author: SCHNACKE, District Judge: TRASK, Circuit Judge TRASK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Portsche WARD, Defendant-Appellant.
    No. 72-3176.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    On Hearing En Banc Nov. 13, 1973.

      James L. Yonasch (argued), Seattle, Wash., for defendant-appellant.
    Irwin Schwartz, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Jerald E. Olson, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before CHAMBERS and TRASK, Circuit Judges, and SCHNACKE *, District Judge.
   SCHNACKE, District Judge:

Defendant was convicted of knowing possession of a false Selective Service registration card, 50 U.S.C. App. § 462(b)(5).

The evidence and defendant’s stipulations in the trial court fully support the court’s written findings that defendant had manufactured a false identity for himself under an assumed name, and that, as part of the scheme, he obtained and completed a falsely made Selective Service registration certificate which he had in his possession at the time of his arrest. The contention that the evidence is insufficient to support the charge is totally without merit.

The principal contention on this appeal is that the court below erred by receiving in evidence the false documents carried by defendant at the time of his arrest, and in denying defendant’s motion to suppress directed to that evidence. The precise basis upon which defendant relies has not been succinctly stated either here or below, but the contention appears to be that the false documents were seized from, or involuntarily produced and displayed by defendant at a time when he was, or thought he was, under arrest, and prior to the time he was given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L.Ed.2d 694 (1966).

The evidence, taken most favorably to the government, fails to support the contention.

FBI agents wanted to question defendant privately concerning some federal fugitives. No federal charges were outstanding against defendant. The agents knew defendant had been using the name “Gerald Clayton Washburn”. While driving about in an unmarked car they saw defendant alone in a car and signalled him, by siren, to pull over, which he did. The agents approached his car, identified themselves, stated that they wanted to interview him about the fugitives and asked him to identify himself. Defendant asked if he was under' arrest, and was told he was not. Defendant produced a driver’s license in the name of Washburn and was told by an agent there was no such person. Defendant then handed the agent a group of cards, as though to prove the agent wrong.

This was a mistake, because the top card was a Selective Service registration card also issued in the name of Wash-burn. Defendant was then placed under arrest for the crime here asserted.

The investigating officers stopped defendant to seek information from him, not to arrest him. Officers must be allowed to exercise their ingenuity and judgment, in the light of their training and experience, in deciding when, where, how, and even with what flair or dramatics they question a witness they expect to be reluctant. ' It was entirely reasonable, and certainly no invasion of any right of defendants, to decide to question him when they found him alone, rather than at his residence (under the view of those being investigated) or at the office of the attorney for whom he worked.

Defendant complains most vigorously of the fact that he was signalled to stop by the siren of the FBI car. This certainly led him to believe that law enforcement officers wanted to see him, and might well have caused him to wonder if he were to be arrested. But when he asked if he was under arrest, he was told that he was not, and thereafter, he produced the false identification documents. It is implicit in the rulings of the trial judge that he found, on evidence conflicting but adequately supporting the findings, that up to that time there was no arrest, no search, and no compulsion, but rather a voluntary display of the counterfeit identification.

It is made plain by Miranda, supra, at pp. 477-478, 481, 86 S.Ct. at p. 1629, that its limitations were not designed to “hamper the traditional function of police officers in investigating crime”. The evidence here obtained during investigation was properly received. See Lamb v. United States, 414 F.2d 250 (9th Cir. 1969).

The name a person is using, like his voice or his fingerprints, is a publicly displayed characteristic. Compelling the giving of handwriting or voice samples is not violative of the Fourth or Fifth Amendments. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 99, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). However, the view we take of the case makes it unnecessary to consider whether Dionisio and Mara have application.

The judgment of conviction is affirmed.

TRASK, Circuit Judge

(dissenting):

I respectfully dissent. In my opinion the F.B.I. agents acted unreasonably in stopping appellant’s car for the purpose of interrogating him. The stop violated appellant’s Fourth Amendment rights against unreasonable searches and seizures and unreasonably infringed on appellant’s right as a motorist to be free from arbitrary disruption of unrestricted lawful travel. Terry v. Ohio, 392 U. S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

There can be no question that appellant’s motion to suppress was directed at all evidence obtained by the government as a result of the stop — identification documents, fingerprints, handwriting exemplars and testimony of what appellant said and did during the stop. The majority opinion ignores the legality of the stop issue determining that appellant’s primary argument is without merit — that the evidence should have been suppressed because a Miranda warning was not given soon enough. I am also unpersuaded by appellant’s interpretation of Miranda and the warning requirement under the circumstances of this case. This court should not bypass a consideration of the legality of the stop, however, merely because appellant has raised that issue with less vigor. If the stop was illegal, then the evidence obtained as a result of the stop should have been suppressed.

The stop of a vehicle can be an unreasonable seizure within the meaning of the Fourth Amendment because it intrudes on a driver’s reasonable expectation of the right to proceed lawfully along the public streets and highways without molestation by authorities except for cause. Beck v. Ohio, 379 U.S. 89, 94-95, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). And that cause may be no less than a founded suspicion. United States v. Mallides, 473 F.2d 859 (9th Cir., 1973). When federal agents pull a motorist off the road by use of a siren there has been a seizure even though the agents only intended to make a routine investigation. The question must be raised in every stop case whether the seizure was reasonable under the Fourth Amendment. In determining the reasonableness of such a stop, the courts must weigh the need for police action against the inconvenience and intrusion which the stop entails. Terry v. Ohio, supra; United States v. Leal, 460 F.2d 385 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 154, 34 L.Ed.2d 146 (1972).

With these general principles in mind, a review of the facts of this case is crucial in assessing the reasonableness of the challenged stop. The evidence at the suppression hearing established that:

(1) F.B.I. agents knew where appellant lived and had known for a number of jnonths prior to April 4, 1972.
(2) The agents knew appellant’s car by make, model, color, year and license number. .
(3) The agents presumably knew appellant had worked as a typist for a practicing lawyer, but no effort was made to contact the appellant at that office or through the attorney.
(4) The agents knew that appellant was using the name Gerald Clayton Washburn and had known for a number of months. Appellee acknowledges that it is not a crime in itself to assume a false identity.
(5) The agents knew that appellant had a Washington driver’s license in the name of Gerald Clayton Washburn and had seen a copy of the driver’s license in the state’s records prior to April 4, 1972. (Washington driver’s licenses have the driver’s picture on them.) The agents were also aware that there were birth records in Seattle of a Gerald Clayton Washburn who had died as a child several years prior to April 4, 1972.
(6) Prior to April 4, 1972, the agents surveilled Ward on different occasions at his residence and wanted to interview him regarding a federal fugitive, William Ayres', who had been indicted in 1970 by a federal Grand Jury, but not in the presence of appellant’s friends or acquaintances.
(7) On April 4, 1972, agents Woodlieg and Clark were driving around Capitol Hill with two other agents who were new to Seattle. The agents went by appellant's residence where appellant was spotted in his Volkswagen. The agents followed appellant to a co-op and then followed him after he left the co-op, catching up with him at a nearby intersection at a stop sign. The agents then turned on the siren in their unmarked car. Appellant turned around to look at them and they motioned him to go around the corner and stop. Appellant turned the corner and pulled over to the side of the road into a parking place. The agents stopped in the street behind appellant’s Volkswagen but about five feet from the curb.
(8) All four F.B.I. agents exited the car and approached appellant. Agent Woodlieg testified that he and the other agents identified themselves, informed appellant that they wanted to interview him about federal fugitives and asked appellant to identify himself, already knowing that appellant was using the name Washburn and had a driver’s license in the name Washburn. Appellant produced the driver’s license and agent Woodlieg informed appellant that Washburn did not exist and that he could not be Washburn. Appellant, in response to this, shrugged his shoulders and then handed a stack of identification papers to Woodlieg as if to say, “What do you mean, of course I’m Washburn, see.” Agent Woodlieg saw the top identification which was a Selective Service Registration Certificate in the name of Washburn.
(9) Upon seeing the Selective Service card, Woodlieg advised appellant that he was under arrest, advised him of his rights and proceeded to frisk him. (10) Agent Woodlieg testified that prior to seeing the Selective Service card, he had nothing on which to arrest or detain Ward and no facts on which to suspect any law violation. Agent Woodlieg also testified that they did not know or suspect that appellant had the false Selective Service card. The agents justified the stop of appellant’s vehicle on the ground that they were carrying out their “traditional investigatory function,” explaining that they wanted to interview appellant in secret.

With all due deference to the federal agents’ duties to make criminal investigations, I am unable to justify the manner they chose for approaching the appellant. First, there were no exigent circumstances to justify the stop as when the police have a founded suspicion that fresh criminal activity is afoot. Here there was no emergency situation.There was no need for immediate action. The agents were not fearful appellant would leave town. The stop was not directed at a particular crime, but was part of a general investigation that had been started months before. The agents had never sought an interview with appellant at his house or place of business although that could have been arranged. Instead they chose to contact appellant for an interview by tailing his car and pulling him over to a stop by a siren on the public street.

Second, the stop was not made by local law enforcement officers as guardians of the peace, but by federal agents with the duty to enforce specific federal statutes only. See Frye v. United States, 315 F.2d 491, 494 (9th Cir.), cert. denied, 375 U.S. 849, 84 S.Ct. 104, 11 L. Ed.2d 76 (1963).

