author: HEANEY, Circuit Judge.

text:
    Mark ADOLPHUS et al., Appellants, v. Boris ZEBELMAN et al., Appellees.
    No. 73-1121.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 24, 1973.

      Marvin Klamen, Clayton, Mo., for appellants.
    Sanford E. Pomerantz, St. Louis, Mo., for appellees.
    Before MATTHES, Senior Circuit Judge, and HEANEY and WEBSTER, Circuit Judges.
   HEANEY, Circuit Judge.

Plaintiffs, minority stockholders of the Bagnell Investment Company, commenced an action in the United States District Court for the Eastern District of Missouri under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701 et seq. (1968). They alleged that the defendants — Bagnell and its controlling stockholders, officers and directors —had conveyed individual lots to purchasers without having blanket mortgages encumbering those lots released in accordance with a statement filed by the defendants with the United States Department of Housing and Urban Development. Plaintiffs asked the court to enjoin the defendants from further sales of land in violation of the Act and requested appointment of a receiver and dissolution of the corporate defendant.

The defendants moved to dismiss the complaint on the grounds that the plaintiffs were without standing to bring the action, and that the court was without jurisdiction to determine whether a receiver should be appointed and the corporate defendant dissolved.

The District Court denied the defendants’ motion to dismiss, apparently without a written order, and found in its memorandum opinion that it had jurisdiction. After trial, the court found that the defendants had violated the Interstate Land Sales Full Disclosure Act by selling “tracts of land on which there were blanket mortgages that had not been released at the time of the sales” and enjoined the defendants from “conducting their business in such a manner as to violate” the Act. The court declined to appoint a receiver, dissolve the corporation, or allow attorneys fees to the plaintiffs. See, 354 F.Supp. 309 (E.D.Mo.1973).

The plaintiffs contend on appeal that the District Court erred in refusing to appoint a receiver for the corporate defendant and in denying their request for attorneys fees. The defendants do not raise the issue of standing on this appeal, being content with the decision of the court below.

We must, however, consider whether the plaintiffs met the constitutional requirement for standing. If they did not, we would have no alternative but to remand this matter to the District Court with instructions to it to dissolve its injunction and dismiss the complaint.

The Supreme Court, in Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), announced a two-part test for standing. Standing exists if: (1) the plaintiff “alleges that the challenged action has caused him injury in fact, economic or otherwise;” and (2) “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Id. at 152, 153, 90 S.Ct. at 829, 830.

The first requirement is a constitutional limitation on federal judicial power under Article III; and unless it is met, a case or controversy does not exist. Thus, the court — where the parties fail to raise the issue — is obliged to do so on its own motion. Id. at 151. See, 6 C. Wright & A. Miller, Federal Practice and Procedure § 1542, 642-643 (1971); Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450 (1970). The second requirement is not a limitation on the court’s power to hear the case imposed either' by Article III or Congress Therefore, we need not decide on appeal whether that requirement is met unless it is raised by a party.

We believe that if the complaint is read liberally, the plaintiffs alleged an “injury in fact.” It alleged that the plaintiffs owned approximately fifteen percent of the shares of the outstanding common stock of the defendant corporation. It further alleged that the conduct of the individual defendants, if permitted to continue, would cause irreparable financial harm to the corporation and would inevitably depress or destroy the value of the plaintiffs’ stock. In our view, these allegations were barely sufficient to show economic injury to the plaintiffs and to meet the constitutional requirement for standing. See, Barlow v. Collins, 397 U.S. 159 (1970), 90 S.Ct. 832, 25 L.Ed.2d 192; Data Processing Service v. Camp, supra.

The question of whether the Interstate Land Sales Full Disclosure Act was intended to protect minority stockholders of a corporation which is engaged in activities that are violating the provisions of that Act is a more difficult one. Because an answer here is not required, we leave this question to be answered when it is properly raised and briefed.

Although not raised by the parties on appeal, this Court is also obliged to raise the issue of whether the District Court had the power to exercise pendant jurisdiction in this case. We are convinced that it did. The federal statutory claim and the state claim are derived from the same “nucleus of operative fact” and all claims are such that the plaintiffs would ordinarily be expected to try them “in one judicial proceeding.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

We are satisfied, after a thorough examination of the record, that the District Court did not err in refusing to appoint a receiver and dissolve the defendant corporation. That decision was within the sound discretion of the trial court. We find no abuse of discretion here.

The District Court did not abuse its discretion in refusing to award attorneys fees.

Affirmed.

      . Data Processing Service v. Camp, 397 U.S. 150, 157, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970).

      . See, Davis, The Liberalized Law of Standing, 37 U.Chi.L.Rev. 450 (1970).


source: Caselaw Access Project

author: THORNBERRY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul DAWSON, Defendant-Appellant.
    No. 73-1900
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 5, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 13, 1973.

      Stanley L. Drexler, Leslie H. Wald, Denver, Colo., for defendant-appellant.

      William S. Sessions, U. S. Atty., Jeremiah Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

Paul Dawson was convicted by a jury on a one count indictment for willfully and knowingly making and subscribing a false joint individual income tax return for the calendar year 1968 in violation of 26 U.S.C. § 7206(1). He now appeals from that conviction on the grounds that defendant’s motion to suppress should have been granted and that the assistant U.S. Attorney asserted to the jury in his closing argument his personal belief in the guilt of the defendant. Since we find that neither of these contentions warrants reversal, we affirm.

The Motion to Suppress

Sometime prior to May 1, 1970, the Dallas Region of the Intelligence Division of the Internal Revenue Service was contacted in reference to an S.E.C. investigation of certain individuals arising out of their dealings in a corporation known as United Australian Oil. Pursuant to the request from the S.E.C., an I.R.S. special agent was assigned to this investigation to determine whether these individuals were using the corporate entity to understate their personal income.

On May 1, 1970, two special agents arrived at appellant’s home, presented their credentials to him, and informed him that they were investigating the tax matters of five other individuals associated with United Australian Oil, but not the defendant. At that time, there was no pending investigation of the defendant. The special agents advised appellant that he had the right to decline to answer any questions or to furnish any information to them which he thought might incriminate himself and that he had the right to consult with an attorney before any interview. At that point, the appellant indicated that he did wish to consult with his attorney and in fact called and contacted his attorney’s partner at that moment. Having conferred with an attorney, appellant told the agents that he was willing to answer their questions and that if at any point he would like to talk with his attorney he would so advise the special agents. Dawson testified that at this interview the agents applied no psychological or physical pressure to force him to answer questions and that he felt free to leave at any time.

On May 12, 1970, the special agents met with the appellant, his attorney, and his accountant, in the office of his attorney. Prior to the arrival of the appellant, the special agents advised his attorney that they were investigating the income tax matters of other individuals who had worked with the appellant and that they were contacting the appellant as a potential witness. They also advised the attorney, however, that if they determined that the appellant had willfully understated his income, the special agents were under an obligation to recommend prosecution against him.

Thereafter, the special agents recommended a civil audit of appellant’s income tax returns. On July 20, 1970, a revenue agent and a special agent interviewed the appellant in his attorney’s office with counsel present in reference to civil and possibly criminal tax liability. The special agent gave the appellant Miranda-like warnings and informed the appellant that one of his functions is the investigation of possible criminal tax violations.

Appellant does not contend that his motion to suppress should have been granted because the special agents’ failure to give full Miranda warnings constituted a violation of his Fifth Amendment right against self-incrimination, a contention rejected previously by this and eight other circuits which have faced the question. Rather, he contends that evidence was obtained from him during the May 1970 interviews by deception and trickery in violation of the Fourth and Fifth Amendments and that he was denied due process because the agents failed to follow established I.R.S. procedures requiring Miranda-like warnings in these circumstances.

Before this court will find trickery or deceit which vitiates proceedings below, there must be acts by the agents which materially misrepresent the nature of the inquiry, the record must disclose some affirmative misrepresentation, and this showing must be clear and convincing. United States v. Tonahill, 5th Cir. 1970, 430 F.2d 1042, 1044-1045. The agents did not say or indicate in any way that their investigation was not criminal or that there was no possibility of a criminal prosecution. Their statement to the appellant at the initial interview that they were investigating the tax matters of other individuals was not an affirmative and material misrepresentation since the record indicates that the appellant was not a principal in the investigation at that time. Nevertheless, they advised appellant at their very first meeting that he had the right to refuse to answer any questions or to produce any information which he thought incriminating and that he had the right to counsel, a right which appellant exercised from the start. It strains our credulity to believe that the appellant, an experienced businessman, could have been tricked or deceived under such circumstances. We cannot say on this record that there was a material misrepresentation which clearly and convincingly shows deceit. In this contention, the appellant has failed to meet his burden. United States v. Prudden, supra; United States v. Tonahill, supra.

Appellant’s final line of defense is that his motion to suppress should have been granted because an agency of the government must scrupulously observe rules, regulations, or procedures which it has established and that when it fails to do so, its action is no longer consistent with due process, citing United States v. Heffner, 4th Cir. 1969, 420 F.2d 809, and United States v. Lea-hey, 1st Cir. 1970, 434 F.2d 7. It is unnecessary for this court to decide the question thus posed for we find from the facts recited earlier that the special agents substantially complied with both IRS News Releases Nos. 897 and 949. Literal compliance is not required. United States v. Mathews, 5th Cir. 1972, 464 F.2d 1268, 1270. Thus the motion co suppress was properly denied.

Prosecutorial Comment

In his closing argument to the jury, the prosecutor ended his remarks with the following comment:

. . . It will be your verdict, Ladies and Gentlemen, but I wish it was mine. Defense counsel interposed no objection at trial. Thus we cannot reverse unless the prosecutor’s remark constituted “plain error,” an obvious error affecting substantial rights. Dupoint v. United States, 5th Cir. 1967, 388 F.2d 39, 45. And we must view that remark in the context of the entire record. Sykes v. United States, 5th Cir. 1966, 373 F.2d 607, 612.

