author: ROBERT P. ANDERSON, Circuit Judge:

text:
    UNITED STATES of America, Appellant, v. Francisco ARTIERI and Hiram Reyes Gonzales, Appellees.
    No. 196, Docket 73-1771.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 11, 1973.
    Decided Jan. 23, 1974.

      Robert B. Cohen, Hartford, Conn., for appellee Gonzales.
    Igor I. Sikorsky, Jr., Hartford, Conn., for appellee Artieri.
    Randolph C. Roeder, Asst. U. S. Atty., District of Connecticut (Stewart H. Jones, U. S. Atty., District of Connecticut, on the brief), for appellant.
    Before FRIENDLY, ANDERSON and MULLIGAN, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

On the night of September 12, 1972, one Gregouir Bosques informed Detective Paul Slyman of the Willimantic, Connecticut, Police Department that the defendant Francisco Artieri, whom Sly-man knew to be a “big heroin dealer in Willimantic,” had asked him to help “cut and bag” heroin the following day; but Bosques said he did not know when or where the operation would occur. At about 11:00 p. m. Slyman relayed this information to Special Agent Joseph Keefe of the Federal Bureau of Narcotics and Dangerous Drugs. The next morning at 8:30, Keefe went to the home of Bosques, who then told him that Artieri and defendant Hiram Reyes Gonzales planned to divide a quantity of heroin at Gonzales’ dwelling sometime that day. Bosques told the agent that Gonzales did not keep heroin in his apartment and that he did not know when it would be delivered there.

The arrangements called for Bosques to meet Artieri before going to Gonzales’ residence. He arrived at Artieri’s home at 9:15, but found that Artieri was sleeping, and Bosques waited outside until Artieri appeared. Six agents and Slyman also waited, not knowing from moment to moment when Artieri might awaken, but standing ready to follow him when he did. Artieri came out at 10:30 and Bosques drove him to Gonzales’ home. The agents followed and continued their surveillance there. At 10:40, shortly after Bosques and Artieri, followed by the agents, had arrived, Gonzales drove up, and accompanied by Bosques and Artieri, went into his house, which was a three-floor apartment unit.

At 11:50, the informer gave the agents a prearranged signal indicating that heroin was being cut and bagged. Three of the federal agents immediately approached the front door. Special Agent O’Brien knocked loudly, and while the door, which was not latched, swung open, he shouted that they were federal agents; they paused for about three seconds and then entered. Keefe and Sly-man, and the remaining two agents sought to gain entrance through the rear door but found it locked. There was evidence that Artieri was known to carry a gun and at least two of the agents, therefore, had their guns drawn.

None of the agents knew where in the house the defendants were, and two of them went upstairs, looking for them. Special Agent Sloboda, who had remained on the first floor, found them cutting heroin at the kitchen table. He placed them under arrest and opened the back-door for the agents waiting there. The other two agents had already joined him. Approximately 169.7 grams of heroin and paraphernalia were seized from the table. After the arrests, the upstairs rooms, their closets, bureau drawers and mattresses were searched. Some of the officers also searched the basement and found and seized some additional contraband there.

On February 5, 13, and 14, 1973, the district court held a hearing on a defense motion to suppress the evidence of the 169.7 grams of heroin seized from the table at the time of arrest. In reliance on Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den., 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the court excluded the evidence as the product of a planned, warrantless search in violation of the Fourth Amendment.

Because “the evidence is a substantial proof of a fact material in the proceeding” the United States has appealed under 18 U.S.C. § 3731 and contends that no warrant was required.

The trial court, at the time of its ruling did not have available the opinion of this court, decided October 1, 1973, in United States v. Santana, 485 F.2d 365, 369-370 and n. 8 (2 Cir. 1973), which commented on the reach of Coolidge; nor did it have the very recent decisions of the Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) and Gustafson v. State of Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, 1973, which relate to seizures incidental to arrests. We are of the opinion that the trial court’s conclusion that this was a planned warrant-less search was a misinterpretation of the events.

The Court in Coolidge limited the scope of a warrantless search at the scene of an arrest but explicitly refrained from requiring a warrant for a search incidental to an arrest, 403 U.S. at 482, 91 S.Ct. 2022. Two separate opinions warned against imposing such a limitation. Id., at 509, 91 S.Ct. 2022 (Black, J.), and at 519, 91 S.Ct. 2022 (White, J.). It is this view that has recently been reaffirmed in United States v. Robinson, supra. Instead of being concerned with incidental searches the plurality’s discussion (section IIC) was directed against the proposition that an unlimited “plain view” exception should be recognized as a co-equal justification for seizure along with action taken pursuant to a search warrant or a seizure made incidental to an arrest. It said, “This Court has never permitted the legitimation of a planned warrantless seizure on plain-view grounds. . . .” 403 U.S. at 471, n. 27, 91 S.Ct. at 2041. (Emphasis in the original text.) “Coolidge teaches that where the police have ample opportunity to obtain a search warrant and the intention to seize the evidence is really the prime motivation for the arrest, the plain view exception does not apply.” United States v. Lisznyai, 470 F.2d 707, 710 (2 Cir. 1972), cert. den., 410 U.S. 987, 93 S.Ct. 1516, 36 L.Ed.2d 184 (1973). See also United States v. Santana, supra.

Although in the present case the narcotics were openly on the table, the plain view exception was not the basis for the seizure nor was any attempt made to claim that it was. The purpose of the entry was to arrest those whom the agents had probable cause to believe were in illegal possession of narcotics. The seizure was amply justified by the fact that the contraband was right in front of the defendants, and within their easy reach. It was plainly accessible to them and under their immediate control at the moment they were placed under arrest. United States v. Robinson, supra; Gustafson v. State of Florida, supra; Chimel v. California, 395 U. S. 752 at 763, 89 S.Ct. 2034, 23 L.Ed.2d 685.

In Robinson the Court said, “it is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment”, 414 U.S. 218, at 224, 94 S.Ct. 467, at 471, and that the exception covers “the area within the control of the arrestee.”

The district court based its conclusions on the assumption that “the prime motivation for the initial intrusion into the defendant’s [Gonzales’] apartment and the arrest was the seizure of the heroin . . .” But the initial effort upon entry was to locate the defendants, and the record points to the apprehension of Artieri (the big heroin dealer in Willimantic) and those operating with him as the prime motivation. The evidence sought to be suppressed in this proceeding consisted only of the 169.7 grams of heroin and accompanying paraphernalia taken from the table and from the immediate possession and control of the defendants as incidental to the arrest.

We now turn to the entry issue. The defendants-appellees make the claim that the entry by the agents into Gonzales’ apartment violated their Fourth Amendment rights and those under 18 U.S.C. § 3109, because the agents did not announce their purpose, at the time they knocked and identified themselves, or pause long enough to permit the suspects to refuse admittance. This issue was raised at the hearing in the district court, but that court suppressed the evidence because no warrant had been obtained, and it never reached the question. The record, however, shows that the circumstances of the entry into the apartment were fully gone into by the parties; and, if we accept the evidence presented by the defendants as the story of the entry and compare it with that offered by the Government, it is apparent that there is no material issue of fact in the case, insofar as the circumstances of the entry are concerned. It may also be noted that the defense testimony disclosed that the agents and police had reasonable grounds to believe that it was likely that defendant Artieri, but not the defendant Gonzales, was armed. Under these circumstances we see no need to remand the proceedings for findings by the trial court. The facts concerning the entry by the agents and police into Gonzales’ apartment are those stated heretofore in this opinion.

18 U.S.C. § 3109 provides as follows :

“The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

The Supreme Court in the case of Miller v. United States, 357 U.S. 301, 306, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), held, in effect, that the provisions of § 3109 applied not only to cases in which a warrant had been issued, but to those as well, which rested on probable cause alone. See Sabbath v. United States, 391 U.S. 585, 588, 88 S.Ct. 1755, 20 L.Ed.2d 828-(1968). Then in Ker v. California, 374 U.S. 23, 48, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the Court, both the majority and minority, made it clear that the criteria set out in § 3109 did not in all cases have to be literally fulfilled or carried out to constitute an entry which did not violate the Fourth Amendment, or, for that matter, contravene the statute itself. They disagreed on what exceptions should be recognized. The minority, enunciating the stricter standards, described them in terms of three particular situations, the first of them being, “(1) where the persons within already know of the officers’ authority and purpose.”

This and the other two exceptions were later adopted by reference by a majority of the Court in its opinion in Sabbath v. United States, supra, which expressly held that these limited exceptions also applied to § 3109. The first exception is recited in full because it is the only one applicable to the present case.

The forcible entry of narcotics agents into a private apartment was the subject of an en banc decision by this court in an opinion which thoroughly discussed the statute, § 3109, and the cases which had a bearing on its application. United States v. Manning, 2 Cir., 448 F.2d 992 at 997-1002. In commenting on the question whether or not the defendant, Manning, who was inside of the apartment entered by the police (as Artieri and Gonzales were in the present case), could be said to be “[a person] within [who] already [knew] of the officers’ authority and purpose” the court said:

“. . . when an officer knocks on the door of an apartment occupied by an experienced narcotics violator, which is reasonably believed by him to be so, and clearly identifies himself as a Federal agent, there is sufficient compliance with the spirit of the statute even if perhaps not with the strict letter. A knock is at least a request for entry, and a trafficker in narcotics who has been told that this is being made by a Federal agent can have no real doubt that the purpose is arrest, search, or both, or that, if the request is not honored, something more will speedily follow. . . .” 448 F.2d 1000-1001.

This aptly describes the officers’ conduct in this case and brings the entry within the first exception. It therefore violated neither the Fourth Amendment nor the statute. Sabbath v. United States, 391 U.S. at 591, 88 S.Ct. 1755, 20 L.Ed.2d 828.

