text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur BURRELL, Defendant-Appellant.
    No. 73-3826.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      Neal Sonnett, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Chief, App. Section, Charles E. Brookhart, Tax Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

Arthur Burrell was convicted by a jury of knowingly filing false income tax returns in 1967 and 1968 in violation of 26 U.S.C. § 7206(1) and of attempted income tax evasion for 1968 in violation of 26 U.S.C. § 7201. He was sentenced to concurrent terms of six months to be served in a jail-type institution followed by three years probation. The defendant appeals, raising four issues. We affirm.

I.

Two of defendant’s four points on appeal relate solely to his 1967 conviction. The Government urges us to bypass consideration of these issues as Burrell received concurrent sentences on all three convictions. We feel we must decline the invitation.

The concurrent sentence doctrine is one of “judicial convenience,” Benton v. Maryland, 395 U.S. 784, 791, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Varner, 437 F.2d 1195 (5th Cir. 1971); United States v. Bigham, 421 F.2d 1344 (5th Cir. 1970), and does not pose a jurisdictional bar to consideration of any of the issues the defendant raises, Benton v. Maryland, supra. It is a matter of discretion whether to withhold full appellate review of a conviction the outcome of which could not affect the defendant’s penal interest. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Johnson, 496 F.2d 1131 (5th Cir. 1974).

Here we believe it is important to review all three of the counts for which the defendant was convicted, despite the fact that we affirm each of them. The crimes of tax evasion and filing a false income tax return involve delicate questions of intent; while the defendant’s § 7201 conviction of tax evasion involves a jury finding of specific intent to avoid taxes, his two § 7206(1) convictions of knowingly filing false income tax returns also require a finding of scienter. Particularly in § 7201 cases, we have frequently held the trier of fact may properly rely on a pattern of understatement of income in previous years to infer the requisite specific intent of tax evasion. See, e. g., Holland v. United States, 348 U.S. 121, 139, 75 S.Ct. 127, 99 L.Ed. 150 (1954); United States v. Tunnell, 481 F.2d 149 (5th Cir. 1973); Holbrook v. United States, 216 F.2d 238 (5th Cir. 1954), cert. denied, 349 U.S. 915, 75 S.Ct. 605, 99 L.Ed. 1249 (1955). Thus in this case, Burrell’s 1968 tax evasion conviction may very directly have been affected by the jury’s finding of understatement of income in 1967, a finding the defendant challenges as being based on improper evidence.

II.

Burrell’s 1967 return was found by the jury to be false in that it failed to report as income a $34,400.05 cheek which Burrell received from his employer, Hirseh and Co., in December, 1967. The fact that Burrell received this check is undisputed. Rather the defendant claims the check wasn’t taxable income because it was in effect a loan.

Burrell was the office manager for the Miami office of Hirseh and Co., a stock brokerage firm. He had margin accounts established with his employer which he used for his own stock transactions. It was his practice to occasionally request that checks be drawn against his margin accounts to prepay a commission he was expecting within the next few days on a sale he had effected. These cheeks were drawn out of sequence on the firm’s check blotter, to attempt roughly to predict at what point the normal commission would be paid. Thus here, Hirseh and Co. check No. 54944 was drawn on December 1, 1967 but the checks immediately preceding it on the blotter weren’t drawn until January, 1968, and it wasn’t until that time that the check in question was discovered by Hirseh and Co. to have been written.

How check No. 54944 came to be written is still uncertain. Burrell testified he had no recollection of it. Both Bur-rell’s assistant manager and his head cashier testified they did not remember writing such a check — this despite the defendant’s statement that he assumed the cashier must have drawn it. Burrell was shown to be one of only four individuals with access to the check blotter who could have written the check. In any event, once the check was discovered in January, several weeks after Burrell had been discharged by Hirseh and Co., the complany demanded repayment. After seven months of negotiations Bur-rell repaid the $34,400.05 in July, after the company made the formal statement that it was prepared to accept Burrell’s assertion that it must have been drawn inadvertently.

The question presented to the jury was whether this $34,400.05 was money Burrell embezzled from his employer, or whether it was simply an inadvertent advance on the defendant’s margin account which was meant to be repaid. The jury found it to be taxable income, and thus inferentially must have found it to be embezzled. Money misappropriated from one’s employer is taxaable, James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961); Nordstrom v. United States, 360 F.2d 734 (8th Cir. 1966). We believe the jury’s finding was a permissible one in light of all the evidence.

The evidence must be taken in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Warner, 441 F.2d 821 (5th Cir. 1971), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971) and after reviewing the record we do not conclude that a “reasonably minded jury” aware of all the facts in the record, “must have a reasonable doubt” of the defendant’s intention to misappropriate the funds, United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973).

The Government proved the normal procedure employed by Burrell in the past when he wished an advance payment on expected commissions was to have his cashier draw the check out of sequence by a few days and credit that amount against his margin account. Burrell claimed that was all that happened in this case — but the Government proved Burrell’s cashier had no knowledge of the check, that it was drawn not a few days out of sequence but more than a month, and that further it was immediately cashed by Burrell and used to cover a previous check for $34,400.00 which he had received in November. The December check was shown to be used to cover the bulk of this earlier ad-vanee, inasmuch as Burrell’s checking account was substantially overdrawn. The balance over the amount his margin account was in arrears was used to cover a part of the overdrawn checking account. Thus, despite Burrell’s claim that he had been completely unaware that the December 1 check had even been issued to him, the Government proved it was used immediately to cover past debts which Burrell apparently would have been unable to pay. Despite Burrell’s further claim that he was so active in trading on his own account that he was oblivious to checks being drawn (for as he testified he was very active in the market, buying and selling $687,277 worth of securities in November, 1967 and $428,958 in December, 1967), he was shown to have been suffering huge losses in the market — and had a capital loss carryforward of over $170,000 in 1968. We believe the jury could properly find, beyond a reasonable doubt, that the $34,400.05 check was not merely an inadvertent advance on a loan account, but represented Burrell’s intentional misappropriation of his employer’s funds for his own use and thus was taxable income to him.

The defendant challenges the method by which the Government proved its case of embezzlement. First the defendant argues Government’s Exhibit 35 was improperly admitted into evidence; second the defendant argues a statement made by one of the Government’s witnesses was prejudicial and reversible error.

Exhibit 35 was an investigatory report compiled by an accounting firm engaged by Hirsch and Co. to audit Burrell’s accounts following his discharge. The report by its own terms is a summary of findings, encompassing both conclusory impressions of the accountant who performed the audit as well as selected portions of Hirsch and Co. records. This report was admitted into evidence as a business record, 28 U.S.C. § 1732.

The Government contends United States v. DeFrisco, 441 F.2d 137 (5th Cir. 1971) is authority for the admissibility of such a report. We disagree.

In DeFrisco a credit report was held to be admissible in a prosecution against DeFrisco’s employer for giving false credit information and thereby assisting DeFrisco in misrepresenting his income to the Federal Housing Administration. As part of the FHA’s investigation of DeFrisco it engaged a commercial credit reporting agency which inquired what DeFrisco’s annual salary was from his employer. This investigation was done in the credit reporting agency’s normal course of business, and the results of its inquiry were recorded within the time required by 28 U.S.C. § 1732. In De-Frisco the credit reporting agency’s inquiry was itself a transaction of crucial importance to the case, and thus its report was “a memorandum or record” of an “act, transaction, occurrence or event” which was at issue in the case. As we said in DeFrisco:

“The purpose of the federal Business Records Act is to dispense with the necessity of proving each and every book entry by the person actually making it. The theory underlying the Act is that business records in the form regularly kept by the particular company and relied on by that company in the ordinary course of its business have a certain probability of trustworthiness. . . . Therefore, ‘so long as regard is paid to the indispensable fundamental trustworthiness of the proffered record, the statute’ . should of course be liberally interpreted so as to do away with the anachronistic rules which gave rise to its need and at which it was aimed.”

