author: HAMLEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harry Contreras VALDIVIA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Roy COHN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Warren Lonnel HARRIS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Carl TURNER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Joseph FREEDMAN, Defendant-Appellant. Hernandez Cases. Group III Appeals.
    Nos. 71-2093—71-2096, and 71-2141.
    United States Court of Appeals, Ninth Circuit.
    Feb. 16, 1973.
    Rehearing Denied in Nos. 71-2094 — 71-2096 Oct. 18, 1973.
    Certiorari Denied April 15, 1974.
    See 94 S.Ct. 1945.

      Frank A. Rockwell (argued), San Diego, Cal., Jonathan K. Golden (argued), Burton Marks, Beverly Hills, Cal., Roger S. Hanson (argued), Woodland Hills, Cal., Rembert T. Brown (argued), La Mesa, Cal., for defendants-appellants.
    James W. Meyers, Asst. U. S. Atty, (argued), Phillip W. Johnson, Special Asst. Atty. Gen., Harry D. Steward, U. S. Atty, San Diego, Cal., for plaintiff-appellee.
    Before HAMLEY and CHOY, Circuit Judges, and SCHNACKE, District Judge.

       The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.

   HAMLEY, Circuit Judge:

This case involves the so-called Hernandez narcotics conspiracy. The general background of that conspiracy is developed in detail in our opinion, filed today, in United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973). In that opinion we noted that the district court had divided the forty-nine defendants named in a two-count indictment into three groups for trial.

The Baxter decision deals with the appeals arising from one of these trials, which we have labeled the Group I appeals. The decision of this court, filed today in United States v. Murray, et al., 492 F.2d 178 (9th Cir. 1973), deals with the appeals arising from another of these three, trials, and has been labeled the Group II appeals. The appeals now before us arise from the third of these trials, and our decision herein has been labeled the Group III appeals.

The defendants involved in the Group III trial were Harry Contreras Valdivia, Roy Cohn, Warren Lonnel Harris, Carl Turner, William Joseph Freedman, Herbert Cox, Jr., Marion Hawkins and H. S. Sanford. The charges against Sanford and Hawkins were severed for separate trial. The jury found Cox not guilty on both counts. The jury found the remaining five defendants guilty on both counts. Each has appealed and we have consolidated their appeals for disposition in this court.

I. Proof of Conspiracy and Severance for Trial

Some of the defendants involved in this appeal contend that the evidence is insufficient to establish that they participated in a single over-all. conspiracy of the kind charged in the indictment.

At the outset of section I of our opinion in the Group I appeals, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, we discussed the general considerations to be borne in mind in dealing with challenges to the sufficiency of the evidence to support conspiracy charges. What we there said is equally applicable here and will serve as an introduction to our discussion of the sufficiency of the evidence to support the conspiracy charges against defendants who have raised the question. We also note that the evidence pertaining to the background facts of the single over-all conspiracy as introduced in this Group III trial, is essentially the same as that introduced at the Group I trial, summarized in the Baxter opinion.

Defendant Cohn. Although Cohn does not specifically question the sufficiency of the evidence supporting his conviction on the conspiracy count, he does adopt all of the arguments raised by other appellants in the Hernandez Cases. We deem this sufficient, under the special circumstances of this case, to challenge the sufficiency of the evidence, but we conclude that Cohn’s contention is without merit.

Cohn was the Hernandezes’ distributor in the Los Angeles area. He was frequently in contact with the leaders of the Hernandez organization in Tijuana. Orders from retailers in the Los Angeles area were given to Cohn by Richard Wright. Cohn would then receive the smuggled narcotics and “fill” the customers’ orders. Thus, Cohn knew both the existence and size of the Hernandez operation, and there is sufficient evidence to prove his participation in a single, over-all conspiracy. There is no variance between the crime charged in the indictment and the proof at the trial.

Defendant Harris. The jury could reasonably have found the facts to be as follows with regard to Harris’ connection with the over-all Hernandez narcotics operation: A page in the Hernandez “customer book,” exhibit 601, is headed “LYNIL-J. A. WHITE” and “753-2036.” Richard Wright testified that “Lynil” was the name this customer used when calling to order narcotics and “J. A. White” was the name he employed in sending telegrams, checks or money orders to the Hernandezes. This page of the “customer book” shows that “LYN-IL-J. A. WHITE” was charged three hundred twenty-five dollars an ounce for heroin and five hundred fifty dollars an ounce for cocaine. The entries on that page reflect sales of over a pound of heroin and two ounces of cocaine, with a sales value of $6,525.00, during a fifty-three-day period in October and November, 1968.

Telephone number 753-2036 was listed to Harris’ wife, Elizabeth Harris, at their residence in Inglewood, California. United States Customs agents arrested Harris at this residence on December 17, 1968. The agents found two address books, with handwritten entries made by Harris, at the scene of his arrest. Both books contained the Juan Hernandez telephone number in Tijuana, Mexico, and telephone number 384-8035, which was the “subtract-from-ten” code for the Hernandezes’ main number in Tijuana.

Two Bank of America cashier’s checks, payable to Robert Hernandez, and the applications therefor, were admitted as evidence at the trial. The first, which Robert Hernandez negotiated, was dated April 17, 1968, and was in the amount of $4,875.00. This check was signed “James L. Brown.” The second, dated December 9, 1968, was in the amount of five hundred fifty dollars. It was signed “J. A. White.” Richard Wright turned this check over to Government agents before it could be negotiated by Hernandez. Envelopes addressed to Robert Hernandez, with Wright’s notations on the back, were also introduced. A handwriting expert testified that the signatures on the application forms and the addresses on the envelopes, were all written by defendant Harris.

Other evidence establishing Harris’ identity as “LYNIL-J. A. WHITE” is a recorded telephone conversation of December 7, 1968, between Wright and Hernandez-distributor Roy Cohn. In this conversation, Wright instructed Cohn as to an order from “Lynil.” The telephone number which Cohn was to call was that listed to Harris’ wife.

The direct and circumstantial evidence discussed above shows that Harris was in contact with the Hernandezes’ main headquarters in Tijuana, with Juan Hernandez in Tijuana, with Wright while Wright was a Hernandez operative, and with Roy Cohn.

Having in mind the background evidence pertaining to the over-all conspiracy, which was similar to that reviewed in the Group I appeals opinion, and the evidence which relates specifically to Harris, as summarized above, we are of the view that the jury could reasonably find that Harris must have known that other retailers, in addition to himself, were involved with the Hernandez organization in a broad plan for the smuggling, distribution and retail sale of narcotics. The jury could also reasonably find that Harris must have realized that the benefits he and the other retailers derived from the operation were dependent upon their mutual participation therein.

These basic findings are ample to support the jury determination that Harris, in effect, agreed to participate in the over-all scheme, and did participate therein. See Blumenthal v. United States, 332 U.S. 539, 557, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Friedman, 445 F.2d 1076, 1079 (9th Cir. 1971); Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960).

We therefore hold the evidence sufficient to establish the existence of the over-all narcotics conspiracy, as charged, and Harris’ participation therein.

Defendant Freedman. The jury could reasonably have found the facts to be as follows concerning Freedman’s connection with the over-all Hernandez narcotics operation: A page in the Hernandez “customer book,” exhibit 601, is headed “Louie Bigg,” “Louie or Bill,” “278-1128,” “466-0413.” One of these telephone numbers, 278-1128, was listed to Freedman at his Los Angeles residence. United States Customs agents arrested Freedman at this residence on December 17, 1968. Exhibit 641 shows four telephone calls made from that telephone, within an eight-day period, to the Hernandezes’ main number in Tijuana.

The other telephone number found on the “Louis or Bill” page of the “customer book” was listed to a “Pamela Harvey,” whose real name was Pamela Buek. She had that telephone in her Hollywood, California, apartment during October and November, 1968. Louis Hat-tem, an indicted co-conspirator in this case, lived with her for a period of time and he used that telephone. She never called Tijuana while she had that telephone. Yet telephone company records show that a call was made to the main Hernandez number in Tijuana.

In the fall of 1968, both Hattem and Freedman journeyed to the Hernandez residence in Tijuana to talk to Robert Hernandez. Hattem was an old customer of the organization and he introduced Freedman as his “partner,” and told Hernandez that they had come down to buy marijuana and cocaine. A handwritten telephone book found in Freedman’s apartment had an entry “Lou H. 466-1502,” which is the same number as that of Hattem’s girl friend, Pamela Buek, after she changed her telephone number in November, 1968.

The “Louie or Bill” page of the Hernandez “customer book” reflects sales of eight ounces of heroin and one ounce of cocaine, for $3,150.00, during a seven-day period in October, 1968. Five Western Union money orders, addressed to “Hernandez Construction Company” at the Hernandez residence in Tijuana were signed by Freedman under the name “Louis Bigg.” These money orders were in amounts ranging from three hundred twenty-five dollars to eight hundred seventy-five dollars. The direct and circumstantial evidence reviewed above could reasonably lead the jury to find that Freedman was in contact with Robert Hernandez, Cohn, the Hernandez distributor, Hattem, another retailer, and Lannom and Wright, who were top Hernandez operatives at the time.

As in the case of defendant Harris, we believe the general background evidence concerning the nature of the over-all conspiracy, and that which pertains specifically to Freedman, as reviewed above, warranted the jury in finding that Freedman knowingly associated himself with what he must have realized was a general conspiracy to smuggle, distribute and retail narcotic drugs. Accordingly, the evidence was ample to sustain the jury finding as to the existence of the over-all narcotics conspiracy and Freedman’s participation therein.