Appellant directs our attention to the Code of Professional Responsibility adopted by the American Bar Association which reads in part:

DR 7-106(C) In appearing in his professional capacity before a tribunal, a lawyer shall not: ******
(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

The language of the prosecutor was surely an unnecessary rhetorical flourish and was probably an insinuation that the defendant was guilty. But, while we do not encourage such language, this court has consistently held that a prosecutor may express his belief in the guilt of a defendant if such belief is based solely on the evidence introduced and if the jury is not led to believe that other evidence, unavailable to them, justifies that belief. McMillian v. United States, 5th Cir. 1966, 363 F.2d 165; United States v. Martinez, 5th Cir. 1972, 466 F.2d 679. There is absolutely no indication in the record that the prosecutor attempted to lay the inference that the government held “other evidence.” There is likewise no indication that the prosecutor was relying on anything but the evidence introduced.

We are especially mindful of the heavy responsibility imposed on government prosecutors to conduct criminal trials with an acute sense of fairness and justice. Even with that strict duty in mind, however, it is clear from the record that the prosecutor’s comment does not constitute plain error.

Appellant’s reliance on Handford v. United States, 5th Cir. 1958, 249 F.2d 295, is misplaced. In that case, the defendant was convicted of illegal possession of non-tax-paid whiskey in violation of 26 U.S.C. § 5008(b)(1) and § 5642. We found that the argument of the U.S. Attorney — objected to by defense counsel at trial — that he had “too many of his friends” and “his friends’ children get run over, up and down the highways” in effect associated the defendant, in the minds of the jurors, with drunken drivers on the highway. But we held that this comment constituted reversible error only because the ease was close, the evidence was circumstantial, and the record “far from conclusive.” Handford v. United States, supra,, 249 F.2d at 297, 298. Appellant does not challenge the sufficiency of the evidence in this appeal, and moreover, it is not a close case.

We hold that the prosecutor’s comment in this case, while not to be applauded, will be tolerated, since the insinuation of guilt was based solely on the evidence introduced and since the jury was not led to believe that other, unavailable evidence justified that belief. United States v. Martinez, supra.

Since each of appellant’s contentions is without merit, we have no alternative but to sustain the conviction.

Affirmed.

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

      . Appellant has also contended in his brief that the trial court abused it discretion in denying defendant’s motion for a continuance and for a bill of particulars, and that the defendant was deprived of a fair trial by the injection of collateral issues into the case, by an alleged prosecutorial attempt to cast the burden upon defendant to produce evidence of his innocence, and by the alleged limitation of the testimony of defendant’s expert witness. We find no merit in any of these contentions.

      . Pursuant to internal guidelines promulgated in IRS News Release No. 897, 7 CCII 1967 Stand. Fed.Tax Rep. ¶ 6832, and IRS News Release IR-949, 1968 CCH Fed. Tax Rep. ¶ 6946, the special agent read the following-statement before the interview: “As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue Laws, and related offenses. In connection with my investigation of your tax liability (or other matter) I would like to ask you some questions. However, first I advise you that under the Fifth Amendment of the Constitution of the United States I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken.
      I advise you further that you may, if you wish, seek the assistance of an attorney before responding. Do you understand.”

      . Taglianetti v. United States, 1st Cir. 1969, 398 F.2d 558; United States v. White, 2nd Cir. 1969, 417 F.2d 89; United States v. Jaskiewicz, 3rd Cir. 1970, 433 F.2d 415; United States v. Bagdasian, 4th Cir. 1968, 398 F.2d 971; United States v. Prudden, 5th Cir. 1970, 424 F.2d 1021; United States v. Maius, 6th Cir. 1967, 378 F.2d 716; Muse v. United States, 8th Cir. 1968, 405 F.2d 40; United States v. Chikata, 9th Cir. 1970, 427 F.2d 385; Hensley v. United States, 10th Cir. 1969, 406 F.2d 481;

        Contra: United States v. Dickerson, 7th Cir. 1969, 413 F.2d 1111. The D.C. Circuit has evidently not yet been faced with this question. The issue is exhaustively treated in United States v. Prudden, supra.

      . In United States v. Bland, 5th Cir. 1972, 458 F.2d 1, a panel of this court required the defendant to prove affirmative, material misrepresentation by clear and convincing evidence in order to show that an agent’s failure to follow I.R.S. guidelines warranted reversal. There we held that the failure of a special agent to identify himself where the I.R.S. had imposed upon him a duty to do so was not an affirmative material misrepresentation, where the taxpayer did not know the difference between a revenue agent and a special agent anyway.

      . Cf., to like effect, EC 7-24, Code of Professional Responsibility, supra.

      . “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).


author: FIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Allen Lester SCHULTHEIS, Appellant.
    No. 72-2517.
    United States Court of Appeals, Fourth Circuit.
    Argued Aug. 14, 1973.
    Decided Nov. 8, 1973.

      Joseph B. Benedetti, Richmond, Va. (Court-appointed) (Minor, Thompson, Savage, Smithers & Benedetti, Richmond, Va. on brief) for appellant.
    David E. Holt, Jr., Sp. Atty., U. S. Dept, of Justice (George Beall, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and FIELD and WIDENER, Circuit Judges.
   FIELD, Circuit Judge:

This appeal involves the construction of Title 18 U.S.C. App. § 1202(a)(1) which proscribes the possession, receipt or transportation in commerce of a firearm by any person who “has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony.” “Felony” is defined in Title 18 U.S.C. App. § 1202(c)(2) as any “offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of two years or less.” As the district judge noted, this definition may permit the curious situation in which a felony is not a “felony,” but a misdemeanor is. Such a situation is presented in this ease.

I

In March, 1972, the Grand Jury for the District of Maryland returned a three count indictment charging appellant with violation of Title 18 U.S.C. App. § 1202(a)(1) in that he received, transported and possessed in commerce firearms after having been convicted of a “felony” in a Municipal Court of Baltimore City, Maryland. The “felony” conviction upon which the indictment was based was appellant’s 1966 conviction of simple assault, a common law crime in Maryland, which grew out of appellant’s involvement in a fist fight. For this crime appellant was given a suspended 90-day sentence, fined $25.00 and placed on unsupervised probation for two years.

At trial counsel stipulated that appellant had received firearms in commerce, that he had been convicted of simple assault, and that the district court might “take judicial notice of the fact that the crime of assault in Maryland may be punishable by a term in prison in excess of two years.” No distinction was made in the last stipulation between the possible punishment for simple assault and the permissive punishment for various aggravated assaults which are made felonies by statute in Maryland. Article 27, Section 12, Annotated Code of Maryland. A jury trial having been waived, the district judge found appellant guilty on all counts and sentenced him to four months in prison to be followed by twenty months probation.

Appellant assigns as error the district court’s refusal to look to the actual punishment imposed in his 1966 conviction as the maximum legal sentence for purposes of Title 18 U.S.C. App. § 1202(c)(2). This refusal, appellant argues, is contrary to Congressional intent and denied him equal protection of the law by imposing restrictions on his right to bear arms different from those imposed on citizens of Pennsylvania and North Carolina where simple assault is punishable by not more than two years. Without intimating any view as to the merits of appellant’s equal protection argument, we accept his first contention and reverse.

II

The sharp delineation of “felony” provided by Title 18 U.S.C. App. § 1202(c)(2) obviously anticipated easy reference to the criminal statutes of the various states for the determination that a conviction was or was not a “felony.” Unfortunately, the Maryland law of simple assault provides no such easy reference and the punishment for the common law misdemeanor of simple assault is limited only by the ban against cruel and unusual punishment. As the court stated in Gleaton v. State, 235 Md. 271, 277, 201 A.2d 353, 356 (1964),

“[t]here is, however, in this State no statutory limitation on the penalty which may be imposed for simple assault, and there was none at common law. Heath v. State, 198 Md. 455, 467, 85 A.2d 43 (1951); Apple v. State, 190 Md. 661, 668, 59 A.2d 509 (1948). Nor do we construe the penal limits imposable for the statutory assaults as implying a legislative policy to confine sentences for common law assault to not more than those prescribed for the statutory assaults. Statutes in derogation of the common law are strictly construed, and it is not to be presumed that the legislature by creating statutory assaults intended to make any alteration in the common law other than what has been specified and plainly pronounced. Dwarris on Statutes, 695. The matter of imposing sentences is left to the sound discretion of the trial court, and the only restraint on its power to fix a penalty are the constitutional prohibitions against cruel and unusual penalties and punishment found in Articles 16 and 25 of the Maryland Declaration of Rights.”

Additionally, the determination that a given sentence transgresses the limits of cruel and unusual punishment depends upon the facts of the particular case. In Heath v. State, supra, 198 Md. at 467, 85 A.2d at 49, the court noted the following language approvingly:

“In 2 Bishop, Criminal Law, (9th ed.) p. 32, it is said: ‘Still, from early times, when misdemeanors were punished by whatever fine or imprisonment the judge might deem it right to impose, it has been the judicial habit to look upon assaults as more or less aggravated by such attendant facts as appealed to the discretion for a heavy penalty. * * * An assault is deemed to be more or less enormous according to the facts of the particular case.’ ”

The recitation by the Government of decisions affirming punishment of simple assault ranging from five to twenty years is thus of little relevance to this case absent a showing that those eases involved substantially identical degrees of aggravation. No such showing is possible since it appears that in each case cited the defendant, in addition to the charge of simple assault, was charged with a statutory assault with intent to kill, maim or rape. Roberts v. Warden, 242 Md. 459, 219 A.2d 254 (1966); Austin v. Director, 237 Md. 314, 206 A.2d 145 (1965); Gleaton v. State, supra; Adair v. State, 231 Md. 255, 189 A.2d 618 (1963); Burley v. State, 226 Md. 94, 172 A.2d 394 (1961); and Shields v. State, 224 Md. 485, 168 A.2d 382 (1961). While the defendants in these cases were not convicted of the more serious charges, it is clear that the seriousness of the assaults affected the sentences imposed. To accept those authorities as guidelines in this case for an evaluation of the Maryland law of simple assault would be fallaciously simplistic. It would blindly lump into the same category the most trivial and the most heinous assaults, thereby defeating the clear Congressional desire to exclude minor transgressions of the law from the sweep of Title 18 U.S.C. App. § 1202(c)(2).