441 F.2d at 139-140. These standards were not met in this case.

Exhibit 35 was a summary of Hirsch and Co.’s records of Burrell’s margin accounts. It was not a record of any act, for the fact that an audit was performed was not of significance to the case, for were it to be argued it constituted a “record” of Burrell’s dealings in his margin account it would obviously have been recorded long after the conduct at issue occurred, and thus fall outside § 1732 for that reason. Further the auditor’s impressions and conclusions are not in our view vested with the type of indicia of reliability which complies with the policies of the Federal Business Records Act.

Despite its inadmissibility, however, we must hold that the admission of Exhibit 35 was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, (1967); United States v. Resnick, 483 F.2d 354 (5th Cir. 1973), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973). The information it contained was wholly cumulative; the fact that the check was issued was undisputed, indeed the check itself was admitted into evidence. The fact that Burrell occasionally took checks out of sequence to prepay commissions was shown by both the Hirsch and Co. records admitted into evidence and by the testimony of the cashier. The fact that Burrell used the check to pay another margin account in arrears was shown by the Hirsch and Co. records and the records of Burrell’s bank. The fact that Burrell’s checking account was substantially overdrawn was shown by the records of the bank and not even mentioned in Exhibit 35. If anything, these facts were shown far more clearly in the other exhibits and testimony, for Exhibit 35 was a technical report couched in technical accounting terminology.

The sole ground offered by the defendant to show Exhibit 35’s prejudicial effect was the fact that it was referred to by the U. S. Attorney in closing argument. We cannot attach the same significance to the reference as the defendant argues — for despite the fact the U. S. Attorney did refer to Exhibit 35 as showing the facts we have just discussed, in his argument the U. S. Attorney himself stated that all of those facts were proven in one or more other ways as well. The defendant does not cite any fact which Exhibit 35 documents which is not in evidence elsewhere as well. We can perceive no prejudice which the defendant suffered through the erroneous admission of Exhibit 35, and thus do not feel it warrants reversal.

The defendant also attacks the statement of Special Agent Wanderscheid that the defendant “embezzled” the $34,400.05. The defendant points to the fact that this reference to the defendant’s “embezzlement” was the first time the word was used by any witness. The full statement of Agent Wanderscheid was that this check was money “Mr. Burrell received, or took or embezzled from Hirsch and Company,” and the trial court sustained defense’s objection to the use of the term “embezzlement” and instructed the jury to disregard the witness’ characterization of the receipt of the check as “embezzlement.” Essentially what the defendant argues is the sufficiency of the evidence on the point, not the use of the conclusory phrase of Agent Wanderscheid — and as we have previously said, we feel the evidence was sufficient to permit the jury to find embezzlement and not an innocent and inadvertent receipt of a check erroneously drawn in Burrell’s favor by the cashier. We do not believe the use of the term “embezzlement” by the witness constituted reversible error.

III.

The defendant raises two issues concerning his §§ 7201 and 7206(1) convictions arising out of his 1968 tax return. The jury found he understated his income in 1968 by over $100,000 primarily due to his failure to report income arising out of two separate sets of transactions concerning a corporation called Meter Maid Industries, Inc.

Burrell assisted in a merger between North American Cigarette Manufacturing Co. and Meter Maid Laundries, Inc. which took the form of a stock for stock exchange, whereby North American acquired control of Meter Maid Laundries and renamed itself Meter Maid Industries. For his role in facilitating this transaction Burrell received 600,000 restricted common shares of North American on February 20, 1968 — eventually returning 400,000 of these shares but retaining 200,000 shares for his own use. He disposed of these shares by pledging them as security for a loan he had previously obtained, and the pledgee exchanged them for shares of Meter Maid Industries, Inc. in July, 1968. Burrell reported no income on this transaction. The Government’s expert witness on securities valuation, John O’Farrell, placed a value of $27,500 on these 200,000 shares as of February 20,1968.

Following the reincorporation of North American as Meter Maid Industries, Burrell engaged in a protracted and successful effort to sell shares in the new corporation. Between February and September of 1968 he sold $73,029.-30 worth of restricted and unrestricted common shares of Meter Maid Industries which he reported as long-term or short-term capital gains. Due to his large capital loss carryforward from previous years, were these proceeds to constitute capital gains Burrell would have owed no tax. In fact, as the jury found, he was not authorized to sell the shares of Meter Maid Industries which he sold and thus they did not constitute capital assets and the proceeds on the sales should have been reported as ordinary income.

Burrell first challenges the method by which O’Farrell valued the North American shares he received. Despite the fact the defendant poses this issue as one involving the use of hearsay records in violation of our en banc decision in United States v. Williams, 447 F.2d 1285 (5th Cir. 1971), actually the only serious issue raised concerns the completeness of the information the expert relied upon, rather than its hearsay components. Williams held that “an expert’s testimony need not be based solely upon records which are themselves introduced in evidence so long as the sources of information are of the type reasonably relied on by experts in forming opinions or inferences upon the subject.” 447 F.2d at 1291. The defendant attempts to make the argument that O’Farrell’s use of the so-called “pink sheets” quotations of over-the-counter bids on unlisted securities fell outside the Williams rule. We find this argument invalid. O’Farrell was an expert of long experience, whose expertise was unchallenged by the defense; he explained what “pink sheets” were, and their use in the securities industry — as indeed Burrell did himself — and we do not believe any serious question can be raised that over-the-counter bids for North American shares prior to February 20, 1968 can be said to fall outside the rule established in Williams.

Rather the defendant actually repeats the attacks first raised in cross-examination of O’Farrell concerning his failure to examine North American’s assets in addition to researching the stock’s market history and recent trading prices. Admittedly North American was a shell corporation without assets at the time of the merger with Meter Maid Laundries, but O’Farrell explained the market price for a security isn’t necessarily related to the asset value of the corporation, and he testified he studied the market performance of North American prior to the Meter Maid Laundries merger, and thereafter, and his valuation of $0.13% per restricted share was based on the then-existing market for the shares. The defendant’s criticisms of O’Farrell’s failure to make a precise estimate of North American’s assets went to the weight of his testimony, not its admissibility.

We should further note Burrell’s counter testimony that the shares he received had no value whatever seemed to contrast starkly with his admitted ability to sell Meter Maid Industries shares shortly thereafter, at prices well above $0.-13% Per share, despite the fact Meter Maid Industries experienced no sudden increase in its assets.

We believe the jury was entitled to accept O’Farrell’s estimate of value.

Finally the defendant argues the Government failed to sustain its burden to prove the understatement of income in 1968 was more than mere understatement and amounted to tax evasion as required for a conviction under 26 U.S.C. § 7201.

The Government clearly must prove that the defendant acted willfully in attempting to evade the payment of taxes in 1968. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L.Ed. 418 (1943); see, also, United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973). It must be shown that the defendant not only understated his income but committed some overt act or acts as part of his attempt to evade or defeat the tax. Such affirmative acts of evasion such as concealment of financial transactions and the providing of false or incomplete information in an attempt to hamper the investigation have been held to constitute sufficient evidence to permit the trier of fact to infer the specific intent to evade taxes. Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L. Ed. 150 (1954); United States v. Stone, 431 F.2d 1286 (5th Cir. 1970), cert. denied, 401 U.S. 912, 91 S.Ct. 879, 27 L.Ed.2d 811 (1971); Windisch v. United States, 295 F.2d 531 (5th Cir. 1961); McGrew v. United States, 222 F.2d 458 (5th Cir. 1955). A consistent pattern of understatement has been held to present a jury question as to willfulness, United States v. Tunnell, 481 F.2d 149 (5th Cir. 1973); Holland v. United States, supra, as had the failure to report a very substantial amount of income, United States v. Schechter, 475 F.2d 1099 (5th Cir. 1973); Wardlaw v. United States, 203 F.2d 884 (5th Cir. 1953). Finally making false statements 'to Treasury agents has been held to constitute the type of affirmative act of evasion necessary to permit a § 7201 conviction. United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Newman, 468 F.2d 791 (5th Cir. 1972).