Defendant Turner. Turner has not devoted a specific section of his brief to an argument that the evidence is insufficient to tie him in with the over-all Hernandez narcotics conspiracy. Yet the statement of facts set out in his brief is presented in such a way as to at least imply that Turner deems the Government evidence insufficient. We have therefore examined the evidence tending to tie Turner in with the single over-all conspiracy and conclude that it is sufficient.

II. Searches and Seizures

Cohn and Freedman argue that evidence received at the trial was obtained as a result of unlawful searches and seizures.

Defendant Cohn complains of the search of his residence, asserting that a search warrant should have been obtained and that the search was too extensive. The search was incident to a lawful arrest. We have noted above that Harris, rather than the more stringent test of Chimel, is applicable here. United States v. Baxter, 492 F.2d 150 (9th Cir. 1973). A search of the entire premises was justified. Harris v. United States, 331 U.S. 145, 151-152, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). The possibility of obtaining a search warrant does not render the search unlawful. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950).

The preceding discussion likewise disposes of the arguments of defendant Freedman, whose residence, entered after appropriate identification, was also searched for contraband incident to a lawful arrest. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); United States v. De La Cruz Bellinger, 422 F.2d 723 (9th Cir. 1970).

III. Miscellaneous Contentions by Valdivia

1. Admissibility, of exhibit 786. Exhibit 786 is a Western Union money order dated October 29, 1968, payable to Robert Hernandez at the Hernandezes’ Tijuana residence, in the sum of one thousand three hundred dollars. While the money order is signed “Harry C. Valdivia,” a Government handwriting expert testified that it was not in the hand of Valdivia. Valdivia argues that the admission of exhibit 786 constituted prejudicial error because the Government did not prove that the money order was made during the regular course of business, and because the Government did not establish proof of the money order’s authenticity.

Exhibit 786 was first offered in evidence by Valdivia’s own trial counsel. The same exhibit, along with several others, was later received in evidence as a Government exhibit. Still later Valdi-via’s counsel called attention to the fact that Government exhibit 786 had originally been offered by the defense, and requested that it be withdrawn as a Government exhibit and readmitted as a Valdivia defense exhibit. There was no objection and this was done.

If the admission of exhibit 786 was error, .it was invited error, concerning which Valdivia is in no position to complain. United States v. LeVison, 418 F.2d 624, 626 (9th Cir. 1969).

2. Admissibility of testimony linking Valdivia to Juan Hernandez. Valdivia argues that Wright’s testimony linking Valdivia to Juan Hernandez was, for various reasons, inadmissible, and should have been excluded. The testimony in question was to the effect that Juan Hernandez was a participant in the conspiracy led by Robert and Helen Hernandez.

Valdivia complains that this testimony by Wright is inadmissible because it was not corroborated. This argument is difficult to follow because, at the outset, Valdivia concedes that, in the Ninth Circuit, the rule is that the uncorroborated testimony of an accomplice is, of itself, sufficient to sustain a conviction, if believed. See United States v. Bagby, 451 F.2d 920, 930 (9th Cir. 1971); United States v. Jones, 425 F.2d 1048, 1055 (9th Cir. 1970); United States v. Garcia, 422 F.2d 1301, 1302 (9th Cir. 1970). But then Valdivia, in an apparent attempt to advocate a contrary rule, cites Darden v. United States, 405 F.2d 1054, 1056 (9th Cir. 1969), for the proposition that an accomplice’s uncorroborated testimony is admissible “if the testimony is not ‘incredible or unsubstantial on its face.’ ” (Emphasis in Valdivia’s brief.)

If the Darden opinion read as quoted by Valdivia, it would be internally inconsistent, for it would be saying, in effect, that “an accomplice’s uncorroborated testimony is admissible if it is corroborated.” What the Darden opinion actually says is that “a conviction in federal court may be based on the uncorroborated testimony of an accomplice, if the testimony is not ‘incredible or unsubstantial on its face.’ ” 405 F.2d at 1056 (emphasis supplied). We see no reason why this testimony by Wright should not be regarded as substantial.

Valdivia also calls attention to the following language in United States v. Williams, 435 F.2d 642, 645 (9th Cir. 1970):

“The admissions and statements of a co-defendant are admissible as against the other even in the absence of a conspiracy count where there is independent evidence of a concert of action.” (Emphasis added by Val-divia.)

We fail to perceive the relevance of the quoted observation, which merely states the familiar rule that the extrajudicial statements of one defendant are admissible if a concert of criminal action has been independently established. See Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970). Wright was not a codefendant, nor are we here concerned with his out-of-court statements, but rather his in-court testimony which was subject to full cross-examination. Moreover, the questioned testimony of Wright was in fact corroborated. Federal Narcotics Agent Robert J. Dunne, in answer to a specific question by the defense, testified without objection that “Robert, Helen and John Hernandez are the organization.”

IV. Withholding Evidence Favorable to Cohn

Cohn contends that the Government knew, but did not disclose to Cohn or his counsel, that Joe Silva, while a Hernandez distributor, had contacted someone named “Roy” on the telephone, and then made narcotics deliveries to that person, but positively identified the person as someone other than defendant Roy Cohn, namely, Cohn’s cousin, Irving Kipnis.

Cohn urges that had he been able to produce this testimony by Silva at the trial it would have been of utmost value to Cohn. This is true, Cohn argues, because (1) it would contradict the testimony of Donald Lannom that he trained Roy Cohn to be his replacement as distributor for the Hernandez group, (2) it would contradict the Government’s contention that Roy Cohn’s telephone number appeared in the “customer book,” and (3) Cohn could then testify that Kipnis had complete access to Cohn’s home and that the address of La Ciéne-ga and Venice, which appears in various police information sheets and on a page in the Hernandez records tied in with “Roy,” is near Kipnis’ home and office.

We start with the proposition that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215 (1963). Even the negligent suppression of evidence is not permitted, and the defendant is entitled to a new trial. United States v. Consolidated Laundries Corp., 291 F.2d 563, 570-571 (2d Cir. 1961). See also, Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967).

Here, however, while disclosure of the evidence was delayed until near the end of the trial, it was not completely suppressed, and Cohn did have an opportunity to go into the matter at the trial, but chose not to do so. Moreover, Silva’s testimony would not have been of material aid to Cohn but, in fact, would have substantially supported the Government’s case against him. See Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

The statement by Silva on which Cohn relies was unknown to the United States Attorney, but was known by a Customs agent. The latter considered it to be of no significance. Nevertheless, on April 28, 1970, two days before the case went to the jury, the agent disclosed this information to Cohn. Cohn informed his counsel of this on the night of April 29, 1970. This was before the jury was instructed on the morning of April 30, 1970.

Cohn’s counsel could have, prior to the giving of the instructions, moved to reopen the case for the purpose of receiving Silva’s testimony. However, he did not inform the trial court of this development until after the jury had been instructed, and did not then ask that the case be reopened. We are therefore left with the impression that Cohn preferred to gamble upon the jury verdict and attempted to preserve the point for appeal.

More importantly, however, Silva’s information, in conjunction with the other evidence in the case, would have shown that Silva was delivering Hernandez narcotics to Cohn, who sent Kipnis to meet Silva to receive the narcotics. Silva’s testimony would have corroborated the testimony of Lannom and Wright regarding the Hernandez conspiracy and particularly the testimony regarding the use of the code and their testimony about Cohn. In addition, this testimony by Silva would have been corroborated by his delivery book, Government exhibit 649 for identification, - which contained Cohn’s telephone number in code.

Silva’s testimony probably would not, as urged by Cohn, contradict Lannom’s statement that he trained Cohn as his replacement as distributor for the Hernandez group. This is true because Lannom could have trained Cohn after completion of Silva’s five-month service as distributor. The Government can hardly be faulted for not knowing that Cohn could have testified that Kipnis had complete access to Cohn’s home. In any event, Cohn would have had difficulty explaining how Kipnis was using Cohn’s voice'on telephone calls.

We conclude that there was no reversible error with regard to the asserted failure to disclose Silva’s information referred to above.

V. Miscellaneous Contentions by Harris

1. Sufficiency of evidence on count two. In count two of the indictment the grand jury charged that, on or about December 1, 1968, all of the defendants, including Harris, knowingly used telephone, wire and other means of communication in San Diego County in facilitating the commission of, and attempting to commit the importation, concealment, and sale of heroin and cocaine, narcotic drugs, the penalty for which offenses is provided in 21 U.S.C. § 174, in violation of 18 U.S.C. § 1403(a). As before noted, Harris was convicted on this charge as well as on the conspiracy count.

Harris argues that the evidence is insufficient to support the jury verdict on this charge. He notes that the Government presented evidence which indicated that Harris had sent two cashier’s checks to Robert Hernandez using, in one instance, a name, J. A. White, which also appeared in the Hernandez “customer book.” But Harris urges that the Government offered no evidence to relate these cashier’s checks to drug transactions. Nor was there, Harris asserts, any evidence that any drug transactions occurred as a result of any communication, writing, wire or telephone call with respect to Harris.

Testimony of Richard Wright that “Lynil” was the name used by one of the Hernandezes’ customers in calling to place narcotics orders, and evidence establishing Harris’ identity as “Lynil,” has already been examined. When Harris was arrested, in his possession were the main Hernandez telephone number and the telephone number of Juan Hernandez. From this evidence the jury might reasonably infer that Harris contacted the Hernandezes by telephone. However, there is no evidence showing that any calls made by Harris to the Hernandezes came from California.