Ill

At the very least the application of 18 U.S.C. App. § 1202(a)(1) to a common law conviction exposes a latent ambiguity in that otherwise unambiguous statute. While the statute speaks clearly of the statutory convictions to which it will apply, it is silent regarding its application to common law convictions. This silence is subject to two inferences: (1) that every, common law conviction with discretionary punishment is a “felony” without regard to the seriousness of the crime or the actual punishment imposed, or (2) that the seriousness of the crime, as evidenced by the actual sentence imposed, should control its classification as a “felony” for purposes of Title 18 U.S. C. App. § 1202(c) (2). The first is more harsh than the treatment of those statutory crimes for which the punishment does not exceed two years, while the second is, of course, more lenient. As to the correct inference to be drawn, the legislative history is unenlightening.

In United States v. Bass, 404 U.S. 336, 344, 92 S.Ct. 515, 520, 30 L.Ed.2d 488 (1971), the Supreme Court characterized Title 18 U.S.C. App. §§ 1201-1203 (Title VII) as “a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings and no report.” Title VII’s sponsor, Senator Long of Louisiana, conceived the bill to be aimed at actual felons, even though “felony” was defined originally as “any offense punishable by imprisonment for a term exceeding one year.” On May 17, 1968, Senator Long declared that “[w]e do not want the murderers, the burglars, the rapists, the looters, or the arsonists armed to the teeth and walking the streets. We do not want the habitual criminals who have committed all sorts of crimes armed and presenting a hazard to law abiding citizens.” 114 Cong.Rec. 13868 (1968). These thoughts were reiterated on May 23, 1968, Id. at 14773. Senators Dodd, McClellan and Dominick all stated their belief that the bill went too far in certain respects, particularly the provisions outlawing possession of guns by persons “discharged from the Armed Forces under other than honorable conditions,” Id. at 14774-75. Despite their request for more study, the bill was quickly brought to a vote and passed. The only discussion of Title VII in the House of Representatives was a summary endorsement by Mr. Pollock, Id. at 16298. Clearly, the subtleties presented by application of Title VII to a common law conviction were not contemplated by the Congress in June, 1968.

Nor does it appear that such a possibility was contemplated in September, 1968, when Congress amended Title VII to its present form. The Conference Report, like the plain language of the statute, evidences a desire to proscribe possession of firearms by felons and certain designated misdemeanants. However, there is no indication that the Congress anticipated the inclusion therein of one, such as the appellant in this case, convicted of what, in fact, was a minor common law crime the punishment for which is at best only vaguely defined.

The Supreme Court noted in United States v. Bass, supra, 404 U.S. at 347, 348, 92 S.Ct. at 522, that

“In various ways over the years, we have stated that ‘when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ * * * (citations omitted) This principle is founded on two policies that have long been part of our tradition. First, ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.’ * * * (citations omitted) Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should.’ * * * Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”

In view of the breadth of common law simple assault as applied by the courts of Maryland, we conclude that the seriousness of the crime as evidenced by the actual sentence imposed should control whether or not a conviction for such a crime should be classed as a “felony” for purposes of Title 18 U.S.C.App. § 1202(c)(2). In our opinion this conclusion accords with the legislative purpose and better serves the ends of justice. Considering the nature of the assault and the minimal punishment imposed, we do not think appellant’s Maryland conviction was properly classified as a “felony” within the meaning of the federal statute. Accordingly, the conviction is reversed.

Reversed.

      . Conference Report No. 1956, 1968 U.S. Code Cong. & Ad.News, p. 4434. AMENDMENT TO TITLE VII OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968.

        Definition of “felony."- — The Senate amendment contained a provision not in the House bill redefining the term “felony” in section 1202(c)(2) of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968 — relating to unlawful possession or receipt of firearms. That term was defined to mean, in the case of State law, an offense determined by the laws of the State to be a felony. The conference substitute defines that term as any offense punishable by imprisonment for a term exceeding 1 year, but does exclude from the definition any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of 2 years or less. Veterans not barred from receiving, possessing or transporting firearms unless dishonorably discharged. — The House bill contained a provision, not in the Senate version, which changed a provision in title VII of the Omnibus Crime Control and Safe Streets Act of 1968 barring veterans discharged under “other than honorable conditions.” The effective date of the House provision was made to coincide with the enactment date of title VII (June 19, 1968). The conference substitute contains the provisions of the House bill.

      . Our opinion, of course, is not to be read as precedent that the punishment imposed be utilized as the eriteron for the classification of crimes that do not have the peculiar characteristics of Maryland’s common law simple assault.


author: ROSENN, Circuit Judge.

text:
    Howard CADY, Appellant, v. TWIN RIVERS TOWING COMPANY and Consolidation Coal Company.
    No. 72-1687.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 10, 1973.
    Decided Nov. 12, 1973.

      Hymen Schlesinger, Pittsburgh, Pa., for appellant.
    Anthony J. Polito, Rose, Schmidt & Dixon, Pittsburgh, Pa., for appellees.
    Before McLAUGHLIN, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal raises issues concerning the rights of seamen who invoke the grievance machinery of a collective bargaining agreement for alleged wrongful discharge and demotion to also sue for damages for the same alleged contractual violation. Appellant, Howard Cady, plaintiff below, challenges the district court’s entry of summary judgment in favor of appellees, his former employers, Consolidation Coal Company (Consol) and Twin Rivers Towing Company (Twin Rivers) on two counts of his five-count complaint. The opinion of the district court is reported at 339 F.Supp. 885 (W.D.Pa.1972). We affirm the judgment of the district court.

In October 1968 Cady was employed as a riverboat pilot by Consol. On October 6 Consol informed him that he was to be suspended as a result of his personal involvement in an accident in which two persons lost their lives and for which Consol was subsequently adjudicated liable. At the time, Cady was a member of and represented by the International Organization of Masters, Mates and Pilots, Inc., (Pilots Union) which was a party to a collective bargaining agreement with Consol.

The Pilots Union invoked the grievance machinery of the collective bargaining agreement and contested Con-sol’s disciplinary action. The grievance was disposed of by an interim agreement dated October 6, 1968, signed by the parties, which provided for the demotion of Cady from pilot to mate. This settlement agreement also reserved to the Union the right to initiate “further discussion concerning the appropriateness of the demotion” and “the right to submit the decision of the company as to such demotion to arbitration.” Several days later, after a second meeting between representatives of Consol and the Pilots Union and also attended by Cady, a final agreement was signed. This agreement provided that if the Union did not concur in the demotion the parties would submit the grievance to arbitration as provided by the collective bargaining agreement without processing it through the intermediate grievance procedures. No request for arbitration was thereafter made by Cady or his Union.

On December 24, 1969, Cady, having since been employed by Twin Rivers, a wholly owned subsidiary of Consol, was temporarily suspended from employment because of his possession and drinking of alcoholic beverages while on duty on board the M.V. TOM, JR. He was later advised of a hearing to be held on January 7, 1970, at which time he was invited to appear, present witnesses, and be represented. He acknowledged receipt of the notice of hearing but declined to attend. The National Maritime Union (Maritime Union), to which he now belonged, did however meet with a representative of Twin Rivers. On January 9, 1970, Twin Rivers completed its review of Cady’s case and notified him that it had decided to discharge him effective January 9, 1970. The Maritime Union notified Twin Rivers that it wished to file a grievance on behalf of Cady. Several days 'later representatives of the Maritime Union and Twin Rivers met and discussed the decision to discharge Cady. Twin Rivers subsequently denied the grievance filed by the Maritime Union on behalf of Cady and reaffirmed the discharge. Cady was informed by the Maritime Union that it did not intend to take the matter to arbitration as it considered this action would be “a losing battle.” No demand for arbitration was thereafter filed by either Cady or the Maritime Union.

The district court held that Cady’s causes of action against both Consol and Twin Rivers were barred by the good faith disposition of the claims pursuant to the grievance procedures of the applicable collective bargaining agreements and granted both employers’ motions to dismiss. On appeal, Cady vigorously urges that federal courts have traditionally exercised jurisdiction over claims of seamen for wages and “such claims are highly favored by the courts.” He argues that a seaman’s action against his employer based on grievances arising out of a collective bargaining agreement are not barred by the existence of and resort to binding grievance procedures of that contract. He contends, in support of his argument, (1) that he has the “optional remedy of a suit” against his employers under Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185 (a), which, because of the breach by his unions of their duty of fair representation, is not barred by disposition of his claims under the contract grievance procedures, and (2) that seamen are entitled to special consideration in the district court under the recent decision of the Supreme Court in United States Bulk Carriers, Inc. v. Arguelles, 400 U.S. 351, 91 S.Ct. 409, 27 L.Ed.2d 456 (1971). We find no merit in either contention.

As to his first contention, Cady argues, for the first time on ap-peal, that he is entitled to bring his action for wrongful discharge 'and demotion under Section 301 of the Labor Management Relations Act because his unions processed his claim in bad faith. The Supreme Court has indicated that before an employee, who has submitted his claim to the contract grievance procedure, may maintain a cause of action against his employer he must offer proof that the union representing him breached its statutory duty of fair representation. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). Such proof must be timely asserted Lomax v. Armstrong Cork Co., 433 F.2d 1277 (5th Cir. 1970). The infirmity in Cady’s contention is his failure to allege or prove any facts with respect to this issue in a timely manner before the district court. Since Cady was notified of the need for such assertions by defendants’ briefs filed with their motions for summary judgment and failed to plead or produce affidavits raising such issues, he is properly precluded from raising such issues on appeal. Bogacki v. American Machine & Foundry Company, 417 F.2d 400, 407 (3d Cir. 1969); Crompton-Richmond Co., Inc.-Factors v. Smith, 392 F.2d 577 (3d Cir. 1967); Shafer v. Reo Motors, Inc., 205 F.2d 685 (3d Cir. 1953). Absent a showing of breach of the Union’s duty of fair representation, disposition of the claim pursuant to the grievance procedures of the contract is final. Haynes v. United States Pipe & Foundry Co., 362 F.2d 414 (5th Cir. 1966).

