author: GODBOLD, Circuit Judge: TUTTLE, Senior Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred LAMBERT, Defendant-Appellant.
    No. 71-3453.
    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.

      Thomas C. MacDonald, Jr., Tampa, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Bernard H. Dempsey, Jr., Claude H. Tison, Jr., Asst. U. S. Attys., Tampa, Fla., Henry E. Petersen, Asst. Atty. Gen., Crim. Div., Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, TUT-TLE, Senior Circuit Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM, RONEY and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

Lambert, the appellant, was convicted under 18 U.S.C. § 1001 and sentenced to two years imprisonment for making a false statement to the Federal Bureau of Investigation. He had come to the FBI of his own volition to make a complaint. Following an interview he signed a written statement in which he claimed that two Tampa, Florida, police officers had physically mistreated him. Also, he stated his “feeling” that his civil rights had been violated because the two officers, in plain clothes, had arrested him for no reason. The statement was intended to, and did, trigger an FBI investigation into the incident. Subsequently appellant appeared before a federal grand jury which indicted him for perjury. For some reason not shown by the record, nothing came of the perjury charge, but appellant was indicted again under § 1001 and conviction followed.

A panel of this court reversed the conviction, United States v. Lambert, 470 F.2d 354 (CA5, 1972), adopting the reasoning of Friedman v. United States, 374 F.2d 363 (CA8, 1967), in which the Eighth Circuit held that a statement made to the FBI to touch off an investigation does not fall within the prohibition of § 1001, and rejecting that of the Second Circuit in United States v. Adler, 380 F.2d 917 (CA2, 1967), which was directly contra to Friedman. Rehearing was granted on the Court’s own motion. We now vacate the panel opinion but reverse the decision of the District Court for the alternative reason, advanced by appellant in his brief and discussed but not relied upon by the panel, that on the particular facts of this case there was a fatal variance between the indictment and the proof.

I.

Appellant argues for a narrowing construction of the § 1001 phrase “matter within the jurisdiction” of a federal agency. We are bound, however, to give that language a broad, nontechnical meaning. See Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969); United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955). Receiving and acting on statements of one kind or another is central to the function of the FBI. Perversion of a governmental body’s function is the hallmark of a § 1001 offense. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 522, 85 L.Ed. 598, 603-604 (1941). Statements such as that given by appellant and falsely pointing to possible criminal conduct that is within the power of the FBI to investigate carry a substantial potential for wasting the Bureau’s time and thus perverting its central function. We, therefore, hold that such a statement is a “matter within [FBI] jurisdiction” under § 1001.

We do not overlook the interest, relied upon by the panel opinion, that an open line of communication should be preserved between private citizens and law enforcement agencies. Voluntary disclosure may be inhibited if the citizen who comes forward is exposed to the risk of criminal prosecution in the event that what he says turns out to be untrue. We have, however, no objective data defining the extent of this risk, and judges differ in their subjective estimates. In any event, the risk is tempered by the “knowingly and willfully” requirement of the statute. Also, the potential for overzealous application of § 1001 by law enforcement agencies poses a limited threat because investigators, to whom access to information is critically important, would not want to gain a reputation for routinely seeking to prosecute complainants and informants who give false information. If agency self interest is not a sufficient brake, the establishment of different policies for the governmental agencies affected is in the executive and legislative rather than the judicial domains.

In reaching our conclusion we intend no violence to Paternostro v. United States, 311 F.2d 298 (CA5, 1962). There we held, like several other courts before and since, that a generally negative and exculpatory response made by a subject of a criminal investigation in reply to questions directed to him by investigating officers is not a crime under § 1001. Paternostro construed the word “statement,” not the phrase “in any matter within the jurisdiction” of a federal body. We note, too, that an exculpatory denial by a person under investigation may have less potential for misleading the Bureau and perverting its function than a discursive voluntary statement involving the suggestion that persons other than the maker of the statement are guilty of federal crimes.

II.

The foundation of the variance doctrine is the Fifth Amendment's command that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” If an indictment alleges particular facts as constituting an element of a charged crime, there is a variance if the trial judge admits evidence that makes out the element in a different manner. Thus in United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), in alleging the interstate commerce element of a Hobbs Act offense (obstructing interstate commerce by extortion) the grand jury stated in the indictment that the extorted owner of a concrete company imported raw materials from out of state. At trial the government presented not only evidence of importation of sand (a raw material) but also evidence that the company’s finished product was used to build an in-state mill to manufacture steel articles for interstate sale. The trial judge instructed the jurors that if they believed the government had borne its burden of proof on either type of interstate movement, the interstate commerce element of the offense would be sufficiently made out. The Supreme Court found a variance, holding that it “destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” 361 U.S. at 217-218, 80 S.Ct. at 273, 4 L.Ed.2d at 257.

An essential element of a § 1001 offense is a statement, and the indictment in the present case alleged one in the following language:

Fred Lambert stated and represented that he had been severely beaten and subjected to illegal and unnecessary punishment by two members of the Tampa Police Department, Tampa, Florida, in violation of his Civil Rights . . . (emphasis added).

The indictment identified the alleged falsification by stating that

in truth and in fact,' as [Lambert] then knew, he had not been severely beaten and he had not been subjected to illegal and unnecessary punishment and his Civil Rights had not been violated by the two members of the Tampa Police Department (emphasis added).

The government acknowledges that there was a variance between charge and proof. The statement given to the FBI and introduced at trial— more than 3% closely spaced handwritten pages and containing about a thousand words — did not contain an utterance by Lambert that he had been “severely beaten” or that he had been “subjected to illegal and unnecessary punishment.” The statement used neither the term “severe beating” nor the term “illegal and unnecessary punishment.” The closest that it came to the former was in reciting various instances of physical contact with the police officers. Appellant referred to being thrown to the pavement after telling the police “You can’t hold me, I haven’t done anything,” and to being struck on the head, face, and arms with slapjacks when he tried to get out of the car, resulting in a broken nose, bleeding from the nose, and pain, and, at least inferentially, in some injury to eyes and arms.

Not every variance is fatal. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Once the evidence is in it must appear, by retrospective comparison of probata, with allegata, that the defendant was deprived of fair notice sufficient to enable him to prepare his defense. The extent or range by which proof may vary from indictment before prejudice arises is much narrower, in a false statement case than in many other prosecutions. If the criminal charge concerns a physical event or occurrence the inquiry is single —did the defendant do the act? In the false statement case the inquiry is threefold: Did the defendant say what the indictment charges him with saying? If he did, does it depart from the truth? Was it material? The starting point for everything is the statement. Once the defendant is informed what it is he is claimed to have said, then he can marshal his evidence tending to show that he did not make the utterance charged, or that it is true, or that it was not material. If the threshold information given is not correct, the defendant is hampered in defending on all three grounds, since the starting point for the latter two is the content of his alleged statement.

We do not hold that there is a fatal variance if the statement shown by the evidence is not in haec verba with the statement charged in the indictment. But in this instance the range was too wide. What occurred was not a mere substitution in the indictment of synonymous words in a brief utterance both clearly identified and with its parameters marked. Rather the phrases “severe beating” and “subjected to illegal and unnecessary punishment” were prosecutorial efforts to summarize and restate either the overall tenor of the entire statement signed by defendant or the gist of selected but unidentified portions extracted from it. In this context variance impinges very quickly upon the defendant’s ability to mount a defense. Before trial, defense counsel — presumably having a copy of the statement (the government asserts it was furnished) and able to observe that it did not contain the utterances charged — moved to dismiss on the ground the indictment was too vague and indefinite. The motion was dismissed, and properly so. The trouble with the indictment was not vagueness and generality in what it said but its use of facially specific terms which, as it developed at trial, were not intended to be that at all, but to be generalized recharacterizations of what the draftsman considered to be the substance of all or of parts of what it would try to prove the defendant had said. In this situation a defendant is left to guess what part or parts of the statement placed in evidence the government will rely upon, or whether it will rely on overall tenor. The prosecution is free at trial, in offering evidence and arguing to the jury, to pick and choose previously unspecified bits and pieces of the statement that it considers arguably relevant to its conclusory restatement. The safe defense for such a defendant —with respect to every arguably material utterance in the actual statement that is also arguably relevant to the indictment’s conclusory language — is to prove that he did not utter it or that it was true. Even then he faces the threat that without regard to specifics the gist of the entire statement may be viewed as conforming to the indictment’s charge. An indictment which leaves in this dilemma a defendant who has given a lengthy and detailed statement is outside the allowable range of variance.

The argument is made that with the evidence in, the jury could, under sufficiency of evidence standards, infer that the various parts of the statement which it considered to be untrue added up to a claim of a “severe beating” (etc.). But this is not the test for fatal variance. Leaving aside the question whether “the jury ought [to] be left to ponder such interpretative leaps,” United States v. Lambert, 470 F.2d at 356 (panel opinion), the mere fact that jurors might reasonably agree with the recharacterization of the actual statement does not cure the prejudicial impact upon the defendant of an indictment which, as it turns out, did not sufficiently apprise him of what evidence he must marshal and present.

