author: GIBSON, Chief Judge.

text:
    Johnnie TASBY, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1199.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1974.
    Decided Oct. 10, 1974.
    Certiorari Denied Jan. 20, 1975.
    See 95 S.Ct. 811.

      John B. Hainen, DeQueen, Ark., for appellant.
    Robert E. Johnson, U. S. Atty., Fort Smith, Ark., for appellee,
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and SMITH, Senior District Judge

       The Honorable Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   GIBSON, Chief Judge.

Johnnie Tasby appeals his jury conviction of making a false material declaration in violation of 18 U.S.C. § 1623. He was sentenced to a term of three years imprisonment to run consecutively to the term he is now serving. This prosecution arises from Tasby’s testimony given under oath during two previous court proceedings. In the first proceeding Tasby was convicted of interstate kidnapping. This was affirmed on appeal, Tasby v. United States, 451 F.2d 394 (8th Cir. 1971), cert. denied, 406 U. S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122 (1972). Subsequently, Tasby brought a petition for post-conviction relief pursuant to 28 U.S.C. § 2255 which was denied after a hearing in the district court. This denial was affirmed on appeal, Tasby v. United States, No. 74-1916 (8th Cir., filed March 14, 1974), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974).

At his original kidnapping trial Tasby testified in his own behalf. This occurred only after a record was made establishing through Tasby’s own testimony that his attorney, Mr. Peek, had advised him not to take the stand, had explained to him the possible consequences of taking the stand, and that Tasby still wished to testify.

In the later § 2255 proceeding Tasby claimed the ineffective assistance of counsel. In support of this claim Tasby testified that he did not wish to take the stand at the original trial. Further he stated that Mr. Peek had never advised him not to take the stand, alleging that he was coerced into taking the stand by Mr. Peek’s statements that he would get 25 years to life if he did not testify. Since Tasby’s testimony in his § 2255 proceeding is crucial to the perjury charge, it is set forth in considerable detail in the margin, as is Mr. Peek’s testimony.

We turn to Tasby’s assignments of error. He alleges that: (1) the indictment was insufficient; (2) the court improperly commented upon the evidence; (3) the prosecutor improperly commented upon his failure to testify; (4) that Mr. Peek was allowed to testify in violation of the attorney-client relationship; (5) the court erred in determining materiality; (6) the court imposed an excessive sentence; and (7) the cumulative effects of the prior errors denied him a fair trial.

The indictment in this case adequately sets forth the elements of the offense charged. That is all that is required by Fed.R.Crim.P. 7(c). As stated in United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 116, 98 L.Ed. 92 (1953):

The sufficiency of the indictment is not a question of whether it could have been made more definite and certain. If the defendants wanted more definite information * * * they could have obtained it by requesting a bill of particulars. Rule 7(f), F.R. Crim.Proc.

The date of the allegedly false testimony is explicitly set forth and reference is made therein to the original kidnapping trial, but the date of that trial is not stated. The fact that the indictment does not set forth the time and place of the original trial does not render the indictment defective. There was only one original kidnapping trial. Tasby was a major participant. He knew the date and further could confirm it if he so desired. This issue is patently frivolous. It relates only to court records and only concerns court proceedings in which the defendant was a party. This information, if really necessary to prepare a defense, could have been sought by a motion for bill of particulars.

We have reviewed the statements alleged by Tasby to be an improper comment by the court on the evidence and those of the prosecutor alleged to be improper comment on his failure to testify and do not find them objectionable. The judge’s statement concerning a formal witness to prove an unassailed court record was not a comment on the credibility of the witness. The prosecutor’s comment was to some extent invited, but was really collateral to the issue in this case and was not a comment on Tasby’s failure to take the stand in the perjury trial. If either could be considered error, we are satisfied that this error was harmless beyond a reasonable doubt. Ir-refragably Tasby is nailed by his own testimony and the written record of judicial proceedings. There are no relevant disputed factual issues except Tas-by’s incredible contentions.

We find no violation of the attorney-client privilege in the facts of this case. It has long been the law that a client may waive protection of the privilege, either expressly or impliedly. Blackburn v. Crawfords, 70 U.S. (3 Wall.) 175, 194, 18 L.Ed. 186 (1865). One of the circumstances which may support a conclusion of a waiver is an attack by the client upon his attorney’s conduct which calls into question the substance of their communications. A client has a privilege to keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney’s competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence. Here, the confidentiality of the attorney-client relationship was breached by Tasby. Surely a client is not free to make various allegations of misconduct and incompetence while the attorney’s lips are sealed by invocation of the attorney-client privilege. Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived. Laughner v. United States, 373 F.2d 326 (5th Cir. 1967); Sherman v. United States, 261 F.Supp. 522, 531 (D.Haw.), aff’d 383 F.2d 837 (9th Cir. 1966); see Pruitt v. Peyton, 243 F.Supp. 907 (E.D.Va.1965); United States v. Butler, 167 F.Supp. 102 (E.D.Va.1957), aff’d 260 F.2d 574 (4th Cir. 1958).

Tasby at the § 2255 hearing attacked the representation of his attorney, thereby putting into question the substance of his communications with Tasby. We think this establishes Tasby’s waiver of the privilege. In the present proceeding, Mr. Peek’s testimony was relevant and material as to the truth or falsity of Tasby’s prior declarations and the trial court was not in error in allowing Mr. Peek to testify.

The foundation of our adversary system is the search to elicit the truth from witnesses concerning factual occurrences. False testimony is anaethema to the system and is not to be consciously and knowingly countenanced. When incredibility and doubt attend the testimony of any witness it clouds the picture, but perjury prevents the ascertainment of the actual facts. We regard perjury, or the making of false material declarations, as a serious offense and as an assault upon the cornerstone of our judicial system.

While courts are created to decide controversies amongst contending parties with conflicting claims, their task is made immeasurably more difficult, considering the limited judicial resources available, when further burdened with knowingly perjured claims.

We are not unmindful that prosecution of petitioner for making false material declarations in his § 2255 proceeding is a matter which could have ramifications upon the increasing flood of prisoner petitions. We would emphasize that this case is not concerned with cutting off the flow of bona fide claims respecting constitutional and legal rights. We are concerned only with the making of false and perjurious claims, and where such claims are knowingly made, appropriate action should be taken by the proper authorities. Our review of the record in this case convinces us that a false claim was made here and prosecution was properly instituted.

That the testimony Tasby gave at the § 2255 hearing regarding his attorney’s advice to testify was material requires no discussion. His petition alleged the ineffective assistance of counsel and his attorney’s advice regarding whether he should testify or not was material to the resolution of that issue. It was not error for the court to instruct the jury as to its materiality. The materiality of a false declaration in a § 1623 prosecution is a question of law for the trial court to determine. United States v. Koonce, 485 F.2d 374 (8th Cir. 1973).

The sentence of three years imposed by the court was within the statutory limit and thus cannot be said to be excessive. The imposition of consecutive sentences is within the power of the sentencing judge. Thus, the argument that Tasby’s three year sentence was excessive lacks merit. Having found no errors in the conduct of the trial, it is obvious that the claim regarding the cumulative effect of the alleged errors must fail.

Judgment of conviction affirmed.