Third, and most important of all, the stop was not made because of something appellant had done, or was suspected of having done. Rather, the stop was made for the purpose of questioning appellant about a third person. Investigative stops based on a person’s suspicious activities are constitutionally permissible. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Vehicular stops based on the driver's furtive actions may be unlawful, however, if the police officers did not have reasonable grounds for making the stop. United States v. Majourau, 474 F.2d 766 (9th Cir., 1973); United States v. Davis, 459 F.2d 458 (9th Cir. 1972); United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971). The stop of appellant was not a Terry “investigative stop,” since appellant had done nothing to direct the agents’ suspicion at him.

Considering these differences, I conclude the stop of appellant must be distinguished from the general “investigative stop” approved in Terry and in decisions by this court. Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966). The stop in this case unreasonably interfered with appellant’s right as a motorist to

travel without interference. The Supreme Court has noted in Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949):

“The citizen who has given no good cause for believing he is engaged in [unlawful] activity is entitled to proceed on his way without interference.” 338 U.S. at 177, 69 S.Ct. at 1311. See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

This right to proceed without interference was violated in Clay v. United States, 239 F.2d 196 (5th Cir. 1956), when a known gambler was forced off the road by federal Revenue Agents. As in this case, the agents stopped the vehicle to question the driver although there was no reason to believe that a crime was being committed. The agents knew where appellant lived and where he worked and they had kept him under surveillance for a number of days prior to the time they forced his automobile off the public highway. The court concluded that evidence seized as a result of the unlawful stop should have been suppressed.

The mere desire of F.B.I. agents to talk to an individual about another individual is insufficient reason for forcibly stopping a citizen’s vehicle on the highway when measured against the embarrassment and indignity incident to a stop on a city street by means of a siren by four agents. It is idle for the appel-lee to argue that because appellant was not under formal arrest he “voluntarily” produced the incriminating document. He was being forcibly detained under the heavy hand of the law and he knew it and they knew it. Under the circumstances of this case, I am compelled to believe the stop was an unreasonable intrusion under the Fourth Amendment. The materials discovered as a result of the stop should have been suppressed because they were the fruit of the unlawful stop. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In my judgment, appellant’s conviction should be reversed.

Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, and WALLACE, Circuit Judges.

ON HEARING EN BANC

TRASK, Circuit Judge:

Robert Portsche Ward appeals from his conviction of knowing possession of a false Selective Service registration card, 50 U.S.C. App. § 462(b)(5). The conviction was based upon evidence obtained from the appellant by FBI agents after a vehicular stop and request for identification. The appellant’s pretrial motion to suppress the evidence was denied by the district court. We reverse on the ground that the stop of Ward’s automobile violated the appellant’s Fourth Amendment right against unreasonable search and seizure and that the violation required the suppression of evidence obtained as a result of the unlawful stop.

The evidence presented at the suppression hearing indicated that the FBI wished to interview the appellant regarding a federal fugitive, William Ayres, who had been indicted in 1970 by a federal Grand Jury. Prior to April 4, 1972, the date of the road stop, FBI agents surveilled Ward on different occasions, waiting for an opportunity to interview Ward outside the presence of friends and acquaintances.

The evidence further established that:

(1) The FBI agents knew where the appellant lived and had known for a number of months prior to April 4, 1972.

(2) The agents knew the appellant’s car by make, model, color, year and license number.

(3) The agents presumably knew that the appellant had worked as a typist for a practicing lawyer, but no effort was made to contact the appellant at that office or through the attorney.

(4) The agents knew that the appellant was using the name of Gerald Clayton Washburn and had known for a number of months. Appellee acknowledges that it is not a crime in itself to assume a false identity.

(5) The agents knew that the appellant had a Washington driver’s license in the name of Gerald Clayton Washburn and had seen a copy of the driver’s license in the state’s records prior to April 4, 1972. (Washington drivers’ licenses have the driver’s photograph on them).

(6) The agents were also aware that there were birth records in Seattle of a Gerald Clayton Washburn who had died as a small child several years prior to April 4, 1972.

On April 4, 1972, agents Woodlieg and Clark together with two agents new to Seattle, spotted the appellant leaving his residence in his Volkswagen. They followed the appellant to and from a food co-op and then caught up with him at a stop sign at a nearby intersection. The agents then turned on the siren in their unmarked car and motioned the appellant to go around the corner and stop. The appellant immediately complied, turning the corner and pulling over to the side of the road. The agents stopped in the street behind appellant’s Volkswagen but about five feet from the curb. All four agents exited the car and approached the appellant. Agent Woodlieg testified that he and other agents identified themselves, informed the appellant that they wanted to interview him about federal fugitives and asked appellant to identify himself, already knowing that appellant was using the name Washburn and had a driver’s license in that name. When the appellant produced the driver’s license, Agent Woodlieg informed him that Washburn did not exist and that he could not be Washburn. Appellant in response to this shrugged his shoulders and handed Woodlieg a stack of identification papers as if to say, “What do you mean, of course I’m Washburn, see.” Agent Woodlieg saw that the top identification card was a Selective Service registration certificate in the name of Washburn, and immediately informed the appellant that he was under arrest and advised him of his rights.

Agent Woodlieg further testified that the FBI did not know or suspect that the appellant had the false Selective Service card; that prior to seeing the Selective Service card he had no grounds on which to arrest or detain Ward and no facts on which to suspect any law violation. The agents justified the stop of appellant’s vehicle on the ground that they were carrying out their “traditional investigatory function,” explaining that they wanted to interview the appellant in secret.

Central to the determination of this appeal is the legality of the FBI’s initial interception of the appellant’s automobile. If the stop was illegal, then the evidence obtained as a result of the stop should have been suppressed.

Although not all street encounters between citizens and law enforcement agents involve Fourth Amendment considerations, when an officer accosts an individual and by physical force or show of authority restrains his liberty short of arrest, the stop becomes a “seizure” of the person. Terry v. Ohio, 392 U.S. 1, 16, 19, n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Such a seizure must then be tested for reasonableness under the Fourth Amendment. This requires the courts to weigh the need for police action against the inconvenience and intrusion which the stop entails. Terry v. Ohio, supra; United States v. Mallides, 473 F.2d 859 (9th Cir. 1973); United States v. Leal, 460 F.2d 385 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 154, 34 L.Ed.2d 146 (1972).

The appellee would forestall considerations of the reasonableness of the stop, arguing that the FBI’s interception of appellant’s car was merely an effective method of initiating a private interview, and the use of a siren equivalent to a knock on the door. Additional Brief for Appellee at 3-4. The appellee thus claims that the road stop did not amount to a “seizure” within the purview of the Fourth Amendment.

Although the Supreme Court has not defined the precise point at which a police encounter becomes subject to Fourth Amendment scrutiny, Terry v. Ohio, supra, 392 U.S. at 19, n. 16, 88 S.Ct. 1868, it is clear that when four federal agents pull a motorist off the road by use of a siren there has been a seizure even though the agents only intended to make a routine investigation. United States v. Nicholas, 448 F.2d 622 (8th Cir. 1971); Carpenter v. Sigler, 419 F.2d 169 (8th Cir. 1970); see United States v. Mallides, supra. The appellant as a law abiding motorist was forced to respond to the siren (unlike the knock at the door); and despite the fact that the appellant was not formally under arrest, when the four agents flashed their badges and surrounded him, his freedom to depart was realistically restrained. United States v. Nicholas, supra. We find therefore that the FBI’s interception of Ward’s automobile under these circumstances did constitute a “seizure” which must be examined for reasonableness under the Fourth Amendment.

The circumstances surrounding the stop in the present case are distinguishable from those involved in Terry v. Ohio, supra, and the decisions of this court which have upheld certain “investigative stops.” E. g., United States v. Bugarin-Casas, 484 F.2d 853 (9th Cir., 1973); Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966). In conformity with Terry, we have repeatedly held that a founded suspicion that criminal activity is afoot is a minimum requirement for any lawful detentive stop. United States v. Leal, supra; United States v. Davis, 459 F.2d 458 (9th Cir. 1972). The facts in the present case, however, preclude such a finding:

First, there was no crime “afoot.” The FBI agents did not stop appellant’s car in connection with any particular crime, but rather the stop was pursuant to a general criminal investigation that had begun several months before. There was no emergency situation nor any need for immediate action. The FBI was not fearful that the appellant would leave town. The agents never sought an interview with the appellant at either his home or place of business although both could have been arranged. In short, there were no exigent circumstances warranting the extreme nature of a vehicular stop by a siren on a public street.

Secondly, while local law enforcement officers may make vehicular stops as guardians of the peace generally, federal agents may enforce only specific federal statutes. Frye v. United States, 315 F.2d 491, 494 (9th Cir.), cert. denied, 375 U.S. 849, 84 S.Ct. 104, 11 L.Ed.2d 76 (1963). Here, by the government’s own admission, the FBI agents had no reason to suspect that the appellant had violated or was going to violate any federal law. Brief for Appellee at 13-15.

Finally, and most significantly, the stop was not made pursuant to the agent’s founded suspicion that the detainee was involved or about to be involved in criminal activity. Rather, the stop was made for the purpose of questioning the appellant about a third person. This then was not a “. brief stop of a suspicious individual [made] in order to determine his identity or to maintain the status quo momentarily . . . .” Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (emphasis added), for the appellant was not the object of the FBI’s suspicions. Clearly, the narrow exception of Terry v. Ohio, supra, which allows investigative stops on grounds short of probable cause cannot be stretched so far as to allow detentive stops for generalized criminal inquiries.

