author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. George LAWSON, Defendant-Appellant.
    No. 74-1134.
    United States Court of Appeals, Seventh Circuit.
    Argued June 3, 1974.
    Decided Nov. 26, 1974.
    Rehearing Denied Dec. 19, 1974.
    Certiorari Denied March 31, 1975.
    See 95 S.Ct. 1446.

      Carl M. Walsh, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Walter Jones, Jr., Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before CLARK, Associate Justice (Retired), and PELL and SPRECHER, Circuit Judges.

       Associate Justice Tom O. Clark of the Supreme Court of the United States (Retired) is sitting by designation.

   PELL, Circuit Judge.

The defendant George Lawson was convicted by a jury of importing and conspiring to import cocaine into the United States, in violation of 18 U.S.C. § 2, and 21 U.S.C. §§ 952(a) and 963. Lawson raises a number of issues on appeal, including: (1) whether the defendant was prejudiced by a display of cocaine which was not admitted into evidence; (2) whether the indictment was invalid because the Grand Jury which returned the indictment was the third Special Grand Jury in existence at that time in the Northern District of Illinois ; (3) whether the evidence was sufficient to prove Lawson guilty beyond a reasonable doubt; (4) whether the district court erred in instructing the jury; (5) whether there was a lack of jurisdiction and venue in the Northern District of Illinois; (6) whether the defendant was prejudiced by certain statements of witnesses and the prosecutor; and (7) whether there was a variance between the evidence and the indictment.

The evidence, taken in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), established the following significant conduct. In April 1971, Richard Fox, Randy Fine, and Larry Zaretsky traveled to Jamaica. While there, they met George Lawson who was living in Jamaica. During a visit to Lawson’s home, the defendant stated that he had a supply of cocaine for sale and asked if Fox was interested in purchasing any. After discussing Lawson’s offer with Zaretsky and John DeCarolis, Fox told Lawson he was interested in buying the cocaine but that it would have to be delivered to Chicago and payment would not be made until it was delivered. Lawson subsequently informed Fox that the deal was acceptable to him and that Lawson’s girl friend, Myrna Pierce, would personally deliver the cocaine to Chicago that weekend. In return for the cocaine, Lawson was to receive $4,500 a pound plus a percentage of the profits.

Before leaving Jamaica, Fox again visited Lawson’s home, where he saw Lawson packing a white powder into a cosmetic bag. Lawson gave this bag and two clear plastic bags, also containing white powder, to Myrna Pierce and instructed her to take them to Chicago.

Fox then flew to Chicago. Zaretsky flew to Miami, Florida, picked up Fox’s car, and drove it to Chicago. Myrna Pierce flew to Chicago by way of Baltimore and, upon arriving in Chicago, she telephoned Randy Fine. Fine, accompanied by another man, picked up the packages from Pierce’s hotel room. The following day, Fox and Zaretsky gave Pierce an envelope containing $5,000. Pierce then flew back to Jamaica and gave the envelope to Lawson.

After Pierce had been paid, Fox, Zar-etsky, DeCarolis, and David Bennett met at an apartment in Chicago. At that time, the powder from the cosmetic bag was mixed with lactose and placed in one-ounce bottles and one-pound containers.

A few days thereafter, Zaretsky sold a one-ounce bottle of white powder, which he had obtained from Fox, to Special Agent Aldo Aurilio for $1,000. The following day, Zaretsky sold Aurilio another larger package for $11,000.

Approximately two weeks after these sales to Aurilio, Fox withdrew $10,000 from a bank and gave it to David Bennett with instructions to deliver it to Lawson. Bennett and his girl friend Linda Vasquez then flew to Jamaica. Lawson told Myrna Pierce that “Rick had sent [Bennett and Vasquez] down with the balance of the money.”

I

The evidentiary part of Lawson’s trial lasted less than two days. During the morning of the second day of the trial, two Government witnesses, Special Agent Aldo Aurilio and Mark Cunningham, a Government chemist, testified. In substance, Aurilio testified that on two separate occasions, Zaretsky sold him packages of white powder which were identified as Government Group Exhibits 1 and 2. Cunningham was qualified as an expert witness and testified that the powder contained in the exhibits was cocaine. During Aurilio’s and Cunningham’s testimony, the exhibits, purportedly containing more than a pound of cocaine, were on the prosecution’s table in front of the jury.

At the conclusion of this testimony, the district court sustained the defendant’s objection to the admission of the exhibits on the ground that the Government had failed to connect the exhibits with Lawson. The district judge also struck the testimony of both Aurilio and Cunningham and instructed the jury to disregard that testimony and the exhibits. The court, however, denied Lawson’s motion for a mistrial. The defendant contends that the district court erred in denying this motion for a mistrial since Lawson was prejudiced by the testimony of Aurilio and Cunningham and by having the exhibits of cocaine before the jury.

As this court has noted, there are situations in which the display of evidence which is later ruled inadmissible constitutes reversible error. United States v. Heft, 413 F.2d 1027 (7th Cir. 1969) ; United States v. Reid, 410 F.2d 1223 (7th Cir. 1969). However, we have also recognized that not all such displays require reversal. United States v. Holmes, 452 F.2d 249 (7th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1291, 31 L.Ed.2d 479 (1972) ; United States v. Cat-alano, 450 F.2d 985 (7th Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 980, 30 L.Ed.2d 802 (1972).

In Catalano, where the defendants were charged with unlawful possession of property (television sets) stolen in interstate commerce with knowledge that the property was stolen, Government witnesses identified two guns found at or near the scene of a gunfight which had occurred between police and the defendants at the time of the defendants’ arrest. The trial court, finding that neither gun had been connected to any of the defendants, refused to admit the guns into evidence and struck all testimony with respect to the guns. The trial court, however, denied the defendants’ motion for a mistrial. This court held that the district court’s cautionary instruction was adequate to protect the defendants from any possible prejudice and that the court properly denied the motion for a mistrial. In particular, this court noted that the defendants had failed to object to the initial display of the guns to the jury and that, even if a timely objection had been made, the defendants were not prejudiced by the display of the guns since there had been other testimony concerning the fact that a gunfight had taken place.

As in Catalano, the defendant in the present case did not object to the initial display of the cocaine. Moreover, the testimony of Aurilio was merely cumulative in that Zaretsky had testified about the sales of packages to Aurilio. The defendant did not dispute that these sales had taken place. In addition, the jury had heard extensive and undisputed testimony regarding Lawson’s role in initiating the sale to Fox and in directing Myrna Pierce to bring the substance to Chicago. We also note that the district judge admonished the jury during the trial to disregard the exhibits and the testimony of Aurilio and Cunningham. In its final instructions, the court again told the jury to consider only properly admitted evidence in reaching their verdict. See United States v. Catalano, supra-, United States v. Holmes, supra. Finally, we note that there is no indication that the Government was acting in bad faith in presenting the testimony of Aurilio and Cunningham or in seeking to have the exhibits admitted into evidence. United States v. Lyon, 397 F.2d 505, 512 (7th Cir. 1968), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117.

In the context of the entire trial, we conclude that reversible error was avoided by the district court’s action in striking the testimony and instructing the jury to disregard both the testimony and the exhibits. United States v. Holmes, supra.

Our decision is not contrary to this court’s opinions in United States v. Heft, 413 F.2d 1027 (7th Cir. 1969), United States v. Reid, 410 F.2d 1223 (7th Cir. 1969), and United States v. Kwitek, 433 F.2d 18 (7th Cir. 1970). As we pointed out in Catalano, in all three of those cases, the prejudicial evidence was found in the possession of the defendant.

II

The defendant next contends that the indictment against him was invalid because the Special September 1972 Grand Jury, which returned the indictment, was the third such special grand jury then in existence in the Northern District of Illinois. This argument is without merit. As this court has recently noted:

“The legislative history of the Organized Crime Control Act of 1970 indicates that the Special Grand Jury was created as an instrument to investigate organized crime in areas where such criminal activity was evident. It would thwart the purpose of the Act to limit to two the number of Special Grand Juries in a district when in fact four or five were necessary for adequate investigation of organized crime. Korman v. United States, 486 F.2d 926, 934 (7th Cir. 1973) (footnote omitted).

Lawson argues that the statement in Korman is dicta and further that Korman involved an attack by a witness who would have had no standing to attack the grand jury, and that, therefore, we should not follow the explicit language quoted above. While it may be, as Lawson contends, that the special grand jury in Korman was in fact the second special grand jury impaneled in the district and therefore clearly permissible by the terms of 18 U.S.C. § 3332 (b), and assuming that the defendant here has requisite standing for the attack, we nevertheless, upon reconsideration of the statute, are of the opinion that the subsection of the statute does authorize an additional special grand jury to be impaneled whenever the volume of business is determined by the district court to require it.

We agree with the appellant that ordinarily “an” is to be equated with “one.” However, “an” is an article having a generalizing or indefinite force as opposed to the specifying or particularizing effect of “the.” United States v. Hudson, 65 F. 68 (W.D.Ark.1894). “An” does not have the same connotation of limitation as does “the.” Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653, 655 (1969).