Secondly, Cady argues that in its recent decision, United States Bulk Carriers, Inc. v. Arguelles, supra, the Supreme Court has excepted seamen, as a special class of workers from the principles of federal labor law developed under Section 301(a) in the cases of Republic Steel Corp. v. Maddox, 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580 (1965) and Vaca v. Sipes, supra. He maintains that seamen need not utilize the contractual grievance procedures of an applicable collective bargaining agreement. Rather, he argues, they may submit at their option to the district court all claims, even those based upon disputes previously the subject of the grievance machinery. Implicit is the contention that such action may be brought even absent allegations that the contract grievance machinery proved inadequate to protect the employee’s interest.

Like the district court, we feel that the principle established in Arguelles is a narrow one and neither applies to nor controls the case sub judice.

The Court in Arguelles created a narrow exception to an earlier case, Republic Steel Corp. v. Maddox, supra, which had established the principle that where the terms of employment were governed by a collective bargaining agreement, an employee, before submitting his claims to court, must attempt the use of the contract grievance procedure. 379 U.S. at 652, 85 S.Ct. 614. In Arguelles the Court held that the presence of a grievance procedure clause of a collective bargaining agreement did not bar a seaman, at his option, from pursuing a statutory remedy for collecting wages due and owing pursuant to the provisions of 46 U.S.C. § 596. Concerned with the possible inconsistencies between two statutory remedies, 46 U.S.C. § 596 and Section 301 of the Labor Management Relations Act, the Court held that the “earlier, express, and alternative method of collecting seaman’s wages contained in 46 U.S.C. § 596” was not displaced by Section 301 and that seamen need not submit such statutory claims to the contract grievance procedure prior to commencing their suit.

In contrast to the seaman’s suit in Arguelles, Cady’s claim involves an action not for wages but for damages. His action is based not on an alternate, independent statutory remedy but on the seamen’s common law right to sue for breach of an employment contract. We are unable to discern in Arguelles any indication that the Court intended to create for seamen a broad exception to the principle of Maddox when, as here, no alternate statutory remedy is available.

Even were we to sanction Cady’s right, as a seaman, to bring his claim to court prior to submitting it to the contract grievance machinery, we are faced with the fact that Cady had already invoked the grievance procedures. As noted above, in these circumstances the courts are unwilling to recognize such claims absent allegations that the grievance machinery proved inadequate to settle the claim. Neither Arguelles, which concerned a seaman who did not pursue the contract grievance procedure, nor any other case cited by Cady is to the contrary.

We are not aware of any cases to support the proposition that seamen suing under collective bargaining agreements are accorded special rights. On the contrary, principles developed under Section 301(a) have been held to apply to seamen in ways no different from other workers. See, Freedman v. National Maritime Union of America, 347 F.2d 167 (2d Cir. 1965); Brandt v. The United States Lines, Inc., 246 F.Supp. 982 (S.D.N.Y.1946). When, after submitting his claim to the contract grievance procedure of a collective bargaining agreement, a seaman asserts a claim for wrongful discharge and demotion and invokes no statutory basis independent of Section 301(a) for relief, the good faith disposition of his claim pursuant to contract procedure is final. Haynes v. United States Pipe & Foundry Co., supra.

The judgment of the district court will be affirmed. Each party will bear its own costs.

      . We heard this appeal after appropriate certification had been made pursuant to Fed.R.Civ.P. 54(b) that there was no just reason for delay.

      . Although the agreement formally provided for demotion from pilot to mate, Cady assumed the duties of deckhand because of his lack of seniority for the position of mate.

      . Upon his demotion from pilot to deckhand, see note 2, supra, Cady was apparently no longer eligible for membership in the International Organization of Masters, Mates and Pilots, Inc., and joined the National Maritime Union.

      . 46 U.S.C. § 596 provides in pertinent part: The master or owner of any vessel making coasting voyages shall pay to every seaman his wages within two days after the termination of the agreement under which he was shipped, or at the time such seaman is discharged, whichever first happens . . . and in all cases the seaman shall be entitled to be paid at the time of his discharge on account of wages a sum equal to one-third part of the bal-anee due him. Every master or owner who refuses or neglects to make payment in the manner hereinbefore mentioned without sufficient cause shall pay to the seaman a sum equal to two days’ pay for each and every day during which payment is delayed beyond the respective periods, which sum shall be recoverable as wages in any claim made before the court


author: FEINBERG, Circuit Judge: FEINBERG, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Enriquito ALSONDO et al., Defendants-Appellants.
    Nos. 997, 998, 999, Dockets 73-1297, 73-1466, 73-1467.
    United States Court of Appeals, Second Circuit.
    Argued June 22, 1973.
    Decided July 13, 1973.
    On Rehearing Nov. 14, 1973.

      George J. Bellantoni, White Plains, N. Y., for appellant Feola.
    Selig Lenefsky, New York City, for appellant Alsondo.
    Joseph I. Stone, New York City, for appellant Rosa.
    Paul H. Silverman, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the Southern District of New York; John D. Gordan, III, John W. Fields, Jr., Richard J. Davis, Jed S. Rakoff, Asst. U. S. Attys., on the brief), for appellee.
    H. Eliot Wales, New York City, Albert J. Gaynor, New Rochelle, N. Y., amicus curiae.
    Before FRIENDLY, FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

After a jury trial in the United States District Court for the Southern District of New York before Charles L. Brieant, Jr., J., appellants Enriquito Alsondo, Henry Rosa and Ralph Feola were convicted on charges that they had assaulted federal narcotics agents, while the latter were engaged in. performance of official duties, in violation of 18 U.S.C. § 111, and that they had conspired to violate that provision, 18 U.S.C. § 371. Alsondo was also convicted on a third count charging the unlawful carrying of a deadly weapon during commission of a felony, in violation of 18 U.S.C. § 924(c)(2). For reasons which follow, we reverse all convictions under the conspiracy count and dismiss that charge; we reverse the substantive assault conviction of Feola and direct that the indictment as to him be dismissed; we reverse the substantive assault conviction of Rosa and remand as to him; we affirm the convictions against Alsondo on the two substantive counts against him.

The facts may be stated briefly. On August 21, 1971, Agent Hall, while working in an undercover capacity, met Michael Farr through an informer, at which time Farr promised to sell Hall a kilo of heroin supplied through appellant Ralph Feola. Ten days later, and accompanied by appellant Rosa, Farr met Hall and the informer, now joined by Agent Lightcap also acting in an undercover capacity. The five proceeded to an apartment on West 68 Street in Manhattan, where the agents were to purchase a half kilo of heroin for $17,000; Agent Hall had a “flash-roll” of cash with him, which he showed Rosa. When the group arrived at the apartment, Al-sondo let them in. Agent Lightcap was given custody of the money and remained in the living room while Alson-do, Rosa and Farr ushered Hall and the informer into the bedroom. Alsondo pointed to packages of white powder, which he identified as the narcotics. (Upon subsequent testing, the substance proved to be powdered sugar.)

In rapid succession, Farr and Rosa left the bedroom; the informer requested a scale to “test” the substance the agents believed to be heroin; Alsondo left the bedroom, and Agent Hall, after opening a closet door and discovering a man bound and gagged, followed Alson-do. Walking into the hallway, Agent Hall saw Agent Lightcap at the opposite end, facing Hall; Alsondo stood between them, facing Lightcap. Hall saw Alson-do reach behind his back and begin to pull a revolver from his waistband. Hall shouted a warning to Lightcap and identified the pair as federal agents; the two then subdued Alsondo after a scuffle and handcuffed him. Agent Lightcap thereupon walked into the living room and saw Rosa, who rushed toward him and shoved him in an apparent attempt to flee. Rosa was apprehended as was Farr, who had remained in the kitchen. Upon subsequent inspection of the premises, appellant Feola was discovered hiding in a closet and was arrested. At the time of arrest, Feola possessed a small telephone book containing the phone numbers of the West 68 Street apartment, of Farr and of Alsondo.

The conspiracy count was submitted to the jury on the theory that an unlawful agreement among the four co-defendants could be inferred from the acts committed and circumstances as described above: The Government argued that the four had agreed to bilk the agents by fraudulently selling them sugar for $17,000 and had further agreed (or had foreseen the probable need) to rob the agents at gunpoint should the victims discover the swindle and attempt to thwart it. The district judge instructed the jury that proof of specific knowledge of the official identity of the assault victims was not required to establish a conspiracy to violate 18 U.S.C. §111. He said:

[I] t is not necessary for the government to prove that the defendants or any of them knew that the persons they were going to assault or impede or resist were federal agents. It’s enough, as far as this particular element of the case is concerned, for the government to prove that the defendants agreed and conspired to commit an assault.

In so instructing the jury, the district judge appears to have relied on a line of cases beginning with United States v. Lombardozzi, 335 F.2d 414, 416 (2d Cir.), cert, denied, 379 U.S. 914, 95 S.Ct. 261, 13 L.Ed.2d 185 (1964), which hold that such knowledge or scienter is not a necessary element of the substantive offense under section 111. See, e. g., United States v. Ulan, 421 F.2d 787, 788 (2d Cir. 1970); United States v. Montanaro, 362 F.2d 527 (2d Cir.) (per curiam), cert, denied, 385 U.S. 920, 87 S.Ct. 233, 17 L.Ed.2d 144 (1966).