For these reasons the FBI’s interception of the appellant’s car must be distinguished from the permissible investigative stops we have approved in other situations. E. g., United States v. Bugarin-Casas, supra. The stop in this case unreasonably interfered with the appellant’s right as a motorist to travel without interference. Brinegar v. United States, 338 U.S. 160, 177, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925). The Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) most recently reaffirmed the important nature of this right. The court approvingly quoted Justice Taft that “. . . those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search . . .’’in absence of good cause. Id. at 274, 93 S.Ct. at 2540.

Having found the FBI’s stop of appellant’s car to be an unreasonable intrusion under the Fourth Amendment, we hold that the materials discovered as a result of the stop should have been suppressed as the fruit of the unlawful stop. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); accord,, United States v. Davis, 459 F.2d 458 (9th Cir. 1972); Clay v. United States, 239 F.2d 196 (5th Cir. 1956). “If officers have the right to interfere with that essential pursuit of a nation of au-tomobilists, it must be based on what is known or reasonably believed before the commandeering starts. To allow justification to rest on discovery after intrusion would permit ‘the Government * * * to justify the arrest by the search and at the same time to justify the search by the arrest,’ Johnson v. United States, 333 U.S. 10, 16, 68 S.Ct. 361, 370, 92 L.Ed. 436, 442.” Clay v. United States, supra at 200-201.

SNEED, Circuit Judge, who qualified as a judge of this court on September 11, 1973, did not participate in the consideration or decision of this case.

CHAMBERS, Circuit Judge (dissenting) :

I dissent for the reasons expressed by Judge Sehnacke in our original panel opinion, United States.v. Ward, 488 F.2d 162.

Further, it seems more clear than ever to me that this was not a proper case to take en banc.

      . The Motion to Suppress and the Memorandum and Supplementary Memorandum of Points and Authorities clearly show appellant’s reliance upon the illegality of the stop as well as the failure to give proper Miranda warnings. He claimed the protection of the Fourth Amendment and of the Fifth Amendment.

      . “No, I had no intentions of arresting Mr. Ward. The sole purpose of my stopping him was for an interview, and that was all .... In relation to fugitive matters . . . concerning William Charles Ayres.” (Testimony of Agent Woodlieg, R.T. at 10).

      . “ . . . [T]he agents had no charge on which to suspect any law violation prior to seeing the Selective Service card; . . . ” Government Brief at 13.
      “Here, the agents had no knowledge of a crime having been committed and they did not observe anything which would lead them to suspect a crime had been committed by Ward, prior to seeing the Selective Service card.” Government Brief at 14-15.
      “The stop in this case was not a Terry “investigative stop” since the agents did not suspect that a crime had been or was being committed by appellant, Ward.” Government Brief at 21.

      . “ . . . [T]he agent had no charge on which to suspect any law violation prior to seeing the Selective Service card; . . . ” Brief for Appellee at 13.
      “Here, the agents had no knowledge of a crime having been committed and they did not observe anything, which would lead them to suspect a crime had been committed by Ward, prior to seeing the Selective Service card.” Id. at 14r-15.
      “The stop in this case was not a Terry ‘investigative stop’ since the agents did not suspect that a crime had been or was being committed by appellant, Ward.” Id. at 21.


source: Caselaw Access Project

author: WALLACE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Jess David RICHTER et al., Defendants-Appellees.
    No. 73-1395.
    United States Court of Appeals, Ninth Circuit.
    Nov. 2, 1973.

      Harry J. McCarthy, Asst. U. S. Atty. (argued), Stan Pitkin, U. S. Atty., Irwin H. Schwartz, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellant.
    M. John Bundy (argued), Thomas S. Wampold (argued), O. J. Humphrey, III, Anthony Savage, Jr., Jeremiah M. Long, Frank J. Conway, Robert L. Butler, Maurice Kadish, R. Terry Husseman, Seattle, Wash., Frank Payne, Federal Way, Wash., Clayton Harrington, Jr., Carnation, Wash., Michael E. Jones, Everett, Wash., for defendants-appellees.
    Before CHAMBERS and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, Senior United States District Judge, Eugene, Oregon, sitting by designation.

   WALLACE, Circuit Judge:

The United States appeals from the district court’s dismissal with prejudice of a two-count indictment. The indictment charged defendants-appellees with conspiratorial and substantive violations of various gambling laws.

On November 2, 1972,. defendant Re-chichi moved to dismiss the first count of the indictment as duplicitous and also moved for discovery of the names, addresses, and telephone numbers of all witnesses whom the government intended to call at the trial. The other defendants joined in the motions.

The district court denied the motion to dismiss but granted a limited motion to discover the names and addresses of all government witnesses who purchased football cards or made bets with or through the defendants or who would testify concerning the involvement of the defendants in the gambling ring.

Twelve days later, the government filed a notice of non-compliance, indicating that the United States Attorney had been directed by the Department of Justice to decline respectfully to comply with the discovery order. The government felt that there was no statutory or precedentiál basis for such an order and that appellate review could occur only if the indictment were dismissed for noncompliance. The defendants then moved for dismissal; and on December 8, 1972, the district judge dismissed the indictment with prejudice as to all defendants. We reverse.

The defendants póse a threshold issue, claiming that the government has no right of appeal under these circumstances. They place their primary reliance on United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959) (en banc) where this court limited the applicability of 18 U.S.C. § 3731 to dismissals “based upon a defect in the indictment or information, or in the institution of the prosecution.” 270 F.2d at 755. See also United States v. Ponto, 454 F.2d 657, 659-663 (7th Cir. 1971) (en banc).

This reliance ignores the fact that § 3731, upon which we based Apex, was amended by the Omnibus Crime Control Act of 1970. The amended section allows a government appeal from an order by a district court dismissing an indictment except when barred by the double jeopardy clause of the Constitution. Section 3731 also now states that its provisions should be liberally construed. We conclude that there exists a clear legislative intent that the government be allowed to appeal a dismissal such as the one involved in this, case. There was no acquittal and none of the defendants claim that they were once in jeopardy. To this extent, our decision in Apex has been legislatively modified.

Possessing a right to appeal, the government contends that the trial court exceeded its statutory authority and abused its discretion in granting this discovery order. The precise question of the ability of a trial judge to order the production of the names and locations of prospective government witnesses requires an evaluation of the present status of discovery in criminal cases.

The government argues that the only basis for this type of discovery is either 18 U.S.C. § 3432 or Fed.R. Crim.P. 16, and that neither is applicable to this case. With the latter, we agree. This is not a capital case and so, by its terms, § 3432 does not apply. Likewise, rule 16, in view of its history, should not be read to include the desired discovery. But our agreement as to the nonapplicability of the section and rule does not end our inquiry. The Federal Rules of Criminal Procedure are intended to constitute a comprehensive procedural code for criminal cases in the federal courts. But even the rules themselves do not purport to set outer limits of the power of the court. On the contrary, Fed.R.Crim.P. 57(b) states:

If no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.

As the rules do not contain provisions pertaining to the divulgence of names of prospective witnesses, ordering their production is not inconsistent with the rules. Similarly, there is no statute on the subject except for § 3432. Therefore, the rules did not necessarily foreclose the district court from making the attacked order. However, the real question is whether there is power, aside from the rules, for the district court to make the order here attacked.

It is recognized that wide latitude is reposed in the district court to carry out successfully its mandate to effectuate, as far as possible, the speedy and orderly administration of justice. “A federal court has the responsibility to supervise the administration of criminal justice in order to ensure fundamental fairness.” United States v. Baird, 414 F.2d 700, 710 (2d Cir. 1969), cert. denied, 396 U. S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1970). It would be ill-advised to limit improvidently this inherent power for fear of misuse. The firing point of the legal system is with the trial judge who is best situated to administer the law and protect the rights of all. Such discretion is not limitless, but appellate review provides a proper check. Therefore, we are not disposed to hold that the district court may never order the government to divulge names of prospective witnesses.

However, the history, development and present status of criminal discovery indicate that the discretion we recognize should not be unlimited. There was no federal rule governing the subject until rule 16 was adopted in 1946. The advisory committee which proposed the rule noted that it was doubtful “ [w] hether under existing law discovery may be permitted in criminal cases . . . . ” Although the first draft of the rule “would have allowed discovery of any document so long as it was material and not privileged,” the rule as finally promulgated gave the defendant a limited right of access to material belonging to him or seized from others. The process of redrafting clearly indicated that the rule conferred only a very narrow right, and courts refused discovery of witnesses under this first version.

In 1966, the old rule was repealed, and a new rule which expanded the scope of discovery replaced it. Two subdivisions of the new rule govern discovery by a defendant. Rule 16(a) states that the court, upon defendant’s motion, may order discovery of statements of the defendant, results of tests or examinations, and testimony of the defendant before a grand jury. Rule 16(b) provides for further discovery of certain books and papers by a defendant “upon a showing of materiality to the preparation of his defense and that the request is reasonable.” Finally rule 16(e) allows the limitation of the scope of discovery under the preceding subdivisions by protective order issued after a sufficient showing by the government.