      . 18 U.S.C. § 1623, enacted Oct. 15, 1970, Pub.L. 91-452, 84 Stat. 932, provides in part:
      False declarations before grand jury or court
      (a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration * * * shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . The following record regarding Tasby’s desire to take the stand was made at the original kidnapping trial.
      Q. [Mr. Peek] : Johnnie, you have re-
      quested of me, that I put [you] on the stand to testify in this case, haven’t you? A. [Tasby]: Yes, I have.
      sj! * s¡« * *
      Q. I have told you that you don’t have to take the stand. In the event that you do of if you don’t, that the Government cannot mention your failure to take the stand to the jury?
      A. Yes, sir.
      Q. And not allude to it in any way?

        A. (Shakes head in the affirmative).
      Q. 1 have let you, after having given you my opinion and impressions that you should not take the stand without more than what we have, it is still your desire, you have expressed a desire to me that you still want to take the stand?
      A. Yes, I do.
      Q. You realize that you will be subject to cross examination by the Government’s attorneys?
      A. Yes, I do.
      Q. I have advised you that there is a good possibility that they may bring out more from you than what has been introduced in evidence so far?
      A. Yes, sir.
      Q. Now, Johnnie, would you tell the Court at this time, whether or not you desire still to take the stand and to give your testimony in this cause.
      A. Yes, I do.
      tit ij:
      TIIE COURT: So the Record will be clear, Mr. Peek as attorney for Mr. Tas-by, has consulted with him and has advised him that in his best judgment, it would be better for him not to testify, yet Mr. Tasby, after having been duly warned as a Defendant in this case, elected to testify, as he has a right to do.

      . Q. [Hainen] : Now, even after disclosing these matters when and what brought you to the point of testifying about it?
      A. [Tasby] : Well, as far as I can remember when Mr. Peek, well, when Mr. Peek approached me with the statements he had rumors and the rumors that he had that he came to me with well, like somewhat put me on a defensive and he said “well, I was not leveling with him, I was not telling him everything and he could not help me if I did not, you know, if I did not give him more help”; so from this conversation I told my attorney I would talk truthfully and confidentially with him but I did not have any desires of taking it any further because of certain fears and he made such promises as he would have the Marshal to stop the deputy sheriff from Miller County transporting us and shackling us together and only if I would, you know, consider giving more to go on if X would tell him everything and the truth and consider using it as the defense; like at this time I told the attorney that I had more than myself to think about. I had a family here and I knew the hostile community that I was in and X had co-defendants also which had been connected with the situation and they had families and had to think about them but the attorney told me unless I would tell him everything and consider taking the stand on the defense we would all be up to twenty-five to life. And at this time me being unaware of the law and the way of it I considered it, I beared it in mind but I still did not. tell Mr. I’eek I wanted to take the stand or I wanted him to reveal the way I had talked to him about it and he promised me that he would not, like he specifically said he would wait until after I talked to my co-defendants and once I talked to them they decided about it and I was so worried about it as far as the danger and what-have-you that I mentioned to him.
      ¡i» »i» V
      Q. Now, at that time had you stated that you wanted to testify.?
      A. I did not want to testify and I told Mr. Peek plainly that I did not want to testify but he promised me that it would be for my best and if not that X would be subjected to twenty-five to life because he had talked to the United States Attorney personally and he said that is what he would ask for. And of course me being unaware of any of the law at this time this made a real big impression on me; that should be — you know, that I should tell the truth about it — about the outcome. Mr. Peek he never showed any implication, never once mentioned to me that I should not. All indications and all the advice that X got was this was the right thing, this was the only thing, and each time that it seemed like that I did not want to go through with it, he kept mentioning the twenty-five to life and he kept saying, in one particular incident in the trial, I guess it was after they got to talking to Mr. Taylor, to find out what he had put together in a particular recess in the Judge’s Chambers or the adjoining room here, he asked me if I was ready and I told Mr. Peek, I said “I am ready, Mr. Peek, but I am not sure, you know, I am worried about another charge”. So at this time Mr. Patton himself made the statement “you should not worry about another charge because there is not another charge in the statutes that is any worse than the charge that we already had.” So, this right there I made my last decision that I would go all the way with it but never once or twice or any at all did either of the other attorneys ever approach me about not taking the stand nor anything other than taking it.
      * * s !s *
      Q. Now, are you telling me that nobody had suggested that you should not testify?
      A. Not once, Mr. Attorney * * *.
      Mr. Peek testified concerning Tasby’s taking the stand as follows:
      Q. [Ilainen] : Getting back to Mr. Tasby, at whose request was it that Mr. Tasby testified? Did you request it, or did he request it?
      A. [Peek] : No, sir, I advised him not to testify, .as did the other lawyers in this case.
      Q. You mean the other lawyers representing the other defendants?
      A. Yes, sir.
      * * * * *
      Q. And on that advice did Mr. Tasby accept the advice of you and the other lawyers?
      A. No, sir.
      Q. After having heard Mrs. Vickers’ testimony lie requested to testify?
      A. Yes, sir.
      Q. I will ask you, after he asked to testify, and prior to the time he testified, didn’t the Court advise him of his right of testifying, and the right of cross examination if he did testify?
      A. Yes, sir.
      Q. Was he fully apprised of all of his rights?
      A. Yes, sir.
      At some point in the trial after the Government had presented its case, I remember one time in particular just before Johnnie Tasby testified, we were in the room to the immediate left here, and we all talked to him.
      Q. That is, all the lawyers?
      A. Yes, sir. And requested that he not testify because we felt we had a chance for some error if he would not take the stand. Nevertheless, he stated that he was going to take the stand, and he did. Prior to the doing of that I approached the bench and asked, made known to the Court, and the Court then excused the jury, and the jury left the room, at which time again he was admonished by the Court, and he still chose to testify.
      Q. And did testify?
      A. Yes, sir.
      Q. And he did take the stand?
      A. Yes, sir.


source: Caselaw Access Project

author: HEANEY, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Carl Henry JACKSON, Appellant.
    No. 74-1045.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 17, 1974.
    Decided Sept 13, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 16, 1974.
    Certiorari Denied March 3, 1975.
    See 95 S.Ct. 1356.

      Francis L. Ruppert, Clayton, Mo., for appellant.
    Frederick J. Dana, Sp. Atty. in Charge, Drug Enforcment Administration, St. Louis, Mo., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

The appellant was convicted by a jury of two counts of violating 21 U.S.C. § 841(a)(1), by selling heroin. The first sale was to a police undercover agent (Crosby) on November 13, 1972, and the second to a paid informer (DuPree) on November 16, 1972. The sole issue on appeal is whether the District Court erred in failing to dismiss the indictment, brought over eleven months after the dates of the offenses. The appellant claims that the government’s delay in commencing the prosecution was unnecessary and prejudicial, violating his rights to due process under the Fifth Amendment and under Rule 48(b) of the Federal Rules of Criminal Procedure. . He alleges that he was hampered in his defense because he was unable to reconstruct his activities on the dates in question or locate witnesses who could assist him in such reconstruction. We find no prejudice and affirm.

The appellant’s Sixth Amendment right to a speedy trial was not denied, since that protection is not triggered until a criminal suspect becomes an “accused,” either by arrest or indictment. United States v. Marion, 404 U.S. 307, 313, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Moreover, as Rule 48(b) “clearly is limited to post-arrest situations,” United States v. Marion, supra at 319, 92 S.Ct. at 463, and since the appellant was brought to trial within one month of his arrest, his reliance on Rule 48(b) is misplaced.

