author: LEWIS, Chief Judge.

text:
    George SHIMABUKU et al., Plaintiffs-Appellants, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees. Ernest NORMAN et al., Plaintiffs-Appellants, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees. Christopher T. GLUMB, Plaintiff-Appellant, v. Samuel J. BRITTON, Warden, United States Penitentiary, et al., Defendants-Appellees.
    Nos. 73-1323, 73-1396 and 73-1420.
    United States Court of Appeals, Tenth Circuit.
    Sept. 10, 1974.
    Rehearing Denied Oct. 4, 1974.

      Ronald L. Roseman, Kansas City, Mo. (Stanley A. Bass, New York City, Robert Claus, Kansas City, Kan., Allen M. Ressler, Shelton, Wash., with him on the brief), for appellants.
    Robert J. Roth, U. S. Atty., Topeka, Kan. (Monti L. Belot, and Bruce E. Miller, Asst. U. S. Attys., Topeka, Kan., with him on the briefs), for appellees.
    Before LEWIS, Chief Judge, DUR-FEE', Judge, Court of Claims, and BARRETT, Circuit Judge.

       Court of Claims, Washington, D.C., sitting by designation.

   LEWIS, Chief Judge.

These cases originated in three separate actions, each brought by a prisoner at the United States Penitentiary at Leavenworth, Kansas. ' Generally, the appellants challenge the constitutionality of prison regulations and procedures pursuant to which they were investigated for, and confined in segregation for, infractions of prison disciplinary rules. Significantly, in each case the facts underlying the particular disciplinary infraction have overtones indicating the potential of a subsequent federal criminal prosecution.

The district courts, treating each complaint as an application for habeas corpus relief, held that appellants were entitled to no relief whatsoever. Shimabu-ku v. Britton, 357 F.Supp. 825, 827 (D. Kan.1973); order filed May 3, 1973, in consolidated cases Norman v. Britton, L-2532, and Giumb v. Britton, L-2529 (D.Kan.). While the appeals from the district courts were pending, the Supreme Court decided Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), in which it was held, inter alia, that certain of Nebraska’s prison regulations governing the conduct of state prison disciplinary proceedings failed to satisfy the minimal requirements of constitutional due process.

In order to determine precisely the impact of Wolff on these appeals, we must first examine both the facts involved in appellants’ complaints and the applicable Bureau of Prison regulations.

I

A. Shimabuku et al.

The facts were stipulated and are set out in the opinion below as presented to the district court. 357 F.Supp. at '827-832. They may be summarized as follows.

On June 14, 1972, inmate Morrow was found dead as the result of numerous knife wounds. Thereafter, each of the named appellants was removed from the general prison population and confined in one of the penitentiary’s two control (or “segregation”) units. On June 22, a penitentiary employee, H. E. Bailey, filed with prison officials reports in which all appellants except Coleman and Williams were charged with “investigation of possible involvement in inmate homicide.” Coleman was charged with “suspicion of involvement in inmate homicide,” Williams with “suspicion of involvement in inmate homicide and unaccountable absence from institutional assignment.”

Bailey’s reports were based, at least in part, on information received by penitentiary employees from “unofficial sources.” Thus, it was reported that appellants Shimabuku, Brown, James, and Graven had actively participated in the killing of Morrow; that appellant Williams was missing from his assignment area for about two hours during the time of the killing, that he had told an unidentified informer of his plan to kill another inmate, and that he was later seen by the same informer, first entering the area where Morrow was found and then coming out alone; and that appellant Coleman had offered a bribe to an unidentified person to “get his friends off the hook.” Penitentiary employees indicated further that the FBI had informed them that an inmate had admitted serving as a lookout and that appellant Pineda was near the incident area during the time of the killing.

On June 26, the penitentiary’s Adjustment Committee held individual hearings for each of the appellants. At each hearing the appropriate report of Bailey and Lt. J. A. Junk, who as control unit supervisor had previously questioned each appellant, was read to the appellant. The same report had also been read earlier to the particular appellant, although none had received a written report. The members of the committee then asked questions. The appellants’ responses thereto and the report itself were the only evidence received by the Adjustment Committee in each of the hearings.

. The record shows that none of the appellants was advised, either at the hearing or at any earlier time, that he had any rights in respect to the conduct of the hearing or the questioning that preceded it. None of the appellants was permitted during his hearing to cross-examine or confront his accuser, to present witnesses or any other evidence, to be represented by counsel, or to have access to the committee’s records and reports. None was advised that anything said before the committee would be summarized in a report that later could be used in a federal criminal prosecution, jftf 11, 18, and 20, Stipulated Facts, .357 F.Supp. at 829-831.

At the time the facts were stipulated in the district court, no written report had yet been issued by the committee in which its findings or conclusions were set out. The record fails to show whether such a report was ever issued or whether any adverse report of any kind was included in the official case records of the appellants. Indeed, the record fails to show the disposition of the disciplinary proceedings altogether. In its brief, the United States asserts that none of the appellants has ever been charged, either administratively or criminally, in connection with the murder of inmate Morrow and that none of the appellants remains confined in segregation as a result thereof. It is clear that appellants Graven and Brown were released from the control unit in August 1972, but nothing is said of the others. 357 F.Supp. at 832.

Seeking both declaratory and injunc-tive relief, Shimabuku alleged in his complaint that, in the course of the aforementioned disciplinary proceedings, he was not accorded the protection of certain procedural safeguards to which he was' entitled under the fifth amendment. Specifically, he claimed that where a prison disciplinary infraction involves facts which, if proven, also constitute a federal criminal violation, the prisoner is entitled to advance written notice of the disciplinary charges; the presence of retained counsel at the disciplinary hearing; an opportunity to confront and cross-examine adverse witnesses, call witnesses, and present evidence ; access to all relevant prison records; an impartial hearing board; a written decision based on clear and convincing evidence; written reasons for any sanctions imposed; a means of review; and freedom from segregated confinement except on a showing of a need for institutional security or safety. It was further argued that the failure to accord these safeguards was aggravated, and the right to them made more clear, by the self-incrimination which was threatened by the Bureau of Prisons’ practice of providing disciplinary reports to the FBI for its use in subsequent federal criminal prosecution.

The district court considered the merits of Shimabuku’s constitutional claim and concluded that the class members “have been and are accorded hearings meeting the due process requirements of the Federal Constitution, and that the plaintiffs are entitled to no relief” 357 F.Supp. at 827. Thus, it was constitutionally sufficient that, as the court found, each plaintiff had been confronted at the disciplinary hearing with the accusation against him, informed of the evidence against him, and afforded a reasonable opportunity to explain his actions. In regard to the fifth amendment self-incrimination claim, the court referred approvingly to Sands v. Wainwright, D.C., 357 F.Supp. 1062, vacated on jurisdictional grounds, 5 Cir., 491 F.2d 417, cert. denied sub nom. Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771, in which it was held that a prisoner is entitled to use immunity in a subsequent criminal prosecution, such that his statements in the prison’s prior disciplinary proceeding may not be used affirmatively against him.

B. Norman and Glumb

On March 24, 1973, fires were set in the penitentiary’s industrial area. Soon thereafter, both Norman and Glumb were confined in the penitentiary’s segregation unit, apparently on suspicion of arson. As appears from Norman’s complaint, both appellants were subsequently questioned by FBI agents in regard to the setting of the fires. Appellants state that they were compelled by prison officials and by the situation of their segregated confinement to submit to this questioning.

Appellants originally claimed that their continued confinement was, by itself, a violation of their due process right to be free from such confinement and its resultant loss of privileges, unless imposed pursuant to findings of a properly conducted disciplinary proceeding. It is not clear from the record whether, in fact, any disciplinary hearing was ever held. Appellants’ primary claim, however, was that, during the course of the FBI investigation, they were entitled to the assistance of counsel for the purpose of preserving from prejudice their ability to defend effectively in any subsequent criminal prosecution. In their brief, appellants’ arguments are now more elaborately stated, and the issues presented are identical to those in Shimabulm.

Based upon its review of the allegations made by Norman and Glumb, the district court dismissed the complaints, stating that “it appears beyond doubt that neither petitioner could prove facts which would entitle him to relief.” Order, filed May 3, 1973, in Nos. L-2532 and L-2529 (D.Kan.).

C. Bureau of Prisons Policy Statements

With some exceptions, the applicable regulations are Bureau of Prisons Policy Statements 7400.5A and 2200.1. Neither regulation provides any explicit guidance in regard to the conduct of disciplinary investigations or proceedings. Under Policy Statement 7400.5A, the responsibility for inmate discipline is delegated by the head of the institution to the Adjustment Committee, which “shall receive reports of misconduct, conduct hearings, make findings, and impose disciplinary actions.” The committee is authorized to prescribe that a prisoner be confined in segregation and may recommend the withholding or forfeiture of good-time allowances. The prisoner’s case records must reflect all misconduct charges, committee dispositions, and interpretive and evaluative statements made in respect thereto. Such records are available as necessary to the United States Board of Parole. Whenever charged misconduct also appears to violate federal criminal statutes, the head of the institution is directed to refer the facts to the appropriate federal investigative agency. Moreover, whenever such a referral is made, all Bureau of Prisons personnel are required to make available all information and evidence bearing upon the apparent offense.