The question remains, however, whether proof of such scienter is nevertheless necessary to convict of conspiring to violate section 111. In United States v. Crimmins, 123 F.2d 271 (2d Cir. 1941), we held that while knowledge that stolen securities had passed through interstate commerce was not a required element of the substantive offense under the statute there involved, such knowledge was a necessary element of proof of the crime of conspiring to cause stolen securities to be transported in interstate commerce. In a much-quoted passage, Judge Learned Hand stated:

While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes . that there is a light to run past.

123 F.2d at 273. See also United States v. Sherman, 171 F.2d 619, 624 (2d Cir. 1948), cert, denied, 337 U.S. 931, 69 S. Ct. 1484, 93 L.Ed. 1738 (1949). We have frequently reaffirmed this distinction. E. g., United States v. Vilhotti, 452 F.2d 1186, 1189 (2d Cir. 1971), cert, denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972) (conspiracy to buy, receive or possess chattels stolen from interstate commerce); United States v. Jacobs, 475 F,2d 270, 282 (2d Cir. 1973), petition for cert, filed, 41 U.S.L.W. 3596 (U.S. Apr. 30, 1973) (No. 72-1469) (conspiracy to deal in stolen securities which have moved or are to move interstate).

The Crimmins rationale has been criticized, and it has been pointed out that if the federal interest involved in such statutes — e. g., the use of the mails, interstate transportation — were viewed “not as an element of the respective crimes but frankly as a basis for establishing federal jurisdiction,” then much of the problem before us would disappear. However, although the National Commission on Reform of Federal Criminal Laws has proposed this change, Congress has not yet acted upon it. Absent legislative change, the recognition that specific knowledge of factual circumstances conferring federal jurisdiction is unnecessary to proof of the substantive offense under such statutes but is required for proof of conspiracy remains very much the law in this circuit and, apparently, elsewhere as well.

On this view, the conspiracy convictions before us cannot stand. It is true that we have found no case squarely raising the question whether scienter is required to convict for conspiring to violate 18 U.S.C. § 111. This is not surprising ; most people — even those not inclined to be law-abiding — would not agree to assault a federal officer except perhaps as incident to another, more serious crime. But the dearth of direct authority only emphasizes the great number of analogous cases already cited. As applied to the crimes before us, Crimmins and its progeny mandate the view that specific knowledge of the official federal capacity of assault victims must be proved to establish conspiracy to violate section 111, though such proof is unnecessary to convict for the substantive offense, It might be possible to distinguish the Crimmins line of authority on the ground that the interest of the federal government in protecting its officials against physical attack is so strong, cf. Ladner v. United States, 358 U.S. 169, 173-175 & n. 3, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958), that prosecutions under the general conspiracy statute may nonetheless be maintained even in the absence of specific anti-federal intent, at least when an assault has actually occurred. We do not believe, however, that the thrust of existing precedent can be so easily disregarded. Furthermore, requiring proof of scienter for a conspiracy to deal in stolen securities but not for a conspiracy to violate section 111 would create an anomaly: Federal prosecution of the former crime is made more difficult although the investigative resources of the federal system may be indispensable for coping with a large multi-jurisdiction conspiracy, cf. Developments in the Law —Criminal Conspiracy, supra note 6, at 938-39, while federal prosecution of the latter conspiracy is facilitated, although it is an offense likely to be localized and more amenable to control through state law enforcement systems.

Accepting the controlling precedents somewhat reluctantly, we must conclude that the instruction to the jury on the conspiracy count was erroneous. Although no exception was taken to the charge — indeed, no mention of the issue is made in the briefs submitted to us, nor was the question pursued at oral argument until we raised it from the bench — we nonetheless believe that the charge constituted “plain error,” Fed.R. Crim.P. 52(b), which we should notice sua sponte. Where there is a failure to charge an essential element of the offense, the error almost invariably affects “substantial rights” within the meaning of the rule. See United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972); United States v. Massiah, 307 F.2d 62, 70-71 (2d Cir. 1962) (Hays, J., concurring), rev’d on other grounds, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). And we note that improper jury charges under section 111 (particularly relating to elements of scienter) have been a fertile source for judicial willingness to invoke the “plain error” rule. E. g., United States v. McKenzie, 409 F.2d 983, 985-986 (2d Cir. 1969) (dictum); see United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972); cf. United States v. Rybicki, 403 F.2d 599, 602 (6th Cir. 1968) (indictment charged obstruction, by threat of force, of IRS agents engaged in performance of their duties in violation of 26 U.S.C. § 7212 (a)). Moreover, appellants do argue on appeal that the evidence of conspiracy was insufficient as a matter of law. While their focus is more general, it is quite clear from an examination of the record that the evidence was insufficient on the issue of scienter and that directed judgments of acquittal should have been granted when motions for that relief were timely made. Certainly, the necessary scienter could not be properly imputed to the alleged conspirators on the ground that they could reasonably have anticipated that the victims of their planned assault might be federal agents. Compare United States v. Corallo, 413 F.2d 1306, 1326-1327 (2d Cir.), cert, denied, 396 U.S. 958, 90 S.Ct. 431, 24 L.Ed.2d 422 (1969) (conspirator knew that the likelihood of use of interstate phone calls was great); Nassif v. United States, supra note 9, at 153 of 370 F.2d (knowledge of interstate origin may be implied from proof of conspiracy so broad that conspirators were indifferent to the source of the goods). To the contrary, it is altogether unlikely that would-be swindlers would knowingly select federal officers as the targets of their fraudulent scheme or would knowingly assume even the most remote risk of such occurrence.

Having concluded that no conspiracy prosecution can be maintained on the facts of this case, we turn to the substantive convictions. Relying on Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the trial judge submitted the substantive assault charge against Feola to the jury solely on the theory that while he committed no act of force himself — having been in a closet throughout the events in question — if he had nevertheless joined with Alsondo and the others in an unlawful conspiracy, then as a co-conspirator he might be held responsible for criminal acts committed in furtherance of the unlawful agreement. Id. at 647, 66 S.Ct. 1180. Since the judge evidently and, we think, rightly believed that this was the only basis upon which the jury could properly convict Feola of the substantive offense, his conviction must be reversed and the charge dismissed where the predicate conspiracy conviction cannot stand.

Likewise, the substantive conviction against Rosa must be reversed. The district judge submitted this count to the jury on two alternative bases. The first authorized the jury to convict Rosa

based on his own actions, if you find that he raised his hand against the agent . . . and moved toward the door and did so wilfully and intentionally with the purpose of resisting arrest or assaulting the officer or in any way impeding or interfering with his duties.

There was sufficient evidence, if be-/ lieved, to establish commission of an assault or an otherwise prohibited act by Rosa. Lightcap identified himself to Rosa as a federal agent, thus foreclosing any contention of even momentarily lawful resistance, cf. United States v. Heliczer, 373 F.2d 241, 248-249 (2d Cir.), cert, denied, 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967), or at least permitting the jury to find otherwise. Rosa thereafter lifted his hand menacingly, as though to shove Lightcap, and did in fact shove him — both acts sufficient to constitute a crime under section 111. See, e. g., United States v. Bamberger, 452 F.2d 696, 699 (2d Cir. 1971), cert, denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972). Nevertheless, our reversal turns on the judge’s alternative instruction, again grounded on Pinkerton, supra, which permitted the jury to convict Rosa of the substantive crime

by reason of the actions of Alsondo, if you find that Alsondo assaulted the federal officers or either of them in furtherance of the conspiracy, . and while Rosa was a member of the conspiracy. .

Since we have no way to determine on which theory the jury did in fact convict, we must reverse the conviction on this count. See Mills v. United States, 164 U.S. 644, 649, 17 S.Ct. 210, 41 L.Ed. 584 (1897); Nicola v. United States, 72 F.2d 780, 787 (3d Cir. 1934). As the evidence was sufficient to convict on the assault count even in the absence, of the erroneous instruction, however, we do not order dismissal but remand for a new trial.

Alsondo’s conviction on the substantive assault count stands in a wholly different posture. There is no good reason to believe that his conviction was tainted by any erroneous alternative instruction, for none was given. His contention that, in other respects, the evidence was insufficient to permit the jury to find guilt beyond a reasonable doubt is wholly unpersuasive. Alsondo challenges the testimony that he had attempted to draw his revolver on Agent Lightcap in the hallway, but this was a question of credibility for the jury. He further argues that Agent Lightcap, facing appellant in the hallway, was never put in fear of battery by any act of Al-sondo’s. However, Agent Hall testified that he had shouted a warning to his colleague, and Lightcap testified that he was placed in fear of bodily harm as a result of the warning. In any event, the jury could infer that from his own observations, Lightcap had perceived Al-sondo’s acts as constituting an immediate threat of physical injury.

The conspiracy convictions are reversed and the conspiracy count is dismissed as to all appellants; the substantive assault conviction of Feola is reversed and the count is dismissed as to him; the assault conviction of Rosa is reversed and remanded for further proceedings consistent with this opinion; the conviction of Alsondo on two substantive counts is affirmed.

ON PETITION FOR REHEARING

FEINBERG, Circuit Judge:

On July 13 of this year, we reversed in part a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., J., convicting Enriquito Alsondo, Ralph Feola and Henry Rosa of assault on federal narcotics agents, in violation of 18 U.S.C. § 111, and conspiracy to violate that provision, 18 U.S.C. § 371. At issue now is our disposition of the cases of Feola and Rosa. With respect to the conspiracy convictions, we reversed and dismissed the count. Regarding the substantive assault convictions, we also reversed; we dismissed as to Feola, but remanded Rosa’s case for a new trial. Our prior opinion sets forth the underlying facts.

The Government has sought a rehearing of the reversal of the assault convictions of Feola and Rosa. (The Government does not at this time challenge the doctrine of United States v. Crim-mins, 123 F.2d 271 (2d Cir. 1941), under which we dismissed the conspiracy counts; that part of the judgment therefore stands.) We asked for, and received, briefs from both sides on the issues. For reasons stated below, we grant the petition for rehearing and affirm Feola’s and Rosa’s convictions of assault against federal agents.