However, our inquiry is not ended with the holding that the Sixth Amendment and Rule 48(b) are not applicable. The Supreme Court in Marion recognized that pre-prosecution delay on the part of the government may violate a defendant’s right to due process of law under the Fifth Amendment, and specifically declared that the statute of limitations does not fully define the rights of criminal suspects to be speedily accused. Id. at 324, 92 S.Ct. 455. The application of the Fifth Amendment to pre-prosecutorial delay dates at least to Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), where the Court held that a seven-month delay between a narcotics offense and the swearing out of a complaint violated the defendant’s right to due process because it interfered with his ability to present an effective defense. See also, Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966). Our Court, too, has often recognized that an unreasonable pre-accusation delay, coupled with prejudice to the defendant, may violate the Fifth Amendment, although we have yet to hold in any case that the prejudice was sufficient to require reversal.

There was nothing in the original record indicating the reason for what appeared to us to be a long delay. Because we view the Fifth Amendment claim as one involving a process of balancing the reasonableness of the delay against any resultant prejudice to the defendant, we remanded to the District Court for findings with respect to the reasons for delay.

The District Court found three reasons for delay, each covering a different time period. From November 16, 1972, until approximately May, 1973, undercover agent Crosby was engaged in a continuing investigation of the narcotics traffic in the St. Louis area, and the prosecutors delayed the indictment of the appellant because of the fear that an indictment would destroy Crosby’s effectiveness as an undercover agent and perhaps endanger his safety. From May, 1973, to July, 1973, the delay was attributed to “paralysis” of the local Drug Abuse Law Enforcment (DALE) office, which resulted from the highly publicized “Collinsville raid,” in which officers had mistakenly raided a wrong house in April of 1973. From July, 1973, until the issuance of the indictment on October 18, 1973, the delay was due to the process of assuring the availability of the informant’s testimony and the preparation of the papers and evidence to be presented to the grand jury. The trial court drew no conclusion as to the reasonableness of the delay, holding that, in any event, there was no prejudice.

We agree that the appellant was not prejudiced, but we do feel it important to discuss the reasonableness of the delay. We are aware of the vital role played by informants and undercover agents in the apprehension of persons engaged in illegal drug traffic. Moreover, we respect the government’s need to keep the identity of such informants and agents confidential, both to protect their safety and to continue to use them effectively. See, United States v. Emory, 468 F.2d 1017, 1019 (8th Cir. 1972) ; United States v. Golden, 436 F.2d 941, 945 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971). However, when the government chooses to continue the use of a particular informant and delay the indictment of an individual already suspected of an offense, it must recognize and respect the suspect’s “accelerating need to know that * * * he [is] ultimately going to be charged with having committed a [certain] crime at a certain time and place * * * ”. Ross v. United States, supra 349 F.2d at 213. The undeniable fact is that the passage of time bears with it the risk that the suspect will not be able to present a complete defense to the charges, particularly when the suspect is out of work and living in poverty:

■x- -x- -x- The people in this subculture simply do not have desk pads and social calendars to assist them in determining where they were at a particular time many months before. -X- -» -X-

Powell v. United States, 122 U.S.App.D.C. 229, 352 F.2d 705, 711 (1965) (Wright, J., dissenting).

The interest of the defendant in preparing his defense while events are still recent and his memory still fresh must be taken seriously by the government in deciding to continue the undercover operation, and it must not be forgotten that the withholding of notice to the suspect is a conscious and deliberate act on the part of the police. See, Ross v. United States, supra, 349 F.2d at 213. Even the legitimate excuse of a continuing undercover investigation may be stretched to the breaking point; at some point, the accused’s right to due process of law must prevail.

Since it is the duty of the police and prosecutors to weigh the defendant’s rights in deciding to continue an undercover operation, it is a fortiori their duty to respect them once the investigation is terminated. We do not have here the prompt filing of charges following such termination, cited with approval in United States v. Emory, supra 468 F.2d at 1019. Instead, we have a further delay of five months which took place after Crosby’s function as an undercover agent was ended. Any confusion which may have resulted in the DALE office following the Collinsville raids cannot serve to justify this additional delay. On balance, then, we believe that it was reasonable to delay the indictment until Crosby terminated his services, but it should have been brought promptly thereafter.

We turn, then, to the question of whether the appellant was prejudiced by the delay. The governing standard in determining the prejudicial effect of a pre-indictment delay is “whether the delay has impaired the defendant’s ability to defend himself.” United States v. Golden, supra 436 F.2d at 943. The trial court’s finding of lack of prejudice must stand unless clearly erroneous. United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129, 1134 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973).

We cannot say that the finding of the District Court that the appellant was not prejudiced by the delay is clearly erroneous. The appellant took the stand and related an elaborate alibi with respect to the November 13 transaction. Such testimony has been held to undercut a defendant’s claim of faded memory. See, United States v. White, 488 F.2d 660, 663 (8th Cir. 1973); United States v. Atkins, 487 F.2d 257 (8th Cir. 1973); Robinson v. United States, supra, 459 F.2d at 852-853; United States v. Washington, 150 U.S.App.D.C. 68, 463 F.2d 904 (1972). Nor can we say that the District Court was clearly erroneous in finding that the appellant’s claimed lack of memory concerning the events of November 16 was “simply a part of [his] defense strategy.”

Finally, we cannot say, from reviewing the record, that the delay increased the likelihood of erroneous conviction of an innocent man. See, United States v. Kleinbard, 333 F.Supp. 699, 701 (E.D.Pa.1971). The weakness of the government’s case and the unreliability of the identification were significant factors in Ross v. United States, supra and Woody v. United States, supra. Those weaknesses are not present here. See, United States v. Golden, supra, 436 F.2d at 946; Robinson v. United States, supra 459 F.2d at 854. The appellant testified that he was with informant DuPree and agent Crosby on November 13, and the identification of him on both occasions was corroborated by several other police officers who witnessed the transactions.

Since we cannot say that the trial court erred in finding a lack of prejudice stemming from the delay between the offenses and appellant’s indictment, we affirm.

      . See, United States v. White, 488 F.2d 660 (8th Cir. 1973) (six-month delay between narcotics offense and indictment) ; United States v. Atkins, 487 F.2d 257 (8th Cir. 1973) (same) ; United States v. Weber, 479 F.2d 331 (8th Cir. 1973) (seven-month delay between narcotics offense and indictment; twenty-one more months before apprehension) ; United States v. Emory, 468 F.2d 1017 (8th Cir. 1972) (fourteen and one-half-month delay between narcotics offense and indictment) ; United States v. Golden, 436 F.2d 941 (8th Cir.), cert. denied, 404 U.S. 910, 92 S.Ct. 236, 30 L.Ed.2d 183 (1971) (nine-month delay between narcotics offense and indictment) ; Terlikowski. v. United States, 379 F.2d 501 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967) (two-year delay between burglary and indictment) ; Mack v. United States, 326 F.2d 481 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964) (three and one-half-month delay between narcotics offense and arrest) ; Foley v. United States, 290 F.2d 562 (8th Cir.), cert. denied, 368 U.S. 888, 82 S.Ct. 139, 7 L.Ed.2d 88 (1961) (five-year delay between tax fraud and indictment).

