author: ENRIGHT, District Judge:

text:
    UNITED STATES of America, Appellee, v. Alfred Lee SIMMONS, Appellant.
    No. 72-2174.
    United States Court of Appeals, Ninth Circuit.
    March 12, 1973.

      Michael D. Nasatir, of Nasatir, Sherman & Hirseh, Beverly Hills, Cal., for appellant.
    William D. Keller, U. S. Atty., Eric A. Nobles, John K. Cameron, Jr., Asst. U. S. Attys., Los Angeles, Cal., for appellee.
    Before MERRILL and CHOY, Circuit Judges and ENRIGHT, District Judge.

       The Honorable William E. Enright, United States District Judge for the Southern District of California, sitting by designation.

   ENRIGHT, District Judge:

The appellant, Alfred Lee Simmons, was found guilty after jury trial for a knowing failure to report for induction into the armed forces of the United States. On this appeal, he raises four principal issues as grounds for reversal. He argues: (a) that he was denied due process when, after the originally assigned judge took ill, in apparent contravention of the applicable Local Rules, his case was specifically assigned to the trial judge rather than being reassigned through the criminal calendar or to a new judge selected at random; (b) that his selective service file was improperly introduced into evidence and thereby led to subsequent prejudice; (c) that the trial judge erred in his instructions to the jury; (d) that the evidence was insufficient to establish the offense.

THE FACTS

The Government introduced Simmons’ Selective Service file into evidence over objection and rested. The file showed that on June 7, 1966, Simmons was classified 1-A and a notice of classification was mailed to him. Subsequently, he was reclassified 1-Y, because he was on active probation at that time. Later, he was again classified 1-A. Eventually, the Local Board mailed to appellant an order to report; his failure so to do resulted in his conviction.

After introduction of the file into evidence, the trial judge permitted the Assistant United States Attorney during his case in chief to point out and comment upon portions of the file, again over objection.

A motion for acquittal at the conclusion of the government’s case was denied. In his case, Simmons relied upon the testimony of his mother, Ms. Dorothy Jean Simmons. Ms. Simmons testified that she picked up letters from her home over the noon recess during the day of the trial. She did not know what documents these letters contained but the envelopes contained indications that they were from the Selective Service. The seven envelopes which she had brought were numbered A through G for identification by the defense. All the exhibits were and had remained sealed. In open court, Ms. Simmons opened Exhibit A and found the letter ordering appellant to report. She further testified that she did not know what date she had received Exhibit A, but estimated about one year prior. She explained that she had in 1970 or 1971 forwarded a quantity of mail to the appellant and was surprised that she still had the exhibits in her possession. Finally, she testified that her son had not lived at home since reaching 17 years of age but maintained her home as a mailing address. The Court instructed the jury pursuant to Selective Service regulations, and the defense objected.

THE ISSUES

A. The Selection of the Trial Judge

After the original assigned judge took ill, appellant’s case was specifically assigned to the trial court. Appellant contends that he had an absolute right to a random selection of a judge and that the process followed by the court in this instance was in violation of Rule 2(f) of the Local Rules of the Central District of California, and General Order No. 104(H). Arguing that these rules were promulgated to ensure fairness and to remove any suspicion of unethical conduct, appellant would have us conclude that the failure of the judicial system to follow its own regulations when dealing with criminal defendants is a denial of due process. For this contention, appellant would have us rely upon Briggs v. United States, 397 F.2d 370 (9th Cir. 1968). Briggs concerned the failure of armed forces personnel to comply strictly with an Army Regulation requiring a physical inspection at induction. But, even assuming that noncompliance with Army Regulations is apposite with noncompliance with court rules, this Circuit has subsequently held that noncomplianee per se is not the determinant but rather prejudice to the defendant. United States v. Jenson, 450 F.2d 1258, 1261 (9th Cir. 1971). We are not convinced that in this particular circumstance, the assignment of the trial court prejudiced the defendant as a matter of law. Further, we cannot be unmindful that Local Rules are promulgated by District Courts primarily to promote the efficiency of the court, and that the court has a large measure of discretion in applying them. Lance, Inc. v. Dewco Services, Inc., 422 F.2d 778, 784 (9th Cir. 1970). On the record before us, we cannot determine that the Central District of California abused that discretion.

B. Introduction and Comment upon the File

At trial, defense counsel objected to the introduction of appellant’s Selective Service file on grounds of hearsay. It cannot be doubted that a properly authenticated selective service file may be received into evidence in this Circuit as an exception to the hearsay rule. E. g., United States v. Grans, 472 F.2d 597 (9th Cir. 1972).