In addition, the agents making the entry had reasonable grounds to believe and did believe that the defendant Artieri was likely to be armed. They were, therefore, faced with an exigent situation, and it was unnecessary for them to announce their purpose in making the entry and to pause to enable the defendants to refuse admittance. Sabbath, supra at 591, 88 S.Ct. 1755. Neither the Fourth Amendment rights nor the § 3109 statutory rights of either of the defendants were so violated through any of the circumstances attending the entry by the officers into the apartment, as to require the suppression of the seized evidence.

One phase of this case remains which requires discussion and that concerns the search of the upstairs rooms and the basement by some of the officers, following the arrest of the defendants and the seizure of the heroin and paraphernalia from the kitchen table. All of the rooms on the second floor, the closets, bureau drawers and mattresses were thoroughly searched. No contraband was found and no property was seized. A search of the basement, however, disclosed some contraband which was seized, but it was never offered in evidence and is not a subject of the suppression order.

There is no doubt that these second floor and basement searches were unauthorized, unlawful, and in direct contravention of the Fourth Amendment rights of the defendant Gonzales. They were made after the arrest of the defendants and the seizure of the heroin and equipment and after the second floor had been examined for possible confederates of the defendants. They were made for the sole purpose of discovering narcotics. They exceeded in scope what was defined in Chimel as permissible bounds, justified as incident to an arrest; and they came within no “well-recognized exceptions,” 395 U.S. at 703, 89 S.Ct. 2034. In brief, it was the kind of general exploratory search through a private dwelling and its fixtures and furnishings which the Fourth Amendment was primarily designed to prevent. United States v. United States District Court, 407 U.S. 297, 326-327, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (Douglas, J. concurring); Von Cleef v. New Jersey, 395 U.S. 814, 816, 89 S.Ct. 2051, 23 L.Ed.2d 728 (1969); Lewis v. United States, 385 U.S. 206, 211, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); United States v. Rabinowitz, 339 U.S. 56 at 62, 70 S.Ct. 430; Marron v. United States, 275 U.S. 192, 195, 48 S.Ct. 74, 72 L.Ed. 231 (1927). The prosecution recognized the constitutional infirmities of these searches and refrained from offering in evidence the contraband discovered in the basement.

The question arises whether or not the exclusionary sanction should be imposed upon the lawfully seized evidence because of subsequent wrongful behavior by over-zealous enforcement officials in making an unlawful search, even though the prosecutor had wisely elected to withhold from evidence the fruits of that unlawful search.

It may be argued that, although the exclusionary rule, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), could not sensibly or effectively be invoked against the contraband seized in the basement, which was never offered in evidence, the rule ought to be extended to exclude the evidence lawfully seized from the defendants at the kitchen table on the ground that the police officials making the lawful seizure were in the same group of police officials and engaged in the same case or investigation with those who made the unlawful search. This would, indeed, be a radical extension of the exclusionary rule. In the first place, evidence lawfully seized as incidental to an arrest is not transmuted into an unlawful seizure by a subsequent unconstitutional seizure made in the same case. In United States v. Holmes, 452 F.2d 249, 259 (7 Cir. 1971), a Government agent lawfully seized a telephone book, containing an inculpatory list of telephone numbers, incidentally with the arrest of Holmes. Thereafter the bedrooms and other parts of Holmes’ house were unlawfully searched and several items were seized. He,, claimed that, even though the telephone book was the only material placed in evidence, it was inadmissible because of the unlawful scope of the later search. The court held, however, that even if reasonable limits were exceeded in the subsequent search, the seizure of the telephone book, which was within proper limits, would not “thereby be retroactively rendered inadmissible.” See also United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927), in which the Court said, at p. 563, 47 S.Ct. at p. 748, “A later trespass by the officers, if any, did not render inadmissible in evidence knowledge legally obtained.”

Moreover, there has been, particularly in the past decade, a growing disillusionment with the effectiveness and usefulness of the exclusionary rule. The best known and most trenchantly succinct criticism, which lays bare its primary weakness, is, of course, Judge Cardozo’s statement in People v. Defore, 242 N.Y. 113, 150 N.E. 585, 587 (1926), “The criminal is to go free because the constable has blundered.” The Supreme Court has declined to extend its operation to evidence presented to grand juries. United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

Chief Justice Burger, in his dissenting opinion in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 411-427, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), has fully and forcefully presented the history and present low estate of the rule and has carefully catalogued the comments of leading legal scholars on the subject. He said at p. 418, 91 S.Ct. at p. 2015,

“Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment that will inevitably occur given the pressures inherent in police work having to do with serious crimes.”

and again at page 420, 91 S.Ct. at p. 2017,

“But in the same spirit we should be prepared to discontinue what the experience of over half a century has shown neither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.”

For us to extend the application of the exclusionary rule to suppress lawfully acquired evidence to punish enforcement officei’s who later unlawfully seized additional evidentiary material which the Government voluntarily suppressed, would be making a bad situation infinitely worse. We, therefore, decline so to rule.

“. . . [W]e are not convinced that the additional benefits of extending the exclusionary rule would justify further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth.” Alderman v. United States, 394 U.S. 165, 174-175, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969).

This is not to say that a defendant whose Fourth Amendment rights have been violated should have no remedy. Victims of illegal searches can sue federal agents personally to obtain civil damages for violation of Fourth Amendment rights. Bivens v. Six Unknown Federal Narcotics Agents, supra. Unlike the suppression of evidence, such suits directly reach those who intentionally exceed their authority.

This court has held, Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339 (2 Cir. 1972) on remand from the Supreme Court, that federal law enforcement agents are not immune from damage suits based upon allegations of violations of constitutional rights, even if acting within their powers. The plaintiff-victim in such an action must prove the allegations by a fair preponderance of the evidence; if he furnishes substantiating proof, the defendant-enforcement agent, to defend himself, must “allege and prove good faith and reasonable belief in the validity of the arrest and search and in the necessity for carrying out the arrest and search in the way the arrest was made and the search was conducted.” Bivens, 456 F.2d at 1348.

The suppression order of the district court is set aside and the case is remanded for trial.

      . The so-called no-knock statute, 21 U.S.C. § 879, which has to do with making entry in narcotics cases, was enacted in 1970 and became effective October 27, 1970. This court has held that it is inapplicable to cases in which no special warrant, described in the statute itself, has been obtained. United States v. Mapp, 476 F.2d 67, 75, n. 11 (2 Cir. 1973).

      . The dissent by Chief Justice Burger in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), was based upon his conclusion that the creation of an effective substitute for the exclusionary rule was a task which should be dealt with by the Congress rather than by the courts; and in implementation of this he takes the position that the victim of an improper search or seizure should be able to sue the Government and that the sovereign’s immunity should be waived in this regard. 403 U.S. at 423-424, 91 S.Ct. 1999. Several members of the Congress liave agreed. Individual Views of Sen. Charles H. Percy, Report of the Committee on Governmental Operations, S.Rep. No. 93—469, 93rd Congress, 1st Sess., pp. 29, 35 (1973).
      Whether any kind of action arising out of a Fourth Amendment violation can now be brought under the Tort Claims Act is far from clear. The present act does not waive federal immunity for damages for loss of illegally seized goods or for claims arising out of false imprisonment or arrest. 28 U.S.C. §§ 2680(e), (h); Blitz v. Boog, 328 F.2d 596 (2 Cir.), cert. den., 379 U.S. 855, 85 S.Ct. 106, 13 L.Ed.2d 58 (1964) ; Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 410, 91 S.Ct. 1999, 2012, 29 L.Ed.2d 619 (1971) (Harlan, J., concurring) (“[Tlhe sovereign still remains immune to suit.”).
      On the other hand Congress intended the Government to be liable for trespasses, Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 97 B.Ed. 1427 (1953), and immunity exceptions are to be strictly construed. United States v. Muniz, 374 U.S. 150, 165-166, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) ; see also ABA Project on Standards for Criminal Justice, The Urban Police Function, § 5.5 (1973).
      Connecticut has historically permitted victims of illegal searches to sue for trespass. Grumon v. Raymond, 1 Conn. 40 (1814), which means that federal enforcement officers who have over-stepped constitutional bounds could be sued in the state courts; but a suit against the United States government would probably be barred by federal immunity.
      If the Tort Claims Act is amended to permit suits against the federal government for violations of the Fourth Amendment, it would assist in the handling of such civil suits if a procedure were'developed pursuant to which a victim could file a civil petition or complaint to the same court that tried the criminal case out of which it arose, to be heard by the same judge, if possible, whose judgment could be based on the relevant evidence presented at the trial of the criminal case and any additional evidence the judge might call for or allow. As such actions would be heard and decided by the judge alone, the fear that juries would be reluctant to permit a victim, a defendant in the criminal prosecution, to recover at all, would be removed.


source: Caselaw Access Project

author: VAN DUSEN, Circuit Judge. JAMES HUNTER, III, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America ex rel. George PAXOS v. Alfred T. RUNDLE. Appeal of the COMMONWEALTH OF PENNSYLVANIA.
    No. 72-1122.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 7, 1972.
    Reargued en banc Nov. 15, 1973.
    Decided Jan. 16, 1974.

      Judith Dean, Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Richard A. Sprague, First Asst. Dist. Atty., Arlen Spector, Dist. Atty., Philadelphia, Pa., for appellant.
    Robert F. Simone, Philadelphia, Pa., for appellee.
    Argued Dec. 7, 1972
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
    Reargued en banc Nov. 15, 1973
    Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENÑ, HUNTER, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

The respondent (Superintendent of a Pennsylvania prison) appeals from a district court order entered after an evidentiary hearing and granting relator a writ of habeas corpus. See United States ex rel. Paxos v. Rundle, 337 F.Supp. 315 (E.D.Pa.1971).