The defendant argues the record fails to disclose the types of clandestine financial dealings which the Supreme Court in Spies, supra, described as examples of the type of overt act necessary to justify a conviction under the earlier version of § 7201 — such as double bookkeeping, false entries, false documents, and the like — but in Spies the Supreme Court carefully noted its examples were intended to illustrate the type of conduct required, but not limit the list of overt acts to those described. Burrell did not attempt to maintain secret records or deal under false names, but neither was he completely candid with - the investigators of the Internal Revenue Service — originally maintaining he made no sales of Meter Maid Industries stock and later supplying a less than complete listing of the transactions he did complete. Further his understatement of income was more than a “mere understatement” of income, it was a substantial understatement — increasing his tax liability from zero as originally reported to $27,959.14. Given these facts, as we have held before, “[t]he appellant can point, as defendants have done in many similar cases, to the lack of certain badges of fraud. That is not enough. The question of wilfulness is for the jury.” Windisch v. United States, 295 F.2d 531, 532 (5th Cir. 1961). We find ample evidence to sustain the jury’s findings of willful intent to evade taxes.

Accordingly, we affirm the judgment of the trial court.

      . 26 U.S.C. § 7206(1) provides:
      Any person who—
      (1) Declaration under penalties of perjury. — Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which lie does not believe to be true and correct as to every material matter; or
      shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.

      . 26 U.S.C. § 7201 provides :

        Attempt to evade or defeat tax.

      Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than 5 years, or both, together with the costs of prosecution.

      . 28 U.S.C. § 1732 provides:
      In any court of the United States and in any court established by Act of Congress, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of such act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.

      . 26 U.S.O. § 1212(b) provides for this capital loss carryover.

      . For example, the record shows seventeen specific transactions effected by Burrell between February and September of 1968, involving both restricted and unrestricted common shares of Meter Maid Industries, in which he sold 100,000 shares for $50,360. Given this background, it is difficult to credit his testimony that the 200,000 shares he received were worth absolutely nothing, and that he told the bank which requested the stock (he refused on cross-examination to acknowledge that the stock thus was collateral for the loan, asserting he couldn’t understand what purpose the bank could have for requesting it) that he felt it was so worthless “you can paper your walls with it maybe sometime. ...”


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    Dan WEISER et al., Plaintiffs-Appellants-Appellees, v. Honorable Mark WHITE, Jr., Secretary of State of the State of Texas, Defendant-Appellee, Thelma Washington et al., Movants-Appellants.
    No. 73-4003.
    United States Court of Appeals, Fifth Circuit.
    Jan. 2, 1975.
    John F. Jordan, Sylvia M. Demarest, Edward B. Cloutman, III, Dallas, Tex., for movants.

      Ben L. Krage, Lawrence Fisehman, Dallas, Tex., for Weiser et al.
    John L. Hill, Atty. Gen., Pat Bailey, Larry F. York, Elizabeth B. Levatino, Asst. Attys. Gen., Austin, Tex., for defendant-appellee.
    Nathan W. Eason, J. Douglas McGuire, San Antonio, Tex., for Archer et al.
    Morris Jaffe, Richard F. Smith, Dallas, Tex., for Allen et al.
    Richard N. Johnston, Dallas, Tex., for Johnston et al.
    Michael J. Whitten, Denton, Tex., for Dodd et al.
    J. P. Word, Austin, Tex., for Golden et al.
    David R. Richards, Austin, Tex., for Briones et al.
    Before TUTTLE, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

This case consists of two appeals from two separate rulings of a duly constituted three-judge district court which was concerned with the reapportionment of the Texas state legislature. One appeal is from the denial of a motion to intervene, the other from a denial of an award of attorney’s fees to the original successful plaintiffs. We hold that the Supreme Court of the United States has exclusive jurisdiction of appeals from orders of this nature by a three-judge court, and dismiss both appeals for lack of jurisdiction in this Court.

We have previously held that an appeal from the denial by a three-judge court of an attorney’s fee request, ancillary to the main action and properly before the three-judge court, is not within the jurisdiction of this Court. Haining v. Roberts, 453 F.2d 1223 (5th Cir. 1971), cert. denied, 406 U.S. 948, 92 S.Ct. 2054, 32 L.Ed.2d 336 (1972). Although that ease involved a class action for discharge for refusal to sign a loyalty oath by plaintiffs who sought job reinstatement and back pay, we see no distinction between that case and this one which would weaken it as the controlling authority here.

The appeal from .the denial of intervention presents us with a slightly different problem because there appears to be no case in this Court directly in point. The appellants-intervenors filed simultaneous appeals to this Court and to the Supreme Court. The Supreme Court has already dismissed the appeal to it. Washington v. White, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974). Intervenors argue that since the Supreme Court dismissed their appeal, this Court must have appellate jurisdiction in order for them to have some forum for review of the district court’s denial of their motion to intervene. Even if such an argument could have force in determining the presence of jurisdiction in this Court, we view the Supreme Court’s dismissal of intervenors’ appeal as a decision on the merits, not a decision that it lacked jurisdiction.

This case has been before the courts for some time. A detailed statement of facts is set forth in the Supreme Court’s opinion on an earlier appeal. White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). Briefly, Weiser and others originally filed suit in the United States District Court for the Northern District of Texas against the Secretary of State of Texas challenging the reapportionment of the Texas legislature under Texas Senate Bill 1 (S.B. 1), as a violation of the “one-man, one-vote” principle of Article I, Section 2 of the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment. A three-judge district court was convened. See 28 U.S.C. A. §§ 2281, 2284.

After receiving evidence and hearing argument, the court found the legislature’s plan of apportionment unconstitutional and ordered the adoption of one of the two alternative plans of apportionment that Weiser had presented to the three-judge panel, called Plan C. That order was stayed by the Supreme Court upon application of the Secretary of State. 404 U.S. 1065, 92 S.Ct. 750, 30 L.Ed.2d 775 (1972). On appeal, the Supreme Court affirmed the district court’s finding of unconstitutionality of S.B. 1, the Texas legislative plan. It reversed the three-judge court’s order adopting Plan C, however, because of that plan’s deviation from the state policy embodied in S.B. 1. The Supreme Court noted that Plan B was constitutional, followed more closely the desires of the Texas legislature, and that, as between the two choices, Plan B should have been adopted rather than Plan C. The case was “remanded for further proceedings consistent with this opinion.” 412 U.S. at 797, 93 S.Ct. at 2356.

On remand, appellants for the first time sought leave to intervene. Desiring to challenge the composition of one of the 24 districts included in the plan, they alleged a denial of equal protection and the right to vote to black citizens of that district, an issue not previously litigated in the suit. The district court ruled that the Supreme Court had effectively ordered the adoption of Plan B. In view of this, it denied the motion to intervene on the ground that, whether considered as an assertion of a right to intervene or only as a request for permissive intervention, the motion was untimely under Rule 24, F.R.Civ.P. The Secretary of State did not appeal the adoption of Plan B. Appellants having no standing to appeal the merits of the three-judge decision, filed concurrent appeals to this Court and to the Supreme Court from the denial of their intervention. The Supreme Court dismissed their appeal to that court “for want of an appealable order.” Washington v. White, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974).

Direct appeals to the Supreme Court from a properly constituted three-judge court are under 28 U.S.C.A. § 1253:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

The Supreme Court has not decided whether an unsuccessful applicant for intervention is “any party” appealing an order of a three-judge court “granting or denying” an injunction, as contemplated by § 1253. Oregon State Elks Ass’n v. Falkenstein, 409 U.S. 1032, 1033, 93 S.Ct. 530, 34 L.Ed.2d 484 (1972) (Douglas, J., dissenting from denial of stay pending appeal), appeal dismissed, 409 U.S. 1099, 93 S.Ct. 907, 34 L.Ed.2d 681. (1973). This Court likewise has not decided the precise issue. But we have decided that some collateral matters dependent upon the injunction suit, which are not the actual grant or denial of an injunction, are appealable only to the Supreme Court. See Haining v. Roberts, supra. While the answer is far from clear, we think that the orderly process of judicial administration requires that any appeal from the denial of intervention by a properly constituted three-judge district court must be to the Supreme Court, and not this Court. The Eighth Circuit has reached this same conclusion. See Doe v. Turner, 488 F.2d 1134 (8th Cir. 1973) (dismissing appeal); Benson v. Beens, 456 F.2d 244 (8th Cir. 1972) (dismissing appeal). But see, Petuskey v. Rampton, 431 F.2d 378 (10th Cir. 1970), cert. denied, 401 U.S. 913, 91 S.Ct. 882, 27 L.Ed.2d 812 (1971).