The appellant also asserts that comments concerning the file by the Assistant United States Attorney permitted by the trial judge over defense objections were prejudicial. Specifically, the Government explained that appellant had been classified 1-Y because he had been on active probation for committing a criminal offense. We agree with appellant that such explanation was irrelevant to his guilt or innocence on the charge of failing to report for induction. Appellant then argues that such admission is prejudicial since a defendant’s criminal record cannot be brought before the jury unless the defendant takes the stand or he places his character in issue — and then only felony convictions can be introduced to impeach. We tend to agree with appellant’s position, but since the improper instruction requires reversal, we need not decide whether such erroneous comment was indeed prejudicial in this particular instance.

C. Instruction As to Notice

The Government requested the court to instruct the jury pursuant to 32 C.F.R. § 1641.3, which provides:

It shall be the duty of each registrant to keep his local board advised at all times of the address where mail, will reach him. The mailing of any order, notice, or blank form by the local board to a registrant at the address last reported by him to the local board shall constitute notice to him, of the contents of the communication, whether he actually received it or not.

(Emphasis added.) Responding to the defense objection that the quoted instruction is violative of due process, the trial judge stated:

The answer to that is that on the basis of the facts, uncontroverted facts given here that as a matter of law the notice was duly given, that is what I propose to instruct the jury.

(Emphasis added.)

The Third Circuit has considered this same issue. The court there concluded that:

The regulation in effect creates an “irrebuttable or conclusive presumption” that mail sent is received. Such a presumption would make irrelevant any evidence the defendant-appellant did offer or might have offered to prove he did not receive the forms.
Even if we were not dealing with the regulation that involved the critical issue of notice, the regulation cannot stand. We believe the regulation to be unconstitutional as violative of the due process clause of the Fifth Amendment insofar as it purports to establish such an irrebuttable presumption.

United States v. Bowen, 414 F.2d 1268, 1273 (3d Cir. 1969) (footnote omitted.) The Bowen court also wrote:

Having determined that it was improper for the lower court to cite in its charge to the Selective Service mail regulation, 32 C.R.F. § 1641.3, in any way that clearly made it seem to be an irrebuttable presumption, we are compelled to reverse the conviction because of the possibility that this portion of the charge may have been at the root of the jury’s verdict.

Id. at 1277.

Similarly, the reasoning of District Judge Motley is compelling:

The government’s interpretation of the regulation must be rejected out of hand. It would be truly shocking if such an “irrebuttable presumption” concerned with a simple evidentiary matter, could be constructed to send a man to jail. The government cited neither cases, .nor administrative rulings, to support such a draconian reading of 32 C.F.R. § 1641.3.

United States v. Smith, 308 F.Supp. 1262, 1263 (S.D.N.Y.1969).

The impact of the regulation and the instruction given, in effect, bootstraps mailing into receipt and receipt into notice. We, therefore, agree with the appellant that the instruction as given was violative of due process and the conviction obtained from the jury so charged must be reversed, especially here where evidence indicated that notice was never received by the appellant and in fact the envelope was first opened in open court.

D. Insufficiency of the Evidence

Finally, appellant asserts that the evidence as presented in this case would be insufficient to sustain the conviction. With this we disagree. While 32 C.F.R. § 1641.3 is void if construed as a “conclusive” presumption, we hold that it may properly be applied to create a rebuttable presumption. Given the circumstances of the introduction of the letters, that is, their alleged unknown whereabouts for a year’s time only to be discovered within the lunch hour of the day of trial, it is entirely possible that the triers of fact may have inferred that despite their never having been delivered to the appellant, appellant knew, or had reason to believe, that he had been ordered to report.

In conclusion, because of the erroneous instruction, we reverse.

      . (f) Transfer in Cases of Prolonged Illness or Unavoidable Absence — In order to prevent excessive delay in the disposition of causes in the court, this court may, in the event of prolonged illness, disability, or other unavoidable absence of any judge, transfer from the calendar of such absent judge any case or cases pending on the calendar of such unavoidably-absent judge, whenever the court may deem such action necessary in the interest of expediting the business of the court. A transfer of a civil case shall be accomplished by the drawing of a judge’s name by the clerk by the same method used to assign civil cases. The transfer of a criminal case shall be accomplished by referring it to the judge in charge of the criminal calendar for the drawing of a judge’s name from the cards used to assign criminal cases. No transfer shall be made pursuant to this Rule except when some judge of the court shall be absent for a period of thirty days or more solely because of illness, disability, or other cause beyond the control of such absent judge.