Relator and two co-defendants were found guilty by a jury on February 23, 1968, of conspiracy to commit burglary and robbery (# 357), aggravated robbery of Catherine McNally (# 359), aggravated robbery of Edmund McNally (# 360), and burglary with intent to commit robbery (# 361). See N.T. 2085. Post-trial motions filed on behalf of all defendants were argued and dismissed. Relator received a total prison sentence of two to ten years on all four indictments. On appeal from judgment of sentence to the Pennsylvania Superior Court, relator alleged, inter alia, that he was denied due process of law when the prosecuting attorney failed to disclose and/or concealed important relevant evidence favorable to the defendant. On June 11, 1970, the Superior Court unanimously affirmed judgment of sentence without an opinion. Commonwealth v. Paxos, 217 Pa.Super. 734, 268 A.2d 148 (1970). On August 21, 1970, the Supreme Court of Pennsylvania denied a petition for allocatur.

The charges arose from the robbery and the terrorization of the McNally family on the morning of May 4, 1967. Relator was identified at the criminal trial as one of the three persons committing the crimes by Thomas McNally (age 13), who was the first person awakened by the noise of breaking doors, and by Mr. McNally. A police officer, who was a neighbor of the Mc-Nallys, testified that at about 8:35 A. M., when he placed a can of rubbish in front of his home, relator was standing near the McNally home talking to the co-defendant, Fleekenstein Mr. Brady, also a neighbor of the McNallys, testified that “about a week before” the commission of the crimes he saw Paxos sitting in a white Ford parked in front of his house between 5:00 and 6:00 P.M. for 20 minutes or one-half hour (N.T. 853-57, 872—18b-23b of Supplemental Appendix). A white Ford was observed parked near the McNallys’ home by the above-mentioned police officer at 6,:45 A.M., 7:55 A.M., 8:10 A.M., 8:25 A.M., and 8:35 A.M. on the morning the crimes were committed (N.T. 1165-74, 1202-08—25b-41b). Another witness testified that a fingerprint corresponding to that of relator was found on a cup in the kitchen of the McNally home.

Relator did not take the stand. He produced an expert witness, who testified that the fingerprint was not that of relator, and eight fellow-employee alibi witnesses, seven of whom testified that relator was at his place of employment sometime between 7:30 A.M. and 8:00 A.M. on May 4. As to the facts upon which the habeas petition was based, the district court found as follows:

“Relator also introduced time sheets which indicated that he worked on that day. The time sheets also indicated the number of hours worked by the other employees of Hershman’s. After the defense had rested, the district attorney reviewed the time sheets and discovered that they contained no notation of any working hours on May 4, for George Taneini, one of relator’s alibi witnesses. Prior to that time neither the prosecutor nor defense counsel was aware of this fact.
“The district attorney then contacted Iris Felman, a bookkeeper at Hershman’s, and asked if she would testify on rebuttal .that, although George Taneini had testified that he saw relator at work on the day of the robbery, the time sheets indicated that he himself was not at work. Miss Felman stated that she could not so testify until she reviewed Tancini’s payroll records for the week following the robbery. Upon reviewing these records, she discovered that Taneini was paid the following week for the day of the robbery. She concluded that he had merely been late in turning in his daily time sheets to the paymaster and that he was at work on May 4. The district attorney advised her that under the circumstances he would not call her to testify. He then told relator’s attorney about the time sheets, the payroll records, his conversation with Miss Felman and his decision not to call her. as a rebuttal witness. Thereafter, in his closing argument to the jury, the district attorney stated that the time sheets in evidence showed that George Taneini was not at work on the day of the robbery and that the jury could infer that he committed perjury when he testified that he saw relator at work on that day. The jury was never apprised of the payroll records showing that Taneini was paid for that day or the statement of Miss Felman explaining the omission in the time sheets. Relator’s counsel raised an objection to the prosecutor’s comment, but the Court ruled that the argument was not improper.”

337 F.Supp. at 316.

Relator argued that he was denied due process of law when the prosecutor failed to -disclose and/or concealed important relevant evidence favorable to him. Relying on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the district court held that relator had been deprived of his right to due process. We disagree. The manner in which the prosecutor disclosed the information concerning the payroll records did not violate due process. The disclosure issue in this case is governed by Moore v. Illinois, 408 U.S. 786, 794-798, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), which was decided subsequent to the district court’s opinion. Moore distinguishes Brady and Napue, relied on by the district court. Under Moore, the conduct involved here clearly did not warrant a new trial. See also United States v. Clark, 454 F.2d 1056 (3d Cir. 1972).

The district court also ruled that, although the prosecutor disclosed to defense counsel the evidence concerning payment to Tancini for work on May 4 in rebuttal of D-7 and favorable to the defense prior to the closing arguments to the jury,

“ . . . defense counsel was effectively foreclosed from ever introducing these matters into evidence. At the same time that the prosecutor disclosed this information to the defense, he stated that he would not call Iris Felman as a rebuttal witness to testify that George Tancini did not work on the day of the robbery. The reasonable implication of this statement was that the district attorney was satisfied with Miss Felman’s explanation that Tancini was at work and that this issue would not be raised. Thus, although the payroll records were highly material to indicate that Tancini worked on May 4, counsel reasonably declined to introduce them where he believed that the question of whether Tancini worked was not at issue and would not be put into issue.” (337 F.Supp. at 318)

In addition, the district court concluded that, had defense counsel moved to have the case reopened after closing arguments, the trial judge would have denied the motion.

After a careful review of the record, we are unable to find any evidence to support the last two sentences quoted above and the above conclusion that the defense was foreclosed from introducing the payroll records. The trial judge made no finding that the prosecutor indicated that he would not raise the issue of whether Tancini worked on May 4 and such judge found that defense counsel could have secured and offered at the trial the payroll records for the week following May 4 “by prior exercise of reasonable diligence.” See page 12 of Memorandum Opinion of September 9, 1969, Commonwealth v. Fleckenstein, et al., Phila. Court of Common Pleas, Trial Division—Criminal Section, July Sess. 1967, Nos. 357, 359, 360, 361. Moreover, while the trial court felt for these reasons that the prosecutor’s closing argument was proper, it can only be speculated what action the trial judge would have taken on a motion to reopen the case. Where a finding is not supported by evidence in the record, it is clearly erroneous. See Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir. 1972); 9 Wright & Miller, Federal Practice and Procedure, Civil § 2585 at 735 (1971).

There is also a suggestion in the district court opinion that, foreclosure aside, it was improper for the prosecutor to have argued to the jury that it could have inferred from the time records that Tancini committed perjury. See 337 F.Supp. at 316, 318. After a careful review of the trial and habeas corpus records, we have concluded that the thrust of this comment was to point out that the time records were unreliable and that Tancini may have been lying. Since the defense relied on the weekly time sheets to substantiate relator’s alibi (N.T. 1902), after he had been informed by the prosecutor that those sheets offered in evidence by the defense indicated Tancini had not worked on May 4, 1967, it was proper for the prosecutor to point out the defect in this defense evidence. As stated in United States v. Casteel, 476 F.2d 152, 155 (10th Cir. 1973), “counsel does have the right to reply to an argument raised by his opposing advocate.” See also United States v. Panepinto, 430 F.2d 613, 616 (3d Cir. 1970); United States v. LaSorsa, 480 F.2d 522, 526 (2d Cir. 1973). Furthermore, there was nothing in his comment to suggest that the prosecutor was intentionally misleading the jury or that he was relying on false evidence. Indeed, the trial judge specifically found that the payroll record might have been no more accurate than the time sheet and, in any case, did not prove the presence of witness Tancini at work on the day in question. Therefore, the prosecutor’s comment was not “so prejudicial as to constitute a denial of due process [of law].” United States ex rel. Washington v. Yeager, 448 F.2d 87, 91 (3d Cir. 1971). See also Conyers v. Wainwright, 309 F.Supp. 1101, 1105 (S.D. Fla.1970); cf. United States ex rel. Brown v. Russell, 455 F.2d 464 (3d Cir. 1972).

The dissenting opinion contends that the prosecutor’s closing argument to the jury went beyond the scope of permissible advocacy. With due respect, we do not think that the record in this case supports such a conclusion. Defense counsel was informed of the existence of the payroll records prior to any of the closing arguments, according to the explicit finding of the district court in the last sentence in the quotation of the district court’s opinion quoted on page 6 above, and the following sentence, starting on the last line of the quotation on that page, making clear that the closing arguments to the jury were “thereafter” this disclosure. For this reason, defense counsel was not “foreclosed”, by the timing of this argument, as he could have asked to offer more testimony as soon as the prosecutor told him of the Felman evidence prior to all closing arguments. Furthermore, since all the time records were submitted into evidence, and not merely those of Paxos, there is no reason why the prosecutor was not free to comment on their contents in rebuttal to the defense counsel’s argument that they showed that Paxos had been at work that day. As discussed above (see note 11), the thrust of that comment was to point out that the same time records which listed Paxos as at work on May 4 also indicated that Tancini was absent; thus, the jury could conclude either that Tancini was lying when he testified that he saw Paxos at work on that day or that those records were not reliable. We see nothing improper in such a comment.

Finally, we note that the same contention that relator was denied due process of law, because the prosecutor’s argument to the jury based on the defense’s alibi evidence “exceeded permissible bounds” has been rejected by all seven judges of the Pennsylvania Superior Court, and all seven judges of the Pennsylvania Supreme Court after full consideration of the findings and opinion supporting such rejection by the state trial court, as set forth above. The record makes clear in our view that the state has supplied a fair and rational process for this litigation. See United States ex rel. Booker v. Johnson, 488 F.2d 229, p. 233-234 (3d Cir. 1973). See also Schneckloth v. Bustamonte, 412 U.S. 218, 250-275, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (concurring opinion of Powell, J.).

The district court order of December 21, 1971, will be vacated and the case remanded so that the district court may pass on the other contentions in the petition for a writ of habeas corpus (see paragraphs 11 and 12 of the petition), since the district court concluded “we need not discuss the other grounds raised in the petition.” 337 F.Supp. at 319.