      . It is often said that unreasonable delay must coincide with prejudice before the due process clause requires reversal and hence many courts, after finding lack of prejudice, refuse to consider the reasons for delay. See, e. g., United States v. Marion, 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ; United States v. McClure, 153 U.S.App.D.C. 370, 473 F.2d 81, 83 (1972) ; United States v. Mills, 149 U.S.App.D.C. 345, 463 F.2d 291, 301 (1972) ; United States v. Deutsch, 440 F.2d 651, 652 (7th Cir. 1971), cert. denied, 404 U.S. 1014, 92 S.Ct. 668, 30 L.Ed.2d 661 (1972).
      Since we prefer to view the due process claim as one involving a balancing process, we hesitate to say that prejudice could never be presumed in an outrageous ease of unjustified delay. See Note, The Right to a Speedy Trial, 20 Stan.L.Rev. 476, 493-501 (1968). We agree that, at least where the government is not engaging in intentional delay in order to gain a tactical advantage over the accused, the defendant must affirmatively demonstrate prejudice. See, United States v. Marion, supra, 404 U.S. at 325-326, 92 S.Ct. 455; United States v. Emory, supra 468 F.2d at 1019; Robinson v. United States, 148 U.S.App.D.C. 58, 459 F.2d 847, 852 (1972) ; United States v. Golden, supra 436 F.2d at 945; Terlikowsky v. United States, supra 379 F.2d at 505. There is no showing that the government sought such a tactical advantage here.

      . The paid informant terminated his employment in that capacity in January of 1973.

      . This Court’s aside in United States v. Emory, supra at 1020, to the effect that “Ross is a case that we are not inclined to apply broadly,” must not obscure the fact that we agree with the principle of Ross that unreasonable pre-accusation delay causing prejudice to a defendant may call for dismissal of the indictment on due process grounds.
      The District of Columbia Circuit itself has not been inclined to apply Ross broadly and, indeed, in five cases since the ' Supreme Court’s opinion in Marion, has denied a defendant’s claim of prejudice. See, United States v. McClure, supra (three-year delay between embezzlement and indictment) ; United States v. Parish, 152 U.S.App.D.C. 72, 468 F.2d 1129 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973) (eight-month delay between armed robbery and indictment) ; United States v. Washington, 150 U.S.App.D.C. 68, 463 F.2d 904 (1972) (five-month delay between narcotics offense and arrest) ; United States v. Mills, supra (four-month delay between narcotics offense and arrest warrant) ; Robinson v. United States, supra, (three and one-half months between narcotics offenses and arrest).

      . We have decided two other narcotics cases this day in which the appellant also raised due process claims. See, United States v. Norton, 8 Cir., 504 F.2d 342; United States v. Washington, 8 Cir., 504 F.2d 346.


text:
    UNITED STATES of America, Appellee, v. Roland B. NORTON, Jr., Appellant.
    No. 74-1049.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided Sept. 13, 1974.
    Certiorari Denied Jan. 13, 1975.
    See 95 S.Ct. 790.

      Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    John D. Connaghan, St. Louis, Mo., for appellant.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

This is one of three cases decided this day in which the appellant claims that he was denied due process of law in connection with his conviction for narcotics violations. See United States of America v. Jackson, 504 F.2d 337 (8th Cir. 1974); United States of America v. Washington, 504 F.2d 346 (8th Cir. 1974).

The defendant in this case, Roland Norton, was convicted of two counts of violating 21 U.S.C. § 841(a)(1) by selling heroin on February 26 and March 1, 1973. The indictment was not issued until August, 1973 — five and one-half months after the dates of the offenses —and the defendant was arrested shortly thereafter. On September 6, 1973, the defendant filed a bill of particulars, asking that the government be compelled to furnish him with “the time, place, and name of the party, if there is any, who are [sic] witnesses to the transactions * * * ”. He also moved to dismiss the indictment on the ground that the delay had prejudiced his ability to present an effective defense, thereby violating his Fifth Amendment right to due process-.

On September 28, the government filed its response opposing the defendant’s motions, taking the position that it was required to turn over only exculpatory evidence and the names of those witnesses which it did not intend to call at trial. It simultaneously informed the defendant’s counsel in writing that an informant, Michael Jones, had been involved in the transactions and that he had been murdered on September 17. The motion for the bill of particulars and the motion to dismiss the indictment were denied on November 16. Although he had never filed a motion to produce the informant, the defendant’s counsel, on November 26, filed a motion to dismiss the indictment for failure to produce a material witness for the defendant to interview. That motion was also denied. It is the denial of these three motions, all connected with the loss of informant Jones’ testimony, which lies at the heart of this appeal. We affirm.

It is not the trial court’s denial of the bill of particulars which is really at issue here. The gist of the appellant’s contention is not that he was harmed by the government’s refusal to disclose, but rather that he was injured by the failure of the government to arrest him promptly, a failure which he claims deprived him of the opportunity to interview the informant, thereby discovering and preserving any exculpatory evidence.

As we stated in United States of America v. Jackson, supra, 504 F.2d at 339, the resolution of the due process claim when the government has delayed arrest or indictment requires a balancing of the reasonableness of the delay against the prejudice to the accused. The facts of this case illustrate the importance of both interests in the context of narcotics investigations. See, id. at 339-340. On the one hand, they demonstrate the possibility that material witnesses may become unavailable by the time the defendant first has an opportunity to construct his defense. Yet they also lend credence to the familiar government claim that the safety of its informants may be endangered by the publicity following indictment and arrest.

In the context of the undercover operation, the five and one-half month delay between the offenses and the indictment does not appear ünrea-sonable on its face, and the appellant does not dispute the government’s claim that Jones was an informant in other ongoing cases. Insofar as prejudice to the appellant is concerned, the only significant allegation of prejudice is in the loss of the informant’s testimony. The likelihood that the loss was prejudicial is eased by the reliability of the evidence presented by the government. See, United States of America v. Jackson, supra, at 341. Three police officers testified that they had known the defendant previously, that they witnessed the sales in broad daylight, that they personally recognized the defendant and that an automobile registered to the defendant was involved. Possible prejudice arising from the loss of the informant must be assessed in that light.

There is no doubt that the testimony of the informant would have been material. The strip-search technique employed by the police exactly parallels the technique used in the Roviaro case. As the Supreme Court stated there:

* * * Petitioner’s opportunity to cross-examine [the agents] was hardly a substitute for the opportunity to examine the man who had been nearest to him and took part in the transaction. * * *

Roviaro v. United States, supra, 353 U. S. at 64, 77 S.Ct. at 629. Since no amount of effort could produce the informant after September 17, the question ultimately must be one of allocating the risk of loss of such a witness.

In our view, when the government chooses to delay an arrest to permit an informant to continue to operate in a covert manner, thereby gaining evidence for other prosecutions, it must accept the possibility that an informant having exculpatory evidence may not be available at the time when the defendant is first accused. It must also accept the risk that, under certain circumstances, the unavailability of the informant may make it impossible to grant the defendant a fair trial and that, when those circumstances occur, the court may be compelled to dismiss the indictment. Cf., United States v. Ferguson, 498 F.2d 1001 (D.C.Cir., 1974) (Bazelon, J., dissenting).

It is not for the government to decide if the informant would present exculpatory testimony. The clear meaning of Roviaro is to the contrary:

* * The desirability of calling [the informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.

Roviaro v. United States, supra, 353 U. S. at 64, 77 S.Ct. at 629.

If the accused is denied this opportunity before trial and the informant becomes unavailable, the issue becomes one for the court. In that event, we have held that the government must bear the burden of demonstrating that the informant did not possess exculpatory evidence. See, United States v. Kitchen, supra, 488 F.2d at 575; United States v. Barnes, supra, 486 F.2d at 780.