Events in this trial demonstrate the manner in which variation between the indictment and the evidence concerning the utterance charged infect the issue of whether what the defendant said was true. At trial both police officers acknowledged that they struck defendant with slapjacks. One officer stated that he struck Lambert one time on the knee or leg. In denying a motion for judgment of acquittal the trial judge, out of the jury’s hearing, described as a “false report” the [purported] statement [by defendant] that he has been “severely beaten about the face.” The judge, referring to the foregoing testimony by the officer, also commented that the “tap on the knee” was quite different from “severely beaten about the face.” But “severe beating” was the grand jury’s term, not appellant’s. Thus the court measured departure from the truth by beginning at a fictitious starting point, the restated characterization of the indictment, rather than with what defendant in reality had said. The other officer had testified that he struck defendant “alongside of the head,” which tended to show the truth of defendant’s actual statement that he had been struck about the head and face.

What we have already said applies with as much or more force to the third prong of what the indictment charged Lambert with uttering:

Fred Lambert stated and represented that he had been severely beaten and subjected to illegal and unnecessary punishment by two members of the Tampa Police Department, Tampa, Florida, in violation of his Civil Rights . ' . . . (emphasis added).

This restatement couples the claim of civil rights violations with that of being beaten and subjected to punishment. The actual statement was this:

I feel that my civil rights have been violated because I was arrested for no reason by two men in plain clothes. The two men fractured and lacerated my nose, as well as injuring my eyes and arms. In view of my condition, I feel that I should have been permitted to stay in the hospital and not have been taken to the police jail to be booked. I feel that my rights were violated by the two men who identified themselves to me as detectives, names unknown to me.

It is readily apparent that the most specific claim of violation of “civil rights” is that of arrest without reason. Whether the claim includes the charges that the officers fractured and lacerated Lambert’s nose and injured his eyes and arms, and took him to jail for booking instead of leaving him in the hospital, is a question of interpretation. This aspect of Lambert’s statement, rewritten to tailor it to the wishes of the draftsman of the indictment, when laid against the actual statement, presents too wide a variation.

We pretermit the issue of whether Lambert’s “feeling” that his “civil rights” were violated was a statement of opinion (with respect to which a jury charge was asked and refused) or a statement of law rather than of fact, since the restated wording of the indictment varied so widely from the actual statement.

The opinion of the panel is vacated. The decision of the District Court is reversed and the cause remanded to the District Court.

APPENDIX “A”

Tampa, Florida

August 4, 1969

I, Fred Lambert make the following voluntary statement to John Edward He-garty, who has identified himself to me as a Special Agent of the Federal Bureau of Investigation.

I was born on February 28, 1931 in Jefferson, North Carolina. I reside at 218 Beach Place, Tampa, Florida and I am employed as a waiter at Licata’s Steak House, 312 Tampa Street, Tampa, Florida. I have served in the United States Army and United States Marine Corps and have received honorable discharges.

At approximately 2:00 a.m. on Thursday, July 30, 1969, while walking home from work on Parker Street, Tampa, Florida, I stopped to light a cigarette. I had difficulty in lighting the cigarette because of poor matches. At this time a man came from across the street and said that he was waiting for a ride and if he did not have a ride he would have no place to stay. I did not say anything to this man.

This man was white, approximately early 30’s, about 5'9", 165 lbs, wearing sport coat, turtle neck shirt. He appeared to be wearing dirty clothes and his general appearance appeared to be dirty.

I continued on my way home and observed this man following about four or five feet behind me. He followed me for about five or six blocks. When I came to 218 Beach Place, I started to walk into the driveway, at which time the man who had been following me, came up to me, showed a badge and said he was a detective and I was under arrest. I said “You can’t hold me, I haven’t done anything.” The man then threw me to the pavement and was joined by another man, who said he was a detective.

The second man was white, in his 40’s, about 5U1", 180 lbs, wearing sport shirt and pants.

The second man put handcuffs on me and began to twist on the handcuffs so that I was in much pain. I told the two men that they were hurting me and to let me go as I had not done anything.

The two men picked me up and placed me in a car that was up the street a short way. I cannot describe the car. I was placed in the back seat. I tried to open the door to get out at which time both men hit me with slapjacks on the head, face and arms. I was hit many times. I began to bleed from the nose and I was in much pain.

One of the men stated that it looked as though I should be taken to the hospital. The men drove me to the Tampa General Hospital. I was taken to the emergency entrance, I was put on a stretcher and was taken to an operating room. A doctor worked on my nose and placed a splint and bandages on my nose. I was very weak and in pain..

The two men then told me that they were going to take me to the police station to be booked. The two men who told me this were not the two men who had arrested me but were two police officers in uniform. I told the two police officers that I had not done anything. The two police officers got hold of my arms at the wrist and twisted me off the table.

I cannot describe the two police officers in uniform and I do not know their names.

I was placed in a police wagon and was taken to the Tampa Police Department Jail. I was searched and fingerprinted and was placed in a cell on the same floor as the booking desk. I was not photographed by the Tampa Police Department.

I later was taken to a cell on the second floor at which time I called a friend, who in turn called a bondsman for me. The bondsman was Sam Ferlita. I was bonded out somewhere between eight and nine in the morning.

Later that morning I went to the office of Dr. Claude M. Burpee, 1401 Swann Ave, Tampa, Florida for additional treatment. I have been treated by Dr. Burpee on August 4, 1969 and have another appointment on August 6, 1969.

I feel that my civil rights have been violated because I was arrested for no reason by two men in plain clothes. The two men fractured and lacerated my nose as well as injuring my eyes and arms. In view of my condition I feel that I should have been permitted to stay in the hospital and not have been taken to the police jail to be booked. I feel that my rights were violated by the two men, who identified themselves to me as detectives, names unknown to me.

I would like to add that after leaving work after midnight on July 30, 1969, I stopped to have two bottles of beer and then proceeded to walk home as is my usual custom.

I have read this statement concisting [sic] of this page and three other pages, and it is true and correct to the best of my knowledge.

/s/ Fred Lambert

WITNESS John Edward Hegarty, SA, FBI, Tampa, Fla. 8/4/69

TUTTLE, Senior Circuit Judge

with whom BROWN, Chief Judge, and WISDOM, THORNBERRY, GOLDBERG, SIMPSON and MORGAN, Circuit Judges, join (concurring in part and dissenting in part):

I concur, of course, in the disposition of this ease by the Court. No less than does the majority of the Court, I consider that there was an impermissible variance between the indictment and the proof upon which Lambert was convicted.

Without intending unnecessarily to belabor the issue, however, I dissent from that part of the opinion which vacates the prior decision and opinion in this case and which holds that section 1001 comprehends false statements made to the Federal Bureau of Investigation. I am strongly of the view that, since Lambert’s statement to the FBI did not relate to a pecuniary claim against the government the question then was only whether his allegedly false report in any sense “perverted” the normal functioning of the FBI. I think not. As stated in the original opinion:

“Indeed when appellant went into the Tampa office of the FBI, he went to ask that agency to do what it normally does, that is, to investigate. The normal function of the FBI was to ascertain whether Lambert’s statements were true or false and the mere fact that they were, upon investigation, found to be false does not mean, ipso facto, that they worked a perversion of the FBI’s regular business.” (Emphasis in original) 470 F.2d 354, 359. Fn. omitted.

I can imagine no more important national policy than that of preserving an open line of communication between private citizens and law enforcement agencies. Therefore, without attempting to reargue what was contained in the original opinion of the Court, I feel it appropriate to repeat the following language which was used there, and which I feel even more strongly now is appropriate :

“We are all familiar with the possibilities that arise when an individual makes a complaint concerning law enforcement officers (local or national). He is often met with a difficult or impossible burden of proof. If feelings run high, the ones complained against may feel strong enough of their position to seek an indictment under such a statute as this. Need we speculate on the chilling effect of such' punitive possibilities on even the person who is honest and acting in good faith?”

I would reverse the judgment on the ground that 18 U.S.C.A. § 1001 has no application to the facts of this case and remand the case to the district court with instructions to dismiss the indictment.

      . Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or rejmesentations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      18 U.S.C. § 1001 (1970).

      . There was evidence tending to prove that appellant, after being lawfully arrested, kicked, fought, bit, scratched, and forced his way out of the police car, and fell to the pavement. This case is not concerned with whether lie resisted arrest or was a bad prisoner, except to the extent that his actions relate to the federal false statement charge.