      . H. Procedure When Assignment Cards of Absent Judges Are Drawn — When a judge is absent from the District, ill, or on vacation for more than two successive Mondays, he may instruct the Arraignment Calendar Magistrate that no cases are to be assigned to him during the period of his absence, or that defendants in cases assigned to him are to be instructed to appear before him on a certain date for entering a plea and setting for trial, or that only cases in which the defendants are on bond shall be assigned to him, and other appropriate instructions. The Arraignment Calendar Magistrate shall follow the instructions as closely as reasonably possible. When an assignment card of an absent judge is drawn and the absent judge has instructed that no case be assigned to him in the circumstances, the card will be put aside and held until the return of the absent judge. An appropriate notation shall be made on the card, including the date upon which it was drawn, the number on the calendar and the case number. When the absent judge returns, a notation shall be made on the card that it has been returned to the wheel on a certain date, the card shall again be placed in the wheel in a sealed envelope as before.

      . In liis brief, appellant first urges an objection based upon an alleged lack of authentication. While the new Federal Rules of Evidence shall not take effect per se until July 1, 1973, we nevertheless prefer to look toward the rules for guidance in determining the question raised. It would seem that a certified selective service file would be a prime example of self-authentication. Rule of Evidence 902(4), 56 F.R.D. 183, 337.

      . The matter was discussed in depth prior to argument outside the presence of the jury:
      Mr. Nasatir: Just to avoid any problems, to get it all out in the open, just so that I know what my duties are, will I be allowed to argue [that notice wasl duly given or not?
      The Court: The answer to that is that on the basis of the facts, uncontroverted facts given here that as a matter of law the notice was duly given, that is what I propose to instruct the jury.
      Mr. Nasatir: I am just trying to get it clear, your Honor, so I will not further anger this Court. Will I be precluded then from arguing that as a defense?
      The Court: I just told you, Mr. Nasatir, that I propose [to] instruct the jury that based upon the uncontradicted evidence in the record that as a matter of law I am going to instruct the jury that the notice was duly given.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. Carlos ORTIZ, #59524, Petitioner-Appellant, v. Harold FRITZ, Superintendent of Auburn Correctional Facility, Auburn, New York, Respondent-Appellee.
    No. 374, Docket 72-1973.
    United States Court of Appeals, - Second Circuit.
    Argued Jan. 18, 1973.
    Decided March 26, 1973.

      Julia Pamela Heit, New York City (William E. Hellerstein and Robert Kasanof, New York City, of counsel), for petitioner-appellant.
    Brenda Soloff, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for respondent-appellee.
    Before FRIENDLY, Chief Judge, and OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This appeal from the denial of a habeas corpus petition raises a serious question as to the applicability of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in the case of “interlocking” confessions of codefendants. Only because we consider ourselves bound by United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U. S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970), and its progeny in this circuit, do we affirm.

The original conviction was for murder in the first degree in the New York state courts. Appellant, Carlos Ortiz, his brother Alfredo and one Doel Valencia each had confessed to the October, 1964, killing of Alexander Helmer, a resident of the Bronx, in the course of robbing him. The confessions were held voluntary following a Huntley hearing. While there apparently is a pending habeas case relating to the voluntariness of Alfredo’s confession, no claim is advanced here that any of the three were involuntary, much less appellant’s. The only basis for the convictions was the confessions, since there was no evidence independent of the confessions having a connection to the appellant. That is to say, there were no witnesses to the slaying, and there was no scientific evidence that would have connected appellant or his codefendants to the scene of the crime. True, two Bazooka bubble gum wrappers were found in the deceased’s apartment, but it was only through appellant’s own confession, in which he stated that he left Bazooka wrappers at the scene, that they were tied to him.

Bruton, it will be recalled, held that the sixth amendment confrontation rights of the defendant Bruton, who had made no admissions or confessions, had been violated by the admission of a confession of his codefendant, Evans, who did not take the stand, even though the trial court — following Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957)—had charged the jury that the codefendant’s confession should be disregarded in determining Bruton’s guilt or innocence. Catanzaro held that because Catanzaro had himself confessed and his confession interlocked with and supported his codefendant’s confession, “no such ‘devastating’ risk attends the lack of confrontation as was thought to be involved in Bruton.” 404 F.2d at 300.

