author: RONEY, Circuit Judge:

text:
    FLORIDA PEACH GROWERS ASSOCIATION, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Peter J. Brennan, Secretary of Labor, and John H. Stender, Assistant Secretary of Labor for Occupational Safety and Health, Respondents.

    No. 73-1934.
    United States Court of Appeals, Fifth Circuit.
    Jan. 9, 1974.

      John D. Conner, Sellers, Conner & Cuneo, Washington, D. C., R. Emmett Kerrigan, New Orleans, La., Lawrence B. Lindemer, Lansing, Mich., Douglas C. Nohlgren, Chicago, 111., Allen A. Lauter-bach, Park Ridge, 111., John A. Pater-racki, Jr., New York City, Joseph C. Russell, Richmond, Va., Winston S. Howard, Denver, Colo., for petitioner.
    Peter J. Brennan, Sec. of Labor, John H. Stender, Asst. Sec. of Labor, William J. Kilberg, Sol. of Labor, U. S. Dept, of Labor, Walter H. Fleischer, Eloise E. Davies, Dept, of Justice, Washington, D. C., for respondents.
    Miriam Guido, Migrant Legal Action Program, Inc., Washington, D. C., Joanne B. Stern, Patricia Butler, National Health Law Program, Los Ange-les, Cal., David Lillesand, Camden Regional Legal Services, Bridgeton, N. J., Joseph C. Segor, Migrant Services Foundation, Homestead, Fla., Burton D. Fretz, Santa Maria, Cal., for interve-nors.
    Before BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.

       Consolidated with:
      Florida Citrus Production Managers Association v. U. S. Department of Labor, 73-2279; Washington State Horticultural Association v. Brennan, 73-2283; Idaho Horticultural Society v. Brennan, 73-2327; American Farm Bureau Federation v. Brennan, 73-2493; Massachusetts Fruit Growers Association v. Brennan, 73-2513; Michigan State Horticultural Society v. Brennan, 73-2518; North Carolina Apple Grower’s Association v. Brennan, 73-2622; National Peach Council v. Brennan, 73-2623; Raza Association of Spanish Surnamed Americans v. U. S. Department of Labor, 73-2690; New York State Wine Grape Growers Association v. Brennan, 73-2734; Virginia Farm Bureau v. Brennan, 73-2795; Pennsylvania State Horticultural Society v. Brennan, 73-2871; Colorado Apple Administrative Committee v. Brennan, 73-2948.

   RONEY, Circuit Judge:

This case comes to the Court of Appeals on petitions to set aside an emergency temporary standard issued pursuant to the Occupational Safety and Health Act of 1970 (OSHA) by the Assistant Secretary of Labor for Occupational Safety and Health affecting the cultivation of seven crops: apples, peaches, grapes, oranges, grapefruit, lemons, and tobacco. The standard, designed to protect farmworkers from exposure to residues on foliage of named organophosphorous pesticides, does not prohibit the use of such chemicals, but fixes the period during which an employee may not enter a sprayed area and requires other employee oriented controls.

In No. 73-2690, certain organizations representing farmworkers (hereinafter the Farmworkers) petition us to set aside only amendments to an original standard first adopted and then changed by the Secretary, on the ground that statutory procedures for amendment were not followed. The remaining petitions, all filed by representatives of food growers (hereinafter the Growers) seek to set aside the standard, both in its original form and as amended, on the ground that there is no substantial evidence to support the promulgation of an emergency standard.

OSHA is a new act and the Occupational Safety and Health Administration in the Department is a new agency. The consequent dearth of definitive decisions which might guide the Act’s application, requires us to do more than merely review the challenged standard. We must determine first, the procedures by which an emergency temporary standard may be amended; second, the standard by which the action of the Secretary will be reviewed; and third, the merits of the argument that the order should be set aside. This third facet of our task turns on whether there is a “grave danger” to the workers upon which to posit emergency remedial standards.

The Emergency Temporary Standard

The Secretary first published the “Emergency Temporary Standard for Exposure to Organophosphorous Pesticides” on May 1, 1973. An amended version was published on June 29. As amended, the standard

(1) defines the seven crops and twelve pesticides covered;

(2) precludes employers from allowing application of a controlled pesticide to any land on which one or more of the covered crops are grown unless all employees, other than applicators, have been removed from the area;

(3) establishes for each crop and pesticide combination a “field reentry safety interval” during which employees who might have substantial contact with foliage may not be permitted to enter treated areas without protective clothing and equipment;

(4) requires employers to warn, bilingually if necessary, employees expected to work in a treated area prior to the expiration of the reentry interval, either orally or by posting signs around the area or notices where the employees usually assemble for instructions, and that records of all warnings be kept;

(5) requires employers to provide protective clothing and equipment which meet designated specifications;

(6) sets standards for cleaning and care of the protective gear;

(7) prescribes sanitation measures, including employer furnished changing facilities (separate from those used for other purposes) with individual clothing storage for each employee and separate storage for pesticide contaminated clothing and equipment, an adequate supply of potable water for emergency washing purposes, and a requirement that employers not permit employees to store or consume food or drink where the food or drink may be exposed to pesticides; and

(8) requires employers to make arrangements to provide necessary medical assistance to employees who may suffer injuries or illness as a result of occupational exposure to pesticides and to instruct crew leaders in recognition of early symptoms of organo-phosphate poisoning and appropriate countermeasures.

The Statutory Scheme

Standards promulgated under OSHA have the force of law because Section 5 of the Act, 29 U.S.C.A. § 654, imposes upon every employer a duty to “comply with occupational safety and health standards promulgated under this chapter” or face civil and criminal penalties set forth in section 17, 29 U.S.C.A. § 666.

The Secretary may promulgate standards in either of two ways as emergency temporary standards or as occupational safety and health standards, the so-called permanent standards.

An emergency temporary standard, such as that under review here, may be issued without regard to the notice, public comment and hearing provisions of the Administrative Procedure Act. Subsection 6(c) of OSHA provides that

[t]he Secretary shall provide, without regard to the requirements of chapter 5 of Title 5 [notice, public comment, and hearing provisions of the APA], for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.

29 U.S.C.A. § 655(c)(1). The key to the issuance of an emergency standard is the necessity to protect employees from a grave danger. After issuing an emergency temporary standard, the Secretary must set in motion the procedures for promulgation of a permanent standard, which must issue within six months of the emergency standard’s publication. 29 U.S.C.A. § 655(c)(3).

By contrast, a permanent standard may be issued in order to serve the objectives of OSHA and requires procedures similar to informal rulemaking under the Administrative Procedure Act, 5 U.S.C.A. § 553. Upon determination that a rule should be issued promulgating such a standard, the Secretary must proceed under subsection (b) of OSHA § 6, 29 U.S.C.A. § 655(b). A subsection (b) proceeding requires that a proposed standard be published in the Federal Register. Publication is followed by a 30-day period during which interested persons may submit written data or comments or file written objections and requests for a public hearing on the proposed standard. If a hearing is requested, the Secretary is to publish in the Federal Register a notice specifying the standard objected to and setting a time and place for the hearing. Within 60 days after the period for filing comments, or, if a hearing has been timely requested, within 60 days of the hearing, the Secretary may either issue a rule promulgating an occupational safety and health standard or determine that no such rule should be issued. 29 U.S. C.A. § 655(b). The same section and procedure also govern modification and revocation of occupational safety and health standards.

Whenever the Secretary promulgates a standard he must include “a statement of reasons for such action” in the Federal Register. 29 U.S.C.A. § 655(e). The requirement has been held to apply to emergency temporary standards. Dry Color Manufacturers’ Association v. Department of Labor, 486 F.2d 98 (3d Cir. 1973).

The difference between these two types of standards is of critical importance on this review. Growers stress that the record does not support the need for subsection (c) emergency standards, leaving open all questions which might relate to a review of permanent standards. Farmworkers contend that emergency temporary standards may be modified only through following the subsection (b) permanent standard procedures.