Evidence of Bank of America cashier’s checks sent by Harris to Robert Hernandez in Tijuana will not sustain Harris’ count two conviction. There was testimony that all telephone calls made, and all Western Union money orders sent, from California to Tijuana must pass through San Diego County. But there was no such testimony with regard to mail sent from California to Tijuana.

We therefore hold that the evidence is not sufficient to support the conviction of Harris for using communication facilities in San Diego County, as charged in count two of the indictment.

2. Adequacy of foundation for introduction of exhibits 876-886 and 954-955. Exhibit 876 is a Los Angeles Police “booking card” on a Warren Lonnel Harris, listing his wife as “Elizabeth Harris.” Exhibits 877-886 are copies of ten requests from a federal prisoner by the name of “Harris,” taken from the files of the United States Department of Justice, in which documents the wife’s name was given as “Elizabeth Harris.” Exhibit 955 is a copy of an appearance bond filed by “Warren L. Harris” of 2606 West 78th Place, Inglewood, California, on February 20, 1969. This bond was filed in the instant case and it is upon this bond that Harris is currently at liberty. Exhibit 954 is a copy of an order appointing counsel in case number 4665, signed “Warren L. Harris” on December 17, 1968, and filed in the office of the Clerk for the Southern District of California. This indictment was superseded by indictment number 5108 in the instant case.

Harris argues that each of these documents is deficient as to foundation within the meaning of the decision of this court in United States v. Estrada, 441 F.2d 873, 876-877 (9th Cir. 1971).

All of these exhibits were introduced as “standard writings” or exemplars, on the basis of which the Government sought to prove the áuthenticity of certain “questioned documents,” introduced as exhibits 798, 800, 632-635, 810 and 811. The questioned documents were as follows:

Exhibit 798 — a negotiated Bank of America cashier’s cheek in the amount of $4,875.00, number 359 23861, and the associated application;
Exhibit 800 — application for Bank of America cashier’s check number 0331 20824 (exhibit 976);
Exhibits 632-635 — envelopes addressed to “Robert Hernandez, 13 Te-huacan, Tijuana B.C. Mex.”;
Exhibits 810 and 811 — handwritten address books found at the Harris residence during a search incident to his arrest.

Harris did not object to the reception in evidence of any of these “questioned documents,” on the ground that his signatures thereon had not been properly authenticated. Nor did Harris object to the introduction of the exemplar exhibits, numbers 876-886, 954-955, which he now challenges, on the ground that his signature thereon had not been properly authenticated.

Where documents purporting to bear exemplar signatures are received in evidence without objection, it may not be contended on appeal that the exemplars had not been adequately identified. See United States v. Markham, 440 F.2d 1119, 1123 (9th Cir. 1971). Here not only was there no objection to the admission of the exemplars on the ground of insufficient identification, but there was likewise no such objection to the admission of the basic exhibits concerning which the exemplars were utilized to establish authenticity. We accordingly decline to reach this contention on the merits.

VI. Miscellaneous Contentions by Turner

1. Admissibility of Western Union money orders. Turner argues that the money orders (exhibits 782 and 785) bearing the name Robert Fredericks should have been suppressed upon the ground that they were divulged to a Government agent in violation of 47 U.S.C. § 605.

A similar contention was made in the Group I Hernandez appeals, and was rejected by this court. See section IV of the opinion in United States v. Baxter, 492 F.2d 150 (9th Cir. 1973). On the same reasoning we hold this argument by Turner to be without merit.

2. Photographic identification. Turner contends that he was deprived of the right to counsel at a photographic “line-up” and that this deprived him of a “meaningful” attack upon his in-court identification by an eyewitness, contrary to his rights under the Sixth Amendment.

Ellen Domingue, night manager of Western Union in Inglewood, California, identified Turner as the person who, using the name “Robert Fredericks,” purchased two Western Union money orders, one on September 8, 1968, and the other on October 8, 1968. She had viewed this person in a well-lit business office on the two occasions of from two to five minutes each. On voir dire, Mrs. Domingue stated that a Customs agent came to her in April, 1969, to talk to her about these transactions. The agent showed her a file containing two to six snapshots of different men, and then she described Fredericks to him. The officer did not verbally or otherwise emphasize any of the photographs.

From these photographs Mrs. Do-mingue selected one, a black man with a goatee, as the “Robert Fredericks” she had waited on. Only one of the two to six pictures showed a man with a goatee, and at least one of the p'ictures showed a white man.

Just before she took the witness stand at the trial, a year and a half later, Mrs. Domingue was shown six more pictures of men, only two of whom wore beards. None of them was the picture she had selected in April, 1969, as Robert Fred-ericks. She could not identify any of them as Fredericks. However, she was shown the same photographs again while on the witness stand and then identified one as Fredericks. Turner (Fredericks) was not represented by counsel during the first two times pictures were shown to this witness.

In the courtroom, during voir dire, Mrs. Domingue identified Turner as the Robert Fredericks who had purchased the two money orders from her. Counsel for Turner objected to Mrs. Do-mingue’s identifying Turner before the jury as the Robert Fredericks who had purchased the money orders. His argument was that the prior showing of photographs to Mrs. Domingue deprived him of due process of law. The objection was overruled and Mrs. Domingue so testified before the jury.

As indicated at the outset" of the discussion of this point, Turner predicates his argument on this branch of the case primarily upon the theory that, under United States v. Wade, 388 U.S. 218, 236-237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), Turner was entitled to the presence of counsel when the photographs were shown to Mrs. Domingue. Similar contentions have repeatedly been rejected by this court. Turner cites United States v. Zeiler, 427 F.2d 1305 (3d Cir. 1970), but the Ninth Circuit has expressly refused to follow Zeiler. See United States v. Williams, 436 F.2d 1166, 1169 (9th Cir. 1970). In United States ex rel. Reed v. Anderson, 461 F.2d 739, 745 (3d Cir. 1972), the Third Circuit overruled its ruling in Zeiler concerning pretrial photographic identification.

However, Turner also argues that the photographic identification procedures here in question were impermissibly suggestive and for this reason Mrs. Do-mingue’s identification of Turner should have been excluded. This calls for application of the principles announced in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), discussed at length in section VI of our opinion in the Hernandez Group I appeals, United States v. Baxter, 492 F.2d 150 (9th Cir. 1973). We refer to the discussion in our Group I appeals opinion for a full statement of the applicable principles.

As indicated in Simmons, 390 U.S. at 383, 88 S.Ct. 967, and in our discussion in section VI of the opinion in the Group I appeals, a claim that an identification procedure is impermissibly suggestive is to “be evaluated in the light of the totality of the surrounding circumstances.”

We are here concerned only with the “totality of circumstances” concerning the initial display of photographs in April, 1969. The second display, immediately before Mrs. Domingue testified, is irrelevant for present purposes because Mrs. Domingue did not then identify any photograph as that of Robert Fredericks. The third display was in the courtroom, while Mrs. Domingue was on the witness stand, in the presence of Turner (Robert Fredericks), and his counsel.

Concerning the April, 1969, photographic display, the first standard to be applied is whether the use of photographic identification was necessary in order to connect Turner with the crime, and apprehend him. Turner was already in custody when Mrs. Domingue was first shown these photographs, so the Government failed to show necessity. However, this is not a per se ground for rejection of the identification. Where, as here, the witness testified as to the pretrial identification only in answer to questions asked by the complaining defendant, possible prejudice resulting from the lack of necessity for the pretrial photographic procedure can hardly be charged to the Government. See United States v. Fowler, 439 F.2d 133, 134 (9th Cir. 1971).

The second standard to be applied (see Simmoyis, 390 U.S. at 385, 88 S.Ct. 967), is whether there was a very substantial likelihood of irreparable misidentification. As developed in our discussion of the problem in the Hernandez Group I appeals, there are four specific indicators commonly considered in applying this standard. These indicators are: (1) the length of time and the conditions under which a witness was able to observe the perpetrator during the commission of the crime (here, during the purchase of the money orders), (2) the similarity of the description given by a witness immediately after the crime to the physical characteristics of the individual he subsequently identifies, (3) conduct on the part of the police tending to focus attention on a particular subject, and (4) presence of other witnesses at the time of the improper identification and the possible prejudicial influence of one witness’ opinion on another’s recollection. See Parker v. Swenson, 332 F.Supp. 1225, 1230-1231 (E.D.Mo. 1971).

The fourth of these indicators is not applicable here. Considering the first three in the light of the totality of circumstances concerning the April, 1969 photographic display, as reviewed above, we conclude that that display was not impermissibly suggestive. Evaluation of the probative value of Mrs. Do-mingue’s identification testimony was for the jury.

VII. Failure to Instruct as to Defendants’ Knowledge of Narcotic Character of Imported Drugs

Freedman and Cohn contend that the jury should have been instructed that it was essential to prove that they had knowledge that imported substances were cocaine or heroin. As no such instruction was requested, the failure to so instruct would not be reversible error unless it constituted plain error under Rule 52(b), Fed.R.Crim.P. Davis v. United States, 425 F.2d 673 (9th Cir. 1970).

Freedman also argues that the Government failed to prove he had such knowledge.

It was not necessary for the court to instruct in regard to knowledge of the character, as narcotics, of the imported substances. The conspiracy charge related to planned future activity. All elements of the crime of conspiring existed before any importation occurred. Defendants would have been no less guilty if there had been no importation. See Hopkins v. United States, 405 F.2d 770, 771 (9th Cir. 1969); Harney v. United States, 306 F.2d 523, 531 (1st Cir. 1962).