Policy Statement 2200.1 provides that when an investigation of a prison infraction that also constitutes a violation of a federal statute is narrowed down to several suspects, no further questioning may occur until the suspects are informed of their rights. See Attachment 1 to Policy Statement 2200.1. This recitation of rights is essentially that required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

On June 6, 1972, Policy Statement 7400.5A was superseded by Statement 7400.5B, also entitled “Inmate Discipline.” The new regulation made significant changes to the old one. Thus, for example, 7400.5B required that each inmate be advised in writing of particular rights and correlative responsibilities in respect of his confinement at the institution. Inmates also would be advised specifically of those acts prohibited within the institution.

With respect to the conduct of prison disciplinary proceedings, 7400.5B required that inmates be afforded written notice of disciplinary charges within 24 hours of being confined in segregation. The investigation of the charges must be accomplished with comparable haste, the reporting official being ineligible to investigate his own charge. Neither the reporting nor the investigating official may sit on the Adjustment Committee. The record of each inmate in segregation shall be reviewed at least once a week. Upon making its decision on the charge, the committee must provide its conclusions, the reasons therefor, and the proposed disposition in writing. The inmate himself must also be advised in writing.

II

In Wolff v. McDonnell, supra, Nebraska state prisoners brought a civil rights action under 42 U.S.C. § 1983, challenging as unconstitutional regulations governing the conduct of prison disciplinary proceedings held on charges of serious misconduct. By Nebraska law, statutory good-time credits accumulated by prisoners could be forfeited only upon a determination of serious misconduct. The Court considered whether the prisoners’ interest in the conduct and the outcome of the disciplinary proceedings was sufficiently substantial so as to fall within the scope of due process protection required of fourteenth amendment liberties. So finding, the Court concluded that the regulations were constitutionally inadequate because they failed to require that inmates be provided advance written notice of charges against them and because they failed to require that written factfindings and reasons for the disciplinary action taken be provided.

Thus, we begin here by asking whether the interests now sought to be vindicated by the appellants are sufficiently substantial that the protections of due process should have been afforded to them during the events that followed the murder of Morrow and the industrial area fires.

As a starting point, it is clear that, although “prisoners’ rights” must necessarily accommodate the needs and objectives of the prison regime to which they are committed, Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356, prisoners still enjoy generally the protection of the Constitution. See, e. g., Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263; Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418; Johnson v. Avery, 393 U. S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718. In short, the appellants’ constitutional claims may not be disregarded out of hand. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652. Thus, if a constitutionally protected interest can be made out, and if some harm thereto can be shown that is sufficiently grievous and that cannot be justified by the exigencies of incarceration, then a proper case for relief exists. See Morrissey v. Brewer, 408 U.S. 471, 481-484, 92 S.Ct. 2593, 33 L.Ed.2d 484; Board of Regents v. Roth, 408 U.S. 564, 570-572, 92 S.Ct. 2701, 33 L.Ed.2d 548; Goldberg v. Kelly, 397 U.S. 254, 260-266, 90 S.Ct. 1011, 25 L.Ed.2d 287.

Following this line of inquiry, and having considered appellants’ argument, that the regulations governing their disciplinary proceedings were constitutionally inadequate, we feel constrained at the outset to notice a fatal flaw therein. No disciplinary proceeding disposition has been shown, adverse or otherwise, by any appellant. Neither a report nor any kind of summary is available as a result of any of appellants’ proceedings. No connection has been made between the disciplinary procedures that, allegedly, were inadequate and that consequently failed to protect the appellants’ due process interests, and the harm or deprivation that appellants allegedly have suffered, or would have suffered, as a result of those procedures. Concededly, litigants generally are not burdened with showing special damages in order to vindicate a constitutionally protected interest, and we do not suggest that such a burden should have been shouldered by these appellants. But here, the claim is a denial of due process, and we believe that any failure to afford such process can be illustrated only in terms of its potential impáct on the protected interest — that is, in terms of how it compromises the protected liberty.

We are persuaded in this conclusion by the presence of two factors. First, .we understand that a disciplinary proceeding disposition, if it were adverse, could, depending upon the reasons therefor, impact appellants in the following way: (1) by affecting their chances for parole; (2) by causing a possible forfeiture of good-time allowances; (3) by causing a loss of privileges while in segregation; and (4) by possibly prejudicing a subsequent criminal prosecution. And we cannot deny that the cumulative weight of these potential impacts makes a strong case in favor of appellants’ entitlement to some degree of due process protection. Nonetheless, on this record and for the reasons proposed by appellants, none of these impacts is possible here. Each, at least in part, turns on the disposition of the disciplinary hearing. The appellants have not, however shown that any could possibly have been .realized. Furthermore, given that an institutional investigation may be begun, that segregation may be imposed, and that the Adjustment Committee may act in respect of a particular prisoner for reasons other than punishment, it does not seem harsh that we should require some showing of the particular action by which appellants were purportedly “condemned to suffer grievous loss.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (Frankfurter, J., concurring), quoted in Morrissey v. Brewer, 408 U.S. at 481, 92 S.Ct. 2593.

Second, in Wolff, the Court held that due process requirements in prison disciplinary proceedings need not be applied retroactively so as to require that prison records containing disciplinary dispositions, compiled in violation of due process requirements, be expunged. 418 U.S. at 573, 94 S.Ct. 2963. Thus, even were we to reach appellants’ due process argument, and were they to prevail thereon, the sole available remedy would be prospective relief from the challenged regulations. Effectively, new regulations would have to be written. But, as has been shown, new regulations have in fact been written, ones which we believe satisfy Wolff, and it thus appears that appellants have already received everything for which they asked and which could in any event have been granted. The due process claim being effectively mooted, we hold that appellants are entitled to no relief in respect of that argument.

Appellants have also argued that the failure to be advised of their rights during the investigations (particularly those conducted by FBI agents) and during the disciplinary proceedings, violated their fifth amendment privilege against compulsory self-incrimination, because they are now threatened with the possible use of their own prior statements should they subsequently be prosecuted for violations of federal criminal statutes.

In Shimabuku, the appellants were not advised of their rights during the investigation of the murder of Morrow. Policy Statement 2200.1 required that they be so advised “as soon as the investigation . . . narrowed down to several suspects.” Appellants in Shi-mabuku are concerned also that statements made by them during their disciplinary proceedings might be used against them at a subsequent criminal prosecution. This possibility, they contend, poses an unconstitutional dilemma to the prisoner who endeavors to defend himself in a disciplinary proceeding. We disagree.

As the district court indicated, protection of appellants’ interests in any subsequent criminal prosecution can best be effected at the time of that prosecution. The appellants would then be entitled to “use immunity” in regard to prior statements given at the disciplinary proceeding. The trial court in that prosecution can consider, with the benefit of hindsight, the special informalities and the peculiar circumstances, if any, of the prior proceedings and treat specifically the questions raised in regard to the admission of evidence. Thus, the competing considerations of the imperative nature of the self-incrimination privilege and the requirements of prison discipline may be accommodated. Accordingly, on this point we affirm the decision of the district court in Shimabuku.

The same argument in Norman and dumb presents more difficult problems. The Supreme Court has recently made clear that it will not countenance the dismissal of a prisoner’s complaint that alleges constitutional deprivations where the lower court concludes, on the basis of the “wide discretion” vested in prison officials as to disciplinary matters, that no claim for relief was stated. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652; see also Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263; Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030. In Haines, the prisoner alleged, among other things, that he had suffered bodily injury while in disciplinary confinement. In both Cruz and Cooper, petitioners alleged that prison officials had denied them certain religious privileges available to other prisoners and that such discrimination violated their fundamental first amendment freedom of religion.

In Norman and dumb, appellants have attacked the adequacy of regulations which, they claim, fail to provide the necessary protection against prejudice in any subsequent criminal prosecution. No special circumstances of arbitrary and capricious action or discriminatory application are alleged. The challenge is aimed squarely at the regulations.

In consideration both of our holding in Shimabuku on the same issue, and of the evident, singular implication of the allegations made by Norman and Glumb in regard to that issue, we are satisfied that the district court was correct in holding as it did, that the appellants here are entitled to no relief. Their entitlement to use immunity in a subsequent criminal prosecution is sufficient.

Affirmed.

      . Shimabuku, No. 73-1323, and Norman, No. 73-1396, were brought as class actions. Shimabuku was allowed to be so maintained (the class being diminished to include only appellants Coleman, Pineda, and Williams, the remaining appellants having been dismissed as not properly in forma pauperis), but Norman was denied class action status. Including Q-lumb, No. 73-1420, all three cases are now consolidated for the purpose of our review.

      . A hearing on the charge of bribery against Coleman liad previously been held on June 16.

      . The effective date of 7400.5B precedes the dates of the incidents involved in each of the cases presently before us. It was stipulated in tShi'inabuku, however, that 7400.5A was in effect and that 7400.5B was not yet implemented at any time material to the facts of that case.