The Factual Background

The emergency temporary standard now under review enjoyed a troubled gestation period. In Fall 1971, the Task Group on Occupational Exposure to Pesticides (hereinafter the Task Group), an interagency task force, was established under the aegis of the Council on Environmental Quality and directed to evaluate the dangers of occupational exposure to pesticide residues. In June 1972, under authority of section 7(b) of OSHA, 29 U.S.C.A. § 656(b), the Secretary appointed the Standards Advisory Committee on Agriculture (hereinafter the Advisory Committee) to assist him in his standard-setting function. One specific responsibility of the Advisory Committee was to submit recommendations regarding a standard on pesticides. The Committee appointed in turn a Subcommittee on Pesticides (hereinafter the Pesticides Subcommittee) to study exclusively the occupational hazards of pesticides. Both the Subcommittee and its parent body held several meetings, open to the public, on the subject.

In September 1972, the Farmworkers filed a petition with the Secretary setting forth data and arguments in support of an emergency standard on pesticides. On October 10th of that year, the Secretary refused the Farmworkers’ request because the lack of reliable data on which to base reentry standards barred issuance of an emergency standard. He emphasized, however, that issuance of an emergency standard, when more definitive information became available, was not precluded. In the meantime, he advised, work would continue to establish a permanent standard under the more deliberate procedures of subsection (b).

In November, the Task Group submitted a preliminary special report to the Occupational Safety and Health Administration recommending strict control of organophosphates and establishment of reentry intervals. Early in December this report was withdrawn for amendment. In mid-December, both the Pesticides Subcommittee and its parent Advisory Committee unanimously concluded that neither an emergency nor justification for emergency standards existed. In late February 1973, the Task Group permanently withdrew its November preliminary report because of “inadequate data available to reach scientifically justifiable judgments on uniform national reentry standards.” The November report was cited as an example of the inability of expert committees to arrive at valid reentry intervals. Moreover, the Task Group saw “no evidence of a national emergency that would require uniform national reentry standards.”

On March 15, the Secretary requested the Advisory Committee to produce a recommended standard. Before doing so, the Committee sought specific assurances from the Director of the Occupational Safety and Health Administration’s Division of Standards that their recommendation would be only a proposed standard, subject to modification in light of feedback from interested parties, and would not be effective immediately as an emergency standard. After receiving such assurances, the Advisory Committee recommended a proposed standard.

On the same day, the Farmworkers brought an action for injunction and declaratory relief in the District Court for the District of Columbia, seeking judicial review of the Secretary’s failure to issue emergency temporary standards protecting agricultural workers from the occupational hazards of pesticides. Thomas v. Brennan, Civ.Act. No. 502-73, D.D.C. (filed March 15, 1973). One month later, the Assistant Secretary of Labor signed the original version of the rule entitled “Emergency Temporary Standard for Exposure to Organophos-phorous Pesticides.” Six days later the Farmworkers’ court action was voluntarily dismissed. The following week, on May 1, 1973, the rule was published in the Federal Register. The Chairman of the Pesticides Subcommittee, “shocked” that the standard had been promulgated on an emergency basis, resigned.

The Growers petitioned the Occupational Safety and Health Administration for reconsideration and repeal of the standard. Then Florida Peach Growers Association, Inc. and the Florida Citrus Production Managers Association filed petitions in this Court for review of the standard. Other growers’ organizations petitioned other circuits for review. The petitions in other circuits were subsequently transferred to and docketed in this Court. Motions addressed to this Court for a stay were denied when the effective date of the standard was postponed by the Secretary in response to the petitions for reconsideration. On June 29, the Secretary published the subject of our review, an amended emergency standard effective July 13.

The Growers immediately moved to stay that effective date. A panel of this Court issued a stay, pending further order of the Court. The Government’s motion to vacate the stay was denied. On July 6, the Farmworkers petitioned the District of Columbia Circuit for review of the Secretary’s dilution of the original standard. Their petition was transferred here on the Government’s motion. All petitions for review of the standard were consolidated on August 6 upon an unopposed Government motion.

The petitions for review and motions for stay are in accordance with OSHA’s judicial review section, which provides:

Any person who may be adversely affected by a standard issued under this section may at any time prior to the sixtieth day after such standard is promulgated file a petition challenging the validity of such standard with the United States court of appeals for the circuit wherein such person resides or has his principal place of business, for a judicial review of such standard. . . . The filing of such petition shall not, unless otherwise ordered by the court, operate as a stay of the standard. The determinations of the Secretary shall be conclusive if supported by substantial evidence in the record considered as a whole.

29 U.S.C.A. § 655(f).

The Farmworkers’ Petition Opposing Modification of Temporary Standards

The Farmworkers contend that the Secretary was without authority to issue an amended emergency standard without compliance with the procedures for promulgation of a permanent standard. They want the original May 1 standard reinstated.

Citing the Act’s provision for standard promulgation, section 6, 29 U.S.C.A. § 655, they first refer us to language in subsection (c) providing that an emergency temporary standard shall be effective until superseded by a permanent standard promulgated in accordance with the procedures specified in subsection (b). Clearly, the amended standard, specifically titled as an emergency temporary standard, does not qualify as a permanent standard. The Farmwork-ers suggest that, there having been no valid supersession by a permanent standard, the original promulgation remains in effect. The language they rely on, however, does no more than establish the general method and time frame for replacing an emergency temporary standard with an occupational safety and health standard, the so-called permanent standard. It does not prohibit amendment of an emergency temporary standard in the same manner in which a temporary standard may be issued in the first place.

The Farmworkers next argue that subsection (b) provides the exclusive procedure for modifying or revoking “any occupational safety and health standard,” which they contend includes an “emergency temporary standard.” The amendments were issued without provision for the statutory 30-day comment period or the public hearing required upon the demand of an interested party and clearly do not satisfy subsection (b) procedural requirements. We read subsection (b), however, as describing the procedure to be followed with regard to modification of standards intended by Congress to be more permanent than the emergency temporary standards which have a maximum duration of six months.

Farmworkers’ position is contrary to the concepts underlying the Secretary’s authority to issue emergency standards. It is inconceivable that Congress, having granted the Secretary the authority to react quickly in fast-breaking emergency situations, intended to limit his ability to react to developments subsequent to his initial response. Although the Secretary decided here that his initial standards were too broad, in other circumstances he might first issue standards too narrow to protect employees against the grave danger envisioned by the Act. In such a case, adherence to subsection (b) procedures would not be in the best interest of employees, whom the Act is designed to protect. Such lengthy procedures could all to easily consume all of the temporary standard’s six months life. We will not so read the Act “as to take from the [Secretary] the discretionary power to mould remedies suited to practical needs .” NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 351-352, 73 S.Ct. 287, 291, 97 L.Ed. 377 (1953). We hold that emergency temporary standards may be amended in the same manner and under the same criteria as govern their initial issuance.

Accordingly, the petition for review in No. 73-2690 is denied.

The Scope of Review

On the Growers’ petition we are faced with the threshold question of determining the standard by which we are to review emergency temporary standards. The words of section 6(f) clearly require that a review determine if the Secretary’s determinations are supported by substantia] evidence in the record taken as a whole. At oral argument, however, the Government suggested that the arbitrary and capricious standard, and not the substantial evidence test, is the appropriate standard of review for an exercise of quasi-legislative discretion in informal rulemaking, citing cases that refused to apply the substantial evidence test in review of informal decision making. To establish that Congress intended to adopt a standard less rigorous than the substantial evidence test, the Government quoted a passage from the Act’s legislative history:

Standards — Pre-enforcement Review. — The Senate bill permitted pre-enforcement judicial review by anyone adversely affected by any standard in his local circuit court of appeals provided he filed within 60 days after the promulgation. Pre-enforcement review was limited by the House amendment to the D.C. Court of Appeals and to within 30 days of issuance. The “substantial evidence” test was the basis of court review in the House amendment; in the Senate bill, the more vigorous standards generally applicable to review of rules would have been applicable. Review in the local Circuit Court of Appeals, the use of the “substantial evidence” test, and a 60-day limitation on the appeal time were accepted by the conferees. Subcomm. on Labor of the Senate Comm, on Labor and Public Welfare, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970, at 1189 (Comm. Print 1971), also reported at 1970 U.S.Code Cong. & Admin.News p. 5232. The Government suggests that the House and Senate conferees mistakenly assumed that “standards generally applicable to review of rules” (in practice the arbitrary and capricious standard) were “more vigorous” than the substantial evidence standard, and that they chose what they considered the relatively weaker standard for review.