If the intent had been to limit additional special grand juries to one only, that intent could have been easily and explicitly stated. It was not and we decline to read in the limitation. Such a limitation would have been an artificial one and as stated by Judge Duffy in Korman thwarting of “the purpose of the Act.”

Ill

Lawson asserts that the evidence was insufficient to support the jury’s verdict on either the substantive count of importing or the count of conspiring to do so.

With respect to the substantive count, the defendant asserts that the Government failed to prove that the substance imported was actually cocaine. When the defendant is charged with a substantive violation of the narcotics laws, the jury, in order to find the defendant guilty, must be convinced beyond a reasonable doubt that the substance imported was in fact a narcotic drug. United States v. Agueci, 310 F.2d 817, 828 (2d Cir. 1962). However, it is not necessary that this be proved by direct evidence. “Just as with any other component of the crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.” United States v. Agueci, supra at 828. See also United States v. Atkins, 473 F.2d 308, 314 (8th Cir. 1973).

In the present case, there was sufficient circumstantial evidence from which the jury could have inferred that the material imported was cocaine. Both Myrna Pierce and Fox testified that the. substance which was packed into the cosmetic bag was a white powder. See United States v. Atkins, supra, at 314; Toliver v. United States, 224 F.2d 742, 745 (9th Cir. 1955). Both Fox and Pierce testified, moreover, that Lawson spoke of selling “cocaine.” See United States v. Agueci, supra, 310 F.2d at 829; Toliver v. United States, supra, 224 F.2d at 745. The evidence also indicated that Lawson was paid a substantial sum of money in cash by Fox for the white powder. “The fact that a high price has been paid for the substance is also evidence tending to indicate that it was in fact [a narcotic].” United States v. Atkins, supra, 473 F.2d at 314. See also United States v. Fiotto, 454 F.2d 252, 254 (2d Cir. 1972), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117; Toliver v. United States, supra. Finally, the transaction was carried out in secrecy with the powder being packed into a cosmetic bag for transportation. United States v. Fiotto, supra.

The evidence was, likewise, sufficient to support the jury’s verdict with respect to the conspiracy count. The evidence showed that Lawson agreed to sell cocaine to Fox and to assume responsibility for delivering the substance to Chicago, that Lawson packed white powder into a cosmetic bag and directed Myrna Pierce to take it to Chicago, and that Pierce, upon returning to Jamaica, gave Lawson the money she had received in exchange for the substance. The fact that Lawson might not have been aware of every detail of the plan or every individual involved in the conspiracy is irrelevant since he clearly knew of the conspiracy’s essential objective and acted to further it. Blumenthal v. United States, 332 U.S. 539, 557, 68 S.Ct. 248, 92 L.Ed. 154 (1947); United States v. Fellabaum, 408 F.2d 220, 224 (7th Cir. 1969), cert. denied, 396 U.S. 858, 90 S.Ct. 125, 24 L.Ed.2d 109.

The Government’s case against Lawson, after the testimony of Aurilio and Cunningham had been stricken, rested entirely on the testimony of Fox, Zaretsky, and Pierce. Lawson asserts that the testimony of these witnesses should be disregarded since all of these witnesses had, at the time of Lawson’s trial, pled guilty and received probation. The jury was aware of the fact that these witnesses had pled guilty to narcotic offenses and that they had received probation. The credibility of these witnesses was a matter for the jury to determine. The testimony of the witnesses in question was not so incredible that the jury could not have relied upon it in reaching its verdict.

IV

The defendant next contends that the district judge committed reversible error by: (1) refusing to instruct the jury on the definition of reasonable doubt, although both the defendant and the Government tendered such an instruction, and (2) incorrectly instructing the jury on the presumption of innocence.

(D

Prior to final arguments, the court reviewed with counsel the instructions that were to be given and refused. When the tendered instructions on reasonable doubt were reached, attention was first given to the instruction submitted by Lawson, which read as follows:

“The law presumes a defendant to be innocent of crime. Thus a defendant, although accused, begins the trial with a ‘clean slate’ — with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all the evidence in the case.
“It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense —the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly in the most important of your own affairs.
“The jury will remember that a defendant is never to be convicted on mere suspicion or conjecture.
“The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. The burden never shifts to a defendant; for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
“A reasonable doubt exists whenever, after careful and impartial consideration of all the evidence in the case, the jurors do not feel convinced to a moral certainty that a defendant is guilty of the charge. So if the jury views the evidence in the case as reasonably permitting either of two conclusions — one of innocence, the other of guilt — the jury should of course adopt the conclusion of innocence. Devitt and Blackmar § 11.01”

The court characterized this instruction, which covers matters other than defining reasonable doubt, as being argumentative which to some extent it is. The judge also stated that it was inaccurate in that he did not believe that the standard of beyond a reasonable doubt encompasses the concept “to a moral certainty.” Because of the result we reach we do not need to decide the validity of this ground of rejection. We note that “[s]ome courts define reasonable doubt as requiring persuasion ‘to a reasonable or moral certainty.’ ” 2 Wright, Federal Practice and Procedure § 500, at 342-43. Thus, if the effort is launched at definition, the phrase as stated in the tendered instruction has had judicial approval. However, as illustrative of the difficulties of defining “reasonable doubt” in a manner acceptable to appellate courts, to which problem we will subsequently direct further attention, we note in the case of United States v. Byrd, 352 F.2d 570, 575 (2d Cir. 1965), the court faulted an alternative definition reading, “It is a doubt to a moral certainty,” on the basis that “doubt” and “certainty” are antithetical and the use would tend to create more confusion than light in the minds of the jury. But see, United States v. Acarino, 408 F.2d 512, 517 (2d Cir. 1969).

As we have noted, the Government also tendered an instruction defining reasonable doubt. In so doing, the Government counsel expressed in colloquy with the court some concern as to whether the failure to give a defining instruction would be error since the defendant had tendered an instruction on the subject. The Government’s instruction, which was LaBuy 6.01-3, reads as follows:

“A reasonable doubt means a doubt that is based on reason and must be substantial rather than speculative. It must be sufficient to cause a reasonably prudent person to hesitate to act in the more important affairs of his life.”

The district court declined to give either instruction, stating:

“The only question before me is whether I should not proceed to define' reasonable doubt. I am disinclined to do so. I believe that in a criminal case, we start with the defendant's presumption of innocence, and we proceed to the overcoming of that presumption of innocence beyond a reasonable doubt. I believe that it minimizes beyond a reasonable doubt or dilutes it to undertake to define it, and I do not see that we gain one whit by telling the jury what it isn’t.”

If the judge had given either of the tendered instructions, each of which came from acceptable authority, we would have no difficulty in saying that the subject had been adequately covered; indeed, we entertain the belief that the result of the jury’s decision probably would have been unchanged if either had been given. The court did not do so however, and it is necessary to turn to the question of whether the failure requires a reversal.

What has been referred to as the federal rule is set forth in Holland v. United States, 209 F.2d 516, 522-523 (10th Cir. 1954), aff’d, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150, in which Judge Mur-rah speaking for the court stated:

“There are many definitions of ‘reasonable doubt.’ Some courts assert that the words themselves carry their own best definition and that any attempts at clarification or definition tend only to confuse an otherwise simple phrase. See 20 Am.Jur.Evidence, Sec. 1257; 53 Am.Jur. Trial, Sec. 751, 36 Words & Phrases, Reasonable Doubt, pp. 297, 319; Wigmore on Evidence, 3rd Ed., Vol. IX, Sec. 2497. Under the federal rule, however, the accused is entitled to a definition of the term ‘reasonable doubt’, and failure to instruct upon request has been held to constitute error. Nanfito v. United States, 8 Cir., 20 F.2d 376; Blatt v. United States, 3 Cir., 60 F.2d 481; Egan v. United States, 52 App. D.C. 384, 287 F. 958; Mundy v. United States, 85 U.S.App.D.C. 120, 176 F.2d 32; Schencks v. United States, 55 App.D.C. 84, 2 F.2d 185. But, a proper definition of the term does not depend upon the observance of a ritual or the use of precise words found in some accepted definition. United States v. Schireson, 3 Cir., 116 F.2d 881, 132 A.L.R. 1157; United States v. Stoehr, D.C., 100 F.Supp. 143, affirmed, 3 Cir., 196 F.2d 276. It is sufficient if the jury is given to understand that reasonable doubt as applied to the measure of its persuasion means a real or substantial doubt generated by the evidence or a lack of it; and that beyond a reasonable doubt means to a reasonable or moral certainty. Wigmore, supra, Sec. 2497.” Holland is dicta as to the particular

point here involved for there a defining instruction was given which was found to be acceptable. The dicta status is true of other cases enunciating the rule, e. g., Friedman v. United States, 381 F.2d 155, 160 (8th Cir. 1967), and Williams v. United States, 271 F.2d 703, 705 (4th Cir. 1959). However, application of the rule has also been a dispositive matter: Blatt v. United States, 60 F.2d 481 (3d Cir. 1932); Nanfito v. United States, 20 F.2d 376, 378 (8th Cir. 1927); Schencks v. United States, 55 App.D.C. 84, 2 F.2d 185, 187 (1924); Egan v. United States, 52 App.D.C. 384, 287 F. 958, 967 (1923). It is also to be noted, however, that in all of these cases except Blatt there were other grounds of error.