      . In the same light, we could also justifiably proceed on the rationale of Rivera v. Toft, 10 Cir., 477 F.2d 534, wherein we assumed that disciplinary practices were reasonably designed to promote the necessary discipline within an institution. Similarly, we could assume on the facts of this case that a “disciplinary proceeding” without a disposition is in reality no disciplinary proceeding at all. This would be consistent with the United States’ position, that nothing more occurred in this case than the segregation of appellants during investigation of alleged infractions of prison disciplinary rules.

      . Reference solely to the changes effected by the new regulations is both appropriate and sufficient for our purposes here. Appellants have very singularly challenged the regulations in effect at the time of the incidents involved, and have argued neither that the old regulations were discriminatorily applied (see stipulation that appellants were treated “in the exact same manner” as other segregated prisoners, 357 F.Supp. at 831) nor that the prison officials acted arbitrarily or capriciously. See 357 F.Supp. at 832; and Evans v. Moseley, 10 Cir., 455 F.2d 1084.

      . See Palmigiano v. Baxter, 1 Cir., 487 F.2d 1280, 1288-1290, vacated, 418 U.S. 908, 94 S.Ct. 3200, 41 L.Ed.2d 1155 (1974); Melson v. Sard, 131 U.S.App.D.C. 102, 402 F.2d 653, 654-655; see also Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. In respect to the possibility that appellants were compromised by the pre-disciplinary proceeding investigation, we note that not all investigations give rise to a right, in the person being questioned, to be advised of his rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694. Furthermore, appellants here have stipulated, in the face of the requirement of Policy Statement 2200.1, that the prison officials at all times acted “within the rules and regulations established by the United States Penitentiary at Leavenworth, Kansas, and the United States Bureau of Prisons.” 357 F.Supp. at 832.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America and Thomas F. Harkness, Special Agent, Internal Revenue Service, Petitioners-Appellees, v. CONTINENTAL BANK & TRUST COMPANY, and Jerry W. Lynn, Cashier, Respondents-Appellants.
    No. 73-1720.
    United States Court of Appeals, Tenth Circuit.
    Argued March 18, 1974.
    Decided Sept. 10, 1974.

      William H. Adams, Salt Lake City, Utah (Peter W. Billings, Fabian & Clen-denin, Salt Lake City, Utah, with him on the brief), for appellants.
    Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Dept, of Justice, Washington, D. C., of counsel, C. Nelson Day, U. S. Atty., Salt Lake City, Utah, with him on the brief), for appellees.
    Before LEWIS, Chief Judge, DURFEE , Judge, Court of Claims, and BARRETT, Circuit Judge.

       Senior Judge, United States Court of Claims, Washington, D.C.

   LEWIS, Chief Judge.

This appeal tests the enforceability of an administrative summons issued under § 7602 of the Internal Revenue Code of 1954, 26 U.S.C. § 7602, and served upon the Continental Bank and Trust Company (“the bank”) pursuant to § 7608 of the Code, 26 U.S.C. § 7603.

The summons was issued by special agent Thomas L. Harkness of the Internal Revenue Service in connection with his investigation of the income tax liability of Wayne F. and Vola C. Belnap (“the taxpayers”), husband and wife, who were customers of the bank during at least part of the years in question, 1970-71. The summons demanded that the bank produce for examination the following items:

1. Such of [the bank’s] records as reflect deposits including deposit tickets and deposited items to the account of [the taxpayers] . . . and the account of Belnap Insurance Counselors Trust Account . . . for the period January 1, 1970 to January 1, 1972.
2. Cancelled checks drawn on the account of [the taxpayers] and the account of Belnap Insurance Counselors Trust Account for the period January 1, 1970 through February 15, 1972.

In response to the summons, the bank appeared and asserted that the examination sought to be conducted pursuant to the summons would involve an unreasonable search of the bank’s records in contravention of the fourth amendment, a taking of the bank’s property without just compensation in contravention of the fifth amendment, and an infringement upon the right of privacy of other customers of the bank and of persons named either as payees on checks written by taxpayers or as drawers on checks payable to taxpayers. Accordingly, the bank refused to testify or to produce any records for examination.

The IRS thereafter petitioned for the judicial enforcement of its summons under 26 U.S.C. §§ 7402(b) and 7604(a), the district court granted the IRS’ motion for summary judgment, and this appeal by the bank fol^wed. We affirm the judgment of the district court.

The import of appellant’s fourth amendment argument is that the summons portends an unreasonable search because of the financial burden which such a search would impose upon the appellant. Appellant has not argued, as was done in Bisceglia v. United States, 6 Cir., 486 F.2d 706, cert. granted, 416 U. S. 935, 94 S.Ct. 1931, 40 L.Ed.2d 285, that the summons is unreasonable under the fourth amendment because the IRS has failed to identify with sufficient precision either the records sought or the taxpayer being investigated. Rather, appellant’s fourth amendment argument depends here entirely on its argument made under the fifth amendment, and, as a result, our decision on the latter will be dispositive of the former. Moreover, we understand that the bank’s fifth amendment “taking” argument refers to the costs of searching and copying records and not to the costs originally incurred in generating and storing the records themselves. By the bank’s argument, then, a “taking” could occur only if the bank were ordered to comply with the summons and no provision were made for the payment of that part of the resultant costs that exceeds what is characterized by the bank as a “reasonable burden.” Thus, the question first presented is to what extent the bank may be obliged, consistent with the fifth amendment, to absorb the costs of complying with the summons.

The Third Circuit has previously considered the same question in United States v. Dauphin Deposit Trust Co., 3 Cir., 385 F.2d 129, cert. denied, 390 U.S. 921, 88 S.Ct. 854, 19 L.Ed.2d 981. There the appellant bank complained of the financial burden that would result from compliance with a summons which, it was contended, was too expansive. The court noted that the summons did not require the transportation of any records, that the bank could comply merely by providing access to its records to the IRS agents, and that the IRS had offered to provide its own copying equipment. Exposing “no doubt that the recipient of a summons has a duty of cooperation and that at least up to some point must shoulder the financial burden of cooperation,” 385 F.2d at 130, the court concluded that the enforcement of the summons would not impose a financial burden unreasonable under either the fourth or fifth amendments.

The rationale of Dauphin Deposit that the existence of a general duty to respond to a government summons justifies the imposition of some financial burden, has been variously expressed in other cases. Thus, in United States v. Jones, 351 F.Supp. 132 (M.D.Ala.1972), the court dealt rather summarily with the bank’s financial burden argument, stating that such costs should be borne by the bank as “reasonably incident to the bank’s normal operations.” 351 F. Supp. at 134. In United States v. First Nat’l Bank, 173 F.Supp. 716 (W.D.Ark. 1959), the court reasoned that the financial burden was unreasonable only where the search could be as well conducted under less expensive procedures and where, in any event, the summons was itself too expansively drafted. (The bank had claimed that compliance would cost almost $30,000.) Significantly, the court relied in part upon Brownson v. United States, 8 Cir., 32 F.2d 844, wherein it was determined that the summons power under an antecedent of 26 U.S.C. § 7602 was similar to the power set forth in analogous statutes and available in federal grand jury proceedings. Again, the court recited the citizen’s duty to produce “every man’s evidence.” 32 F.2d at 847; see also United States v. Turner, 7 Cir., 480 F.2d 272, 279; United States v. Widelski, 6 Cir., 452 F.2d 1, 4, cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; United States v. McKay, 5 Cir., 372 F.2d 174, 176; Bolich v. Rubel, 2 Cir., 67 F.2d 894, 895.

We conclude that, on the facts of the instant case, enforcement of the summons will not result in an unconstitutional “taking” under the fifth amendment. Appellant has not suggested that the summons is insufficiently precise or not issued in furtherance of a legitimate IRS purpose, except to the extent it touches incidentally on the records of third parties. See United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112. Thus, no part of the cost of the examination would be attributable to efforts not essential to the proper investigation of the taxpayers by the IRS. The bank is asked to do nothing more than to provide the IRS use of bank records that have been identified specifically by the taxpayers’ names and account numbers. Furthermore, the IRS has offered to provide the personnel and equipment required to locate and copy the needed records. The bank has estimated that its total direct costs would be approximately $1500 were it to perform this work itself. Certainly, the bank’s costs would be substantially diminished if the IRS were to perform the work, although the bank would, it contends, still incur costs for supervisory personnel who “would have to be present to minimize the disclosure of information relating to third persons.” Pretrial Order at 6. Nevertheless, we believe that this summons imposes no unreasonable financial burden on the bank. And, given our conclusion in regard to the rights of third parties, it appears from this record that the bank would in fact incur, at most, a minimal financial burden.

The question of the rights of third parties — persons other than those served with the summons — most often arises where the taxpayer being investigated seeks to intervene in the action brought to enforce the summons. Thus, in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580, the taxpayer sought to intervene to prevent the production of his employment and compensation records by his former employer and its accountant. The taxpayer contended that he was entitled as a matter of right to intervene, citing Fed.R.Civ.P. 24(a)(2) and Reisman v. Caplin, 375 U. S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459. The Court, in an effort to clarify some confusion on that point, which apparently had been engendered by Reisman itself, stated unequivocally that taxpayer intervention under Reisman was permissive, not mandatory, and that even where a taxpayer sought to prevent the production of items palpably within an attorney-client privilege, no absolute right to intervene existed. 400 U.S. at 529-530, 84 S.Ct. 508. The Court then determined that the taxpayer had no proprietary interest in the records sought, that he had no significantly pro-tectable interest under Rule 24(a)(2), and that as a result he would not be allowed to intervene. 400 U.S. at 530-531, 84 S.Ct. 508.