There is some question here whether the appellant's confession did “interlock,” or in the words of Judge Lasker below was “substantially identical,” with the others. Each confession involved appellant, his brother Alfredo, the third defendant, Valencia, and one “Negrito” who is said by appellant and Valencia to have done the actual stabbing of the victim. Appellant’s and Valencia’s confessions each told of the stabbing after the victim put up some resistance. All three confessions said that Alfredo Ortiz was posted as lookout, and in none of them is it claimed that he saw the actual stabbing.

Appellant claims that the confessions do not interlock: first, because Alfredo’s confession in no way covered the slaying itself; second, because the confessions placed the crime at substantially different times. Although the three confessions do not all cover the same facts, they do interlock and are consistent as regards the slaying. As to the time of commission, there is a considerable discrepancy. Appellant’s and his brother’s confessions fixed the crime at noon, while Valencia’s confession set it at 9:00 p. m. This means that one or more of the confessions is false or erroneous. But we do not think it takes away from the “interlocking” aspect of the confessions. As to motive, plot and execution of the crime they are essentially the same.

Appellant’s principal argument is that Bruton applies here because Catanzaro and progeny are really applications of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Harrington held that admission of co-defendants’ confessions after Bruton was harmless constitutional error because a statement by Harrington placed him at the scene of the crime, and other incriminating evidence was so “overwhelming . . . that this violation of Bruton was harmless beyond a reasonable doubt. . . .” 395 U.S. at 254, 89 S.Ct. at 1728. Appellant argues here that because there was no such other evidence — though on this score the Bazooka bubble gum wrappers do constitute independent evidence, albeit based on Ortiz’s own confession — the Bruton violation was certainly not “harmless beyond a reasonable doubt.” We would have to say that while the gum wrappers were perhaps not “overwhelming,” they were substantial, and they do corroborate his own statement as to his presence at the scene. We are not unmindful, moreover, of Mr. Justice White’s dissenting comment in Bruton (which did not involve the defendant’s own confession) that “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.” 391 U.S. at 139, 88 S.Ct. at 1630. Since the voluntariness of the confessions has not been argued, it would seem that here, as in Harrington, the constitutional error would be harmless.

The teaching of Catanzaro et al. is, however, that Bruton is inapplicable where co-confessions “interlock.” Existence of independent evidence linking the defendant to the scene and the crime —though there were some in Catanzaro, not alluded to except in the statement of facts — is not a factor under Catanzaro. The Catanzaro rationale is that the “ ‘devastating’ risk” that a jury will not be able to disregard the codefendant’s confession is not present when the defendant’s own confession is in evidence. 404 F.2d at 300.

This rationale does not seem to go, however, to the second underpinning of Bruton, viz., that the credibility of a co-defendant’s confession is “inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully ...” 391 U.S. at 136, 88 S.Ct. at 1628. The element of unreliability, as the Court said, is “intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.” Id. Despite the defendant’s own confession, the jury may still look to the incriminating statements of a codefendant, or to the cumulative impact of those statements coupled with the defendant’s own statements, to find the defendant’s guilt— despite the “placebo” of curative instructions. Cf. People v. Jackson, 22 N.Y.2d 446, 293 N.Y.S.2d 265, 239 N.E. 2d 869 (1968) (separate trials ordered for three codefendants, all of whom had confessed). And while no issue of voluntariness has here been raised, the fact is that if in the separate habeas case now pending, Alfredo’s confession is held to have been made involuntarily, inadmissible evidence will have been used to convict his brother, the appellant here.

Thus, we are somewhat uncomfortable with the implications of Catanzaro. Yet it is now the law of this circuit. It was followed in United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969), and in United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972), although Sloan rested on the alternative ground of harmless error. If it is to be overruled, it will have to be by the Supreme Court, absent the requisite en banc vote which — through prior circulation of this opinion — has not ensued.

Here we emphasize that there is no issue of voluntariness of any of the co-defendants’ confessions. Nor is there any content of the codefendants’ confessions that implicates appellant any more in the commission of the crime than does his own confession — in fact, of the three, his own is the most significant.

We therefore affirm the judgment below.

      . United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1972); United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969); United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2d Cir. 1969). See also Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971). While these cases, as well as appellant’s, were tried before Bruton, Bruton is to be applied retroactively, both ns to state and federal prosecutions. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

      . Supreme Court, Bronx County (Lyman, J.), aff'd, People v. Ortiz, 30 A.D.2d 510, 294 N.Y.S.2d 625 (1st Dep’t 1968), aff’d, 25 N.Y.2d 863, 303 N.Y.S.2d 879, 250 N.E.2d 872 (1969), cert. denied, 397 U.S. 1011, 90 S.Ct. 1242, 25 L.Ed.2d 425 (1970). It should be noted that Chief Judge Fuld and Judge Burke of the Court of Appeals concurred solely because they considered themselves bound by People v. McNeil, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d 383 (1969), which in turn relied heavily on Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970).