This court has never ruled on the precise issues presented here. Of greater significance is the fact that the Supreme Court also has not ruled on the precise issue. We are unaware of any court of appeal decision contra to those cited above. Nevertheless, with all due deference to the decisions from other circuits, upon consideration of the issue we are of the opinion that the failure to give a defining instruction of “beyond a reasonable doubt,” even though an acceptable instruction has been tendered, should not be the basis for reversing an otherwise fairly conducted trial. We also, of course, are assuming that the jury-has been instructed that the prosecution must prove its case beyond a reasonable doubt and that the burden of doing so remains with the prosecution.

We are here dealing with ordinary English words of common acceptance. “I doubt that” is a common expression. It is ordinary practice in negligence cases to instruct on the standard of care of a reasonable man. It would not seem to serve much purpose to resort to the antonym and define reasonable doubt as being doubt that was not unreasonable under the evidence. The phrase is not esoteric, such as res ipsa loquitur, nor is it confusingly similar to other more common words such as “proximate” or some of those employed in patent law.

Because of the very commonness of the words, the straining for making the clear more clear has the trap of producing complexity and consequent confusion. That this difficulty may be surmounted is evidenced by the attempts which have been approved, although the language of approval has frequently implicitly suggested the difficulties of articulation. That the difficulties may be surmounted, however-, does not mean in our opinion that the effort has to be made.

The essential aspect of the matter it appears to us is that the jury clearly understand that there must be proof persuasive beyond a reasonable doubt. Defining the term should be at the option of the trial judge even though a defining instruction is tendered. Lack of definition would not appear to be prejudicial. Thus, although the Fourth Circuit purports to follow the so-called federal rule, Williams v. United States, supra, 271 F.2d at 705, nevertheless, in the absence of a request or objection, that court was “unwilling to say the failure [to define] when not requested, was error.” United States v. Quinn, 315 F.2d 425, 426 (4th Cir. 1963). Judge Murrah, whose opinion in Holland has been quoted hereinbefore, recognized that some courts adhered to the view that definition only tended to confuse. Confusion of the jury thinking on this essential aspect of a criminal case, of course, should be avoided. The Holland opinion cites, inter alia, Words and Phrases. Turning to volume 36 of the Permanent Edition of that work, at 510 et seq., we find numerous state cases expressing the opinion that there need be no definition. Without further lengthening this opinion by discussing the individual cases cited there, we note statements such as that definition is impossible, that the phrase is self-defining, that there is no equivalent phrase more easily understood, that every attempt to explain renders an explanation of the explanation necessary, that the better practice is not to attempt the definition, and that any effort at further elucidation tends to misleading refinements. That many state courts have so stated is persuasive that the lack of the refining definition does not deprive a defendant of a fair trial. Suggestive that the judicial path has not been an easy one when efforts to define the term have been undertaken is the fact that 36 Words and Phrases, beginning at 483 devotes sixty-one pages to various efforts at explication. Many of these purported definitions do not upon fair analysis say anything more than the simple phrase itself.

For the reasons indicated we find nothing in this record to make us fear that the jury was unaware of the heavy burden of persuasion placed upon the Government. That ultimately is the real purpose of a defining instruction in any event.

However, before leaving this issue we find it is necessary to advert to the manner in which the issue was presented to the court in the present case. Counsel for the defendant in the instructions conference observed, “My instruction does include a definition of reasonable doubt which I suggest should be given.” (Emphasis added.) Nowhere in the record do we find that counsel advised the court of the cases cited by the defendant to us on this appeal as stating the federal rule. Counsel did tell the court that the instruction was “Devitt and Blackmar’s, which also has been approved by the case law.” In looking at that work, however, we find nothing in the annotations of the 1970 edition which would appear to alert the court to the so-called federal rule. On the other

hand, one annotation does deal with the “problems of defining ‘reasonable doubt.’ ” 1 Devitt and Blackmar, Federal Jury Practice and Instructions, at 206. One of the cases cited is Dunbar v. United States, 156 U.S. 185, at 198-199, 15 S.Ct. 325, at 330, 39 L.Ed. 390 (1895), in which the court stated:

“Again, error is alleged in the instructions in respect to the matter of reasonable doubt. It is urged that the court failed to instruct the jury as to what constitutes a reasonable doubt, and that in speaking of it, it used the term ‘strong probabilities.’ Repeated attempts have been made by judges to make clear to the minds of the jury what is meant by the words ‘reasonable doubt’; but, as said by Mr. Justice Woods, speaking for this court, in Miles v. United States, 103 U.S. 304, 312 [26 L.Ed. 481]: ‘[a]ttempts to explain the term “reasonable doubt” do not usually result in making it any clearer to the minds of the jury.’ ”

See also, Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

It does not appear to us that reference to the work supporting the tendered instruction would have done other than to enforce the judge’s determination not to define. An underlying point here, however, is that we read Rule 30 Fed.R. Crim.P., less narrowly than defendant apparently did. All that was done was to tender the instruction by way of suggestion. After the instructions had been read to the jury, the following occurred: “I reiterate the objections which I made prior to the charge, and during our conference, and without specifying them, if that is agreeable with you, I would ask that those objections be adopted as having been made now as though I did specify each and every one of them. THE COURT: They may be. MR. WALSH: And I have two specific ones I would like to make, and that is that I object specifically to your including the word, ‘until’ in the instruction on presumption of innocence, and I specifically object to your declining to instruct on the definition of reasonable doubt.” Aside from the propriety of the incorporation by reference, cf. Hetzel v. Jewel Companies, 457 F.2d 527, 535-536 (7th Cir. 1972), stating that the party specifically objects to the failure to give an instruction which had been tendered does nothing more than go through the motions of complying with the requirement of “stating distinctly the matter to which he objects and the grounds of his objection.” Rule 30. (Emphasis added.)

In Tomley v. United States, 250 F.2d 549, 551 (5th Cir. 1957), cert. denied, 356 U.S. 928, 78 S.Ct. 116, 2 L.Ed.2d 759 (1958), the court dealt with a similarly cursory obeisance to the Rule as follows:

“In his objection, counsel for defendant merely restated his requests, but did not even attempt to give the grounds for his complaint that the court below had failed to give the instructions that he had requested. Hence, there was a failure to comply with Rule 30 of the Federal Rules of Criminal Procedure . . .. This being so, and there being no prejudicial error in the court’s failure to give the requested charges, appellant may not now complain of their refusal.” (Emphasis in original, footnote omitted.)

We agree with the Fifth Circuit that the defendant is not in a position to complain of the failure to give the tendered instruction. Not only the spirit, but the letter of Rule 30 required the statement of grounds.

There was in the present case an additional factor over and above the basic requirement of compliance with the rule in that the tidal judge was an Illinois lawyer. His view was in accord with that of the Illinois Supreme Court. “This court has repeatedly held that the legal concept of ‘reasonable doubt’ needs no definition, and that where an involved instruction on that concept is given it may be deemed prejudicial error.” People v. Cagle, 41 Ill.2d 528, 536, 244 N.E.2d 200, 204 (1969). See also People v. Whittaker, 45 Ill.2d 491, 496, 259 N.E.2d 787, 789 (1970).

If the federal rule was so drastically different as the defendant now contends, he should have then so contended by, at the very least, bringing to the attention of the court the federal authorities supporting his position.

(2)

With respect to the presumption of innocence, the district court charged the jury:

“A defendant in a criminal case is presumed by law to be innocent. That presumption remains with him throughout the trial unless and until he is proved guilty of the crime charged by credible evidence beyond a reasonable doubt.” (Emphasis added.)

Lawson argues that the inclusion of the word “until” in the court’s instruction constituted error because it created the impression that proof of guilt beyond a reasonable doubt was a certainty.

We find this argument unpersuasive. The jury was instructed that the presumption of innocence remains with the defendant unless and until such time as he is proved guilty by credible evidence beyond a reasonable doubt. In United States v. Shotwell Mfg. Co., 287 F.2d 667, 677 (7th Cir. 1961), aff’d 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963), and United States v. Senior, 274 F.2d 613, 616 (7th Cir. 1960), this court reviewed instructions similar to the one given in the present case and held that there was no error if, considering the instructions as a whole, the jury was instructed that the burden of proof never shifts to the defendant and that all the evidence should be considered by them in reaching a verdict. In the present case, when we consider the instructions as a whole, we are convinced that the jury was adequately charged on these matters. Compton v. United States, 305 F.2d 119, 121 (9th Cir. 1962).