In the case at bar, the bank asserts derivatively the interests of parties other than the taxpayers, and suggests that as a matter of both constitutional law and statutory construction the summons may not be enforced because of its impact on those interests. We disagree. If, in Donaldson, the taxpayer himself could not intervene to assert his own interests, then our conclusion here follows perforce.

In Galbraith v. United States, 10 Cir., 387 F.2d 617, it was argued that the delivery of bank records (including can-celled checks and bank statements) to the Securities & Exchange Commission, pursuant to an administrative summons, violated the fourth and fifth amendment rights of the appellant, the bank customer under investigation. We held, inter alia, that the records were the property of the bank, that appellant had no proprietary interest in the records, and that the asserted constitutional guarantees were personal privileges and could not “be projected to the seizure of papers . of another.” 387 F.2d at 618. Thus, appellant had no standing to raise his constitutional objections. See also Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548, wherein it was held that an intervening taxpayer who concededly owned business records in the possession of her accountant, could not prevent their delivery to the IRS under a § 7602 summons on the grounds that her fifth amendment privilege against self-incrimination would thereby be violated.

With similar reasoning, it is evident to us that no constitutional bar exists to the enforcement here of the summons. Had the customers, or even the taxpayers themselves, sought to intervene, they could have asserted no proprietary interest in the bank’s records. SEC v. First Security Bank, 10 Cir., 447 F.2d 166, 167, cert. denied, 404 U.S. 1038, 92 S.Ct. 710, 30 L.Ed.2d 729; Harris v. United States, 9 Cir., 413 F.2d 316, 318; Galbraith v. United States, 10 Cir., supra 387 F.2d at 618; In re Cole, 2 Cir., 342 F.2d 5, 7, cert. denied, 381 U.S. 950, 85 S.Ct. 1803, 14 L.Ed.2d 723. They could have asserted no bank-depositor privilege. SEC v. First Security Bank, supra 447 F.2d at 167; Harris v. United States, supra 413 F.2d at 319-320; O’Donnell v. Sullivan, 1 Cir., 364 F.2d 43, 44, cert. denied, 385 U.S. 969, 87 S.Ct. 501, 17 L.Ed.2d 433. Indeed, they were not entitled even to notice of the proposed examination of the bank’s records in order that they could seek to intervene. Scarafiotti v. Shea, 10 Cir., 456 F.2d 1052, 1053; In re Cole, supra 342 F.2d at 7-8.

Evidently, then, the customers could raise no justifiable expectation of privacy, an essential element, we believe, of a constitutional right of privacy argument. United States v. White, 401 U.S. 745, 751-752, 91 S.Ct. 1122, 28 L.Ed.2d 453; Katz v. United States, 389 U.S. 347, 351-352, 88 S.Ct. 507, 19 L.Ed.2d 576. Thus, the customers could not have asserted sufficiently protectable interests so as to justify their own intervention, and we conclude that the bank is similarly unable to assert successfully the same interests. We feel constrained to observe, however, that the bank’s argument in behalf of its customers might have sprung, in part, from some concern that it later be held liable to those customers for the disclosure to the IRS. This same matter was mentioned in both United States v. Dauphin Deposit Trust Co., supra 385 F.2d at 131 n. 2, and United States v. Jones, supra 351 F.Supp. at 134. In each case it was disregarded, and we think properly so, on the ground that the disclosure would in any event be pursuant to court order.

The bank’s final argument, that the examination purportedly authorized by the summons exceeds the statutory reach of § 7602, is also without merit. The case law history of that section makes clear that § 7602 should be “liberally construed in recognition of the vital public purposes which [it serves].” De Masters v. Arend, 9 Cir., 313 F.2d 79, 87, petition for cert. dismissed, 375 U.S. 936, 84 S.Ct. 341, 11 L.Ed.2d 269; see also United States v. Humble Oil & Refining Co., 5 Cir., 488 F.2d 953, 958, and cases cited at 958 n. 11 therein. Of equal importance here, we note that the bank is not concerned about persons who, although unnamed in the summons, might be ferreted out by the examination as objects of further civil or criminal investigation by the IRS. Rather, the bank is concerned about persons whose records would be reviewed only incidentally in the course of an effort to locate and examine the taxpayers’ records. Of course, this fact cuts both ways. On the one hand, because no investigation of the third parties themselves is underway, the IRS could not possibly justify a search of their records as an inquiry relevant to a legitimate IRS purpose. On the other hand, the bank has not suggested that the IRS has not issued its summons in good faith, or that the IRS is engaging in some kind of a “fishing expedition” or attempting to investigate indirectly persons whom it could not investigate directly. See Bisceglia v. United States, supra 486 F.2d at 710-712.

On balance, we believe that the cursory inspection of random records indicated by the summons in this case does not offend the rationale or the language of § 7602. Thus the summons is properly authorized by that section. “Were we to hold otherwise ... we would un-warrantedly cast doubt upon and stultify the Service’s every investigatory move.” Donaldson v. United States, supra 400 U.S. at 531, 91 S.Ct. at 542.

Affirmed.


author: CELEBREZZE, Circuit Judge. ENGEL, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy Charles WILLIAMS, Sr., et al., Defendants-Appellants.
    No. 74-1081.
    United States Court of Appeals, Sixth Circuit.
    Argued June 18, 1974.
    Decided Sept. 12, 1974.
    Engel, Circuit Judge, dissented in part and filed an opinion.

      Sheldon P. Starke, Cleveland, Ohio, for appellants; David Browning, Cleveland, Ohio, on briefs.
    Paul Brickner, Asst. U. S. Atty., Cleveland, Ohio, for appellee; Frederick M. Colemen, U. S. Atty., Cleveland, Ohio, on briefs.
    Before CELEBREZZE, LIVELY and ENGEL, Circuit Judges.
   CELEBREZZE, Circuit Judge.

We are presented with an appeal from convictions of conspiracy to possess heroin and cocaine with intent to distribute, violations of 21 U.S.C. §§ 841 (a)(1) and 846, and a conviction of possession of heroin and cocaine, a violation of 21 U.S.C. § 841(a)(1).

Appellants Roy Williams, Sr. and Roy Williams, Jr., traveled from Omaha, Nebraska to Cleveland, Ohio, with a stopoff in Chicago, Illinois, on September 12, 1972. On that day in Chicago, a United Airlines passenger agent, working in the Lost and Found Department, was engaged in the job of identifying and locating the owners of lost or unclaimed luggage. In searching through a bag with no identification, she found sacks of white powder, later determined to be heroin and cocaine. She contacted federal agents who seized the drugs. A non-narcotic substance was then substituted for the heroin and cocaine by the agents.

The following day, the bag was carried to Cleveland by an agent of the Drug Enforcement Administration. In Cleveland, a passenger agent for United Airlines, after learning from his Chicago office that a bag which might belong to Appellant Williams, Sr. was arriving, attached to- the bag an airline ticket with the words “R. Williams” or “Roy Williams”.

When Roy Williams, Sr. and Roy Williams, Jr. landed in Cleveland on September 12, 1972, one of the father’s bags was missing. Williams, Jr. went several times that day to the United Airlines office at the airport in Cleveland to locate the bag. Upon going back to the office the next day, Williams, Jr. was told the bag had arrived. Williams, Jr. took the bag and returned to the motel where he and his father were staying. He was followed to the motel by law enforcement agents. One agent-knocked on the door of the motel room and identified himself as a federal narcotics agent. Hearing movement in the room and the sound of a toilet flushing, the agents entered the room forcibly and observed Appellant Williams, Jr. falling back from the door and Appellants Williams, Sr. and Willie Johnson standing in the bathroom attempting to flush the contents of two plastic bags down the toilet. The agents found in the room $11,881.35 in cash, an airline ticket from Omaha to Cleveland, Ohio via Chicago, a strainer or sifter, measuring spoons and the suitcase. All three Appellants were arrested at that time. Approximately one month later Williams, Jr. appeared at the Bureau of Narcotics and Dangerous Drugs, where he signed for and was given several of the items seized by the agents.

Appellants were tried on the charges of possession and conspiracy, and Williams, Sr. was convicted of possession of heroin and possession of cocaine. The jury was unable to return a verdict on the conspiracy charge as to Williams, Sr. or on any of the charges as to Williams, Jr. and Johnson. The charges of possession were dismissed as to Williams, Jr. and Johnson, and at a second trial, all three Appellants were convicted on the conspiracy charge.

Williams, Sr. contends that the court should have directed a verdict of acquittal on the charge of possession for the reason that there was insufficient evidence of his possession of heroin and cocaine. As there was no evidence of actual possession, the government’s case hinges on the evidence that Williams, Sr. had constructive possession of the suitcase while in Cleveland, Ohio.

In United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973), we said:

Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.

