author: FEINBERG, Circuit Judge: FEINBERG, Circuit Judge: LUMBARD, Circuit Judge FRIENDLY, Chief Judge

text:
    UNITED STATES of America, Appellee, v. Albert PUCO, Defendant-Appellant.
    No. 197, Docket 72-1737.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 30, 1972.
    Decided Jan. 11, 1973.
    Rehearing Denied May 4, 1973.

      Jay Goldberg, New York City, for appellant.
    John H. Gross, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty. for Southern District of New York, John W. Nields, Jr., Asst. U. S. Atty., on the brief), for appellee.
    Before LUMBARD, FEINBERG and OAKES, Circuit Judges.
   FEINBERG, Circuit Judge:

Albert Puco was convicted in April 1972 by a jury in the United States District Court for the Southern District of New York, Arnold Bauman, J., of selling narcotic drugs to an undercover federal agent in violation of 26 U.S.C. §§ 4705(a) and 7237(b). Puco was sentenced on May 22, as a second time narcotics law violator, to 14 years in prison. This was Puco's third trial on two counts of conspiracy to sell narcotic drugs and sale of such drugs. At a trial in February 1970, Puco and a co-defendant, Robert Gonzalez, were convicted on each count, but their convictions were reversed because of improper prosecutorial comment. United States v. Puco, 436 F.2d 761 (2d Cir. 1971) (reversal of Gonzalez’s conviction, April 16, 1971, is unreported). A superseding indictment was filed the same month, again charging conspiracy and sale of narcotics. At their second trial, in June 1971, both defendants were again found guilty on each count. On appeal Puco’s conviction was once more reversed — because of use of a 21-year old conviction in cross-examining him — and his case was remanded, 453 F.2d 539; the conviction of Gonzalez was affirmed. 460 F.2d 1286. At Puco’s third trial, he was acquitted of the conspiracy charge but convicted on the sale charge. It is from this conviction that he now appeals. For reasons set forth below, we affirm the conviction.

I

The events leading to Puco’s arrest began when agents of the Bureau of Narcotics and Dangerous Drugs, together with an informer, contacted Gonzalez, a suspected narcotics dealer, to discuss a possible heroin purchase. At their first meeting, in late June 1969, Gonzalez was unable to reach his “connection” by phone. The next day Gonzalez again met with the agents and described his contact as Italian and as having “a legitimate business front.” During this meeting Gonzalez placed a call to his contact, known as “Al”; one of the agents sought to arrange a transaction with him, but the negotiations stalled. Four days later, the agents again met with Gonzalez. Once again, the heroin deal foundered, but another of the agents, George Ellin, reached an agreement with Gonzalez for a separate purchase of cocaine, to be supplied by Al.

On July 2, by prearrangement, Ellin met Gonzalez and they drove, at Gonzalez’s direction, to White Plains Road in the Bronx. When they were near Wood Avenue and White Plains Road, Gonzalez stated that this was the block where the sale would be made and that his connection owned a store in the area and used a nearby building for drug deliveries. Later they parked across the street from the block in question, and Gonzalez pointed out one building as the place where the delivery would be made at 8:00 o’clock. The two men waited; at 8 P.M. appellant Puco left the TV repair shop that he owned on the block, carrying a “suitcase type of bag.” Gonzalez then reportedly said to Ellin, “There’s my man now, the individual with the bag. He carries the merchandise in the bag.” Puco entered the building that Gonzalez had earlier identified, which was immediately next door to Puco’s shop. Gonzalez left the car and followed Puco into the building, emerging “less than a minute” later with a brown paper bag containing one-half kilo of cocaine. On a signal from Ellin, surveilling agents closed in and arrested Gonzalez. Ellin then identified Puco as he came out of the building, still carrying his bag, and Puco was arrested as well. No money had changed hands prior to the arrest.

The most substantial arguments on appeal relate to the remarks Gonzalez allegedly made to Agent Ellin. At trial (Puco’s third), Ellin described the events of the day in question, including, over defense objection, the alleged statements of Gonzalez identifying Puco as his connection. As part of the defense case, Puco’s counsel sought to introduce into evidence a transcript of Gonzalez’s testimony at his — and Puco’s — first trial, in which Gonzalez denied that he had seen Puco at all at the time and place in question. The asserted reason for introducing this transcript was to impeach the hearsay declarant, Gonzalez. After ascertaining that the Government was willing to produce Gonzalez, who was then in jail, as a defense witness, Judge Bauman refused to allow introduction of the transcript on the ground “that Mr. Gonzalez is readily available and the best way to hear what Mr. Gonzalez has to say is to produce Mr. Gonzalez.” Defense counsel declined to call Gonzalez, principally because to do so might give the prosecution an opportunity to question him about certain statements incriminating Puco that Gonzalez had purportedly made to an Assistant United States Attorney shortly after his arrest.

II

Appellant’s most challenging argument is, in effect, an attack on the constitutionality of the standard exception to the hearsay rule for the extrajudicial declarations of a defendant’s alleged co-conspirator. Puco claims that the Government should have been required to call Gonzalez as a witness before allowing Agent Ellin to report Gonzalez’s alleged statements and that the failure to do so deprived Puco of his sixth amendment right “to be confronted with the witnesses against him.” Ellin’s testimony as to what Gonzalez had said, though hearsay, was admitted as reporting statements made in furtherance of a conspiracy. See, e. g., Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953). That the testimony was admissible in spite of its hearsay character does not, however, end our inquiry. Although there has not been a consensus in the Supreme Court as to the scope and substance of the Confrontation Clause, the Court has clearly stated that the Clause is not merely a codification of the hearsay rule. See Dutton v. Evans, 400 U.S. 74, 81-82, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (opinion of Stewart, J.), quoting California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

Nonetheless, recent Court decisions indicate that the considerations governing the hearsay rule also animate the principles of the confrontation guarantee. Although careful to avoid placing evidentiary rules in a constitutional strait jacket, the Court has emphasized the importance of subjecting evidentiary statements to challenge by cross-examination of the declarant during at least some stage in the judicial proceedings against a defendant. Thus, in California v. Green, supra, testimony at a preliminary hearing at which counsel conducted cross-examination was held admissible at trial because of that prior cross-examination, regardless of whether the witness was available at trial, 399 U.S. at 165-66, 90 S.Ct. 1930; and the Court also held that since the witness was available for cross-examination at trial, the preliminary hearing testimony would have been admissible even if there had been no opportunity to cross-examine. Id. at 157-64. See Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) (conviction invalid as prosecutor read to jury confession of accomplice, who invoked fifth amendment privilege and thus effectively prevented cross-examination).

The function of the cross-examination requirement is to assure that “the trier of fact has a satisfactory basis for evaluating the truth of the prior statement” introduced into evidence at trial, whether by transcript of a prior hearing or by hearsay testimony. California v. Green, supra, 399 U.S. at 161, 90 S.Ct. 1930. However, some statements are, because of their content or the circumstances in which they were uttered, obviously reliable even in the absence of cross-examination of the declarant. Thus, in Dutton v. Evans, supra, 400 U.S. at 89, 91 S.Ct. 210, the Court indicated that the presence of sufficient “indicia of reliability” may, in some circumstances, permit the prosecution to introdüce out-of-court statements into evidence even though the declarant is available to it and the defendant has never had an opportunity to cross-examine him. Justice Stewart’s plurality opinion in Dutton, which was joined by three other justices, indicates that the exact scope of this exception to the usual requirement of an opportunity to cross-examine must be worked out on a case-by-case basis, id. at 86, 91 S.Ct. 210, but the exception apparently applies at least where the statement is clearly trustworthy and is not “crucial” to the prosecution or “devastating” to the defendant. See United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); cf. United States v. Clayton, 450 F.2d 16, 19-20 (1st Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). While the latter standards are fairly general, it should be noted that the prosecution in Dutton apparently had a very strong case. Twenty witnesses testified against the defendant, including an eyewitness who identified him as one of the participants in the triple murder, and the plurality opinion characterized the hearsay testimony there in question as “of peripheral significance at most.” 400 U.S. at 87, 91 S.Ct. 210. Although the holding in Dutton is apparently not sui generis, its scope is uncertain in view of both the facts of the case and other recent decisions. See, e. g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972) (transcript of principal witness from first trial admissible at second trial as witness not available and there was adequate cross-examination at first trial); California v. Green, supra; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (transcript of preliminary hearing testimony inadmissible at trial despite availability of cross-examination at earlier hearing unless Government makes reasonable effort to produce witness at trial); see generally, Davenport, The Confrontation Clause and the Co-Conspirator Exception in Criminal Prosecutions: A Functional Analysis, 85 Harv.L.Rev. 1385 (1972).