With this background, we must determine the allowable scope and manner of discovery when a defendant requests the names of the prosecution’s witnesses. Expansion of the limits of discovery has not been rapid despite the many changes in other areas of criminal procedure. In establishing any limitations, we believe that we should look to the present rule 16 for guidance. Although witness discovery is not provided for by the rule we believe the procedures of rule 16(b) can be applied to the present situation. If a defendant desires discretionary disclosure of the government’s witnesses, he should make the showing similar to that required by rule 16(b). If the court wishes to entertain the motion and if the government feels that it has a valid reason for resisting that discovery, it should move for a protective order similar to that provided for under rule 16(e). Following these procedures will insure that there is an adequate basis for requesting such discovery and will afford the government a known method for resisting the request. Furthermore, the procedures will produce a record which will enable and facilitate appellate review when it is claimed that the trial judge abused his considerable discretion.

In this case, the record is insufficient to pass upon Rechichi’s claim that discovery was reasonable and was necessary in order to prepare properly for trial. Certainly his mere statement would be inadequate. Further, even if Rechichi did make a showing which would be sufficient under a rule 16(b) type standard, the government should have the opportunity to make a showing similar to that outlined in rule 16(e). As this constitutes our first guidelines in this area of discovery and under the unique circumstances of this case, we hold the dismissal with prejudice was unwarranted.

Reversed and remanded.

      . See 18 U.S.C. §§ 371, 1955; ch. 280, §§ 2-4 [1971] Wash.Laws 1st Ex.Sess. 1420-21, (Wash.Rev.Code § 9.47.310(2)-(4)). The indictment alleged the existence of an illegal gambling business involving wagers by means of football parlay cards.

      . Defendants Reehichi, Richter and Usher filed cross-appeals from the order denying their motions to dismiss count 1 of the indictment. On March 15, 1973, this court dismissed the appeals of Reehichi and Richter for lack of an appealable final order. Nos. 73-1273 and 73-1276. By separate order filed this day, defendant Usher’s cross-appeal is dismissed for the same reason. No. 73-1528.

      . Act of Jan. 2, 1971, Pub.L.No.91-644, § 14(a), 84 Stat. 1890.

      . The legislative history of the amendment also illustrates the intended liberality. The Act was amended in the “following significant” respect:
      Technical distinctions in pleadings as limitations on appeals by the United States were eliminated and in their place the Government was authorized to appeal any decision or order terminating a prosecution except an acquittal.
      Conference Rep.No.91-1768, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Admin.News, 5848 (emphasis added). In contrast, Apex held that only “motions to dismiss which are the substantial' equivalent of the former demurrer, motion to quash, or plea in abatement, are appealable by the Government.” 270 F.2d at 754.

      . Section 14(b) of the Act provided that the amended section should not apply to any case begun before the effective date of the Act. (Jan. 2, 1971). Therefore, Apex retains its vitality for some older cases. See, e. g., United States v. Weller, 466 F.2d 1279, 1280 n. 1 (9th Cir. 1972).

      . The government urges the application of the maxim inelusio unius est exelusio alteri-us, arguing that Congress’ limitation of § 3432 to capital cases indicates a Congressional intent not to allow similar discovery in non-capital cases. Compare United States v. Palmisano, 273 F.Supp. 750, 752 (E.D.Pa.1967) with United States v. Margeson, 261 F.Supp. 628, 629 (E.D.Pa.1966). We disagree. We believe the section sets a minimum' standard of disclosure in this type of case. It does not, by its terms, limit discovery in other types of cases nor has any legislative intent to do so been called to our attention.

      . See 1 C. Wright, Federal Practice and Procedure § 254, at 517 (1969).

      . We note the legislative history would not necessarily support treating rule 57(b) as possessing such extensive power to be the basis of the order involved in this case. Apparently, the intent was to allow the court the option not to apply a state practice and to leave the rules flexible enough so that details could be freely worked out by local rule or usage. Examples noted of the latter tend to show the limited thrust: mode of em-panelling a jury, manner and order of interposing juror challenges, foreman selection, sealed verdicts and order of argument. 8a J. Moore, Federal Practice 1f 57.01 (2d ed. 1972). In spite of this, rule 57(b) has been relied upon, in part, for matters of substance not referred to in the rules, e. g., criminal discovery orders. United States v. Sermon, 228 F.Supp. 972, 983 (W.D.Mo, 1964).

      . However 18 U.S.C. § 3432 is the successor to a statute first adopted in 1790. See 1 C. Wright, supra, § 254, at 516. Since the statute always has been limited to capital cases, it is not relevant to our discussion of discovery in a non-capital case.

      . Advisory Oomm. Note to Rule 16 in 3 C. Wright, supra at 466.

      . 1C. Wright, supra, § 251, at 491.

      . See United States v. Peltz, 18 F.R.D. 394, 397 (S.D.N.Y.1955).

      . See, e. g., Dean v. United States, 265 F.2d 544, 547 (8th Cir. 1959).

      . A comparison of the two subdivisions suggests that 16(a) requires no showing whatsoever.

      . The trend beyond the present rule 16 appears to be toward even greater liberality. Proposed amendments to the rule would further expand the scope of discovery. See 48 F.R.D. 587 et seq. The amendment was submitted for comments in January, 1970. The ABA Project on Standards for Criminal Justice also has proposed “more permissive discovery practices for criminal cases than is provided by applicable law in any jurisdiction in the United States.” Standards Relating to Discovery and Procedure before Trial 1 (Approved Draft 1970). Notably each of these proposals specifically provides for discovery of prosecution witnesses. See Proposed rule 16(a) (1) (vi), 48 F.R.D. at 589-590; ABA Standards § 2.1(a) (i), at 13. However, they also allow the government to seek protection if it is so inclined. Proposed rule 16(a) (1) (vi), 48 F.R.D. at 589-590; ABA Standards § 4.4, at 18.

      . Further changes to rule 16 were proposed three years ago, yet have not been enacted.

      . One commentator believes that witnesses may be within the present rule 16(b). 8 J. Moore, Federal Practice 1[ 16.05 [4], at 16-58&n.56 (2d ed. 1972). He bases his conclusion upon the Advisory Committee’s Note to Subdivision (e) which mentions “the safety of witnesses” and “perjury or witness intimidation” as factors to be considered upon application for a protective order.

      . We note that Proposed rule 16(a) (1) (vi) specifically mentions “physical or substantial economic harm or coercion.” 48 F.R.D. at 590. However, we do not endorse its proposal that the names and addresses “shall not be subject to disclosure” if the government merely “certifies that to do so may subject the witness” to those dangers. 48 F.R.D. at 589.
      We also note that the Advisory Committee’s Note to the present Subdivision (e) includes the safety of witnesses and the danger of perjury or witness intimidation as considerations. However our mention of these factors is not meant= to create an exclusive list. Rule 16(e) leaves matters thoroughly within the discretion of the trial court.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ricardo Chavez ORTIZ, Defendant-Appellant.
    No. 73-1429.
    United States Court of Appeals, Ninth Circuit.
    Nov. 7, 1973.

      David E. Kenner (argued), Van Nuys, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Richard Rosenfield, Asst. U. S. Atty., Jonathan D. Rapore (argued), Asst. U. S. Atty., for plaintiff-appellee.
    Before HASTIE GOODWIN and WALLACE, Circuit Judges.

       Honorable William H. Hastie, Senior United States Circuit Judge for the Third Circuit, sitting by designation.

   WALLACE, Circuit Judge:

Chavez Ortiz was charged with aircraft piracy for hijacking a passenger aircraft in violation of 49 U.S.C. § 1472(i). His only defense was insanity. After hearing the evidence, the jury returned a guilty verdict. Chavez appeals claiming various errors. We affirm the conviction; but because the trial judge believed he lacked the power to sentence Chavez under 18 U.S.C. § 4208(a), we remand with instructions to reconsider the sentence in light of this opinion.

I

Chavez asserts that his conviction should be reversed because the trial judge violated 18 U.S.C. § 4244 which provides:

A finding by the judge that the accused is mentally competent to stand trial shall in no way prejudice the accused in a plea of insanity as a defense to the crime charged; such finding shall not be introduced in evidence on that issue nor otherwise be brought to the notice of the jury.

At a hearing held prior to trial, the trial judge, after considering the reports of three psychiatrists and observing Chavez testify, found Chavez competent to stand trial. Subsequently during the trial, and out of the jury’s presence, Chavez’ counsel informed the judge that the local newspaper had reported that the court had found Chavez competent. He requested the judge to inquire of the jurors as to whether they were aware of the newspaper account and to admonish them that this finding by the court was not relevant to their determination and should be disregarded. When the jury-returned, the judge cautioned them to avoid any coverage of the ease by the media and warned them that they should only pass on the evidence presented in court. The judge stated that a newspaper suggestion that he had found Chavez sane at the time of trial was incorrect. He instructed them that he had only found Chavez sufficiently intelligent at the time of trial to assist counsel and be tried. The judge further admonished the jury that his finding was in no way to influence them in any determination of whether Chavez was insane at the time of the offense and that they were not to conclude anything from the court’s earlier finding. .

We need not reach the question of whether this was error because Chavez is not in a position to object. The court’s admonition to the jury was, at least in part, invited by the comments of his attorney and after it was given, no objection was made and there was no motion for a mistrial. See United States v. Julian, 450 F.2d 575, 578 (10th Cir. 1971). There was no plain error under Fed.R.Crim.P. 52(b).

