districts within this Circuit. E. g., United States ex rel. Mosher v. LaVallee, 491 F.2d 1346, 1347 n. 1 (2 Cir. 1974) (3½ years); United States ex rel. Gibbs v. Zelker, 496 F.2d 991 (2 Cir. 1974) (5 years).

      . Indeed, the Supreme Court of Connecticut, in fixing the briefing and argument schedule in the instant case, State of Connecticut v. John W. Ralls, supra note 1, pointed out the remedies provided by Practice Book §§ 696 and 762 for expediting appeals :
      “The rules contained in the Practice Book ‘set forth the time period for each step in the appeal. Those periods govern unless there is good cause for modifying them. And the cause which is asserted to be a good one should be explicitly set forth in any motion for an extension filed under Practice Book § 655. The granting of such a motion in the trial court, however, in no wise affects the power of this court under § 696 to compel the expedí-tious processing of appeals. . . . Under § 696, this court will, as occasion requires, make its own determination whether, from the time an appeal is filed, it is being prosecuted with proper diligence .... The work of this court is not expedited if counsel are permitted to dally for the purpose of bargaining with the opposition, for personal convenience or because other cases in hand are deemed by them to deserve preferential treatment.’ . . . Chanosky v. City Building Supply Co., 152 Conn. 449, 451-52, 208 A.2d 337.
      When any party to an appeal fails to prosecute or defend that appeal with proper diligence the other party, or this court on its own motion, may dismiss the appeal or set aside the judgment with costs. Practice Book § 696. Also, in the interest of expediting decision or for other good cause, this court may suspend the requirements or provisions of any of the rules on the application of a party or on its own motion and may order proceedings in accordance with its direction. Practice Book § 762.
      Although these remedies have been available to the state and to each of the defendants, it was not until this late date in the court year and on the eve of the court’s adjournment for the summer recess that the state has sought the benefit of the provisions of § 762 of the Practice Book. We also note that neither defendant has ever sought the benefit of the provisions of either §§ 696 or 762 of the Practice Book, choosing instead to ignore the availability of relief under these sections and to proceed by way of writs of habeas corpus in the federal district court which lias, nonetheless, assumed jurisdiction.” (footnotes omitted).

      . One such rare case is United States ex rel. Cannon v. Montanye, 486 F.2d 263 (2d Cir. 1973).

      . See also M. Fleming, The Price of Perfect Justice 22-36 (1974); Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv.L.Rev. 441 (1963).
      The Supreme Court has recently granted review in a case raising the question of whether a state prisoner who has pleaded guilty can raise a Fourth Amendment claim in a federal habeas corpus proceeding when state courts have reviewed the claim. United States ex rel. Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974), cert. granted sub nom. Lefkowitz v. Newsome, 42 U.S.L.W. 3691 (June 17, 1974).

      . The parties, at the request of the court, filed supplemental briefs regarding the evidence at trial as the original briefs gave no information about the proof. A supplemental record containing the state trial transcript has also been filed.

      . Petitioner spells his name “Ralls” while his parents and brother spell theirs “Rawls.”

      . In fairness to the district judge, however, it should be noted that he was probably hindered below, as we are on appeal, by the inexcusable refusal of the state to brief this ease on the merits. The state claims that to argue the merits of this ease would somehow constitute a waiver of its claim that this case should not be heard because of Ralls’ failure to exhaust state remedies. This stand overlooks the fact that the Federal Rules of Civil Procedure, which apply to habeas corpus proceedings, clearly allow defenses to be pleaded in the alternative. F.R.Civ.P. 8(e)(2). Thus, the state could have argued the merits here without waiving his exhaustion claim.

      . I do not mean to suggest that a colorable claim of innocence is a necessary prerequisite in every habeas corpus case concerning a state prisoner, Judge Friendly in his article carefully delineates exceptions in which a claim of innocence is not needed. 38 U.Chi. L.Rev. at 151-53. Within his exceptions are claims that the state did not provide the type of trial the Constitution guarantees and claims that the state procedure has not allowed to be raised. Likewise, Mr. Justice Powell would allow federal habeas corpus review of a state prisoner’s Fourth Amendment claims when the prisoner has not had a fair opportunity to raise the claims in the state courts and to have them adjudicated. See Schneckloth v. Bustamonte, supra, 412 U.S. at 250, 93 S.Ct. 2041; Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed. 2d 325 (Powell, J., concurring in the result) (1974).
      Here the claims are that Ralls did not receive the kind of trial that the Constitution requires but, as demonstrated above, this is not so.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Ronny ATKINS, Appellant.
    No. 941, Docket 73-2802.
    United States Court of Appeals, Second Circuit.
    Argued April 8, 1974.
    Decided June 6, 1974.
    William Epstein, New York City (William J: Gallagher, The Legal Aid Society, New York City, on the brief), for appellant.
    Jeffrey Glekel, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and S. Andrew Schaffer, Asst. U. S. Atty., New York City, on the brief), for appellee.
    Before FRIENDLY and TIMBERS, Circuit Judges, and THOMSEN, District Judge.