V

Lawson further asserts that because he was a resident of Jamaica at all times during the alleged conspiracy and importation, the district court lacked jurisdiction over him. The evidence established, however, that Lawson was a member of the conspiracy; that the object of the conspiracy was to violate the narcotics laws of the United States; that the conspiracy was carried on partly in and partly out of the United States; and that overt acts were committed within the United States. It is well established that, in such a situation, the federal district court has jurisdiction to try the defendant for conspiracy even though he was corporeally outside the United States at all times during the alleged conspiracy. Ford v. United States, 273 U.S. 593, 620, 47 S.Ct. 531, 71 L.Ed. 793 (1927); United States v. Correa-Negron, 462 F.2d 613, 614 (9th Cir. 1972); Rivard v. United States, 375 F.2d 882, 886 (5th Cir. 1967), cert. denied, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181. Moreover, as the Fifth Circuit pointed out in Rivard, supra, where, as here, the substantive offense is committed within the United States, the district court also has jurisdiction over the defendant, as a principal, with regard to the substantive offense, even though the defendant’s participation took place outside the United States.

Lawson further maintains that even if jurisdiction existed, venue did not properly lie in the Northern District of Illinois since he first entered the United States and was arrested in Puerto Rico. This contention is frivolous. Venue was properly laid in the Northern District of Illinois where the offenses were “continued or completed.” 18 U.S. C. § 3237(a). Rivard v. United States, supra, 375 F.2d at 888. It has long been recognized that, in conspiracy cases, venue is proper, under § 3237, in the district where the conspiracy was formed or in any district in which any overt act in furtherance of the conspiracy was committed, even though the defendant has never been present in that district. Downing v. United States, 348 F.2d 594, 598 (5th Cir. 1965), cert. denied, 382 U. S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155.

VI

In answering questions on direct examination, Fox and Zaretsky on several occasions referred to substances as “cocaine.” Additionally, at one point during the trial, the prosecutor referred to the substance being discussed as “cocaine.” The defendant contends that the district court erred in denying his motions for a mistrial based on these references to “cocaine.”

We note, however, that each time Fox or Zaretsky referred to the substance as “cocaine,” the district court sustained the defendant’s objection. Similarly, on the one occasion that the prosecutor referred to the substance as “cocaine,” the trial judge sustained an objection from the defense. Moreover, in almost every instance, the court ordered the statement stricken from the record and instructed the jury to disregard it. In his final charge to the jury, the district judge again instructed the jury that “[t]estimony and exhibits to which I have sustained an objection, or which I have ordered stricken from the record do not constitute evidence and you must not consider it.” We also note that there is no indication that the prosecutor solicited the use of the word “cocaine” by Fox or Zaretsky. The prosecutor’s own single reference to “cocaine,” likewise, appears to have been inadvertent rather than deliberate. Under these circumstances, the district court’s denial of Lawson’s motions for a mistrial was not erroneous. See United States v. Kidd, 446 F.2d 1385, 1386 (5th Cir. 1971); United States v. Jiminez-Badilla, 434 F.2d 170, 174 (9th Cir. 1970); United States v. Schwartz, 398 F.2d 464, 470 (7th Cir. 1968), cert. denied, 393 U.S. 1062, 89 S.Ct. 714, 21 L.Ed.2d 705 (1969).

VII

Finally, Lawson contends that, with respect to the substantive count, there was a variance between the indictment and the evidence. The indictment for this count charged with the defendant and others did “in the Northern District of Illinois, Eastern Division, and elsewhere . . . import and cause to be imported ... cocaine . . . into the United States from Jamaica . . . .” The evidence was in variance with this, according to Lawson, since it indicated that (1) Lawson was in Jamaica at all times in question, and (2) Myrna Pierce flew with the substance to Baltimore from Jamaica and then from Baltimore to Chicago. Any importation, the defendant concludes, was to Baltimore, not to the Northern District of Illinois. This argument is frivolous. The indictment charges that the offense occurred in “the Northern District of Illinois, Eastern Division, and elsewhere.” (Emphasis added.) Moreover, even assuming a variance existed, the defendant has wholly failed to show its materiality. United States v. Morado, 454 F.2d 167, 170 (5th Cir. 1972), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116. Finally, the fact that Lawson resided in Jamaica during the time of the importation is irrelevant. Lawson instructed Pierce to transport the cocaine to the United States and was, therefore, liable as a principal. 18 U.S.C. § 2.

Affirmed.

      . The pattern of confusing and complex movements and interrelations frequently found in narcotics trafficking cases existed in the present case. We have not attempted to set forth a “blow-by-blow” summary.

      . The defense had a standing objection to all testimony regarding conversations and events outside the presence of the defendant. The defense, however, did not object to the display of the cocaine on the prosecutor’s table. The use of standing objections while perhaps facilitating the orderly uninterrupted presentation of testimony is, by its lack of articulation, not designed to point out particular errors to a trial court. Certainly a standing objection should not be given broader scope than is found in its establishing statement.

      . The defendant contends that “die prejudice resulting from the exhibition of a large amount of narcotics in a narcotics case is obvious and always incurable.” We reject such a per se rule which could only be based upon speculation. It could also be argued conversely to the position of the defendant that the jury would be prejudiced against the prosecution for attempting to influence them by showing them drugs which the trial judge said had no place in the case before them,

      . 18 U.S.C. § 3332(b) provides:
      “Whenever the district court determines that the volume of business of the special grand jury exceeds the capacity of the grand jury to discharge its obligations, the district court may order an additional special grand jury for that district to be impaneled.”

      . In United States v. Jonikas, 197 F.2d 675 (7th Cir. 1952), cert. denied, 344 U.S. 877, 73 S.Ct. 171, 97 L.Ed. 679, the defendant, in a collateral attack on the judgment under 28 U.S.C. § 2255, objected, inter alia, to the trial court’s definition of “reasonable doubt” and contended that “actually the Court gave no definition for reasonable doubt.” 197 F. 2d at 679. This court held, however, that the inadequacy of the charge did not amount to a denial of due process such as to oust the court of jurisdiction to enter the judgment. Id. See also Kenion v. Gill, 81 U.S. App.D.C. 96, 155 F.2d 176, 180 (1946).

      . The matter of the rule adopted herein for this circuit, i. e., that the failure to give a defining instruction of “beyond a reasonable doubt,” even though an acceptable instruction has been tendered, is not the basis for reversal, being apparently contrary to a rule which has been enunciated in several federal cases, the present opinion as to that point lias been circulated among all the judges of this court in regular service and no judge has voted that the matter be reheard en banc.

      . The district court made it abundantly clear that the proof must persuade beyond a reasonable doubt. Thus:
      “The burden of proving the defendant guilty beyond a reasonable doubt rests on the Government. This burden never shifts throughout the trial.
      “The law does not require a defendant to prove his innocence or to produce any evidence. If the Government fails to persuade you that the defendant is guilty beyond a reasonable doubt, then you must acquit him.
      “[yjou cannot find the defendant Lawson guilty of conspiracy unless you find beyond a reasonable doubt that he participated in the conspiracy as charged in the indictment with at least one other person.
      “What the evidence in the case must show beyond a reasonable doubt in order to establish proof that a conspiracy existed is that the defendant and other persons in some way or manner, through some contrivance, expressly or tacitly, came to a mutual understanding to try to accomplish a common and unlawful plan.
      “To establish specific intent, the Government must prove beyond a reasonable doubt that the defendant knowingly did an act which the law forbids, purposely intending to violate the law.”
      In addition to the foregoing examples, the district court in seven other instances relating to the evidence informed the jury of the necessity of proof beyond a reasonable doubt. Whether a jury understands all of the intricacies of complicated instructions, there can be little doubt that these jurors were aware that to convict they had to be persuaded beyond a reasonable doubt.

      . Thus, in Holland, supra, 209 F.2d at 523: “While the court’s definition of ‘reasonable doubt’ may not be a model of clarity and conciseness, we think it does suffice to convey the legally acceptable meaning of the term.”

      . The court charged, inter alia:
      “The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It requires only that you, after weighing all of the evidence, must be convinced of the defendant’s guilt beyond a reasonable doubt before you ran find him guilty.
      "Tlie burden of proving the defendant guilty beyond a reasonable doubt rests on the Government. This burden never shifts through the trial.
      “The law does not require a defendant to prove his innocence or to produce any evidence. If the Government fails to persuade you that the defendant is guilty beyond a reasonable doubt, then you must acquit him.

        ¡ii 5¡! ífc 3* $
      “You will, of course, first ascertain whether or not the substance in question is in fact cocaine as alleged, and in doing so you will consider all the evidence, in the case which may aid in the determination of that issue.” (Emphases added.)

      . Lawson’s acts of counselling, aiding and abetting Fox, Zaretsky, and Pierce in the importing of cocaine make Lawson responsible as a principal under 18 U.S.O. § 2.