Here, the government offered at trial to meet its burden by making a written statement of Jones available to the defense. That statement, in view of Jones’ death, was the best possible proof of what his testimony would have been. By rejecting that offer, the defense counsel waived the right to assert that the pre-accusation delay led to the loss of exculpatory evidence. Because the appellant waived his right to assert prejudice in the loss of the informant’s testimony and because there is no other showing of prejudice in the record, we find that the appellant was not denied due process of law by the delay.

Two final contentions raised by the appellant are without merit. First, he objects to the trial court’s refusal to permit the defense to cross-examine government agents as to the character of the deceased informant. We do not believe that any prejudice resulted from this ruling even if it was erroneous. See, United States v. Martin, 482 F.2d 202, 204 (8th Cir. 1973). Second, he contends that a mistrial should have been granted because of two instances in which one of the agents quoted Michael Jones during testimony. The jury was instructed to disregard the statements. We believe that the answers in both instances were inadvertent and were not deliberate attempts to get in the testimony of the decedent. In any event, the appellant has not demonstrated such prejudice as to require a mistrial. See, United States v. Martin, supra at 204.

Affirmed.

      . The government contends that, under United States v. Barnes, 486 F.2d 776 (8th Cir. 1973), it need not disclose the names of informants who will be called at trial. It has also informed the Court that this interpretation is consistently followed by the trial court.
      Tlie rule of United States v. Cole, 449 F.2d 394, 198 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 991, 30 L.Ed.2d 806 (1972), that “[i]n a noncapital case an accused has no constitutional right to require the production of the names and addresses of possible witnesses. * * * ”, is clearly not applicable to informants. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We recognized this in Barnes. United States v. Barnes, supra 486 F.2d at 778. The Roviaro Court could not have been more precise:
      * * * [W]e think that the court erred also in denying, prior to trial, petitioner’s motion for a bill of particulars, insofar as it requested [the informant’s] identity and address. * * * ■ [I]t was evident from the face of the indictment that [the informant] was a participant in and a material witness to that sale. Accordingly, when his name and address were thus requested, the Government should have been required to supply that information or suffer dismissal of that count.
      Roviaro v. United States, supra 353 U.S. at 65 n. 15, 77 S.Ct. at 630.

        ■ The exception posited by the government has no basis in Roviaro, which drew no distinction between testifying and non-testifying informants. See also, McLawhorn v. State of North Carolina, 484 F.2d 1 (4th Cir. 1973) ; proposed Federal Rule of Evidence 510(c)(1) and (2). We have never adopted such_ a distinction either. In United States v. Webster, 490 F.2d 435 (8th Cir. 1974), and United States v. Kitchen, 488 F.2d 572 (8th Cir. 1973) the government made assurances that the informant would be called to testify at trial, only to find itself unable to produce him as a witness. In both cases, we indicated that the identity and address of the informant should have been disclosed for purposes of pretrial interview.
      In United States v. Barnes, supra; United States v. Roell, 487 F.2d 395 (8th Cir. 1973), and United States v. Woods, 486 F.2d 172 (8th Cir. 1973), we found after the fact that any prejudice to the defendant had been cured by the informant’s production and availability for cross-examination at trial. But these cases do not stand for the proposition that the government may withhold names of participating informants so long as it intends to call them at trial. Nor do they stand as an invitation to trial courts to routinely deny defendants access to the names and addresses of informants prior to trial on the theory that the error may be cured by making the informant available at trial. A finding of no prejudice in a particular case ought never be construed as an invitation to deliberate error in the future. See People v. Wilkes, 44 Cal.2d 679, 687, 284 P.2d 481, 486 (1955) (en bane).

      . An appeal is currently pending before this Court in one of those cases. United States of America v. William Henry Hall, No. 74-1393.

      . Although the appellant claimed that he was unable to remember his whereabouts due to the lapse of time, he was able to testify as to his activities on the dates in question, and was able to locate two defense witnesses who also testified about events occurring on those dates. He does not claim that any tangible evidence was lost.

      . One circumstance in which dismissal would not he proper would be where the defendant is responsible in any way for the unavailability of the informant.


text:
    UNITED STATES of America, Appellee, v. Jerry WASHINGTON, Appellant.
    No. 74HL156.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided Sept. 13, 1974.
    Rehearing Denied Nov. 7, 1974.

      Thomas L. Kelly, Newmark & Baris, St. Louis, Mo., for appellant.
    William J. Dye, Sp. Atty., Dept, of Justice, St. Louis, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   HEANEY, Circuit Judge.

Appellant Jerry Washington was convicted on two counts of violating 21 U. S.C. § 841(a)(1), by selling heroin to a paid government informant. He claims that he was denied a speedy trial and due process. For two additional cases involving due process claims, also decided this day, see United States of America v. Jackson, 504 F.2d 377 (8th Cir. 1974) ; United States of America v. Norton, 504 F.2d 342 (8th Cir. 1974). We find no merit in his allegations of error and affirm.

The transactions for which the appellant was convicted occurred on July 10th and 17th, 1972. After a delay of two and one-half months, an indictment was issued on October 4, 1972, and immediately suppressed. An arrest warrant, also issued- on that date, was not executed until December 4, 1973 — fourteen months after the indictment. That was the first occasion on which the defendant knew that he was charged with the crimes.

The defendant filed a motion for acquittal for failure to prosecute, contending that the pre-indictment delay denied him of due process because it prejudiced his ability to present a defense to the charges, and that the post-indictment delay violated his right to a speedy trial under the Sixth Amendment, resulting in similar prejudice. Pursuant to this motion, an evidentiary hearing was held to determine the reasons for the government’s delay in effecting arrest. At this hearing, Officer Loehr, a government agent, testified as to the government’s efforts to locate the defendant to effect his arrest. The defendant also testified in detail concerning his whereabouts in St. Louis during the post-indictment delay. He testified that he was in the county hospital for months at a time undergoing drug abuse treatments, in the city hospital for an operation for a short time, and employed at a bakery during a portion of the interval.

The District Court found that the defendant had not been prejudiced by the two and one-half month delay between the offenses and the indictment, that the reason for the post-indictment delay in effecting arrest was the inability of gov-, ernment agents to locate the defendant, and that, under all the circumstances, the defendant’s right to a speedy trial had not been violated.

I. THE PRE-INDICTMENT DELAY.

The delay occurring between the offenses and the indictment raises a claim under the Fifth Amendment due process clause rather than under the Sixth Amendment’s guarantee of a speedy trial. See, United States v. Marion, 404 U.S. 307, 313, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); United States of America v. Jackson, supra at 338-339. As we stated in Jackson, the resolution of the due process claim requires a balancing of the reasonableness of the delay against the prejudice to the accused, id. at 339, and the defendant must ordinarily demonstrate that he is in fact prejudiced before a ruling of dismissal is called for. Id. at 339 n.2.

Except for conelusory allegations in the pleadings, the appellant has produced no evidence in the record that he was prejudiced in any way. At the evidentiary hearing, he was allowed to take the stand for the limited purpose of supporting his motion to dismiss. He had ample opportunity at that time to make a record as to prejudice, but did not do so. Therefore, as in Jackson, we cannot conclude that the District Court was clearly erroneous in finding that the appellant was not prejudiced by the pre-indictment delay, and his due process claim must fall. See, United States of America v. Jackson, supra at 341.

II. THE DELAY BETWEEN INDICTMENT AND ARREST.

Since the Sixth Amendment guarantee of speedy trial was triggered by the indictment, we must examine the circumstances of the post-indictment delay under the balancing test set forth by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under that' decision, the court is directed to weigh four factors: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Id. at 530, 92 S.Ct. at 2192.