       Senior United States District Judge of the District of Maryland, sitting by designation.

   PER CURIAM:

On this appeal from a judgment of conviction entered December 10, 1973 in the Southern District of New York after a five day jury trial before Edmund L. Palmieri, District Judge, finding Atkins guilty of receiving, concealing and storing a stolen automobile and of conspiring to commit such offenses, in violation of 18 U.S.C. §§ 2313 and 371 (1970), the sole issue is whether the district court erred in denying Atkins’ motion to dismiss the indictment on the ground that the government, by not transferring him from Minnesota where he was in custody to the Southern District until a month before trial, violated Paragraph 9(b) (i) of the Southern District Plan For Achieving Prompt Disposition Of Criminal Cases. We affirm.

Atkins was indicted on February 2, 1973. A plea of not guilty was entered on his behalf and the ease was assigned to Judge Palmieri on February 20. The government filed its Notice of Readiness on March 12 stating that it would be ready for trial on or after April 2 subject to five days notice.

Sometime in March or early April, the Assistant United States Attorney learned for the first time that Atkins had been incarcerated since late February at the FCI in Sandstone, Minnesota, where he was serving a sentence for an unrelated federal offense.

Judge Palmieri held a pretrial conference on September 19 at which Atkins was represented by Legal Aid Society counsel. The judge at the time of this pretrial conference set November 26 as the date for trial. The government thereupon arranged for the transfer of Atkins from Minnesota to the Southern District so that he could prepare for trial. He arrived in New York on October 30. He appeared at pretrial proceedings before Judge Palmieri on November 15 and 16. The trial began on November 26 and was concluded on November 30 with the return of the jury’s guilty verdict.

First in a pretrial motion on November 26 and later in a renewed motion prior to sentencing, counsel for Atkins moved to dismiss the indictment on the ground that the government had failed to comply with the provision of Paragraph 9(b) (i) requiring it promptly to undertake to obtain the presence of a prisoner for plea or trial when it knows that the prisoner is serving a term of imprisonment in a federal or state institution.

After hearing argument and after considering the affidavits submitted, Judge Palmieri on December 10 denied the motion on the ground that it was his congested calendar, not Atkins’ absence from the district, that necessitated the November trial date. And it must be remembered that Paragraph 9(a) includes the provision that “[e]ach judge will schedule criminal trials at such times as may be necessary to assure prompt disposition of criminal cases.” The government was ready at all times after its March 12 Notice of Readiness which fully complied with the six months provision of the Plan. United States v. Cacciatore, supra, 487 F.2d at 243.

The purpose of Paragraph 9(b) of the Southern District Plan is to prevent unnecessary delay. Here there was none.

Affirmed.

      . Paragraph 9 of the Southern District “Plan For Achieving Prompt Disposition Of Criminal Cases” provides as follows :
      “9. Responsibility of United States Attorney and Defense Counsel.

      (a) The court has sole responsibility for setting and calling cases for trial. Neither a conflict in schedule of Assistant United States Attorneys nor a conflict in schedules of defense counsel will be ground for a continuance or delayed setting except under unusual circumstances approved by the court and called to the court’s attention at the earliest practicable time. Each judge will schedule criminal trials at such times as may be necessary to assure prompt disposition of criminal cases. The United States Attorney will familiarize himself with scheduling procedures of each judge and will assign or reassign cases in such manner that the government will be able to announce ready for trial.
      (b) If the United States Attorney knows that a person charged with a criminal offense is serving a term of imprisonment in a federal, state, or other institution or that of another jurisdiction, it is his duty promptly :
      (i) to undertake to obtain the presence of the prisoner for plea and trial; or
      (ii) when the government is unable to obtain the presence of the defendant, to cause a detainer to be filed with the official having custody of the prisoner and request him to advise the prisoner of the detainer and to inform the prisoner of his rights under the Federal Rules of Criminal Procedure and this Plan.”
      Paragraph 9 of the Southern District Plan, which became effective April 1, 1973, had no counterpart in the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 28 U.S.C.A. App. (Supp. 1973). See United States v. Cacciatore, 487 F.2d 240, 243 n. 1 & 3 (2 Cir. 1973).