Nonetheless, applying the standards of Dutton as we understand them, we conclude that the Confrontation Clause did not bar admission of Agent Ellin’s testimony reporting Gonzalez’s. statements. There is no reason to question the accuracy of Gonzalez’s identification of Puco as his source. Gonzalez undoubtedly believed Ellin to be merely an “innocent” purchaser, not a government agent; otherwise Gonzalez would not have been there. Thus, Gonzalez’s voluntary disclosure of his source was presumably not tainted by any motive to falsify the identification. Nor is there any reasonable possibility that Gonzalez was in error in his statements since at 8:00 o’clock, the predicted time, Puco appeared and entered the predicted building with a “suitcase type of bag,” Gonzalez followed Puco into the building and emerged almost immediately with the agreed-upon cocaine, and was followed shortly by Puco, still carrying his bag. Moreover, Gonzalez’s earlier description of his source — as Italian, as answering to the name Al, as owning a legitimate business—is consistent with identification of Puco as the source. In view of all these circumstances, the statements of Gonzalez, if made, were reliable. As for the question whether the reported statements were in fact ever made, no confrontation issue is raised by the use of Ellin’s testimony. As the Supreme Court said with reference to this problem in Dutton, 400 U.S. at 88, 91 S.Ct. at 219:

The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only as to what he has seen but also as to what he has heard. [Footnote omitted.]

We also cannot say on these facts that Gonzalez’s statement to Ellin was “devastating” or “crucial,” although ordinarily a verbal identification of a defendant might well be. Admittedly, these terms do not offer a precise standard, but we interpret them as requiring that the evidence be in some way essential, indeed central, to the prosecution’s case. It is true that Ellin’s testimony about what Gonzalez had said to him on July 2 was more important than was the hearsay statement quoted in Dutton. But even though evidence of Gonzalez’s verbal identification of Puco was helpful to the prosecution, it came as part of a sequence of events that made the statement almost unnecessary. Given what had occurred prior to 8:00 P.M. on July 2, even if Gonzalez had said nothing to Ellin when Puco appeared, Gonzalez’s immediate departure from the car and entry into the building spoke volumes. A jury could well have convicted Puco based upon prior events and what Ellin had observed of Puco’s and Gonzalez’s entries into the building and their respective departures from it, Gonzalez with the cocaine.

Finally, on the peculiar facts of this case Gonzalez was “available” to the Government as a witness more in theory than in fact. At the second trial of Gonzalez and Puco, Gonzalez took the stand in his own defense. The Government confronted him with a statement made after his arrest admitting that Puco was his source of narcotics; Gonzalez denied making the statement and the trial judge refused to permit the Assistant United States Attorney to whom Gonzalez had allegedly made it to so testify. On the appeal from that second trial, Puco asserted that the denial of his motion for severance had prejudiced him because the Government, in cross-examining Gonzalez, had referred repeatedly to his post-arrest statement that Puco was his source, even though Gonzalez was then unwilling to so testify. Presumably, if the Government had called Gonzalez as a hostile witness in Puco’s third trial, the defense would have complained vigorously — and quite possibly successfully — when Gonzalez was again confronted with his statement. See 3A J. Wigmore, Evidence §§ 904, 905 (Chadbourn Rev.1970). Since Gonzalez was not called, the defense had the choice of leaving him out of the trial altogether or calling him as a defense witness with the possibility of impeachment. To this it might be said that the Government, by Ellin’s testimony, injected Gonzalez’s statements into the case, because Ellin could have told his story without referring to these statements of Gonzalez. But, as already shown, that evidence was clearly admissible, and in large part inferable merely from Ellin’s presence at White Plains Road with Gonzalez and the accompanying events and circumstances.

In sum, we regard Dutton as requiring a careful case-by-ease analysis of the effect of the co-conspirator rule. When Gonzalez identified Puco as “my man,” Gonzalez had no motive to falsify. Moreover, his remark was almost unnecessary in view of his immediate action and the events preceding and following it. Finally, the Government was uniquely hampered from putting Gonzalez on the stand. On these facts, application of Dutton suggests that no constitutional error was committed.

Ill

Appellant also objects to the refusal of the court to permit introduction of the earlier testimony of Gonzalez after agent Ellin had quoted him. Citing a number of authorities, e. g., 3A J. Wigmore, supra, § 884; 4 B. Jones, The Law of Evidence § 936, at 1764 (5th ed. 1958), Puco asserts that he is entitled to use the inconsistent statements of a hearsay declarant (Gonzalez) in order to attack his credibility, and that he need not lay a foundation otherwise required for use of such statements, see, e. g., United States v. Hayutin, 398 F.2d 944, 952-953 (2d Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968), since the prosecution did not call the declarant. Although we can accept the general validity of appellant’s premise, cf. Carver v. United States, 164 U.S. 694, 697-698, 17 S.Ct. 228, 41 L.Ed. 602 (1897), his conclusion that the district court erred in rejecting his claim does not follow. By use of this theory, appellant actually seeks to introduce the evidence of Gonzalez’s denials of Ellin’s story not primarily to discredit the reliability of Gonzalez’s alleged identification of Puco, but rather to contradict and discredit Ellin’s version of the events of July 2. Used in this manner, the prior testimony is submitted for the truth of its content and is thus hearsay, which Judge Bauman could properly exclude, even though it may have had some very marginal probative value on the credibility of Gonzalez.

Apparently in anticipation of this conclusion, appellant also cited to the court below the prior recorded testimony exception to the hearsay rule. See C. McCormick, Handbook of the Law of Evidence ch. 25 (2d ed. 1972). However, this exception has traditionally been predicated upon the unavailability of the witness. See, e. g., id. § 255, at 617; Proposed Rules of Evidence, 51 F.R.D. 315, 440 (Advisory Committee’s Note to Rule 804). Here the prosecution declared in open court its willingness to produce Gonzalez, but defense counsel declined. That Puco’s attorney did not wish to expose such a witness to possibly damaging cross-examination does not justify introduction of Gonzalez’s prior testimony under this exception to the hearsay rule.

Puco’s final argument goes to the sufficiency of the evidence against him. We have already indicated that there was ample evidence for a jury to convict.

Judgment affirmed. We wish to compliment appellant’s assigned counsel, Jay Goldberg, for his excellent briefs and argument.

ON PETITION FOR REHEARING

FEINBERG, Circuit Judge:

The United States has petitioned for a rehearing by the panel, and, in view of the statements contained in petitioner’s brief, it seems appropriate to comment briefly on them. The United States claims that the panel decision has unveiled

a new test which, as a pre-condition to admitting a declaration of a co-conspirator, requires not only the usual findings that the declaration is in furtherance of a conspiracy of which the defendant was then a member, but the additional findings that the declaration is “reliable” and that it is not “crucial” to the Government’s case or “devastating” to the defense.

In addition, the United States claims that the “new test” is unsupported by Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), and that that decision, if anything, stands for the proposition that the traditional co-conspirator rule in the federal courts should remain untouched.

We believe that the Government reads too little into Dutton and too much into the panel decision in this case. While the Court did state in Dutton that “we do not question the validity of the co-conspirator exception applied in the federal courts,” id. at 80, 91 S.Ct. at 215, it did so only to make clear what the issue was before it. The analysis in Dutton, as indicated by the panel opinion in this case, requires another look at the traditional co-conspirator rule in the federal courts. The amicus brief filed by the Solicitor General of the United States in Dutton itself went into that question extensively. At least four circuit courts that have encountered the question since Dutton was decided have felt compelled to consider whether the Court’s decision in Dutton affected the traditional co-conspirator rule, see the authorities collected in footnote 11 of the panel opinion, and two of them have gone through the same analysis as the panel opinion in this case. United States v. Adams, 446 F.2d 681, 682-84 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971); United States v. Weber, 437 F.2d 327, 335-40 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). Therefore, we adhere to the position that ignoring the implications of Dutton is unwarranted and unwise.

The United States claims that as a result of the panel decision application of the co-conspirator rule in the district courts in this circuit will be unworkable. The Government suggests that from now on, because of the panel opinion, before a district judge decides that the declaration of a co-conspirator may be admitted, the judge must determine not only that the declaration is “reliable” but also that it is neither “crucial” to the Government’s case nor “devastating” to the defense. The panel opinion made no such holding. In referring to the latter two criteria, we were acting out of caution — perhaps with an excess of that quality — to satisfy ourselves that the declarations of Puco’s co-conspirator, Gonzalez, were properly admitted regardless of how broadly Dutton might be construed. We did not hold that Dutton had to be so expansively construed, and we do not do so now. Specifically, we did not and do not hold that a trial judge must find, before admitting a co-conspirator’s declaration, that it is not “crucial” to the Government’s case or “devastating” to the defense.