      . A statement given during the course of an investigation would seem facially to be as much a “matter within the jurisdiction” of the FBI as a statement triggering an investigation, if not more so. Such a statement, however, may collide with the “exculpatory no” cases and the disturbing proximity of the Fifth Amendment, see footnotes 3 and 4 infra, and accompanying text.
      United States v. Ehrlichman, 379 F.Supp. 291 (D.D.O., 1974), concerned a statement given in the progress of a criminal investigation initiated by the FBI. The court held § 1001 not applicable. (The statement was given without oath or verbatim transcription.) Neither the panel opinion, this opinion, nor Judge Tuttle’s opinion dissenting in part to this opinion, reaches the issue of § 1001 in the context of an FBI investigation in progress.

      . See, e. g., United States v. Bedore, 455 F.2d 1109 (CA9, 1972) ; United States v. Stark, 131 F.Supp. 190 (D.Md.1955).

      . Undoubtedly the judicial gloss put on § 1001 by the “exculpatory no” decisions originates at least in part from latent distaste for an application of the statute that is uncomfortably close to the Fiftli Amendment.

      . “The grand jury which found this indictment was satisfied to charge that Sti-rone’s conduct interfered with interstate importation of sand. But neither this nor any other court can know that the grand jury would have been willing to charge that Stirone’s conduct would interfere with interstate exportation of steel from a mill later to be built with Rider’s concrete. And it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned."

      United States v. Stirone, 361 U.S. 212, 217, 80 S.Ct. 270, 273, 4 L.Ed.2d 252, 257 (1960) (emphasis added).

      . The full text of the statement appears as Appendix A of this opinion.

      . Another aspect of the traditional test for fatal variance involves the inquiry whether the indictment and proof corresponded sufficiently to afford the defendant protection against reprosecution for the same offense. See Berger v. United States, 295 U.S. at 82, 55 S.Ct. at 630, 79 L.Ed. at 1318. We need not undertake this inquiry. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), makes clear that it is separate from the “sufficient notice” test and that failure under either test compels reversal of a conviction on the ground of nonharmless variance.

      . Materiality is an essential element of a § 1001 offense. Brethauer v. United States, 333 F.2d 302 (CA8, 1964).

      . With respect to the phrase “illegal and unnecessary punishment” the problem for the defendant is even more pronounced, since that reference connotes not only a wider range of events than physical contact but also specific intent on the part of the officers. Appellant asserted that he was arrested for no reason, which might in itself reasonably be regarded as punishment. He said that he felt he should have been permitted to stay in the hospital instead of being transferred immediately to jail. Also, he stated that he had been searched, fingerprinted, and locked in a cell overnight.

      . We have mentioned the prosecution’s freedom in presentation of its case to selectively choose from the statement and to emphasize its overall tenor as well. The same options surface again when the defendant moves for dismissal on variance grounds or on appeal urges variance. The government can counter with the argument that specific portions of the statement (but, not necessarily those focussed upon in the evidence) were sufficiently definite to let the accused know what he should have been prepared to defend against, and that the indictment language accurately summarized the overall tenor of the entire statement. On this appeal the government has made both arguments.

      . This approach spilled over to the jury instructions. The court charged that the government had the burden of proving that the defendant made a false written statement “as set forth in the indictment,” and he read the indictment to the jury, preceded by the statement, “I am going to read it again so you will see what this is precisely about.” (emphasis added).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Joseph LOWE, Jr., Petitioner-Appellant, v. Joseph H. HOPPER, Warden, Georgia State Prison, Respondent-Appellee.

      No. 74-1014.
    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1974.
    John J. Sullivan, Savannah, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., David L. G. King, Jr., Asst. Atty. Gen., John E. Ballard, Deputy Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

      Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   PER CURIAM:

This is an appeal from denial of the writ of habeas corpus to a Georgia state prisoner convicted of murdering his wife and arson in burning the family home with her body inside. The issue is whether a highly incriminating letter written by petitioner and introduced at the merits trial was the subject of an unconstitutional search or seizure.

Motion to suppress was denied at the merits trial following an evidentiary hearing. In the appeal from conviction the Georgia Supreme Court ruled on the search and seizure issue with respect to the manner in which the letter came into the possession of a law enforcement officer, and held there had been no violation of the Fourth Amendment. The federal habeas judge reached the same conclusion. That result is supported by evidence that the letter, in an envelope addressed in petitioner’s handwriting to his wife, and other personal papers of petitioner were validly turned over to the officer by a member of petitioner’s family for safekeeping. The Georgia Supreme Court did not, however, address the aspect of whether, once the officer had possession of the letter, he violated the Fourth Amendment by extracting it from among the papers turned over to him for safekeeping, opening it, reading it, and thereby discovering its incriminating nature.

The theory of the state is that the officer’s action was justified under the cases permitting an inventory of a prisoner’s property in police custody for security or storage. The federal habeas judge accepted that contention. The only reference at trial to the inventory question had been an affirmative answer by the officer to a single question of whether he made an inventory of the papers turned over to him. No testimony on this subject was developed at the state habeas hearing. We have examined the testimony at the federal eviden-tiary hearing. The officer testified that the papers were in a money bag with a zipper on it, that in the presence of members of the family (inferentially, when the bag was turned over to him) he opened the bag, and at that time he “knew what was in it” although he did not then examine all of the contents. At what one may infer was a later time, and in the presence of another police officer, he conducted what he described as the inventory. He acknowledged that at that time he was an investigating officer looking for clues in the arson case, and he stated that he opened the envelope “to see what was in it.” He referred in general terms to his desire to protect himself from any claim that he had stolen something from a package not sealed and locked. He did not explicitly deny an intent to seek fruits of a crime.

We are unable to find in the record any evidence of when or where the alleged inventory was made and on what occasion. The District Judge noted that an officer taking custody of items for safekeeping would be entitled to take steps to protect himself against a later claim that a sum of money had been in the papers and was missing. We agree, but relevant to the question of whether that was what this particular officer was doing are such matters as the length of time since the property came into his possession, whether he had left the items unprotected during that time, whether other means were available to protect himself, whether a record was made of the contents of the bag, etc. We do not know whether the letter was sealed or unsealed, whether there was a police policy of making an inventory, and whether any record was made of the items inventoried. The other officer said to be present did not testify.

We conclude that further evidence is required before a correct determination can be made of whether the Fourth Amendment was violated. The decision of the District Court is vacated and the cause remanded for further evidentiary hearing and the entry of a fresh decree.

      . Lowe v. State, 230 Ga. 134, 195 S.E.2d 919 (1973).

      . The only reference by the Supreme Court of Georgia to the inventory question is the statement: “The items which he took and inventoried were in plain view in the automobile on the floorboard.” This does not constitute a finding that the inventory was in compliance with the Fourth Amendment.


author: WINTER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ersel STOLLINGS, Appellant.
    No. 72-1745.
    United States Court of Appeals, Fourth Circuit.
    Argued May 7, 1974.
    Decided Aug. 14, 1974.
    Lafe C. Chafin, Huntington, W. Va. (Barrett & Chafin, Huntington, W. Va., on brief), for appellant.
    Wayne A. Rich, Jr., Asst. U. S. Atty. (John A. Field, III, U. S. Atty., on brief), for appellee.
    Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
   WINTER, Circuit Judge:

Ersel StoIIings was convicted of perjury in violation of 18 U.S.C. § 1623, while testifying before the grand jury which returned the indictment resulting in the convictions reviewed and affirmed in United States v. Anderson, 481 F.2d 685 (4 Cir. 1973), aff’d, 414 U.S. 1091, 94 S.Ct. 720, 38 L.Ed.2d 548 (1974). Stoll-ings was convicted March 10, 1972, and his conviction became appealable when he was sentenced May 1, 1972, to a term of three years.

In this appeal, Stollings advances the contentions that his false declarations made before the grand jury were not material to matters being investigated by the grand jury, and that the form and circumstances in which the district court gave the jury the “Allen” charge constituted reversible error. We are persuaded by neither and so we affirm.

I.

Stollings’ theory of lack of materiality of his false declarations is that the federal grand jury had no authority to investigate fraud in the contested primary election of a state official, it appearing from the facts set forth in our opinion in Anderson that the primary election of federal officials was not contested and the result was certain. Stated otherwise, Stollings argues that 18 U.S.C § 241, which makes it a crime for two or more persons to conspire to injure any citizen in the free exercise or enjoyment of his federal constitutional rights, is inapplicable to a state primary election for state official's, that a federal grand jury is without authority to investigate fraud practiced in such an election, and that, therefore, sworn testimony relating thereto given before the federal grand jury is not material as a matter of law. We held otherwise in Anderson, 481 F.2d at 698-701. It is true that the Supreme Court in affirming did not find it necessary to pass upon this point, but we think that the issue is inescapably presented here, and we find nothing in what the Supreme Court said to cause us to depart from the views we have previously expressed.

II.