The quotation, however, is nothing more than the House managers’ explanation of how differing House and Senate provisions were reconciled. The original House bill mandated formal rulemaking “on the record” for promulgation of standards, and provided for review under the substantial evidence test. The Senate version called for informal rule-making with no specific reference to the standard of review. The conferees accommodated the Senate’s desire for administrative convenience and flexibility by accepting informal rulemaking procedures, but placated House concern for protection of employers from arbitrary burdens imposed by a massive federal bureaucracy, but adopting the substantial evidence test for judicial review. Thus, although the substantial evidence test is anomalous in the context of informal rulemaking and would not apply were review governed solely by the APA, Congress applied that test as a result of a legislative tradeoff. See generally Associated Industries of New York State, Inc. v. United States Department of Labor, 487 F.2d 342 (2d Cir. 1973).

After Associated Industries decided this issue contrary to the Secretary’s contentions, the Government’s line of reasoning wa§. abandoned. The Government now argues that the substantial evidence test only applies to subsection (b) standards that have been promulgated after an informal public hearing. Subsection (f) refers, however, to “a standard issued under this section” which also includes emergency temporary standards.

Alternatively, the Government argues that, if the substantial evidence test is to be applied, its application should be less rigorous than would be the case were a fully developed adversary record before us. Force of circumstances supports this contention to a degree. The type of administrative proceeding and the form of record it produces will influence the method of review. As Judge Friendly noted in Associated Industries:

it may well be that the controversy is semantic in some degree, at least in the context of informal rulemaking . Commentators have suggested that in the “class of cases in which the ground for challenging the agency action is the inadequacy of its eviden-tiary basis, it is difficult to imagine a decision having no substantial evidence to support it which is not ‘arbitrary’, or a decision struck down as arbitrary which is in fact supported by ‘substantial evidence’-,” and that the true significance of the substantial evidence rule is in limiting the agency to the confines of the public record. . . . While there may be cases where an adjudicative determination not supported by substantial evidence . . . would not be regarded as arbitrary or capricious, ... in the review of rules of general applicability made after notice and-comment rulemaking, the two criteria do tend to converge.

487 F.2d 342 at 349-350 (citations and footnote omitted).

Thus it seems clear that even with the required substantial evidence test, our review basically must determine whether the Secretary carried out his essentially legislative task in a manner reasonable under the state of the record before him.

The state of the record in this case is one of the difficulties besetting our review function. The administrative record is comprised of some 238 documents occupying approximately two and one half feet of shelf space. It includes such items as letters between Government officials, volumes of transcribed Advisory Committee and Pesticide Subcommittee hearings, Senate hearings and committee reports, the Farmworkers’ petition in Thomas v. Brennan, supra, case reports of pesticide poisonings, full length texts on the pharmacology of the organophosphates, copies of other agencies’ regulations, an abstract of OSHA, studies by the staff of the Task Group on various aspects of the problem, state public health reports and other statistical sources. The most common items in the record are copies of articles published in scientific journals. These run the gamut from descriptions of the symptoms notice in outbreaks of pesticide poisoning among farmworkers, to investigations of the factors influencing the decay of the organophosphates after application, to case reports of children who swallowed pesticides, to studies of various clinical effects of the organophos-phates on mammalian species. A large group of articles is made up of contributions to the advancement of research methodology and measurement technology.

A record of this nature is not as easily reviewable as one in which the issues in dispute have been focused narrowly in an adjudicatory proceeding, or one in which precise findings of fact point us in the right direction. In this case judicial proceedings have taken the full six month period since publication of the amended standard. Since the standard has been stayed during our review, even an affirmance would be a hollow victory for the Secretary.

The Merits

We find no substantial evidence in the record considered as a whole to support the determination by the Secretary that emergency temporary standards were necessary within the demands of section 6(c). There is an abundance of evidence that emergency standards are not necessary. The investigative groups convened by the Government to study the problem of occupational exposure to pesticides — the Pesticides Subcommittee, the Advisory Committee, and the Task Group — all firmly concluded that no emergency existed and that there was no justification for use of an emergency temporary standard. Although these findings by his own investigators do not preclude the Secretary from issuing an emergency standard, they indicate the strength of the evidence contrary to his determination.

Extraordinary power is- delivered to the Secretary under the emergency provisions of the Occupational Safety and Health Act. That power should be delicately exercised, and only in those emergency situations which require it. The promulgation of any standard will depend upon a balance between the protection afforded by the requirement and the effect upon economic and market conditions in the industry. As articulated by the Chairman of the Subcommittee on Pesticides, who resigned in “shock” upon finding that the recommended standards were issued on an emergency basis: “It is essential that employees be protected against exposure to highly toxic materials, but this should be done without eliminating the agriculture enterprise and the associated jobs.”

The need for a serious emergency upon which to ground temporary standards is reflected in the words of the Act which require the Secretary to determine “(A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” The Act requires determination of danger from exposure to harmful substances, not just a danger of exposure; and, not exposure to just a danger, but to a grave danger; and, not the necessity of just a temporary standard, but that an emergency standard is necessary.

The reasons published by the Secretary with the standards do not themselves evidence a factual need for emergency standards. The record supports the need for some standards, but not emergency standards. The Secretary’s findings were that:

(1) The pesticides listed in the standard below are highly toxic; (2) that premature exposure to them would pose a grave danger; (3) that farm workers have in the past growing seasons, are now, and are expected to be in the near future exposed to these pesticides; and (4) that the standard set out below, based on the recommendations of the Standards Advisory Committee on Agriculture and suggested field reentry safety intervals from the Environmental Protection Agency, is necessary to regulate such exposure so as to protect the workers from the danger.

38 Fed.Reg. 10716 (1973).

The able Government brief indicates the existence of an emergency because of the ban on the use of DDT, which in turn increases the usage of the pesticides listed in the standard, and because of the approach of the 1973 growing season with seasonal peaks of exposure in the months of June, July, August, September, and October. The published reasons and the record give us no indication that the Secretary made a before-the-fact finding that an emergency situation existed on this basis. The Growers point out that the use of DDT on the crops covered by the standard ' was banned before the Secretary ever initiated this proceeding’ in 1971, and that ample time existed for promulgation of a standard under section 6(b) to become effective for the 1973 growing season. The listed pesticides have been in long time use.

The Secretary’s heavy reliance on the toxicity per se of the organophosphorous pesticides to support the allegedly grave danger to agricultural employees through residue exposure is unjustified. In the published standards the Secretary seems to rely on the Senate report “that an estimated 800 persons are killed each year as a result of improper use of pesticides, and another 80,000 injured.” This report refers to improper use, and encompasses all pesticides.

The Growers concede the high toxicity of these pesticides in the laboratory, but assert that it has little bearing on the hazard to which the emergency standard is addressed, the occupational exposure of agricultural workers to organophosphorous residues on foliage. The Secretary points to statistics on deaths and injuries caused by pesticides. The statistics cited include deaths of all kinds, accidental ingestion by children, industrial accidents, accidents involving spraymen and their helpers, and suicides. The Growers argue that there is a substantial and significant difference in the toxicity per se of an organophosphorous pesticide and that of any of its residues that may remain on sprayed foliage, because the organophosphates start to decompose rapidly immediately upon application. They, therefore, challenge the Secretary’s citation of sources cataloging the symptoms of severe organophosphate poisoning, because they describe the afflictions of persons having primary contact with pure or active organophosphates. They refer us instead to record documents detailing the generally mild nature of the relatively few cases of illness reported by crop workers exposed solely to residues. The studies of the occasional outbreaks of organophosphate poisoning among farm-workers exposed to residues indicate the nature and degree of the danger. From time to time a group of workers will experience nausea, excessive salivation and perspiration, blurred vision, abdominal cramps, vomiting, and diarrhea, in approximately that sequence. There is substantial evidence that farmworkers occupationally exposed to organophosphate residues on foliage may experience headache, fatigue, and vertigo. These are not grave illnesses, however, and do not support a determination of a grave danger. A relatively small number of workers experience these difficulties, and it has been going on during the last several years thus failing to qualify for emergency measures. No deaths have been conclusively attributed to exposure to residues. The Subcommittee on Pesticides reported it was unable to find a single authentic record of a fatality resulting from a person entering or working in a field treated with a pesticide. The Secretary has pointed to no evidence to the contrary.