For future applications of Dutton to similar situations, we suggest that when a co-conspirator’s out-of-court statement is sought to be offered without producing him, the trial judge must determine whether, in the circumstances of the case, that statement bears sufficient indicia of reliability to assure the trier of fact an adequate basis for evaluating the truth of the declaration in the absence of any cross-examination. That this is not an insuperable problem is indicated by the decisions cited above. Thus, in United States v. Weber, supra, Judge Adams pointed out that the co-conspirator’s declarations in that case presented “the traditional hallmarks of reliability because they were uttered spontaneously” and were against his penal interest when made. 437 F.2d at 340; cf. United States v. Glasser, 443 F.2d 994, 999 (2d Cir. 1971). In most cases the determination that a declaration is in furtherance of the conspiracy a determination that the trial judge now must make in every case for admissibility—will decide whether sufficient indicia of reliability were present. While there may be exceptions, we do not think that they will be frequent.

' Finally, we note that Puco’s counsel apparently intends to petition the Supreme Court for certiorari. If the Government desires a further clarification of the implications of Dutton for the co-conspirator rule, it can choose to support Puco’s petition in order to obtain guidance from the most reliable source for interpretation of Dutton.

Petition for rehearing denied.

LUMBARD, Circuit Judge

(dissenting) :

I dissent.

The panel should grant the government’s petition for rehearing to make clear that we adhere to the well established law of this Circuit concerning the admissibility of statements made by co-conspirators in furtherance of the conspiracy. Until now the generally accepted rule, not only in the Second Circuit but elsewhere, has been that where the judge is satisfied by independent evidence that the defendant was a party to a conspiracy, what another member said during the course of the conspiracy in order to carry it out is admissible against him. This time-honored rule is sound, sensible, and workable, and there is nothing in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), or in policy which should cause us to abandon or qualify it now.

The testimony at issue here concerned what Gonzalez said to Agent Ellin when they saw Puco emerge from his TV repair shop. Ellin had previously arranged with Gonzalez to purchase cocaine which Gonzalez was to secure through his contact, “Al.” For this purpose Ellin met Gonzalez and they drove to White Plains Road near Wood Avenue. Gonzalez pointed out the building where the delivery would be made at 8 o’clock. He had told Ellin that his connection owned a store in the area and used a nearby building for deliveries. At 8:00 P.M. Ellin and Gonzalez saw Puco leave his TV repair shop carrying a bag. Ellin testified that at this point Gonzalez said to him: “There’s my man now, the individual with the bag. He carries the merchandise in the bag.” Puco then entered the building which Gonzalez had earlier pointed out. Gonzalez followed Puco into the building and came out almost immediately thereafter with a brown paper bag which contained one-half kilo of cocaine.

What Gonzalez said to Ellin, about Puco was the statement of a co-conspirator made during the course of the conpiracy and in furtherance of it. As such it was admissible under the traditional co-conspirator hearsay exception which has been the law of this Circuit from time immemorial. Out of a host of cases, some before and some after Dutton v. Evans, supra, it suffices to cite United States v. Renda, 56 F.2d 601 (2d Cir. 1932); United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969), cert. denied, sub nom. Lynch v. United States, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); and United States v. Projansky, 465 F.2d 123 (2d Cir. 1972). Nothing in the plurality opinion of Mr. Justice Stewart in Dutton v. Evans, supra, undermined this long standing doctrine. The statement at issue in Dutton was not made during the course of the conspiracy but after the conspiracy was at an end, while one of the conspirators was in prison. This evidence would not have been admissible in a federal prosecution, but was permitted in a Georgia state court murder trial under a Georgia rule which allowed proof of statements made during the concealment phase of the conspiracy.

Mr. Justice Stewart made it unmistakably clear that the Court was dealing only with the situation presented in the Georgia trial. Thus at 400 U.S. page 80, 91 S.Ct. page 215, he stated:

“Appellee does not challenge and we do not question the validity of the eoconspirator exception applied in the federal courts” ,

and he went on, at page 81, 91 S.Ct. at page 215 to define that exception as being one “that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators ... if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than the concealment of the criminal enterprise.” If the Court had meant to upset a doctrine that had prevailed in the federal courts for years with specific Supreme Court approval, e. g., Wong Sun v. United States, 371 U.S. 471, 490-91, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), it would not have left the matter to inference.

Despite the fact that the statement admitted against Evans did not fall within the well-recognized federal hearsay exception, the Court proceeded to analyze the Georgia rule in the context of the Sixth Amendment. Finding that the statement was not “crucial” or “devastating” and that there were sufficient “indicia of reliability,” the Court concluded that the use of the evidence did not violate the Sixth Amendment and that it was therefore admissible. Thus, nothing in Dutton v. Evans, supra, cast doubt on the settled federal rule.

I see no reason for casting doubt upon the rule regarding the admission of co-conspirator’s statements. Before the declaration of a co-conspirator can be admitted, the judge must be satisfied “by a fair preponderance of the evidence independent of the hearsay utterances,” see United States v. Geaney, supra, 417 F.2d at 1120, that the conspiracy existed and that the defendant was a member; and the statement itself must have been made in the course of the conspiracy and in furtherance of it. These requirements protect against the use of unreliable evidence, since the circumstances in which the statement is made— prior to detection and for the purpose of implementing the illegal scheme of which the defendant has been shown to be a part — tend to assure the reliability of the declarant and the accuracy of the statement. To the contrary, the statements received by the Georgia court in Dutton were made after the conspiracy had ended and were therefore subject to a host of reliability problems, including the possibility of improper motive or bias on the part of the declarant.

As regards statements within the traditional co-conspirator rule, it is of no moment in determining admissibility that these may be “crucial” or “devastating.” Prejudice and relevance are inseparable in such cases, and if the statement is made during the course and in furtherance of the conspiracy, its obvious relevance must carry the day.

Whenever a criminal offense has been carried out by more than one person, and this is charged in a large percentage of federal criminal prosecutions, statements made by those who are the leaders, or by their confederates, in an effort to carry it out, are necessarily the heart of the offense. When taken together with the other evidence in the ease, these statements, without any further proof, necessarily constitute reliable evidence of the kind which judge and jury are well equipped to evaluate. There is no logical reason to impede unnecessarily the use of this evidence as the panel opinion seeks to do.

It may be that panels of the Third and Ninth Circuits have regarded Dutton as a justification for changing the law in their respective circuits, see United States v. Weber, 437 F.2d 327, 335-40 (3rd Cir. 1970) cert. denied 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971). and United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404 U.S. 943, 92 S.Ct. 294, 30 L.Ed.2d 257 (1971), although in both cases, as here, the decision was in the government’s favor and it was thus precluded from seeking certiorari. But a contrary result was reached by the First Circuit in United States v. Clayton, 450 F.2d 16 (1st Cir. 1971), where the defendant’s petition for certiorari was denied, 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250 (1972). I think my colleagues are unjustified in unsettling the law of this Circuit without positive en banc approval of a majority of the active judges of the Circuit. The fact that only Chief Judge Friendly and Judges Hays and Timbers voted to en banc this case by no means implies that a majority of the active judges approve the panel opinion; I know from experience how difficult it is to persuade a majority of the active judges of a busy court to agree to en banc consideration where they believe the panel has reached the right result simply because they disagree with the opinion. In my view the panel committed serious error in an opinion, which should now be corrected.

I note that the panel has since filed a supplemental opinion on petition for rehearing. Although the panel has retreated somewhat from its original position, it has not gone nearly far enough. While the deletion of the “crucial” or “devastating” test is most welcome — although hard to understand if Dutton were really applicable — the panel still takes the position that the district judge must determine if a declaration by one of the co-conspirators in furtherance of the conspiracy sought to be admitted against a defendant presents “sufficient indica of reliability” — without offering any guidance as to what indicia will suffice. The supplemental opinion states that the determination that a declaration is in furtherance of the conspiracy will generally supply the needed “indicia of reliability.” However, since the majority would give the defendant a chance to question this, it seems clear that, as a practical matter, the necessity of ascertaining whether statements made by co-conspirators during the course of the conspiracy are “reliable” will needlessly delay the trial of many federal cases. If trial judges should follow the lead of the dicta of the panel in this matter — and I hope they will not — they must either hold a pre-trial hearing, or, more likely suspend the taking of evidence before the jury in order to go into this collateral question. It now takes at least twice as long to try the average criminal case as it did ten years ago due in large part to the fact that before or during trial, hearings may now be required to determine the legality and admissibility of a search and seizure, a confession, or an identification. To this list my panel colleagues now would add a further test for statements by co-conspirators. Rather than further complicating and lengthening criminal conspiracy, trials in this manner, I submit there is every reason for keeping the trial procedures as simple as possible, and for adhering to long accepted principles unless and until the Supreme Court should clearly instruct otherwise.