Stollings’ trial extended over a period of five days. After the jury deliberated for approximately two and one-half hours, the district judge, sua sponti,.had the jurors returned to the courtroom to inquire whether a verdict had been reached. When told that it had not, he remarked that “[i]t has taken a lot of time to try this case and a hung jury will result in a mistrial and a new trial”; then he asked the jury to return to the jury room and consider further its verdict. About an hour later, the district judge again sent for the jury and inquired as to whether the jury was “hung.” When the foreman replied affirmatively, the district judge gave the “Allen” charge in the form set forth in the margin. The jury retired again and about one-half hour later returned a verdict finding defendant guilty.

Stollings claims reversible error in two -respects. First, he says that, although the charge was in the form we approved in Orton v. United States, 221 F.2d 632 (4 Cir. 1955), our subsequent rulings in United States v. Sawyers, 423 F.2d 1335 (4 Cir. 1970); United States v. Davis, 481 F.2d 425 (4 Cir. 1973), and United States v. Hogan, 486 F.2d 222 (4 Cir. 1973), have indicated disapproval of the charge in the form given and a strong recommendation that, if the charge is given at all, it be given in the modified form recommended by the American Bar Association and the Committee on the Operation of the Jury System of the Judicial Conference of the United States. Second, Stollings contends that the charge was prejudicially coercive under all the circumstances, i. e., the fact that the district judge initiated the inquiries to the jury about the course of its deliberations, the district judge initiated the suggestions that the jury was deadlocked, the inquiries were made only after short deliberations following a five-day trial, and the charge was not in the recommended form.

It is true that we have repeatedly disapproved the charge employed in Orton and have recommended the form of the charge stated in Sawyers. It is significant, however, that we did not reverse the convictions obtained in Sawyers, Davis, or Hogan for use of the Or-ton charge. We think that we should not do so here. This case was tried in early March, 1972. It was long delayed reaching us on appeal for reasons having to do with the preparation of the trial transcript. When the case was tried, Sawyers had been decided, but Davis and Hogan had not. In no sense to dilute our admonition to the district judges of this circuit that, if the Allen charge is used, it should be used in a form no stronger or less balanced than the form prescribed in Sawyers, we do not think that reversal is indicated here under the chronology we have set forth. We caution, however, that, in cases tried after the opinions in Davis and Hogan were announced and circulated, we shall feel free to treat the giving of the Allen charge, in a form other than that we have repeatedly suggested, as reversible error if we deem it appropriate so to do.

With regard to the circumstances under which the charge was given in the instant case, we are inclined to agree that as an abstract question, the district judge exhibited undue haste in his inquiries suggesting that the jury could not agree and in giving the charge. He might well have waited longer. On the other hand, the factual issues to be decided by the jury were relatively simple; the jury deliberated a not insignificant period even after the charge was given; and the nature of the crime, perjury in connection with a fraudulent election allegedly committed by a politically active deputy sheriff, was such as to raise the ugly spectre of possible improper influence on the jury if the opportunity were afforded. Viewing them in totality, we cannot say that the district judge exceeded his discretion in the circumstances under which the charge was given.

Affirmed.

      . THE COURT : I want to read you another instruction. All of you listen carefully, please.
      I want you to know that in a large proportion of cases absolute certainty cannot be expected, and although the verdict must be the verdict of each individual juror and not just a meek acquiescence in the conclusions of his fellow jurors, yet each of you should examine the question submitted with candor and with proper regard and deference to the opinions of each other.
      It is the duty of jurors to decide cases if they can conscientiously do so. You should listen with a disposition to be convinced of each other’s arguments. If much the larger number are for conviction, a dissenting juror should consider whether his doubt is a reasonable one which made no impression upon the minds of many equally honest and equally intelligent with himself.
      On the other hand, if the majority is for acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of a judgment which is not concurred in 0by the majority, and as I said before, while undoubtedly the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conference in the jury room.
      The very object of the jury system is to secure unanimity by a comparison of views and by arguments among the jurors themselves. A juror should listen with deference to the arguments and with a distrust of his own judgment if he finds a large majority of the jury taking a different view of the case from what he does himself. *
      Every juror should not go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment or that lie should close his ears to the argument of men who are equally honest and intelligent with himself.
      Will you go back and try again, please?

      . The recommended form is set forth in the margin of Sawyers, 423 F.2d at 1342, n. 7.


text:
    GULF SHORE SEAFOOD & COMPANY, INC., Plaintiff-Appellant, v. CITIES SERVICE COMPANY, Defendant-Appellee.
    No. 74-1475
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 27, 1974.
    Larry Klein, West Palm Beach, Fla., for plaintiff-appellant.

      T. Paine Kelly, Jr., William S. Rodgers, Tampa, Fla., for defendant-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

The plaintiff brought this Florida diversity action in tort against the defendant phosphate company for both compensatory and punitive damages arising out of a dam break which permitted phosphate slime to pollute the Peace River adjacent to plaintiff’s land. The single issue on appeal is whether the District Court erred in directing a verdict against plaintiff on the issue of punitive damages, thus limiting the jury to consideration of compensatory damages, for which it returned a verdict in the amount of $10,000.00.

Under the applicable Florida law, there must be evidence of willful and wanton misconduct to support an award of punitive damages. Carraway v. Revell, 116 So.2d 16 (Fla.1959); Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936); Glaab v. Caudill, 236 So.2d 180 (Fla.Dist.Ct.App.1970). In Boyce v. Pi Kappa Alpha Holding Corp., 476 F.2d 447 (5th Cir. 1973), this Court recently reviewed the Florida case law and found that there are two essential elements of willful and wanton misconduct:

(1) the actor must have knowledge, actual or constructive, of the likelihood that his conduct will causé injury to other persons or property; and
(2) the conduct must indicate a reckless indifference to the rights of others, that is, conduct which may be termed equivalent to an intentional violation of those rights.

476 F.2d at 452. Although the question whether the totality of a situation evidences willful and wanton misconduct is an issue for the jury, the trial judge must initially determine whether there is the requisite conflict in substantial evidence to justify submitting the question to the jury at all. See Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969); Boyce v. Pi Kappa Alpha Holding Corp., 476 F.2d 447 (5th Cir. 1973).

Boeing Co. v. Shipman sets forth the rule in this Circuit that a trial judge should grant a motion for directed verdict if the facts and inferences point so strongly in favor of one party that reasonable men could not arrive at a contrary verdict. In ruling on a motion for directed verdict, the trial judge must consider all of the evidence and must draw against the movant all reasonable inferences which are most favorable to the party opposing the motion. If there is substantial evidence in opposition to the motion, that is, evidence upon which reasonable men in the impartial exercise of their judgment may reach different conclusions, then the trial judge must submit the issue to the jury.

After a careful review of the evidence before the District Court, we hold that the trial judge correctly directed a verdict against plaintiff on the issue of punitive damages. Plaintiff did not adduce substantial evidence which, viewed in a light most favorable to its position, would support a finding of willful and wanton misconduct on the part of defendant in either the construction or maintenance of the phosphate dam in question. At the specific request of plaintiff, we have viewed the photographic slides which were taken after the phosphate slime escaped from the dam. While these slides graphically depict the extent of pollution and damage which the escaping slime caused to the local geography, they are not sufficient, taken with the other evidence, to support a conclusion that defendant, at any time or in any manner, acted with such reckless indifference in building or maintaining the dam in question as to justify an award of punitive damages under Florida law.

Affirmed.


author: AINSWORTH, Circuit Judge:

text:
    Clifton Ralph CRAMER, Petitioner-Appellant, v. Jack H. WISE, Warden, Federal Correctional Institute, Respondent-Appellee.
    No. 74-1174
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 3, 1974.
    James C. Considine, Charles L. Tighe, Midland, Tex., for petitioner-appellant.
    William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge:

Appellant Cramer was convicted in March, 1972, of 15 counts of mail fraud, and was sentenced to the custody of the Attorney General pursuant to 18 U.S.C. § 5010(b), a provision of the Youth Corrections Act. In addition, the district court imposed a fine in the sum of $10,000. Cramer subsequently brought this appeal under 28 U.S.C. § 2255 to vacate the $10,000 fine. In rejecting Cra-mer’s claim that a fine is inconsistent with Youth Correction Act sentencing, the trial court cited Cramer’s proceeds from his mail fraud activities ($90,000) and the broad discretion given district courts in sentencing matters in support of the propriety of the fine. The sole issue to be resolved is whether it is permissible for a court to impose monetary fines when sentencing a person under the Youth Corrections Act.

This matter is one of first impression in the Fifth Circuit, and there have been only two cases which have considered the issue. In United States v. Hayes, 9 Cir., 1973, 474 F.2d 965, the defendants were convicted of possessing, with intent to distribute, approximately 18 pounds of marijuana. They were committed to the custody of the Attorney General for treatment and supervision under 18 U.S.C. § 5010(b) and fines of $2000 on one party and $1000 on the other were also imposed. The Ninth Circuit held that the monetary penalties were impermissible, concluding that YCA sentencing limited a judge to the options specified in the Act.