We therefore conclude that there was no plain error in failing to give, sua sponte, an instruction concerning defendants’ knowledge of the narcotic character of the imported substances. For the same reason we hold that there was no failure of proof in this regard.

Other contentions advanced by defendants have either been adequately dealt with in discussing similar arguments raised in the opinions disposing of the Hernandez Group I or Group II appeals, or do not have sufficient merit to warrant discussion.

The judgments of conviction and sentences on count one of the indictment in these Group III appeals are affirmed. Harris’ conviction on count two is reversed.

      . As stated in note 2 of the Group I • opinion, the defendants charged in another indictment involving the same general narcotics conspiracy were tried in a fourth trial and the appeals arising therefrom, decided today in United States v. Mickens, et al., 492 F.2d 211 (9th Cir. 1973), have been labeled the Group IV appeals.

      . The sentences imposed were as follows: Valdivia — following examination, found to be a narcotic addict and committed for treatment for a period not to exceed ten years ; Cohn — twenty years imprisonment on count one, and two years on count two, to run concurrently;' Harris • — thirteen years on count one, and two years on count two, to be served concurrently; Turner — six years on count one and two years on count two, to run concurrently ; Freedman — ten years on count one and two years on count two, to be served concurrently.

      . We allow Cohn to adopt this particular contention only because the Government has summarized in its brief the facts regarding Cohn’s participation in the Hernandez organization. We do not, however, hold that unlimited adoption would be permitted, or that selective adoption would be permitted under any other circumstances. See Fed.R.App.P. 28(a)(3), (4).

      . This section of this opinion was prepared by Judge Schnacke.

      . We have elected to overlook the fact that Valdivia did not object to the question which elicited from Wright the testimony here in question. It was only near the end of the trial that counsel for Valdivia broached the matter by moving to strike this testimony by Wright. The motion was denied. But see Darden v. United States, 405 F.2d 1054, 1055 (9th Cir. 1909); Lambert v. United States, 26 F.2d 773, 774 (9th Cir. 1928).

      . Colm implies that the Government failed to comply with pretrial discovery orders in regard to the Silva information. However, the pretrial orders required the Government to supply all “statements of witnesses whom the government intends to call at the trial.” Silva was not called as a witness at the trial.

      . 18 U.S.C. § 1403 and 21 U.S.C. § 174 were repealed, effective May 1, 1971. Pub.L. 91-513, Title III, § 1101(a)(2), (4) and (b)(1)(A), 84 Stat. 1291-1292 (1970). Section 1103 of Pub.L. 91-513 contains a savings clause covering any prosecutions commenced jnrior to May 1, 1971. 84 Stat. 1294 (1970). This prosecution was commenced February 5, 1969.

      . Harris calls attention to a stipulation entered into between the prosecution anti Harris to the effect that the telephone listed to the location where Harris was arrested was not utilized for any telephone calls to the Hernandezes’ telephone, nor to any telephone of the alleged co-conspirators.

      . As pointed out in section II of our opinion in the Hernandez Group II appeals, United States v. Murray, et al., 492 F.2d 178 (9th Cir. 1973), we could have declined to consider this question in view of the concurrent sentence rule. However, as in the Group II appeals, we have elected to deal with the point on the merits.

      . The admission of exhibit 79.8 was objected to only on the ground tlmt Harris’ right, of confrontation had been denied. The admission of exhibit 800 was objected to on that ground and on the further ground that it was not shown to be a business record. Exhibits (¡32-035 and 810-811 were objected to only on search and seizure grounds.

      . Harris objected to the introduction of exhibit 87(5 only on the grounds that it was not made in the regular course of business, and that its admission denied defendant his right of confrontation and violated his Fifth Amendment privilege, against self-inerimination. He objected to the admission of exhibits 877 through 880 only on the grounds that they were “prejudicial,’’ and denied his right to confrontation and privacy. Exhibits 954 and 955 were objected to only on the ground that they violated a court order denying the Government’s motion to force the defendants to supply exemplars.

      . See Tafoya v. Eyman, 455 F.2d 1265, 1267 (9th Cir. 1972); United States v. Washabaugh, 442 F.2d 1127, 1130 (9th Cir. 1971); United States v. Williams, 436 F.2d 1166, 1169 (9th Cir. 1970); United States v. Roustio, 435 F.2d 923, 924 (9th Cir. 1970); Allen v. Rhay, 431 F.2d 1160, 1167 (9th Cir. 1970). But see United States v. Ash, 149 U.S.App.D.C. 1, 461 F.2d 92, cert. granted, 407 U.S. 909, 92 S.Ct. 2436, 32 L.Ed.2d 682 (1972).

      . Mrs. Domingue was not the only witness to tie Turner in with the Western Union money orders. The Government’s handwriting expert testified that it was highly probable that Turner’s handwriting is on both of the money orders.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lloyd Allen MICKENS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Tommy J. WAGNER, Defendant-Appellant. HERNANDEZ CASES. Group IV Appeals.
    Nos. 26560, 26561.
    United States Court of Appeals, Ninth Circuit.
    Feb. 16, 1973.
    Rehearing Denied Oct. 18, 1973.
    Certiorari Denied May 13, 1974.
    See 94 S.Ct. 2398.
    Jonathan K. Golden (argued), Burton Marks, Beverly Hills, Cal., William J. Zumwalt, San Diego, Cal., for defendants-appellants.
    James W. Meyers, Asst. U. S. Atty. (argued), Phillip W. Johnson, Sp. Asst. Atty. Gen., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before HAMLEY and CHOY, Circuit Judges, and SCHNACKE, District Judge.

       The Honorable Robert H. Schnacke, United States District Judge for the Northern District of California, sitting by designation.

   HAMLEY, Circuit Judge:

This is the fourth and final opinion involving the so-called Hernandez narcotics conspiracy. In United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, which pertains to the Hernandez Group I appeals, we have stated in some detail the general background of this litigation. Two other opinions, also filed today, involved the Hernandez Group II appeals, United States v. Murray, et al., 492 F.2d 178 (9th Cir. 1973), and the Hernandez Group III appeals, United States v. Valdivia, et al., 492 F.2d 199 (9th Cir. 1973).

Those three appeals arose from three separate trials involving defendants charged under a single indictment. The appeals now before us arise from a fourth trial under a second indictment pertaining to the same general Hernandez narcotics conspiracy.

Count one of the indictment here in question charged that, beginning at a date to the grand jury unknown and continuing to on or about February 5, 1969, Lloyd Allen Mickens, Tommy J. Wagner, Frank Lloyd Wilson, Robbie Edwina Berry, Robert Hernandez and Helen Hernandez, together with unindicted eo-con-spirators Donald Lannom, Roy Cohn and Richard Wright, and divers other persons to the grand jury unknown, conspired to violate 21 U.S.C. § 174, by knowingly importing heroin and cocaine into the United States from Mexico, and by thereafter selling, concealing, and facilitating the transportation of such drugs. Count two charged that on or about November 12, 1968, these six defendants knowingly caused the use of telephone, wire, and other means of communication facilities in San Diego County, in facilitating the commission of, and attempting to commit, the importation, concealment, and sale of hereoin and cocaine, the penalty for which offense is provided in 21 U.S.C. § 174, in violation of 18 U.S.C. § 1403(a).

The two Hernandez defendants who resided in Mexico were not apprehended. The charges against Wilson and Berry were severed for separate trial. The trial proceeded against Mickens and Wagner. The trial court dismissed the second count as to both. The jury found both guilty as charged on the conspiracy count. The trial court sentenced both Mickens and Wagner to eight years imprisonment. Each appealed and we consolidated their appeals for argument and disposition.

I. Points Discussed in Other Hernandez Opinions

In these Group IV appeals, defendants argue that the documents taken from the Hernandez home in Mexico were inadmissible evidence for various reasons. Similar contentions were fully discussed, and rejected, in section II of our opinion in the Group I appeals. For the reasons stated in the Group I opinion, we hold these contentions to be without merit. Defendant Wagner also adopts the arguments made on appeal on behalf of all other appellants in the Group I, II and III appeals insofar as the conspiracy convictions were concerned. As indicated by our opinions filed today in those appeals, all such arguments have been rejected.

II. Sufficiency of Evidence to Prove Conspiracy Count

Defendants contend that the evidence was insufficient to support the jury verdict convicting them on the conspiracy count.

At the outset of section I of our opinion in the Group I appeals, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, we discussed the general considerations to be borne in mind in dealing with challenges to the sufficiency of the evidence to support conspiracy charges. What we there said is equally applicable here and is to be considered as introductory to the following review of the evidence pertaining to Mickens and Wagner.

Under the evidence considered in the light most favorable to the Government, the jury could reasonably have found the background facts pertaining to the Hernandez narcotics operation to be substantially as described in our opinion in the Group I appeals. With particular reference to defendants Mickens and Wagner, the jury could reasonably have found the facts to be as set out below.

One of the pages in the Hernandez “customer book” was headed “Tom— Robert Jones.” The customer was “Tom.” “Robert Jones” was the name used by this customer in sending a cashier’s check or money order. This person could be contacted at telephone number 296-5906. The page also included two other telephone numbers, 294-7359 and 291-6842. The only typing on this page reads as follows:

“Tom — Robert Jones
“294-7359 IYE-DMOY”

Telephone number 294-7359 was the number of Robbie Berry, residing at Apartment 14, 3959 Gibraltar Avenue, Los Angeles. Mickens also had an apartment at 3959 Gibraltar. In early October, 1968, Mickens asked Robbie Berry if he could use her telephone for incoming calls. She granted his request. He received these calls under the name of “Tom,” and was the only one who used that telephone under the name of “Tom.” Mickens would utilize a notebook as he talked on the telephone during these calls, jotting down whatever he wished to record concerning the call.