For these reasons, I would grant the government’s motion for rehearing. I would strike from the panel opinion the seven pages of discussion under the section marked “II,” pages 1102 to 1105 and substitute in its place the following:

“The objection to Ellin’s testimony regarding what Gonzalez said to him about Puco when they saw Puco emerge from his TV repair shop carrying a bag and then enter the building next door is entirely without merit. Gonzalez’s statement was the statement of a conspirator made in the course of the conspiracy to further the success of the conspiracy. Dutton v. Evans, 400 U.S. 74 [91 S.Ct. 210, 27 L.Ed.2d 213] is not in point. That case did not involve a statement made in the course of the conspiracy and in furtherance of it. In Dutton the Georgia state court had admitted a statement made by a co-conspirator after he had been committed to prison and arraigned on a charge of committing the same murders with which the defendant was charged. Thus the need for showing additional characteritics of reliability which Mr. Justice Stewart’s opinion considered needed to save the conviction in that case are not required here.”

ORDER DENYING REHEARING AND REHEARING EN BANC.

A petition for a rehearing containing a suggestion that the action be reheard en banc having been filed herein by counsel for the appellee, a poll of the judges in regular active service having been taken at the request of such a judge, and there being no majority in favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

Chief Judge FRIENDLY dissents in an opinion in which Circuit Judge HAYS and TIMBERS concur.

Circuit Judge MANSFIELD also dissents.

FRIENDLY, Chief Judge

(dissenting) :

FRIENDLY, Chief Judge, with whom HAYS and TIMBERS, Circuit Judges, join, dissenting from the denial of reconideration en banc:

Like former Chief Judge Lumbard, I find it impossible to understand how two members of a panel can modify a rule of evidence applied by this Circuit in scores of decisions, approved by all the commentators, see, e.g., 4 Wigmore, Evidence § 1079 (Chadboum Rev. 1972); McCormick, Evidence § 267, at 645-46 (Cleary ed. 1972); ALI, Model Code of Evidence, Rule 508(b); Commissioners’ Uniform Rules of Evidence 63(9) (b); Proposed Federal Rules of Evidence, Rule 801(d)(2), recognized by the Supreme Court in cases as old as United States v. Gooding, 12 Wheat. (25 U.S.) 460, 469-470, 6 L.Ed. 693 (1827), and as recent as Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and expressly preserved by the very decision, Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), now claimed to have qualified it.

The expression by the panel majority, unreviewable at the instance of the government since the decision was in its favor, is bound to create chaos in the administration of criminal justice in this circuit. Some judges may decide to disregard it. Others will attempt to apply it, although I am at a loss to know how they can since the panel supplies no guidelines as to what additional “indicia of reliability” will suffice. In some cases where a judge who regards himself as bound by the panel’s expression finds insufficient indicia, exclusion will result in an acquittal, unjustified under the long-standing rule of law, from which the government will be unable to appeal. In others, where the declaration has been admitted and the defendant convicted, panels of this court will be obliged to face the question á majority of the active judges seek to avoid today. There will be many months of uncertainty before the law in this circuit can be put back where the Supreme Court meant to leave it, as it ultimately will be either by this court or by higher authority. I cannot think of a case more clearly demanding en banc consideration.

      . Both provisions were repealed, effective May 1, 1971, by the Comprehensive Drug Abuse Prevention and Control Act § 1101 (b)(3)(A), (4) (A), 84 Stat. 1292. (The equivalent provisions are now found at 21 U.S.C. §§ 828(a), 841(a)(1), (b)(1) (A).) However, under § 1103(a) of the new Act, the repealed sections are still applicable to “ [p] rosecutions for any violation of law occurring prior to the effective date of section 1101 . ”

      . Puco is free on bail pending this appeal.

      . The Supreme Court has characterized the co-conspirator rule as a hearsay exception. See Dutton v. Evans, 400 U.S. 74, 80-81, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). However, the question whether the admissibility of admissions (of which the co-conspirator rule is one aspect) is in fact an exception to the hearsay rule has been much debated, compare Morgan, Admissions as an Exception to the Hearsay Rule, 30 Yale L.J. 355 (1921) (exception to hearsay rule), with IV J. Wigmore, Evidence §§ 1048-49 (3d ed. 1940)- (use of admissions is consistent with, not exception to, hearsay rule), and the new federal rules of evidence adopt the latter view. Fed.R.Evid. 801(d)(2), 56 F.R.D. 183, 293 (1972) (eff. July 1, 1973, subject to congressional veto).

      . The defendant in Dutton v. Evans was tried for participating in the murder of three police officers in Georgia. Among the witnesses called by the prosecution was a prison inmate, who testified that, his cellmate, also charged with the murders, had exclaimed, on returning to his cell from the arraignment: “If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now.” The testimony was admitted under a Georgia statutory hearsay exception, and the Supreme Court, in a 5-4 decision, rejected defendant’s claim that he had been denied his constitutional right to confront the declarant, whom the state had never called to testify.

      . The deciding vote was cast by Justice Harlan, who, in a concurring opinion, elaborated a very narrow interpretation of the Confrontation Clause as incorporating only the traditional rule that a defendant be permitted to cross-examine all witnesses testifying against him in court. See 400 U.S. at 94, 91 S.Ct. 210. According to Justice Harlan, the issues discussed in the other opinions were properly questions of due process, and he found the procedures used at trial to be reasonable under that standard.

      . Whether the evidence in question must be “crucial” or “devastating” to escape the Dutton holding is not explicitly stated, but Justice Stewart does distinguish the Court’s prior decisions on that ground, among others. See 400 U.S. at 87, 91 S.Ct. 210.

      . Defendant did not object to this earlier testimony by Ellin.

      . We also note that, unliké in Dutton, see note 4 supra, there is no ambiguity in Gonzalez’s statements. Hence, while cross-examination might arguably have been helpful to defendant in elucidating a possible non-incriminatory meaning in Dutton, see 400 U.S. at 103-104, 91 S.Ct. 210 (Marshall, J., dissenting), such was not the case here.

      . As indicated above, this court did not rule on that issue but reversed on another ground.

      . Similarly, in Dutton, the out-of-court declarant was available to defendant, who chose not to call him. 400 U.S. at 88 n. 19, 91 S.Ct. 210.

      . AVe note in passing that since the decision in Dutton, four circuits have upheld the constitutionality of the co-conspirator exception in general or at least in circumstances analogous to those found here. See, e. g., United States v. Cerone, 452 F.2d 274, 283 (7th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972); United States v. Clayton, supra, 450 F.2d at 19-20; United States v. Adams, supra; United States v. Weber, 437 F.2d 327, 335-40 (3d Cir. 1970), cert. denied, 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971); cf. Childs v. Cardwell, 452 F.2d 541 (6th Cir. 1971), cert. denied, 407 U.S. 912 (1972); United States v. Glasser, 443 F.2d 994, 998-99 (2d Cir.), cert. denied, 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971).

      . Thus, appellant wanted to introduce, inter alia, the following testimony of Gonzalez from the first trial:

        Gonzalez — direct
      Q. But, sir, you were sitting in the car with Agent Ellin, were you not?
      A. Yes.
      Q. Around 8:00 o’clock?
      A. Yes.
      Q. Before you came out of the car to go into 1382 White Plains Road, sir?
      A. Yes.
      Q. Is that correct?
      A. Yes.
      Q. Now, according to the testimony of Agent Ellin, you said, when the man came by, “That’s my man,” or “That’s the man,” or words to that effect?
      A. No.
      Q. Did you see Mr. Puco around there at that point?
      A. I didn't see Mr. Puco at all.

        Gonzalez — cross
      Q. I see. Now, you were asked before, and I wish to ask you here, you drove up to 1380 White Plains Road, is that correct, sir?
      A. I didn’t drive.
      Q. You mean the other, the agent drove, right?
      A. Yes.
      Q. And at that time, when you got there, did you at that time tell the agent that this was where your connection was?
      A. No, I didn’t.
      Q. What did you tell the agent at that time?
      A. I told him that they have told me that the package was to be picked up at 8:00 o’clock on that hallway, and that’s all I said to him.

      . Justice Stewart’s opinion in Dutton makes clear that the fact that an out-of-court declaration comes within a traditional hearsay exception does not in itself assure the constitutionality of its admission into evidence. See 400 U.S. at 81-82, 91 S.Ct. 210. Decisions not dealing with the confrontation question are not controlling on this issue.

      . Along with the determination that there is sufficient other evidence to establish that the defendant against whom the declaration is offered was a member of the conspiracy when the declaration was made.