The Federal Youth Corrections Act is an alternative sentencing provision. At the discretion of the judge a youth offender deemed treatable under the Act can be sentenced to treatment rather than punishment under the applicable penalty provision provided by law. A combination of rehabilitative treatment and retributive punishment is not intended and is improper. See United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 726 (1970).
We conclude that a judge electing to commit a youth offender for treatment and supervision under the alternative sentencing provisions of the Federal Youth Corrections Act is foreclosed from imposing an additional punitive penalty under another provision.

Hayes, supra, 474 F.2d at 967.

In United States v. Waters, 1970, 141 U.S.App.D.C. 289, 437 F.2d 722, the defendant was convicted of three counts each of armed robbery and assault with a deadly weapon. The trial court sentenced him to 4 to 12 years for robbery and 3 to 9 years for assault (sentences to run concurrently); but at the same time “recommended” that defendant be placed in a youth institution. The D. C. Circuit found that the trial judge desired rehabilitative treatment for the youth, but also wanted to impose a penalty to act as a deterrent to other potential offenders. , The court found this admixture improper, stating:

[T]he statutory scheme does not envisage this particular combination of rehabilitation and deterrence. It appears that once it is determined that the convicted person is a youth offender (ages 18 to 22), then Congress has decreed priority for the goal of rehabilitation. The objective of deterrence may be taken into account by the trial judge, not by overriding the statute’s rehabilitation provisions, but rather by combining them with a sentence exposing the defendant to a maximum term greater than that called for in subsection (b). (Citations omitted)

Waters, supra, 437 F.2d at 726.

Hayes and Waters properly emphasize that the purposes of the Youth Corrections Act are rehabilitative in nature. The House Report on the Act stated that its purpose was to “cure rather than accentuate the anti-social tendencies that have led to the commission of crime.” H.R.Rep.No.2979, 81st Cong., 2d Sess., 2 U.S.Code Cong.Serv., p. 3983 (1950). The Report noted further that the Act “departs from the mere punitive idea of dealing with criminals and looks primarily to the objective idea of rehabilitation.” Id. at 3985. Thus, the Youth Corrections Act is an avowedly non-punitive, rehabilitative statute. The logical inconsistencies resultant from allowing punitive fines to be imposed when sentencing under the Act make a strong case for vacating this fine.

A fair argument can be made, however, for upholding the power to impose fines in connection with YCA sentences. The language of 18 U.S.C. § 5010(b) provides that if a youthful offender is convicted of an offense “punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of penalty of imprisonment, . . . sentence the youth offender to the custody of the Attorney General . . . .” (Emphasis added). By its terms the statute does not prohibit imposing monetary fines, but only precludes the imposition of the penalty of imprisonment when sentencing under the Act. In Waters, a prison sentence and rehabilitative measures were combined, and thus the court’s conclusion was mandated by the language of the statute. Here and in Hayes, however, the combination of fines and treatment under the YCA is not specifically precluded by the Act’s language.

The Youth Corrections Act was derived from proposals forwarded by the Judicial Conference Committee on Punishment for Crime. The draft of the Conference’s youth sentencing provision provided that:

[T]he court may, as a penalty for the offense and in lieu of the penalty otherwise provided by law, sentence the youth offender to the custody of the Authority for treatment and supervision until discharged .... (Emphasis added).

Draft of an Act Recommended by the Committee to Provide a Correctional System for Adult and Youth Offenders Convicted in Courts of the United States, Tit. Ill, § 1(a).

The Act as enacted, however, specifically precluded only the penalty of imprisonment, and did not adopt the Conference draft which would clearly have disallowed monetary fines as well. The Ninth Circuit in Hayes states that it is not clear why this change was made, but that there is nonetheless no indication that fines were permissible. See 474 F.2d at 967. It can reasonably be contended, however, that this action by Congress supports a contention, that only the power to imprison (and not the power to impose fines) is precluded when sentencing under the Act.

This contention draws support from other parts of the legislative history, for it seems that what Congress most wanted to avoid was the unfortunate effects of commingling youths and hardened criminals. As the House Report noted:

By herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and by subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques, without the inhibitions that come from normal contacts and counteracting prophylaxis, many of our penal institutions actively spread the infection of crime and foster, rather than check; it.

H.R.Rep.No.2979, 81st Cong., 2d Sess., 2 U.S.Code Cong.Serv., pp. 3983, 3985 (1950). At another point, the Report expresses the hope that the Act “will avoid the degenerative and needless transformation of many of these young persons into habitual criminals.” Id. at p. 3983. Thus, what Congress wanted may have been only to remove the penalty of imprisonment, for this penalty was found to be counter-productive.

Thus, neither the statute’s language nor the Act’s legislative history directly opposes the conclusion reached by the district court. Moreover, we must recognize that appellate courts are loathe to review sentences, and that the sentencing process, absent exceptional circumstances or statutory or constitutional infirmity, has traditionally been within the sole province and discretion of the trial judge. See Blockburger v. United States, 1932, 284 U.S. 299, 305, 52 S.Ct. 180, 76 L.Ed. 306; United States v. McGhee, 5 Cir., 1974, 488 F.2d 781, 786; United States v. Pruitt, 4 Cir., 1965, 341 F.2d 700, 703-705 and cases cited n. 8; United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604, cert. denied, 1952, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652, reh. denied, 1952, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687; Note, Appellate Review of Sentencing Procedure, 74 Yale L.J. 379, 380-81 (1964). The cumulation of these considerations militates against vacating the fine.

We are of the opinion, however, that judges utilizing the Youth Corrections Act are limited to the options specified in the Act, and that fines may not be imposed on individuals sentenced under the Act. Initially, the clearly punitive fine imposed here is inconsistent with the expressed rehabilitative purposes of the Act. Secondly, a close reading of the statute itself refutes the result reached by the lower court. The provisions of 18 U.S.C. § 5010(a), (b)(c) and (d) are progressive in nature and exclusive of each other. It would seem illogical to conclude that these detailed provisions, so. obviously exclusive of each other, are not also exclusive of provisions not contained within the Act which the Act was designed to supplant.

Finally, we conclude that doubts regarding the proper extent of sanctions must be resolved in favor of the individual, not the Government. It would offend traditional notions of justice to allow an individual to be subjected to harsh penalties on the possibility of propriety. As Mr. Justice Frankfurter noted:

When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this [is] not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.

Bell v. United States, 1955, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905; see Rewis v. United States, 1971, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493; O’Clair v. United States, 1 Cir., 1972, 470 F.2d 1199, 1202-1203, cert. denied, 1973, 412 U.S. 921, 93 S.Ct. 2741, 37 L.Ed.2d 148.

For these reasons, we reverse the district court and remand with orders to vacate the $10,000 fine imposed on defendant.

Reversed and remanded.

      . Section 5010 reads as follows :
      (a) If the court is of the opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation.
      (b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Division as provided in section 5017(e) of this chajrter; or
      (c) If the court shall find that the youth offender may not be able to derive maximum benefit from treatment by the Division prior to the expiration of six years from the date of conviction it may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter for any further period that may be authorized by law for the offense or offenses of which he stands convicted or until discharged by the Division as provided in section 5017(d) of this chapter.
      (d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.
      (e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c.) it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of the order, or such additional period as the court may grant, the Division shall report to the court its findings.

      . Act of Sept. 30, 1950, c. 1115, 64 Stat. 1086, 18 U.S.C. §§ 5005-5026.

      . A previous remand in this case found that the filing of notice of appeal 11 days late was the result of excusable neglect. See 494 F.2d 1185.

      . See note 1, supra.

      . See note 1, supra.


author: GEE, Circuit Judge: TUTTLE, Circuit Judge

text:
    Gerald David KNIGHT, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3821.
    United States Court of Appeals, Fifth Circuit.
    Oct. 4, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 5, 1974.
    Phil Burleson, Robert T. Baskett, Dallas, Tex., for petitioner-appellant.
    Crawford C. Martin, Robert C. Flowers, Sarah Shirley, Asst. Attys. Gen., Austin, Tex., Randall S. Boyd, Asst. Atty. Gen., Dallas, Tex., for respondent-appellee.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   GEE, Circuit Judge:

Knight appeals from denial of his request for habeas corpus directed to the Texas prison system, where he is confined on sentence of life imprisonment and a revoked parole. The original sentence resulted from his rape of an eleven year old girl, the revocation of his parole from the kidnapping, forcible rape and brutalizing of a twelve year old. Reversal is said to be required because the jury in the second rape case found Knight insane at the time of the second rape and incompetent to stand trial at the time of his trial for it. We agree that the writ should not issue.