The wisdom of this approach is clearly demonstrated by the situation in the instant case. The critical issue in deciding that intervenors’ motion was untimely is whether the Supreme Court’s decision and remand on the initial appeal mandated the adoption of Plan B, or whether the district court was free to consider any other plans which might then be offered. If the Supreme Court’s decision effectively directed the adoption of Plan B, there is nothing to be achieved by allowing intervention by other parties. Denied intervention, they would be free later to litigate the issues asserted by them without the spectre of res judicata hanging over them. There could be no abuse of discretion by the district court. If, on the other hand, the question of what the ultimate plan should be still open after remand, it might be that intervenors could represent a different view that should have been considered by the district court. This might possibly result in an abuse of discretion in not allowing intervention, regardless of the timing.

For this Court to review the district court’s decision for an abuse of discretion, we would be required to construe the mandate of the Supreme Court issued directly to the district court. Such procedure would subvert the settled principle that a mistake in construction of a mandate should ordinarily be corrected by the court which issued the mandate, In re Sanford Fork & Tool Co., 160 U.S. 247, 255, 16 S.Ct. 291, 40 L.Ed. 414 (1895), a principle the Supreme Court has gone to some length to enforce. See Utah Public Service Comm’n v. El Paso Natural Gas Co., 395 U.S. 464, 89 S.Ct. 1860, 23 L.Ed.2d 474 (1969).

An analogous direct appeal statute applies to certain antitrust cases.

In' every civil action brought in any district court of the United States under any of said [antitrust] Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court.

15 U.S.C.A. § 29.

In construing this statute, the Supreme Court, considering the policy behind the direct appeal procedure, has viewed its jurisdiction on direct appeal as being somewhat broader than the statute’s language might seem to require. See, e. g., Tidewater Oil Co. v. United States, 409 U.S. 151, 93 S.Ct. 408, 34 L.Ed.2d 375 (1972) (finding the “final judgment” of 15 U.S.C.A. § 29 to include a “controlling question” appealed under 28 U.S.C. A. § 1292(b)); United States v. California Cooperative Canneries, 279 U.S. 553, 49 S.Ct. 423, 73 L.Ed. 838 (1929) (finding jurisdiction under the Expediting Act to review the denial of intervention). See generally 3B Moore’s Federal Practice, ft 24.15 (1969). The Supreme Court seems to recognize that some issues are so dependent upon the controlling issue in a case and are so involved with the purpose behind the direct appeal provisions, that, for proper review, all issues should go to the court with jurisdiction over the main issue. This concept remains as valid when the main appeal lies to that Court under 28 U.S. C.A. § 1253, as when it comes under 15 U.S.C.A. § 29.

There is sparse authority on the point. Apparently the only direction given us by the Supreme Court as to what orders of a three-judge district court may be appealed to a court of appeals lies in its decision that denial of three-judge jurisdiction should be reviewed by the court of appeals, and not the Supreme Court. See Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636 (1968); Mayhue’s Super Liquor Store, Inc. v. Meikeljohn, 426 F.2d 142, 144-146 (5th Cir. 1970).

As discussed in Mayhue’s Liquor, the apparent justification for limited jurisdiction in this Court in such a situation is this: once the district court panel decides it was improperly convened, the dismissal order is the functional equivalent of a single judge order refusing to convene a three-judge court in the first instance. The court of appeals should consider such action just as it would an order to the same effect actually entered by a single judge. Schackman v. Arne-bergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865 (1967).

The reason behind this limited court of appeals jurisdiction to review such a three-judge order does not support the assertion that we have jurisdiction to consider the denial of intervention. The question of intervention is generally too intertwined with the judicial review of the merits of litigation to justify our exercise of jurisdiction in possible derogation of the Supreme Court’s authority. Without clear direction from the Supreme Court that this piecemeal approach is required by our various appellate jurisdiction statutes, we decline to define our jurisdiction under 28 U.S.C. A. § 1291 to require such a result.

Intervenors assert that the Supreme Court has eschewed jurisdiction in this very case, which we should take as a signal that this Court has jurisdiction over this appeal. It is often difficult to decipher the cryptic meaning of the short orders with which the Supreme Court frequently disposes of matters within its mandatory appellate jurisdiction. We do not view, however, that Court’s dismissal of intervenors’ appeal as evincing a decision that it lacked jurisdiction under § 1253.

The complete order of the Supreme Court on intervenors’ appeal is found among the several dismissal orders entered on April 29, 1974, many of which dismissed “for want of a substantial federal question,” or “for want of jurisdiction.” This one provides as follows:

No. 73-6459. Washington, et al. v. White, Secretary of State of Texas, et al. Appeal from D.C.N.D.Tex. dismissed for want of appealable order.

It can be immediately assumed that, had the Supreme Court dismissed the case “for want of jurisdiction,” it would have said so. The dismissal was not “for want of jurisdiction,” but “for want of an appealable order.” Compare Shenandoah Valley Broadcasting, Inc. v. ASCAP, 371 U.S. 540, 83 S.Ct. 519, 9 L.Ed.2d 508 (1963) with Washington v. White, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974). Furthermore, the Supreme Court did not rule on the intervenors’ alternative request to treat the appeal as a petition for writ of certiorari. Compare Cole v. California, 416 U.S. 964, 94 S.Ct. 1985, 40 L.Ed.2d 554 (1974). We conclude that the reason the Supreme Court did not rule on such request is that its dismissal was actually an adjudication of the merits of appellants’ attempt to intervene under the direct appeal route to that court, thus making unnecessary a ruling as to whether certiorari jurisdiction should be granted.

Over the years an anomalous rule has evolved in the federal appellate courts concerning the appealability or nonappealability of an order denying intervention. The denial of leave to intervene when the applicant had an absolute right to intervene is appealable, but a denial of a motion for permissive intervention is not appealable, unless there is an abuse of discretion. Martin v. Kalvar Corp., 411 F.2d 552 (5th Cir. 1969). This rule requires a merit review of any claim of intervention in order for an appellate court to determine whether or not the district court’s order is appealable. See Hodgson v. United Mine Workers of America, 153 U.S.App.D.C. 407, 473 F.2d 118, 127 n. 40 (1972). If the appellate court finds either that a claim of right to intervene was without merit or that the request for permissive intervention was denied without an abuse of discretion, the action of the district court is not appealable, the appellate court has no jurisdiction, and the appeal should be dismissed. But if the court decides that appellant was correctly alleging a right to intervene or that refusal of permissive intervention constituted an abuse of discretion, the order is appealable and the court has appellate jurisdiction to consider the denial by the lower court. The trial court should be reversed unless the assertion of right to intervene was untimely. This rule’s rationale lies in the effect the grant or denial of intervention has upon the rights of the various parties. Absent an absolute right to intervene or an abuse of discretion by the district court, the intervenors are free to litigate their issues in subsequent proceedings and are not prejudiced by any order the court might enter on the merits of the litigation. The denial is therefore not appealable. The Supreme Court articulated the rationale for this rule in Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 67 S.Ct. 1387, 91 L.Ed. 1646 (1947), wherein it had postponed consideration of the question of its jurisdiction to review the order to the hearing of the appeal upon the merits:

Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court. United States v. California Co-op. Canneries, 279 U.S. 553, 556, 49 S.Ct. 423, 424, 73 L.Ed. 838. The permissive nature of such intervention necessarily implies that, if intervention is denied, the applicant is not legally bound or prejudiced by any judgment that might be entered in the case. He is at liberty to assert and protect his interests in some more appropriate proceeding. Having no adverse effect upon the applicant, the order denying intervention accordingly falls below the level of appealability. But where a statute or the practical necessities grant the applicant an absolute right to intervene, the order denying intervention becomes appeala-ble. Then it may fairly be said that the applicant is adversely affected by the denial, there being no other way in which he can better assert the particular interest which warrants intervention in this instance. And since he cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene, the order denying intervention has the degree of definitiveness which supports an appeal therefrom. See Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 508, 61 S.Ct. 666, 668, 85 L.Ed. 975.
Our jurisdiction to consider an appeal from an order denying intervention thus depends upon the nature of the applicant’s right to intervene. If the right is absolute, the order is ap-pealable and we may judge it on its merits. But if the matter is one within the discretion of the trial court and if there is no abuse of discretion, the order is not appealable and we lack power to review it. In other words, our jurisdiction is identified by the necessary incidents of the right to intervene in each particular instance. We must therefore determine the question of our jurisdiction in this case by examining the character of the Brotherhood’s right to intervene in the proceeding brought under § 16(12) of the Interstate Commerce Act.