In our prior opinion, we assumed that reversal of the conspiracy convictions for failure to prove knowledge of the intended victims’ official character necessarily vitiated the substantive assault convictions since a Pinkerton charge had been given. Upon the further reflection induced by the Government’s petition, however, we believe that this conclusion was not justified on the facts of this case. It is well established in this and in other circuits that the admissibility of acts of a joint criminal venturer against his partner in crime “rests on basic principles of agency and not on the presence of a conspiracy count.” United States v. Granello, 365 F.2d 990, 995 (2d Cir. 1966) (Friendly, J.), cert, denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 1458 (1967). Similarly, the out-of-court declarations of a co-conspirator are admissible against a defendant where joint venture is shown by the evidence, although conspiracy is not alleged in the indictment. United States v. Annunziato, 293 F.2d 373, 378-381 (2d Cir.), cert, denied, 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed. 2d 134 (1961); United States v. Pugliese, 153 F.2d 497, 500 (2d Cir. 1945). Cf. United States v. Jacobs, 475 F.2d 270, 281 n. 25 (2d Cir. 1973).

At various points in the charge, the lower court referred to a conspiracy to assault a federal agent or to violate 18 U.S.C. § 111, as well as to a conspiracy to obtain the buyers’ money by fraud or force. Therefore, on these facts the jury’s finding against defendants on the conspiracy count has a controlling effect on the substantive counts of assaulting a federal officer. With regard to the latter, the jury must already have found an agreement — involving Feola — to assault a victim (who turned out to be a federal officer) or to take money from him by fraud or force. In the absence of such a finding, the jury could not have convicted Feola since both the evidence and the charge pointed to Alsondo and Rosa as the only possible assailants. Rosa’s case parallels Feola’s except that the jury could, pursuant to the charge, have found the former personally rather than vicariously guilty of assaulting a federal agent. This finding of criminal agreement is sufficient, on general agency principles, to sustain defendants’ liability for their co-conspirators’ actions. Under Pinkerton, supra, there are circumstances where a co-conspirator may be held liable as part of a conspiracy of indefinite scope and duration for a specific crime which he should have foreseen but perhaps did not. This is not such a case. The jury’s finding makes clear that Feola and Rosa were part of a plot to commit the crime that actually occurred. On such facts, the finding of guilt as to each should stand.

We therefore grant the Government’s petition for a rehearing and affirm the assault convictions of Feola and Rosa. The judgment is modified in accordance with this opinion.

      . Alsondo was sentenced to three years on the substantive assault count (count two), and to eight years on the deadly-weapon count (count three), to run concurrently with each other and, according to Judge Brieant’s recommendation, with Alsondo’s present confinement under a state sentence; imposition of sentence on the conspiracy count (count one) was suspended, but Alsondo was given five years on probation, to commence upon expiration of his sentences on the other counts. Rosa was sentenced to concurrent three-year terms on counts one and two. Feola was sentenced on count one to four years, and on count two to three years on probation consecutive with his imprisonment, coupled with a $3,000 fine.

      . Co-defendant Farr was indicted, tried with the three appellants, and convicted on counts one and two. He was sentenced at a later date under the provisions of the Youth Corrections Act, 18 U.S.C. § 5005 et seq. His appeal is pending, but as yet unargued.

      . The man was later identified as Nilo Tanderone, the lessor of the apartment.

      . Later, while in custody, Feola made allegedly false exculpatory statements to an agent and to an Assistant United States Attorney. He argues that the statements should have been suppressed under Miranda,, but, in view of our disposition, we need not consider the question. Nor need we decide whether the district judge abused his discretion in denying a severance to appellant Rosa.

      . In analogous situations, we have held that specific knowledge of factual elements that confer federal criminal jurisdiction is not required for conviction of various substantive offenses. For example, as to knowledge of interstate transportation of stolen property, see, e. g., United States v. Tannuzzo, 174 F. 2d 177, 180 (2d Cir.), cert, denied, 338 U.S. 815, 70 S.Ct. 38, 94 L.Ed. 493 (1949); as to knowledge of the federal capacity of officials to whom a bribe is proffered in violation of 18 U.S.C. § 201 (b) (1), see United States v. Jennings, 471 F.2d 1310, 1312 (2d Cir.), cert, denied, 411 U.S. 935, 93 S.Ct. 1909, 36 L.Ed. 2d 395 (1973).

      . Developments in the Law — Criminal Conspiracy 72 Harv.L.Rev. 920, 938-39 (1959); I Nat’l Comm’n on Reform of Federal Criminal Laws, Working Papers 389 (1970).

      . ALI, Model Penal Code § 5.03, Comment, at 112 (Tent.Draft No. 10, 1960).
      No difficulty would in that event arise when the mails were actually used or a state line crossed in fact, whether or not this was within the contemplation of the parties; nor would there be a difficulty when this circumstance is planned, whether or not it actually has occurred. In situations where the jurisdictional circumstance neither exists nor was in contemplation of the parties, it would be clear that jurisdiction simply cannot be affirmed.
      Id.

      . Final Report of the Nat’l Comm’n on Reform of Federal Criminal Laws, in Hearings before the Subcomm. on Criminal Laws and Procedures of the S. Comm, on the Judiciary, 92d Cong., 1st Sess., pt. 1 (1971), at 224.

      . See cases cited in Model Penal Code § 5.03, Comment, at 111 n. 55; United States v. Barnes, 383 F.2d 287, 290-293 (6th Cir. 1967), cert, denied, 389 U.S. 1040, 88 S.Ct. 780. 19 L.Ed.2d 831 (1968) (conspiracy to travel interstate or cause such travel to promote unlawful activity in violation of 18 U.S.C. § 1952); Nassif v. United States, 370 F.2d 147, 152 (8th Cir. 1966) (conspiracy to convert goods from interstate commerce) ; cf. Pereira v. United States, 347 U.S. 1, 12-13, 74 S.Ct. 358, 98 L.Ed. 435 (1954) (conspiracy, inter alia, to use mails to defraud). But see United States v. Roselli, 432 F.2d 879, 891-892 (9th Cir. 1970), cert, denied, 401 U.S. 924, 91 S.Ct. 883, 27 L.Ed.2d 828 (1971) (conspiracy to violate § 1952; scienter unnecessary).

      . See also United States v. Hall, 342 F.2d 849, 852 n. 4 (4th Cir.), cert, denied, 382 U.S. 812, 86 S.Ct. 28, 15 L.Ed.2d 60 (1965), where the court strongly implied that scienter is a necessary element under 18 U.S.C. § 372, making it unlawful to “conspire ... to injure [any officer of the United States] in his person or property on account of his lawful discharge of the duties of his office.”

      . We observe, in passing, that although the point was squarely posed from the bench, we have received no request from the Government to submit a supplemental brief, nor have we been favored with any correspondence directing us to any authority contrary to the result we reach.

      . The judge charged that: Insofar as concerns Alsondo, he may be found guilty on the substantive count, Count Two, if it is shown that he assaulted a federal agent, either Lightcap or Hall.

      . With respect to count three — charging possession of a deadly weapon during commission of a felony — Alsondo argues that since “the gun possession is not a federal offense, the third count cannot stand alone.” Since Alsondo’s conviction on the principal substantive count is affirmed, the argument is without merit, and we affirm his conviction on the third count.

      . Alsondo was also convicted under 18 U.S.C. § 924(c) (2) of unlawfully carrying a deadly weapon during the commission of a felony.

      . Alsondo’s conspiracy conviction was likewise reversed and the charge dismissed; his convictions on the substantive counts were, however, affirmed.

      . Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), held that a conspirator was liable for the reasonably foreseeable crimes committed by a co-conspirator in furtherance of and during the venture.

      . See, e. g., Davis v. United States, 409 F.2d 1095, 1100 (5th Cir. 1969) ; United States v. Messina, 388 F.2d 393, 394-395 (2d Cir.), cert, denied, 390 U.S. 1026, 88 S.Ct. 1413, 20 L.Ed.2d 283 (1968) ; United States v. Jones, 374 F.2d 414, 418 (2d Cir.), cert, denied, 389 U.S. 835, 88 S.Ct. 40, 19 L.Ed.2d 95 (1967) ; United States v. Smith, 343 F.2d 847, 849 (6th Cir.), cert, denied, 382 U.S. 824, 86 S.Ct. 55, 15 L.Ed.2d 69 (1965).

      . Whereas the former theory is untenable in light of Grimmins, the latter is clearly viable. This juxtaposition of correct and erroneous instructions does not necessitate reversal since, on any sensible view of the matter, the jury on these facts could not have found a conspiracy to assault a federal officer without in addition finding a conspiracy simply to assault or to get the money by fraud or force. United States v. Jacobs, 475 F.2d 270, 282-284 (2d Cir. 1973).

      . The record supports a conviction of Rosa as principal, if this in fact occurred.

      . P. Johnson, The Unnecessary Crime of Conspiracy, 61 Calif.L.Rev. 1137, 1146 (1973).

      . We have also considered the remaining arguments raised by defendants Feola and Rosa in their original briefs and find no reason why the assault convictions should not be affirmed.


author: SOLOMON, District Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SAN FRANCISCO TYPOGRAPHICAL UNION NO. 21, INTERNATIONAL TYPOGRAPHICAL UNION, AFL-CIO, Respondent.
    Nos. 71-2949, 71-2987.
    United States Court of Appeals, Ninth Circuit.
    May 18, 1973.
    Rehearing Denied Nov. 14, 1973.