JAMES HUNTER, III, Circuit Judge,

with whom ALDISERT and GIBBONS, Circuit Judges, join (dissenting):

A prosecutor has a special obligation to see that justice is done, and it is his duty to refrain from improper methods which could produce a wrongful conviction. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States ex rel. Darcy v. Handy, 203 F.2d 407 (3d Cir. 1955), cert. denied Maroney v. United States ex rel. Darcy, 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953); United States v. Nettl, 121 F.2d 927 (3d Cir. 1941). Because I believe that the prosecutor’s conduct in this case violated due process, I must dissent.

The prosecutor’s closing argument to the jury went beyond the scope of permissible advocacy, and this court should not tolerate it. He did not mention the omission on the time sheets until rebuttal argument', thus foreclosing any defense comment on them. He then accused the defense’s witness of having committed perjury because his time sheet for the day in question was incomplete when the prosecutor knew for a fact that there were other company time records that would have verified the witness’s presence at work. The prosecutor did more than argue that the time records were unreliable, and he did more than argue that relator’s witness could have committed perjury. He connected the alleged unreliability with the alleged perjury and argued that the witness had committed perjury because there was a gap in the records that the defense had introduced. He did this when he knew that other company records indicated that the witness had been present at work that day. This was intentionally misleading the jury and especially harmful in this ease where credibility was such a key issue. With all deference to the majority I cannot agree with its conclusion that this conduct was not a violation of due process. See United States v. Universita, 298 F.2d 365 (2d Cir. 1962).

The majority further concludes that even if the comment by the district attorney was prejudicial, it is not reversible error. Its reasoning is that if the appellee’s counsel had acted with due diligence lie could have introduced the payroll records himself, and thereby prevented any possibility of prejudice. Since he failed to act with the requisite due diligence at trial, the appellee cannot now complain about the consequences of his own negligence.

In order to reach this conclusion, the majority must reject, not merely as incorrect, but as clearly erroneous, at least one of two key findings of the district court. I feel that the rejection of either under this narrow standard of review is unwarranted.

The first finding that is rejected is the district court’s view that appellee’s failure to introduce the additional records supporting the witness’s presence at work was not due to a lack of diligence. Far from finding this to be clearly erroneous, I would agree with the district court that appellee’s course of conduct was entirely reasonable and indeed was almost the only logical response to what the prosecutor had told him and when he had told it to him. To require defense counsel to introduce this testimony would be to require a defendant to anticipate and refute a rebuttal argument where he has been led to believe that the rebuttal argument would not be made.

The second finding rejected by the majority is the district court’s conclusion that the trial judge would not have allowed the defense to reopen the case. The majority characterizes this finding as speculation. However, the Pennsylvania rule on whether to allow a ease to be reopened is that the matter is within the trial judge’s discretion. See Commonwealth v. Ghaul, 205 Pa.Super. 80, 86-27, 207 A.2d 917 (1965); Cf. Silver v. Miller, 204 Pa.Super. 16, 18, 201 A.2d 308 (1964). Since the trial judge felt that the prosecutor’s comment was proper (49a-60a, N.T. 1885-1896), it is reasonable to infer that the trial judge would not have allowed the case to be reopened. As a result, it seems to me that the district court’s finding on this question is not clearly erroneous either and must be accepted by this court. F.R.C. P. 52(a). If each of these findings must be accepted, the conclusion seems inescapable that the appellee claim likewise cannot be rejected on. the alternative basis that he was negligent in failing to introduce evidence to neutralize the effect of the prosecutor’s comment.

As a result, I would affirm the order of the district court.

      . The background facts covered by the indictments charging the relator and his two co-defendants are conceded to be as follows in relator’s brief (pp. 2—4) :
      “This entire proceeding has arisen out of an incredibly vicious, wanton, and. brutal criminal foray which occurred on May 4, 1967. On that date, at about 5:00 A.M., Mrs. Katherine McNally of Philadelphia, arose from bed to respond to loud knocking at the front door. At two preliminary hearings, and at the trial of this matter, Mrs. McNally explained that just as she approached the front door, two men, their identity concealed from her by stocking masks, burst through that door brandishing a pistol, a rifle, a black-jack, and possibly other weapons. These men pounced upon Mrs. McNally, her then 15-year old daughter, Katherine, and her 12-year old son, Tommy, violently thrust them to the floor and bound each of them with neckties, stockings, and towels found in the house. Thereafter, followed a four-hour nightmare during which the two intruders persistently demanded money from Mrs. McNally and underscored their requests with beatings, promises to maim mother and children, and ultimately, rape and sodomy perpetrated against Mrs. McNally at gunpoint.
      “A 9 :00 A.M., Edmund McNally returned home from his nightwatcliman’s job. Seeing no unusual automobiles or persons around his home, Mr. McNally left his car and approached the back door of his house, intending to discover the reason why his wife failed to answer' his customary 8:00 A.M. phone call. McNally entered and immediately three men attacked and viciously beat him. He struggled for nearly a half-hour until the three men subdued him, seized his wallet, and instantly fled.”
      There is evidence to support respondent’s contention that “three, possibly four men broke into” the McNally home and “participated in the events that ensued.”

      . He testified that he observed Paxos twice without a mask on (N.T. 511—p. 17b of Supplemental Appendix).

      . Mr. McNally’s identification of Paxos was based on (1) his ability to see “facial features,” “dark brown hair,” and “blue eyes” through a “white stocking” mask, and (2) Paxos’ “odd way of standing” and “walking” (N.T. 360-63, 420-21, reproduced at 3b-7b of the Supplemental Appendix).

      . The police officer had known Paxos for about six or seven years and had seen him often when both he and Paxos were on the police force (N.T. 1202-08—34b—41b). Also, at least seven of the eight fellow employee alibi witnesses testified that relator was seen at work between 7:30 and 8:00 A.M., whereas the police officer saw him talking to Fleckenstein at 8:35 A.M. and his work bench was next to a door leading to the employees’ parking lot (N.T. 1395, 1401 & 1421).

      . There was evidence that, shortly before the incident, Loney (another co-defendant) had purchased a 1959 white Ford automobile for which a temporary license tag had been issued, No. E60904. This vehicle was observed by a number of persons, immediate neighbors of the McNallys, parked on the street close to the McNally home on several days immediately prior to May 4 and during the early morning hours of May 4. Other witnesses who observed the parked vehicle prior to May 4 identified Loney as one of its occupants. This evidence indicated that the perpetrators of the crime were “casing” the premises for several days prior to May 4.

      . These (Exhibit D-7) were offered in evidence by the relator. Although the appellee now contends that D-7 was offered for a limited purpose, the record does not support that contention (N.T. 1815-16). The appellee described D-8 as the “work record of Paxos,” but as to Exhibit D-7 containing the work records of all employees he made no limitation in his offer of it in evidence:
      “ [Defense Counsel] : The payroll records, well, I don’t know which one that would be—7—
      “[Prosecutor] : It is the ledger book.
      “[Defense Counsel] : Your Honor, with respect to D-7, I will offer D-7, or, in the alternative, D-8, which is a photostatic copy.
      “The Court: Did we dispose of D-6?
      “[Defense Counsel] : I withdraw it, Your Honor. It is the search warrant.
      “The Court: Very well.
      “[Defense Counsel] : With respect to D-7, your Honor, D-7 is a heavy book. D-8 is a photostatic copy of the page that was testified to. That is the work record of Paxos. They repeat each other, actually.
      “The Court: Very well. You offer what?
      “ [Prosecutor] : Why don’t you offer them both for the time being?
      “[Defense Counsel] : All right, I will offer both of them for the time being, 7 and 8.
      “The Court: That’s D-7 and D-8.
      “[Prosecutor] : I have no objection.
      “The Court: They will be received.”
      In response to defense counsel’s objection to the prosecution’s closing argument on the ground that Exhibit D-7 had been introduced only to show that Paxos had been at work on May 4, the state trial judge said at N.T. 1900:
      “The Court: What you are saying is, it seems to me, that you want to introduce records for a limited purpose, but anything in that record that might hurt you is not to come to the jury’s attention.
      “The Court: You are taking the tactical chance that what is harmful in those records will not be discovered by the prosecution.”

      . The record indicates that there was considerable doubt as to the accuracy of these time sheets. The defense witness called to prove Exhibit D-7 indicated on cross-examination that the company’s time sheets such as D-7 were not necessarily accurate. N.T. 1565-71. Hence, at the time of the colloquy the day after the closing argument, the trial judge in effect made a finding that “these records are not accurate,” since there was testimony that the workers filled in the time they arrived themselves and that the time records were kept not so much to show when they arrived as for computing the number of hours to be charged to customers for each job. N.T. 1898. The judge also remarked that he had noticed when the time sheets were first offered that they showed alibi witness Tancini was not at work on May 4. N.T. 1899, 1901.

      . George Taneini testified that he had an argument with relator at the shop at 7:45 on May 4 (N.T. 1475-1497).