Id. at 524-525, 67 S.Ct. at 1390 (footnote omitted). Compare Sam Fox Publishing Co., Inc. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961) with Brotherhood of R.R. Trainmen v. Baltimore & Ohio R.R. Co., supra, and Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 64 S.Ct. 905, 88 L.Ed. 1188 (1944); see Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 159, 87 S.Ct. 932, 17 L.Ed.2d 814 (1967) (Stewart, J., dissenting).

This seemingly inconsistent approach of reaching the merits to determine jurisdiction has led at least one federal Court of Appeals to “assume” jurisdiction on review of intervention denials, regardless of the ultimate merit determination, see Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 188-189 (2d Cir. 1970).

Nonetheless, it is clear that the Supreme Court sometimes reaches the merits before it dismisses an appeal. We view its disposition of intervenors’ appeal as reflecting such a circumstance. The district court denied the motion to intervene on alternative grounds: (1) the Supreme Court had mandated the adoption of Plan B, and, therefore, intervention could not affect the ultimate disposition of the suit, and (2) even if further proceedings would be appropriate, the motion was untimely, irrespective of whether the motion was for intervention of right or merely for permissive intervention. Considering the approach taken by the Supreme Court in review of intervention rulings, it seems apparent that its dismissal “for want of an appealable order” here meant that either there was no intervention of right or the discretionary determination of untimeliness was not an abuse of the district court’s authority.

It can be noted that the determination of whether an order is appealable to this Court turns on the same factors as those which control the Supreme Court’s decision. If our jurisdiction were otherwise clear, we would have been faced with the same decision as faced the Supreme Court. Had we reached the same conclusion, the appropriate action for this Court would likewise have been to dismiss “for want of an appealable order.” This leaves intervenors free to protect their interest “in some more appropriate proceeding.” 331 U.S. at 524, 67 S.Ct. 1387.

In any event, we hold that jurisdiction for the appeals from the three-judge court orders denying attorney’s fees and denying intervention lies only in the Supreme Court under 28 U.S.C.A. § 1253, and not in this Court under 28 U.S.C.A. § 1291. Having no jurisdiction over the subject matter of these appeals, we dismiss.

Appeals dismissed.


author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Louis SAN MARTIN, Defendant-Appellant.
    No. 74-1684.
    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.

      Abel H. Rigau, Tampa, Fla., Donald G. Doddington, Tampa, Fla. (Court-appointed), for defendant-appellant.

      John L. Briggs, U. S. Atty., D. Frank Winkles, Asst. U. S. Atty., Jacksonville, Fla., Claude Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This appeal raises the question, once again, of the propriety of using prior criminal convictions as evidence in a prosecution for subsequent acts.

Louis San Martin appeals his conviction by a jury on one count of assaulting an agent of the Federal Bureau of Investigation while in the performance of his duties, in violation of 18 U.S.C. § 111. San Martin was sentenced to the maximum prison term of three years. He challenges his conviction on three grounds: (1) that the trial court improperly admitted evidence of his three prior state court, misdemeanor convictions for assault — two of which involved resisting police officers; (2) that the trial court improperly admitted rebuttal evidence, which was irrelevant and prejudicial; and (3) that the trial court erred in several respects in charging the jury.

We agree that the evidence of the appellant’s prior convictions and certain rebuttal testimony were improperly admitted and therefore reverse. We, therefore, do not reach the other grounds.

I.

On October 18, 1973, a complaint was issued charging the appellant with obstructing a criminal investigation, in violation of 18 U.S.C. § 1510. A warrant was issued for the appellant’s arrest, and lodged with the United States Marshal’s Office in Tampa. Six agents of the Tampa Office of the Federal Bureau of Investigation then went to the residence of the appellant’s father to make the arrest. After observing the entrance to the elder San Martin’s apartment for approximately two hours, one of the agents recognized the appellant as he prepared to enter the apartment and informed him that a warrant had been issued for his arrest.

The appellant went into the apartment briefly to get a pair of shoes, and after returning began to accompany Agent Richard Gross to one of the awaiting bureau automobiles. After only a few steps, the appellant stopped and said: “Let me see your warrant. I am not going any place until I see a warrant.” Agent Gross replied that the warrant had been left in the Marshal’s Office, according to standard procedure, and that a copy would be furnished later. The appellant repeated that he would not go anywhere until he saw the warrant, and started to walk away. Agent Gross then grasped the appellant’s arm, in what he described later as a “come-along hold.” As the agent did so, he was grabbed around the neck from behind by the appellant’s brother, Richard San Martin. At that point, Agents Charles Long and Esteban Uriarte rushed to his aid. The appellant broke free from Agent Gross, and as he did, he turned and struck Agent Long on the shoulder with his arm or elbow. The blow was forceful enough, according to Agent Long’s testimony, to make the shoulder sore for two or three days.

Six days after the incident, a Federal Grand Jury sitting in Tampa indicted the appellant, his father and his brother each for one count of wilfull and forcible assault in violation of § 111.

The sole material issue of fact at trial was whether the appellant intended to strike Agent Long, or whether he did so accidently as he wheeled from Agent Gross’ grasp. It is clear from the record that Agent Long was behind the appellant when the scuffle began and that the appellant did not see Long until he turned.

During trial, the following colloquy occurred between appellant’s counsel and Agent Long:

Q: So he [the appellant] wouldn’t have had any knowledge that you were standing behind him, necessarily ?
A: Necessarily.
Q: So, it could be possible that when striking you, sir, it was pulling away from Officer Gross. Is that correct ?
A: That’s correct, (indicating affirmatively.)
Q: And in fact, not striking out at you.
A: Resisting arrest.

In an effort to show that the blow was intentional, the prosecution presented evidence early in the trial that the appellant had three previous misdemean- or convictions in Florida state courts: in 1963 for resisting or opposing a public officer, in 1964 for interfering or opposing a public officer, and in 1969 for assault and battery on a uniformed member of the United States Air Force. Counsel for the appellant strongly objected to the admission of this evidence and argued that it was irrelevant, particularly because it was remote, under our holding in United States v. Broadway, 477 F.2d 991 (5th Cir. 1973). The trial court allowed the evidence to be submitted, but it refused to allow details on the incidents leading to the convictions to be introduced.

The appellant, his brother and his father were all convicted under § 111 for their parts in the brief encounter. Neither appellant’s brother nor his father appeals his conviction.

II.

It is a cardinal principle of the common law that the prosecution may not use evidence of prior criminal acts in its case-in-ehief to prove that the defendant committed the crime with which he is presently charged. See, Michelson v. United States, 335 U.S. 469, 475-476, 69 S.Ct. 213, 93 L.Ed. 168 (1948). “The general rule is that evidence of another crime unconnected with the one on trial is inadmissible, but this rule is subject to a number of exceptions, the first of which is that evidence of other offenses by the accused is admissible to show his criminal intent as to the offense charged, where the other offenses are similar to and not too remote from that charged, and where intent is in issue as an element of the offense charged.” Weiss v. United States, 122 F.2d 675, 682 (5th Cir. 1941), cert. denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).

We have repeatedly noted that the general rule is “just and wise” in order to avoid the enormous danger of prejudice to the defendant that the evidence of prior crimes creates, and we have recently cautioned that “exceptions to that principle, each of which has been carved out to serve a limited prosecutorial and judicial purpose, should not be permitted to swallow the rule.” United States v. Miller, 500 F.2d 751, 762 (5th Cir. 1974). See also, e. g., United States v. Goodwin, 492 F.2d 1141, 1150 (5th Cir. 1974); United States v. Lawrence, 5 Cir., 480 F.2d 688, 691-692, n. 6; United States v. Broadway, 477 F.2d 991, 994-995 (5th Cir. 1973); United States v. Johnson, 453 F.2d 1195, 1199 (5th Cir. 1972); United States v. Boyd, 446 F.2d 1267, 1270-1271 (5th Cir. 1971).