      . A disinterested witness had testified that she saw the victim alive between 7:00 p. m. and 7:30 p. m.

      . Mr. Justice White's comment was male in discussing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the purport of which was that the trial judge must not permit the jury to hear the defendant’s own confession until there lias been at least a trial court finding of voluntariness after a hearing out of the presence of the jury.

      . The Tenth Circuit has said that it is a “legal nicety” whether the case is “without” Bruton (per Catanzaro), or “within” it but with only harmless error (per Harrington). Metropolis v. Turner, supra, 437 F.2d at 208-209. This circuit has relied on both Catanzaro and Harrington in United States ex rel. Dukes v. Wallack, 414 F.2d 246, 247 (2d Cir. 1969).

      . Bruton does not quite speak of a “devastating risk” as such, but rather speaks of “risk” in saying,
      Nevertheless, ns was recognized in Jackson v. Denno, supra, there are some contexts in which the risk that the jury will not, or cannot follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.
      391 U.S. at 135, 88 S.Ct. at 1627. The Court then goes on to refer to the incriminations in the codefendant’s confession being “devastating” to the defendant. 391 U.S. at 136, 88 S.Ct. 1620.

      . See United States v. Delli Paoli, 229 F.2d 319, 321 (2d Cir. 1956), aff’d, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John STANFORD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Joe Louis BECTON, Defendant-Appellant.
    Nos. 72-1758, 72-1759.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 8, 1973.
    Decided March 30, 1973.
    Robert W. Andrews (Court appointed), Memphis, Tenn., on brief, for appellant Stanford.

      J. Harold Ellis (Court appointed), Memphis, Tenn., on brief, for appellant Becton.
    Johnnie L. Johnson, Jr., Asst. U. S. Atty., Memphis, Tenn., for appellee; Thomas F. Turley, Jr., U. S. Atty., Memphis, Tenn., on brief.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

Appellants were convicted on all counts of a four-count indictment: Count 1 charged them with possession and control of unregistered distilling apparatus in violation of 26 U.S.C. § 5601(a)(1); Count 2 charged willful and unlawful making of fermented mash, in violation of 26 U.S.C.A. § 5601(a)(7); Count 3, the unlawful production of spiritous liquors in violation of 26 U.S.C. § 5681 (c); and Count 4, the unlawful possession of property intended for use in the production of spiritous liquors, in violation of 26 U.S.C. § 5686(a). The two appeals were separately filed and briefed but were argued together and have been consolidated in this opinion.

On February 18, 1971, Police Detective Childers received information from an informant that a whiskey still was being operated in the north section of Memphis, Tennessee. Accompanying the informant to the still site, Detective Childers found that the still was located in an open field which was filled with junk cars, garbage and trash. The cooker, covered with garbage and debris, was concealed in a hole in which a fire had been burning. Concealed beneath the trash and garbage was a cave about three feet high and four feet wide. Inside the cave was a large pot made of two 55-gallon drums welded together, eight barrels, some plywood, a tarpaulin and some boxes. No signs were posted around the area designating it as a distillery that was registered with the United States Treasury Department. It was estimated that the still had been in operation for approximately two months.

Having located the still, a surveillance of the still site was begun on February 18, 1971. On the evening of February 23 it was determined that the still was in operation and the officers took their various positions in connection with the surveillance. Some of them remained in automobiles on Levee Road, which ran alongside the dump, and two agents concealed themselves in the dump about 25 yards from the still. At approximately 7:00 or 7:30 p. m. Appellants Stanford and Becton were seen walking eastwardly on Levee Road. They left the road ánd walked through the dump, stopping approximately 60 yards from the position of the two agents and approximately 85 yards from the still. They crouched down, got up, walked back onto Levee Road and began walking along the road. The agent in charge of the operation ordered by radio the other officers in the vicinity to stop them and the officers stationed in automobiles stopped and arrested Appellants. The officers testified that both smelled of wood-smoke, Stanford’s right pant leg was wet from the knee down and he had mash residue on his trousers, and both had mud on their shoes. Becton made a statement to the effect that he had been arrested for liquor violations before “but not for a little toy like that little thing down there.”

After the arrest, the still was observed by the agents and found to be in operation. A plaster cast of a footprint located about twenty paces from the still site was found to match Stanford’s boot. Also, soil samples taken from the area around the still site were found to match soil taken from both Appellants’ boots. Stanford’s motion to suppress, based on a lack of probable cause for his arrest, was denied by the District Court.