Statistics of “acute poisonings” of agricultural workers fail to distinguish between farmworkers exposed only to residues and persons responsible for applying the pesticides. Further, the statistics do not meaningfully break down injuries by type of pesticides. Thus, the Secretary would support his finding of danger with statistics of deaths and injuries due to causes which the standard he promulgated will not correct. The ultimate picture in this record is one of only a few farmworkers made ill by or-ganophosphate residues relative to the mass of agricultural workers in contact with treated foliage.

The Secretary seeks to justify his reliance on these statistics with evidence that agricultural injury statistics seriously underreport the incidence. He argues that the statistics he used are the best available. Granting that it is so, little is proven. Some of the very reasons why the statistics understate the true extent of the problem reinforce the Growers’ reading of the evidence. That farmworkers do not report some illness because the symptoms are relatively minor merely supports the conclusion that the situation is not sufficiently grave to warrant use of subsection (c) procedure. Similarly, the suggestion that physicians may fail to diagnose pesticide poisoning as such because it mimics the flue is not persuasive of any grave danger.

We reject any suggestion that deaths must occur before health and safety standards may be adopted. Nevertheless, the danger of incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health, becomes important in the consideration of the necessity for emergency measures to meet a grave danger.

In sum, considering the record as a whole, the Secretary has not shown by substantial evidence that agricultural workers are exposed to a grave danger from exposure to organophosphorous pesticide residues on treated plants that must necessarily be protected by an emergency temporary standard. We, of course, do not intimate any opinion as to the feasibility of the published standard to furnish adequate protection, were an emergency shown, nor does our determination in any way reflect consideration of the propriety of a permanent standard promulgated under subsection (b) of the Act.

All petitions for review, except for that in No. 73-2690, are granted and the Emergency Temporary Standard is determined to be invalid and is vacated.

      . 29 U.S.C.A. § 651 et seq.

      . The Act places the responsibility for issuing standards on the Secretary of Labor. He, however, has delegated this authority to the Assistant Secretary. Secretary of Labor’s Order 12-71, 36 Fed.Reg. 8754 (1971). For convenience we will continue to refer to the Secretary as the responsible official, although the Assistant Secretary actually carried out most, if not all, of the actions in this case.

      . Although two other circuits have considered the standard of review under OSHA, neither case decided this point. The Court in Dry Color Mfrs.’ Ass’n v. Department of Labor, 486 F.2d 98 (3d Cir. 1973), discussed the emergency temporary standard there under review in the framework of the substantial evidence test but did not rule on the question, because it vacated the standard for lack of an adequate statement of reasons. Id. at 105. Associated Indus. of New York State, Inc. v. United States Dep’t of Labor, 487 F.2d 342 (2d Cir. 1973) contains a scholarly discussion of the substantial evidence test in the context of a “permanent” standard issued pursuant to 29 U.S.C.A. § 655(b). Emergency temporary standards are authorized by 29 U.S.C.A. § 655(c) and raise, by their very nature, rather different review considerations.

      . The major changes effected by the amendments, which the Farmworkers now attack on procedural grounds, were (1) the reduction in the number of covered pesticides from 21 to 12; (2) the limitation of protective measures required of employers to workers having substantial contract with treated foliage; (3) the authorization of oral warnings in lieu of signs and notices; (4) the definition of “wet areas” (for which reentry intervals are shorter) with more specificity; and (5) the reduction of the reentry intervals for most of the pesticides still covered.

      1 Average annual rainfall of 25 inches or less.
      2 Average rainfall above 25 inches or an area where moderate rainfall has occurred, or a moderate wash has been applied, after pesticide application.
      38 Fed.Reg. 17216 (1973).

      . Section 3 of the Act defines an employer as “a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State.” 29 U.S.C.A. § 652(5).

      . The two year authority under 29 U.S.C.A. § 655(a) to promulgate “national consensus standards” as occupational safety and health standards expired April 29, 1973.

      . 38 Fed.Reg. 10715 (1973).

      . 38 Fed.Reg. 15729 (1973).

      . 38 Fed.Reg. 17214 (1973).

      . Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); General Telephone Co. v. United States, 449 F.2d 846 (5th Cir. 1971); City of Chicago v. FPC, 147 U.S.App.D.C. 312, 458 F.2d 731 (1971); Boating Indus. Ass’n v. Boyd, 409 F.2d 408 (7th Cir. 1969); Automotive Parts & Accessories Ass’n v. Boyd, 132 U.S.App.D.C. 200, 407 F.2d 330 (1968). In none of these cases, however, was there a statutory provision mandating the substantial evidence test. Instead, these cases apply the general review provisions of the APA. 5 U.S.C.A. § 706.

      . See 5 U.S.C.A. § 706; United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 92 S.Ct. 1941, 32 L.Ed.2d 453 (1972); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).

      . Associated Industries, concerned with a standard promulgated pursuant to subsection (b), did not decide this issue. For support the Government quotes a Department of Labor regulation. Section 6(b)(3), providing a hearing on objections to a proposed standard, and section 6(f), assuring judicial review pursuant to the substantial evidence in the record as a whole test, when read together are said to suggest a Congressional expectation that the rule making would be on the basis of a record to which a substantial evidence test, where pertinent, may be applied in the event, an informal hearing is held.
      29 C.F.R. 1911.5(a)(2) (1973).
      Nothing in the statute itself, or in the legis-tive history, supports such a distinction.

      . See cases cited in n. 11, supra.

      . The decision in Dry Color Mfrs.’ Ass’n v. Department of Labor, 486 F.2d 98 (3d Cir. 1973), was handed down just over five months after publication of the emergency temporary standard there in question.

      . That Congress intended a carefully restricted use of the emergency temporary standard is reflected in the legislative history of both the Senate and the House. As pointed out by the Senate Labor and Public Welfare Committee:

        Emergency Standards. — Because of the obvious need for quick response to new health and safety findings, section 6(c) mandates the Secretary to promulgate temporary emergency standards if he finds that such a standard is needed to protect employees who are being exposed to grave dangers from potentially toxic materials or harmful physical agents, or from new hazards for which no applicable standard has been promulgated. Upon publication of such an emergency temporary standard, the Secretary must begin a regular standard-setting procedure for such hazard, which proceeding must be completed within six months.
      Legislative History, supra, at 147, 1970 U.S. Code Cong. & Admin.News at p. 5184.
      In recommending the Senate-House Conference Report for final adoption, Congressman Steiger of Wisconsin, a House member of the Conference Committee reported:
      TEMPORARY EMERGENCY STANDARDS
      Section 6(c) provides for the expedited procedure for promulgating emergency standards in accordance with the desires of this House. It is intended that this procedure not be utilized to circumvent the regular standard-setting procedures. It should be used only for those limited situations where such emergency standards are necessary because employees are exposed to grave danger from substances or agents determined to be toxic or physically harmful agents, or new hazards. Section 6(c) (1) (B) makes it clear that it is also necessary that the Secretary determine that such a standard is necessary to protect employees from such danger. Thus, where the state of the art is incomplete or in some way lacking so that a determination cannot be made as to whether such a standard will protect employees, in such instances the Secretary would utilize the regular standard-setting procedures as provided in subsection 6(b) and not the emergency standard-setting authority.
      Legislative History, supra, at 1218.

      . Toxicity is the inherent capacity of a substance to produce injury or death. Hazard is a function of toxicity and exposure and is the probability that injury will result from the use of a substance in a given formulation, quantity, or manner. If taken in sufficient quantities, even water will cause death.