There is no dispute as to constructive possession of the suitcase after it and its contents had been seized by the U. S. Customs Agent. At that point, Williams, Sr. clearly had no dominion or control of the contents of the bag. The inquiry is whether Williams, Sr., in Cleveland, had dominion and control over the bag, in Chicago, before its seizure. At the time the suitcase was in the physical custody of the airline personnel in Chicago, it had no tag or claim check to it. Thus, it is argued that no dominion or control could have been exercised even before the seizure.

We do not agree. When an airline passenger checks his luggage with the airline company prior to a flight, he does so with the intention of reclaiming the luggage at the end of the flight. His claim check authorizes him to exercise dominion over the luggage once he arrives at his destination. The fact that the luggage is lost in transit does not alter the passenger’s intention to reclaim the luggage when it arrives at the intended destination. Nor does the loss affect his power to exercise control over the luggage through the airline’s personnel. The airline has control of the luggage for the limited purpose of transporting it from point at which the passenger boards the plane to the point of the passenger’s departure from the flight. This control is not increased by the loss of the luggage. The passenger still exercises his control through the airline, whether the functions of the airline personnel are limited to the mere transporting of the luggage or include the additional task of locating the lost items.

Thus, we find no legal obstacle to a finding that Appellant had constructive possession of the suitcase. Whether the facts support such a finding is, of course, a question for the jury. Our review is limited to determining whether there was sufficient evidence to withstand a motion for a judgment of acquittal. And in making our determination, the evidence is to be viewed in the light most favorable to the government. Glasser v. United States, 315 U. S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Cortez, 425 F.2d 453 (6th Cir.), cert. denied, 400 U.S. 906, 91 S.Ct. 147, 27 L.Ed.2d 143 (1970). Viewing the evidence in this manner, if it is determined that the jury might reasonably conclude that the evidence is inconsistent with the defendant’s innocence, then the motion for acquittal was properly denied. United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973).

The government presented evidence to show that an airline ticket was issued to Williams, Sr. and Williams, Jr.; that the trip originated in Omaha, Nebraska and ended in Cleveland, Ohio, with a stop in Chicago, Illinois to change planes; that three pieces of luggage were checked at Omaha; that only two pieces of luggage arrived in Cleveland and were claimed by Williams, Jr. when the two men ended their trip; that a claim was made for the missing piece of luggage, owned by Williams, Sr.; and that the third piece of luggage was claimed and received by Williams, Jr.

We are satisfied that the evidence was sufficient to permit the jury to resolve the question of the guilt or innocence of Williams, Sr. and hold that the District Court properly denied the motion for acquittal.

Williams, Sr. also contends that the government failed to establish that the plastic bags analyzed by the chemist were the same bags that were taken from the suitcase. Evidence was presented to establish a chain of custody from the airline personnel to a government technician. It is contended that the lack of any testimony regarding the transfer of the bags from the technician to the government chemist is a fatal missing link in this chain. The testimony, however, indicates that the envelopes containing the narcotics were initialed and lock-sealed by an agent of the Bureau of Narcotics and Dangerous Drugs and that the envelopes were lock-sealed and untorn when received by the chemist. Since the seals were unbroken when the chemist received the envelopes, we find that the evidence was properly admitted. United States v. Picard, 464 F.2d 215, 216 n. 1 (1st Cir. 1972); United States v. Burris, 393 F.2d 81 (7th Cir. 1968); Brewer v. United States, 353 F.2d 260 (8th Cir. 1965).

' It is also contended that the District Court improperly admitted into evidence a receipt signed by Williams, Jr. when reclaiming items seized at the motel. Appellant was not provided with a copy of this receipt, although the Court had ordered that the government provide the defense with all statements made by Appellants. The Court, therefore, excluded admission of the receipt and any testimony relating to it or to the acceptance of the items by Appellants. However, the Court indicated that the receipt could be used for purposes of impeaching testimony of Appellants denying possession of the items, an approach similar to that approved in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Since Appellants did deny possession, the Court properly permitted the government to cross-examine with regard to the acceptance of the clothing and suitcase by Williams, Jr.

Turning to the second trial, Appellants all contend that the evidence was insufficient to establish that they had engaged in a conspiracy. In showing the existence of a conspiracy, two elements must be proven: an agreement between two or more persons to act together in committing an offense, and an overt act in furtherance of the conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); United States v. Webb, 359 F.2d 558 (6th Cir. 1966); United States v. McGann, 431 F.2d 1104 (5th Cir. 1970). In reviewing the record, we find no testimony relating to the alleged agreement between Appellants. Thus, if the convictions are to stand, there must be some testimony from which it can be inferred that an agreement existed. See United States v. Webb, 359 F.2d 558 (6th Cir. 1966). We are unable to find that the evidence permits such an inference.

With regard to Appellant Johnson, the evidence placed him in the motel room emptying the plastic bags into the toilet. There was no testimony introduced by the prosecution to show that Johnson entered into an agreement with Appellants Williams, Sr. and Williams, Jr. The only other testimony with regard to Johnson was that of Johnson himself, who testified that he had met Williams, Sr. once before at a party and that he had gone to the motel to give Williams, Sr. a ride into town. Thus, with regard to Johnson, there is at most the showing of an overt act. This is insufficient to sustain a conspiracy conviction. United States v. Sarno, 456 F.2d 875 (1st Cir. 1972); Schnautz v. United States, 263 F.2d 525 (5th Cir. 1959); Hall v. United States, 109 F.2d 976 (10th Cir. 1940); cf. Condrey v. United States, 351 F.2d 456 (5th Cir. 1965). Evidence of both an agreement and an overt act must be shown to establish the crime of conspiracy.

With regard to Williams, Jr., we also find the record lacking in any evidence that he entered into an agreement with Williams, Sr. Nor do we find any evidence that Johnson and Williams, Jr. committed the overt act in the motel room with the knowledge that it was in furtherance of the alleged object of the conspiracy. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Sanders v. United States, 416 F.2d 194 (5th Cir. 1969). “[M]ere knowledge, approval of or acquiescence in the object or the purpose of the conspiracy, without an intention and agreement to cooperate in the crime” is not sufficient to make one a conspirator. Cleaver v. United States, 238 F.2d 766, 771 (10th Cir. 1956); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Cave v. United States, 390 F.2d 58 (8th Cir. 1968); Miller v. United States, 382 F.2d 583 (9th Cir. 1967).

Since we have found that the convictions of Johnson and Williams, Jr. cannot stand, the conviction of Williams, Sr. must also fall. Where all other alleged coconspirators are acquitted, the conviction of one person for conspiracy will not be upheld. United States v. Musgrave, 483 F.2d 327 (5th Cir. 1973); United States v. Shuford, 454 F.2d 772 (4th Cir. 1971); Lubin v. United States, 313 F.2d 419 (9th Cir. 1963).

The judgment of the district Court is affirmed with regard to the conviction of Appellant Williams, Sr. for possession of heroin and cocaine with intent to distribute. The judgments against all three Appellants with regard to the conspiracy are reversed.

ENGEL, Circuit Judge

(dissenting in part).

Upon the same facts, I am unable to agree that there was sufficient evidence to support the conviction of Williams, Sr. on the possession count. In my opinion the facts show the essential element of control to be missing. Whoever or whatever caused the claim check to be separated from the bag, at the same time caused it to be lost, and deprived its purported owner of the power to control it. There is no evidence of when or how this event occurred. By the time any constructive possession of the bag had been regained, the narcotics had already been removed and turned over to authorities. I would reverse the conviction of Williams, Sr.


author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Cleon MONTGOMERY, Appellant.
    No. 74-1314.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Sept. 25, 1974.
    Certiorari Denied Jan. 27, 1975.
    See 95 S.Ct. 830.

      Stephen Greenberg, Omaha, Neb., for appellant.
    Thomas D. Thalken, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   LAY, Circuit Judge.

Defendant Cleon Montgomery appeals his one-count conviction for knowingly and intentionally distributing a controlled substance (heroin) in violation of 21 U.S.C. § 841(a) (1). The district court sentenced him to five years imprisonment followed by a special three-year parole term under 21 U.S.C. § 841(b)(1)(A). Defendant, through appointed counsel, urges that the trial court erred in failing to direct a verdict of acquittal since his conviction was based on the uncorroborated testimony of an informant. The defendant Montgomery has filed a pro se brief additionally asserting inter alia that he was denied due process of law by late appointment of counsel. We reject both claims and affirm the conviction.

According to the government evidence, on October 12, 1973, one Kenneth Ward, after making contact with Jerome H. Gershman, a special agent with the Drug Enforcement Administration, arranged to purchase heroin from the defendant at the latter’s place of residence. Government agents supplied Ward with-$107.00, searched him and his borrowed ear, and taped a small radio transmitter to him. The agents then observed Ward entering defendant’s home. Shortly thereafter Ward was observed leaving the house. After driving two persons to their destinations, Ward returned to the government agents’ office where he was again searched and thirteen capsules of heroin were found. Ward testified that he purchased this heroin from the defendant Montgomery at his home for $100 on the day in question.

At the trial Ward testified concerning the events leading up to the sale. He testified that he purchased the heroin from Cleon Montgomery in the presence of Alphonso Hunter, nicknamed Ray Boy, and a girl named Pam. He likewise admitted that he was acting as an informant with the hope that he would receive favored treatment in sentencing on an unrelated felony conviction.