Mickens received three “Tom” calls on this telephone in October. The first of thse was in mid-October, the second about the third week of October, and the third about October 30th. The Hernandez “customer book” shows that “Tom” was debited for seven ounces of heroin on October 19th and eight ounces on October 30th, for a total sales price of $4,-875. Mickens was arrested on December 8, 1968. At the location of his arrest, a Customs agent found a notebook containing various telephone numbers, including 294-7359.

On January 22, 1969, Mickens knocked on Robbie Berry’s apartment door. Bobby Sanders, a visitor, opened the door and told Mickens Miss Berry was not there. Mickens pushed Sanders out of the way and walked into the bedroom, where he found Miss Berry. Mickens swore at her and said:

“You turned me over to the people, the customs agency and the police, and for something that I didn’t have anything to do with and you will be turned over to the syndicate!”

Miss Berry told Mickens that she was going to call the police. However, he pushed and slapped her, and took the telephone away from her.

There was other testimony connecting Mickens to telephone number 291-6778, which was that of Mrs. Mickens prior to her marriage. Three long-distance telephone calls were made from this number to the Hernandez residence in Tijuana, Mexico, on November 25, 1968. This Hernandez number was at that time being used by Richard Wright in his narcotics work for the Hernandezes. The Hernandez “customer book” shows that a debit for five ounces of narcotics was entered for “Tom” on November 23rd and that the sum of two thousand one hundred dollars was credited to “Tom’s” account on November 28.

One of the telephone numbers listed on the “Tom — Robert Jones” page of the “customer book” was 296-5906. This was the number of Frank and Constance Wilson, Apartment 19, 3919 Ursula, Los Angeles. In August or September, 1968, eodefendant Wagner obtained Mrs. Wilson’s permission to receive calls over this telephone. Upon at least four occasions calls came in for “Tom,” and Mrs. Wilson would contact Wagner and have him come to the telephone.

Wagner had his own telephone at the time, located in his apartment, which was Apartment 18 at 3919 Ursula. Wagner was the apartment house manager. Mrs. Wilson came home on one occasion and found her telephone in Wagner’s apartment, the long extension cord passing through the entrance of both apartments. Wagner later admitted to Mrs. Wilson that he had made a call to Tijuana over her telephone, and he offered to pay the rent on the Wilson apartment. Miekens would sometimes visit Wagner’s apartment.

The “Tom — Robert Jones” page in the “customer book” also contained the telephone number 291-6842, which had been lined out. This number was listed to “Robt Wagner,” 3919 Ursula, Apartment 18, Los Angeles. In late November, this number was changed to 291-4101. Records for these numbers show a total of thirty-one long distance calls to 386-2075 in Tijuana. This was one of the two telephones utilized by Richard Wright in his Hernandez narcotics work.

Two of the Tijuana calls occurred on November 28, and another on November 29. “Tom” was debited in the “customer book” with seven ounces of narcotics on November 29. The next Tijuana call from the “Robt Wagner” telephone occurred December 2, and the next “Tom” entry in the “customer book” is December 3, for seven ounces of narcotics.

Wagner was arrested on April 8, 1969. At this time there was discovered in his apartment money order receipts showing that “Robert Jones” sent a total of four thousand nine hundred dollars to Robert Hernandez in Tijuana. Two of these show a total of three thousand three hundred dollars sent on November 12, 1968. The “Tom — Robert Jones” page in the “customer book” shows that this payment was credited to “Tom’s” account on November 13, involving a November 11 purchase of ten ounces of heroin for three thousand two hundred fifty dollars. There was also found in the Wagner apartment at this time, a bag containing rubber balloons. There was a small amount of heroin residue upon the outer surface of some of the balloons. Rubber balloons are utilized for the storage and sale of heroin and cocaine.

By use of expert testimony and handwriting exemplars by Wagner, it was established that, using the name “Robert Jones,” he applied for money orders sent to Robert Hernandez, in Tijuana, as follows:

$1,625 March 2,1968
$1,000 March 17, 1968
$1,625 June 18, 1968

The background evidence pertaining to the Hernandez narcotics conspiracy was essentially the same in all four of the trials which resulted in the four appeals being disposed of today. Having in view this background evidence, as summarized at the outset of our opinion in the Group I appeals, and that which relates specifically to Miekens and Wagner as reviewed above, we believe the jury could reasonably find that Miekens and Wagner must have known that other retailers, in addition to themselves, were involved with the Hernandez organization in a broad project for the smuggling, distribution and retail sale of narcotics. As we have likewise concluded in the Group I, II and III appeals with respect to other defendants, the jury could also reasonably find that Miekens and Wagner must have realized that the benefits they and other retailers derived from the operation were dependent upon their mutual participation therein.

■ These basic findings, as we have said in the other Hernandez opinions being filed today, are ample to support the jury determination that Miekens and Wagner, in effect, agreed to participate in the single, over-all scheme, and did participate therein. See Blumenthal v. United States, 332 U.S. 539, 557, 558, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Friedman, 445 F.2d 1076, 1080 (9th Cir. 1971); Daily v. United States, 282 F.2d 818, 820 (9th Cir. 1960).

III. Search and Seizure at Wagner’s Apartment

Defendant Wagner asserts that the search of his apartment following his arrest there on April 8, 1969, violated his rights under the Fourth Amendment. His motions to suppress money orders, rubber balloons and telephone bills seized during the search were denied.

In section V of our opinion in the Group I appeals, United States v. Baxter, et al., 492 F.2d 150 (9th Cir. 1973), filed today, we discussed the rules governing searches and seizures occurring prior to the decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The circumstances surrounding the arrest of Wagner and the search of his apartment are not legally distinguishable from those involved in the arrests and searches of the Group I defendants. We therefore conclude that the search of Wagner’s apartment and the seizure of the evidence noted above were lawful, and such evidence was properly received at the trial.

IV. Prejudicial Effect of Testimony concerning One Grain of Heroin Found at Wagner’s Apartment

Rosalind Ereneta, chief chemist of the San Diego section of the Los Angeles Customs laboratory, testified that the Government's exhibit 22 is a bag which contained numerous colored balloons. She further testified that on some of these balloons there was a powdery substance which, upon microscopic examination, was found to be heroin hydrochloride. The amount was less than one grain, which is equivalent to a tenth of a gram. The small amount of powder was consumed in the analysis.

Wagner argues that the relevance, ma-ateriality and probative value of this “almost indiscernible” amount of heroin was so infinitesimal with regard to the conspiracy and substantive counts of the indictment that it was completely outweighed by the prejudicial effect of such evidence. Wagner thus invokes the familiar rule that it is error to receive, over objection, evidence the relevance of which is slight as compared to its prejudicial character. See Courtney v. United States, 390 F.2d 521, 528 (9th Cir. 1968). In asserting the lack of probative value of this testimony, Wagner refers to a California decision, People v. Fein, 4 Cal.3d 747, 94 Cal.Rptr. 607, 484 P.2d 583 (1971), for the proposition that evidence of useless traces of residue of narcotic substances does not constitute sufficient evidence to sustain a conviction for possesssion of narcotics.

We need not decide whether the Fein decision states the rule applicable in federal courts, since Wagner was not charged with possession of narcotics. Under count one of the indictment he was charged with conspiring to smuggle narcotics into the United States for distribution and retail sale. Customs Special Agent Melvin Paulson testified that rubber balloons are used for the storage of heroin and cocaine for sales purposes. The testimony that a Government chemist found heroin residue on balloons found in Wagner’s apartment was obviously relevant and had substantial probative value in proving the conspiracy charge. The trial court did not err in admitting this testimony.

The judgments of conviction and sentences in these Group IV appeals are affirmed.

      . See note 1, United States v. Baxter, et al., 492 F.2d 178 (9th Cir. 1973) regarding the repeal of 18 U.S.C. § 1403 and 21 U.S.C. § 174, with savings clause.

      . We have elected to deal with this contention on the merits notwithstanding the fact that counsel for Wagner waited until the chemist had completed her testimony before making any objection, and then moved to strike her testimony on the sole ground that it constituted prejudicial hearsay.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Ralph REDWOOD, Appellant.
    No. 73-1708.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 8, 1974.
    Decided Feb. 5, 1974.
    Robert E. J. Curran, U. S. Atty., Gilbert J. Scutti, Asst. U. S. Atty., for appellee.
    Edward H. Weis, Mark D. Schaffer, Vincent J. Ziccardi, Philadelphia, Pa., for appellant.
    Before ADAMS, HUNTER and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

The sole issue on this appeal is whether the district court erred in refusing to instruct the jury that the “procuring agent” or “purchasing agent” theory was a valid defense to the criminal charge of unlawful distribution of heroin under 21 U.S.C. § 841(a).

Appellant correctly observes that under prior law a person could not be convicted of “selling” narcotics if he were acting solely on behalf of the purchaser. United States v. Sawyer, 210 F.2d 169 (3d Cir. 1964). Under the present law, however, the conduct proscribed is “distribution” rather than “sale” of a controlled substance. We believe that this change of language clearly precludes the use of the “procuring agent” or “purchasing agent” defense. Accord, United States v. Johnson, 481 F.2d 645 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044 (9th Cir. 1973); United States v. Workopich, 479 F.2d 1142 (5th Cir. 1973).