      . The term “outbreak” is a flexible one. While one “outbreak” reported in the record affected 94 workers, a number of whom required hospitalization for a day or two, another consisted of 10 workers who consulted physicians complaining of nausea, vomiting, and diarrhea.

      . When toxicologists speak of poisoning they are not referring to the layman’s concept of the victim turning blue, twitching convulsively, etc. Rather a person is “poisoned” if any of his body functions has been impaired through introduction of a foreign substance into his system. This definition says nothing about the degree of impairment. Thus episodes of “acute organophosphate poisoning” cover a considerable gamut, from cases in which symptoms are no more distressing than those of a common cold to those in which a patient is veritably snatched from the jaws of death by heroic therapeutic measures and to death despite such measures. The symptoms of minor and intermediate severity poisoning have already been detailed.. A severe case of or-ganophosphate poisoning may result in tremors, paroxysmal tachycardia (abrupt attacks of excessively rapid heart action), respiratory difficulty, convulsions, pinpoint pupils, pulmonary edema (effusion of serous fluid into the lungs), collapse, and coma.
      The toxicity of the organophosphates results from inhibition of the enzyme cholinesterase, which plays an important role in the appropriate cessation of nerve impulse transmission. In this they are similar to agents of chemical warfare (“nerve gas”). Absorption can occur through the eyes, the unbroken skin, and the respiratory and intestinal tracts.

      . One cross-section interview study in the record suggests that California workmen’s compensation statistics on pesticide poisonings of .agricultural workers reflect only %0 to Yoo actual occurrences.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John KHANDJIAN, Defendant-Appellant.
    No. 73-1428.
    United States Court of Appeals, Fifth Circuit.
    Feb. 6, 1974.
    Theodore J. Sakowitz, Asst. Fed. Public Defender, J. V. Eskenazi, Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., J. Daniel Ennis, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appel-lee.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

This case arose from the discovery of a shortage of $320 in bank funds at the Pan American Bank of Miami Beach on August 28, 1972. The bank’s head teller, John Khandjian, was subsequently indicted for and convicted by a jury of embezzling the missing funds, in violation of 18 U.S.C. § 656. Finding that there was neither proof of the commission of a crime nor independent evidence of a crime to corroborate a purported confession made by Khandjian, we reverse.

Khandjian, who had 12 years’ banking experience, had been head teller of the Pan American Bank of Miami Beach for the four months it had been opened when one of the tellers, Mrs. Spungin, requested a supply of currency from him on August 28, 1972. She found one of the packets of twenty-dollar bills “short” by $320. According to her testimony at trial, this packet was one which she had made up on July 17, 1972. She stated that on that date she placed 50 twenty-dollar bills in the packet and marked it with her teller’s stamp and her initials. She did not explain how she could identify it as the July 17 packet when she received it on August 28. She advised Khandjian of the shortage, and he replied that he could not understand how it could have happened, and that he would have to report it to the bank’s chairman of the board, which he promptly did. The only discrepancy between Spungin’s and Khandjian’s recollection of this event developed at trial when Spungin testified that Khandjian brought her all of the currency she. requested in one trip. Khandjian testified that her request included 10 trays of coins, that the order was too heavy to carry in one trip, that he brought the remainder to her in a second trip, and that she informed him of the shortage when he delivered the balance to her. After Khandjian reported the shortage, bank officials asked him, Spungin, and another bank employee to take a lie detector test, which they agreed to do. The bank arranged for these tests with a private security firm which it employed.

Khandjian was sent to take the polygraph test in the afternoon of August 28. The test was administered to him by one Bierman, who asked him to return the next day for another polygraph test. When Khandjian returned on August 29, Bierman took him into a room which did not contain any testing equipment. He stated that the tests of the other two bank employees were good, and that Khandjian had lied and was guilty of stealing $320 from the bank. An FBI agent, however, testified that Bierman had told him that Khandjian was too nervous for Bierman to “run an effective test on him.” Bank official Potter testified that Bierman told him that Khandjian’s test was “inconclusive.” Bierman accused Khandjian of stealing the missing $320. Beginning with Khandjian’s statement, made earlier to the bank officials and to Bierman, that he felt “responsible” for the missing money because it was under his charge since he was head teller, Bierman eventually obtained a confession from Khandjian. Bierman asked questions and suggested answers; when he received an affirmative response or gesture from Khandjian, Bierman had his secretary type up the answer as Khandjian’s own response. Because the confession is the only evidence against Khandjian, and because the circumstances in which the confession was given were strongly disputed, we have included in the margin portions of the relevant trial testimony.

Spungin testified that on the morning she received the “short” packet of twenties, she did not know how many loose twenties she had in her cash drawer. She also testified that she had had a shortage in her accounts once before during the preceding three or four months, amounting to $100.

Bank official Potter testified in response to the question, “Are shortages common or uncommon in the banking business?” that “They happen.” He testified that he knew of other instances of shortages, and that except for the question of the missing $320, Khandj i-an’s account was correct “to the penny.” When asked, “Were there any discrepancies in the accounts of the other tellers during this period?” [of Khandjian’s employment], he replied, “Yes. There are always shortages and overages in teller’s accounts.” He further stated that Khandjian handled $150,000 to $200,000 every day, and that on August 29, he had over $200,000 in his account. He said that the thrust of Khandjian’s statements after returning from Bier-man’s on August 29 was his concern for keeping his job, and that Khandj ian had offered several times before seeing Bier-man to restore the money because it was found missing from his account.

Two FBI agents testified that Khandj ian, who had contacted them subsequent to the Bierman confession, had insisted that despite the confession, he had not taken the missing $320, and had offered to take any type .of test, including truth serum.

Khandj ian testified that he had no way of knowing whether Mrs. Spungin’s “short” packet was in fact the same packet he had given her on the morning of August 28. He further testified that on returning to the bank after the confession to Bierman, he talked to bank officials, and they had him sign a blank promissory note, although he had been under the impression that he was to sign a valid note for $320.

We first consider proof of the corpus delicti with regard to the admissibility of the confession. The 1940 case of Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751, 756 stated: “It is, of course, settled that the confession cannot be admitted until the corpus delicti has been established.” However, the Ninth Circuit repudiated this statement as “dictum” three years later in Gros v. United States, 9 Cir., 1943, 138 F.2d 261, 264.

Although we have found no discussion in this circuit of the policy considerations involved in proof of the corpus delicti before admission into evidence of the confession, the rule developed by our cases is that the confession can be introduced before the corpus de-licti has been jproved, but there must be proof at some stage of the trial that a crime has in fact been committed. While the following Fifth Circuit cases discuss the order of proof, each case makes clear that there must be proof of the commission of a crime.

In Moll v. United States, 5 Cir., 1969, 413 F.2d 1233, 1238-1239, appellant argued that the corpus delicti was required to be proved before the Government could offer his confession into evidence. We said, “The law is well settled to the contrary. It is sufficient if the independent evidence, together with the confession, establishes guilt beyond a reasonable doubt.”

In Caster v. United States, 5 Cir., 1963, 319 F.2d 850, 852, cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973, appellant contended that his confession could not be admitted until the corpus delicti was proved by sufficient independent evidence. We responded to this contention that “To prove the corpus delicti of an offense, by evidence independent of the confession, the Government need only prove that the offense in question likely has been committed.” [Emphasis added.]

In Vogt v. United States, 5 Cir., 1946, 156 F.2d 308, 311, we said: “These confessions by the Defendants were admissible provided there was also in evidence such extrinsic corroborating facts and circumstances as would justify a jury in finding that the alleged crime had been committed by someone.” [Emphasis added.] Clearly, such a finding is prerequisite to a conviction.

In Masse v. United States, 5 Cir., 1954, 210 F.2d 418, 420, cert. denied, 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105, the admission of Masse’s confession was challenged on the ground that the Government had not first laid the predicate for its admission by proving the corpus delicti. Although there must be proof of the corpus delicti at trial, we held that that proof is not required to be made prior to the admission of the confession.