The government asserts that “[t]he appellant’s complete failure to show prejudice is fatal to any claim he may have under the Sixth Amendment speedy trial provision.” That is not the law. Recently the Supreme Court declared :

* * * Barker v. Wingo expressly rejected the notion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial * -X- -X-

Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183, 185 (1973). See also, Hoskins v. Wainwright, 485 F.2d 1186, 1192-1194 (5 Cir. 1973). Thus, the appellant’s failure to demonstrate prejudice does not end the inquiry under the Sixth Amendment.

In our view, putting the question of reasonableness to one side, a period of fourteen months between indictment and arrest is inordinately long. It is at least long enough to serve as a “triggering mechanism,” Barker v. Wingo, supra 407 U.S. at 530, 92 S.Ct. 2182; therefore, the first factor weighs against the government here. The third factor, pertaining to the defendant’s assertion of his right to a speedy trial, must also weigh against the government, as the defendant filed his motion for acquittal promptly.

We have then a situation in which the first and third factors weigh against the government and the fourth factor (prejudice) weighs against the defendant. Against this background, the second factor — the reason for the delay — assumes central importance. The government contended and attempted to demonstrate at the evidentiary hearing that the delay was caused by the inability of the agents to locate the defendant and that its attempts to locate him had been sufficiently diligent to warrant a finding that the delay was reasonable. The defendant, on the other hand, testified in effect that his location could easily have been ascertained and that, therefore, the search could not have been diligent. We agree with the appellant’s contention that long delay arising from the negligence or laziness of the arresting officers in executing an arrest warrant would be unreasonable, and that this unreasonableness would enter into the calculus of balancing the interests of the government and the accused. Cf., Godfrey v. United States, 123 U.S.App.D.C. 219, 358 F.2d 850, 852 (1966). However, given the conflict of the evidence with respect to the agents’ diligence, the reasonableness of the delay hinged on the credibility of the witnesses. The trial court credited the testimony of the police officers. We cannot say it was clearly in error in so doing. See, Lipscomb v. United States, 209 F.2d 831 (8th Cir.), cert. denied, 347 U.S. 962, 74 S.Ct. 711, 98 L.Ed. 1105 (1954).

The trial court, in balancing all of these factors, concluded that the defendant had not been denied his right to a speedy trial. Despite our concern over the length of the delay in effecting arrest, we are inclined to sustain that ruling. The appellant’s right to a speedy trial was not sufficiently burdened to call for the exercise of “the severe remedy of dismissal.” Barker v. Wingo, supra, 407 U.S. at 522, 92 S.Ct. 2182. See also, United States v. Cabral, 475 F.2d 715, 720 (1st Cir. 1973).

III. JENCKS ACT STATEMENT, SCOPE OF CROSS-EXAMINATION, PRESENTENCE REPORT.

Three final contentions of the appellant do not require extensive discussion. First, he claims that the District Court erred in not requiring production of a Jencks Act statement by one of the officers who testified for the government. We have examined the record carefully on this point, and find that the defendant failed to invoke that Act by making an appropriate and timely request that the statement be produced. See, Lewis v. United States, 340 F.2d 678, 682-683 (8th Cir. 1965). Since the trial court was never requested to make a ruling on that issue, there was no error.

Next, the appellant claims that the court erred in restricting the scope of certain cross-examination concerning, among other things, potential involvement of witnesses in a mistaken venture widely known as the “Collinsville raids.” Cf., United States of America v. Jackson, supra at 339-340. Defense counsel was attempting, by his questions, to probe into evidence of a collateral nature. The admissibility of that evidence was within the discretion of the trial court. United States v. Cole, 449 F.2d 194, 199 (8th Cir. 1971), cert. denied, 405 U.S. 931, 92 S.Ct. 991, 30 L.Ed.2d 806 (1972). We find no abuse of that discretion.

The appellant finally contends that the court erred in denying him access to the presentence report. The government concedes that the report was not made available to him, but states that the District Court complied with the rule laid down by this Court in United States v. Carden, 428 F.2d 1116, 1117-1118 (8th Cir. 1970), advising trial judges to state on the record the factors which they take into consideration in rendering sentence. While the writer of this opinion continues to adhere to the views he expressed on this problem in United States v. Schrenzel, 462 F.2d 765, 776 (8th Cir.), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972) (Heaney, J., dissenting), he feels bound by the views expressed by a majority of this Court in United States v. Carden, supra, Hess v. United States, 496 F.2d 936 (8th Cir. 1974), and United States v. Mims, 440 F.2d 643 (8th Cir. 1971). Since the District Court complied with these eases by orally disclosing and verifying the negative ingredients of the report upon which it relied in passing sentence, there was no error.

Affirmed.

      . The defendant also moved for a bill of particulars, to compel disclosure of the name and address of the informant. This motion was denied without a hearing on the ground that the informant was to be called at trial. The appellant does not appeal this ruling. We express our views on this issue in United States of America v. Norton, No. 74-1049 at 343-344 n. 1 (8th Cir. 1974).

      . The Jencks Act, 18 U.S.C. § 3500, provides in part:
      (b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement * * * of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. * * *
      (Emphasis supplied.)


author: JOHNSEN, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Gary MINKIN, Defendant-Appellant.
    No. 14r-l004.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1974.
    Decided Sept. 27, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 18, 1974.
    Certiorari Denied Feb. 18, 1975.
    See 95 S.Ct. 1122.

      Milton Eisenberg, Washington, D. C., for defendant-appellant.
    Terry I. Adelman, Asst. U. S. Atty., St. Louis, Mo., for plaintiff-appellee.
    Before JOHNSEN and VAN OOSTERHOUT, Senior Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   JOHNSEN, Senior Circuit Judge.

I.

Gary Minkin, operator of a salvage and used-parts business, was charged in a single-count indictment and convicted on a jury trial of a violation of the mail-fraud statute, 18 U.S.C. § 1341.

The fraud involved, as implicit in the jury’s verdict, consisted in Minkin’s having devised and executed, together with a claims supervisor of the Hartford Insurance Group (Hartford), named Dace, a scheme to get Hartford to issue a comprehensive insurance policy to Minkin on a 1967 Cadillac El Dorado automobile (stated in the application to be a 1968 model) which had been the subject of payment by another insurance company to its previous owner of a total loss by fire and had then been disposed of by the insurance company to Minkin as a salvage item; making false representation in the application to Hartford that the automobile was “in good mechanical condition and free of any evidence of physical damage”; having Hartford issue a policy as applied for; making claim against Hartford that the automobile had thereafter been the subject of a theft and fire occasioning a total loss to Minkin; and collecting on this basis, by a draft payable to Minkin in the sum of $4,931.85, the proceeds of which he divided with Dace.

Hartford thus was caused to pay Minkin for a loss which he never suffered. Dace, instead of handling the adjustment of the fictitious loss himself, turned it over to an independent adjuster who made examination of the automobile upon Minkin’s car lot, assumed that its condition was the result of the claimed theft and fire, and made appraisal and report that the condition of the car constituted a total loss, with only a salvage disposal being possible in the situation. Dace had precedingly drawn up and placed in the file a fictitious police report purporting to show that the car had been duly reported to the authorities as stolen and then recovered in its burned condition.