The government introduced into evidence a tape recording of the alleged sale transaction made by means of the transmitter secreted on Ward’s person. The government agents testified that they could recognize Ward's voice on the tape. One police officer stated that he also could identify the defendant’s voice. The tape recording was played to the jury. It admittedly was unclear in spots and partially unintelligible.

The defendant produced six independent witnesses who testified that they were present on October 12 at the time of Ward’s purchase but that the purchase was made from a known drug pusher, one Jackie Chambers, and not the defendant Montgomery. The record shows that Jackie Chambers was murdered prior to the time of trial.

On the strength of the overall record it is urged that the informant’s testimony is incredible as a matter of law and the verdict must be set aside and judgment of an acquittal entered. We disagree. There exists some corroboration of the informant’s testimony, even though it is not conclusive as to the alleged sale. The rule applicable to an accomplice’s testimony similarly applies to an informant. See United States v. House, 471 F.2d 886 (1st Cir. 1973). Federal courts have long recognized that even the uncorroborated testimony of an accomplice may be sufficient to sustain a conviction. As stated by this court in Williams v. United States, 328 F.2d 256 (8th Cir.), cert. denied, 377 U.S. 969, 84 S.Ct. 1651, 12 L.Ed.2d 739 (1964):

An accomplice is, of course, not disqualified as a witness in federal criminal trials. Nor is his testimony by rule of law of such unsubstantiality or such infirmity on interest or character as to be insufficient as a basis to convict without corroboration. A conviction can properly rest on the uncorroborated testimony of an accomplice if it is not otherwise incredible oi* unsubstantial on its face — which it was not here.

Id. at 259.

The defendant urges here that the informant’s testimony is not substantial. Substantial evidence in a criminal ease is that evidence by which reasonable men can be “convinced beyond a reasonable doubt that the testimony is true.” Cf. Brickey v. United States, 123 F.2d 341, 345 (8th Cir. 1941). Our analysis of the overall record satisfies us that the conviction rests on substantial evidence. There is nothing incredible about Ward’s testimony. His truthfulness was for the jury to decide. The fact that the defendant produced six witnesses who testified to the fact that another person made the sale is not slighted. However, the transcript shows the testimony of some of the witnesses to be vague and uncertain. For example, Ward testified that he made the purchase from Montgomery in the upstairs bedroom. Pamela King was not sure whether Ward even talked to Montgomery. She stated she was not with Ward at all times when he was in Montgomery’s house and was not with them in the upstairs bedroom. Willie Brooks Haynes stated that Ward was given the heroin by Chambers at a time when Ward, Chambers, Kevan Bonam and Ray Boy wpre in the kitchen. According to Haynes they were the only ones in the kitchen when Ward gave Chambers the $100.00. The other witnesses place several persons in the kitchen at the- time of the alleged sale by Chambers to Ward. Cleon Montgomery was allegedly not present at that time. The witnesses Bonam, King and Haynes did not hear or see Ward talk to the defendant. On the other hand, a portion of the tape recording played to the jury places Cleon Montgomery present at the time of the transaction. The tape transcript partially reads:

Come on Cleon, you know I want to get me a little hit out of this and plus I want to make a little bit of money anyway.
I ain’t ready for that yet.
Is it pretty good, Cleon ?
It is dynamite (unintelligible).

Tr. at 132.

Ward’s credibility was a question for the jury. The factual dispute between Ward and the defense witnesses was likewise clearly for the jury. Cf. United States v. May, 419 F.2d 553 (8th. Cir. 1969).

As we understand the pro se brief the defendant urges that he has been denied due process by reason of the delay in the appointment of counsel. The offense was committed on October 12, 1973, and the indictment was filed on December 14, 1973. Defendant was arrested by state authorities on November 7, 1973, and was in state custody until the time of his arraignment in federal court on January 10, 1974. Complaint is made that an attorney was not appointed for the defendant until January 10, 1974. If we understand defendant’s complaint it is that he was indicted at a time when he was without legal representation. There is no law which requires this. Further, there has been no prejudice shown by defendant.

The judgment is affirmed.

      . The pro se brief also asserts that the filing of the indictment was deliberately delayed and was defective. These claims were not raised in the district court and cannot he raised here for the first time.


author: PER CURIAM.

text:
    BURLINGTON NORTHERN, INC., Plaintiff-Counterdefendant-Appellee, v. The AMERICAN RAILWAY SUPERVISORS ASSOCIATION, Defendant-Counterplaintiff-Appellant. BURLINGTON NORTHERN, INC., Plaintiff-Counterdefendant-Appellant, v. The AMERICAN RAILWAY SUPERVISORS ASSOCIATION, Defendant-Counterplaintiff-Appellee.
    Nos. 73-1820, 73-1821.
    United States Court of Appeals, Seventh Circuit.
    Argued May 28, 1974.
    Decided Sept. 17, 1974.
    Rehearing Denied Oct. 23, 1974.

      Alex Elson and Aaron S. Wolff, Chicago, 111., and Edward J. Hickey, Washington, D. C., for American Railway Supervisors Assn.
    Ralph J. Moore, Jr., Washington, D. C., John L. Pilón, Chicago, 111., for Burlington Northern.
    Morton Hollander, Chief, Appellate Section, Civil Division, Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., General Counsel, Nat. Mediation Bd., Washington, D. C., for Nat. Mediation Bd.
    Before CLARK, Associate Justice, TONE, Circuit Judge, and CAMPBELL, Senior District Judge.

       Associate Justice Tom C. Clark of the Supreme Court of the United States (Ret.) and Senior District Judge William J. Campbell of the Northern District of Illinois are sitting by designation,

   PER CURIAM.

This appeal arises out of a labor dispute between Burlington Northern, Inc. and the American Railway Supervisors Association (ARSA). Plaintiff Burlington Northern seeks a judgment declaring that it has no obligation to bargain on any subject with defendant ARSA, or to treat ARSA as the representative of any of its employees. Additionally, plaintiff asks the court (1) to declare that, despite the arbitration provision of the Employees Merger Protection Agreement to which plaintiff and defendant are parties, it need not arbitrate this controversy with defendant, and (2) to enjoin ARSA and co-defendant National Mediation Board (NMB) from persisting in their attempt to obtain resolution of the dispute through the arbitration procedure set forth in that agreement. Defendant counterclaims, asking that plaintiff be required to submit to arbitration concerning the interpretation and application of the Employees Merger Protection Agreement according to the terms of that agreement, and for $1,000,000 in damages and reasonable attorneys’ fees and costs.

The District Court granted summary judgment for defendants on the complaint, holding that the court lacked jurisdiction to decide what was essentially a representation issue within the exclusive jurisdiction of the NMB. Burlington Northern, Inc. v. American Ry. Sup’rs Ass’n, 350 F.Supp. 897, 904 (N.D.Ill.1972). On the same basis, the judge also granted plaintiff’s motion to dismiss defendant’s counterclaim. Burlington Northern, Inc. v. American Ry. Sup’rs Ass’n, 359 F.Supp. 1047, 1049-1050 (N.D.Ill.1973). We affirm although on other grounds, the court’s dismissal of the railroad’s complaint, but hold that plaintiff is required to proceed with arbitration under Section 9 of the Employees Merger Protection Agreement and therefore reverse the dismissal of defendant’s counterclaim.

Plaintiff Burlington Northern, Inc. was formed on March 2, 1970 by the merger of the Chicago, Burlington & Quincy Railroad (CB&Q), the Great Northern Railway, the Northern Pacific Railway, and the Pacific Coast Railroad. The merged company has also leased the Spokane, Portland & Seattle Railroad. Each of the component railroads was— and the Burlington Northern presently is — a carrier subject to the Railway Labor Act, 45 U.S.C. §§ 151 et seq. The Interstate Commerce Commission (ICC) authorized the merger and lease pursuant to Section 5 of the Interstate Commerce Act, 49 U.S.C. § 5. Great Northern Pac. & B. Lines Merger, 331 I.C.C. 228 (1967), aff’d, United States v. United States, 296 F.Supp. 853 (D.D.C. 1968), aff’d, Northern Lines Merger Cases, 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970).

Prior to the merger, the craft or class of mechanical supervisors employed by the CB&Q was represented by defendant ARSA, which had been certified as the representative of these employees by the NMB after a representation election held on August 19, 1944. No union represented the mechanical supervisors employed by the other merging railroads. The most recent collective bargaining agreement entered into between ARSA and CB&Q is dated March 1, 1970, one day before the merger, and was in fact finally negotiated and executed by Burlington Northern and ARSA on or about April 2, 1970, one month after the merger. This agreement provided for changes in rates of pay, rules and working conditions of employees represented by ARSA employed by the Burlington Northern and working on the segment of the railroad formerly operated by CB&Q. By separate agreement also dated March 1, 1970, and also finally negotiated and executed between ARSA and plaintiff Burlington Northern on April 2, 1970, plaintiff agreed to make regular monthly dues collections from certain employees represented by ARSA provided the employees authorized the deductions. Plaintiff complied with the provisions of these and the predecessor collective bargaining agreements with ARSA, and continued to settle employee grievances with ARSA for several months after the merger date.