      . The brief of counsel for appellant correctly summarizes as follows (pp. 9-10) the trial court procedure during the closing argument and on the following day :
      “The aforementioned events all preceded the closing arguments of counsel to the jury. Although the arguments were not transcribed, objections made in the course of the respective summations were recorded. The objections and arguments thereon reveal that at several points in his summation, defense counsel . . . argued to the jury that the time sheets supported Paxos’ alibi (R. 66a). The notes of testimony show that during the course of [the prosecutor’s] rebuttal argument, [defense counsel] objected only once and then on the grounds that the rebuttal was improper since it again reviewed the evidence given by the McNally family (S.A. 59b). No other objection was made in the course of [the prosecutor’s] rebuttal argument. Immediately after [that] argument, the trial judged discussed with the jury their expressed desire to visit the scene of the crime, reviewed the arrangements made for them to do so, and charged them as to their conduct on the visit. Court was then recessed until the next day.
      “Court reconvened on the next day . . . Counsel first made suggestions to the judge with respect to his charge to the jury regarding their observations at the scene. [Defense counsel] then stated that there were certain objections he wished to make to [the prosecutor’s] rebuttal argument of the day before. The trial judge immediately stated that it ought to be made clear for the record that at no time was [defense counsel] instructed not to interrupt the district attorney during his argument, that [defense counsel] had in fact interrupted once to make an objection, and that [defense counsel’s] decision not to interrupt further was his own. The judge then stated that he would nevertheless permit defense counsel to make his belated objections (S.A. 61b-62b). [Defense counsel] thereupon did make several objections to points made in [the prosecutor’s] closing argument. His last objection dealt with [the prosecutor’s] remarks concerning the time sheets offered by the defense to support Paxos’ alibi defense.”
      It is noted that the trial judge’s charge was not given until the second day after the closing arguments, so that there was ample opportunity for the above defense counsel to apply to reopen the record to offer the company payroll records if they were more reliable than the time sheets.

      . Since the absence of a transcript of the closing argument makes it impossible to be sure of exactly what the prosecutor said in his closing argument to the jury, the above-quoted finding of the district court as to what such prosecutor said is controlling, see F.R.Civ.P. 52(a).

      . For the district court’s finding as to what the prosecutor said, see text at note 10 supra. During the argument on the defense counsel’s objections to this comment, the prosecutor pointed out that in his closing argument he had argued in rebuttal to defense counsel’s preceding closing argument that all the company’s records, including the other records of the company produced by Ms. Felman, apparently were not reliable:
      “ . . . the basic thrust of what these records were offered for was to, without the time sheets which are now destroyed, was to show that the records are true, and therefore Paxos must have been at work.
      “Well, the basic thrust of my argument in reply to that, in my closing remarks yesterday, was to show that the records may not have been so accurate, that maybe the fáct that they show Paxos was at work on a particular day does not indicate in fact that Paxos was at work, because here you have Tancini’s records that show that he wasn’t at work.
      “Now, it is true I did use the word ‘perjury,’ but I didn’t charge Tancini with perjury. I suggested the possibility that this might exist, and I also suggested the possibility that these witnesses might have been mistaken on the alibi, and I also pointed out to the jury that there might be an explanation for the fact that Tancini’s records don’t show that he was at work.
      “The basic purpose for saying that was to bring to the jury the fact that [counsel for Paxos] and [counsel for co-defendants] in both of their closing arguments repeatedly accused the Commonwealth of failing to bring out all the evidence, to call the detectives, to dot the I’s and cross the T’s. [N.T. 1894-96]
      “. . . the whole argument goes to the point of the fact that these records are just not quite as reliable as the defense who introduced them into evidence and relied upon them as part of their [case would have the court believe]. [N. T. 1897]
      “I think the record should be clear that both Mr. Keif and I noted it down at the time, and certainly Mr. Simone several times pointed [in his closing argument] to the records as support for Paxos’ alibi, and I think that then the fair comment on that in reply is the record, which is the thrust of my argument, that perhaps the records aren’t as accurate as they are made out to be.
      “[Defense Counsel] : That is a fair comment. I agree with that.” [N.T. 1902]

      . The payroll records were made up from the same daily time sheets, handed in by the workers themselves, that the trial judge found to be unreliable. See note 7, supra. In addition, in his Memorandum Opinion of September 9, 1969, cited at p. 9, supra, the trial judge stated:
      “The record is a secondary record made up from others; it cannot be said to be one of original entry like the weekly time sheet. It is also equivocal in that it might tend to indicate the witness was present on a day on which he was paid wages, but there well might be other reasons for his being paid, even though absent, as an emjiloyment contract providing a limited number of days paid for time not worked each year, or substitution of sick pay for a day’s absence.”
      Under these circumstances, the district court finding that the payroll summary “presented a substantial inference that Tancini was at work” and constituted “highly material” evidence is clearly erroneous. See 28 U.S.C. § 2254(d).

      . It is noted that defense counsel did not argue at the trial that he lacked an opportunity to present Ms. Felman as a witness but rather that the prosecutor should have done so. (N.T. 1891-92).

      . Although the opinion of the district court only mentions that the prosecutor’s remarks were made in his “closing argument,” the record from the state trial court demonstrates that they were made in rebuttal to the closing argument of appellant. Notes of Testimony, 1876, 1877.

      . “It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations [to refrain from improper methods], which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions . . . are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

      . The state argues that the issue involved here is peripheral to the major issues in this case. I disagree. The state’s case, while overwhelming against appellee’s co-defendants, was not so solid against him. The state had alleged identification testimony of three witnesses—a 13-year old boy, his father, and a witness who allegedly saw appellee from across the street. It also allegedly had one fingerprint of appellee. Appellee’s expert witness, the author of the FBI fingerprint manual, testified that the fingerprint was not relator’s. In addition, eight of appellee’s co-workers testified he was at work when the robbery was occurring. Credibility was thus a key issue, and I agree with the district court’s conclusion that this comment affected the credibility of all of appellee’s witnesses.

      . The only person whose time records were testified to was Paxos; the prosecution did not introduce any evidence or elicit any testimony as to Tancini’s time records; and the prosecution did not offer any rebuttal testimony as to the records. When the prosecutor informed defense counsel of the missing time record of Tancini and of the testimony of Felman and further represented that Felman would not be called, the district court was entirely correct in finding that defense counsel had been led to believe that the argument would not be made.


author: MEMORANDUM DECISION:

text:
    Jack D. MORGAN, Appellant, v. JUVENILE AND DOMESTIC RELATIONS COURT, HALIFAX COUNTY, VIRGINIA, and Virginia Penal Systems, Richmond, Virginia, Appellees.
    No. 71-1122.
    United States Court of Appeals, Fourth Circuit.
    Submitted Oct. 9, 1973.
    Decided Jan. 29, 1974.

      Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   MEMORANDUM DECISION:

Petitioner, Jack D. Morgan was convicted of the crime of non-support, a misdemeanor, and was sentenced by the Halifax County, Virginia, Juvenile and Domestic Relations Court to a twelve month term of imprisonment. Morgan did not appeal this conviction and has not sought state post conviction relief. Morgan subsequently sought habeas corpus relief in the district court contending that he was denied counsel at his trial. The district court dismissed the petition for failure to exhaust state remedies and this appeal followed.

We do not feel that the exhaustion of remedies principle requires that Morgan present his claim to the state courts. Since he no longer is imprisoned, Morgan has no state remedy currently available to him by reason of the recent rulings of the Virginia Supreme Court in Blair v. Peyton, 210 Va. 416, 171 S.E.2d 690 (1970), and Moore and Ancarrow v. Peyton, 211 Va. 119, 176 S.E.2d 427 (1970). In Blair the court stated that the Virginia habeas corpus statutes are designed to provide relief “in the form of discharge” (Va.Code, § 8-603) from the “person in whose custody” (Va.Code, § 8-598) a petitioner is “detained without lawful authority” (Va.Code, § 8-596). The court then went on to hold that where a “petitioner is no longer detained and there is no custody from which to discharge him,” the court is without jurisdiction to entertain the case. Blair, supra, at 691, 171 S.E.2d.

The Supreme Court recently held in Argersinger v. Halmin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” Because Argersinger forbids imprisonment as a consequence of an uncounseled misdemeanor conviction, the trial judge must determine at the outset of the case whether he wishes to retain the option of imposing a statutorily authorized prison term by providing the accused the assistance of counsel.

In this case, however, petitioner’s claim is not supported by Argersinger. In Marston v. Oliver, 485 F.2d 705 (4th Cir. 1973), we held that where the direct or collateral consequences of a misdemeanor conviction do not relate to the loss of liberty or imprisonment of the defendant, Argersinger should not be applied retroactively to invalidate prior convictions. Even prospectively Argersinger excises from the uncounseled misdemeanor conviction only those consequences, direct or collateral, which relate to loss of liberty or imprisonment. Since Morgan is no longer imprisoned and alleges no collateral consequences placing his continued liberty in jeopardy, even if he was denied counsel at trial and there was no knowing and intelligent waiver of counsel, he is not entitled to habeas corpus relief. See Berry v. Cincinnati, 414 U.S. 29, 94 S.Ct. 193, 38 L.Ed.2d 187 (1973).

Accordingly, Morgan’s request for a certificate of probable cause to appeal is denied.


author: WIDENER, Circuit Judge: BRYAN, Senior Circuit Judge

text:
    Edwin CARRACTER and John C. Butler, Appellants, v. Walter MORGAN et al., Appellees.
    No. 71-2175.
    United States Court of Appeals, Fourth Circuit.
    Submitted on briefs Jan. 9, 1973.
    Decided July 13, 1973.
    Laughlin McDonald, Columbia, S. C., Charles Morgan, Jr., and Norman Siegel, Atlanta, Ga., on brief, for appellants.
    Daniel R. McLeod, Atty. Gen. of S. C., and Joseph C. Coleman, Deputy Atty. Gen. of S, C., on brief, for appellees.
    Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

On April 2, 1971, Edwin Carracter and John Butler commenced this action by filing their complaint and motion for preliminary injunction in the Columbia Division of the United States District Court for the District of South Carolina. The complaint alleged racial discrimination in the operation of the Edgefield County chain gang and in the County chain gangs throughout South Carolina. Plaintiffs Carracter and Butler sued not only on their own behalf but also to represent all other Negro citizens of South Carolina who are or were inmates of South Carolina County chain gangs. Named as defendants were the members of the Edgefield County Council, the Edgefield County Manager, and all others, jointly and severally, and their successors in office, who are similarly situated throughout the State of South Carolina.