Chavez further contends that section 4244 was violated when a defense psychiatrist, in response to a question by the judge, testified that he believed Chavez sufficiently understood the proceedings in order to cooperate with his counsel. The court’s impropriety in asking this one question on the subject in the course of a trial which lasted for several days is not sufficient error for reversal. See United States v. Harper, 450 F.2d 1032, 1035-1036 (5th Cir. 1971). It did not constitute plain error.

II

We find no merit in Chavez’ claim that he was denied a fair trial because he did not receive effective aid of counsel. The decisions of his trial counsel were a matter of trial strategy and Chavez has not shown, as he must, that the services of his counsel were “of such a caliber • as to amount to a farce or mockery of justice.” Leano v. United States, 457 F.2d 1208, 1209 (9th Cir.), cert. denied, 409 U.S. 889, 93 S.Ct. 162, 34 L.Ed.2d 146 (1972).

Ill

Chavez further contends that the evidence was insufficient to' support a finding of guilt beyond a reasonable doubt primarily because of alleged weaknesses and inconsistencies in the testimony of the psychiatrist called by the prosecution. An analysis of this contention demonstrates that it must fail.

Chavez does not assert that the instructions to the jury on the sanity issue were not in conformance with the standards we set in Wade v. United States, 426 F.2d 64, 71 (9th Cir. 1970). The psychiatrist stated his conclusion in harmony with that standard. Thus, Chavez’ attack can only be aimed at the reasons given by the doctor from which he formed his conclusion. The court instructed on the weight to be given to the expert’s testimony as follows:

You should consider each expert opinion received in evidence in this case, and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or that the opinion is outweighed by other evidence, you may disregard the opinion entirely.

If the jury chose to accept the doctor’s opinion in spite of the alleged weaknesses in his reasons, we cannot say, as a matter of law, they could not do so.

Chavez argues that under United States v. White, 447 F.2d 796 (9th Cir. 1971), there was insufficient evidence of sanity before the jury because the psychiatrist who testified for the prosecution “reasoned to his conclusion” upon some standard other than the,Wade test. Chavez’ reliance on White, however, is misplaced since in that case “[t]he medical evidence of mental disease was overwhelming, and the evidence of legal insanity under Wade standards was virtually uncontroverted.” 447 F.2d at 797. In White, there was virtually no evidence of legal sanity and that which was presented, was predicated on the incorrect rule of M’Naghten. In this case there was a real factual conflict based upon the Wade standard presented to the jury.

As the testimony of the psychiatrist called by the government was properly before the jury, we pass directly to the sufficiency of the evidence question. The psychiatric testimony, presented by both sides, was in conflict. The jury could properly weigh the opinions of both psychiatrists and resolve that conflict. In reviewing their determination, we must view the evidence and all reasonable inferences in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This standard of review extends to the issue of sanity and the credibility of the experts. United States v. Handy, 454 F.2d 885, 888 (9th Cir.), cert. denied, 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed.2d 86 (1972). In addition to the experts, the jury also heard lay witnesses who, because they had observed Chavez during the execution of the crime, provided meaningful testimony that the jury could consider. The jury also heard the testimony of Chavez. We hold that this evidence was sufficient to sustain the verdict.

IV

The trial judge rejected sentencing Chavez pursuant to the special parole provisions of 18 U.S.C. § 4208(a), stating he did not believe it applied to the air piracy statute. • We disagree. Since the parole provisions of section 4208 are not applicable to any offense for which there is provided a mandatory penalty, 18 U.S.C.A. § 4208 Note (originally appears as Act of Aug. 25, 1958, Pub.L. No. 85-752, § 3, 72 Stat. 845), the determinative question is whether 49 U.S.C. § 1472 requires a mandatory penalty. We have found no case so holding.

In Jones v. United States, 419 F.2d 593, 594 (8th Cir. 1969), Judge (now Mr. Justice) Blackmun articulated the same issue which now confronts us:

We are concerned here with the meaning of the words “mandatory penalty” as employed in a federal criminal statute. Do these words relate to a prison term of fixed or minimum length, as contrasted with the common “not more than * * * years”, or, on the other hand, do they relate to a prison term which must he served and as to which postconviction benefits of suspension of sentence, probation, and parole are specifically denied ?

He concluded that a “mandatory penalty [is] a sentence which must be served devoid of the benefits of suspension, probation, and parole. Illustrative of this are the sentences for the narcotic offenses . . . .” 419 F.2d at 599.

The government argues that Chavez is not entitled to section 4208 benefits, citing our decisions in which we have held that section 4208 was inapplicable to the mandatory narcotics penalties of 26 U. S.C. § 7237(d). See, e. g., O’Neal v. United States, 332 F.2d 152 (9th Cir. 1964). However, the O’Neal line of cases are inapplicable to the skyjacking statute. O’Neal involved 26 U.S.C. § 7237(d) which was replaced by the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. §§ 801, 841 et seq. (criminal offenses); 1970 U.S.Code Cong, and Admin.News 4566, 4567. A careful analysis of the difference between the laws involved demonstrates that the narcotics statute involved in O’Neal provided for a mandatory penalty while the skyjacking statute does not. Title 26 U.S.C. § 7237(d) provided that upon the conviction for a narcotic offense “the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, section 4202 of title 18 [parole provisions] . . . shall not apply.” The section 7237(d) penalty was clearly mandatory and had to be served. The offender was foreclosed from all relief by way of suspension of sentence, probation, or parole.

On the other hand, the skyjacking penalty contains no such prohibitions upon probation or parole. Moreover, we believe the legislative history shows that Congress intended section 4208 to be applicable to a sentence imposed for skyjacking.

We conclude that 49 U.S.C. § 1472(i) (specifying the punishment for aircraft piracy) does not provide for a mandatory penalty and, therefore, the trial judge has the discretion to sentence pursuant to section 4208. As the sentencing judge did not believe he had such discretion, we remand the case for further consideration of the sentence consistent with this opinion.

Affirmed in part; reversed and remanded in part with instructions.

      . If the death penalty is not imposed, the punishment imposed by the court shall be imprisonment for not less than 20 years. [Referring to 49 U.S.C. § 1472(i).]
      Under other provisions of law contained in chapter 311 of title 18 of the United States Code, [18 U.S.C. §§ 4201-210] relating to parole of Federal prisoners, an individual sentenced to imprisonment for life or for any term of years in excess of 45 becomes eligible for parole after serving 15 years of the sentence imposed. An individual sentenced to a lesser term of years becomes eligible for parole after serving one-third of the sentence imposed. The Federal courts are also given discretion, in the case of sentences to imprisonment for more than 1 year, to specify a minimum term of imprisonment after which a Federal prisoner may be eligible for parole. This minimum term may be less than one-tliird of the sentence imposed, but may not exceed one-tliird of such sentence. [18 U.S.C. § 4208.]
      In view of the discretion vested in the Federal courts in connection with the sentencing of individuals convicted of Federal crimes, under the various provisions of law relating to parole, probation, and young adult offenders, the committee is of the opinion that there is ample discretion vested in the courts to make the punishment fit the seriousness of the crime.
      1961 U.S.Code Cong, and Admin.News p. 2568.


author: PER CURIAM.

text:
    ATKINSON-DAUKSCH AGENCIES, INC., Plaintiff-Appellant, v. JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 73-1247.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 4, 1973.
    Decided Dec. 13, 1973.

      Jack R. Alton, Columbus, Ohio, for plaintiff-appellant; Lane, Alton & Horst by Collis Gundy Lane, Columbus, Ohio, on brief.
    Michael G. Long, Columbus, Ohio, for defendant-appellee; James O. Seymour, Yorys, Sater, Seymour & Pease, Columbus, Ohio, on brief.
    Before EDWARDS and CELE-BREZZE, Circuit Judges, and KRUPANSKY , District Judge.

       The Honorable Robert B. Krupansky, United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

This is an action wherein plaintiff insurance agency as beneficiary seeks recovery of $200,000.00, the face value of a life insurance policy purportedly issued by the defendant on the life of its president, Robert O. Miller.

Finding no disputed issues of material fact the district court granted defendant’s motion for summary judgment from which plaintiff appealed.

In substance the record reflects that on September 24, 1968, plaintiff’s president, Robert O. Miller, delivered a duly executed application for a $200,000.00 life insurance policy on his life payable upon his demise to the Atkinson-Dauksch Agencies, Inc., the plaintiff herein.

Conspicuous immediately above the signatures of Miller and plaintiff’s agent was the following language:

A. The foregoing statements and answers are complete, true and correctly recorded, and with all Parts B of this application shall form the basis for and be a part of any contract of insurance.
B. If an advance payment is made with this Part A, and if the total amount of all insurance now in force plus the amount applied for in this and all- other applications now pending on the life of the proposed Insured in this Company, does not exceed either $250,000 life insurance or $100,000 accidental death benefit, the contract of insurance shall take effect as provided in and subject to the terms and conditions of Conditional Receipt Form 156-CR-67 bearing the same date and number of this Part A. If the contract of insurance does not take effect as provided in such Conditional Receipt it shall take effect as of the Date of Issue of the policy but only upon delivery to and receipt by the Applicant of the policy and payment of the premium thereon, and only if at the time of such delivery and payment each person proposed for insurance in Parts A and B of this application, including the proposed Insured, is living and has not consulted, been examined, or been treated by a physician or practitioner since the latest Part B pertaining to such person was completed.
C. No agent or medical examiner is authorized to make or discharge contracts or waive or change any of the conditions or provisions of any application, policy or receipt, or to accept risks or pass upon insurability. Notice to or knowledge of any agent or medical examiner, whenever given, is not notice to or knowledge of the Company.