       This, of course, is to be differentiated from the testimony that Lawson, himself, referred to the substance as “cocaine,” which was properly in evidence as an admission of a party.


source: Caselaw Access Project

author: LINDBERG, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellant, v. GIBSON SPECIALTY COMPANY and Patrick Zurla, Appellees. UNITED STATES of America, Appellant, v. PEERLESS PRODUCTS, INC., et al., Appellees. UNITED STATES of America, Appellant, v. EMPIRE PRESS, INC., et al., Appellees. UNITED STATES of America, Appellant, v. UNIVERSAL MANUFACTURING COMPANY et al., Appellees.
    Nos. 73-2988 to 73-2991.
    United States Court of Appeals, Ninth Circuit.
    Nov. 21, 1974.

      Frederick W. Read, III, Atty. (argued), U. S. Dept, of Justice, Washington, D.C., for appellant.
    Raymond J. Smith, of Crowley, Nash & Shea (argued), Chicago, 111., for Gibson Specialty Co.
    Michael B. Nash (argued) of Crowley, Nash & Shea, Chicago, 111., for Peerless Products, Inc.
    Ralph Wright (argued) of Sandall Moses & Cavan, Billings, Mont., for Empire Press, Inc.
    F. Russell Millin (argued) Kansas City, Mo., for Universal Mfg. Co.
    Before KOELSCH and SNEED, Circuit Judges, and LINDBERG, District Judge.

       The Honorable William J. Lindberg, Senior United States District Judge sitting by designation.

   OPINION

LINDBERG, District Judge.

On November 2, 1972, a federal grand jury in the district of Montana returned four separate multi-count indictments against the individual and business defendants named in the caption. The defendants are manufacturers of punch-boards and pulltabs. Violations of the travel act were charged. Motions to dismiss were filed by all of the defendants. The prosecution and the defendants entered into stipulations of fact. By agreement of counsel, the four actions were consolidated for a hearing. On August 17, 1973, the district court granted the motions to dismiss on the ground that the stipulated facts revealed commission of no crime within the purview of the travel act. The prosecution has appealed.

In urging reversal of the district court, the prosecution notes the applicable sections of the travel act and argues three points: (1) The travel act is meant to permit federal powers to aid in-state authorities in policing criminal activity the effect of which is local but the support and organization of which is national ; accordingly, the act must be construed as follows: (a) Because possession of punchboards and pulltabs is prohibited in Montana, certain distributors, to whom the defendants sold punchboards and pulltabs, were engaged in “unlawful activities.” (b) The defendants intended to and did “facilitate” the “unlawful activities” of the distributors by selling them punchboards and pulltabs in interstate commerce. (2) The legislative history of the federal statute banning interstate transportation of wagering paraphernalia suggests that that statute does not treat punchboards and pulltabs; however, the legislative history of the wagering paraphernalia statute does not control construction of the travel act, which has a broader reach. Erlenbaugh v. United States, 409 U.S. 239, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972). (3) It is irrelevant that the particular use made of interstate commerce is innocuous. Menendez v. United States, 393 F.2d 312 (5th Cir. 1968). The conclusion which the prosecution attempts to reach with this argument is: A sale of goods by an independent manufacturer effected through any medium in interstate commerce, which aids in certain kinds of violation of state law, is a violation of the travel act.

We do not agree. We hold that the district court’s dismissal of the four actions was proper because neither the defendants’ intention to facilitate nor the defendants’ actual facilitation of unlawful activities in Montana were shown. Having resolved the matter on this basis, we do not reach other issues raised by counsel.

This court has many times construed the travel act; and the scope of the act, although broad indeed, is not unlimited. United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974); United States v. Colacurcio, 499 F.2d 1401 (9th Cir. 1974); United States v. Donaway, 447 F.2d 940 (9th Cir. 1971); United States v. Cozzetti, 441 F.2d 344 (9th Cir. 1971); United States v. Roselli, 432 F.2d 879 (9th Cir. 1970); Marshall v. United States, 355 F.2d 999 (9th Cir. 1966); Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963). In order to mount a successful prosecution under those portions of the travel act applicable here, the following elements must be proved: (1) that an accused voluntarily used the facilities of interstate commerce; (2) that the accused attempted to or did in fact promote, manage, establish, carry on or facilitate the promotion, management, establishment or carrying on of any one of certain statutorily defined activities; and (3) that the accused formed a specific intent to promote, manage, establish, carry on or facilitate one of the prohibited activities. United States v. Gebhart, 441 F.2d 1261 (6th Cir. 1971). Put simply, the prosecution has failed to establish all elements of the offense. .

INTENT

In enacting the legislation involved here, Congress “required that there be intent to facilitate the carrying on of [some] business enterprise involving gambling in violation of state laws.” United States v. Miller, 379 F.2d 483, 486 (7th Cir. 1967). The burden is upon the United States to prove intent. Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963).

Where, as in the travel act, intent to facilitate a criminal venture is expressly made part of the offense, we cannot extend the statute by holding that proof of a lesser mens rea is sufficient to establish the crime. In our opinion, in order for a prosecutor to show that a manufacturer has violated the travel act by selling punchboards and pulltabs under circumstances similar to those involved here, the prosecutor must show that the manufacturer in some significant manner associated himself with the purchaser’s criminal venture for the purpose of its advancement. Were we not to define intent in the travel act in this manner, the act would be plagued by the very overexpansiveness which Congress sought to rule out by inclusion of an express mens rea requirement. Cf. United States v. Sin Nagh Fong, 490 F.2d 527 (9th Cir. 1974); United States v. Greer, 467 F.2d 1064 (7th Cir. 1972); United States v. Peoni, 100 F.2d 401 (2nd Cir. 1938); Model Penal Code § 2.06(3)(a).

Applying the test delineated above to the stipulated facts, we conclude that the requisite specific intent has not been shown. None of the stipulations shows more than that a non-Montana manufacturer has produced catalogues, filled orders for punchboards and pulltabs from Montanans, billed the buyers, and received payment. In fact, the prosecution has baldly conceded in two of the stipulations that the defendants have no financial interest in or control over the Montana distributorships to which the punchboards and pull-tabs were sold. There is no evidence in the record, direct or circumstantial, from which one could infer that the defendants associated with, participated in or sought to make succeed the Montana operations.

We have reached this conclusion without focussing upon the defendants’ knowledge of Montana law. It is a question whether any of the defendants here knew what Montana law was with respect to punchboards and pulltabs. And it is a question whether the familiar presumption that every person knows what the law forbids could aid the prosecution in establishing that defendants knew they were vending goods to violators of state law. Compare, Windsor v. United States, 384 F.2d 535 (9th Cir. 1967); United States v. Miller, 379 F.2d 483 (7th Cir. 1967); and Phillips v. United States, 356 F.2d 297 (9th Cir. 1965); with Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir. 1963). Nevertheless, we have assumed both that the defendants knew the text of the pertinent Montana statutes and that the construction placed on those statutes by the prosecution is correct. Even making these assumptions, we cannot find that the defendants by selling to Montanans intended, within the meaning of the travel act, to facilitate a violation of state law.

FACILITATION

In the context of the travel act as well as in that of other statutes, the term “facilitate” has been held to have its ordinary meaning: “to make easy or less difficult.” United States v. Judkins, 428 F.2d 333 (6th Cir. 1970); United States v. Miller, 379 F.2d 483 (7th Cir. 1967); United States v. Teemer, 214 F. Supp. 952 (D.W.Va.1963); United States v. Barrow, 212 F.Supp. 837 (D.Penn. 1962); United States v. One 1949 Ford Sedan, 96 F.Supp. 341 (D.N.C.1951). As some of the cited cases demonstrate, not every action which, in a literal sense, eases or renders less difficult a law violation has been held to constitute legal facilitation.

In Rewis v. United States, 418 F.2d 1218 (5th Cir. 1969), it was held that patronizing by interstate gamblers of a gambling establishment did not constitute “facilitation” such that the gamblers themselves could be charged with violation of the travel act. The United States Supreme Court expressly approved the position taken on this issue by the Court of Appeals for the Fifth Circuit. Rewis v. United States, 401 U.S. 808, 811, 91 S.Ct. 1056, 28 L.Ed.2d 493 (1971). In so doing the Court noted the maxim that any ambiguity in criminal statutes should be resolved in favor of lenity. See also, United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974). We are of the opinion that application of this familiar rule of statutory construction is warranted in the instant case.

There is another important consideration which leads us to our conclusion. A reading of the travel act as broad as that urged by the prosecution has the potential of altering sensitive federal-state relationships and could overextend limited federal police resources. Erlenbaugh v. United States, 409 U.S. 239, 247 n. 21, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972); United States v. Archer, 486 F.2d 670 (2nd Cir. 1973) (Friendly, J.).