In 1953, petitioner was sentenced to life imprisonment for the first rape. In August, 1963, he was paroled subject to stated conditions, among which were securing permission of his parole officer before leaving the county or state to which he was paroled and obeying all municipal, state and federal laws. On May 14, 1965, he committed the second rape and fled the state. The circumstances of this act are hideous and apparently undisputed. As the Texas Court of Criminal Appeals observed in its unpublished opinion on an earlier petition :

“Neither applicant nor his attorneys deny that applicant is the one who had a forced act of intercourse with this twelve-year-old girl, nor that he took her to Jones County where he had another forced act of intercourse with her, nor that he took a tree limb and almost beat her to death in Jones County. Their sole and only contention is that applicant was legally insane at the time and, therefore, should not be held legally accountable as far as his parole revocation is concerned.”

Knight was arrested because of the second rape on July 5, 1965. Eleven days later his parole was, on recommendation of the Texas parole board, summarily revoked by the Governor of Texas. Just over a year later, a jury found him insane on the date of this offense, and incompetent to stand trial. In March of 1969, after lengthy hospitalization, he was adjudicated sane and transferred to prison to recommence serving his life sentence for the original crime. A 1971 habeas petition to the convicting court produced recommendations favorable to petitioner, but on review the application was denied for want of ^exhaustion of administrative remedies. During pendency of his motion for rehearing, the state parole board considered and denied his petition for reinstatement of his parole. Thereafter, in the summer of 1971, the Texas Court of Criminal Appeals denied his pending motion for rehearing. This petition followed, and during its pendency the Supreme Court handed down its landmark opinion in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972). Thereafter, the district court entered the order here appealed from, denying the writ but concluding that the parole board’s reinstatement hearing failed of due process for want of a written statement of evidence relied on and reasons for the denial. The court therefore ordered a Morrissey hearing or, if none were accorded, a discharge from custody.

Petitioner appeals, questioning whether his parole could constitutionally be terminated for acts which were committed during his insanity and were therefore non-volitional, and whether revocation could take place for any reason whatever at a time when he was legally insane — the analogs of insanity at of-fence and incompetence at time of trial in the criminal law.

A parole revocation hearing is not a criminal proceeding. Its purpose is not to assess guilt or to assign blameworthy acts to the various discrete pigeonholes of the criminal laws. Rather it is held to determine whether the attempt by parole to restore the parolee to the ranks of the carriers and remove him from those of the carried has failed. At this stage of matters, the interests of society and its safety must be first consulted, since — to take Knight for an example — it little matters to his prospective rape victim what mens rea, if any, is to accompany the act. To her, it is the same whether she is brutalized by one who does so from choice or because he cannot help it. And in either case, if the parolee has committed the physical act, the attempt to reintegrate him into society has obviously failed and the present effort to do so must be abandoned in favor of a more stringent form of custody. Whether the act which made the failure apparent was culpable or punishable is no concern of the revocation authority, which does not sit to punish. Its concern is whether the law has been obeyed, not whether it has been culpably broken. And thus it is that the same act at variance with the law may, for a variety of reasons, be the occasion of both a successful criminal defense and a parole revocation. At any rate, since the defense of insanity does not concern whether the act was committed or not, but only whether it was volitional and therefore culpable, and since parole revocation need only consider whether or not the act was committed, it follows that parole may, consistently with fundamental fairness, be revoked for acts committed while the parolee is insane.

In so holding, we in no sense trench upon Morrissey’s recognition that the parolee possesses rights in his conditional liberty of such dignity that they may not be disturbed without due process. We hold only that a new crime in all its elements, including mens rea, need not be proved for revocation. Proof of the commission of an act which, absent defenses personal to the actor such as insanity, is of sufficient gravity to be punishable as a crime amply suffices. “All that is required is that the evidence and the facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.” Manning v. United States, 161 F.2d 827, 829 (5th Cir.), cert. denied, 332 U.S. 792, 68 S.Ct. 102, 92 L.Ed. 374 (1947).

Knight contends as well that his parole could not constitutionally be revoked at a time when he was not competent. We are not called on to and do not decide this as a post-Morrissey matter. Pre-Morrissey it is sufficiently clear that, at any rate where the fact of a second rape was undisputed, no hearing at all was constitutionally required. Indeed, long after the time of Knight’s initial parole revocation, and about the time of his reinstatement hearing, we were noting:

“There is respectable authority to the effect that the United States Constitution does not compel a state to provide a hearing before exercising its discretion to terminate parole.” Loper v. Beto, 440 F.2d 934, 941 (5th Cir. 1971), vacated and remanded on other grounds, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972).

At all events, by the time Morrissey came down, Knight had long since been properly — by the standards of the time —deprived of that qualified liberty which bases the Morrissey rationale. There is thus no constitutional occasion for the renewed hearing ordered by the court below, and to that extent its judgment requiring such a hearing is in error. The state, however, not only does not appeal from this part of the order but concedes that hearing. This being the case, there is no occasion for us to disturb the judgment below.

Affirmed.

TUTTLE, Circuit Judge

(concurring in result):

With deference I restrict my concurrence to the decision of this Court that we affirm the trial court’s action in denying the writ but requiring a Morris-sey type hearing by the parole board. More especially, I do not agree that we should state in general terms that “. . . parole revocation need only consider whether or not the act was committed . . .” regardless of attendant circumstances.

It seems to me that Morrissey clearly states that the determination of a violation of a parole in fact is only “[t]he first step in a revocation decision . . 408 U.S. 471, 479, 92 S.Ct. 2593, 2599. The next step requires that “[t]he parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggests that the violation does not warrant revocation.” Morrissey, supra at 488, 92 S.Ct. at 2603. The parolee’s mental capacity at the time of the commission of the act charged as a violation of the terms of parole must surely be one circumstance to be considered in the ultimate decision, since conformity to the conditions of parole necessarily depends largely on volition.

It is true that in dealing with the appellant’s constitutional claim, the opinion states that it deals only with the pre-Morriss,ey requirements. I think it must be made clear that what is stated as to the nature of parole revocation hearings in general is not to be taken as an advisory opinion as to what may be considered post-Morrissey.

      . Petitioner contends, and has placed in the record matter which indicates, that the basis of the parole board’s recommendation was his flight from the state after the second rape.

      . Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

      . Not the least of which is the difference in the standards of proof applicable: the same evidence which does not convince by the criminal test of eliminating reasonable doubt may easily clear the lower bar of preponderance. Pickens v. Texas, 497 F.2d 981 (5th Cir. 1974) ; United States v. Garza, 484 F. 2d 88 (5th Gir. 1973) ; United States v. Carrion, 457 F.2d 808 (9th Cir. 1972).

      . Presumably such a one would be hospitalized, as would any other prisoner who became insane while in custody.

      . Knight makes no contention that the state failed to meet its statutory procedural requisites. Thus no question of denial of equal protection is presented. See, Loper v. Beto, supra at 940-942.

      . By its own terms, Morrissey is prospective only in application. 408 U.S. 471, 490, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484, 499.


author: JAMES M. CARTER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Ray PAYSEUR, Defendant-Appellant.
    No. 72-2928.
    United States Court of Appeals, Ninth Circuit.
    Aug. 8, 1974.
    Rehearing Denied Oct. 1, 1974.

      Joseph Shemaria (argued), Los Ange-les, Cal., for defendant-appellant.
    W. Michael Mayock, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before DUNIWAY, CARTER and WRIGHT, Circuit Judges.
   OPINION

JAMES M. CARTER, Circuit Judge:

Defendant Donald Ray Payseur appeals from a judgment of conviction on two counts: (1) conspiring with others, in violation of 21 U.S.C. § 963, to import marijuana into the United States from Mexico, such importation being prohibited by 21 U.S.C. §§ 952(a) and 960(a)(1); and (2) importing marijuana into the United States in violation of 21 U.S.C. §§ 952(a) and 960(a)(1).

As a young adult offender (see 18 U. S.C. § 4209) he was sentenced under the provisions of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026. Imprisonment was suspended under 18 U. S.C. § 3651 and he was placed on probation on the condition that he serve the first six months in jail.

The Issues

Payseur presents eight grounds for reversal:

1. The trial court’s refusal to permit the issue of entrapment to go to the jury, and the curtailment of cross-examination on matters allegedly relevant to entrapment;

2. The trial court’s instructions regarding the reliance the jury could place on one truthful witness;

3. The trial court’s denial of a motion for continuance of the trial date;

4. The trial court’s denial of access to the government’s witness Pendley;

5. The trial court’s improper admissions of hearsay statements;

6. The trial court’s denial of a motion to suppress real evidence obtained by seizure and search of Payseur’s flight bag;

7. The trial court’s improper admission of three items of documentary evidence ; and

8. The trial court’s procedural error as regards selection of the jury.

Discerning no reversible errors in any of the trial court’s actions, we affirm. Of the eight grounds asserted for reversal, only the first two (entrapment and instructions) require an extended discussion. The facts of the case are related in some detail in order to illuminate the discussion of the first ground.