To properly view the actions of the district court in this case, it is necessary to set out in chronological order all of the proceedings below. The entire record consists of the following:

1. Complaint and motion for preliminary injunction, filed April 2, 1971.
2. Order of April 29, 1971 extending time for defendants’ answer.
3. Answer filed on May 27,1971.
4. Order of the court entered November 12, 1971 declaring segregation in chain gang unconstitutional and approving plan to remedy same in Edgefield County. It denied class relief.
5. Notice of appeal filed December 7, 1971. '
6. Docket sheet. The docket sheet shows that on October 14, 1971, at calendar call, the case was announced settled and that counsel would present an order.

Plaintiffs have included in the appendix several documents which were never made a part of the record. We do not consider them.

Plaintiffs now object to the final order, claiming that relief should have been granted in favor of the entire class which Carracter and Butler allege they represent against the class of defendants described in the complaint.

F.R.Civ.P. 23(c)(1) provides in part:

“As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained.”

No attempt was made “as soon as practicable” to have such an order entered or to have such a determination made. Indeed, no such order was ever entered or determination ever made in _ the case. The burden was upon the plaintiffs to show, producing facts if necessary, that this case meets the prerequisites of a class action. E. g., Poindexter v. Teubert, 462 F.2d 1096 (4th Cir. 1972); Adise v. Mather, 56 F.R.D. 492 (D.Colo. 1972); Tolbert v. Western Electric Co., 56 F.R.D. 108 (N.D.Ga.1972); Sunrise Toyota Ltd. v. Toyota Motor Co., 55 F. R.D. 519 (S.D.N.Y.1972). Not only is the burden of proof on the plaintiff, it is the duty of the plaintiff to bring the matter before the court for a determination in accordance with Rule 23(c)(1). Adise v. Mather, 56 F.R.D. 492 (D.Colo. 1972).

F.R.Civ.P. 23(e) provides:

“A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.”

No notice to anyone was given of the proposed final order which was entered in this case. It, therefore, may not be considered as either the compromise or dismissal of a class action, but only as what it purports to be on its face, an order granting relief within Edgefield County and denying class relief without deciding the merits of the claim for such.

Because of plaintiffs’ failure to bring to the attention of the trial court, at any time, the matter of the determination of whether the action would be maintained as a class action, and also because of lack of notice to any class of the proposed final order, we are of opinion that the district court was correct in its actions and the opinion below ought to be affirmed. No determination was ever made at any time that the action be maintained as a class action. F.R.Civ.P. 23(c)(1). No notice was ever given. F.R.Civ.P. 23(e).

Because there may be some doubt, however, as to whether or not the final order in this ease was an agreed order, that part of the action which purports to be a class action will be remanded. Upon remand, if the district court determines that the final order entered in this case was in fact an agreed order, the class action will be dismissed without prejdice. If the final order in the case was other than an agreed order, plaintiffs may proceed with their class action, and, should they so do, they are cautioned to proceed in accordance with all the requirements of Rule 23, F.R. Civ.P., including notice, if required, both to members of the plaintiff and defendant classes which should be ascertained.

The action is accordingly

Affirmed and remanded with instructions.

BRYAN, Senior Circuit Judge

(concurring specially):

Because of the inquiry directed, and the subsequent procedure thereon outlined, in the last paragraph of Judge Widener’s opinion, I concur in the present decision. In my judgment these provisions prescribe the correct disposition of this case.

      . The complaint is so broad in its allegations that, from the face of the complaint, the class action may be said to proceed either as a Rule 23(b) (1), 23(b) (2), or 23(b) (3) proceeding. The notice requirements differ. See F.R.Civ.P. 23(c) (2) for 23(b) (3) actions, and F.R.Civ.P. 23(d) (2) for all class actions. The self-evident due process problems are not before us.


author: MANSFIELD, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Leon WEISS et al., Defendants-Appellants.
    Nos. 532-535, Dockets 73-1964 to 73-1967.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 21, 1973.
    Decided Jan. 15, 1974.

      Howard A. Heffron, Washington, D. C. (Kostelanetz & Ritholz, New York City, Richard J. Medalie, Washington, D. C., of counsel), for defendants-appellants Leon Weiss and Ethel Weiss.
    Richard J. Medalie, Washington, D. C. (Epstein, Friedman, Duncan & Medalie, Washington, D. C., of counsel), for defendants-appellants Melco International, Ltd. and Melco International, Inc.
    Robert P. Walton, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N. Y., Kenneth R. Feinberg, John D. Gordan, III, Asst. U. S. Attys., New York City, of counsel), for appellee.
    Before LUMBARD, MANSFIELD and MULLIGAN, Circuit Judges.
   MANSFIELD, Circuit Judge:

Following a nine-day trial before Judge MacMahon appellants Leon Weiss, Melco International, Inc. and its wholly-owned subsidiary, Melco International, Ltd. (sometimes collectively referred to as “Melco”) were on May 30, 1973, convicted of (1) conspiracy to violate 18 U. S.C. § 1001 by causing false invoices and documents to be submitted to the Army and Air Force Exchange Service of the Department of Defense (“Exchange” herein) (Count 1), (2) causing invoices containing false statements to be submitted to an agency of the Exchange in violation of 18 U.S.C. §§ 1001 and 2 (Counts 2-17), and (3) mail fraud in furtherance of the scheme in violation of 18 U.S.C. § 1341 (renumbered Count 18). Appellants Weiss and his wife, Ethel Weiss, were also convicted of corruptly endeavoring to obstruct justice in violation of 18 U.S.C. § 1503 by failing to produce documents subpoenaed by the Grand Jury investigating the scheme (renumbered Count 19).

Upon this appeal all defendants contend that the trial judge denied them a fair trial. Mr. Weiss and the two corporate defendants argue that certain evidentiary rulings were erroneous and require a new trial. The Weisses further urge that Count 19 (alleging a violation of 18 U.S.C. § 1503) fails to state a crime. Mrs. Weiss adds the argument that she was improperly joined, and the corporate defendants assert that the district court’s jurisdiction over them was not established. As to the last claim we remand the proceedings against the corporate defendants for a hearing to determine whether the court had jurisdiction over them. Finding no merit in the other contentions, we affirm.

The record, viewed in the light most favorable to the government, United States v. McCarthy, 473 F.2d 300, 302 (2d Cir. 1972), reveals a scheme engineered by Weiss to defraud the Exchange of thousands of dollars upon the termination of a concession agreement with the Vietnam Regional Exchange by inflating the actual costs incurred in connection with performance of the contract, thus falsely increasing the amounts to which companies controlled by Weiss would be entitled by way of settlement. Beginning in 1966 Weiss was the President and controlling stockholder of defendant Melco International, Inc., a Liberian corporation which represented manufacturers in the sale of goods to Army and Air Force Post Exchanges (“PXs” herein) in the Far East. Weiss maintained his principal office in New York for the furnishing of supplies to PXs operated by the Exchange in various parts of the world.

In March 1967 Herbert J. McElroy, salesman for Melco International, Ltd., a wholly-owned Hong Kong subsidiary of Melco International, Inc., with Weiss’ approval entered into a contract for the sale of Thai-manufactured goods to PXs in Vietnam. One month later, on April 18, 1967, the contract was terminated by the Exchange for reasons arising out of the adverse gold flow in the international balance of payments, which placed a strain upon the American dollar. Under the contract the termination entitled Melco to compensation for actual expenses and bona fide costs incurred in connection with its performance of the contract prior to its receipt of the termination letter.

Prior to the receipt of the notice of termination McElroy had on behalf of Melco obtained the agreement of three Thai suppliers (Longsan Limited, Thai Lapidary, and Thai Celanese) to furnish one month’s supply of goods at a cost of approximately $43,000. At the same time, in order to gain a secret mark-up for Melco, McElroy had, with Weiss’ approval, arranged with two of the Thai suppliers (Longsan and Thai Lapidary) that they would prepare double sets of invoices covering approximately $40,000 of the goods, one set showing the actual wholesale price to Melco and the other a higher wholesale price (increased by 10% on goods to be furnished by one supplier and 25% on goods from the other) for submission to the Exchange. Under this arrangement the two Thai suppliers, who were themselves realizing their profit on the lower invoiced price, would collect and “kick back” to Melco the difference between the two invoiced prices. In this way Melco would realize not only a mark-up amounting to the difference between the wholesale and retail prices disclosed to the Exchange but the secret “kick back” as well.

After receiving the notice of termination McElroy, again with Weiss’ approval, secured the agreement of the Thai suppliers to a plan whereby they would cooperate with Melco in enabling it falsely to represent to the Exchange that it, prior to the termination of the Exchange contract, had made irrevocable commitments to them to buy approximately $300,000 worth of Thai goods instead of the actual commitments of approximately $43,000. Accordingly a settlement proposal based on the false $300,000 commitment was submitted in June 1967 by Melco to the Exchange with Weiss’ approval, supported by back-dated letters from the two collaborating Thai suppliers, falsified invoices, and fraudulent affidavits signed by McElroy.

Upon McElroy’s being transferred by Weiss to Germany, John Moore, a Melco representative in Hong Kong, was assigned to conclude the settlement negotiations after being fully briefed by Weiss regarding the fraud and the hidden markup to be realized by Melco. Rather than risk delaying receipt of the kick back from the two suppliers until after they had received the inflated prices from the Exchange, Weiss arranged through a Swiss bank to pay each supplier the agreed-upon lower secret price (10% lower than the price on each invoice bearing the Exchange stamp in the case of Longsan and 25% lower in the case of Thai Lapidary) upon proof that the goods had been shipped to the Exchange at the inflated price. He then received from the suppliers releases falsely acknowledging that they had received the inflated amounts in payment when in fact they had been paid the lower true amounts. Melco was thus in a position directly to collect the inflated sums from the Exchange. As a result it realized approximately $42,000 to which it would not have been entitled if the truth had been revealed to the Exchange.