The craft or class of technicians employed by the Great Northern before the merger was also represented by ARSA, which had received NMB certification to represent the Great Northern technicians after a representation election held on December 7, 1960. The technicians on lines other than the Great Northern were not represented by any labor organization.

Since the merger there has been no challenge by any other union or any employees to the right of ARSA to represent the mechanical supervisors on the segment of the merged railroad formerly operated by the CB&Q, or to represent the technicians on the segment formerly operated by the Great Northern. There is thus no dispute involving competing employee groups, as envisioned in 45 U. S.C. § 152 Ninth.

Before approving the merger the ICC, following the mandate of 49 U.S.C. § 5(2) (f), imposed upon the new carrier conditions that would take effect at the time of consolidation and would protect the employees of the component lines. Certain of these protective provisions were incorporated in an Employees Merger Protection Agreement agreed to on January 18, 1968. Both plaintiff and defendant ARSA, as well as each of the component rail lines and five other unions, were signatory to the agreement.

Section 8 of the agreement provides:
“The New Company [Burlington Northern] will take over and assume all contracts, schedules and agreements between said carriers and the labor organizations signatory hereto concerning rates of pay, rules governing working conditions, fringe benefits and rights and privileges pertaining thereto in effect at the time of consummation of the merger and will be bound by the terms and provisions thereof, subject to changes in accordance with the provisions of the Railway Labor Act, as amended, in the same manner and to the same extent as if the New Company had been a party thereto.”
Section 9 provides, inter alia, that:
“In the event any dispute or controversy arises between the said carriers or the New Company and any labor organization signatory to this Agreement with respect to the interpretation or application of any provision of this Agreement . . . such dispute may be referred by either party to an arbitration committee for consideration and determination. Should the members designated by the parties be unable to agree upon the appointment of the neutral member within ten days, either party may request the National Mediation Board to appoint the neutral member. . . . ”

Commencing in the summer of 1970, several months after the merger, plaintiff refused to recognize and treat ARSA as the designated representative of either the mechanical supervisors formerly employed by CB&Q or the technicians formerly employed by the Great Northern. Plaintiff’s repudiation of the ARSA collective bargaining agreements was apparently based upon the NMB’s June 3, 1970 dismissal on the ground of mootness of a petition by technicians on the Great Northern seeking to invoke the jurisdiction of NMB under Section 2 Ninth. Plaintiff assets that “it understood the NMB action to mean that the merger had terminated a separate existence of the Great Northern Technicians’ bargaining unit.” In responding to an inquiry as to whether the dismissal notice was intended to imply that ARSA was no longer the certified representative, however, NMB Executive Secretary Thomas A. Tracy stated on July 14, 1970 that its action did not “nullify or disturb any representation rights arising out of the certification issued” on December 7, 1960 declaring ARSA to be the representative of the Great Northern technicians. Moreover, in response to the affidavit (May 24, 1972) of the plaintiff’s Vice President for Labor Relations that the NMB had “ruled” that ARSA representation rights were terminated by the merger, the NMB submitted its Executive Secretary’s affidavit (June 9, 1972) stating that “no such determination was made, expressly or impliedly, in the National Mediation Board’s dismissal notice of June 3, 1970.”

ARSA, contending that Burlington’s refusal to deal with the duly authorized pre-merger mechanical supervisors and technicians union violated Section 8 of the Employees Merger Protection Agreement, sought arbitration of the dispute under the terms of Section 9 of that agreement. ARSA’s demand for arbitration stated the question to be arbitrated in pertinent part as follows:

“Was Burlington Northern required by Section 8 of the merger protective agreement executed on January 18, 1968, ... to take over and assume the collective bargaining agreement^] between [CB&Q and ARSA for mechanical supervisors, and Great Northern and ARSA for technicians] including the continuing right thereunder of the American Railway Supervisors Association to act as the representative of the employees covered by said agreements. ti

Plaintiff refused to proceed with arbitration under the Merger Protection Agreement and refused to designate a member of the arbitration committee. ARSA then, in accordance with the provisions of Section 9 of the Merger Protection Agreement, requested NMB to appoint a neutral referee. Thereupon plaintiff filed this action.

Before reaching the merits we must consider the threshold issue of whether this court has jurisdiction to decide the questions presented in the cross-appeals. The District Cpurt held that the controversy between plaintiff and ARSA was in essence a Railway Labor Act representation dispute, the resolution of which must be left to the NMB, and on this ground, dismissed both the complaint and the counterclaim. We disagree with the District Court on this point. In our view, the dispute before us is not one under 45 U.S.C. § 152 Ninth, because no employee or other union has challenged ARSA’s certification. The cases cited by the District Court in support of its holding all involve representation disputes between unions or employee groups under 45 U.S.C. § 152 Ninth. Burlington Northern, Inc. v. American Ry. Sup’rs Ass’n, supra, 350 F.Supp. at 901, n. 8, and 904. The issue before the court in this case, the effect of the pre-merger agreement between the two parties to this action, is a common-law contract determination within the province of the federal courts and is not reserved to the exclusive jurisdiction of the NMB. We thus turn to the merits.

Plaintiff defends its refusal to bargain with ARSA and to submit to arbitration by relying on the admitted fact that ARSA does not represent a majority of the entire craft or class of either the mechanical supervisors employed by plaintiff or the technicians employed by plaintiff. Plaintiff’s position is that ARSA is not the representative of the employees it seeks to represent because the NMB has determined, in exercising its certification responsibilities under 45 U.S.C. § 152 Ninth, that a class or craft under 45 U.S.C. § 152 Fourth must be carrier-wide in scope. (See, e. g., NMB, 16th Annual Report 1950, p. 22, and Representation of Employees of New York Central R. Co., 1 NMB Craft or Class Determinations 197-210 (May 27, 1941).) ARSA, says plaintiff purports to represent only the mechanical supervisors formerly employed by CB&Q and the technicians formerly employed by the Great Northern and does not represent either of these crafts or classes system-wide. The other mechanical supervisors and technicians in the plaintiff’s system are unrepresented.

In making this argument plaintiff ignores the terms of the Employees Merger Protection Agreement, which anticipated the conditions that would exist after the merger, and specifically provided, in Section 8, that plaintiff will assume “all contracts, schedules and agreements between said carriers and the labor organizations signatory hereto. ii

The Employees Merger Protection Agreement was a condition of the ICC approval of the merger, authorized by Section 5(2)(f) of the Interstate Commerce Act, 49 U.S.C. § 5(2)(f). The agreement is not inconsistent with any provision of the Railway Labor Act, and if it were its provisions would be controlling, Brotherhood of Locomotive Engineers v. Chicago & North Western Ry., 314 F.2d 424, 431-432 (8th Cir. 1963), cert. denied, 375 U.S. 819, 84 S.Ct. 55, 11 L.Ed.2d 53 (1963); it was entered into by the parties to this case in contemplation of the merger and the conditions that would exist after the merger; and there is no reason it should not be given full force and effect.

In the agreement plaintiff recognized the labor organizations signatory to the agreement including ARSA, committed themselves to maintain and abide by all collective bargaining agreements until such agreements are changed pursuant to the procedures of the Railway Labor Act, agreed to a system for resolving disputes concerning the interpretation and application of the agreement, and agreed to a continued role for ARSA in the implementation of the merger agreement and in the interpretation, application and enforcement of existing collective bargaining agreements.

The language in Section 8 of the Employees Merger Protection Agreement to the effect that existing collective bargaining agreements can be changed in accordance with the procedures of the Railway Labor Act does not automatically render applicable the NMB’s policy determination under the act that a class or craft bargaining unit must be system-wide in scope. Unless a representation determination is made pursuant to that Act, the voluntary agreement by plaintiff to recognize a collective bargaining representative of a class or craft that is not system-wide will be given effect. Compare Switchmen’s Union v. National Mediation Board, 77 U.S.App.D.C. 264, 135 F.2d 785, 792 (1943), rev’d on other grounds, 320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61 (1943). If the contrary were true, the Merger Protection Agreement, which became effective only when the merger became effective, would have become a nullity upon its effective date, and the representation rights of ARSA would be terminated by the very agreement that purports to continue them in force. Plaintiff itself recognized that this was not intended by the Employees Merger Protection Agreement when it entered into a new collective bargaining agreement with ARSA after the effective date of the merger and continued to recognize ARSA for all purposes for a period of several months after that date.

The NMB has twice repudiated plaintiff’s contention that its action in dismissing the Great Northern technicians’ petition on June 3, 1970 implied that the merger terminated ARSA’s status as the certified representative of the technicians. The indications NMB has given as to its position in this matter are to the effect that it still recognizes ARSA as the bargaining representative under the collective bargaining agreements entered into between ARSA and plaintiff’s predecessors. With the exception described below, there has therefore been no invocation of NMB's powers to determine representation under 45 U.S.C. § 152 Ninth.