The Facts

The indictment was filed on July 21, 1971, charging in count I that Payseur and seven other-defendants (Fisher, Tal-la, Idom, May, Reynolds, Masillo, and Nelson) had knowingly and wilfully conspired to import marijuana into the United States from Mexico.

Count II of the indictment charged that Payseur and May actually imported marijuana into the United States from Mexico. Count III charged Nelson and Reynolds with possession of such marijuana with intent to distribute, and count IV leveled an identical charge against Idom.

Defendant Fisher, Talla and Idom pleaded guilty. The rest went to trial, the jury finding them guilty. Only Pay-seur appeals.

At trial, the key witness for the government was an informant named Clea-tus “El Duque” Pendley. He testified that prior to 1971 he and Fisher had been partners in the business of smuggling marijuana, but that their partnership ended when Pendley was arrested in February of 1971. In July of 1971, having been released on bond, Pendley sought out William Rosenblatt, a special agent for the United States Customs Agency Service, and asked to become a government informant. Pendley was told to follow up and report any criminal activity he should observe, especially if Fisher were involved.

Soon afterwards, Pendley visited Fisher’s home in California and asked his old partner what he had been doing lately. Fisher replied, “Why smuggling, of course.”

Pendley and Fisher went to the house of Masillo in Riverside, California. They were told by Masillo that Nelson had called from Mexicali, Mexico, with the news that “some stuff” was available from Harvey. Fisher first called Nelson, who verified the information, and then called Harvey, arranging to meet with the latter in Mexicali that night. Pendley was invited.

After secretly informing customs agents of what was afoot, Pendley flew with Fisher by private Cessna airplane to Calexico, a California city just across the border from Mexicali. From Calexi-co they crossed into Mexicali and sampled Harvey’s marijuana. It was good, and Fisher agreed to pay $60 per kilogram, with delivery to be made on the Mexican side of the border. Fisher remarked that he would pick up the goods by airplane because “his boy” needed some work to do and needed to make some money. Although Fisher did not say at that time who “his boy” was, the following evidence establishes that it must have been Payseur, the present appellant.

After Pendley and Fisher left Mexico they returned to California to arrange the details of financing and transporting the marijuana. Talla, whom they met in a Colony Kitchen restaurant in Corona, agreed to supply the cash. Pendley and Fisher then split up, but met again the next day at the house of Masillo. It was there that Pendley first met Payseur, who appeared to be a friend of Masillo’s.

Pendley, Fisher and Payseur proceeded to the nearby Flabob Airport and took up the Cessna, Fisher piloting. As they circled over Riverside, Fisher pointed out a spot near the Jarupa Hills Trailer Park that he said would be a good place to land with the marijuana from Mexico. In response to an inquiry by Fisher, Payseur said he was sure he could put the airplane down there.

Later, after obtaining the purchase money from Talla, Fisher, Pendley and Payseur returned to the house of Masil-lo. Fisher, having entrusted the cash to Pendley’s custody, then left the house, saying he was going to try to get additional money. During his absence, Pend-ley displayed the cash in his custody to those present, which included, besides himself and Payseur, Payseur’s wife, Masillo and Masillo’s wife. Masillo and the two women became excited at the sight.

When Fisher returned to Masillo’s, Payseur said he knew where he could get an airplane to make the smuggling run. Pendley observed, “Well, the number one thing you need in smuggling, fellows, is an airplane to smuggle with. I think somebody ought to get on the phone and call one — get one.”

Payseur called Aer-O-West Aviation and reserved a Cherokee airplane, commenting to Pendley that he, Payseur, “knew he could fly half the load up with it.”

Fisher then gave the men final instructions. He handed Pendley a slip of paper upon which was written the name “Frank Curtis” (established as an alias of Idom). Fisher told Pendley that “Curtis” would supply the van for picking up the marijuana once the plane brought it down in California.

Fisher then departed, presumably going home. Payseur suggested to the other men present (Pendley, Nelson and Masillo) that the Corona Airport would be a good backup site in the event that anything went wrong with the spot near the Jurupa Hills Trailer Park.

Payseur, Pendley, Nelson and Masillo then went to Fisher’s house. Fisher was there and introduced them to two new men, Reynolds and May. Fisher said that May would fly to Mexico with Payseur to pick up the marijuana and that Reynolds would ride with Nelson in the pickup van.

. Pendley promptly notified customs agents of the new development. Customs agent Grootendorst thus had an airplane ready to tail Payseur and May as they flew in the Cherokee airplane down to the Calexico airport. At Calex-ico, Payseur and May took on Fisher, who had arrived ahead, and the three men flew on to Mexico. Agent Grooten-dorst kept his plane aloft just above the border, waiting. After twenty-five minutes, he saw the Cherokee airplane coming back. He followed it to Palm Springs, California, where he lost the track.

Other customs agents were waiting, however, at the landing site in Jurupa Hills Trailer Park in Riverside. They watched as the Cherokee touched down and taxied over to a van, then flew off again five minutes later. The van promptly departed as well.

Shortly thereafter, the Cherokee landed in Corona. Customs agents were waiting there too. Payseur stepped out on the wing of the airplane, holding a flight bag. An agent announced his arrest, and Payseur, putting the flight bag down on top of the wing, stepped down to the ground. After Payseur’s custody was ensured, the agent seized the bag. In it were various maps, used at trial as evidence of the crime.

At sundry places and times, Fisher, Talla, Idom, May, Reynolds, Masillo and Nelson were also arrested.

I. Entrapment

Payseur contends that the judgment of conviction must be reversed because the trial court (a) improperly curtailed the cross-examination of a key government witness on matters relevant to the entrapment defense, and (b) erroneously refused to submit the issue of entrapment to the jury. Our perusal of the trial record convinces us, however, that the contested acts of the trial court were neither improper nor erroneous.

a. Curtailment of cross-examination

Pendley, the key government witness, was subjected to lengthy cross-examination by five separate lawyers for the defense. Defendant Payseur now points to various instances where the court disallowed particular questions by the defense and concludes "It is thus apparent that the defense below did not enjoy the broad latitude of cross-examination necessary to explore exploiter Pendley’s background, motives, credibility and involvement in entrapment. Though there is no doubt that many of the court’s rulings were technically correct, the harsh curtailment of questioning undoubtedly dampened the defense vigor for the pursuit of truth.”

Having studied the trial transcript, we agree with defendant Payseur that “many of the court’s rulings were technically correct.” But we do not agree that the tenor of the court’s curtailment of questioning was harsh or unfair. The court disallowed questions probing the state of Pendley’s mind, for Pendley was not on trial, and Pendley’s state of mind is legally irrelevant to the entrapment issue. Legitimate inquiries, those having a material bearing on whether Payseur was induced to commit a crime to which he was not predisposed, were allowed. The court’s discretionary power to limit cross-examination was thus unabused.

b. Refusal to submit entrapment issue to jury

On the basis of the evidence presented, the trial court was correct in refusing to submit the issue of entrapment to the jury.

Entrapment is a relatively limited defense, not ordinarily constitutional in nature. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366. It consists of two parts: (1) the defendant is induced by government agents to commit the particular acts charged, and (2) the defendant is not predisposed to commit the prohibited acts at any propitious opportunity. United States v. Glassel, 488 F.2d 143, 146 (9 Cir. 1973).

When a material question of fact on the issue of entrapment has been presented, the court must submit the issue to the jury. However, whether the elements of the defense have become an issue of fact for the jury is to be determined by the trial judge. Notaro v. United States, 363 F.2d 169, 175 (9 Cir. 1966); United States v. Glassel, 488 F.2d 143, 146 (9 Cir. 1973).

Although there is no rigid formula for determining when sufficient evidence has been presented to create a question of fact for the jury on the issue of entrapment, the court in United States v. Christopher, 488 F.2d 849 (9 Cir. 1973), enunciated some guidelines which we find useful in the case at bar.

In Christopher, we said that “The slight testimony which we have held allows the issue of entrapment to go to the jury must still constitute some evidence of inducement or persuasion by the Government.” Id. at 850-851. Further, the court specifically repudiated statements in Notaro, supra, to the effect that any assistance by a government agent in the commission of the crime was sufficient to present the issue of entrapment.

The court noted that “Despite the broad language of the Notaro footnote, the evidence of government intervention which requires a jury instruction on entrapment must tend to show that the crime may have been induced by the Government.” Id. at 851, fn. 1; accord, United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366.

In Glassel, supra, the court found that the trial judge had a duty to rule on the issue of entrapment because the defendant’s actions indisputably demonstrated his predisposition to commit the crime.