Mrs. Weiss became involved in the scheme after the Grand Jury began an investigation into Weiss’ activities and a subpoena was on March 5, 1971, served on Weiss for production of invoices and records relating to the settlement of the Vietnam PX contract. Thereupon Mrs. Weiss, after discussing the matter with her husband, made a secret trip from New York to Hong Kong where, aided by Leland Gage, Moore’s successor at Melco’s office there, she obtained the incriminating invoices showing the actual prices paid by Melco to the Thai suppliers. These documents were taken by her to Switzerland and, except for one such invoice from Thai Lapidary apparently furnished to the Grand Jury by mistake, were never turned over to the Grand Jury. Shortly thereafter Weiss denied to the district court having made any effort to obtain the documents from Hong Kong.

The Exclusion of Evidence Tending to Show that Melco May Not Have Realized an Overall “Profit”

In support of its settlement of the terminated contract with the Vietnam PX Melco submitted to the Exchange not only the false invoices from the two Thai suppliers but also evidence of other costs incurred, including outlays for supplies, travel expenses, equipment, office rental, automobile purchases and rentals, advertising, and the like. None of these latter charges were alleged by the government to have been falsified or inflated. Nor were they the subject of any charges in the indictment. Nevertheless Weiss and the corporate defendants sought to introduce proof at trial that it had understated these merchandising expenses and that Melco’s total costs and expenses in connection with the contract exceeded its total proceeds received from the Exchange under the termination agreement, leaving it no profit.

Weiss argues that the trial court’s exclusion of the foregoing evidence of merchandising expenses was error, in view of the prosecutor’s repeated statements to the jury that the defendants had realized a “secret profit” from the alleged fraud. We disagree. The argument distorts the charge against the defendants and the meaning of the word “profit” as used in context by the government. The indictment alleged, and the evidence established, that by use of false invoices and other fraudulent representations Weiss and Melco knowingly induced the Exchange to buy a greater quantity of Thai merchandise than it was actually obligated to purchase and to pay higher prices for the goods than those which it would have been required to pay if the truth had been revealed. The “secret profit” referred to by the prosecutor clearly referred to the fraudulent markup or difference between the actual and falsely inflated prices for the goods, including the prices for merchandise which Melco falsely represented itself as being committed to buy when it was not.

Whether or not Melco realized an overall profit or loss on its settlement of the entire contract was irrelevant. The proof established that if it had disclosed the facts with respect to its actual commitment and purchase prices it would not have succeeded in inducing the Exchange to obligate itself to pay for the larger amount of the merchandise claimed or the higher prices charged for that merchandise.

United States v. Wertheimer, 434 F.2d 1004 (2d Cir. 1970), relied on so heavily by Weiss and the corporate defendants, is distinguishable from the present case, we think, since it involved much more than a possible loose but entirely reasonable use of terms by the government. In that case the defendant was charged with falsely certifying that he had shipped merchandise to an agency of the United States government when in fact it had not been shipped at the time of the certification. Eventually, as the government knew, the merchandise was shipped and delivered to it. Nevertheless at trial the government prosecutor flatly stated to the jury that the shipments, for which the government had paid $25,000, “were not made,” thus seriously prejudicing the defendant by deliberately misrepresenting objective facts not material to the charge and giving the jury the impression that the government had been cheated out of $25,000. Here, on the other hand, the government prosecutor merely used the words “profit” and “markup” interchangeably in referring to the defendants’ conduct in secretly adding 10 to 25% onto the cost of goods sold by them to the government, with the result that the government paid higher prices than it otherwise would have paid. Under the circumstances there was little danger that the jury would interpret the prosecutor’s occasional use of the word “profit” instead of “markup” as any assertion at all concerning the immaterial issue of overall profit. We cannot, therefore, ascribe to these references prejudice such as existed in Wertheimer.

The Exclusion of Leon Weiss’ Passports

In an effort to prove that he was not in Bangkok at the time of certain conspiratorial meetings with McElroy, Weiss, without any testimonial foundation, offered two United States passports which had purportedly been issued to him and bore no stamps or entries indicating that he was in Thailand during the relevant period. The trial court excluded the passports on the ground that they had not been authenticated properly.

Weiss contends that the passports should have been admitted without testimonial authentication as “official records” pursuant to Rule 27, F.R.Cr.P., which permits proof of an official record in the same manner as in civil actions, and Rule 44(a), F.R.Civ.P. Weiss first argues that a passport is an “official record,” as that term is used in Rule 44(a), because it is issued by the Secretary of State for use as an authentic travel document attesting to the identity and nationality of the bearer, 8 U.S.C. § 1101(a) (30), 22 C.F.R. § 51.-1(e) (1973 ed.), see United States v. Laub, 385 U.S. 475, 481, 87 S.Ct. 574, 17 L.Ed.2d 526 (1967), it bears the seal of the Department of State, it remains the property of the United States, it is returnable on demand, 22 C.F.R. § 51.9 (1973 ed.), and it may be altered or stamped only by authorized domestic or foreign officials. Undoubtedly a passport may properly be described as an “official” document in the sense that it is issued by the government and represents a request by the government to give safe passage to the bearer. See Lynd v. Rusk, 128 U.S.App.D.C. 399, 389 F.2d 940, 947 (1967). However, a passport, being in the custody of the citizen to whom it is issued, does not satisfy the further requirements of Rule 44(a) that the document be “kept' within the United States” and be in the “custody” of an officer of the government.

In the alternative Weiss argues that even though a passport may not itself qualify as an “official record” it does qualify as an “official publication thereof,” which satisfies the requirements of Rule 44(a) for authentication since it bears the seal and stamp of the Department of State attesting to certain facts concerning the holder which are a matter of official record with the government, i. e., his birth, citizenship, address, etc. Our attention is drawn to authority indicating that a district court should be permitted in its discretion, absent a claim that a passport is counterfeit or spurious, to admit it into evidence where it would be probative of an issue in dispute, such as the holder’s citizenship, without the necessity of requiring a party to subpoena government officials to testify to the obvious. See Pereira v. Murff, 169 F.Supp. 81, 84 (S.D.N.Y.1958).

Here, however, we need not face that issue because the Weiss passports were not offered simply to prove matters of record in the Department of State but would be competent only upon introduction of proof by authorities of Thailand that if Weiss had entered or left that country during the relevant period entries would surely have been placed upon the passports. Absent such proof the exclusion of the passports as not competent was not clearly erroneous. Furthermore, even if such evidence had been introduced, it would at best have cast doubt on McElroy's testimony that he had met Weiss in Bangkok in May or June 1967. MeElroy, however, testified that he could not be certain of the time, which he described as “approximate.” Thus, even assuming arguendo that the exclusion of the evidence was error, it was harmless.

The Sufficiency of Count 19

Count 19 (renumbered as such after former Counts 18-22 were dismissed) charged, essentially in the language of 18 U.S.C. § 1503, that the Weisses corruptly endeavored to obstruct justice by failing to produce documents which Weiss was commanded to produce by the subpoena issued by the Grand Jury investigating the alleged fraudulent scheme. The trial court, recognizing that the term “corruptly” as used in the statute requires proof of more than mere failure to produce the documents, instructed the jury that in order to find the Weisses guilty it must find some affirmative conduct on their part, such as destruction, concealment or removal of the documents. The jury had before it sufficient evidence to enable it so to find.

The Weisses, however, argue that the indictment was insufficient on its face for failure to allege, more specifically than failure to produce documents, the conduct by which they corruptly endeavored to obstruct justice. We disagree. Such details need not be alleged as long as the indictment furnishes sufficient information as to the time, place and essential elements of the crime to enable the defendants to prepare for trial and avoid a claim of double jeopardy. United States v. Salazar, 485 F.2d 1272, 1277 (2nd Cir. 1973). The present indictment satisfied these requirements. The defendants at no time argued that they were unprepared to meet the government’s proof. Although they sought particulars, including a list of the documents not produced, the Weisses made no demand for further details as to the conduct constituting the alleged “corrupt” endeavor to obstruct the investigation. Nor did they seek a continuance when the government, within a day after the Weisses first moved to dismiss Count 19, outlined its proof as to that count. In short, they were sufficiently apprised of the charge to enable them to prepare and defend with respect to it.

The joinder of Mrs. Weiss

Mrs. Weiss, who is named as a defendant in Count 19 (charging obstruction of justice) only, argues that she was improperly joined with the other defendants in violation of Rule 8(b), F.R.Cr.P., and that it was error not to have granted her motion for a severance and separate trial of the offense charged against her. Rule 8(b) provides:

“(b) Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”

The key question is whether Mrs. Weiss participated in the “same series of acts or transactions constituting an offense or offenses.” She contends that since she did not play any part at all in the underlying scheme to defraud, which formed the basis of the first 18 counts against the other defendants,’ and since the conduct upon which the obstruction of justice charge against her did not take place until two years after the completion of that scheme, she cannot be said to have participated in the same series of acts or transactions constituting an offense or offenses. See United States v. Granello, 365 F.2d 990, 993-994 (2d Cir. 1966), cert. denied, 386 U.S. 1019, 87 S.Ct. 1367, 18 L.Ed.2d 458 (1967); United States v. Leach, 429 F.2d 956, 960 (8th Cir. 1970), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1971). The government, on the other hand, argues that since the purpose of the alleged obstruction of justice was to prevent it from adducing proof of the underlying scheme the situation is analogous to cases holding that charges of attempted concealment or cover-up of a crime are sufficiently connected with the crime itself to permit joinder. See United States v. Carson, 464 F.2d 424, 436 (2d Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 268, 34 L.Ed.2d 219 (1972); United States v. Sweig, 441 F.2d 114, 118-119 (2d Cir.), cert. denied, 403 U.S. 932, 91 S.Ct. 2256, 29 L.Ed.2d 711 (1971).