      . Appellant filed a motion, -which was granted, to stay the issuance of the mandate pending the filing of a petition for certiorari.

      . If the judge should rule erroneously against the government on this issue, he may well produce an unjustified acquittal, from which the prosecution has no recourse.


source: Caselaw Access Project

author: FAIRCHILD, Circuit Judge. STEVENS, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur NASSER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard W. HAUFF, Defendant-Appellant.
    Nos. 18600, 18601.
    United States Court of Appeals, Seventh Circuit.
    March 5, 1973.
    As Modified on Denial of Rehearing April 16, 1973.

      Maurice J. Walsh, Sherman C. Magidson, Terence Mac Carthy, Federal Defender Program, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Robert A. Filpi, and William T. Huyck, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

Appellant • Arthur Nasser is an attorney, and between September, 1955 and May, 1963, he was employed by the U. S. Internal Revenue Service. He served first in the enforcement division and later in the Tax Court division of the office of regional counsel.

In December, 1965, he was indicted for violations, after leaving government service, of a conflict of interest statute, and Nasser and Richard Hauff (not a federal employee) were indicted for conspiracy to cause violation of the same statute.

Count I charged that from December, 1968 until August, 1964, Nasser knowingly acted as attorney for August Circella in connection with an investigation of the 1958 and 1959 federal income tax liability of Cireella, a matter in which Nasser had participated personally and substantially as an employee of IRS. The jury failed to agree on this count, and it was then dismissed, on motion of the government.

Count II was a similar charge involving the collection of Hauff’s 1958 liability, and Count III a similar charge involving an investigation of Hauff’s 1959 liability. The jury found Nasser guilty of both counts.

Count IV charged that beginning in December, 1963 Nasser, Hauff, and Circella conspired knowingly to have Nasser act as attorney for Hauff and Cireella (not a defendant) in matters in which Nasser had participated personally and substantially as an employee of IRS. The jury found both Nasser and Hauff guilty on this count.

I. Claims that the Statute is Unconstitutional, at least as applied to Nasser.

A. Vagueness.

Appellants argue that § 207(a) violates the due process clause of the fifth amendment because of vagueness in that the employee must decide at his own risk (1) whether he participated “substantially” in a matter while he was employed; and (2) whether the mode of participation is encompassed by the words “or otherwise.”

We believe that the language of the statute is sufficiently definite to permit a fact finder to decide on the basis of the evidence whether defendant’s participation fell within the proscribed conduct. Avoiding conflicts of interest is a traditional ethic of the legal profession. The standards are matters of common understanding and practice among attorneys. This statute proscribes perhaps as precisely as possible an unethical practice that can manifest itself in infinite forms. As the Supreme Court said of a different statute in United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877 (1946):

“We think that the language Congress used provides an adequate warning as to what conduct falls under its bah, and marks boundaries sufficiently distinct for judges and juries fairly to administer the law in accordance with the will of Congress. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.”

B. Bill of Attainder.

Appellants argue that § 207(a) is a bill of attainder in violation of Article I, section 9 of the constitution because it is a legislative act that imposes “punishment” on a group without a judicial trial. They emphasize, both with respect to their bill of attainder claim, and the ex post facto argument later discussed, that the “punishment” to which they refer is not the penal sanction which would be judicially imposed for a completed violation of § 207(a), but “the disqualification which former employees in general, and Nasser, as a practicing attorney in particular, suffer as a result of their former employment by the Government.”

The group punished by § 207(a), as they see it, consists of all government employees, and the punishment imposed is the restriction of their practice of law or similar activity after leaving the government so as to exclude representation of others in government matters in which the particular employee participated personally and substantially when he was an employee.

We are unable to agree with the analysis that this particular restriction is a punishment legislatively imposed upon a specified group. Rather, the statute is within the classification of a rule of general applicability for the accomplishment-of a legitimate legislative purpose. The purpose of protecting the government, which can act only through agents, from the use against it by former agents of information gained in the course of their agency, is clearly a proper one. The restriction, against acting as agent or attorney for another in a matter in which the person participated personally and substantially as an officer or employee, is equally clearly a wholly rational means of pursuing that purpose.

Appellants rely on United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), a case in which the Supreme Court struck down a law as a bill of attainder. That law disqualified all present and recent (within five years) members of the Communist Party from holding union office. The Court identified as a proper legislative purpose the exclusion from union office of persons likely to incite political strikes. The law did not provide for a judicial or quasi-judicial determination of which persons would have such intent, but was itself a legislative judgment that members of the specified group would have it and therefore constituted a bill of attainder. The Court deemed it impossible to rely upon a supposition that membership or recent membership in the Communist Party was “merely an equivalent, shorthand way of expressing those characteristics which render likely the incitement of political strikes.” P. 456, footnote 31, 85 S.Ct. p. 1719.

It happened, also, that in Brown the Court explained why § 32 of the Banking Act of 1933, 12 U.S.C. § 78, is not a bill of attainder, although it may be said to impose a restriction upon those who fulfill certain specifications, as in the case now before us. Persons engaged in certain types of securities transactions are disqualified, by § 32, from serving at the same time as an officer, director, or employee of a member bank of the federal reserve system. After noting that the banking act provision does not inflict a deprivation upon a political group, the Court said it did not incorporate a judgment censuring any group of men, but was based on a conclusion “that the concurrent holding of the two designated positions would present a temptation to any man — not just certain men or members of a certain political party,” and established an objective standard of conduct.

The conclusion underlying § 207(a), before us, that one who, after leaving government employment, acts for another in a matter in which he participated while in such employment, is likely to use against the government an advantage gained out of being the government’s agent is a common sense conclusion similar to the one underlying the banking act provision considered by the Court. We have no difficulty in finding that § 207(a) is comparable, and deeming it a generally applicable rule of conduct rather than a bill of attainder.

C. Ex Post Facto Law.

When appellant Nasser became an employee of the United States, and during most of his service, he was subject to 18 U.S.C. § 284, 62 Stat. 698, a restriction on his practice of law or similar activity in the event of leaving government employment. A few months before he left, however, Congress revised and reenacted § 284 as § 207(a), effective in January, 1963.

The difference has been described in Senate Report No. 2213, Sept. 29, 1962, 2 U.S.Code Congressional and Administrative News, 1962, p. 3861, in part as follows :

“Section 207 replaces title 18, United States Code, section 284 dealing with postemployment activities. The latter prohibits a former employee of the Government, for a 2-year period following the termination of his employment, from prosecuting a claim against the United States involving any subject matter directly connected with which he was employed .
“Subsection (a) of section 207 provides that a former Government officer or employee . . . shall be permanently barred from acting as attorney or agent for anyone other than the United States in any matter in which the United States is a party or is interested and in which he participated personally and substantially in a governmental capacity. Thus, in addition to replacing the present 2-year disqualification with a lifetime bar, section 207(a) strengthens present law by going beyond claims for money or property to the whole range of matters in which the Government has an interest.”

Appellants argue that § 207(a) as applied to Nasser is an ex post facto law in violation of Article 1, section 9 of the constitution because it more closely restricts post-employment activity than did the law in effect during most of his period of employment.

For reasons similar to those discussed with respect to the bill of attainder claim, we do not view the restriction on post-employment activity related to activity during employment as punishment for having been a government employee before the law was enacted.

As appellants argue, disqualification from practicing a profession, on account of offensive activity, may constitute punishment therefor and a law newly prescribing such disqualification on account of activity occurring before the law was passed may be an ex post facto law. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.Ed. 356 (1867), and Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L.Ed. 366 (1867). But where there is a sufficiently rational relationship between the past activity and the public interest in excluding unworthy people, the disqualification is not a punishment and a law newly imposing it is not an ex post facto law. Ex parte Garland, p. 379; Hawker v. New York, 170 U.S. 189, 18 S.Ct. 573, 42 L.Ed. 1002 (1898); Cases v. United States, 131 F.2d 916 (1st Cir., 1942) cert. denied sub nom„ Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 L.Ed. 1718 (1943); Smith v. United States, 312 F.2d 119 (10th Cir., 1963).

§ 207(a) does not disqualify former government employees from all or a segment of the practice of law. It disqualifies only from particular cases where Congress could rationally make the judgment that participation would be evil as a result of an individual’s previous activity as a government employee in the same matter.

Appellants’ argument that the disqualification itself was new implies that if § 207(a) had not been passed, Nasser would have been free to participate, after termination of his employment, as attorney in a government matter in which he had substantially participated as a government employee. Although § 207(a) provided penal sanctions which did not previously exist, we point out that Mr. Nasser would in any event have been restricted by the ethics of his profession from accepting private employment in a matter in which he had substantial responsibility while a public employee.