      . Note 1, supra.

      Atkins’ claim based on Paragraph 9(b) (i) was made at the end of a suppression hearing on November 26, prior to the commencement of the trial. Judge Palmieri denied the 9(b) (i) motion at that time “without prejudice to its renewal at the conclusion of the case.”
      Prior to November 26, Atkins liad filed on May 25 and August 27 two pro se motions urging that the indictment be dismissed. Judge Palmieri denied these motions on June 28 and September 19, respectively. The August 27 motion claimed that the government had violated the Second Circuit. Rules Regarding Prompt Disposition Of Criminal Cases by failing to bring Atkins to trial within six months of the filing of the indictment. As we hold below, this claim was without merit because the government was ready at all times after its Notice of Readiness was filed on March 12.
      On November 15, Atkins had advised the court that he thought he had been prejudiced by not having been brought to the Southern District until October 30. Judge Palmieri considered and rejected this aspect of his claim in denying Atkins’ motion based on Paragraph 9 (b) (i) on November 26 and again on December 10.

      . Note 1, supra.

      . We have considered Atkins’ claim, advanced for the first time in a reply brief handed up at the argument before us, that an earlier trial might have resulted in an earlier release. Cf. Smith v. Hooey, 393 U.S. 374, 377-79 (1969) (Sixth Amendment case involving a seven year delay). The short answer to such claim is that, for aught that appears in the record before us, neither Judge Palmieri nor any other Judge could have heard the case any sooner even if Atkins had been transferred from Minnesota to New York prior to October 30.


author: PER CURIAM.

text:
    James O. MATTINGLY, Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Appellee.
    No. 74-1477.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1974.
    Decided Sept. 23, 1974.
    James 0. Mattingly, pro se.
    Bert C. Hurn, U. S. Atty., Frederick, 0. Griffin, and Anthony P. Nugent, Jr., Asst. U. S. Attys., Kansas City, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

James Mattingly appeals from a final judgment denying his application for habeas corpus relief. In his application, Mattingly, a prisoner in the Springfield Medical Center, alleged that he was prejudiced in his living conditions at Springfield because a detainer had been lodged against him by the State of Kentucky.

The matter was referred by the court to the magistrate at Springfield, Missouri. The magistrate held an eviden-tiary hearing and determined that the undisputed facts were as follows: that the defendant was charged by an indictment filed in Kentucky state court on October 15, 1973, with malicious shooting; that on January 2, 1974, the petitioner filed in that court a motion to dismiss the charges on the grounds of denial of due process and denial of speedy trial; that the petitioner’s motion was overruled by an order entered on April 1, 1974, with a trial date of June 21, 1974, being set on the pending charges; and that the defendant has been deprived of an opportunity to be transferred to a minimum custody unit because of the pending detainer. The magistrate recommended that the petition for habeas corpus be denied on the grounds that the petitioner had not been denied a speedy trial in Kentucky in view of the decision of the courts of that state to try the defendant on June 21, 1974. The District Court reviewed the recommendations of the magistrate and denied the writ.

We asked the parties to file additional briefs on the question of whether we are required to remand the matter to a District Court for an evidentiary hearing in the light of the Supreme Court’s decision in Wingo v. Wedding, 418 U.S. 461, 473, 94 S.Ct. 2842, 2849, 41 L.Ed.2d 879, 888 n. 19 (1974).

After reviewing the supplementary briefs and the record, we do not believe that a remand is required. The magistrate found that there were no disputed issues of fact and neither party questions that finding. Under such circumstances, no evidentiary hearing before a U. S. District Judge is required. See Noorlander v. United States Attorney General, 465 F.2d 1106, 1108 (8th Cir. 1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1398, 35 L.Ed.2d 603 (1973), and cases cited therein; cf., Procunier v. Atchley, 400 U.S. 446, 452, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971).

The judgment of the District Court is modified by requiring that court to enter an order requiring the Springfield Medical Center to give the defendant the same opportunities given prisoners not subject to a detainer. See, Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973). As so modified, the judgment is affirmed.


text:
    BRANDEIS MACHINERY & SUPPLY CORP. and State Equipment Company, Plaintiffs-Appellees, v. BARBER-GREENE COMPANY, Defendant-Appellant.
    No. 73-2058.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1974.
    Decided Sept. 24, 1974.