The order of the district court will be affirmed.

      . Appellant argues that he was acting solely on behalf of the purchaser and thus not within the proscription of 21 U.S.C. § 841(a).

      . See 21 U.S.C. § 841(a).

      . The act defines “distribute” to mean “to deliver ... a controlled substance” and defines “deliver” as the “transfer of a controlled substance, whether or not there exists an agency relationship 21 U.S.C. § 802(8), (11) (emphasis added).


author: HAYS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Jose Torres CRUZ et al., Appellants.
    Nos. 587, 588, Dockets 73-2654, 73-2655.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 21, 1973.
    Decided Feb. 28, 1974.
    Certiorari Denied June 3, 1974.
    See 94 S.Ct. 2649.
    Randolph C. Roeder, Asst. U.S. Atty., D. Conn., Bridgeport, Conn. (Stewart H. Jones, U. S. Atty., D.Conn., Bridgeport, Conn., on the brief), for appellee.
    Mark Lemle Amsterdam, Center for Constitutional Rights, New York City, for appellants.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the District of Connecticut convicting both appellants on a one-count indictment charging possession of unregistered firearms, “Molotov cocktails,” in violation of the National Firearms Act, 26 U.S.C. § 5861(d) (1970). Appellants were sentenced to terms of imprisonment of eighteen months to be suspended after the first six months.

The proceeding appealed herein was the second trial on these indictments. At the first trial the appellants were both convicted by a jury and sentenced to terms of five years. They appealed, claiming that certain statements made by the trial judge were prejudicial. We affirmed, 455 F.2d 184 (2d Cir.), and the Supreme Court denied certiorari, 406 U.S. 918, 92 S.Ct. 1769, 82 L.Ed.2d 117 (1972). The appellants thereafter moved the district court for a new trial claiming newly discovered evidence of their innocence. The evidence consisted of four eye-witnesses who would testify that they were so situated' that they were able to see the events charged in the indictments, and that they did not see the appellants throw Molotov cocktails. Judge Newman ordered a new trial. It is from their conviction at the second trial that appellants now appeal.

I. District Court Proceeding.

A. The Government’s Case.

Four of the government’s witnesses were Hartford, Connecticut, police officers. Each officer testified that he was part of a special unit assigned the mission of isolating and arresting snipers during civil disorders which took place in Hartford on June 20, 1969. At about 11:00 P.M. on June 20, the four officers were riding in an unmarked police car following about 100 feet behind a marked police cruiser. As the marked car went through an intersection, two Molotov cocktails were thrown at it, landing behind it. The unmarked car came up to the intersection and two officers leaped out and arrested the appellants. All four officers identified the appellants as the persons who threw the Molotov cocktails. Two officers, Hopkins and Telesky, testified that they did not take their eyes off the appellants from the time they saw them throw the fire bombs to the time they arrested them.

The government also introduced, over the appellants’ objection, a certificate of non-registration from the Bureau of Alcohol and Firearms, showing that the custodian of Bureau records had searched Bureau files, and that there was no evidence of the Molotov cocktails in question having ever been registered.

B. The Defense Case.

The defense called two witnesses. Leroy Carter was in his butcher store directly across from the place where the incident took place on June 20. He testified that although he was observing the street at 11:00, he did not see any fire bombs being thrown. Evelyn Rodriguez was a tenant in a building facing the intersection in which the appellants were apprehended, the same building in which the appellants lived. She testified that she watched Torres’s family leave their car and go into their house, and that Torres drove the car behind the building. When he returned to the street on foot, she saw Torres and Yega being arrested. She did not see them throw Molotov cocktails.

II. Claims of Error.

A. Section 5845(f).

Appellants claim that the indictment on which they were convicted does not state an offense because Molotov cocktails are not within the Firearms Act.

One of the types of weapon coming within the registration provision of the Act, 26 U.S.C. § 5841 (1970), is the “destructive device,” which is defined as follows:

“The term ‘destructive device’ means (1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade . or (F) similar device . . . .”26 U.S.C. § 5845(f) (1970) (emphasis added).

Appellants argue that a Molotov cocktail is not an incendiary bomb, grenade or similar device. We find this argument to be without merit. If we are to give section 5845(f) the ordinary meaning of its language, a Molotov cocktail must come within its scope. In so holding, we follow the explicit examples of the Fifth Circuit in United States v. Ross, 458 F.2d 1144 (5th Cir.), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972), and of Judge Timbers in United States v. Davis, 313 F.Supp. 710 (D.Conn.1970), and this court’s suggestion in United States v. Posnjak, 457 F.2d 1110, 1119 n. 10 (2d Cir. 1972).

Appellants further contend that the language in the indictment charging them with possessing “destructive devices known as incendiary bombs in the form of ‘Molotov cocktails’ ” requires the Government to prove that Molotov cocktails are incendiary bombs, rather than “grenades” or “similar devices.” We disagree. The indictment adequately charged possession of a destructive device under § 5845(f), and its failure to recite each of the possible statutory categories does not restrict its proof that Molotov cocktails are within the proscription of the Act.

The appellants refer to the legislative history of the Firearms Act. They contend that Molotov cocktails are in none of the three categories of weapons that were intended to be regulated by Congress: weapons subject to interstate commercial sale, heavy military weapons of great destructive capability, and objectively destructive devices. While we express no opinion as to whether these categories exhaust the possibilities under the Act, it is clear that Molotov cocktails are objectively destructive. We recognized in United States v. Posnjak, supra, that the legislative history of the Firearms Act indicates that it requires registration of objectively destructive devices, devices inherently prone to abuse and for which there are no legitimate industrial uses. The Act thus clearly encompasses Molotov cocktails, since they have no use besides destruction. We are not persuaded by appellants’ disingenuous argument that Molotov cocktails are structurally congruent with lanterns or with paint cans covered with rags, and that they are therefore not objectively destructive. As we observed in Posnjak, a Molotov cocktail is “a crude but well-known variety of incendiary bomb,” 457 F.2d at 1119; it could not be mistaken for a lantern or paint can. And we do not accept appellants’ suggestion that Congress intended section 5845(f) only to require registration of such rare devices as white phosphorous bombs, while overlooking the common garden species of Molotov cocktail.

Appellants also point to acts of Congress besides the Firearms Act in support of their position. For example, they make much of the fact that section 209 of the District of Columbia Court Reorganization Act of 1970, 84 Stat. 473, explicitly prohibits possession of Molotov cocktails within the District. See D.C. Code § 22-3215a(a) (Supp.IV 1971). From this fact, they infer that Congress was knowingly filling a gap in the Firearms Act, that is, that the Act was not meant to require registration of Molotov cocktails. We disagree. Section 209 is not limited to Molotov cocktails, but proscribes the manufacture, transfer, use, possession or transportation of “any device . . . designed to explode or produce uncontained combustion, with the intent that the same may be used unlawfully against any person or property.” Virtually all forms of explosive devices included within section 5845(f) thus also fall within the reach of section 209. Congress apparently desired to legislate against Molotov cocktails and other explosive devices directly under the District of Columbia power where it was available, but chose to resort to registration under the taxing power for nation-wide applicability.

B. Other Claims.

Appellants claim that requiring registration of Molotov cocktails violates the self-incrimination clause of the Fifth Amendment. Since we have determined that a Molotov cocktail is an objectively destructive device, the registration requirement poses no self-incrimination problems. United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

The appellants insist that the certificate of non-registration was inadmissible hearsay, and that its admission denied them their Sixth Amendment right of confrontation. But it is abundantly clear that Rule 27 of the Federal Rules of Criminal Procedure, and Rule 44(b) of the Federal Rules of Civil Procedure create an exception to the hearsay rule for a statement that a diligent search of a record discloses no entry of a specified tenor. It is also clear that the Sixth Amendment does not limit the exceptions to the hearsay rule to those existing in 1791. The justification for a new exception is particularly evident in a case like the present, where the hearsay is reliable, and where the practical need for it is great.

Finally, we find no merit in the appellants’ contentions that there was not sufficient evidence to go to the jury, that the government failed to disclose the contents of the pre-sentence report from the first trial in violation of the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the appellants were not allowed sufficient questions in the voir dire of their veniremen.

Affirmed.

      . A “Molotov cocktail” is defined as a “crude hand grenade made of a bottle filled with a flammable liquid (as gasoline) and fitted with a wick or saturated rag taped to the bottom and ignited at the moment of hurling.” Webster’s Third New International Dictionary 1456 (3d ed. 1961).

      . The appellants make much of the fact that there were contradictions in the testimony of the officers. These contradictions go to the weight of their testimony. Evaluating the weight of conflicting testimony was properly in the province of the jury.


author: HASTINGS, Senior Circuit Judge.

text:
    Lawrence RASSANO, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
    No. 16714.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 28, 1973.
    Decided Feb. 21, 1974.

      Maurice J. Walsh, Anna R. Lavin, Chicago, Ill., for petitioner-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., Richard C. Owens, George W. Masterton, Crim. Div., U. S. Dept. of Justice, Washington, D. C., for respondent-appellee.
    Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.

       Senior United States Circuit Judge Clifford O’Sullivan of the Sixth Circuit is sitting by designation.

   HASTINGS, Senior Circuit Judge.

In Rassano v. Immigration and Naturalization Service, 7 Cir., 377 F.2d 971 (Dec. 13, 1966), we considered the petition of Lawrence Rassano to review and set aside an order of his deportation and an order denying his request for suspension of deportation. A division of our court hearing the same denied such petition and affirmed both orders.