Before one of the exceptions to the general rule may properly be invoked in order to introduce evidence of prior crimes, the trial court must be satisfied that several threshold prerequisites have been met:

1. Proof of the prior similar offenses must be “plain, clear and convincing; ”

2. The offenses must not be too remote in time to the alleged crime;

3. The element of the prior crime for which there is a recognized exception to the general rule, such as intent, must be a material issue in the instant case;

4. There must be a substantial need for the probative value of the evidence provided for by the prior crimes. United States v. Cavallino, 498 F.2d 1200, 1206 (5th Cir. 1974). If all of these prerequisites are satisfied, and if it appears on balance that the need for such evidence outweighs the prejudicial effect it is likely to have, then the evidence is admissible. United States v. Goodwin, supra, 492 F.2d at 1150; United States v. Miller, supra, 500 F.2d at 762.

Applying this test to the case before us, the evidence of the appellant’s prior convictions fails to meet the first two prerequisites and therefore should not have been admitted.

The evidence of the appellant’s three prior convictions was introduced by the prosecution to prove that the appellant intended to strike Agent Long. But the evidence cannot be said to be “plain, clear and convincing,” because only the fact of the offenses and not their circumstances was introduced. It is not clear, for example, from the record that any of these offenses included specific intent as a material element; prior crimes requiring only general intent are of meager, if any, probative value concerning the later existence of specific intent.

Moreover, the appellant’s two misdemeanor convictions for opposing or interfering with a police officer were clearly too remote in time to be probative in the instant prosecution. The offenses occurred ten and nine years earlier, when the appellant was 17 and 18 years old, respectively. The rule against remoteness is usually stated generally, without detailed explanation. See, e. g., United States v. Broadway, supra, 477 F.2d at 994; United States v. Restrepo, per curiam, 417 F.2d 927, 928 (5th Cir. 1969); Matthews v. United States, 407 F.2d 1371, 1381 (5th Cir. 1969). However, there are established guidelines. As this Court said in Lloyd v. United States, 226 F.2d 9, 18 (5th Cir. 1955):

“Evidence of other wrongful acts to prove intent must go further than showing that the defendant has a generally criminal disposition or character, and must logically tend to prove the defendant’s criminal intent at the time of the commission of the act charged. The prior acts must be similar to the one charged and must not be so remote as to be lacking in evi-dentiary value ... In the present case, more than eight years had passed and there was no logical probative value as to the appellant’s intent in the commission of the later act . . . ” [Emphasis added.]

The test for remoteness need not, and indeed cannot, be a simple rule of thumb based solely on the number of years that have elapsed between the prior crime and the present offense charged. The better test, as outlined in Lloyd, is whether the prior crime is similar in nature and in its material elements to have clearly probative value with respect to the intent of the accused at the time of the offense charged. Under this test, prior crimes involving deliberate and carefully premeditated intent — such as fraud and forgery — are far more likely to have probative value with respect to later acts than prior crimes involving a quickly and spontaneously formed intent — such as assault in the case before us.

In summary, two factors in this case regarding the admissibility of prior-crimes evidence cannot be overemphasized. First, convictions during the defendant’s younger years cannot logically be probative of intent in acts committed a decade later. Second, the evidence of prior crimes involving intent of the moment are hardly ever probative of later acts involving similarly split-second intent. Indeed, such prior crimes have less to do with the type of specific intent that may arise later, as in fraud, than they do with the defendant’s overall disposition or character; and if there is one clear category that is not an exception to the general rule against allowing evidence of prior acts, it is that which includes “character, disposition, and reputation.” Michelson v. United States, supra, 335 U.S. at 475, 69 S.Ct. 213. See, also, Railton v. United States, 127 F.2d 691, 692 (5th Cir. 1942); Hurst v. United States, 337 F.2d 678, 680 (5th Cir. 1964).

It is essential that the general rule announced so long ago in Weiss and recently reaffirmed in Broadway and other eases be carefully observed. Although prior offenses may be valuable, and sometimes essential, to prove intent or design, the danger of their prejudicial effect is so great that all of the prerequisites must be met and the balancing test completely satisfied before they may be admitted safely into evidence. There is no talismanic effect to the words “intent” or “design,” and prior offenses must be carefully analyzed beyond the mere assertion of these codewords before the offenses are admitted into evidence lest the trial of fact devolve into a battle of innuendo.

In the case before us, the 1969 offense was insufficiently related in terms of material facts and the other two offenses were too remote in time to have any legitimate probative value with respect to the appellant’s intent at the time of the alleged § 111 “offense.”

Further, prejudicial error occurred when the trial court permitted the testimony of Louis San Martin’s mother-in-law, Mrs. Hollis, dealing with matters that were totally irrelevant to any issue being tried. This evidence clearly implied that San Martin was involved in secreting or making unavailable for a Grand Jury appearance his wife, Debra, and her daughter, Bridget. The evidence purported to rebut testimony given by San Martin and his cousin, Jimmy Riddell, that they had not been in communication with Mrs. Hollis’ daughter and grandchild since they turned up “missing.”

In this case, in which the basic facts are not in dispute, but which the jury would have to decide based solely on whether or not San Martin intended to strike the agent, it was essential that implications, innuendoes, or charges of such a serious offense as that of obstructing justice, especially with the talk of “missing” witnesses, be kept from the jury. Since the questioning of Riddell and San Martin in cross-examination as to whether they had been in touch with Debra and Bridget was totally irrelevant, Mrs. Hollis’ damaging contradictory testimony could not be excused as rebuttal, because it did not rebut any evidence that had any materiality or relevance to the issue being tried.

The judgment is reversed and the ease is remanded to the trial court for further proceedings.

      . Section 111 of 18 U.S.C. provides, in pertinent part:
      “Whoever forcibly assaults, resists, opposes, impedes, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.”
      Section 1114 of 18 U.S.C. includes “any officer or employee of the Federal Bureau of Investigation of the Department of Justice.”

      . At trial, Agent Gross described the hold, which he said was a standard technique for handling uncooperative arrestees: one hand on the arrestee’s nearest wrist and the other hand above the elbow of the same arm.

      . Our holding in no way conflicts with our statement in Broadway that the “mental elements” of prior crimes need not be “clearly shown by competent evidence,” 477 F.2d at 995, but “may be inferred by the trier of fact, from the totality of the circumstances.” Id. at 995, n. 5. As noted, no evidence appears in the record concerning the circumstances of the prior crimes.

      . A gap of five years might not seem sufficiently “near to . . . the charged offense,” United States v. Broadway, supra, 477 F.2d at 994, but it was upheld in a forgery case where “the prior offense and the one charged involved identical circumstances, even the same payee.” Miller v. United States, 397 F.2d 272, 274 (5th Cir. 1968). See, also, Lindsey v. United States, 227 F.2d 113, 117 (5th Cir. 1955). It should be noted that cases where fraudulent intent is a material element of the offense charged, such as forgery, are classic exceptions to the general rule against admitting evidence of prior crimes. See Michelson v. United States, supra, 335 U.S. at 475-476, 69 S.Ct. 213, note 8.

      . Cf. United States v. Goodwin, supra, 492 F.2d at 1155: “This Court has never hesitated to approve the admission of other-crimes evidence when that evidence has been relevant under one of the exceptions to the general rule. We have recognized, however, and we must continue to recognize, that the various categories of exceptions — intent, design or plan, identity, etc. — are not magic passwords whose mere incantation will open wide the courtroom doors to whatever evidence may be offered in their names. To the contrary, each exception has been carefully carved out of the general rule to serve a limited judicial and prosecutorial purpose.”


author: COLEMAN, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff Appellee, v. Rodney Bruce HARPER, Defendant-Appellant.
    No. 74-3165
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 30, 1974.
    Rehearing Denied Feb. 4, 1975.

      Arvis Cumbest, John L. Hunter, Pas-cagoula, Miss., for defendant-appellant.
    Robert E. Hauberg, U. S. Atty., Daniel E. Lynn, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   COLEMAN, Circuit Judge.