The facts adduced here reveal aid and assistance to alleged Montana law violators of quite an attenuated nature. Moreover, were the kind of assistance rendered here held to constitute a violation of the travel act, a possible precedent would have been established for indicting lessors, servicemen, and vendors of all kinds, who deal interstate with certain types of offenders. Bringing the resources of the federal police power to bear upon acts of the sort involved in the instant case cannot have been the purpose of Congress in proscribing the acts enumerated within the statute. Consequently, we hold that, as a matter of law, “facilitation” within the meaning of the travel act has not occurred in the instant case.

CONCLUSION

The decision of the district court is affirmed. The stipulated facts do not show “intent to facilitate” the carrying on of a business enterprise involving gambling in violation of state law. Alternatively, the stipulated facts do not show actual “facilitation” of such a business enterprise.

APPENDIX

Excerpts from the stipulations entered into by the prosecution and the four groups of defendants appear below.

A

The stipulation between the prosecution and Gibson Specialty Company and Patrick Zurla provides in part:

I

That the individual defendants are the owners and operators of a manufacturing firm, doing business as Gibson Specialty Company, a defendant, of Chicago, Illinois, which has for sale, among other things, punchboards.

II

That each of the alleged and designated co-conspirators were residents of the State of Montana.

That co-conspirator T. J. Small of Mis-soula, Montana, if called, would testify that he did as follows: “On many different occasions between December 7, 1967, and June 25, 1971, order certain punchboards from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to T. J. Small in Missoula, Montana, as evidenced by original invoices, freight bills and personal checks marked as to the specific counts of the Indictment filed herein that they correspond with.”

That co-conspirator Wesley Mullaney, doing business as Jerry’s Distributing Company, Butte, Montana, if called, would testify that he did as follows: “On many different occasions between December 20, 1967, and September 28, 1971, order certain punchboards from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to Wesley Mullaney of Butte, Montana, doing business as Jerry’s Distributing Company, as evidenced by original invoices, freight bills and personal checks marked as to the specific counts of the Indictment filed herein that they correspond with.”

That co-conspirator C. Bernard Heiser of Baker, Montana, doing business as Ace Novelty Company, if called, would testify that he did as follows: “On December 2, 1968, order punchboards from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to C. Bernard Heiser of Baker, Montana, as evidenced by original invoices, freight bills and person [sic] checks marked as to the specific counts of the Indictment filed herein that they correspond with.”

III

If called to testify, T. J. Small, Wesley Mullaney doing business as Jerry’s Distributing Company and C. Bernard Heiser doing business as Ace Novelty Company would say that upon receipt of the merchandise from defendants as set forth above, they would pay the amount requested by the defendants, as indicated on invoices prepared by the defendants, by sending business checks to the defendants which were cashed in the normal course of banking, some of said checks being attached and marked as to the specific counts of the indictment filed herein that they correspond with.

IV

That if called, T. J. Small, Wesley Mul-laney doing business as Jerry’s Distributing Company, and C. Bernard Heiser doing business as Ace Novelty Company, would say that after receipt of the merchandise, they would and did distribute and resell the merchandise to persons and firms unknown to the defendants which firms or persons offered and sold the same for the use of the general public in the State of Montana.

VII

Nothing in this stipulation shall preclude any defendant from presenting any competent evidence with respect to any indictment filed concerning the question of conspiracy between the parties named in the indictment or other persons or with respect to their knowledge and intent to violate the law.

B

The stipulation between the prosecution and Peerless Products, Inc., Marshall Maltz and Benjamin Maltz provides in part:

I

That the individual defendants are the owners and operators of a manufacturing firm, doing business as Peerless Products, Inc., a defendant, of Chicago, Illinois, which has for sale, among other things, punchboards.

II

That each of the alleged and designated co-conspirators were residents of the State of Montana. That if called, co-conspirator Wesley Mullaney, doing business as Jerry’s Distributing Company of Butte, Montana, would testify that he did, on many different occasions between December 22, 1967, and June 17, 1971, order certain punchboards from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to Wesley Mullaney, doing business as Jerry’s Distributing Company, Butte, Montana.

That if called, co-conspirator P. K. Dickson, doing business as Havre Distributing Company, Havre, Montana, would testify that he did, on many different occasions between July 1, 1967, and March 16, 1972, order certain punch-boards from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier and delivered to P. K. Dickson, doing business as Havre Distributing Company, Havre, Montana.

Ill

If called, Wesley Mullaney, doing business as Jerry’s Distributing Company and P. K. Dickson, doing business as Havre Distributing Company, Havre, Montana, would testify that upon receipt of the merchandise from defendants as set forth above, they would pay the amount requested by the defendants, as indicated on invoices prepared by the defendants, by sending business checks to the defendants which were cashed in the normal course of banking, as appears on original invoices as attached and marked as to the specific counts of the indictment filed herein that they correspond with. .

V

Nothing in this stipulation shall preclude any defendant from presenting any competent evidence with respect to any indictment filed concerning the question of conspiracy between the parties named in the indictment or other persons or with respect to their knowledge and intent to violate the law.

VI

If called, Wesley Mullaney, doing business as Jerry’s Distributing Company, and P. K. Dickson, doing business as Havre Distributing Company, would testify that after receipt of the punch-boards, they would and did distribute and resell the merchandise to persons and firms unknown to the defendants, which persons and firms then offered and sold the same for the use of the general public in the State of Montana.

C

The stipulation between the prosecution and Empire Press, Inc., Sylvia Zimmerman, Abraham Zimmerman and Herman Ellyne provides in part:

I

That the individual defendants are the owners and operators of a manufacturing firm, doing business as Empire Press, Inc., a defendant, with its principal place of business in Chicago, Illinois, which manufactures and has for sale, among other things, punehboards, bingo refills, pulltabs.

II

That the Empire Press, Inc. had produced and distributed catalogues and price lists for their merchandise, which were available to and used by the alleged and designated co-conspirators of the indictment to order merchandise therefrom.

III

That each of the alleged and designated co-conspirators were residents of the State of Montana. That co-conspirator P. K. Dickson, doing business as Havre Distributing Company of Havre, Montana, did, on many different occasions between November 21, 1967, and March 20, 1972, order certain punehboards, bingo refills, Montana Jar-O, and other gambling paraphernalia from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to P. K. Dickson, doing business as Havre Distributing Company, Havre, Montana.

That co-conspirator Wesley Mullaney, doing business as Jerry’s Distributing Company, Butte, Montana, did, on many different occasions between January 4, 1968, and March 22, 1972, order certain punehboards, spindle refills and other gambling paraphernalia from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to Wesley Mullaney of Butte, Montana, doing business as Jerry’s Distributing Company.

That co-conspirator C. Bernard Heiser, doing business as Golden Surprise of Baker, Montana, did, on many different occasions between June 11, 1968, and May 18, 1969, order certain punch-boards, pulltabs and other gambling paraphernalia from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Chicago, Illinois, by the defendants, using the facilities of a common carrier, and delivered to C. Bernard Heiser, doing business as Golden Surprise of Baker, Montana.

IV

That upon receipt of the merchandise from defendants as set forth above, P. K. Dickson, doing business as Havre Distributing Company, Wesley Mullaney, doing business as Jerry’s Distributing Company and C. Bernard Heiser, doing business as Golden Surprise, would pay the amount requested by the defendants, as indicated on invoices prepared by the defendants, by sending business checks to the defendants which were cashed in the normal course of banking. .

VI

That after receipt of the punchboards, bingo refills, pulltabs, Montana Jar-O, spindle refills and other gambling paraphernalia, P. K. Dickson, doing business as Havre Distributing Company, Wesley Mullaney, doing business as Jerry’s Distributing Company, and C. Bernard Heiser, doing business as Golden Surprise would and did distribute and resell the merchandise to persons and firms unknown to the defendants. .

VIII

That the defendants in this case have no financial interest in or control over any of the businesses owned or operated by any of the co-conspirators named in the indictment.

IX

That none of the defendants, or personal representatives of the defendants, except their attorney, have been in the State of Montana at any time germane to this action. .

D

The stipulation between the prosecution and Universal Manufacturing Company, Joyce Wilner and Oscar Wilner provides in part:

1. Defendant Joyce A. Wilner owns and defendant Oscar Norman Wilner manages the manufacturing firm doing business as Universal Manufacturing Company, a corporate defendant named herein, whose principal place of business is at Kansas City, Missouri.

2. That T. J. Small, of Missoula, Montana, P. K. Dickson, dba Havre Distributing Company, Havre, Montana, Wesley Mullaney, dba Jerry’s Distributing Company, Butte, Montana and C. Bernard Heiser, of Baker, Montana, were and are residents of the State of Montana.

3. That T. J. Small of Missoula, Montana, did on many different occasions between April 12, 1968 and June 18, 1971, order certain punchboards, bingo refills and red, white and blue singles, from the defendants, or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Kansas City, Missouri, by the defendants, using the facilities of a common carrier, and delivered to T. J. Small in Missoula, Montana.