On October 5, 1968, while attending a convention of insurance agents at the Greenbrier Hotel, White Sulphur Springs in West Virginia, Miller experienced indigestion pains and consulted Dr. Brody for examination and treatment. Miller was admitted to the Chesapeake & Ohio Hospital in Clifton Forge, Virginia, on October 6, 1968, upon the request of Dr. Brody. He was examined and treated at the hospital by Dr. Charles Ballou who found no indication of myocardial infarction from a number of electrocardiograms performed under his supervision at the hospital. He was discharged on October 9, 1968, with a diagnosis of a small, sliding hiatus hernia and directed to immediately consult his own physician upon returning to his home in Columbus. It should be noted that Miller had a history of high blood pressure dating to at least 1964, which fact had been disclosed to defendant. Miller consulted his personal physician, Dr. George Clouse upon returning to Columbus who examined him on October 14, 1968. Dr. Clouse arrived at no negative findings. On October 15, 1968, Miller notified Dr. Clouse of recurring epigastric. pain. Tranquilizers were prescribed. On October 16, 1968, Miller again experienced epigastric discomfort and expired that evening. Cause of death was listed as myocardial infarction due to coronary artery and hypertensive heart disease.

The defendant had written the policy of insurance here in question on October 10, 1968. It was delivered to Miller personally on October 14, 1968, however, neither Miller nor any representative of plaintiff company notified defendant or its representative of Miller’s physical condition or continuous medical consultation and treatment which commenced on October 5, 1968.

Defendant refused payment on the policy and tendered the return of the first premium payment which had been deposited with plaintiff’s application. Disclaimer is predicated upon Part B of the application, that is, plaintiff’s failure to notify defendant of Miller’s medical consultation and treatment during the interim between the filing of the application for insurance and delivery of the policy.

The issue to be here decided is not one of fraud or misrepresentation, but one of contract law presented by an agreement between sophisticated parties.

It is conceded that Miller consulted and received medical treatment during the period defined by the policy, in fact, he was consulting with his physician at the period of time the policy was delivered. It is further conceded that defendant had not been made aware of the medical consultation and treatment.

The basic law to be applied in this case is Ohio law. It appears to be stated in Metropolitan Life Ins. Co. v. Howle, 62 Ohio St. 204, 56 N.E. 908 (1900); Metropolitan Life Ins. Co. v. Howle, 68 Ohio St. 614, 68 N.E. 4 (1903); and New York Life Ins. Co. v. Wertheimer, 272 F. 730 (N.D.Ohio 1920). While these eases arise out of somewhat different facts than our instant case, they seem to support the result reached by the District Judge.

Appellant urges the adoption of the pronouncements of the Tenth Circuit in Major Oil Corporation v. Equitable Life Assurance Soc. of U. S., 457 F.2d 596 (10th Cir. 1972), which exhibits a strong policy against forfeitures as opposed to this Court’s enforcement in Su-bar v. New York Life Ins. Co., 60 F.2d 239 (6th Cir. 1932), of a similar contract clause to the one in dispute in this case.

We declined to reconsider Silbar in the context of this case where the claimed insured was himself president of an insurance agency and familiar with insurance law and practice, and where the intervening health problem and medical treatment were neither insignificant nor totally unrelated to claimed insured’s heart problem.

Accordingly, the judgment of the district court granting defendant’s motion for summary judgment is affirmed.


author: BRIGHT, Circuit Judge.

text:
    John K. GLICK, Appellant, v. Don R. ERICKSON, as the Duly Appointed and Acting Warden of the South Dakota State Penitentiary, Appellee.
    No. 73-1413.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 18, 1973.
    Decided Dec. 11, 1973.
    Steve Jorgensen, Sioux Falls, S. D., for appellant.
    Walter W. Andre, Asst. Atty. Gen., Pierre, S. D., for appellee.
    Before LAY, BRIGHT, and WEBSTER, Circuit Judges.
   BRIGHT, Circuit Judge.

John K. Glick here seeks habeas corpus relief from a ten-year sentence for armed robbery imposed upon him by the State of South Dakota in 1971. He claims the police unlawfully searched him and seized a pistol and ammunition which were later introduced in evidence in the state trial. The State Supreme Court affirmed his conviction on direct appeal and denied him relief from the alleged unlawful search and seizure. State v. Glick, 201 N.W.2d 867 (S.D. 1972). The United States District Court quashed his petition for habeas corpus relief. Glick v. Erickson, 356 F.Supp. 535 (S.D.1973). On the record presented here, we find the contentions of Glick to be without merit and we affirm.

The controversy here centers on a “frisk” search of Glick’s person made by Detective Eugene Horst of the Sioux Falls, South Dakota, Police Department on November 7, 1970, less than two hours after the occurrence of an armed robbery at a Sioux Falls gasoline service station. The trial record does not disclose a complete explanation of how Detective Horst happened to find Glick at the particular house located at 724 North Mable, Sioux Falls, South Dakota, and thus, on this appeal, Glick contends, the record shows no reasonable basis for the officer’s intrusion into the private home nor for conducting the search of his person. Accordingly, Glick urges, the search should be held in violation of his fourth amendment rights and the trial held invalid because this questioned evidence was admitted at the trial in contravention of the exclusionary rule.

Glick’s arguments rest on the transcript of the trial which, as has been noted, does not disclose background circumstances to Detective Horst’s search and seizure of the revolver and ammunition. The argument as based on the trial transcript has some facial validity since an unexplained police search of a person occupying a private dwelling suggests an arbitrary invasion of personal rights. The trial record, however, discloses that Glick through his attorney never made a motion to suppress the questioned evidence on fourth amendment grounds. Instead he sought initially to exclude them on state statutory grounds, since the officer seizing these items failed to issue Glick a receipt for his property as required by S.D. Compiled Laws Ann. § 23-16-1 (1967). Later, defense counsel tangentially referred to the fourth amendment during the prosecution’s case-in-chief in objecting to testimony relating to items discovered and seized from Glick by Detective Horst, stating somewhat indefinitely:

MR. JORGENSEN: I would object to any testimony with regard to what this officer found in any pockets or upon the person of the defendant, him not having been under arrest so it couldn’t be incidental to the arrest. No search warrant, no arrest warrant.

The trial court briefly discussed the objection with the attorneys in a proceeding outside the presence of the jury. The prosecutor explained that the same evidence had been introduced at a preliminary hearing without objection, noted that no motion to suppress had been made prior to trial, and suggested that the Supreme Court’s approval of “frisk” searches controlled. The trial court overruled the objection to the evidence and proceeded with the trial.

Appellant’s counsel in his reply brief explains that his strategy in this post-trial proceeding is geared to take advantage of the prosecution’s neglect in' failing to develop testimony at the trial which justified the search. With candor counsel states:

Counsel prior to trial examined the preliminary hearing transcript and interviewed witnesses for the prosecution. Counsel for the Appellant upon his investigation determined that a motion to suppress would not be granted because it was felt that at that time the State could show that probable cause existed for the search * * *
* * * * * *
* * * Counsel’s investigation of the facts of the case led him to the conclusion that the State would have no problem establishing probable cause.

This strategem misconceives our function in a habeas proceeding. We do not here act as a court of review for the state trial judge. The jurisdiction of federal courts may be invoked by a state prisoner who is in custody “in violation of the Constitution * * * of the United States * * 28 U.S.C. § 2241(c)(3). The record presented to the federal courts on this petition for habeas corpus relief consists of the entire state court file and transcript of the trial. This file includes the proceedings at Glick’s state court preliminary hearing.

The full record clearly shows that Detective Horst received a description of the robber which included a description of his clothing and physical features and the fact that he wore a mustache. Shortly after the robbery, a taxicab driver picked up a passenger at a bar located within two blocks of the locus of the crime. The cab driver delivered this fare to the address on Mable Avenue. From the record, one might infer that this information was relayed by the taxi driver or the taxi dispatcher to Sioux Falls police. In any event, based on information he received at the police station, Detective Horst went to 724 Mable Avenue. He knocked at the door of that residence, identified himself, and entered the house with permission. He observed three persons in the kitchen, and again identified himself. The officer testified at the preliminary hearing:

At this time I looked over at the defendant and at this time I asked him to stand up. He stood up at this time. I noticed he was wearing a mustache and also clothing which matched the description as in the armed robbery which had occurred earlier.

The officer patted Glick’s clothing and felt a hard object in the right coat pocket. He reached in the pocket and removed an ammunition clip for a .32 automatic pistol. He patted further and felt another hard object, and, upon pulling Glick’s coat back, removed a .32 automatic from his waistband.

The essential fact is that this weapons “frisk” was completely proper .and justified for Detective Horst’s own protection. Horst knew of the commission of an armed robbery. He was engaged in an investigation of the crime, and encountered a person matching the robber’s description at a place to which he had been directed. His conduct was eminently reasonable. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

In Terry, the Supreme Court articulated the “stop and frisk” doctrine which warrants a police intrusion of an individual’s privacy under circumstances where probable cause for an arrest does not exist. Chief Justice Warren wrote of an officer’s “pat down” search during the investigation of suspicious behavior:

* * * We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. [392 U.S. at 23-24, 88 S.Ct. at 1881.]