II. The theory of the case.

The government contended in support of Count II that in 1962, while an IRS employee, Nasser had participated personally and substantially in the matter of Hauff’s income tax liability for 1958. In April, 1962, he reviewed a proposed notice of deficiency and fraud penalty for 1958, together with related files, and recommended that the notice issue. In October, 1962, he prepared a memorandum answering a legal question involving the 1958 assessment.

The government also claimed in support of Count III participation in the matter of Hauff’s liability for 1959. Hauff had filed no return for that year and Mr. Gerard, another IRS attorney, recommended criminal prosecution. In order to coordinate the two matters, Gerard and Nasser met in April and September, 1962, and discussed the Hauff case. Thus Nasser’s participation relied on with respect to Hauff’s 1959 liability, and Count III, was incidental to his activity concerning Hauff’s 1958 liability. The participation relied on with respect to Circella’s liability, and Count I, was also incidental. The Hauff file disclosed substantial payments and other transactions in a business venture in which Hauff and Circella were associated, and there was no claim that Nasser dealt with any other matter concerning Circella. As already noted, the jury disagreed as to Count I, and it was dismissed.

Nasser left IRS May 17, 1963. In December, 1963, after Hauff sought assistance, Nasser asked Mr. Roche, another attorney, to become associated in representing Hauff concerning his ’58 liability. There is substantial evidence from which it can be inferred that for some months Nasser gave the legal advice in the matter and Roche’s function was limited to appearances at conferences and applying Nasser's advice. There is evidence that Nasser said he was concerned about possible conflict of interest. The defense interpretation of the evidence is that Nasser did not act as attorney, but ■ secured Roche for Hauff in order to avoid possible conflict.

There was also evidence that Nasser prepared Hauff’s 1959 return, submitted February 24, 1964, and an accompanying explanatory letter. An expert gave his opinion that the return, the letter, and a power of attorney to Roche, were each prepared on the same typewriter, respectively, as some other document shown to have been authored by Nasser. They were prepared at a secretarial service which performed services for Nasser, but not Hauff. Roche did not prepare them.

We deem the evidence, when viewed in the light most favorable to the government, sufficient to support the verdict. Questions raised by appellants concerning electronic surveillance involve some of the proof of Nasser’s access to the IRS files on Hauff in 1962; and there are claims of error with respect to evidence on other points. Bruton questions are raised because of testimony relating statements by Hauff tending to incriminate Nasser. Hauff did not take the stand. The government contends that such statements by Hauff were in furtherance of the conspiracy charged and shown. Appellants also argue that as a matter of law they could not be guilty of conspiracy to violate § 207(a).

III. The propriety of the conspiracy charge and conviction.

§ 207(a) prescribes a penalty for an ex-employee who acts as attorney for a client, under specified circumstances, if he acts knowingly, but does not prescribe a penalty for the client, whether he acts knowingly, wilfully, or otherwise.

The essential question presented is whether, when a client agrees with an ex-employee of the government that the ex-employee shall act as attorney or agent in a matter from which he is foreclosed by § 207(a), and the client (as well as the ex-employee) has guilty knowledge and purpose, both may properly be found guilty of conspiring to cause a violation of § 207(a).

Count IV was arguably broader in that it charged a conspiracy among Nasser, Hauff, Circella, and unknown others, to have Nasser act as attorney for Hauff and Circella. There was evidence that Hauff brought Circella to Nasser to obtain representation and that Nasser arranged with Roche to appear for Circella, under circumstances from which it could be inferred that Nasser was really acting as the attorney. We do not understand, however, that the government attempts to sustain the conviction on the theory that the jury found that Nasser and Hauff conspired to have Nasser act unlawfully as attorney for Circella, i. e., ex-employee and A conspiring to have B employ the ex-employee as his attorney in a forbidden matter.

Such an interpretation of the verdict would be dubious in that the jury could not agree that Nasser acted unlawfully for Circella. Moreover the case was not really argued nor submitted on that theory. The instructions permitted a verdict of guilty on Count IV if the jury found that Hauff knowingly and wilfully agreed that Nasser act as his attorney. There was no instruction that in order to find Nasser and Hauff guilty, the jury must find that Nasser and Hauff knowingly and wilfully agreed that Nasser act unlawfully as attorney for Circella.

In enacting § 207(a), Congress made it an offense for the ex-employee knowingly to act as agent or attorney for a client in a matter of the type specified. Agreement by the client that the ex-employee act as attorney is impliedly required. So far as § 207(a) goes, it is immaterial whether the client had knowledge of the facts which would make the ex-employee guilty of the offense, and the client is not made guilty of an offense under any circumstances. The government argues that if the client has guilty knowledge, an element it need not prove under § 207(a), the agreement that the ex-employee shall act for the client becomes a conspiracy in violation of 18 U.S.C. § 371. Thus the ex-employee, when he acted as attorney for a client who had guilty knowledge, would be guilty not only of a violation of § 207(a), and exposed to a $10,000 fine and two years’ imprisonment, but also of a violation of § 371, and exposed additionally to a $10,000 fine and five years’ imprisonment, and the client would be guilty of the latter and exposed to that penalty.

Of course it is possible that an ex-employee may violate § 207(a) when his client is ignorant of the fact that the ex-employee was such, or had participated in the matter as such, but we are strongly inclined to believe, in the nature of things, that where an ex-employee acts knowingly and unlawfully, his client will often know the facts. The client’s knowledge of those facts will frequently have been the motive for the retainer.

Appellants argue that the case falls within one of the exceptions to the rule that a substantive offense and a conspiracy to commit it are separate and distinct offenses: (1) “where the agreement of two persons is necessary for the completion of the substantive crime and there is no ingredient in the conspiracy which is not present in the completed crime” (the Wharton rule); and (2) “where the definition of the substantive offense excludes from punishment for conspiracy one who voluntarily participates in another’s crime.” Pinkerton v. United States, 328 U.S. 640, 643, 66 S. Ct. 1180, 1182, 90 L.Ed. 818 (1946).

The Wharton rule operates to prevent conviction both of conspiracy and the substantive offense where the substantive offense could not have been committed without concerted action, so that the conspiracy is really identical with or included within the substantive offense. This is most clearly illustrated in dueling, adultery, and bigamy. See Perkins, Criminal Law 535 (1957). The government points out that in our case, the guilty knowledge of the client is an essential ingredient of conspiracy, but not of the substantive offense.

The second exception really turns upon a construction of legislative intent. In Gebardi v. United States, 287 U.S. 112, 53 S.Ct. 35, 77 L.Ed. 206 (1932), cited in Pinkerton, the Supreme Court had before it the Mann Act, now 18 U. S.C. § 2421. One defendant was a man who had clearly violated the Act by transporting a woman for an immoral purpose. The other defendant was the woman, who had consented to the journey and the purpose. They were convicted of conspiracy, and the Supreme Court reversed. Having construed the Mann Act so as not to punish the woman transported even though she consented, the Court concluded there was “an affirmative legislative policy to leave her acquiescence unpunished,” precluding punishment via the conspiracy statute. And in the absence of any proof that the man conspired with others than the woman transported, his conviction could not stand.

We see, as the government argues, that there are bases for difference between the legislative attitude toward a woman transported for immoral purposes with her consent and toward a person who purposefully, in order to advance his own interests, seeks representation from an ex-employee of the government in a matter in which the latter participated when he was an employee. But in evaluating the intent of Congress in failing to prescribe a penalty in § 207(a) for the client, regardless of his degree of guilty knowledge or culpable intent, we think it more reasonable to read the omission as precluding punishment for the client than as leaving punishment for the client with guilty knowledge, up to a much greater maximum than that provided by § 207(a) for the ex-employee, to the operation of the conspiracy statute. We conclude that Hauff could not be guilty of conspiracy with Nasser, nor Nasser with Hauff, solely by reason of their agreement, knowing and wilful, that Nasser act as attorney for Hauff in the forbidden matters.

Here, too, accepting the evidence that Hauff knew that Nasser’s representation of him was unlawful, it happens there was evidence that Hauff participated in devices to conceal the offense. The extent to which the Gebardi reasoning would apply to a charge as principal, under 18 U.S.C. § 2, as accessory after the fact under 18 U.S.C. § 3, or misprision of felony under 18 U.S.C. § 4, need not be considered here, those charges being absent.

IV. Bruton: Right to confront witnesses.

Government witnesses testified concerning a number of conversations with Hauff, in Nasser’s absence. With varying degrees of explicitness and completeness, Hauff said in these conversations that Nasser had participated as an IRS attorney in Hauff’s tax matters and was currently acting as Hauff’s attorney on the same matters. Hauff did not testify and thus Nasser had no opportunity to cross-examine Hauff. Nasser's counsel objected, but the testimony was admitted, usually with a statement by the court that each was admitted against Hauff only.