While we said in Landsdown v. United States, 5 Cir., 1965, 348 F.2d 405, 409, that “It is thus a sound principle that requires incriminatory statements of questionable reliability made outside the presence of a judge to be corroborated by substantial, independent evidence before their admission into evidence against the accused,” we did not require that order of proof.

Smith v. United States, 348 U.S. 147, 153-154, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954), involved the crime of tax evasion, in which “there is no tangible injury which can be isolated as a corpus de-licti.” The Supreme Court stated: “The corroboration rule, at its inception, served an extremely limited function. In order to convict of serious crimes of violence, then capital offenses, independent proof was required that someone had indeed inflicted the violence, the so-called corpus delicti.” Id. We understand the Supreme Court to have said that the existence of the corpus delicti must be proved, and that the accused’s confession alone is not sufficient proof, when it said at 348 U.S. 157, 75 S.Ct. 200 n. 4: “. . . where a fact is sufficiently important that the Government adduces extrajudicial statements of the accused bearing on its existence, and then relies on its existence to sustain the defendant’s conviction, there is need for corroboration. . . . ”

The Supreme Court also said in Wong Sun v. United States, 371 U.S. 471, 489, 83 S.Ct. 407, 418 n. 15, 9 L.Ed.2d 441 (1963): “Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. . . .” [Emphasis added.]

The preceding cases indicate that there is no requirement that the corpus delicti be proved before the defendant’s confession can be admitted into evidence, but that the corpus delicti — the fact that a crime was committed — must be proved at trial, and that the defendant’s confession alone is not sufficient proof of the corpus delicti.

It is settled law in this country that a conviction cannot be based on the uncorroborated confession of the accused. The Supreme Court stated in Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876 (1941):

The rule requiring corroboration of confessions protects the administration of the criminal law against errors in convictions based upon untrue confessions alone.

The Supreme Court further discussed the corroboration requirement in Opper v. United States, 348 U.S. 84, 89-90, 75 S.Ct. 158, 162-163, 99 L.Ed. 101 (1954):

In the United States our concept of justice that finds no man guilty until proven has led our state and federal courts generally to refuse conviction on testimony concerning confessions of the accused not made by him at the trial of his ease. Wigmore, Evidence (3d ed.), § 2071. See Warszower v. United States, .... In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination. . [Footnote omitted.]

The purpose of requiring corroboration of confessions is also set forth in Smith v. United States, 348 U.S. 147, 152-153, 75 S.Ct. 194, 197, 99 L.Ed. 192 (1954):

The general rule that an accused may not be convicted on his own uncorroborated confession has previously been recognized by this Court, War-szower v. United States, . . ., and has been consistently applied in the lower federal courts ... its foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, . . . caution is warranted because the accused may be unable to establish The involuntary nature of his statements. Moreover, though a statement may not be “involuntary” within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under the pressure of a police investigation — whose words may reflect the strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of the courts, the police and the medical profession recounts a number of false confessions voluntarily made, Note, 28 Ind.L.J. 374. These are the considerations which justify a restriction on the power of the jury to convict, for this experience with confessions is not shared by the average juror.

Smith discusses the quantum of corroboration necessary to substantiate the existence of the corpus delicti, and requires that there be “substantial independent evidence that the offense has been committed,” and that “the evidence as a whole proves beyond a reasonable doubt that defendant is guilty.” Further,

All elements of the offense must be established by independent evidence or corroborated admissions, but one available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense “through” the statements of the accused.

348 U.S. at 156, 75 S.Ct. at 199.

The Supreme Court further stated in Opper v. United States, 348 U.S. 93, 75 S.Ct. 164-165:

[W]e think the better rule to be that the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement. Thus, the independent evidence serves a dual function. It tends to make the admission reliable, thus corroborating it while also establishing independently the other necessary elements of the offense. Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, [99 L.Ed. 192.]. It is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth. Those facts plus the other evidence besides the admission must, of course, be sufficient to find guilt beyond a reasonable doubt.

This circuit has long recognized the requirement of independent corroboration of confessions. We said in Flower v. United States, 5 Cir., 1902, 116 F. 241, 247, that “A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti.”

Flower v. United States, supra, involved the conviction of a bank teller for embezzlement of bank funds. Flower appealed his conviction on the basis that there was insufficient evidence of the corpus delicti outside of his confession. In that case, Flower admitted to bank officials and others that he had taken $36,000 in bank funds. In a letter to a bank patron, from whom Flower sought to borrow $36,000 to cover the missing money when his account was to be audited, and in conversations with bank personnel, Flower admitted that he switched a $4,000 label on a money packet to a $40,000 label, although the packet in fact contained only $4,000. The $36,000 was found to be missing from Flower’s account during the six-month period between bank audits. Evidence independent of Flower’s confession showed that a $4,000 label had been switched to a $40,000 label on a packet Flower handled in the presence of another bank employee, and that the packet in fact contained only $4,000. There was also evidence that $36,000 was missing from Flower’s account, and that Flower had sent a total of $36,000 to an investor in New York during the preceding six months. We found sufficient corroboration in this evidence to sustain Flower’s conviction.

In the instant case, the trial testimony showed that a teller working under Khandjian was short $320; she had had a shortage in her account in the recent past; other bank tellers have had shortages; Khandjian handled $150,000 to $200,000 every day, and his account had always balanced out; there was no way of knowing whether the packet Khandjian delivered to Spungin was the same packet which she showed to be short, nor that it was delivered to her short, other than her word. It was never shown that the bank had in fact lost $320, nor that the $320 missing on the morning of August 28, 1972, was stolen from the bank. Outside of Khandjian’s confession, no evidence has been adduced to indicate that the crime of embezzlement was committed.

In the instant case, the only evidence that a crime was committed and that Khandjian was guilty thereof is the confession to Bierman. Khandjian’s conviction cannot stand since the confession is not corroborated by any independent evidence. This case exemplifies the soundness of the rule requiring substantial independent evidence that an offense has in fact been committed and evidence from which the jury may find the accused guilty beyond a reasonable doubt, because the confession and the circumstances in which it was made strongly imply that Khandjian was induced to confess to a criminal act which he did not commit; indeed, there may have been no crime committed at all.

Defendant’s motion for judgment of acquittal made following the Government’s ease, and renewed thereafter at the close of all the evidence, and again after the verdict, should have been granted by the trial judge, and it was error to deny the motion.

Reversed.

      . Defendant was immediately thereafter sentenced by the trial court to imprisonment for 18 months, his counsel’s request for a pre-sentence investigation being denied.

      . 18 U.S.C. § 656 reads in pertinent part:
      Whoever, being an officer, director, agent or employee of, or connected in any capacity with any Federal Reserve bank, member bank, national bank or insured bank, . . . embezzles, abstracts, purloins or willfully misapplies any of the moneys, funds or credits of such bank . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both; . . . .

      . The following was elicited on direct examination of Khandjian:
      A He said, he told me, sir, that if I made the statement that I took the money, everything will be straightened out and that all I had to do was go back and pay the $320, the bank will be satisfied, the bonding company will be satisfied, and I could still stay there and hold my job.
      Q What did he tell you about the disposition of any written statements?
      A He said that the written statement that I had signed would not be seen by anyone other than himself and would stay in his office as such.
      Q Did he tell you this before you made the statement?
      A He told me that before and after.
      Tr. 131
      A Sir, when he told me that I am the one that took the money, that I stole it — his exact words — and -I know I didn’t take it— I was completely unnerved. I couldn’t think straight. I was scared stiff. I never was involved in court in my life. But since he made this assurance that if I made the statement that I had taken the money and if I make it good, everything will be straightened out, I’ll still continue working at the bank and there will be no charges against me, I had nothing to lose but to satisfy his request and satisfy his request [sic] and to get off — to get away from this case completely and finish it right then and there.
      Q Were you frightened of him, sir?
      A Frightened? I was petrified, sir. I couldn’t think clearly.