On February 1, 1967, petitioner filed his petition for a rehearing by virtue of three decisions of the Supreme Court handed down after our court had affirmed the orders of the Immigration and Naturalization Service. These decisions were Woodby v. Immigration and Naturalization Service, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362 (Dec. 12,1966); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (Jan. 16, 1967); and Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (Jan. 16, 1967). Respondent INS answered and stated that the case should be remanded to the Board of Immigration Appeals (the Board) for reopening and further determination in view of these three decisions of the Supreme Court. We concurred in these suggestions and vacated our orders and remanded the cause as requested for further proceedings. Rassano, supra, 377 F.2d at 975.

The entire review and remandment proceedings are reported as above indi-eated and are incorporated herein by reference.

DEPORTABILITY

In Woodby, supra, 385 U.S. at 283-286, 87 S.Ct. 483, 17 L.Ed.2d 362, the Court noted that the standard of review previously adopted by the Board in determining the validity of a deportation order was whether there was “reasonable, substantial, and probative evidence” to support it. The Court rejected this standard., Instead, the Court said: “We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.” 385 U.S. at 286, 87 S.Ct. at 488 (emphasis added).

In Spevack, supra, 385 U.S. at 514, 87 S.Ct. 625, 17 L.Ed.2d 574, and in Garrity, supra, 385 U.S. at 496-498, 87 S.Ct. 616, 17 L.Ed.2d 562, the Court held that no inference may be drawn against one who chooses to exercise his right to remain silent. It appeared in the instant case that the special inquiry officer had prejudicially considered that petitioner had declined to answer questions before a grand jury on a claim of privilege.

On remand the Board rejected petitioner’s contentions that the special inquiry officer, as the hearer of the facts, should initially determine whether the INS has sustained its burden of proof as to deportability by clear, unequivocal and convincing evidence, and whether denial of disci’etionary relief is justified.

The Board reconsidered both issues on the record as it stood and on August 29, 1967, held on the issue of deportability “that the [petitioner] has not met his burden of proving he is a United States citizen, that the Service has established by competent evidence that is clear, convincing and unequivocal that the [petitioner] is an alien and that he was convicted after entry of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct.”

On its face, this appears to be a restatement by the Board of its prior holding couched in the language of the Supreme Court and not much else.

Further, the Board stated that “[o]n the issue of suspension of deportation, we find, without drawing an adverse inference from the [petitioner’s] failure to testify before a grand jury, that his connection with gambling and questionable associates, viewed in light of his criminal background, require the finding, despite favorable factors of record, that he has failed to establish he is a person of good moral character or that he is worthy as a discretionary matter of the privilege of the suspension of his deportation.” The Board thereupon ordered that no change be made in its prior order.

In all candor, we feel compelled to observe that in further following the mandates of the Supreme Court on petitioner’s right to silence, the Board appears merely to have given lip service to this requirement but otherwise left its findings and orders unchanged.

On February 8, 1968, petitioner again sought review in this court of the Board’s latest final order of August 29, 1967. Subsequently, however, the Board granted petitioner’s motion to reopen the deportation hearing because of changed circumstances arising from the death of petitioner’s younger son in March 1968 while on duty in Vietnam. After a further hearing and a new decision by the special inquiry officer adverse to petitioner, the Board, on April 2, 1973, dismissed an appeal therefrom and again ordered that petitioner be deported pursuant to its order of August 29, 1967.

We now have before us for review the final orders of the Board entered August 29, 1967 and April 2, 1973. Thus, since our original opinion in this case was. handed down on December 13, 1966, this matter has been in litigation for 6 years, 9 months and 15 days until final argument here on September 28, 1973.

At the outset it must be said that in the light of Woodby, we entertain serious doubts as to the validity of the Board’s determination of deportability without first requiring a fact-finding decision by the special inquiry officer. See Rodriques v. Immigration and Naturalization Service, 3 Cir., 389 F.2d 129, 132-133 (1968); Waziri v. Immigration and Naturalization Service, 9 Cir., 392 F.2d 55, 57 (1968).

We have examined each of the many cases which have cited Woodby. In the various remandments for reconsideration a wide variety of actions have been taken by the Board and almost all have been approved on subsequent review by the federal courts of appeal. It is quite clear that Woodby applies only to a deportation proceeding and not to the exercise of discretionary relief by the Attorney General. See Hyppolite v. Immigration and Naturalization Service, 7 Cir., 382 F.2d 98, 99 (1967). In the initial decision in Rassano, supra, our court found and held that petitioner was de-portable. 377 F.2d at 974. No additional evidence was offered at the Board hearing on remand relating to petitioner’s deportability.

Without further considering this question in the instant appeal, we accept the fact that in this case Rassano has been properly found to be deportable, and that part of the order appealed from is affirmed.

DISCRETIONARY RELIEF

The next and more important question for consideration is whether the Attorney General abused his discretion in denying petitioner’s application for the discretionary suspension of deportation under Section 244(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(2). This section of the Act provides that an alien in petitioner’s situation is subject to consideration for such discretionary relief provided that he “has been physically present in the United States for a continuous period of not less than ten years immediately following the commission of an act, or the assumption of a status, constituting a ground for deportation, and proves that during all of such period he has been and is a person of good moral character; and is a person whose deportation would, in the opinion of the Attorney General, result in exceptional and extremely unusual hardship to the alien or to his spouse, parent, or child, who*is a citizen of the United States or an alien lawfully admitted for permanent residence.”

The Service concedes that petitioner has met the ten-year continuous residence requirement. However, at the conclusion of the several reopened hearings, the special inquiry officer considered the entire record and found that “[a]part from the tragic loss of the respondent’s son in Vietnam, the evidence in these reopened hearings is merely more of what went before,” and denied the suspension of deportation as a matter of administrative discretion.

On appeal, the Board noted that the special inquiry officer had made no finding this time whether petitioner was a person of good moral character or whether exceptional and extremely unusual hardship would result. He had previously found the existence of the requisite hardship but had concluded petitioner was not a person of good moral character, and was therefore ineligible as a matter of law and did nH warrant the exercise of discretion in this case. The Board examined the new evidence de novo and agreed in all things with the special inquiry officer, dismissed the appeal and ordered petitioner deported to Italy. The instant petition for review followed.

We have carefully examined the entire record presented to us, including the documentary evidence in the supplemental certified administrative record. We have considered in detail the contentions of the parties and the authorities cited. We submit that the following summary is factually correct.

Petitioner Lawrence Rassano, a native and national of Italy, arrived in the United States with his parents on May 1, 1914, and was admitted for permanent residence. He was then at the age of about six months. He has lived in this country continuously since that date and has never returned to Italy and does not speak the Italian language. He has no known friends or relatives abroad. He was under the impression that his father had become a naturalized citizen of this country but was unable to establish this fact.

He married a United States citizen and to this union were born two citizen sons, viz.\ Robert, born July 16, 1943, and William, born May 9, 1947. His wife suffered a terminal illness of leukemia for two years and died July 27, 1959, at which time Robert was age 16 and William was 12. Mrs. Rassano was buried in the Chicago area. During her terminal illness, petitioner maintained their home, did the cooking, laundry and cleaning and cared for his wife who was bedridden for a period prior to her death.

Following the death of his wife in 1959, petitioner’s oldest son, Robert, married and resettled. Petitioner’s other son, William, continued to live with him until he joined the United States armed forces in mid-1967. He was sent on active duty to Vietnam as a member of the 25th Infantry Division. While on a search and destroy mission near Saigon he was killed in ambush by enemy fire on March 2, 1968. His remains were returned to this country and he was given a military burial next to his deceased mother in Mount Carmel Cemetery. Petitioner frequently visits the graves of his deceased wife and son and cares for them.

Following his son William’s death, petitioner received letters of profound sympathy and words of praise from William’s Company Commander; the Commanding General of the 25th Division; the Chief of Staff of the United States Army; the Commanding General of the armed forces in Vietnam, General W. C. Westmoreland; President Lyndon B. Johnson; Governor Otto Kerner; Senator Charles H. Percy; the Secretary of the Army; and other state and municipal officials.

After William’s death, petitioner’s son Robert and his family moved in with petitioner in the home which he owns in Berwyn, Illinois, where they have since lived together for comfort and company. Robert pays no rent but helps maintain the house.

The record shows and petitioner concedes that in 1934 he was convicted of the offense of robbery and was sentenced to a prison term of from one year to life, but actually was required to serve only six months of that sentence. He also admits that he was convicted in 1952 of the crime of burglary and sentenced to five years’ probation and was never required to suffer imprisonment during such period of probation. Petitioner has had no subsequent convictions during the past 21 years.

The Immigration and Naturalization Service conducted investigations of petitioner’s life habits, employment, associations, acquaintances, ownership of his home, income, investments and general moral character. It was furnished with pertinent documentary material, viz.: income tax returns, financial statements and affidavits of petitioner’s neighbors attesting to his good moral character.

All of the foregoing hearings and reopened hearings were conducted by the same special inquiry officer, whose recommendations were approved by the Board. Petitioner has been represented throughout these proceedings by the same attorneys.

The final conclusion reached by the Service was that, although petitioner’s deportation would result in exceptional and extremely unusual hardship to him, yet petitioner had failed to establish that he' was a person of good moral character and that he warranted the favorable exercise of the Attorney General’s discretion in this case. The appeal for discretionary relief was denied.

We-have made a meticulous and extended examination of the determinations made by the special inquiry officer and the Board and feel compelled to conclude that there has been an abuse of discretion in the denial of discretionary relief to petitioner. We are convinced that a mistake has been made.