Plaintiff relies upon a fact that was not a part of the record before the District Court. In 1973 ARSA applied to the NMB to investigate and determine the representation of mechanical supervisors employed by Burlington Northern. A majority of the 569 eligible mechanical engineers chose not to participate in the ensuing representation election. Of the 153 who did vote, 139 voted for ARSA. In an order entered while this appeal was pending, the NMB found “no basis for Certification” and dismissed the application, because fewer than a majority of the eligible employees voted in the election. This proceeding, occurring after plaintiff had refused for almost three years to honor its obligations under the Employees Merger Protection Agreement, could not justify or cure plaintiff’s breach. In any event, the failure of ARSA to gain system-wide representation in an election it had requested itself did not affect its certification as representative of the mechanical supervisors on the CB&Q segment of the merged railroad.

When an agreement to arbitrate is one of the protections afforded employees under Section 5(2) (f) of the Interstate Commerce Act, the obligation to arbitrate will be enforced by the courts. Brotherhood of Locomotive Engineers v. Chicago & North Western Ry., supra, 314 F.2d at 433; New Orleans & Northeastern R. R. v. Bozeman, 312 F.2d 264 (5th Cir. 1963).

The District Court’s order dismissing the complaint is affirmed. The order dismissing the counterclaim is reversed and remanded with directions that Burlington Northern be ordered to arbitrate its disagreement with ARSA, as provided in Section 9 of the Employees Merger Protection Agreement, and that the District Court give further consideration consistent with this opinion to ARSA’s claim for damages, attorneys’ fees and costs.

Affirmed in part and reversed in part.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Clifton WOOTEN, Jr., Appellant.
    No. 73-2508.
    United States Court of Appeals, Fourth Circuit.
    Submitted Aug. 20, 1974.
    Decided Oct. 1, 1974.
    Trawick H. Stubbs, Jr., New Bern, N.C., on brief for appellant.
    Thomas P. McNamara, U.S. Atty., and Malcolm J. Howard, Asst. U.S. Atty., on brief for appellee.
    Before BOKEMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Tried by the court without a jury, after waiver of jury trial, Clifton Wooten, Jr., was convicted of violating 18 U.S.C. App. § 1202(a) which provides criminal penalties for any person who has been convicted by a court of the United States or of a state or any political subdivision thereof of a felony and who receives, possesses or transports in commerce or affecting commerce any firearm. Wooten was sentenced to imprisonment for a term of two years.

On appeal Wooten contends that (1) the district court erred in denying his motion for judgment of acquittal under Rule 29(a) of the Fed.R.Crim.P.; (2) the evidence presented fails to establish that the defendant had been convicted of a prior felony within the meaning of 18 U.S.C. App. § 1202(a)(1); and (3) the sentence imposed by the court constituted cruel and inhuman punishment. Points (1) and (2) will be considered together.

At the close of the Government’s evidence the defendant moved for judgment of acquittal, announced that the defense would offer no evidence, and thereupon renewed his motion.

The defendant was arrested on July 17, 1973. The arresting officer’s uncon-tradicted evidence at trial disclosed that he observed Wooten take from the driver the keys to the car in which he and four others were sitting, open the glove compartment of the car, remove a gun from underneath his sweater, place it in the glove compartment and then lock the compartment; that Wooten returned one key to the driver and put the other in his pocket; that upon arresting the defendant and finding a key in his pocket the officer used that key to open the glove compartment and there found the gun. There was ample evidence from testimony and records introduced before the court that this particular firearm had been transported in interstate commerce.

Defendant contends that since he was arrested at night and there was no light on inside the car the officer, from his position at the rear of the car, could not have seen the defendant who was sitting in the front seat next to the door on the right. However, at the time of the occurrence, the bright headlights and the beam from a spotlight of the officer’s patrol car were focused on the car in which the defendant was sitting.

The court undertook to review the evidence and made findings based thereon. It found that the lighting was sufficient to enable the arresting officer to observe the defendant’s actions with respect to removing the handgun in question from his person, placing it in the glove compartment of the car, and locking the compartment door; that the key found by the officer in defendant’s possession unlocked the compartment door and that this evidence was sufficient to sustain the charge that the defendant possessed the gun.

From the evidence the court further found that the defendant had earlier been convicted of possession of heroin in a state court of North Carolina and sentenced to a term of five years in prison. The court rejected the argument that since a timely appeal from that conviction had not at that time been determined and since the state court conviction was not affirmed in the North Carolina Court of Appeals until December 12, 1973, the defendant did not at that time stand “convicted by a court of the United States or of a state or any political subdivision thereof of a felony.” The court denied the defendant’s motion for judgment of acquittal and found the defendant guilty of the crime charged in the indictment.

On appeal the defendant presents the same arguments as those presented to the trial court although it would appear that the thrust of his argument is directed to the sufficiency of the evidence to sustain the charge of possession of the firearm. However that may be, on the motion for judgment of acquittal the question is whether the evidence, viewed in the light most favorable to the prosecution, is such that the finder of fact might find the defendant guilty beyond a reasonable doubt. United States v. Pardee, 368 F.2d 368, 373 (4 Cir. 1966); United States v. Sawyer, 294 F.2d 24, 31 (4 Cir. 1961), cert. denied 368 U.S. 916, 82 S.Ct. 196, 7 L.Ed. 2d 132 (1961). The uncontradicted testimony of the arresting officer concerning the possession of the firearm by the defendant, and the evidence that the firearm had been transported in interstate commerce, all of which was accepted as true by the trier of fact, could sustain a finding of guilt on that issue.

The defendant again urges that since his conviction on the charge of possession of heroin was pending on appeal in North Carolina Court of Appeals at the time of his trial below that he did not at the time of his arrest, indictment and trial in the instant case stand “convicted by a court of the United States or of a state or any political subdivision thereof of a felony.” We reject this argument. There is no reason to believe that when Congress used the word “convicted” it meant anything other than exactly that. Congress could have made section 1202(a)(1) applicable only to one who had been convicted and whose conviction had already been affirmed on appeal but it did not do so. See United States v. Williams, 484 F.2d 428 (8 Cir. 1973); United States v. Liles, 432 F.2d 18 (9 Cir. 1970); DePugh v. United States, 393 F.2d 367 (8 Cir. 1968).

Challenging the prior conviction Wooten relies upon United States v. Lufman, 457 F.2d 165 (7 Cir. 1972), but we find it of no relevance here. In Lufman the defendant was convicted of a violation of § 1202(a) and the conviction was reversed on appeal because a prior conviction on a plea of guilty by Lufman, who was not represented by counsel, was used by the prosecution as proof of Lufman’s status as a convicted felon contrary to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which held that such a conviction cannot be used against a defendant in a later proceeding. In the instant case Wooten’s prior conviction has been affirmed on appeal, State v. Wooten, 20 N.C.App.139, 20 S.E.2d 89 (1973), and was not, as in Lufman, constitutionally void ab initio.

Appellant’s contention (3) that the sentence to a term of confinement for the maximum statutory period, two years, constituted cruel and unusual punishment, is without merit. It has been decided by this court that interference with a sentence which is within the limitation provided by the statute is not, in the absence of extraordinary and special circumstances, within the appellate court’s province. United States v. Martell, 335 F.2d 764 (4 Cir. 1964).

We conclude that the evidence, viewed in the light most favorable to the prosecution, United States v. Sherman, 421 F.2d 198 (4 Cir.), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970), was sufficient to sustain Wooten’s conviction. Finding no error we dispense with oral argument and affirm the judgment of conviction and sentence.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Raymond Leo COWLES, Appellant.
    No. 1247, Docket 74-1416.
    United States Court of Appeals, Second Circuit.
    Argued Aug. 16, 1974.
    Decided Sept. 10, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 790.

      Lee Clary, Watertown, N.Y., for appellant.
    George H. Lowe, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N. Y., of counsel), for appellee.
    Before OAKES, Circuit Judge, and FRANKEL and KELLEHER, District Judges.

       Of the Southern District of New York and the Central District of California, respectively, sitting by designation.

   PER CURIAM:

We affirm the conviction.

Appellant, Raymond Leo Cowles, appeals from a judgment of conviction of violation of the Federal Bank Robbery Act under 18 U.S.C. §§ 2113(a) and 2. He was tried before Lloyd F. MacMahon, Judge, sitting by designation, and a jury, and was sentenced to imprisonment for a period of ten years. Appellant argues that the trial court erred in giving a supplemental Allen charge to the jury; in failing to ask certain questions of prospective jury members on voir dire; in failing to give a very specific instruction on 'the possible unreliability of eyewitness identifications ; and in permitting testimony of an admission made by appellant to a cellmate, without notification to defense counsel of such admission. The supplemental charge was not objected to and has regularly been sustained by this court. The questions proposed to be propounded to the jury were of a conclusory nature dealing with contingencies of a defendant’s not taking the stand and one juror believing that there was no proof beyond a reasonable doubt, designed to elicit the jurors’ commitment to abstract propositions; as such, the trial court’s discretion in denying them was not abused. United States v. Colabella, 448 F.2d 1299, 1303 (2d Cir. 1971). The requested instruction on eyewitness identification was argumentative, but, absent argumentation, was given in substance. Ample opportunity (by way of a proffered but declined continuance) was afforded defense counsel to overcome whatever surprise was generated by the cellmate’s testimony as to appellant’s admission.

Judgment affirmed.