While joinder of two or more offenses against the same defendant have been permitted pursuant to Rule 8(a) in the decisions cited by the government, this hardly supports joinder of different defendants upon separate charges under Rule 8(b), which is more restrictive. See United States v. Granello, supra, 365 F.2d at pp. 993-994. However, we need not decide this difficult question in the present case since, even assuming Mrs. Weiss was improperly joined, she has failed to show any prejudice to herself as a result of the joinder. If Count 19 had been tried separately, the government would have been allowed to introduce most if not all of the proof of the underlying fraudulent scheme in order to establish her motive, as Weiss’ wife, to play a major part in obstructing the government’s investigation into that scheme by removing material proof of her husband’s participation in it. See United States v. Granello, supra, 365 F.2d at p. 995; United States v. Roselli, 432 F.2d 879, 901 (9th Cir. 1970). Lastly Mrs. Weiss was further protected against “spillover” prejudice by the court’s instructions to the jury, repeated on four occasions, that it must consider each charge against each defendant separately on the basis solely of the evidence introduced with respect to the defendant on that count. That the jury followed this instruction is evidenced by its specific request for a rereading of the court’s charge relating to Mrs. Weiss.

The Conduct of the Trial

All defendants contend that they were denied a fair trial because of prejudicial conduct, rulings and statements on the part of the trial judge during the nine-day trial. See, e. g., United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973); United States v. Dellinger, 472 F.2d 340, 385-391 (7th Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973). Specifically they point to the judge’s threats to hold counsel in contempt, his order (later vacated) holding one defense attorney in contempt, his rebukes of defense counsel and deprecatory remarks regarding their conduct of the defense, his interference with the examination of witnesses and his disparaging comments regarding the defense. A rather impressive array of rebukes, threats and harsh statements by the trial judge, taken out of context, are quoted in appellants’ briefs as demonstrating that the judge displayed to the jury such favoritism toward the government, such bias against the defendants, and such hostility toward their counsel, that they were precluded from obtaining the impartial consideration of the evidence by the jury to which they were entitled.

As we have recently observed in United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973), the task upon appellate review of determining whether a judge’s conduct has “improperly . . . shifted the balance against a defendant” is a difficult one, especially since the printed record cannot convey the atmosphere, the tones of voice of judge, counsel and parties, and their facial expressions. See United States v. Boatner, 478 F.2d 737 (2d Cir. 1973). However, we are relegated to doing the best we can with the aid of the trial transcript, bearing in mind the substance or triviality of the various matters claimed to have been the subject of prejudicial conduct or remarks on the judge’s part. Experience teaches that quotations lifted out of the transcript can often be unintentionally misleading, since they usually fail to give a true or complete picture of the framework for and background of the allegedly prejudicial comments. Counsel, being advocates, also tend to attach excessive significance to some remarks and to overlook counterbalancing portions of the record. For these reasons it is essential, at least where appellants’ brief (as here) raises a substantial issue as to the trial judge’s fairness in conducting the trial, to make a “close scrutiny of each tile in the mosaic.” United States v. Nazzaro, supra, 472 F.2d at p. 304, which means reading the entire trial transcript, in this case 1,280 pages. This we have done.

Many of the trial judge’s comments, characterizations, and castigations of counsel would have been better left unexpressed, since they not only failed to serve any useful purpose but raised serious doubts as to the court’s impartiality and judicial detachment. However, our detailed review of the record satisfies us that appellants’ contentions, except for one asserted on behalf of the corporate defendants (discussed below), are grossly exaggerated. The excerpts quoted seriatim in appellants’ briefs, while indicating a possible attitude of partisanship, are not truly representative of the judge’s trial conduct and hence convey a distorted impression of the trial. The overwhelming bulk of the trial transcript reveals normal temperate conduct on the part of counsel and judge, with the latter limiting himself to categorical rulings on counsel’s objections. As for the balance, many of the court’s unfortunate comments quoted by appellants occurred outside of the jury’s presence and hence could not have influenced the jury. Others were clearly provoked by defense counsel’s unnecessary comments or statements in connection with their voicing of objections or by their pressing objections or arguments that were frivolous, repetitious, or in disregard of the court’s earlier rulings. When defense counsel repeatedly and persistently attempts to introduce irrelevant evidence (e. g., in this case proof of merchandise expenses designed to show that no overall profit was realized) he must expect that once the trial judge has made his basic ruling successive objections by the government will undoubtedly be sustained. Nor is it surprising that such wasteful tactics will lead a trial judge, .during the heat of a nine-day trial, sometimes to become impatient. Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation.

Whatever display of impatience or irritation was exhibited by the trial judge toward defense counsel, the record further reveals that, while the judge from time to time took defense counsel to task, he did not hesitate likewise to express disapproval of some of the prosecutor’s tactics and to sustain numerous defense objections. On the whole, therefore, the trial judge, while openly displaying displeasure on some occasions, was relatively evenhanded. We cannot conclude from our thorough examination of the transcript that he displayed partisanship amounting to prejudicial error, or that his heated outbursts were “pervasive,” see Offutt v. United States, 348 U.S. 11, 17, 75 S.Ct. 11, 99 L.Ed. 11 (1954). In the few instances where he questioned witnesses his queries appear to have been for the purpose of clarifying the record and not “designed to inject doubt or uncertainty as to the credibility of witnesses,” see United States v. Nazzaro, supra. As we have often reminded parties “[a] defendant is entitled to a fair trial but not a perfect one.” Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). While many of the judge’s comments were improper, they did not singly or cumulatively approach the level of such harshness or contempt for the defense as to amount to denial of a fair trial. See United States v. Dellinger, supra.

The trial court’s treatment of counsel for the corporate defendants, on the other hand, stands on a different footing. Approximately one month prior to trial Judge MacMahon assigned William S. Hack, who had acted as attorney for the corporate defendants in certain matters, to defend them in this criminal case. Thereupon Mr. Hack wrote a letter to the court declining the appointment on the ground that he lacked trial competence. He had never participated in a criminal trial in his life; in fact his only participation in any jury trial had been his representation, some 15 years earlier, of a low-income tenant in a dispute with his landlord. Notwithstanding Hack’s lack of qualifications to represent the corporate defendants at trial the judge, refusing to listen to or to accept Hack’s protestations of incompetency, ordered him to represent them at trial, threatening in an open courtroom clash before trial to hold Hack in contempt and to report him to the Association of the Bar if he did not do so. Hack finally acceded after the judge at first refused to permit him to retain an experienced criminal trial lawyer to advise and assist him but later allowed the attorney to sit with him during the trial.

The conduct of the trial judge, including his excoriation of Hack, displays of temper and threats of contempt, was wholly unjustified. Admission to the district court bar of a lawyer who has never before tried a criminal case does not ipso facto qualify him to act as defense counsel in a complicated conspiracy trial. The proper procedure, if the corporate defendants persisted in refusing to appear by retained counsel, was to appoint a lawyer qualified to serve. Indeed, appointment of the attorney whom Hack sought to retain as his adviser would have been preferable to the course taken by the court.

Despite the impropriety in forcing Hack to serve against his will the corporate defendants did not suffer prejudice requiring a new trial of the charges against them. Although they might have chosen to defend on the theory that Weiss, McElroy and Moore had acted ultra vires or beyond their authority in representing the corporations which were the subject of the indictment, such a frivolous defense would have been doomed to inevitable failure, in view of Weiss’ position as controlling stockholder, president and managing agent of Melco, and the overwhelming proof of his authority and that of McElroy and Moore. In all other respects the interests of the corporations were identical with those of Weiss, who was competently and vigorously defended by able trial counsel. Any and all steps that would have been taken on their behalf by their own counsel were taken by Weiss’ attorney with the same force and effect. Furthermore, Mr. Hack, while lacking any criminal trial experience and remaining mute through most of the trial, did voice essential motions on behalf of the clients to whom he was placed in bondage by the court. He briefly summed up to the jury and acted with the advice of an attorney experienced in criminal defense practice. Under the circumstances, particularly the fact that the corporate defendants gained the full benefit of Weiss’ defense, we cannot say that they were denied a fair trial.

The Court’s Jurisdiction Over the Corporate Defendants

The district court’s jurisdiction over the corporate defendants was predicated on the appearance as a defendant of Leon Weiss, their principal officer and controlling stockholder, and the government’s mailing of copies of the summons to each corporation at various addresses, including those overseas and its last known address in New York City, and to the New York Department of State in Albany. However, in response to a pretrial motion by the government to ascertain whether Weiss was a managing agent for the corporations and for appointment of counsel to represent them, Weiss’ counsel claimed that he was not their agent, and that they were not doing business in New York which would subject them to the court’s jurisdiction. The court, refusing a hearing requested by the government and Weiss’ counsel, found that the corporate defendants were within its jurisdiction and that Weiss was their managing agent.

Upon the record we cannot conclude that the corporations were subject to the court’s jurisdiction at the time of filing of the indictment (i. e., February 1973), which, is the operative time for jurisdictional purposes, whatever may have been their activities in New York during prior years. The burden was upon the government to establish current jurisdictional facts. If, as was contended by Weiss’ counsel, the corporations had long since left the jurisdiction, service of process on their former managing agent or upon the Secretary of State would be unavailing to confer jurisdiction upon the court.

For these reasons the case against the corporate defendants must be remanded to the district court with directions to hold a hearing for the purpose of determining whether they were present within the jurisdiction at the time of indictment and whether Weiss continued to be their managing agent at that time.

We have considered the other arguments advanced by appellants and find them to be without merit.

The convictions of Mr. and Mrs. Weiss are affirmed. The judgment against the corporate defendants is remanded for further proceedings consistent with this opinion.

      . “(1) Domestic. An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.”

      . For instance we have no way, absent videotape and sound recording, of appraising appellants’ statement that “no trial day was completely free from shouting or near-shouting by the court.”