      Michael S. Winer (argued) NLRB, San Francisco, Cal., Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, Region 20, NLRB, San Francisco, Cal., Abigail Cooley Baskir, Atty., NLRB, Washington, D. C., for appellant.
    Duane B. Beeson (argued) of Brun-dage, Neyhart, Grodin & Beeson, San Francisco, Cal., for appellee.
    Nathan R. Berke (argued) of Sever-son, Werson, Berke & Melchior, San Francisco, Cal., for the charging party.
    Nathan R. Berke, (argued) of Sever-son, Werson, Berke & Melchior, San Francisco, Cal., for San Rafael Independent Journal.
    Before MERRILL and ELY, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus. J. Solomon, United States District Judge, Portland Oregon, sitting by designation.

   SOLOMON, District Judge:

The National Labor Relations Board (the Board) seeks to enforce its orders directing the Typographical Union to rescind the disciplinary actions the Union took against four members who were supervisory employees of the San Rafael Independent Journal (Journal). The Board contends that the Union may not punish these men for violating Union rules and policy, even though they crossed and worked behind the Union’s picket lines.

Gordon Dixon was the mechanical superintendent and the foreman of the composing room. On October 10, 1969, Dixon, exercising his authority as foreman, discharged Paul Austin because Austin took an afternoon off without permission. The Union voted to require Dixon to reinstate Austin, but Dixon refused. The President of the Union filed charges against Dixon, and, after a hearing, Dixon was fined $418.00.

The Board determined that the Union’s action was an unfair labor practice, and it ordered the Union to rescind the fine and expunge Dixon’s record.

Later, the Union disciplined Robert Dixon, Earl Dixon and Ernest Fingerlos because they crossed the Union’s picket line. On January 7, 1970, the Union struck the Journal after a breakdown in contract negotiations. Robert and Earl Dixon, both assistant foremen in the composing room, ignored the picket line and continued to work. The Union expelled and fined them each $10,000.00 for strikebreaking.

Ernest Fingerlos was the chief machinist. Fingerlos first joined the strike but returned to his job about three months later while the strike was still in progress. The Union expelled Finger-los and fined him $10,000.00.

Gordon Dixon also crossed the picket line and was charged with strikebreaking. The Union had tried him, but at the time of the Board’s hearing, the results were not known to the trial examiner.

The Board found that the Union illegally punished the strikebreakers and ordered the Union to rescind the fines, reinstate the men, and expunge their records.

Section 8 of the National Labor Relations Act, 29 U.S.C. § 158, defines unfair labor practices. It provides, in part, that:

(b) It shall be an unfair labor practice for a labor organization or its agents—
(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7: Provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collective bargaining or the adjustment of grievances ....

The Board acknowledges that Section 8(b)(1)(A) does not prevent a union from imposing reasonable fines on members who cross a picket line, or from expelling them. NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967). But the Board contends that here the Union violated Section 8(b)(1)(B) because the members were supervisors.

The Union contends that it can discipline a supervisor for the same reasons it can discipline any other member.

The Union fined Gordon Dixon because he discharged an employee. Dixon acted in his capacity as a foreman empowered by the Journal to punish employees who violate company rules. By fining Dixon, the Union interfered with Dixon’s position as a supervisor and committed an unfair labor practice under Section 8(b)(1)(B). NLRB v. Toledo Locals Nos. 15-P and 272 of the Lithographers and Photo-Engravers Int’l. Union, 437 F.2d 55 (6th Cir. 1971).

The Union’s punishment of the strikebreakers presents a different issue. Although Robert and Earl Dixon and Ernest Fingerlos were supervisors, the Union did not punish them for exercising any management duty.

These three men refused to hon- or the picket line of their Union, and there is no reason to treat them differently than nonsupervisors. The Journal’s right to select management representatives under Section 8(b)(1)(B) is not affected by the Union’s action.

In Allis-Chdlmers, the Supreme Court said that “[t]he economic strike against the employer is the ultimate weapon in labor’s arsenal for achieving agreement on its own terms, and ‘[t]he power to fine or expel strikebreakers is essential if the union is to be an effective bargaining agent . . . . ’ ” Id. 388 U.S. at 181, 87 S.Ct. at 2007. Here, the Board’s broad interpretation of Section 8(b)(1)(B) threatens that power. It is an unjustifiable extension of the limited language of Section 8(b)(1)(B). Had the members elected to resign from the Union, the power of the Union over them would have ended. NLRB v. Granite State Joint Board, etc., 409 U.S. 213, 93 S.Ct. 385, 34 L.Ed.2d 422 (1972). But here the members remained in the Union, and therefore continued to be subject to their obligations as members.

The Board has not passed on whether the $10,000 fines are unreasonable, and therefore illegal, under Allis-Chalmers. We express no opinion on that issue. The Board must make that determination in the first instance. Morton Salt Co. v. NLRB, 472 F.2d 416 (9th Cir., 1972), petition for cert, filed, March 6, 1973, No. 72-1210.

The issue of whether the expelled members lose their Union benefits is not properly before us, and we express no opinion on that issue.

We grant enforcement of the Board order rescinding the $418.00 fine against Gordon Dixon, and we remand to the Board for further proceedings relative to the $10,000.00 fines. Otherwise, enforcement is denied.

ON PETITION FOR REHEARING

In its petition for rehearing the Board has asked us to reconsider our decision that Section 8(b)(1)(B) does not prevent unions from fining supervisors who perform rank-and-file work behind a picket line.

The Board has asked us to consider NLRB v. Local 2150, International Brotherhood of Electrical Workers, 486 F.2d 602 (7th Cir. 1973), decided shortly after we issued our opinion. In that case strikebreaking supervisors held withdrawal cards which entitled them to pension benefits and waiver of reinstatement requirements. They were fined by the union for crossing picket lines and performing rank-and-file struck work. The Seventh Circuit found that the imposition of such fines was an unfair labor practice because the supervisors were exercising a proper managerial function and were therefore protected under the Act.

Our attention has also been called to International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1143 (D.C. Cir. 1973) (on rehearing in banc). In that case, also decided after our opinion was announced, the D. C. Circuit, in bane, on a rehearing, came to the opposite conclusion. That Court found, as we did, that although strikebreaking may be in the employer’s economic interest, supervisors who perform rank-and-file struck work are not representing the employer “for the purposes of collective bargaining or the adjustment of grievances” under Section 8(b)(1)(B). We agree.

NLRB v. Boeing Co., 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973), was decided after our opinion was filed. We held that the Board was required to pass on the reasonableness of the $10,000 fines imposed by the union on two of its supervisory members. We remanded the case to the Board for further proceedings on these fines. In Boeing the Supreme Court held that the reasonableness of union fines must be decided in a separate proceeding by the state courts and not by the Board. We therefore delete that portion of our opinion remanding the case to the Board to consider the reasonableness of the $10,000 fines.

In all other respects we adhere to our former opinion.

The full court was informed of the suggestion for an in banc hearing, and no judge requested a vote on the suggestion for a rehearing in banc. Fed.R.App.P. 35(b).

The petition for rehearing is denied, and the suggestion for a rehearing in banc is rejected.


author: RUSSELL E. SMITH, District Judge: CHOY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Keith Edward ALLENDE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Serito Trujillo MONTOYA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donna Rae SILSBEE, Defendant-Appellant.
    Nos. 73-1800 to 73-1802.
    United States Court of Appeals, Ninth Circuit.
    Nov. 5, 1973.

      Frank O. Bell, Jr., Asst. Federal Public Defender, (argued), San Francisco, Cal., for defendant-appellant Silsbee.
    Richard S. Platz, (argued), Claude O. Allen, Oakland, Cal., for defendant-appellant Montoya.
    Jules F. Bonjour, Jr., (argued), of Bonjour, Gough & Stone, Oakland, Cal., for defendant-appellant Allende.
    Dennis Michael Nerney, Asst. U. S. Atty., (argued), James L. Browning, Jr., U. S. Atty., F. Steele Langford, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
   OPINION

Before CHAMBERS and CHOY, Circuit Judges, and SMITH, District Judge.

RUSSELL E. SMITH, District Judge:

Defendants appeal from convictions on several counts of an indictment charging violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. §§ 801 et seq.

On October 1, 1972, a customs dog at San Francisco International Airport alerted officials to the fact that a crate addressed to Donna Silsbee, 422 Hawthorne, Apt. 106, Oakland, California, might contain contraband. An exploratory search of the crate revealed the presence of hashish. Customs officials notified Silsbee by form letter of the crate’s arrival. U. S. Customs Special Agent Cox wrote on the notice a request that Silsbee call if she was unable to pick up the crate before the weekend.

On October 5, 1972, Agent Cox prepared an affidavit for a warrant to search Silsbee’s apartment, the prospective destination of the crate. The affidavit alleged that the crate would be concealed at that address and that the search warrant would not be executed unless there was confirmation that the trunk was taken into the apartment. A search warrant was issued for Silsbee’s apartment on October 5,1972.

On October 9, 1972, observed by customs agents, the three appellants picked up the crate and returned to Sils-bee’s apartment. Allende and Montoya unloaded the crate and carried it into the apartment. Montoya then went to a retail store, purchased numerous hand tools, and returned to the apartment.

Approximately 45 minutes after the crate had been taken into the apartment, customs agents, armed with the search warrant, broke through the door and arrested the appellants and seized the contraband.

Prior to trial the appellants made motions to suppress evidence. The trial court ruled the prospective search warrant invalid, but found probable cause for the arrest of the appellants and compliance with the statutory requirements for entry. 18 U.S.C. § 3109. The contraband and weapons found in plain view were admitted into evidence.

It is now urged that the search was invalid because in the 45-minute period between the time when the crate arrived and the time when the entry was made a search warrant could have been obtained. For a two-year period in our constitutional history a seizure made as an incident of a lawful arrest was invalid even as to evidence in plain view of the arresting officer, if the officer had had an opportunity to procure a search warrant. Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). Trupiano was expressly repudiated in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950). Rabinowitz in turn was repudiated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), to the extent that Rabinowitz justified a search beyond an area immediately adjacent to the person arrested. We do not, however, understand that Chimel revitalized the doctrine of Trupiano and vitiated any warrantless seizure in cases where a search warrant might have been obtained. Rather it seems from the language employed in Coolidge v. New Hampshire, 403 U.S. 443, at 465, 91 S.Ct. 2022, at 2037, 29 L.Ed.2d 564 (1971), that “an object that comes into view during a search incident to arrest that is appropriately limited in scope under existing law may be seized without a warrant.”