Appellants attack the validity of their arrests and the seizure of their clothing and contend that the District Court improperly denied their motions of acquittal because the evidence was insufficient to sustain their conviction. Because we find that the evidence was insufficient to sustain the convictions we find it unnecessary to consider the validity of the arrests.

In considering whether the evidence is insufficient to support a judgment of conviction, an appellate court will reverse the judgment only if it is not supported by substantial and competent evidence. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), rehearing denied, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222. “In making such a determination the Court must take that view of the evidence with inferences reasonably and justifiably to be drawn therefrom most favorable to the Government, without weighing the evidence or determining the credibility of the witnesses.” United States v. Conti, 339 F.2d 10, 13 (6th Cir. 1964).

Having carefully reviewed the evidence in the light most favorable to the Government, we do not find that it is sufficient to sustain Appellants’ convictions. Neither Appellant was seen closer than 75 to 85 yards from the still. Neither had been seen in the area during the five previous days of surveillance. While evidence of footprints and soil samples was introduced, there was no evidence from which could be inferred Appellants’ presence at the still during its operation. Presence at the still site, without more, is not sufficient to support a conviction for illegal possession and control of distilling apparatus. United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947). In both Romano and Bozza the defendant was seen at the site of the still, inside a private building. Here, Appellants were seen in a field used as a public dump, some 85 yards away from the still. The statutes relating to the operation of an illegal still require proof of the specific offense charged. As the Supreme Court said in Bozza v. United States, supra:

“The Internal Revenue statutes have broken down the various steps and phases of a continuous illicit distilling business and made each of them a separate offense. Thus, these statutes have clearly carved out the conduct of making mash as a separate offense, thereby distinguishing it from the other offenses involving other steps and phases of the distilling business. Consequently, testimony to prove this separate offense of making mash must point directly to conduct within the narrow margins which the statute alone defines. One who neither engages in the conduct specifically prohibited, nor aids and abets it, does not violate the section which prohibits it.” 330 U.S. at 163, 67 S.Ct. at 647.

Appellants were charged with the specific acts of possession, making and fermenting of mash, and working in an illegal distillery. The evidence does not sustain the commission of any of these specific offenses by the Appellants. The Government failed to show that Appellants committed an act specifically proscribed by the statutes under which they were charged. Their convictions must be reversed. Accordingly, the judgment of the District Court denying Appellants’ motions for acquittal is reversed.

      . Section 5601 (a) (1) provides that any person who “has in his possession or custody, or under his control, any still or distilling apparatus set up which is not registered, as required by section 5179(a) . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. . . .”

      . Section 5601(a)(7) provides that any person who “except as otherwise provided in this chapter, makes or ferments mash, wort, or wash, fit for distillation or for the production of distilled spirits, in any building or on any premises other than the designated premises of a distilled spirits plant lawfully qualified to produce distilled spirits, or removes, without authorization by the Secretary or his delegate, any mash, wort, or wash, so made or fermented, from the designated premises of such lawfully qualified plant before being distilled . . . shall be fined not more than $10,000, or imprisoned not more than 5 years, or both. }>

      . Section 5681(c) provides that “[e]very person who works in any distillery, or in any rectifying, distilled spirits bottling, or wholesale liquor establishment, on which no sign required by section 5115(a) or section 5180(a) is placed or kept, and every person who knowingly receives at, or carries or conveys any distilled spirits to or from any such distillery, or to or from any such rectifying, distilled spirits bottling, or wholesale liquor establishment, or who knowingly carries or delivers any grain, molasses, or other raw material to any distillery on which said sign is not placed and kept, shall forfeit all vehicles, aircraft, or vessels used in carrying or conveying such property and shall be fined not more than $1,000, or imprisoned not more than 1 year, or both.”

      . Section 5686(a) provides that “[i]t shall be unlawful to have or possess any liquor or property intended for use in violating any provision of this chapter or regulations issued pursuant thereto, or which has been so used, and every person so having or possessing or using such liquor or property, shall be fined not more than $5,000, or imprisoned not more than 1 year, or both.”