Appellant Rodney Bruce Harper was convicted of one count of distribution of 19.9 grams of heroin. In this appeal appellant alleges the court erred in not granting him a continuance so an independent examination of the heroin could be performed; that the court erred in the jury selection process; that the court erred in not instructing on entrapment; and the court abused its discretion in imposing the maximum sentence possible. A review of the record reveals these contentions to be without merit. We affirm.

On August 28, 1973, appellant was at his home in Pascagoula, Mississippi. DEA Agent Hahn, accompanied by the informant Ingram, came to appellant’s home to effectuate a purchase of heroin, allegedly an ounce. Agent Hahn was told the man with the heroin would be there in a while. John Mann, appellant’s co-defendant showed up thereafter. Appellant and Mann had a conversation out of Hahn’s presence; then Mann left. He later returned with a canvas bag, which contained the heroin. Hahn testified that appellant gave him the heroin. Appellant denied this, stated Mann tricked him into holding the heroin which he immediately put down on the coffee table in the living room, and then left the room. Hahn stated Mann took the money, $950. Hahn performed a field test on the substance which was positive for heroin.

Hahn testified while they were waiting for Mann, he and appellant got into a conversation about drugs. Appellant admitted at the time of the sale that he was using various drugs, including heroin and marijuana, and that he had marijuana around the house. He stated he had not used drugs since the time of his arrest. He also alleged that Ingram had constantly pestered him for drugs, and that Mann was a known pusher.

Appellant filed a motion for continuance so as to have an independent examination of the heroin on May 9, 1974, six days prior to trial. Since appellant was not present at that time, the motions were held till the day of trial, May 15. At the May 9 hearing the prosecutor offered to give defense counsel what he had at that time, the scientific reports. The heroin did not arrive back in Mississippi till the night before the trial; the government chemist brought it with him. At the May 9 hearing the court told counsel he would have an opportunity to have the heroin examined and tested on May 15. On May 15, after conversing with the government chemist, defense counsel ascertained definitive tests could not be performed outside a laboratory. Counsel then asked for a continuance which was denied.

The grant or denial of a continuance will not be disturbed absent a clear showing of abuse of discretion by the trial judge, United States v. Moriarty, 5 Cir., 1974, 497 F.2d 486, 489, and cases cited therein. Appellant did not exercise due diligence in obtaining his own expert witness. He did not even raise the point until six days before trial. He did not have an expert on hand at trial. Appellant did not challenge the qualifications of the government’s chemist, who testified the substance was heroin hydrochloride, a Schedule I controlled substance. The chain of custody was adequately established. Indeed there is no requirement that the prosecution introduce the contraband itself when other reliable evidence is proferred which establishes the nature of the contraband, United States v. Graham, 5 Cir., 1972, 464 F.2d 1073. Here the chemist testified he received the substance and it was heroin. Under these circumstances, the court did not abuse its discretion in denying a continuance.

While selecting the jury panel, the court excused jurors related to defense counsel or who had used his legal services. One witness, who originally said he was prejudiced against drugs, later admitted he could apply the law as given to him. Rule 24 F.R.Crim.P. recognizes the right of the trial judge to conduct voir dire. The court has broad discretion in conducting voir dire and unless an abuse of discretion is shown there should be no reversal, United States v. Salazar, 5 Cir. 1973, 480 F.2d 144. A review of the entire voir dire does not reveal an abuse of discretion.

Appellant argues the court should have instructed the jury on entrapment. At no time during the trial did appellant raise the defense of entrapment. He denied having any part in the transaction or committing any act which constituted a crime. In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the United States Supreme Court reviewed the history of entrapment and decided to leave the matter where it stood in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). Where the defendant is predisposed to commit the crime, there is no entrapment; only when the government’s deception implants the criminal design in the mind of the defendant does the defense of entrapment come into play.

The initial burden to prove entrapment was on appellant to go forward with some evidence, more than a scintilla, that the agents induced him to commit the offense. As we stated in United States v. Groessel, 5 Cir., 1971, 440 F.2d 602, 606: “If a defendant fails to carry the burden on the issue of entrapment forward, he is not entitled to submission of the issue to a jury”. Appellant here admitted he was on drugs, including heroin, at the time of the alleged sale. He admitted discussing drug sales with the DEA agent. He admitted having the heroin in his hand at one time. Appellant was predisposed to commit the crime. He has not met the initial burden of going forward. He was not entitled to an entrapment instruction.

Finally, appellant argues the court abused its discretion in giving him fifteen years, the statutory maximum, for distribution of heroin, while his co-defendant who pled guilty only got ten years. We reject this contention since the sentence is within the statutory limits and Harper has demonstrated no abuse of judicial discretion which would entitle him to relief, United States v. Deaton, 5 Cir., 1973, 477 F.2d 65. The court did make an express finding that he would not benefit from being handled under the Youth Corrections Act.

The judgment of the District Court is

Affirmed.


author: AINSWORTH, Circuit Judge:

text:
    Robert WEBSTER, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
    No. 74-2316.
    United States Court of Appeals, Fifth Circuit.
    Dec. 26, 1974.

      John L. Hill, Atty. Gen., Larry F. York, Ben M. Harrison, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.
    Joe D. Clayton, Tyler, Tex. (Court-appointed), for petitioner-appellee.
    Before BROWN, Chief Judge, and AINSWORTH and DYER, Circuit Judges.
   AINSWORTH, Circuit Judge:

W. J. Estelle, Director of the Texas Department of Corrections, appeals from the granting of habeas corpus to petitioner Robert Webster. Petitioner was convicted of theft in Texas in 1968. At his punishment hearing the state court applied the Texas Habitual Criminal Act to set his sentence at life imprisonment. One of the offenses submitted to the court as a basis for enhancement of punishment was Webster’s conviction of robbery by assault on March 25, 1938. Webster’s sole contention in his habeas petition was that the 1968 sentence was unconstitutionally enhanced because the 1938 conviction was based on an un-counseled guilty plea. The District Court accepted petitioner’s allegations and granted the habeas petition. We reverse.

I.

The importance of the right to be represented by legal counsel in a criminal proceeding and to be provided with counsel if indigent is beyond dispute. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). An uncounseled conviction cannot be used directly as a basis of punishment or indirectly as a basis for enhancement of punishment. Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). The right of indigent defendants to have counsel appointed, as announced in Gideon v. Wainwright, supra, has been held to apply retroactively to both direct and collateral uses of pre-Gideon uncounseled convictions. See, e. g., Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). The question we confront in this case is whether petitioner proved that he was in fact without counsel at the time of his guilty plea in 1938.

The fundamental rules by which petitioner’s claim must be judged are well settled. The burden of proof is on the petitioner in a habeas corpus proceeding. Swain v. Alabama, 380 U.S. 202, 226-227, 85 S.Ct. 824, 839-840, 13 L.Ed.2d 759 (1965); Williams v. Estelle, 5 Cir., 1974, 500 F.2d 206 (1974); Richardson v. State of Texas, 5 Cir., 1970, 425 F.2d 1372, 1373. A judgment of conviction must be presumed to have been reached in accordance with due process until otherwise shown. Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461 (1938); United States v. Marcello, E.D.La., 1962, 210 F.Supp. 892, aff’d 5 Cir., 1964, 328 F.2d 961.

If the result of the adjudicatory process is not to be set at naught, it is not asking too much that the burden of showing essential unfairness be sustained by him who claims such injustice and seeks to have the result set aside, and that it be sustained not as a matter of speculation but as a demonstrable reality.

Adams v. United States, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 143 A.L.R. 435 (1942). See Stroble v. California, 343 U.S. 181, 198, 72 S.Ct. 599, 607, 96 L.Ed. 872 (1952); Mallonee v. Lanier, 5 Cir., 1966, 354 F.2d 940; United States v. Branan, 6 Cir., 1972, 457 F.2d 1062, 1066; Barbara v. Johnson, 6 Cir., 1971, 449 F.2d 1235, 1237; United States ex rel. Stickler v. Tehan, 6 Cir., 1966, 365 F.2d 199, 201; United States ex rel. Castillo v. Fay, 2 Cir., 1965, 350 F.2d 400, 401.