That P. K. Dickson, doing business as Havre Distributing Company, Havre, Montana, did, on many occasions between May 18, 1967 and December 12, 1971, order certain bingo refills and red, white and blue singles from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Kansas City, Missouri, by the defendants, using the facilities of a common carrier, and delivered to P. K. Dickson, of Havre, Montana, doing business as Havre Distributing Company.

That Wesley Mullaney, doing business as Jerry’s Distributing Company, Butte, Montana, did, on many occasions between January 23, 1968 and August 4, 1971, order certain bingo refills and red, white, and blue singles from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Kansas City, Missouri by the defendants, using the facilities of a common carrier, and delivered to Wesley Mullaney of Butte, Montana, doing business as Jerry’s Distributing Company.

That C. Bernard Heiser of Baker, Montana, did, on January 20, 1971, order 250 regular 30-seetion tip punch-boards, from the defendants or their employees, either by telephone or other form of interstate communication. The merchandise was subsequently shipped from Kansas City, Missouri, by the defendants, using the facilities of a common carrier, and delivered to C. Bernard Heiser of Baker, Montana.

4. That upon receipt of the merchandise from the defendants as set forth above T. J. Small, P. K. Dickson, doing business as Havre Distributing Company, Wesley Mullaney dba Jerry’s Distributing Company and C. Bernard Hei-ser would pay the amount requested by the defendants, as indicated on the invoices prepared by the defendants, by sending business checks to the defendants which were cashed in the normal course of banking. . . .

6. After receipt of the punchboards, bingo refills, red, white, and blue singles, T. J. Small, P. K. Dickson dba Havre Distributing Company, Wesley Mullaney dba Jerry’s Distributing Company, and C. Bernard Heiser would and did distribute and resell the merchandise to persons and firms unknown to the defendants. .

8. Defendants Oscar Norman Wilner and Universal Manufacturing Company have no financial interest in or control over any of the businesses operated or owned by any of the co-conspirators named in the indictment.

9. Neither defendant Oscar Norman Wilner nor any personal representative of defendant Universal Manufacturing Company, except their attorney, has been in the State of Montana at any time during the period 1967 to date. .

      . IS U.S.C. § 1952 (1970). The act provides :
      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in subpara-graphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury.

      . The indictments charged the defendants, inter alia,, with facilitating violation of Rev. Codes of Mont. §§ 94-2401, 94-2404 (1969). Those sections provide :
      94 — 2401. Every person . . . who conducts, or causes to be conducted, operates or runs . . . any game of chance played with cards, dice or any device whatsoever, or who runs or conducts or causes to be run or conducted, or keeps any slot machine, punchboard, or other similar machine or device, or permits the same to be run or conducted for money, checks, credits, or any representative of value, or any property or thing whatsoever, or any person owning or in charge of any cigar store, drugstore, or other place of business, or any place where drinks are sold or served, who permits any of the games prohibited in this section to be played, in or about such cigar store, drugstore or other place of business, or permits any slot machine, punchboard, or similar device to be kept therein . . . and every person who plays or bets at or against said prohibited games or devices ... is guilty of a misdemeanor
      94-2404. Any person who lias in his possession . . . any machine or apparatus of the kind mentioned in the preceding section of this act, is punishable by a fine . . . and may be imprisoned

      . Pertinent portions of these stipulations are set forth in the Appendix.

      . IS T’.S.O. § 3953 (1970).

      . It should be noted that, although review technically is of a motion to dismiss, we take the view that the stipulated facts represent the sum of the prosecution’s case. Thus, rather than the sufficiency of the indictment, the sufficiency of the government's proof lias been tested.

      . The defendants in two of the four actions reserved the right to present at trial, ns they might properly have done, evidence negativing knowledge of and intent to violate state law.

      . At oral argument counsel for the United States informed us that, under any circumstances, possession of a punchboard or pull-tab in Montana constituted a violation of Rev.Codes of Mont. § 94-2404. By making this assumption we neither approve nor disapprove the prosecution’s construction of that statute.

      . The presumption that one intends the natural and probable consequences of his actions is insufficient in this context to establish intent to facilitate criminal activity. It is as likely as not that a vendor similar to the defendants in this proceeding is totally indifferent to the actions of his purchaser.

      . Our research lias revealed no cases where a remote seller, nninvolved in an actual gain-bling operation, lias been successfully tried and convicted under the travel act.


author: CARTER, Judge.

text:
    Gordon REEVES, d/b/a Gordon Reeves Chevron Station, and Edward McCullough, Plaintiffs-Appellees, v. William E. SIMON, Director, Federal Energy Office, and Donald C. Alexander, Commissioner of Internal Revenue, Defendants-Appellants.
    No. 9-18.
    Temporary Emergency Court of Appeals.
    Nov. 27, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1426.

      Allen W. Hausman, Dept, of Justice, Washington, D.C. (Carla A. Hills, Asst. Atty. Gen., New York City, and Stanley D. Rose, Dept, of Justice, Washington, D. C., with him on the brief), for defendants-appellants.
    Michael J. Meehan, Robertson, Molloy, Ficket & Jones, Tucson, Ariz., for plaintiffs-appellees.

      Before CARTER, HASTIE and CHRISTENSEN, Judges.
   CARTER, Judge.

This is an appeal from the order of the United States District Court for the District of Arizona, enjoining the Federal Energy Office (FEO) from enforcing certain of its regulations with respect to retail fuel allocation, and denying the FEO’s motion for summary judgment against plaintiff-appellee, Gordon Reeves. The district court held that 10 C.F.R. Chapter II, Part 210, Subsection 210.62(b) of the Mandatory Petroleum Price & Allocation Regulations, which prohibited retail gasoline service stations from limiting sales of all or part of their monthly gasoline allocation to their regular customers to the exclusion of other motorists, was invalid, arbitrary, discriminatory and without a rational basis, and its adoption invalid for failure to comply with Administrative Procedure Act (hereafter APA) and Emergency Petroleum Allocation Act (hereafter EPAA) procedural requirements. The FEO disputes the validity of this holding in all respects. We reverse.

FACTS

Gordon Reeves is sole proprietor of an independent Chevron-branded retail service station located on the main thoroughfare of a residential neighborhood in Tucson, Arizona. His primary source of income is derived from the sale of gasoline and the provision of repair services and accessory sales.

The October, 1973, embargo of crude oil and petroleum products by the Arab nations produced shortages of all petroleum products, including gasoline. When gasoline supplies began to get short, Reeves experienced severe difficulties, with two primary results: 1) long lines of customers (many making very small quantity purchases) forced him and his employees to spend virtually full time during most of the day at the gas pumps, thereby neglecting service work. Accessory sales and repair service thus were greatly diminished due to the long delays; 2) the long delays and lengthy lines for gasoline sales so disrupted operations that normal and longstanding customer relationships were jeopardized.

To combat the situation, Reeves divided his daily gasoline supply in half, conducting “open sale” to any member of the general public in the morning and, when one-half of the gasoline had been used, making the remaining half available to established customers in the afternoon.

In January and February of 1974 the long lines at service stations caused many other service station owners to curtail the days and hours of gasoline sales and impose restrictions on the amount of gasoline sold to individual motorists, causing instances of violence and the inability of many non-“regular” customers to obtain any gasoline at all. In response to this virtual crisis situation, the FEO added subsection (b) to § 210.62. This subsection provided:

“(b) No supplier shall engage in any form of discrimination among purchasers of any allocated product. For purposes of this paragraph discrimination means extending any preference or sales treatment which has the effect of frustrating or impairing the objective, purposes and intent of the chapter or of the Act, and includes but is not limited to refusal by a retail marketer of motor gasoline or diesel fuel to furnish or sell an allocated product due to the absence of a prior selling relationship with the purchaser or establishment of a new volume purchase arrangement where customers of retailers agree in advance to purchase in excess of normal amounts . . . and thereby receive preferential treatment.” (Emphasis added)

The subsection was made effective immediately and was not sent to the Attorney General or the FTC for comment as to its possible anti-competitive effect.

I

COMPLIANCE WITH § 553(d) OF THE ADMINISTRATIVE PROCEDURE ACT

Section 553(d) of the APA, 5 U.S.C. § 553(d), provides in pertinent part:

“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except .
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published with the rule.”

Reeves contends that the amendment to § 210.62 was a substantive change in the law and was not merely “interpretative.” Further, he contends that the FEO based its failure to give 30-day notice on § 553(d)(2) of the APA and therefore cannot now justify its action on the good cause exception of § 553(d)(3). We reject both contentions.

In promulgating § 210.62(b), the FEO indicated its decision to dispense with the 30-day notice period with the following language:

“This amendment is issued today in an effort to end the growing practice of sellers providing preferential treatment to customers on the basis of longstanding relationships or for any other reason. The FEO has noted a serious alteration in established business practices — particularly with respect to gasoline and diesel fuel retail sales — which result in certain purchasers being served, while other are wholly excluded.
“The amendment to § 210.62 concerning ‘normal business practices’ is addressed to this situation as well as to other preferential sales devices. Sellers whose normal business practice has been to serve the public may not modify that practice to sell only to ‘regular customers’ or otherwise discriminate among purchasers of an allocated product. .
“Because the purpose of these amendments is to provide immediate guidance and information with respect to the mandatory petroleum allocation and price regulations, the Federal Energy Office finds that normal rule-making procedure is impracticable and that good cause exists for making these amendments effective in less than 30 days.” (Emphasis added).