        Tr. 12
      Q Why did you sign the statement?
      A Sir, as I say, I was unnerved. The threat of losing my job, and a man of my age, it’s hard to get a job.
      Q How old are you, sir?
      A I am 56 years old. And that is all I know, is banking, and if that is satisfying and since I had told Mr. Potter that I don’t know how that $320 is missing or I can’t explain it, I’m not accusing anybody. But since it was in my possession, I’m willing to make good. I have nothing to lose other than that. But I signed that statement and I’ll give the $320 and still hold my job.
      Q When did you make this offer to Mr. Potter? Was it before or after you went to Mr. Bierman’s office?
      A Before, sir.
      Q Did you tell Mr. Bierman that you had offered to repay the money?
      Tr. 132
      A Mr. Bierman had known that.
      Tr. 133

      . This question is considered in Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U.Pa.L.Bev. 63S (1955) at 657-658. There it is stated that
      Although most courts say that independent proof of the corpus delicti should precede the introduction of the confession [footnote omitted], a reversal of the order of proof, provided sufficient independent proof is introduced at some point does not constitute reversible error. [Footnote omitted.]
      There are certain dangers inherent in a rule which permits the confession to. be used to help prove the corpus deliciti. One psychologist maintains that knowledge of a confession produces powerful suggestive influences for judges, witnesses, experts, and all concerned in the case. . . . Although it would be impossible to eliminate this danger completely, the risk can be minimized by requiring that the corpus de-licti be proved without the aid of the defendant’s confession, and that the confession not be admitted until the requirement of independent proof is satisfied.

      . For the history of the rule and a collection of early English and American cases, see Note, Proof of the Corpus Delicti Aliunde the Defendant’s Confession, 103 U.Pa.L.Rev. 638 (1955). The Supreme Court explicitly recognized the rule in Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 606, 85 L.Ed. 876 (1941). The requirement of corroboration of confessions has been considered in several Supreme Court decisions, and is dealt with at length in Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954) and Smith v. United States, 348 U.S. 147, 75 S.Ct. 194, 99 L.Ed. 192 (1954). See also United States v. Calderon, 348 U.S. 160, 75 S.Ct. 186, 99 L.Ed. 202 (1954); Wong Sun v. United States, 371 U.S. 471, 488-489, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963).

      . See also United States v. Abigando, 5 Cir., 1971, 439 F.2d 827, 832-833; United States v. Seckler, 5 Cir., 1970, 431 F.2d 642, 643-644; Moll v. United States, 5 Cir., 1969, 413 F.2d 1233, 1238-1239; Mills v. United States, 5 Cir., 1967, 380 F.2d 335, 336; Landsdown v. United States, 5 Cir., 1965, 348 F.2d 405, 409; Caster v. United States, 5 Cir., 1963, 319 F.2d 850, 852, cert. denied, 376 U.S. 953, 84 S.Ct. 972, 11 L.Ed.2d 973; Andrews v. United States, 5 Cir., 1962, 309 F.2d 127, 129, cert. denied, 372 U.S. 946, 83 S.Ct. 939, 9 L.Ed.2d 970; Belvin v. United States, 5 Cir., 1960, 273 F.2d 583, 585, cert. denied, 372 U.S. 922, 83 S.Ct. 737, 9 L.Ed.2d 726; French v. United States, 5 Cir., 1956, 232 F.2d 736, cert. denied, 352 U.S. 851, 77 S.Ct. 73, 1 L.Ed.2d 62; Masse v. United States, 5 Cir., 1954, 210 F.2d 418, 420, cert. denied, 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105; Vogt v. United States, 5 Cir., 1946, 156 F.2d 308, 310-311.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Oscar JOHNSON, Defendant-Appellant.
    No. 72-3794.
    United States Court of Appeals, Fifth Circuit.
    Feb. 7, 1974.

      J. W. Dinsmore, Birmingham, Ala., for defendant-appellant.
    Ira DeMent, U. S, Atty., D. Broward Segrest, Wade B. Perry, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

We review here Charles Oscar Johnson’s conviction under the Dyer Act, Title 18, U.S.C. See. 2313, for knowingly and willfully receiving, concealing, and disposing of a stolen motor vehicle which was moving in interstate commerce. We affirm.

I. The Facts

The appellant, Charles Oscar Johnson, was arrested on the night of March 23rd or 24th, 1972 (the record is unclear as to which of the two days) in Prattville, Alabama in possession of a 1972 Pontiac Grand Prix automobile, Vehicle Identification Number (VIN) 2K57T2A151947. Evidence indicated that the vehicle had been stolen March 16 from the parking lot at an apartment complex in Roswell, Georgia, where the owner of the car, Ms. Louise Raxter, resided.

The occasion for the arrest was the delivery of the car for sale by one Benny Hand, appellant’s codefendant, to Kenneth Ray Hill, a deputy Sheriff of Auta-ga County, Alabama. Hill was posing as a used car dealer under the assumed name “Kenneth Ray.” Through prior arrangements, Hand had agreed to supply “Ray” with thirty to forty stolen, late-model, General Motors automobiles a month. The Grand Prix Pontiac was the first and only automobile actually delivered by Hand to “Ray” pursuant to this agreement.

The automobile to be delivered to “Ray” was apparently in Birmingham at a time earlier than the scheduled delivery date. Hand, in search of someone to drive the car from Birmingham to Prattville, contacted the appellant. According to appellant’s testimony, Hand offered him $25 to drive the car to Prattville. The appellant was to follow Hand, who would lead the way in his pickup truck.

On the night of March 23rd or 24th, appellant followed Hand, who led in his pickup truck, from Birmingham to a filling station near the end of an interstate highway in Autaga County. There, Hand made a phone call, presumably to “Ray” and shortly thereafter, “Ray” appeared and drove past the filling station and around the barrier at the end of the interstate to a stopping place on the unopened portion of the highway. Appellant testified that upon seeing “Ray’s” car pass by, Hand instructed him to get into the Pontiac and follow “Ray”, as he was the individual to whom the delivery was to be made. Appellant did as instructed with Hand now following in his pickup, as Johnson crossed into the unopened portion of the highway and stopped behind “Ray’s” already parked automobile.

At this point, “Ray” and Hand entered Hand’s pickup to consummate the deal. There is conflicting testimony as to whether appellant overheard conversation between “Ray” and Hand indicating that the purchase price for the Pontiac was to be $2,200. Once inside the pickup, “Ray” disclosed his true identity and placed Hand under arrest. Appellant was arrested later the same day by Hill, then accompanied by a special agent of the F.B.I. Examination of the Pontiac disclosed that Alabama license plates had been substituted for the original Georgia plates. In addition, a false VIN (vehicle identification number) had been embossed on a piece of labelling tape and the tape then attached in such a fashion as to conceal the true VIN on the vehicle dashboard. There was testimony by the witnesses for the government that one end of the tape curled upward so as to be clearly visible from the driver’s seat.

II. Sufficiency of the Evidence

Proof of violation of Title 18 U. S.C. Sec. 2313 requires two basic elements: (i) a stolen vehicle moving in or as part of interstate commerce and (ii) possession of the vehicle by the person charged with knowledge that it is stolen and is hence wrongfully in his possession. Appellant seeks reversal of his conviction because of the insufficiency of the government’s evidence to prove guilty knowledge on his part of the stolen nature of the Pontiac automobile, admittedly moving in interstate commerce, and admittedly in his possession.

We review the verdict of the jury below taking that view of the evidence most favorable to the government. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704. The appellant’s conviction is due to be sustained if the jury was reasonably entitled on this basis to find guilt beyond a reasonable doubt. United States v. McGlamory, 5 Cir. 1971, 441 F.2d 130, 134; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58. There is a rebuttable presumption that one in possession of recently stolen property knows the property to have been stolen. Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380. This presumption may be overcome if the accused offers an explanation of his possession inconsistent with knowledge that the property is recently stolen, Id,., the reasonableness of such explanation being for the jury. Our consideration of the evidence is against this backdrop.

The undisputed fact of appellant’s possession of the recently stolen vehicle is the most important single piece of evidence. This alone was all that was required to give rise to the presumption of guilty knowledge, and sufficiently supported denial of the motion for a directed judgment of acquittal. There are additional factors present which the jury was entitled to consider as probative of defendant’s knowledge that the automobile in question was stolen.