Upon examination of the whole record in this case, we find that Glick's petition for relief is utterly without merit. The trial court properly quashed the writ.

Affirmed.

      . In this case, however, it was the objections of defense counsel, which the state trial judge sustained, that restricted the efforts of the prosecution to explain any basis for the search. The trial record discloses the following proceedings during Detective Horst’s testimony:
      Q Going to the particular house, had you received some report of the robbery that had taken place at the station?
      A Yes, I had received a call at my home from Lieutenant Renli first advising me.
      MR. JORGENSEN: I object to any conversation this defendant might have had or this witness might have had with Lieutenant Renli as being hearsay.
      THE COURT: Sustained.
      * * * * *
      Q All right, and then what else did you do?
      A I also received some other information through the radio room at the Police Department that a subject matching the description ....
      MR. JORGENSEN: I object to any information he received from the radio room as being hearsay testimony.
      THE COURT: Sustained.

      . We note that appellant’s counsel, perhaps inadvertently, misled this court in his brief by citing only the evidence in the trial transcript and claiming that it “constituted all of the material evidentiary facts” on this appeal. This was not true. Important facts were contained in both the transcript of the trial and the transcript of the preliminary hearing. We recognize that appointed counsel may not have realized that federal courts are entitled to examine the entire record in cases of this kind to determine whether a constitutional violation exists and are not limited solely to a review of the record on trial, as was the South Dakota Supreme Court.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Curtis B. DANNING, Trustee in Bankruptcy, Plaintiff-Appellant, v. DAYLIN, INC., Defendant-Appellee.
    No. 71-2782.
    United States Court of Appeals, Ninth Circuit.
    Nov. 1, 1973.
    Rehearing Denied Dec. 7, 1973.

      Stephen P. Feldman (argued), Jeffrey Chanin of Quittner, Stutman, Treiste & Glatt, Los Angeles, Cal., for plaintiff-appellant.
    Leon Savitch (argued), of Buchalter, Nemer, Fields & Savitch, Los Angeles, Cal., for defendant-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and RENFREW, District Judge.

       Of the Northern District of California.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiff Danning, trustee in bankruptcy of First Gibson Stores, appeals from a judgment of the district court which denied the trustee’s attempt to set aside as “fraudulent and void” under California law [Cal.Commercial Code § 6101, et seq. (West 1964)] an alleged bulk transfer of the bankrupt’s inventory to Daylin. The court had jurisdiction under Section 70(e)(3) of the Bankruptcy Act [11 U.S.C. § 110(e) (3)]. We reverse and remand.

The bankrupt, First Gibson Stores of California, was incorporated in July 1966 for the purpose of establishing and operating department stores. It opened two stores late in 1966. It sold “hard goods” (drugs, sundries, housewares, etc.) and leased a portion of each store to concessionaires of “soft goods” (clothing, etc.). The stores were opened with an inventory of some $300,000 in goods that First Gibson had ordered from 1,500 suppliers. The first store was closed for lack of business in January 1967, and all merchandise was moved to the second store at Rowland Heights. In February 1967, First Gibson decided to divest itself of its retail business and operate instead as the lessor of a chain of discount stores. It took over two new stores and began to liquidate its retail inventory.

As part of its change in business methods, First Gibson and Daylin agreed to exchange certain assets. First Gibson agreed to deliver all inventory and fixtures located at the sundry department of its Rowland Heights store in exchange for the housewares and hardware inventory and fixtures owned by Daylin at the concessions Daylin leased at the two new stores. Following an inventory by an independent firm, First Gibson and Daylin agreed that Daylin would pay approximately $15,000 in cash to cover the difference in value between the two inventories. This was about April 20 or 21, 1967. Daylin gave no notice of the transaction to the creditors of First Gibson, which was adjudicated a bankrupt on August 1,1967.

California’s law on bulk transfers is a codification, with modifications, of Article 6 of the Uniform Commercial Code, which is designed to protect a merchant’s unsecured creditors from his disposition of inventory outside the ordinary course of business. C. Williams, Introductory Comment, Division 6, 23B Cal.Commercial Code 734 (West 1964). While Article 6 is aimed primarily at preventing fraud on the part of the transferor and transferee (e. g., selling the inventory and absconding with the proceeds), it is also intended to protect against inadequacy of consideration, even where the transferor and transferee are innocent of any wrongdoing. J. White & R. Summers, Uniform Commercial Code 644 (1972).

Section 6102 of the California Commercial Code provides in pertinent part:

“§ 6102 (1) A “bulk transfer” is any transfer in bulk and not in the ordinary course of the transferor’s business of a substantial part of the materials, supplies, merchandise, or other inventory (Section 9109) of an enterprise subject to this division.
(3) The enterprises subject to this di-' vision are all those whose principal business is that of a baker, cafe or restaurant owner, garage owner, cleaner and dyer, or retail or wholesale merchant.” Cal.Commercial Code (West 1964). (Emphasis added.)

When a transaction falls within the scope of Section 6102, the transferee must give notice of the transaction to the transferor’s creditors, giving them time to investigate the proposed transfer and to protest if necessary. §§ 6105 and 6107. Failure to give notice renders the bulk transfer “fraudulent and void” against the transferor’s creditors. § 6105.

The issue that confronts us, therefore, is whether the court below was correct in finding that the transaction complained of did not fall within the purview of these provisions. We conclude that the district court was in error.

I.

THE “PRINCIPAL BUSINESS” OF FIRST GIBSON

The district court found’that the principal business of First Gibson was that of a retail merchant until February 1967, at which time it became a lessor and operator of discount stores. The transaction in question was on April 20, 1967. The court concluded that “at the times material to this action,” First Gibson was not principally a retail merchant.

We find this .conclusion to be incorrect as a matter of law. The district court’s conclusion emasculates the policies underlying the bulk transfer statute by allowing First Gibson to acquire inventory as a merchant, change its principal business to that of lessor, and then dispose of its “merchant’s inventory” in bulk without notice.

“While some bulk sales risk exists in [those businesses excluded from the scope of Article 6], they have in common the fact that unsecured credit is not commonly extended on the faith of a stock of merchandise.” Official Comment 2, § 6102, Uniform Commercial Code (1962). In the present case, credit was presumably extended on the faith of First Gibson’s stock. Since protection of creditors is the main concern of Article 6, First Gibson's subsequent change of business to that of a lessor should not affect its duty to notify creditors who extended credit while it was a retail merchant.

We have found only two cases that have considered situations analogous to this, and both support our analysis. They held that the mere fact that a merchant terminates his business or engages in other lines of employment does not free him from the requirements of a bulk sales statute as applied to the sale of stock of his former business. Davidson v. Heyman, 243 App.Div. 546, 275 N.Y.S. 870 (1934); Teich v. McAuley, 212 S.W. 979 (Tex.Civ.App.1919).

II.

WAS THERE A “TRANSFER” ?

Daylin contends that an exchange of assets, as occurred here, is not a “transfer” under Article 6. The purpose of a bulk transfer statute is to keep merchandise and inventory as a cushion available to satisfy the claims of creditors. Therefore, defendant argues, where there is merely a replacement of inventory and fixtures with another type of inventory and fixtures having equivalent value, there is no depletion of inventory, and existing creditors may not complain.

Article 6 requires, however, that creditors be allowed to police bulk sales, to make certain that the consideration paid in return is indeed equal in value to the inventory transferred. Daylin would have the transferor act as the “policeman” of his own sale.

The dangers of a bulk transfer — either fraud or mere inadequacy of consideration- — can as easily occur with an exchange of assets as with a cash sale. When creditors have advance notice of a bulk sale, either for cash or assets, they can investigate before it is completed and then determine whether they should intervene. That the trustee in bankruptcy subsequently receives the exchanged assets, as he did here, is of small consolation to creditors if the assets are of less value or salability than those looked to by the creditors when they extended credit.

Additionally, while the term “transfer” is not expressly defined in the California Commercial Code, it is defined elsewhere in California law and the Bankruptcy Act to include an exchange. Cal.Civil Code § 1039 (West 1954); Bankruptcy Act § 1(30), 11 U.S.C. § 1(30) (1970). See also 42 Words and Phrases, p. 408 (1952,-and 1973 Supp. at 68).

Defendant argues by analogy to a case excepting a purchase money mortgage from the scope of the bulk sales act. In re Mercury Engineering Co., 68 F.Supp. 376 (S.D.Cal.1946). The analogy is weak. A bulk sales act clearly should not apply to a purchase money mortgage, since in that situation the merchant is acquiring new assets that could not have been the basis for extending earlier credit. The California legislature recognized this by specifically excepting purchase money security interests from the scope of the act. Cal.Commercial Code § 6103(1) (a) (West 1964). In the present case, however, the assets exchanged by First Gibson were assets upon which creditors might have extended credit.

III.

WAS A ‘‘SUBSTANTIAL PART” TRANSFERRED ?