      . The United States, in its brief, has summarized the evidence in the following manner:
      “The record shows that Detective Childers received information on February 18, 1971, that a whiskey still was being operated east of Thomas Street, north of Levee Road, on the south side of the Wolf River, in Memphis, Tennessee. A surveillance was set up on that date at the still site at 7:00 p. m. on February 28, 1971. The defendant and Joe Louis Becton were seen approaching the still site from Levee Road. The defendant and Joe Louis Becton dropped down in the tall grass upon noticing that the whiskey still was under surveillance.
      “The Defendant and Joe Louis Becton were fifty yards from the point where Special Agents Robert W. St. John and Jerry W. Robinson were positioned near the whiskey still. The Defendant and Joe Louis Becton then changed their direction and headed south toward Levee Road where they were arrested.
      “Detective Childers testified that as he approached the Defendant John Stanford he noticed his right pants leg was wet from the knee down and he smelled the unmistakable odor of wood smoke on the Defendant John Stanford and Joe Louis Becton. 1-Ie further testified that he saw mash on the front of John Stanford’s clothing.
      “The whiskey still was observed that night and was found to be in operation and a fire was underneath the still cooking pot. There was a washtub with several gallons of whiskey in it. The smoke pipe that had been placed inside the cave was taken out and it was in the outside of the cave and smoke was protruding out of the stack. The tops liad been taken off the barrels and they were open. There was a drip bucket underneath tire thumper coil and the drip bucket was almost full of whiskey.
      “A plaster of paris cast was taken of the footprints of the Defendant John Stanford twenty paces from the whiskey still.
      “The soil sample taken from the boots of the Defendant John Stanford was the same that was found in the bootprints of the Defendant John Stanford twenty paces from the still site. The soil removed from Defendant John Stanford’s pants leg was the samo soil that was taken from his bootprint at the still site. The soil taken from inside the cave was the same soil that was taken from John Stanford’s boots.
      “The defendant’s pants contained mash residue.
      “The soil removed from the shoes of Joe Louis Becton was the same soil as that from the cooker inside the cave.”


author: McENTEE, Circuit Judge.

text:
    LEXINGTON INSURANCE COMPANY, Plaintiff, Appellant, v. ABARCA WAREHOUSES CORPORATION et al., Defendants, Appellees.
    No. 72-1054.
    United States Court of Appeals, First Circuit.
    Heard Feb. 6, 1972.
    Decided April 2, 1973.

      Jose L. Novas-Dueno, San Juan, P. R., with whom Hartzell, Ydrach, Mellado, Santiago, Perez & Novas, San Juan, P. R., were on brief, for appellant.
    Eli B. Arroyo, San Juan, P. R., and Rieckehoff, Calderon, Vargas & Arroyo, San Juan, P. R., on brief for appellees.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

In this diversity suit Lexington Insurance Company seeks recovery from a contractor, Abarca Warehouses Corporation, and its insurer, Great American Insurance Company, for a sum Lexington paid its insureds, Puerto Rico Industrial Development Corporation (Pridco) and Hilton Hotels International, as indemnity for damages resulting from a fire which occurred on their property allegedly as the result of the negligence of an Abarca employee.

The underlying facts may be summarized as follows. In April 1965 Lexington issued an all-risk policy to Pridco and Hilton covering any loss which they might incur from their ownership and operation of the Caribe Hilton Hotel. Approximately one year later Hilton entered into a contract with Abarca in which the latter agreed to install a large force-draft cooling tower on the hotel premises. The fire in question broke out in the construction area on March 13, 1967. As a result of this incident, Hilton sustained losses in the amount of $34,277.10 and, on June 7, 1968, pursuant to the terms of its policy, Lexington paid Hilton this amount. Thereafter, on January 14, 1971, some four years after the fire, Lexington initiated this action against Abarca and Great American. The defendants moved to dismiss the complaint on the ground that the cause of action sounded in tort and was thus barred by the one-year statute of limitations applicable to such actions. Lexington countered that the appropriate limitations period was fifteen years, the period applicable to suits in contract. It contended that its right to recover was based upon the failure of Abarca to perform its contract with Hilton in a safe and workmanlike manner. The district court, 337 F.Supp. 902, granted defendants’ motion to dismiss and this appeal followed. For the reasons set forth below, we affirm.

The primary issue before us is whether the trial court was correct in concluding, as a matter of Puerto Rican law, that Lexington’s complaint sounded in tort rather than in contract. In considering this question we note at the outset the fundamental doctrinal distinction between these two types of action. As Dean Prosser states:

“The fundamental difference between tort and contract lies in the nature of the interests protected. Tort actions are created to protect the interest in freedom from various kinds of harm. The duties of conduct which give rise to them are imposed by the law, and are based primarily upon social policy, and not necessarily upon the will or intention of the parties. . Contract actions are created to protect the interest in having promises performed. Contract obligations are imposed because of conduct of parties manifesting consent, and are' owed only to the specific individuals named in the contract. Even as to these individuals, the damages recoverable for a breach of the contract duty are limited to those reasonably within the contemplation of the defendant when the contract was made, while in a tort action a much broader measure of damages is applied.” [Footnotes omitted.] W. Prosser, Law of Torts, § 93 at 634 (3d Ed. 1964).