First, the government argues that the upturned end on the labelling tape used to conceal the stolen automobile’s true VIN was open and apparent to the appellant or anyone driving the Pontiac and supports the theory that appellant knew that the automobile was stolen. The appellee argues in the second place that the suspicious circumstances under which the automobile was delivered were inconsistent with a legitimate sale and delivery of an automobile, and should have alerted Johnson to the fact that he was dealing with a stolen car. The ap-pellee points out that the vehicle was to be delivered in the nighttime behind the barrier at the end of an uncompleted interstate highway. Finally, the government urges that the jury was entitled to accept Hill’s version that Johnson overheard the conversation between Hand and “Ray” which disclosed the unreasonably low purchase price to be paid by “Ray” for the car. It is argued that this evidence, individually and collectively, afforded the jury a sufficient basis for concluding that the appellant knew the automobile in his possession was stolen.

In his defense Johnson testified that it had been his understanding that Hand was a dealer in used cars; further that he did not know Hand well but that, through a mutual friend, Hand had obtained appellant’s name as one who might be interested in driving an automobile to Autaga County for $25. Appellant testified that he accepted Hand’s offer because he was temporarily out of work and needed money. He denied any knowledge that the automobile to be transported was a stolen vehicle.

We find that the jury was reasonably entitled to conclude from Johnson’s possession and the other circumstances in evidence that he knew the car was stolen on the night that he drove it to Autaga County. The credibility of Johnson’s version of the facts and the reasonableness vel non of his explanation of his possession of the stolen car were typical jury questions, put at rest by its verdict.

III. Failure to Declare a Mistrial

Appellant’s second contention is that the trial judge should have ordered a mistrial when the prosecuting attorney began a question on cross-examination of the appellant as follows: “About two months prior to this [the arrest for possession of the stolen vehicle] were you arrested in Birmingham. . . . ?” (Question interrupted by objection from appellant’s counsel below).

At this point, appellant’s counsel and the prosecuting attorney engaged in a side bar conference out of the hearing of the jury. When this discussion ended, the prosecuting attorney withdrew his proposed question and continued his cross-examination. The record does not indicate any motion for mistrial at this point or later, nor that the trial judge gave or was requested to give a cautionary instruction to the jury not to consider this incomplete question. Appellant argues that the content of this uncompleted question was so prejudicial as to constitute the failure to declare a mistrial “plain error”, Rule 52(b), F.R. Crim.P.

We note that appellant’s counsel failed to move for a mistrial when the incident occurred or later. If the prejudice flowing from it was as grave as he now asserts, he has apparently formed this conclusion after the event. Appellant’s counsel did not specify for the record the grounds for his generalized objection to the prosecuting attorney’s uncompleted question that the remarks would be prejudicial to the defendant. We consider the question before us therefore as whether or not it was prejudicial rising to “plain error” for the trial judge to fail to grant a mistrial sua sponte. F. R.Crim.P. 52(b); Smith v. United States, 5 Cir. 1965, 343 F.2d 539, 542, cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99. We made clear in United States v. Thomas, 5 Cir. 1970, 429 F.2d 407, 408: “An appellate court will not review actions of omission or commission by a trial court unless the defendant makes known to the court the action which he desires the court to take or his objection to the action taken by the court and the grounds therefor”. (Emphasis added).

Appellant relies upon Odom v. United States, 5 Cir. 1967, 377 F.2d 853, also a Dyer Act, Title 18, See. 2313 prosecution. There one of the arresting officers was asked on the stand how long he had known the defendant, to which the officer responded: “I had seen Mr. Odom come in and out of jail and spoke with him for approximately a year and a half”. Id. at 859. Counsel promptly moved to strike this testimony, which the trial court did, giving an attempted curative instruction to the jury not to consider the statement in arriving at a verdict. Despite this, we held that the failure of the trial judge to grant a mistrial sua sponte was plain error requiring reversal.

Seven months after the decision in Odom, supra, this court considered another appeal from a Dyer Act conviction, Leonard v. United States, 5 Cir. 1967, 386 F.2d 423, which involved a claim of error because the trial judge refused to grant a motion for a mistrial based on a witness’ statement relating to defendant’s prior arrest for a traffic violation. The witness, manager of a hotel where the defendant had registered, was asked how long the defendant had remained as a guest in her hotel. She replied: “My notation said that he was arrested on g/g * * *» (the witness was interrupted by the court at this point). The trial judge denied the defendant’s motion for a mistrial, gave a curative instruction to the jury, and allowed the trial to proceed. We affirmed on appeal and distinguished Odom, supra. Our comment in Leonard in distinguishing Odom applies to this case. The statement by the witness in Leonard, like the question of the prosecutor in the instant ease, was incomplete. In Leonard we said:

[W]hen we view [the hotel manager’s] statement in context with the trial, we must reject escalating the words to an interdicted status. Unlike Odom, the arrest here could have been for a minor offense or without cause; the word “arrest” does not absolutely connote guilt. * * * The mention of arrest added nothing to the case and cannot be compared with “jailhound” testimony in a case where criminal intent was a contested issue. 386 F.2d at 425.

The facts in this case are more favorable to the government than were those in Leonard since the prosecutor’s incomplete question only raised the issue of whether the appellant had been arrested and did not state affirmatively that he had in fact been arrested. If any prejudice here flowed from the uncompleted question it was slight and did not rise to the level of plain error affecting substantial rights of the appellant and requiring reversal.

Affirmed.

      . During oral argument the evident hearsay nature of this testimony by Hill was called to counsel’s attention. The testimony was not objected to at trial and counsel has not attempted to raise this as an issue on appeal. Under the “plain error” standard of review, F.R.Crim.P. 52(b), Smith v. United States, 5 Cir. 1965, 343 F.2d 539, 542, cert. denied, 382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99, we conclude that the introduction of this testimony, relating as it did merely to the existence of a plan between Hand and “Ray”, did not rise to the level of error affecting substantial rights of the defendant, and, therefore, requires no additional treatment. .

      . During oral argument in this case, Johnson’s counsel advised the Court that Hand was unwilling to testify on behalf of the appellant because of the pendency of other charges against Hand. Thus, the only evidence in the record to the events preceding the actual delivery of the stolen automobile is the uncontroverted testimony of Johnson.
      Appellant testified that he was at that time out of work and in need of income, and accepted Hand’s offer for this reason.

      . Deputy Sheriff Hill testified that such a conversation was held in appellant’s presence prior to his an'd Hand’s getting into the pickup. Appellant testified that he had heard no such conversation. The conversation is significant in the Government’s view, as supporting proof of Johnson’s knowledge of the stolen nature of the Pontiac, a $4,000 automobile.

      . The partial record brought up does not contain the jury instructions, so we do not know whether or not this presumption was included in the court’s charge to the jury. Appellant, however, does not challenge the validity of the presumption nor does he challenge the charge to the jury.

      . To make sure that the record is complete as to this occurrence we have sought out the trial court reporter. His notes do not, at this point in the record or elsewhere, reveal any motion for mistrial or further reference to the incident. No further action by the trial judge was sought at a time when he might have attempted to clear the matter up for the jury. This should have been called to our attention by the appellee’s brief, but was not.

      . In Odom, counsel did not object to the officer’s statement on the ground of prejudice but rather, objected to the statement as being unresponsive to the question asked. In addi-fión, Odom’s counsel made no motion for a mistrial. As here, no motion for mistrial was made when the incident occurred, but the trial judge was nevertheless held in error for not granting a mistrial sua sponte.
      We point out additionally that the declaration of mistrials without a motion therefor may lead to serious double jeopardy problems. Illinois v. Somerville, 1973, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425; United States v. Kin Ping Cheung et al., 5 Cir. 1973, 485 F.2d 689; McNeal v. Hollowell, 5 Cir. 1973, 481 F.2d 1145; Smith v. Mississippi, 5 Cir. 1973, 478 F.2d 88.