Ultimately, however, the court gave an instruction that if a conspiracy has been established, the declarations of a member of the conspiracy, in furtherance of its objects, may be considered as evidence against another member of the conspiracy. The court did not identify which of Hauff’s statements might be deemed in furtherance of any conspiracy.

Appellant Nasser argues that several statements by Hauff, incriminating Nasser, were not in furtherance of any conspiracy and therefore were improperly received at the joint trial under prineipies later announced in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L. Ed.2d 476 (1968).

Bruton held that at a joint trial, proof of a confession by one defendant, incriminating his codefendant as well, makes the first defendant, in effect, a witness against the second. Unless the second defendant has had an opportunity to cross-examine the first, the second defendant will be deprived of the right to confront a witness, and the confession must be excluded, even though otherwise admissible against the defendant who gave it. Bruton is to be applied retroactively, and therefore to the instant case. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

Hauff’s statements, just referred to, described all the elements of the substantive offenses charged against Nasser. They clearly must have had prejudicial impact.

Mrs. McAdams was an employee of Hauff in a restaurant business. She described four apparently casual conversations in which Hauff made statements incriminating Nasser. She testified to a threat by Hauff, several months later, suggesting a violent death for people who talk, but with nothing to indicate the threat related to the Nasser relationship. Hauff’s earlier statements to her about the Nasser relationship could not conceivably have been in furtherance of the conspiracy, and could properly be considered against Nasser only on the tenuous theory that they permitted an inference that the threat was designed to suppress the knowledge she had gained from the earlier remarks and was thus in furtherance of the conspiracy.

Hauff’s girl friend testified that at various times she (1) aided Hauff in deception of Circella for a purpose irrelevant to this case, (2) at Hauff’s request falsely represented to Circella that she had paid Nasser his fee for representing Hauff, and (3) at Hauff’s request relayed to Circella statements about Nasser’s former government employment and current representation of Hauff. Arguably (3) may have furthered a plan to persuade Circella to have Nasser represent him, but (1) and (2) were not even arguably in furtherance of the alleged conspiracy.

Circella testified to statements Hauff made to him similar to (3) and these arguably may have furthered that plan.

Mr. Weber is an IRS inspector who investigates misconduct by IRS employees. He interviewed Hauff in April, 1964, and Weber described his statements. Much of what Hauff said constituted denial, or was otherwise exculpatory, but there were several admissions as well as statements which, though couched in “double talk”, could readily be interpreted as verifying Nasser’s unlawful representation of Hauff. Hauff emphasized the thought that his testimony would be essential to any case against Nasser, that both the government and Nasser needed Hauff, and that the government case would be hearsay without Hauff. He threatened to leave town if subpoenaed and to “take the ‘Fifth’ ” if found. Even though a good portion of these interviews contained denials or evasions, and denials may have been in furtherance of the alleged conspiracy, we can not agree with the government contention that Hauff’s incriminating statements to the inspector were, because of any tendency to discourage investigation, in furtherance of the conspiracy and therefore admissible against Nasser. . We surmise that, as related by the Inspector, these statements had great impact on the jury.

Even if we were satisfied that a criminal conspiracy had been properly proved, Bruton would compel reversal as to Nasser because significant portions of this testimony as to Hauff’s statements, incriminating Nasser, could not be admitted at a joint trial. Of course we have decided the conviction on the conspiracy count is to be reversed, but have nevertheless considered whether, on the parallel theory of a proved agency or joint venture, Hauff’s statements could be charged against Nasser. We conclude they can not.

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) established that there may be a case against a defendant relying on Bruton so overwhelming that the “violation of Bruton [is] harmless beyond a reasonable doubt”, but the government has not asked nor have we deemed it appropriate to find the Bruton error harmless in this case.

V. Electronic Surveillance Issues.

Much of the long history of this case revolves around certain instances of electronic surveillance and the claims (1) that they were unlawful and (2) that proper procedure was not taken to determine whether evidence used at trial was tainted by any of them.

The alleged offenses occurred after Nasser had left government service. The government was, however, required to prove that earlier, while still an employee, Nasser had participated in the Hauff and Circella tax matters. It happens that the government had conducted electronic surveillance of Nasser while still employed, and appellants argue they should have been given an opportunity to learn whether the surveillance led to any of the proof the government produced.

The verdict in this case was rendered July 9, 1966. Just before trial, the district court had held that the surveillance did not involve a trespass and was not unlawful, applying the rules as understood before Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, decided December 18, 1967.

On July 11, 1968, in the course of defendants’ appeal, but on motion of the government, this court vacated the judgment and remanded the cause to the district court, so that there might be in camera inspection of the electronic surveillance to determine whether the convictions had been “tainted by the use of improperly obtained evidence.”

While the matter was again before the district court, the Supreme Court decided that Katz was not to be applied retroactively. Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).

Again applying pre-Katz principles, the district court held that the electronic surveillance, with one “untainted” exception, had been lawful and reimposed sentences. Defendants again appealed.

In 1962 and ’63, agents of the Internal Security Division of the service, in the course of an investigation of Nasser, installed a microphone in his IRS office and attached a “C” clamp to his office phone from which his office and telephone conversations were transmitted to an office of the investigating agents. They also installed a pen register on Nasser’s home phone which recorded the numbers of outgoing calls. Certain interviews between agents and Nasser and Hauff were surreptitiously recorded.

On remand, the district court found that Nasser, but not Hauff, had standing to challenge the bugging device in Nasser’s office, and that it was lawful because no trespass had been committed in planting it. See Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L. Ed. 1322 (1942).

The district court found that Nasser but not Hauff had standing to challenge the pen register. It found the pen register had been installed in violation of federal wiretapping law, 47 U.S.C. § 605 (1964). It ordered that the products of this device be given to Nasser and an adversary hearing held to determine the question of taint, under Alderman. At the hearing, the court found no taint, and the finding is presently not challenged.

The district court held that each defendant had standing to challenge any recorded interviews in which he was a participant. But it found these interviews lawful under the principles in force before Katz, because “a government agent could record a conversation with a defendant without his knowledge and not violate his Fourth Amendment rights.” This ruling is not challenged, and its merit need not be considered.

Appellants here maintain their original assertion that the surveillance of Nasser’s office was an “indiscriminate search” in violation of the fourth and fifth amendments, and that the district court should have ordered production of the materials and granted a hearing on the question of taint. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); cf. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

As to the primary issue of whether the agents trespassed when planting the electronic devices, defendants emphasize that Nasser’s office was assigned to him for his exclusive use, making the entry of the agents, unauthorized by him, a trespass.

We agree with defendants that a government office as well as one in the private sector is not a public area, and trespass can be committed against the one who occupies the office. This is illustrated in United States v. Blok, 88 U.S.App.D.C. 326, 188 F.2d 1019 (1951), where a supervisor’s consent to a search by local police of a government employee’s desk for evidence of a crime unrelated to the employee’s work was held invalid under the fourth amendment.

In so doing, however, the court said,

“No doubt a search of it without her consent would have been reasonable if made by some people in some circumstances. Her official superiors might reasonably have searched the desk for official property needed for official use.”

We believe this element of work-relatedness is where the trespass line must be drawn. The surveillance in the present case was undertaken by representatives of IRS to determine whether its work was being properly performed by an IRS employee in the areas assigned to him for the purpose of such work. We conclude, because of the relationship of the surveillance activity to the work Nasser was to perform that there was no trespass involved and that under the law as it stood before Katz, there was not an unreasonable search and seizure within the fourth amendment.

In United States v. Collins, 349 F.2d 863 (2d Cir. 1965), cert. denied, 383 U. S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303 (1966), the warrantless search of a Customs Service employee’s jacket by Customs agents for emeralds stolen from Customs mail was held reasonable:

“We have no doubt that the search of defendant’s work area, including the surface and interior of his desk, conducted by Customs Agents McDonnell . . . was a constitutional exercise of the power of the Government as defendant's employer, to supervise and investigate the performance of his duties as a Customs employee. . . . The agents were not investigating a crime unconnected with the performance of defendant’s duties as a Customs employee.”

The late entry of electronic surveillance into fourth amendment doctrines requires that we analogize seized words to seized “persons, papers and effects.” Here the words seized were related and part of Nasser’s official function, and by analogy were “things” related to Nasser’s official duties. See Berger v. New York, 388 U.S. 41, 51, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).