Mindful of these distinctions, we feel that it is very unlikely that the fire losses which occurred in the instant case were within the contemplation of Hilton and Abarca when they executed their agreement. It is of course clear that Abarca would be liable for breach of contract if it had failed to erect the tower or if its performance of this obligation were in some manner deficient. In the absence of a provision in the agreement which would indicate that the parties intended to allocate liability for damages which might arise as the result of negligent conduct during the course of construction, however, Hilton and its subrogee Lexington are left to traditional tort remedies, not with an action in contract, to recoup these losses. Cf. Bickford v. Richards, 154 Mass. 163, 27 N.E. 1014 (1891). In addition, in Puerto Rico it is well settled that when one party to a contract is injured through the fault or negligence of the other party, the aggrieved individual’s right of recovery ordinarily lies in tort in spite of the pre-existing contractual relationship. As we have recently observed in an analogous context:

“Although ordinarily the one year tort limitation does not apply to contract actions, Ruis et al. v. Mercado & Sons, 38 P.R.R. 525 (1928), in Puerto Rico there is a well recognized exception to this general rule where the damages arise out of the commission of a tort. Buso v. Martinez, 18 P.R.R. 994 (1912). In that case, as in the instant one, the damage was caused through fault or negligence although it arose by reason of contract. The Supreme Court upheld the action of the trial court in sustaining defendant’s demurrer on the ground that the damages claimed arose through the fault or negligence referred to in § 1803 of the Civil Code (now § 5141), and therefore the action was prescribed by the one year statute.” Fraticelli v. St. Paul Fire and Marine Insurance Co., 375 F.2d 186, 188-189 (1st Cir. 1967).

Finally, in this case we consider the tort-contract question solely in order to determine the appropriate statute of limitations. Under this circumstance, the fact that limitation periods applicable to negligence actions are ordinarily shorter in duration than those applicable to suits upon written contracts because the former actions are usually based upon evidence of a more ephemeral nature becomes relevant. Mindful of the potential unfairness in permitting “the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared,” Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944), we would find it very difficult to justify the application of a fifteen year statute of limitations to Lexington’s claim.

Given the Buso v. Martinez, 18 P.R.R. 994 (1912), line of authority and the fact that Lexington’s cause of action was based upon losses caused by the alleged negligence of one of Abarca’s employees, we find that the district court did not err in concluding that this cause sounded in tort rather than in contract and was thus barred by the applicable one-year statute of limitations.

Affirmed.

      . 31 L.P.R.A. § 5298 provides in pertinent part that:
      “The following prescribe in one year:
      “1. . . .
      “2. Actions to- demand civil liability . . for obligations arising from the fault or negligence mentioned in section 5141 of this title, from the time the aggrieved person had knowledge thereof.”

      . 31 L.P.R.A. § 5294 reads as follows:
      “A mortgage action prescribes after twenty years, and those which are personal and for which no special term of prescription is fixed, after fifteen years.”
      This provision has been held to apply to actions for breach of contract. See, e. g., Saavedra v. Central Coloso, Inc., 85 P.R. R. 404 (1962); Segarra v. Vivaldi, 55 P.R.R. 153, 155-156 (1939).

      . Although the agreement between Hilton and Abarca is not in the record and thus is not before us, Lexington has not alleged that a provision of this sort was included in the contract.

      . The cases on which Lexington relies are distinguishable from the ease at bar and from Buso v. Martinez, 18 P.R.R. 994 (1912). In Quinones v. Municipality of Ponce, 92 P.R.R. 571 (1965), Camacho v. Catholic Church, 72 P.R.R. 332 (1951), and Maldonado v. Municipality of Ponce, 39 P.R.R. 226 (1929), the conduct complained of, the desecration of burial plots previously sold to the plaintiffs, constituted not only a tort but also a breach of the defendants’ continuing contractual obligation to preserve and care for the graves. Similarly, in Arroyo v. Caldas, 68 P.R.R. 639 (1948), plaintiff’s suit for personal injuries was based primarily on the defendant landlord’s breach of his continuing statutory duty to perform all necessary repairs on the leased premises. .see 31 L.P.R.A. § 4051, rather than on his negligence in permitting a dangerous condition to remain unremedied in the leasehold.