The use of the mail relied on in the indictment as basis for the fraud coming within § 1341, consisted in the mailing of Minkin’s application to the regional office of Hartford by the broker who had handled the obtaining of the insurance, and in the alleged reasonable foreseeability by Minkin that this mailing would occur as a matter of ordinary business course in the insurance broker’s dealing with the application. Under the interpretation made of § 1341 in Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954), and in other court decisions — e. g., Fisher v. United States, 324 F.2d 775, 780 (8th Cir. 1963), United States v. Grow, 394 F.2d 182, 205-206 (4th Cir. 1968) — the existence of such a foreseeability in the situation would entitle Minkin to be legally regarded as having caused the mailing.

II.

The principal issue presented for review is the sufficiency of the evidence to go to the jury on (a) whether the broker had actually used the mail to forward the application to Hartford, and (b) if so, whether such a use of the mail by the broker could properly be found to have been reasonably foreseeable by Minkin.

On question (a), Minkin argues that there was no direct proof of a mailing of the application having been made by the broker or his secretary, nor of a receiving of it through the mail having occurred at Hartford. The contention is that there was such possibility that the broker had hand-carried the application to the Hartford office instead of mailing it that reasonable doubt on what the fact was should be held to exist as a matter of law.

The testimony of the broker, however, was positive and unshaken that he had never hand-carried any applications for individual automobile policies to the Hartford office, but invariably handled this class of business by mailing the signed application to Hartford for acceptance and issuance of the policy. He firmly stated that the only class of automobile insurance on which he ever hand-carried any papers to the Hartford office was on commercial risks or accounts, as to which signed applications were not required, but discussion, engineering and negotiation ordinarily were necessary to effect the underwriting and settling of premium rates.

Application forms used by the broker for individual policies bore the name of the company to which the application was to be submitted, and according to his testimony he always drew an arrow on the application pointing to the company’s name for mailing purposes by his secretary and then placed it in the secretary’s outgoing mail basket. The application here, which was put in evidence from Hartford’s files, bore such an arrow mark made by the broker. Any possibility that the secretary could have hand-carried the application to the Hartford office instead of mailing it was negatived by proof that she had never at any time been in Hartford’s office.

In addition, the situation was plainly not one of an application having been brought in and a policy carried out in completion of the insurance transaction, for a period of time had intervened between the date on which the application was shown to have been received by Hartford and the date on which the policy was issued by it. The jury further could find some corroboration as to the application having been mailed in the fact testified to by the broker that during the period involved and for a period preceding he had been putting in only part time at his office because of a heart attack from which he was recovering and had not at all in that time been in the Hartford office for any purpose.

All this provided adequate probative basis for the jury to be allowed to pass on the mailing question and to entitle it to be found that the application had in fact been mailed by the broker to the Hartford office.

On question (b), supra,, as to the occurrence of such a mailing of the application being reasonably foreseeable by Minkin, we further agree with the trial court that adequate probative basis existed for inference, evaluation and conclusion to entitle the matter of reasonably foreseeability by Minkin to be submitted to the jury. This is a day in which, within common knowledge and experience, the mail has come to constitute an instrumentality of general use in ordinary business incidents. In the situation here, the broker’s place of business was located in the suburbs and Hartford’s office in the heart of downtown St. Louis, a distance of some twelve miles from each other. We think the jury could properly regard Minkin, who himself operated a substantial business, as not being able credibly to claim that he believed or assumed that the broker in ordinary business course would take the time and undergo the inconvenience of making a twelve-mile trip into downtown St. Louis and back, instead of using a ten-cent stamp, to get the application into the hands of Hartford, and particularly where, as here, there was recoghizedly no emergency or other element of immediacy involved.

But even more directly probative on the question of reasonable foreseeability, there was evidence showing that at the very beginning the broker had used the mail to transmit the application form to Minkin for execution, and that Minkin in turn, after filling it out, had mailed it back to the broker with a check for the premium requested. Also, this use of the mail, both by the broker and by Minkin, in handling .the application between them, with the distance thus involved consisting of ten miles, had preceded the mailing of the application to Hartford.

On all these elements together, it would not, in our opinion, be entitled to be held as a matter of law that the mailing of the application by the broker to Hartford was not reasonably foreseeable by Minkin.

That use of the mail to handle such routine application incidents constituted a matter of ordinary business course in the insurance field here involved was further indicated by the facts, which there was testimony to show, that after the broker had mailed the application to Hartford, Hartford returned it to him in the same manner, together with Minkin’s check because of an error in the amount of the premium which Mink-in had been charged, and that after-Minkin had sent the broker a check for the deficiency, the broker, “again forwarded the whole thing back to Hartford.”

As previously noted, within the interpretation made in Pereira, supra, of the term “causes” as used in § 1341, use of the mail as a necessary or facilitating instrument to effect the execution of a scheme to defraud, “where such use can reasonably be foreseen,” gives rise to a violation of § 1341. 347 U.S. at 9, 74 S.Ct. at 363. One who engages in carrying out a scheme to defraud is therefore responsible- under § 1341 for a use made of the mail to effect a necessary or facilitating incident thereof where such use is from the nature of the business and the incident one of such ordinary course as to constitute a matter of natural expectability. A use of the mail which is of such a general, expectable occurrence is entitled to be found to be reasonably foreseeable. Thus, we observed generally in Fisher v. United States, 324 F.2d 775, 780 (8th Cir. 1968), as to the ordinary course of such an insurance business as is here involved :

Certainly in dealing with insurance agents it will be contemplated that the mails will have to be employed in carrying on business with the different companies for whom the agent does business.

III.

The next contention urged for reversal is that even if the evidence was sufficient to prove that the application had been mailed by the broker to Hartford and that the handling of the application in this manner between the broker and Hartford was reasonably foreseeable by Minkin, the existence of these facts would not be controlling because they had relation to the issuance of a policy and ignored the fact that the broker had subjected the situation to binder coverage while the application was running its course.

The fallacy in this is that there was evidence showing that the policy had been approved and issued by Hartford before the date of the alleged loss. A copy of the policy was shown to be contained in Hartford’s files. While Minkin testified that he had never received it, the jury was not required to believe this testimony. Even, however, if the situation could have been one in which the policy had not been received by Minkin personally, but had instead been taken charge of by Dace as a means of facilitating the handling of the fictitious loss, this would legally constitute a receipt of the policy by Minkin. It would not enable the consequence to be escaped that the policy had been issued, that it legally was in effect, and that the binder coverage had thereby ceased. Moreover, the draft which had been issued to Minkin for the fictitious loss bore on its face the number of the issued policy and could be endorsed and cashed by him only as payment of a loss under the policy coverage.

Attempt has been made to argue to the effect that Hartford’s return of the application to the broker and the subsequent remailing of it by the broker to Hartford with Minkin’s additional premium check amounted to such a break or change in circumstances as to leave the original mailing of the application without status as an element in the execution of the fraud. The argument is specious. No change was made in the application. The coverage sought by it remained the same. The false representation therein as to the condition of the car continued as the basis for getting the policy issued. The initial consideration of the application constituted a part of the policy approval and issuance process. In short, the submitting of the application by Minkin and the mailing of it by the broker to Hartford as originally made represented means used or caused to be used by Minkin to enable him to accomplish the scheme to defraud.

IV.

A further contention is made that the court erred in refusing to grant a motion for a mistrial because of a conversation about the case and about Minkin which occurred between three postal inspectors while eating lunch at a table in a restaurant located some seven or eight feet away from where two jurors were seated.