Appellants rely on this court’s decision in United States v. Hagarty7 holding that an intercepted conversation between Nasser and Hagarty could not be used to convict Hagarty. Although Hag-arty (without the benefit of Desist) applied Katz retroactively, appellants argue that portions of Hagarty were independent of Katz in holding that the IRS could not conduct electronic surveillance of its own employee in his assigned office, for the purpose of detecting his failures to perform his duties. We conclude, however, that any discussion in Hagarty which might be so interpreted was predicated on Katz principles, and that, by reason of Desist, does not govern transactions occurring before December 18, 1967, the date of the Katz decision.

Appellant Hauff raised the issue that the government not only must report in full all instances and surrounding circumstances of electronic surveillance which it discloses, but must also affirmatively deny that the defendant was subjected to any other electronic surveillance. And where the government admits to eavesdropping and is prepared to argue its legality, appellant maintains he is entitled to an adversary hearing at which he may cross-examine the government witness.

Appellant relies on a “general reading” of Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), for the claim that the government must formally and affirmatively state that it has disclosed in full.

We do not find this in Alderman because that case dealt with the procedure to be followed “when an illegal search has come to light.” Id. at 183, 89 S.Ct. at 972. Furthermore, the rationale of Alderman was not

“ . . . lack of confidence in the integrity of government counsel or the trial judge, but only [that] the in camera procedures at issue there would have been an inadequate means to safeguard a defendant’s Fourth Amendment rights.” Taglianetti v. United States, 394 U.S. 316, 317, 89 S.Ct. 1099, 1101, 22 L.Ed.2d 302 (1969).

The problem of insuring access to information in the hands of the government which it has a duty to disclose would be an important issue in a proper case. But we do not believe this is the case, both because the appellant came forward with no substantial basis for doubting that the government engaged in unreported unlawful eavesdropping, and because we have reviewed the record of the suppression hearing and find, in the testimony, reason to believe that the government did disclose in full.

Summarizing so far, we agree with the government that the records produced from the bugging device in Nasser’s office need not be disclosed to appellants; the questions concerning the pen register materials have been resolved; and there is no challenge with respect to recordings of interviews between appellants and representatives of the government.

Appellants do not press, on appeal, the argument made in the district court that the interception of telephone messages in Nasser’s office by means of the “C” clamp violated 47 U.S.C. § 605 and entitled Nasser to a taint hearing on the material. Accordingly, we do not decide the point.

After the trial, appellants discovered Administrative Circular No. 41 from the Secretary of the Treasury, dated June 9, 1961. It states a policy against monitoring telephone calls to or from Department offices, and provides that the right to use mechanical or electronic recording equipment shall be subject to prior approval of the Secretary or the Under Secretary. The government counters with a memorandum from the Secretary, dated June 20, 1961, which asks that chiefs of Treasury enforcement agencies be advised “that Administrative Circular No. 41 is not intended to affect investigative techniques currently employed by them in pursuance of their responsibility under existing laws and regulations.”

In the absence of material amplifying those two documents, we conclude that Circular No. 41 was not directed at surveillance in the course of, internal investigations such as employed in Nasser’s office.

VI. Claims of Procedural Error before and at trial.

Appellants make a number of other arguments concerning procedural steps. Some of the questions would be unlikely to be presented in the same posture in the event of a retrial. In one instance, we do agree that the district court made an erroneous ruling.

Circella was a government witness. The defense suggested that his testimony was motivated by a promise of immunity. On cross-examination he admitted meeting with Inspector Weber on a number of occasions in company with Circella’s attorney. He said he did not remember the matter of immunity coming up and that the government had not made any promises to him for testifying.

The defense called the attorney as a witness and asked if he had been present at the meeting of Circella and the representatives of the government. He refused to answer on the ground of his client’s instructions to assert the attorney-client privilege, and the court sustained his position.

We think it clear that the communications in the course of those meetings were not privileged. Leathers v. United States, 250 F.2d 159, 166 (9th Cir. 1957), citing Wigmore on Evidence, 3d Ed., Vol. 8, p. 602, § 2311.

The judgments are reversed and the causes remanded for further proceedings consistent with this opinion.

STEVENS, Circuit Judge

(dissenting in part).

The lawyer, not the client, is primarily responsible for avoiding conflicts of interest. Indeed, in numerous situations the client may be unaware of the potential conflict; in others, he might reasonably assume that the conflict is unobjectionable. In such cases, compliance with § 207(a) is solely the responsibility of the lawyer; since the client’s consent is then merely an element of the lawyer’s crime, it does not create a conspiracy. Cf. Gebardi v. United States, 287 U.S. 112, 119-123, 53 S.Ct. 35, 77 L.Ed. 206.

But there are cases in which the client’s involvement is of critical importance. If the client knows the disqualifying chapter in the lawyer’s history, and also is conscious of the illegal character of the employment, and nevertheless retains him, it is probable that he is motivated by a desire to obtain an advantage that the law specifically forbids. In such a case the client’s intent, unlike the mere acquiescence of the concubine, characterizes a bargain which is more corrupt than the substantive offense itself. Such a bargain, in my opinion, is a conspiracy within the meaning of 18 U.S.C. § 371. United States v. Holte, 236 U.S. 140, 145, 35 S.Ct. 271, 59 L.Ed. 504.

In this case the jury found that the lawyer and his client were partners in such a corrupt bargain. Comments by the client acknowledging the retainer and its illegal character were therefore against his penal interest and admissible against the lawyer. See Rule 804(b)(4) and Advisory Committee note thereon, Rules of Evidence for the United States Courts and Magistrates. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297. Hauff’s declarations to Weber, Hanel, McAdams, and Circella, which were only admitted against Hauff, would not violate Nasser’s right of confrontation as interpreted in Bruton v. United States if they were either admissible against Nasser “under traditional rules of evidence,” see 391 U.S. 123, 128 n. 3, 88 S.Ct. 1620, 20 L.Ed.2d 476, or if their trustworthiness is otherwise supported by adequate “indicia of reliability.” See Dutton v. Evans, 400 U.S. 74, 89, 91 S. Ct. 210, 27 L.Ed.2d 213 (opinion of Mr. Justice Stewart). Since it seems unlikely that the impact of Hauff’s declarations on the jury was disproportionate to their reliability, I question the validity of the Bruton objection to most of those declarations.

I concur in part IA, IB, IC, V and VI of Judge Fairchild’s opinion.

      . 18 U.S.C. § 207(a) (1964) provides,
      “Whoever, having been an officer or employee of the executive branch of the United States Government, of any independent agency of the United States, . . . after his employment has ceased, knowingly acts as agent or attorney for anyone other than the United States in connection with any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, charge, accusation, arrest, or other particular matter involving a specific party or parties in which the United States is a party or has a direct and substantial interest and in which he participated personally and substantially as an officer or employee, through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, while so employed, . . .
      “Shall be fined not more than $10,000 or imprisoned for not more than two years, or both . . . ”

      . See ABA Code of Professional Responsibility, D.R. 9-101(B), ABA Canon 36, 7 Am.Jur.2d 141, Attorneys at Law § 158.

      . Chadwick v. United States, 141 F. 225 (6th Cir. 1905), relied on by the government, dealt with a statute providing a penalty for an officer of a bank who wilfully certified a check when there were not sufficient funds on deposit. Mrs. Chadwick, not an officer, was convicted of conspiring with an officer unlawfully to certify her check. The court held that the Wharton rule did not apply because the officer may be guilty “without the guilty complicity of the drawer or any other person.” The court did not directly address the Gebardi type question of whether Congress’ omission to provide a penalty under any circumstances for a person seeking certification of such a cheek indicated an intent that such person not be punished for such request. Considering the differences between the situations dealt with in the statute before the court in Chadwick and the statute here, it does not seem that the answers need be the same.

      . The two defendants in Bruton apparently had not both been charged with conspirmg to commit the offense of which both were convicted. We think, however, that the principle of Bruton necessarily applies to a joint trial of defendants charged with conspiracy. If the jury hears of an out of court declaration of defendant Mo. 1, not in furtherance of a conspiracy independently established and not otherwise admissible against defendant No. 2, but inculpating defendant No. 2, an instruction to the jury to disregard the declaration as to defendant No. 2 is not an adequate substitute for his constitutional right of cross-examination.

      . This IRS surveillance of Nasser was also involved in United States v. Hagarty, 388 F.2d 713 (7th Cir. 1968).

      . The Supreme Court had not yet decided Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), under which an in camera inspection of unlawfully obtained materials would not have sufficed.

      . 388 F.2d 713 (7th Cir. 1968).

      . See Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307, 312 (1932); Gordon v. United States, 438 F.2d 858, 865-866 (5th Cir. 1971).

      . Gebardi involved mere “concurrence without more,” see 287 U.S. at 120, 121, 122, 123, 53 S.Ct. 35; Holte was distinguished, not overruled. In this case, however, the client’s wrongful intent is not an element of the lawyer’s substantive offense.