A very significant difference between California’s bulk transfers law and the official version of the Uniform Commercial Code is that California defines a bulk transfer as the transfer of a “substantial part” of the assets, as opposed to a “major part.” Compare Cal. Commercial Code § 6102(1) (West 1964) with Uniform Commercial Code § 6102(1) (1962 Official Text). The significance is that a “major part” has generally been interpreted to require a transfer of approximately one-half of the transferor’s inventory. See J. Bohn and C. Williams, California Code Comment, 23B Cal.Commercial Code 739-40 (West 1964). Courts have interpreted a “substantial part,” on the other hand to be as little as 5 percent of the value [Reed v. Anglo Scandinavian Corp., 298 F.Supp. 310 (E.D.Cal.1969)], 6.3 percent [Markwell & Co. v. Lynch, 114 F.2d 373 (9th Cir. 1940)], 15 percent [Jubas v. Sampsell, 185 F.2d 333 (9th Cir. 1950)], and 16 percent [Schainman v. Dean, 24 F.2d 475 (9th Cir. 1928)].

The merchandise inventory of First Gibson at the time of the transfer was approximately $500,000, of which $122,000 worth was transferred to Day-lin. This amount, roughly 25 percent, was clearly a “substantial part” of First Gibson’s inventory.

IV.

WAS THE TRANSFER “NOT IN THE ORDINARY COURSE OF THE TRANSFEROR'S BUSINESS"?

Having produced evidence that “swapping inventories” is a common practice in the retail business, Daylin contends that the transfer was in the “ordinary course of business,” and beyond the purview of the bulk transfer law.

This contention has been soundly rejected. In Jubas v. Sampsell, 185 F.2d 333 (9th Cir. 1950), a shoe store sold a quantity of shoes at one dollar per pair to another dealer, then declared bankruptcy. The trustee successfully moved to set aside the transfer as fraudulent under California’s bulk sales act, despite the transferee’s claim that “unloading” unmarketable shoes in that manner was a normal business practice. We held that “the ordinary course of business” contemplated only the day to day operation of a store, and not transfers of a significant portion of the inventory, no matter how usual a practice the transfer may have been.

“The plain meaning of the statute is that when a storekeeper disposes of a substantial part of his stock in trade in bulk, and selling in bulk sales is not the usual and ordinary way in which he conducts his business from day to day, the sale falls within the statute.” Id. at 334; Reed v. Anglo Scandinavian Corp., 298 F.Supp. 310 (E.D.Cal. 1969).

V.

In summary, we find that the principal business of First Gibson was that of a retail merchant at times relevant to the transaction, that there was a transfer within the meaning of Section 6102, that First Gibson transferred a substantial part of its merchandise or inventory, and that this transfer was not in the ordinary course of the transferor’s business.

The transaction therefore came within the statutory notice requirements of Section 6107 of the California Commercial Code. Daylin’s failure to adhere to these requirements renders the transaction “fraudulent and void” against any creditor of First Gibson. § 6105.

Daylin now offers a subrogation defense. Since the district court neither reached nor decided this question, we remand on this issue alone. We refer the district court to § 70(e) of the Bankruptcy Act [11 U.S.C. § 110(e)] and to Moore v. Bay, 284 U.S. 4, 52 S.Ct. 3, 76 L.Ed. 133 (1931).

Reversed and remanded.

Appellee’s petition for rehearing is denied. Appellee contends that evidence of good faith and the absence of fraudulent intent should be a defense in an action to set aside a bulk transfer for lack of notice in violation of § 6101-6111 of the California Commercial Code.

We disagree. Extending appellee’s argument to its logical conclusion, the only ones who are bound to give statutory notice of a bulk transfer are those who are engaging in fraud. Others need not because they are acting in good faith and therefore have nothing to lose by failing to give notice. Such a result hardly promotes the policy underlying a bulk sales law that seeks to protect creditors by requiring that they be allowed to police bulk sales.. Appellee would have us establish the transferor and transferee as the “policemen” of their own transaction. This would emasculate the very purpose of a bulk sales law.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Paul NEWCOMB anod Wayne E. Lucas, Jr., Defendants-Appellants.
    No. 73-1659.
    United States Court of Appeals, Fifth Circuit.
    Jan. 17, 1974.

      Murray M. Silver, Atlanta, Ga., for defendants-appellants.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   PER CURIAM:

Appellants Newcomb and Lucas were tried before a jury in the United States District Court for the Southern District of Florida and found guilty of conspiracy to possess with intent to distribute some 80 pounds of marijuana, in violation of 21 U.S.C. § 846. We have considered each of the seven points raised on appeal and conclude that, while two merit discussion herein, none requires reversal of their convictions.

Although each appellant took the stand and vigorously denied his participation in the conspiracy charged, both complain that the trial judge erred in refusing to give an entrapment instruction to the jury. Undiscouraged by the general rule in this circuit as stated in Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972), and United States v. Groessel, 440 F.2d 602 (5th Cir. 1971), that the defense of entrapment is unavailable to one who denies commission of the acts constituting the offense charged, they argue that they fall within the qualification to it expressed in Henderson v. United States, 237 F.2d 169 (5th Cir. 1956), and Sears v. United States, 343 F.2d 139 (5th Cir. 1965). The rationale of these latter two cases was explained in McCarty v. United States, 379 F.2d 285, 286-287 (5th Cir. 1967), as follows:

In both Sears and Henderson the defendant was indicted for conspiracy and raised the issue of entrapment with regard to a particular overt act. The court held in both cases that the defendant could deny being a party to a conspiracy and yet raise the issue that any overt acts done by him were done because of entrapment. The rationale of these cases was that inconsistencies in defenses in criminal cases are allowable so long as the proof of one does not necessarily disprove the other. Henderson, supra, 237 F. 2d at 173, Sears, supra, 343 F.2d at 143. In both cases proof that the defendant was not a member of a conspiracy would not have necessarily disproved that he was entrapped into committing a particular overt act. In the instant case, however, proof that McCarty did not commit the acts constituting the sole offense charged necessarily disproves that he was entrapped into doing the offense. We hold this to be too great a degree of inconsistency in defenses to be permitted.

To this construction of the Henderson doctrine we add that the court in Sears emphasized that there the government’s own ease in chief injected substantial evidence of entrapment into the case and that, therefore, the defendant was entitled to have the charge adjusted to the evidence. See Sears, supra, 343 F.2d, at 143.

Here the government’s ease gave little or no cause for inference that either of these two defendants had been entrapped. Neither defendant’s testimony-accused the government agents of successfully inducing him to do anything. To the contrary, Newcomb emphatically testified that he consistently refused to secure any marijuana for the undercover agents and was “busted” 'while totally ignorant that any marijuana transaction was being conducted. Lucas’ characterization of his own actions was, if possible, even more exculpatory: he denied that he was even aware that anyone was trying to purchase drugs. His story was that, after renting one car for himself and another for Mr. Newcomb and a friend, he met a girl in whose apartment on the same street as the “stash pad” he stayed for several days, thereby explaining the presence of his car in the vicinity of the crime. He denied that he was the person seen by agents coming and going from the house to which the marijuana was being brought.

The rule expressed in Henderson and Sears requires at the least that a defendant admit to some culpable act which he claims he was entrapped into committing. Here the only acts admitted by appellants were the purely innocuous ones of renting cars, being innocent bystanders in the vicinity of the crime, and (in the case of Newcomb) associating with undercover agents who were interested in purchasing marijuana. A collision of vacuums was thus presented; there was, and could be, no rational claim the government induced, and thereby entrapped, Newcomb or Lucas into performing such unincriminat-ing acts. Appellants’ real problem was that the jury chose to believe the government’s evidence that they directly participated in the conspiracy.

The only other point on appeal that merits any discussion is defense counsel’s contention that his motion to inspect the grand jury minutes should have been granted to enable him to determine whether the indictment was founded upon hearsay or other “incompetent” evidence. In the first place, the Supreme Court has decided, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment based exclusively on hearsay evidence is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of the evidence presented to the grand jury. See United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Gower, 447 F. 2d 187 (5th Cir. 1971). Secondly, as we stated in United States v. Cruz, 478 F.2d 408 (5th Cir. 1973), the “best evidence” rule advanced by some Second Circuit judges serves simply as a supervisory guideline to be employed by courts in determining whether or not the independence and integrity of the grand jury have been impaired. Here there is no indication that the court below abused its discretion in not ordering the grand jury minutes produced for defendants. The trial judge, like this court, was given no reason to suspect that the indictment was ill-founded. Quite to the contrary, it was not even necessary for the grand jurors to rely on hearsay. The government agent in charge of the case testified before the grand jury. There, as at trial, presumably he was able to testify from first-hand information.

Were we to hold that grand jury minutes must be turned over so that defense counsel could satisfy his mere suspicion that the indictment was based on insufficient evidence, grand jury proceedings would effectively be open at the whim of the defense. This we are not disposed to do.

Affirmed.

      . This rule would discredit an indictment based on hearsay where (1) nonhearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather than hearsay; and (3) there is a high probability that had the grand jury heard the eyewitnesses it would not have indicted. See United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969); United States v. Malofsky, 388 F.2d 288 (2d Cir. 1968) (dicta); United States v. Umans, 368 F.2d 725 (2d Cir. 1966) (dicta). See also dissenting opinions in United States v. Beltram, 388 F.2d 449, 451 (2d Cir. 1968); United States v. Payton, 363 F.2d 996, 999 (2d Cir. 1966).