      William C. Murphy, Aurora, 111., for defendant-appellant; Reid, Ochsenschla-ger, Murphy & Hupp, Aurora, 111., Stites, McElwain & Fowler, Louisville, Ky., on brief; Lambert M. Ochsenschla-ger, Timothy J. Reuland, Aurora, 111., T. Kennedy Helm, Jr., Louisville, Ky., of counsel.
    Wesley P. Adams, Jr., Louisville, Ky., for plaintiffs-appellees; Bruce L. Montgomery, Tom Scheuneman, Washington, D. C., on brief; Arnold & Porter, Washington, D. C., Ogden, Robertson & Marshall, Louisville, Ky., of counsel.
    Before CELEBREZZE, McCREE and ENGEL, Circuit Judges.
   PER CURIAM.

This appeal pursuant to 28 U.S.C. § 1292(a)(1) is taken by defendant Barber-Greene Company from the issuance of a preliminary injunction preventing it from terminating a fifty year distributorship and refusing to sell its asphalt products to plaintiffs Brandéis Machinery and Supply Company and its affiliate State Equipment Company.

The preliminary injunction was issued in a suit brought by Brandéis and State against Barber-Greene alleging that the latter had participated in an illegal tying arrangement in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § "l4.

The Supreme Court has defined tying arrangement as;

“[A]n agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product, or at least agrees that he will not purchase that product from any other supplier.” Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1957).

According to plaintiff-appellees, the illegal conduct claimed here arose when Barber-Greene refused to continue to sell Brandéis its dominant asphalt products line (the tying product) unless Brandéis agreed to distribute exclusively Barber-Greene’s less popular Telsmith line of stone-crushing equipment (the tied product). When Brandéis, a multi-products distributor who had handled the Telsmith line for Barber-Greene since 1964, chose to take on the distributorship of Rexnord products, a line of stone-crushing equipment competitive with Telsmith, Barber-Greene terminated its entire dealer agreement with Brandéis and State.

Barber-Greene’s principal challenge on appeal is to the district court’s determination that Brandéis had shown sufficient likelihood of ultimate success on the merits to warrant the issuance of the preliminary injunction. Barber-Greene relies upon the right of termination reserved to it in its agreements with appellees, and claims that it engaged in no more than a simple refusal to deal, held not actionable in United States v. Colgate, 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). Brandéis, on the other hand, relies upon that line of more recent cases which hold the Colgate doctrine not to be applicable where the manufacturer’s actions “go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means to effect adherence” to his demands. United States v. Parke, Davis & Co., 362 U.S. 29, 44, 80 S.Ct. 503, 512, 4 L.Ed.2d 505 (1960). See also Federal Trade Commission v. Beech-Nut Packing Company, 257 U.S. 441, 42 S.Ct. 150, 66 L.Ed. 307 (1921); Osborn v. Sinclair Refining Company, 324 F.2d 566 (4th Cir. 1963).

Before reaching a decision to grant preliminary injunctive relief, the district judge heard three days of testimony, and in addition considered numerous depositions and received 47 exhibits. That record has been reduced on appeal to an appendix consisting of three volumes and over one thousand pages.

In determining whether sufficient likelihood of success exists as one of the necessary conditions to preliminary injunctive relief, the trial court was required to “satisfy itself, not that the plaintiff certainly has a right, but that he has a fair question to raise as to the existence of such a right.” American Federation of Musicians v. Stein, 213 F.2d 679, 683 (6th Cir. 1954), cert. denied, 348 U.S. 873, 75 S.Ct. 108, 99 L.Ed. 687 (1954). Similarly in an antitrust action, Judge Jerome Frank held that:

“[I]t will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for mere deliberate investigation.” Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2nd Cir. 1953).

Our function on appeal is to make a careful examination of the record to satisfy ourselves that the findings of the trial judge are not clearly erroneous, and that he has not abused the broad discretion which is his in determining whether to grant or withhold interlocutory relief. Corn-Share, Inc. v. Computer Complex, Inc., 458 F.2d 1341 (6th Cir. 1972). We believe it is important that we refrain from unnecessary comment on the evidence, in recognition of the fact that the case is yet to be heard in full on its merits.

“Ordinarily, an appellate court, upon an appeal from an order granting or denying a temporary injunction, will not go into the merits of a case further than is necessary to determine whether the trial court exceeded a reasonable discretion in making the order, and this is especially true where the rights of the parties can be better determined upon full proof of the facts.” American Federation of Musicians v. Stein, supra, 213 F.2d at 683.

Upon a careful review of the record, we conclude that the findings of the trial court are not clearly erroneous, and that it did not abuse its discretion in granting the preliminary injunction.

Affirmed. Costs to appellees.