We have the same situation here. The record indisputably shows that Payseur was predisposed to commit the crime and the court therefore had a duty to rule on the issue of entrapment as a matter of law. Fisher’s reference to Payseur as his “fly boy” implies Payseur’s regular participation in Fisher’s previous smuggling operations. Payseur’s interaction with the other members of the conspiracy reinforces the notion that he was a veteran. He showed no reluctance to commit the crime. Quite to the contrary, he displayed a degree of enthusiasm, expressing confidence in his ability to land an airplane in a tight spot, áffirmatively approving certain plans made by Fisher, and even suggesting additional plans himself. The entrapment defense is available to “unwary innocents” but not “unwary criminals” like Payseur. Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

II. The Instruction on Reliance on One Truthful Witness

Defendant Payseur challenges the giving of one instruction as plain error. No objection was made to it below by any of the five defense attorneys. The instruction read:

“The testimony of a single witness may be sufficient to convince you beyond a reasonable doubt of the existence of every essential element of the offense charged if you believe beyond a reasonable doubt that the witness is telling the truth.” (Emphasis added)

The instruction is similar to the example in Devitt and Blackmar, Federal Jury Practice and Instructions, § 12.17 (2nd ed. 1970). There the instruction read:

“The testimony of a single witness may be sufficient to convince you beyond a reasonable doubt of the existence of an essential element of the offense charged, if you believe beyond reasonable doubt that the witness is telling the truth.” (Emphasis added)

Payseur’s contention would apply both to the instruction given and the form instruction in § 12.17. The contention of the defendant focuses on the word “truth.” He argues that the instruction permits a jury to convict if it concludes that a witness believes he is telling the truth even though the jury thinks he is mistaken.

The argument is unpersuasive. The common sense interpretation of the instruction given is that the jury may convict on the basis of a single prosecution witness if it believes beyond a reasonable doubt that what the witness said happened is what in fact did happen.

We hold that the instruction as given did not constitute plain error, hence the failure to raise an objection before the trial court forecloses a challenge now. Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 85 L.Ed. 1037 (1941).

Although we do not find error, we disapprove of the challenged instruction. District judges would be well-advised to modify the instruction, if they use it, to read as follows after the word “if”:

“. . .if you believe beyond a reasonable doubt that the witness is truthful; and believe that what the witness said happened is in fact what happened; and believe that the testimony of the witness covers each element of the offense charged.”

The form instruction in § 12.17 is more limited in its scope than the one given in this case because of its reference to “an essential element of the offense charged” as contrasted to “every essential element of the offense charged” as appears in the instruction given. We prefer the more limited version. If § 12.17 is used it should read:

“The testimony of a single witness may be sufficient to convince you beyond a reasonable doubt of the existence of an essential element or elements of the offense charged, if you believe the witness has truthfully and accurately related what in fact occurred.”

III. The Other Assignments of Error

The following contentions of the defendant are without merit:

a. Denial of a motion for continuance of the trial date. Payseur and four co-defendants first appeared for arraignment on August 27, 1971. Fisher and Talla were then fugitives. Idom later entered a plea of guilty and was sentenced. Upon motion of the five defendants, the arraignment was continued to September 7, .1971. On this date Pay-seur had not retained counsel and Ronald Bain was appointed to represent him. At Payseur’s request, trial was set for November 9,1971, two months away.

On the date set for trial, Godfrey Isaac appeared and moved to be substituted as attorney for Payseur and for a continuance of the trial date. In reply to the court’s questions he stated, “in the event that the motion for a continuance is denied, which appears likely, nevertheless we will be prepared to proceed.”

Contrary to Payseur’s contention, there was no claim by Isaac that he was “utterly unprepared.” The record does not reveal when Isaac was retained or when he began work on the case. After the jury was selected the court, on its own motion, continued the trial from November 9 to November 11. There was no abuse of the court’s discretion.

b. Alleged denial of access to Pend-ley, the government’s informer-witness. On September 7, 1971, the trial court sua sponte ordered the government to disclose whether an informer was expected to testify, but not his identity or his expected testimony. The government complied, and the disagreement of counsel as to whether there should be disclosure of the identity and address was entered in the discovery statement filed with the court.

A defendant is not entitled as a matter of right to the name and address of any witness. Rosenzweig v. United States (9 Cir. 1969) 412 F.2d 844, except as provided in 18 U.S.C. § 3432 for capital cases.

In any event, the defendant is ordinarily required to file a motion and make a sufficient pretrial showing of need before the government must comply with a request for the name or address of a witness. United States v. Richter (9 Cir. 1973) 488 F.2d 170, 175. At no time did counsel for the defendants ask for a hearing on the matter or file a motion for discovery under Rule 16, F.R. Crim.P.

Moreover, counsel for the defendants were provided prior to trial with a statement that the witness Pendley had made to customs agents. Following Pendley’s testimony on direct examination there was no claim by defendant Payseur of surprise or unpreparedness for cross-examination nor any request for a continuance. Pendley’s direct testimony ended on a Friday afternoon and the trial did not start again until Monday afternoon.

c. Hearsay declarations were properly admitted. The acts and declarations of Payseur’s co-conspirators subsequent to his arrest, but prior to arrest of the others, were admitted in evidence against Payseur. His arrest terminated his participation in the conspiracy “in the sense that his acts and declarations following his arrest do not bind, and may not be introduced against, other co-conspirators. . . . But the converse is not true. An unarrested co-conspirator still operating in furtherance of the conspiracy may say and do things which may be introduced against the arrested one if the conspiracy is still in operation.” United States v. Wentz (9 Cir. 1972) 456 F.2d 634, 637. (Citations omitted)

Accordingly, the delivery of the marijuana to Pendley by Nelson and Reynolds, their subsequent arrest, the conversations of Pendley, Rosenblatt and Idom, Idom’s samples of the marijuana and payment of $14,000 for it, and Idom’s driving away with the marijuana-loaded van and his subsequent arrest, were all properly presented in evidence, since the conspiracy was still in existence.

Also, “. . . evidence of acts of co-conspirators which occurred after the entire conspiracy had ended and was complete may be introduced against all of the co-conspirators if the evidence tends to prove the existence of the conspiracy.” Wentz, supra, at 637. (Citation omitted). Here the questioned evidence did exactly that.

Payseur complains of three instances where Pendley was permitted to testify to statements made by Fisher, which Payseur characterizes as recitals of past events. (E. g., “Why [lately I have been] smuggling, of course.”) Assuming they were not made in furtherance of the conspiracy, any error in admitting them into evidence was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). None of the statements referred to defendant Payseur nor in any way connected him to the conspiracy. The evidence against him concerned events occurring within the period of the conspiracy, as alleged in the indictment, including events in which he participated.

d. The motion to suppress the evidence obtained by the seizure and search of Payseur’s flight bag was properly denied. The record shows that the agents involved had probable cause to arrest Payseur and seize the flight bag. In addition, exigent circumstances existed which justified the immediate seizure of the bag. Co-conspirators were at large. The bag might have been taken or lost by third parties through inadvertence. Since probable cause and exigent circumstances existed, the government was not required to secure a search warrant. Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Hernandez v. United States (9 Cir. 1965) 353 F.2d 624, 627; United States v. Mehciz (9 Cir. 1971) 437 F.2d 145, 147, cert. denied 402 U.S. 974, 91 S.Ct. 1663, 29 L.Ed.2d 139 (1971); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974).

Even if the search was improper and the exhibits from the bag improperly admitted, the error was harmless. Harrington v. California, supra. The maps and charts from the bag related only to whether the defendant had flown to Mexico. There was overwhelming evidence to this same fact based in part on surveillance by government agents and in part on the readings of the Hobbs meter in defendant’s plane.

e. Admission of documentary evidence. There was no error in the admission of the evidence as to (1) the records of Aer-O-West Aviation; (2) a certain note written by witness Pendley, and (3) a certain note written by co-defendant Fisher.

f. There was no error in procedures in selecting the jury. The record shows that the only motion made regarding jury selection was that the government supply defendants with the names of jurors to which the government would exercise peremptory challenges. The motion was correctly denied. Pointer v. United States, 151 U.S. 396, 412, 14 S.Ct. 410, 38 L.Ed. 208 (1894).

Defendant argues about the use of a “jury book” by the U.S. Attorney. There was no showing such a book existed and no offer of proof of such a fact was made.

In any event, federal courts have consistently held that lack of access by the defense to the greater range of government information about potential jurors is not a ground for reversal. United States v. Costello (2 Cir. 1958) 255 F.2d 876, 883-884, cert. denied 357 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958) ; Best v. United States (1 Cir. 1950) 184 F.2d 131, 141, cert. denied 340 U.S. 939, 71 S.Ct. 480, 95 L.Ed. 677 (1951); Christoffel v. United States (1948) , 84 U.S.App.D.C. 132, 171 F.2d 1004, 1006, rev’d on other grounds, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949) ; Hamer v. United States (9 Cir. 1958) 259 F.2d 274, cert. denied 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577 (1959) (no error merely in use of jury book to which prosecution has exclusive access).

The judgment is affirmed.