Although the District Court did not directly address the question of the burden of proof, its opinion suggests the court believed either that the State must bear the burden of proving petitioner had counsel, or that once petitioner alleged lack of counsel, the burden of proof shifted to the State. In Gutierrez v. Estelle, 5 Cir., 1973, 474 F.2d 899, 900, we concluded that the petitioner “properly put the state to its burden of defending the prior enhancing conviction.” We believe this statement merely acknowledges that a conviction used collaterally is subject to the same constitutional scrutiny given to a conviction that is itself the direct basis of punishment. Gutierrez does not place the burden of proof on the state in post-conviction proceedings attacking collateral use of a conviction. See Wesley v. State of Alabama, 5 Cir., 1974, 488 F.2d 30, 31.

II.

With these principles in mind, we turn to the record and ascertain that the District Court erroneously interpreted the evidence. Petitioner’s case rested entirely on his uncorroborated testimony that he was not represented by counsel when he pleaded guilty. Against this testimony the State offered documentary evidence that counsel was appointed for petitioner. The indictment in petitioner’s case bears the notation “Attorneys —Bell and Meyer.” Bell is the name of a prosecutor assigned to the court in which petitioner pleaded guilty. Meyer was apparently a reference to a defense counsel. The Criminal Docket Sheet on which petitioner’s guilty plea is recorded bears the same notation, as does the Criminal Docket for that court. The Docket Sheet also reveals that attorney Meyer represented a defendant in another case heard that same day. Finally, the Judgment and Sentence form recites that Webster “appeared in person and by counsel.”

The District Court considered this evidence insufficient to establish that petitioner was represented by counsel, citing Gutierrez v. Estelle, 5 Cir., 1973, 474 F.2d 899, 900, and Dulin v. Henderson, 5 Cir., 1971, 448 F.2d 1238. In Dulin it was undisputed that no attorney appeared for the defendant. The only issue was whether he had waived his right to counsel. See United States v. Lewis, 5 Cir., 1973, 486 F.2d 217; Craig v. Beto, 5 Cir., 1972, 458 F.2d 1131. In Gutierrez we said that “[a] minute entry alone is insufficient to prove previous representation by counsel . . . .” The entry referred to there was only a form recitation that the defendant “appeared in person and by counsel.” Similarly in Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), which we relied on in Gutierrez, there was no indication in the court records that defense counsel had been appointed. See Henley v. Ellis, 5 Cir., 1956, 228 F.2d 657; Brown v. United States, 4 Cir., 1973, 483 F.2d 116, 121. In this case we have three documents recording the names of the attorneys.

On facts similar to those in the present case we recently affirmed a denial of habeas corpus relief. In Jiles v. Beto, 5 Cir., 1971, 442 F.2d 569, petitioner alleged lack of counsel. The State offered the trial judge’s marginal notations of the names of the attorneys on court records, although the records themselves carried no reference to the attorneys, both of whom were shown to be practicing in the jurisdiction at the time of petitioner’s guilty plea. In the present case we have, in addition to marginal notations on the docket sheet, an official entry in the docket book and a notation on the indictment; and the fact that at least six attorneys named “Meyer” were practicing in Texas in 1938.

We believe the District Court gave insufficient weight to the State’s documentary evidence. Official records are entitled to a presumption of regularity. See Williams v. Babineaux, 5 Cir., 1966, 357 F.2d 481, 482; United States ex rel. Rambert v. New York, 2 Cir., 1966, 358 F.2d 715, 717; United States ex rel. Machado v. Wilkins, 2 Cir., 1965, 351 F.2d 892, 894. The admissibility of such records rests on the presumption that sworn public officials faithfully execute their duties. “The official duty and the habit of honesty and accuracy in the performance of such duties supply the element of special trustworthiness.” C. McCormick, Law of Evidence § 291 (1954). The same special reliability that warrants relaxing the hearsay rule as to these records also warrants according them great evidentiary weight.

The State also offered the deposition of Spurgeon E. Bell, the prosecutor at petitioner’s guilty plea and later Chief Justice of the Court of Civil Appeals in Houston, Texas. Chief Justice Bell testified that although he had no specific recollection of petitioner's 36-year-old conviction, it was the uniform practice of the Criminal District Court to appoint counsel for indigent defendants. He also stated he was familiar with the practices of the judges in that court, one of whom took petitioner’s plea, and that these judges regularly appointed counsel for indigent defendants. In light of Chief Justice Bell’s description of the procedures in that court, it is very unlikely that counsel was not appointed for petitioner. He also testified that he recalled a man named Meyer who regularly represented defendants in the Criminal District Court in Houston.

The District Court discounted Bell’s testimony because the prosecutor had no specific recollection of petitioner’s case and because he “testified that he was certain that the man he remembered named Meyer was not one of the six attorneys who were listed by the Supreme Court as licensed to practice prior to 1939.” We believe Chief Justice Bell’s deposition deserved more weight than the District Court gave it. Bell did recall specifically an attorney named Meyer appearing frequently in the criminal court, and although a specific recollection of petitioner’s case would have been virtually conclusive evidence, the testimony of this highly reputable witness was still of considerable probative value.

We also question the District Court’s conclusion that Bell was certain none of the Meyers licensed by the Texas Supreme Court in 1938 was the Meyer who appeared in criminal court. When asked whether he was confident that neither of two of the Meyers was the correct one, Bell answered yes, but also stated that he knew nothing more than what he had stated in an earlier deposition. In that deposition he stated only that he could not confirm that any of the Meyers listed in Martindale-Hubbell as practicing in Houston in 1938 was definitely the Meyer who appeared in criminal court. When shown the list of attorneys licensed by the Texas Supreme Court in 1938, Justice Bell stated that the initials of two of the six made no impression on him one way or the other. Moreover, the Clerk of the Texas Supreme Court certified that, prior to the organization of the State Bar of Texas in 1939, state district courts were authorized to issue licenses to practice law. The Clerk indicated that the records of pre-1939 licensing were quite possibly incomplete.

Our review of the documentary and testimonial evidence clearly shows that the judgment of the District Court cannot stand. We note, however, that even if - the judgment below were affirmed, there would be no effect on petitioner’s sentence. Petitioner has a long list of prior convictions: robbery with firearms, 2/17/38, 4/27/38, 5/17/38; theft from person, 3/12/38; escape, 5/1/57; assault with a prohibited weapon, 5/1/57; robbery by assault, 5/1/57; burglary, 5/1/57; felony theft, 5/1/57; driving while intoxicated (repetition), 1/23/67; theft, 11/4/46. Where enhancement could have been based on other convictions, reliance on an invalid one is harmless. Cline v. United States, 5 Cir., 1972, 453 F.2d 873.

Reversed.

      . Vernon’s Tex.Rev.Code Ann. § 12.42:
      Penalties for Repeat and Habitual Felony Offenders. . . . (d) If it be shown on the trial of any felony offense that the defendant has previously been finally convicted of two felony offenses, and the see-ond previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction he shall be punished by confinement in the Texas Department of Corrections for life.

      . The court stated :
      [T]his court is unable to say that petitioner was represented by counsel at either the convicting or sentencing stages of his 1938 plea of guilty ....
      Since this court concludes that the evidence fails to show that petitioner was afforded counsel at both the convicting and sentencing stages of the criminal process, the enhancement sentence of life imprisonment relying on this prior conviction is invalid.

      . It was unclear from the records and testimony which judge took petitioner’s plea in 1938.

      . The District Court, apparently relying on Bell’s inability to identify any of the Meyers listed on the Supreme Court’s list as the Meyer he recalled, stated that the State had failed to show that petitioner was represented by a licensed attorney. Bell also testified, however, that Meyer was generally accepted as a licensed attorney in the Criminal District Court.
      The court below also held that the State of Texas had not proved that even if an attorney was appointed, he actually appeared with petitioner at the entry of the plea. We are at a loss to understand, however, what further proof of actual appearance the State could ever offer in a case in which the disputed conviction is based on a guilty plea. Trial judges and prosecutors — including those blessed with sufficient longevity to be able to testify concerning 36-year-old convictions — cannot possibly recall the specific facts of <ach of the staggering numbers of guilty pleas they observe during their careers.