It is further urged that the arresting officers did not comply with the provisions of 18 U.S.C. § 3109 relating to the execution of search warrants but made applicable to arresting officers by the ease law. There was evidence from which the court could find that the officers knew defendants were in the apartment, that an officer did knock as loudly as he could with his bare hand and did in a loud voice say, “Federal officers with a warrant. Open up.” A few seconds later scampering sounds were heard, and a few seconds after that, there having been no response within the apartment, the officers knocked the door in. About ten seconds elapsed between the knock and the entry.

There need be no affirmative refusal of admittance under the statute. The refusal may be implied. There are no set rules as to the length of time which an officer must wait before using force. McClure v. United States, 332 F.2d 19 (9th Cir. 1964). We are unable to say under the circumstances of this case that the officers were unreasonable in expecting some positive response to their demand within ten seconds, or that the ruling of the trial judge on this issue was clearly erroneous.

At the close of the Government’s case the trial court instructed the jury that before it could consider the declarations of one coconspirator as against another it would first be required to find beyond a reasonable doubt that a conspiracy did exist. In connection with this instruction the court told the jury that there was sufficient evidence from which it could find the existence of the conspiracy. Objections were made and the court then made it abundantly clear that the conspiracy problem was for the jury.

In light of the entire charge and of the evidence we find the error, if any, in the instruction to be harmless. In United States v. Green, 295 F.2d 280 (6th Cir. 1961), cert, denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed.2d 387 (1962), and United States v. Blue, 430 F.2d 1286 (5th Cir. 1970), convictions were affirmed where instructions similar to those challenged here were given. Neither United States v. Womack, 454 F.2d 1337 (5th Cir. 1972), nor United States v. Garaway, 425 F.2d 185 (9th Cir. 1970), upon which defendants rely, are factually similar to this case.

Defendant Allende urges error in the court’s refusal to grant his motion to sever made after the conclusion of the prosecution’s case. The defendant Silsbee took the stand in her own defense and gave evidence damaging to Allende. For the purpose of impeaching and thereby diminishing the value of her unfavorable evidence Allende wanted to prove that there had been found in Silsbee’s apartment at the time of the arrest some hashish other than that which had been in the cabinet and which was in plain sight. A motion to suppress joined in by Allende had been granted as to this hashish. Prior to Allende’s cross-examination of Silsbee the trial court ruled that on cross-examination of Silsbee Allende might inquire as to the other piece of hashish but that he could not, in the event of Silsbee’s denial, use the suppressed evidence to impeach her. It is Allende’s theory that had the severance been granted and had Silsbee denied possession of the other hashish Allende might then have used the suppressed evidence to impeach Sils-bee and that hence Allende was prejudiced by the court’s refusal to sever. The theory fails because Allende’s rights to cross-examine and impeach Silsbee were not impaired by the court’s ruling. At this time in the federal courts a witness may not be cross-examined as to acts of misconduct not resulting in a felony conviction. Ingram v. United States, 106 F.2d 683 (9th Cir. 1939); United States v. Provoo, 215 F.2d 531 (2d Cir. 1954). The proposed Rules of Evidence §§ 608-609 (Moore’s Federal Practice, Temporary Pamphlet, 1973) may broaden the existing rule by permitting cross-examination of a witness as to acts of misconduct clearly probative of untruthfulness. Here, even assuming that questions as to the possession of hashish would bear upon Sils-bee’s untruthfulness, the Proposed Rules would not, upon her denial of the possession, permit extrinsic proof. It follows that the trial court did not deny to Allende any rights under either existing or proposed rules of evidence and that the refusal to sever was not error.

Silsbee’s motion for severance made at the close of the evidence was denied. She urges that the refusal to sever coupled with the court’s order directing that no comment be made upon the failure of the defendants Allende and Montoya to testify deprived her of a fair trial.

The rule in this jurisdiction is stated as follows:

. . . Recognizing the procedural problems inherent in a per se rule of severance, a defendant who has been denied the opportunity to comment on his co-defendant’s silence must demonstrate probable prejudice in the presentation of his defenses to the trier of fact in order to claim a right to severance. . . . Unless a defendant can show that his defense probably would have benefited from commenting on a co-defendant’s refusal to testify, denial of the motion to sever is not prejudicial. [Footnote omitted.] United States v. De La Cruz Bellinger, 422 F.2d 723, 727 (9th Cir. 1970), cert, denied, 398 U.S. 942, 90 S.Ct. 1860, 26 L.Ed.2d 278 (1970).

We find no prejudice here. It was the Government’s theory supported by the defendant’s own evidence that Sils-bee participated with Allende and Montoya in the acts constituting the crime.

From Silsbee’s own testimony it appears that about a week before the cabinet containing the drugs arrived she saw a telegram from India addressed to Allende stating that “Grandma is on the way”; that she knew that the code word “Grandma” referred to the cabinet; that she had a letter from TWA telling her that the crate was coming from New Delhi; that she and Allende planned to get the cabinet from the airport; that she went in a truck with Montoya to the airport and on the way met Allende driving her car; that Allende gave her money to give to Montoya; that the crate was consigned to her and that she did sign as the consignee of it; that she and Montoya took the crate in the truck to her apartment; that she helped un-crate the cabinet; that she knew the nature of opium and hashish; that she had been advised by Allende to identify the consignor of the crate, whose name appeared on the crate, as “MR. L. SILES-BEE (sic), . . . New Delhi, India,” as her father although her father was in California and to her knowledge there was no Mr. Silsbee in India. Silsbee’s defense was that she did not know that the cabinet contained contraband and thought that the crate was shipped as a dry run to test the Oakland customs. She did have some suspicion that at a later time Allende might ship contraband.

The facts which so clearly pointed to Silsbee’s guilty knowledge came from her testimony. This was not a case in which proof of Allende’s or Montoya’s guilt would establish Silsbee’s innocence. Any arguments directed to the failure of Allende and Montoya to testify would have tended to convict them but we do not perceive how those arguments could have diminished the force of the facts establishing Silsbee’s guilty knowledge.

Silsbee urges that there was creative activity on the part of the Government which led to her conviction on Count V of the indictment. Since identical concurrent sentences were imposed on Counts I through VI we do not examine the validity of Silsbee’s contentions as to Count V. United States v. Newton, 442 F.2d 622 (9th Cir. 1971); United States v. Fishbein, 446 F.2d 1201 (9th Cir. 1971).

Montoya claims that the evidence was insufficient as to him. We have examined it and disagree.

The judgments of conviction are affirmed.

CHOY, Circuit Judge

(concurring):

I fully concur in the foregoing opinion.

However, in view of several appeals in this court of late wherein the district courts involved unnecessarily generated problems by succumbing to the impulse to apprise their juries of the courts’ opinion on the sufficiency of the evidence, I suggest great restraint if not abstinence in the use of jury instructions like those set forth in footnotes 7 and 8 of our opinion.

       The Honorable Russell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

      . See United States v. Edwards, 474 F.2d 1206 (6th Cir. 1973) ; United States v. Johnson, 475 F.2d 977, 982 (D.C.Cir. 1973) (dissenting opinion), n. 8.

      . Having found that the seizure was properly incident to the arrest we do not considei whether the warrant was invalid because the articles to be seized had not arrived at the place to be searched at the time the warrant was issued.

      . “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

      . Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968).

      . See United States v. Harrison, 487 F.2d 389 (9th Cir. decided July 19, 1973).

      . Error is not asserted on the ground that the fact questions preliminary to the admission of evidence should be decided by the court (Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) ; United States v. Knight, 416 F.2d 1181 (9th Cir. 1969)) and that the practice of submitting these preliminary questions to the jury is not approved in this circuit.

      . “I do find, as a matter of law, that there has been sufficient evidence presented to justify you — I’m not saying you should — to justify the jury in finding a conspiracy. I’m not saying that the evidence establishes a conspiracy beyond a reasonable doubt. That’s for you to decide. I’m simply saying that there’s enough to justify your finding that a conspiracy existed.” Tr. p. 315.

      . “ . . . It is for the jury and not the Court to decide whether or not there was any conspiracy. All that the Court now indicates is that if the jury does decide that there was a conspiracy, for the purposes charged in the indictment, either or both conspiracies, if the jury makes that decision, which the jury can, but doesn’t have to, then any statement or act of any defendant made in furtherance of that conspiracy may be considered as applying to all the parties to the conspiracy. Now, I think that that’s about what I said before, but if it isn’t, just consider that and no more. The Court is not instructing you that there was a conspiracy. That’s your department. The Court is instructing you that if you do find there was a conspiracy, you may do it only upon the evidence in this Court and the conspiracy, if you find any defendant guilty on that count, or the defendants guilty on either of those counts, has got to be established by evidence convincing you that there was a conspiracy beyond a reasonable doubt. Now, I don’t know how I can be much more clear than that. All that I am saying is that the posture of the case is now such that if you, if you do find that there was a conspiracy, the Court believes there is sufficient evidence to support such a finding on your part. I’m not saying you should.” Tr. pp. 332 et seq.

      . We know that the Fifth Circuit approval of the instruction given in United States v. Blue, 430 F.2d 1286 (5th Cir. 1970), was withdrawn in the case of United States v. Womack, 454 F.2d 1337 (5th Cir. 1972). The disavowal, however, was on policy grounds and the net effect of the decision in Womack is to affirm the conclusion in Blue that an instruction such as that given here is harmless. See United States v. Womack, supra, p. 1344, n. 2.

      . Allende’s right to impeach, Silsbee should not be confused with the Government’s right (barring 4th amendment considerations) to use evidence of the other piece of hashish to throw light upon the defendant Silsbee’s intent and knowledge.