. This case is completely unlike the usual and frequent cases where we are asked to review the denial of discretionary relief under Section 243(h) of the Immigration and Nationality Act. The cases are legion where we have upheld the Board. See, e. g., Hyppolite v. Immigration and Naturalization Service, 7 Cir., 382 F.2d 98 (1967); Lena v. Immigration and Naturalization Service, 7 Cir., 379 F.2d 536 (1967).

In the usual case we find an alien applying for admission to. this country as a matter of his own choice. He represents that he seeks admission for a stated purpose. He may then be admitted for a fixed period of time for such purpose, and often at the request of his native government. The alien likes what he finds here and wants to stay. As a matter of grace he is either granted or denied such relief. The courts have bent a sympathetic ear to the discretion vested in the Attorney General, even though it frequently becomes a contest between the alien and the Service on how long the proceedings may be protracted.

In the instant case, however, we find a six months old baby, born in Italy, brought here by his parents to live a rather full lifetime and grow up to become a creature of the environment of the United States. He had no choice in the matter. He knows no other country. He has no relatives in Italy. They all live here and are citizens of this country. He does not speak the Italian language. He has only a meager education and no particular trade or skill. He gets such work as he can with the handicap of an old criminal record.

Beginning with the issuance of the original show cause order by the Service on January 26, 1961, this matter has been in litigation for a period of almost 13 years. Cutting through the maze of debris leading to the final administrative determination, we find some things to be self-evident.

Petitioner’s two criminal convictions have grown rather stale after 39 and-21 years, respectively. There have been a few other arrests without a conviction. The inescapable truth is that he has served a total of six months in prison during his lifetime. He is now more than 60 years of age.

He has worked as a “general manager” in at least two cafe lounges with girl entertainers for four years at a compensation of $150.00 per week. The special officer found petitioner’s story of his weekly wages to be “unbelievable.” He also found petitioner’s testimony as to his other activities to be “so vague, evasive and fantastic as to be unbelievable, except where it is corroborated.” These findings demonstrate “an incredulity not of the witness, but of the story itself.” See United States ex rel. Exarchou v. Murff, 2 Cir., 265 F.2d 504, 507 (1959). The officer could not believe it possible that a man who so spoke could have a good moral character. In our judgment, we do not believe that “this finding of impossibility accords with the facts of human life.” Id.

Petitioner had the burden of establishing that he was and now is a person of good moral character during the ten-year period as required in Section 1254(a)(2), supra. On brief, the Service concedes that this section is none too clear as to when the ten-year period is to begin. It concluded that Congress meant the period immediately preceding the date of the suspension application, which was May 22, 1963. However, the Service agrees that granting petitioner’s request in May of 1968 for reconsideration of that application had the effect of updating the ten-year period. But we further agree that petitioner’s conduct prior to the ten-year period may properly be considered in determining whether petitioner was a person of good moral character throughout the requisite period and still is such a person.

Petitioner admitted that he had been a friend of one Joseph Aiuppa for more than 20 years and was frequently in his company. Petitioner testified that he does not work for Aiuppa, but often drives him in petitioner’s car as a personal courtesy and helps with Aiuppa’s yard work, all without compensation. The special officer characterized Aiuppa as “the notorious Joey Aiuppa.” It was shown that Aiuppa had been convicted once of illegally transporting mourning doves across state lines. The officer also considered and credited, over objection, a portion of a report of Hearings before the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations held May 22, 1963. This portion contained an affidavit of the Cook County (Illinois) State’s Attorney’s chief investigator that Aiup-pa was a notorious hoodlum and gangster in the Chicago area engaged in the business of prostitution and gambling. Aiuppa’s interest in several named “Lounge” activities was shown. Newspaper publicity concerning Aiuppa was introduced and considered.

Petitioner was shown to have been employed in certain of these entertainment businesses at times. He was shown to have owned at one time for several months a small interest in a place called the Frolics in which Aiuppa was a part owner. Petitioner was also shown to have owned about 30 shares in a place called the Towne Hotel, but nothing came of the purchase of these shares. The Towne Hotel was said to have been known as a center of prostitution and gambling.

Based upon additional reported incidents and petitioner’s disclosures it was established that in 1964 petitioner had $8,400 cash in his safety deposit box in a bank and other assets of about $18,000, with liabilities of an $11,000 mortgage on his home and current living expenses.

Also considered by the inquiry officer concerning petitioner’s criminal record was the fact that in 1964 petitioner appeared before a federal grand jury, at which time he refused to give any information except his name and address on the constitutional ground that his answers might tend to incriminate him.

We shall not further burden this opinion with additional details relating to petitioner. It is sufficient to say that petitioner was found to have failed to discharge his burden of establishing his good moral character because of his association with Joseph Aiuppa. This appears to be a clear case of guilt by association. Such has been proscribed in criminal cases by the courts over the years. Brooks v. United States, 5 Cir., 416 F.2d 1044, 1048 (1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970); Ramirez v. United States, 9 Cir., 363 F.2d 33, 34-35 (1966).

We recognize that the instant proceeding is a civil action. However, the Supreme Court in Woodby, supra, 385 U.S. at 285, 87 S.Ct. at 488, in contrasting a deportation proceeding with a criminal prosecution, stated that “[t]his Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to foresake all the bonds formed here and go to a foreign land where he often has no contemporary identification. In words apposite to the question [of the degree of proof] before us, we have spoken of ‘the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years . . . ,” citing Rowoldt v. Perfetto, 355 U.S. 115, 120, 78 S.Ct. 180, 2 L.Ed.2d 140 (1957).

In its concluding presentation to us on this appeal the Service notes that petitioner has had no difficulty with the law in recent years, yet urges that highly credible evidence links him to gambling and prostitution through his employment and investments. It then immediately follows with the Board’s statement that petitioner “is also an acknowledged close associate of Joseph Aiuppa, whose leading position in gambling, prostitution and other forms of vice in the Cicero area is well established in this record.”

We have no brief for Mr. Aiuppa nor do we hold up petitioner as a model of exemplary conduct. However, it has become crystal clear to us that the thread which holds this fabric together is inextricably comprised of fibers of hearsay and guilt by association. Such reeds are too slender for this cloth.

We readily recognize the statutory requirements, as well as established case law, relating to the question under consideration here. Since petitioner has been found to be a deportable alien under Section 1251(a)(4) of the Act on criminal grounds, in seeking suspension of deportation he must proceed here under Section 1254(a)(2), supra. The approval or disapproval of Congress of the suspension application thus far has not been applicable here since Congress takes no part in unfavorable administrative action. See Section 1254(c).

Under Section 1254(a)(2) the applicant must show, as earlier herein set out, (1) that he has met the continuous ten-year residence requirement; (2) that during all of such period he has been and is a person of good moral character; and (3) that he is a person whose deportation would “result in exceptional and extremely unusual hardship to the alien.” It was found by the Board that petitioner has satisfied the ten-year requirement and that his deportation would result in exceptional and extremely unusual hardship to him.

This leaves at issue only the question of petitioner’s good moral character during the relevant ten-year period. It is well settled that the burden of such proof lies on the petitioner and that he must show that he merits the granting of such relief in the discretion of the delegated agency. Further, this court may not substitute its judgment for that of the official 'agency.

However, it appears to be well settled that the ultimate exercise of administrative discretionary denial of suspension is reviewable on appeal. Such appellate review is for the purpose of determining whether the agency action was arbitrary or capricious or an abuse of discretion. See, e. g., United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957); Foti v. Immigration and Naturalization Service, 375 U.S. 217, 228-229, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); Wong Wing Hang v. Immigration and Naturalization Service, 2 Cir., 360 F.2d 715 (1966); Kam Ng v. Pilliod, 7 Cir., 279 F.2d 207, 210-211 (1960), cert. denied, 365 U.S. 860, 81 S.Ct. 828, 5 L.Ed.2d 823 (1961).

Obviously such judicial review does not require us to rubber stamp Board action, even though in the vast majority of cases, with good reason, we have affirmed. In the instant case the Board has found strong evidence of petitioner’s good moral character because of the events following the tragic loss of his son in Vietnam and in his earlier family care during his wife’s prolonged suffering from leukemia, and, following her death, in the care of his young sons. The Board found, however, that this was overcome because of the showing that petitioner’s income was principally derived from prostitution and gambling and because of his vague and evasive answers to questions concerning his income and employment. Stripped of the consideration of evidence proscribed by the Supreme Court and the drawing of unjustified inferences, we feel bound to conclude that the subordinates of the Attorney General abused their discretion in finding that petitioner had failed to establish his good moral character during the requisite period, and that he thereby failed to show that he merited the discretionary relief requested.

Whether we apply the reasonable, substantial and probative evidence test on the record considered as a whole, suggested in Wong Wing Hang, supra, 360 F.2d at 717; or consider that the decision is not based on a reasonable foundation, as in Khalil v. Immigration and Naturalization Service, 9 Cir., 457 F.2d 1276, 1277 (1972); we are convinced that a mistake has been made.

To affirm here would be to exile this petitioner to a foreign country for the remainder of his life. To invoke this extreme penalty under all of the facts in this case relevant for consideration, in our considered judgment, goes too far.

In light of the foregoing, the order of the Board denying petitioner discretionary relief is reversed. This holding is limited to the unusual factual situation present in this case and is not otherwise to be considered as precedent.

The petition is granted and the order of deportation is affirmed and the order denying discretionary relief is reversed.

Affirmed in part.

Reversed in part.