The FEO thus believed that the amendment was necessary to combat “a serious alteration in established business practices,” in violation of original § 210.62. The new subsection (b) could properly be seen to be “interpretative” of what was meant by “normal business practices.” In that case, there would have been no need for the FEO to explain its decision to dispense with the 30-day notice requirement. Clearly, then, by indicating that normal rulemaking procedures were “impracticable” and that “good cause exists” due to the need for “immediate guidance”, the FEO intended from the outset to comply with the provisions of § 553(b) (B) and (d)(3) (good cause).

We are satisfied that there was in fact “good cause” to find that 30-day notice was “impracticable, unnecessary, or contrary to the public interest” within the meaning of § 553(b) (B). Like DeRieux, et al. v. Five Smiths, Inc., Em.App., 499 F.2d 1321 (1974), cert. denied, sub nom. Five Smiths, Inc. v. Holloway,-U.S.-, 95 S.Ct. 176, 41 L.Ed.2d 141. (1974), “[t]his conclusion is based upon facts so obvious that they may be judicially noticed.” Id. at 1332. The gasoline shortage was a temporary, but highly disruptive, national emergency. The long lines and violence required immediate action. Some purchasers were being served, while others were totally excluded. Under these circumstances, we find that the promulgation of § 210.62(b), with accompanying statement of good cause for dispensing with the 30-day notice requirement, was in conformance with the APA.

II

COMPLIANCE WITH § 6(c)(3) OF THE EMERGENCY PETROLEUM ALLOCATION ACT

In Section 4(a) of the Emergency Petroleum Allocation Act of 1973, Congress directed the President to exercise the authority delegated to him by the Act by issuing “a regulation providing for the mandatory allocation of crude oil, residual fuel oil, and each refined petroleum product, in amounts specified in and at prices specified in such regulation.” A precise timetable and specific procedures were established, including, in § 6(c)(3), that:

“The regulation promulgated under section 4(a) of this Act shall be forwarded on or before the date of its promulgation to the Attorney General and to the Federal Trade Commission, who shall, at least seven days prior to the effective date of such regulation, report to the President with respect to whether such regulation would tend to create or maintain anticompetitive practices or situations inconsistent with the antitrust laws, and propose any alternative which would avoid or overcome such effects while achieving the purposes of this Act.”

In issuing the initial allocation and price regulation, the FEO duly complied with each of the foregoing requirements. Reeves, however, contends that the FEO was also required to submit all substantive amendments to the Attorney General and the FTC, and that § 210.62(b), having not been so forwarded, was thereby invalid. We disagree.

The detailed and specific manner for issuing the allocation and price regulation contained in the EPAA cannot reasonably be interpreted to apply to any FEO action but the initial promulgation of the § 4(a) mandated regulation. After the initial promulgation, the established rulemaking procedures of the APA were to control. This is made evident by the incorporation in § 5(a)(1) of the EPAA of §§ 205 through 211 of the Economic Stabilization Act. Section 207 of that Act makes the rulemaking provisions of § 553 of the APA applicable to the FEO.

This interpretation of § 6(c)(3) is also supported by the legislative history of the EPAA. The House Report, U.S. Code Cong. & Admin.News 1973, pp. 2582, 2599, 2600, in a section-by-section analysis of the Act, interprets § 6(c)(3) to require reports from the Attorney General and the FTC on the “promulgation” of “the regulation” a week before “the effective date of such regulation.” By contrast, § 7(a) is described as requiring the FTC “during the forty-five day period beginning on the effective date of the regulation first promulgated under section b, to monitor the program established under such regulation; and not later than sixty days after such effective date to report . . . respecting the effectiveness of the bill and actions taken pursuant thereto.” (Emphasis added).

The two-step process envisioned, then, was initial submission of the program to the Attorney General and the FTC, with subsequent review of the bill and actions “taken pursuant thereto” without submission of each action on a piecemeal basis. In light of the emergency nature of the authority delegated to the FEO and the difficulty of its duty to establish complex but fair procedures within a short time, a requirement that it submit any and every amendment to the Attorney General and the FTC would be counterproductive. We do not believe that the Act itself or the legislative history thereof establish such a requirement.

Ill

SECTION 210.62(b) WAS NEITHER ARBITRARY NOR DISCRIMINATORY AND HAD A RATIONAL BASIS

Section 2(b) of the EPAA provides:
“The purpose of this Act is to grant to the President . . . specific temporary authority to deal with shortages of crude oil, residual fuel oil, and refined petroleum products or dislocations in their national distribution system. The authority granted under this Act shall be exercised for the purpose of minimizing the adverse impacts of such shortages or dislocations on the American people and the domestic economy.”

Among the objectives to be accomplished “to the maximum extent practicable” are:

“Sec. 4(b)(1)
(D) preservation of an economically sound and competitive petroleum industry; including the priority needs to restore and foster competition in the producing, refining, distribution, marketing, and petrochemical sectors of such industry, and to preserve the competitive viability of independent refiners, small refiners, nonbranded independent marketers, and branded independent marketers;
•X- -X- -X- -X- * -X-
(F) equitable distribution of crude oil, residual fuel oil, and refined petroleum products at equitable prices among all regions and areas of the United States and sectors of the petroleum industry, including independent refiners, small refiners, nonbranded independent marketers, branded independent marketers, and among all users;
* -X- * -X -X- -X-
(I) minimization of economic distortion, inflexibility, and unnecessary interference with market mechanisms.”

Reeves contends, and the district court so held, that the effect of § 210.-62(b) was to destroy the competitive viability of branded independent retailers by forcing them to supervise a rationing system, with adverse impact upon the repair service and accessory sales portions of their businesses. This contention misconceives the burden and the duty of the FEO in attempting to effectuate the mandate of the EPAA. It would have been an impossibility to achieve all of the objectives in § 4(b)(1), supra. Priorities had to be established. The FEO attempted to minimize the adverse impacts of the shortages on the American people, and to ensure an “equitable distribution of refined petroleum products . among all users.” It did not establish a rationing system, but instead merely forbade alteration of normal business practices so as to give preference to “regular” customers. The fact that Reeves suffered a loss of service and accessory income for a portion of one month does not invalidate the choice made by the FEO.

This court has recognized a strong presumption in favor of administrative decisions by those agencies charged with immediate administration of a new federal statute. See University of Southern California v. Cost of Living Council, 472 F.2d 1065, 1068-1069 (Em.App. 1972) ; Pacific Coast Meat Job. Ass’n v. Cost of Living Council, 481 F.2d 1388, 1391-1392 (Em.App.1973) ; Mandel v. Simon, 493 F.2d 1239, 1240 (Em.App. 1974). In Mandel, supra, the court stated: “The Federal Energy Office must have great flexibility during the formative period of regulation. Judicial interference at this time may delay rather than advance effective regulation of this area.” Id. at 1240. See also Note, Phase V: The Cost of Living Council Reconsidered, 62 Geo.L.J. 1663, 1669-1673 (1974).

In issuing § 210.62(b), the FEO was attempting to minimize the impact of the shortage by spreading what gasoline there was to as many people as possible, and to prevent discrimination against non-regular customers. A first-come, first-served policy (except for those performing essential functions, i. e., doctors, policemen, etc.), was no more inequitable than any other solution and has been approved in another context by the Supreme Court. See L. P. Steuart & Bro. v. Bowles, 322 U.S. 398, 404-406, 64 S.Ct. 1097, 88 L.Ed. 1350 (1944).

Although the FEO could have provided for preferential treatment for identifiable commercial customers, or for a half and half system like that established by Reeves, the administrative problems in identifying “regular” customers at the retail level would have been immense. Most retailers would have been basing their preferential treatment on affidavits and non-reviewable standards. The possibility of unjustified discrimination would have been great. Whether or not plans could have been devised which would better effectuate the objectives of the EPAA, we cannot say that the plan chosen, and § 210.-62(b) in particular, was without a rational basis.

We reverse and remand for entry of summary judgment against the plaintiff-appellee.

      . Section 210.62, as originally promulgated, provided in pertinent part:
      “Suppliers will deal with purchasers according to normal business practices. . . . [N]o supplier may require or impose discriminatively more stringent credit terms or payment schedules on purchasers than the normal business practice of the supjdier, nor may any supplier modify any other normal business practice so as to result in circumvention of any provision of this chapter.”

      . Section 553(b) (B) provides that normal rulemaking procedures do not apply
      “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public j>rocedure thereon are impracticable, unnecessary, or contrary to the public interest.”