The postal inspectors became aware of the presence of the two jurors, they said, when the jurors, after finishing their lunch, passed by the inspectors’ table in leaving the restaurant. The inspectors immediately reported the situation to the Assistant United States Attorney, who in turn informed the trial judge and defense counsel of the matter in chambers. Discussion was had of the manner in which the incident ought to be handled. The judge proposed that he would inquire of the jury generally in the courtroom whether any of them had had lunch at the restaurant involved; that he would then question each juror separately, out of the presence of the other members of the jury, who made an affirmative response by raising his hand, on whether he had overheard any conversation or discussion in the restaurant about the case or any similar matter; and that when he had finished his questioning of the individual juror, he would allow counsel to submit any further questions to him which either of them desired to have asked.

Two jurors, which was the number that the postal inspectors stated had passed their table, made affirmative response to the judge’s initial inquiry as to eating lunch at the restaurant. The general inquiry as to having eaten lunch at the restaurant was thereafter repeated in order to leave no uncertainty as to the other ten jurors. The judge then excused the members of the jury from the courtroom except one of the responding jurors; engaged in careful questioning of the juror, with counsel present throughout; inquired of each counsel if he had any further questions that he desired to have put to the juror; and upon each of them replying in the negative, had the juror leave the courtroom, the other responding juror brought in and the same procedure engaged in as to him.

Each of the two jurors testified that he had overheard no discussion or conversation of any nature in the restaurant, either about the case, about any situation of similar nature, about Mink-in or about anything else. They had simply sat there eating their lunch, talking with each other and leaving the restaurant when they were finished. Each had seen one of the postal inspectors enter the restaurant, but did not observe where he went or became seated, and had heard nothing at all on the part of the inspector or anyone else.

The court then overruled the motion for a mistrial, stating that “all we have here” is that the postal inspectors and the two jurors had eaten in the same restaurant. There occurred no communication or contact or suggestion thereof on which the situation could be “deemed presumptively prejudicial.” Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450 451, 98 L.Ed. 654 (1956). As in Mee v. United States, 316 F.2d 467, 469 (8th Cir. 1963), there was nothing that was capable of creating any possibility of prejudice.

Defendant contends, however, that the court should have questioned the postal inspectors to make certain that the two jurors were in fact the ones who had been seated seven or eight feet from the inspectors. The court alternatively suggested that the postal inspectors and counsel remain in the corridor until after the jury had taken their seats, and that to avoid attracting the jury’s attention, the inspector who had noticed the two jurors could then look through the window in the courtroom door to see if he could identify them. The inspector reported that he was positive as to one of them, but was not able to say as to the other. There is however no room for any reasonable doubt, on the interrogation made and the responses given, that the two jurors were in fact the ones involved. The court correctly summarized the situation as follows:

[Tjhese two gentlemen, under the closest and more (sic) careful kind of interrogation I can conceive, and separate and apart from each other, and presumably not knowing what we were inquiring about, had the exact same explanation of the events.

There was nothing that called for any further probing or pursuit in relation to the incident.

The court advised the two jurors that there was nothing wrong involved in their having eaten lunch at the restaurant or in the circumstances thereof, but requested that “you not discuss any of this with the other jurors.” To have left the situation with an implication in the minds of the two jurors that they were in some way under suspicion of an impropriety, or to have surrounded the situation with such an air of mystery and unnecessary prolongation as to cause the other jurors to become possessed of an absorbing curiosity, might itself give rise to a hampering distraction and even a possible prejudice in the jury’s consideration of the case. The court engaged in such proceedings as were necessary to protect the defendant and leave no possible doubt as to the actual facts. The claim of error in the court’s refusal to grant a mistrial is without merit.

V.

The final point urged in Mink-in’s brief is the court’s refusal to make available to him the transcript of testimony which Dace had given before a grand jury. The grand jury was not the one by which Minkin and Dace had been indicted, but that fact was not of controlling significance for the amendment made to the Jencks Act in 1970, 18 U.S. C. § 3500(e)(3), by which grand jury minutes were brought within the Act, was not limited in its application to those of the grand jury by which the indictment in the case had been returned, but extended to “a statement [of a Government witness], however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.” (Emphasis added.) Such transcript or minutes, however, like other statements or reports within the Act, can be demanded for inspection only “after a witness called by the United States has testified on direct examination” and then only as to the portion thereof “which relates to the subject matter as to.which the witness has testified.” § 3500(b).

Government counsel objected to the production of the transcript on the ground that it had no relation to the subject matter of Dace’s testimony on the trial. The court reviewed the transcript in .camera, supplied defendant with a copy of a small portion thereof, and ordered the transcript sealed. In the part which was thus supplied, Dace admitted that he had previously been convicted in a Missouri state court of the fraudulent use of a credit card. Our examination of the sealed transcript shows that Dace had also admitted to the grand jury that he was at the time under indictment for the Hartford fraud offense (see fn. 2, supra), but that fact had been brought out in his testimony (and Minkin also otherwise would certainly have known of Dace’s indictment), so that it would not be possible for any error or prejudice to exist or be claimed from the court’s having overlooked providing Minkin a copy of Dace’s testimony in this respect.

As the trial court held on its initial reading of the transcript, “there is no reference whatsoever [therein] to Mr. Minkin directly or indirectly or inferentially or otherwise.” The court took occasion after adjournment for the day to again go over the transcript and further stated the following morning: “I am totally convinced that there is nothing in there that relates to the subject matter of this case.” Our reading of the transcript substantiates that appraisal. Defendant was not entitled to have the transcript.

VI.

Minkin has interspersed his argument on some of the issues which he has raised, as discussed above, with challenges to parts of the court’s instructions and to the failure to give some instructions tendered by him. These challenges are without merit. He asserts, for instance, that “[i]n giving various instructions the court continuously conveyed to the jury the impression that mailing of the letter could be presumed.” He points to such expressions as “at the time it was mailed,” “at the time the application for insurance was mailed or caused to be mailed,” and “the letter mailed.” These phrases have been lifted out of the setting in which they occur. They represented simply general language in instructions which dealt with and whose purpose was to call the jury’s attention to elements which would re- ■ quire it to acquit. One example is sufficient to demonstrate:

If the jury should find that at the time the application for insurance was mailed or caused to be mailed, as charged, the application for insurance so mailed was then true and correct, the fact that the Cadillac El Dorado may thereafter have become in poor condition and not free from fire damage, would not warrant a verdict of guilty.

The court had previously told the jury that use of the mail in furtherance of the scheme to defraud was an essential element of the offense charged; that the burden was on the prosecution to prove beyond a reasonable doubt every essential element of the crime charged; that it was the jury’s right and responsibility to determine all the facts; and that it had been the court’s purpose “to express no opinion upon the facts in the case.” There is nothing in the instructions given when considered on this basis that could cause the jury to be misled. Similarly, on such consideration of the court’s charge, there was no error in the court’s- refusal to give the tendered instructions.

vir.

For some reason which is not apparent, only the mailing of the application by the broker to Hartford was relied on in the indictment. Other mailings, however, such as Minkin’s forwarding of the executed application and premium check to the broker, which there was evidence to show had occurred, were, nonetheless, competent and relevant upon the question of Minkin’s foreseeability.

We also should add that United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974) relied on by Minkin is inapplicable here. The mailing in Maze was held by the Supreme Court to have occurred after the scheme to defraud there involved had “reached fruition,” or in other words had been executed. Here the mailing of the application was a salient factor in effecting the execution of the scheme.

Other arguments have been made in Minkin’s brief on evidentiary aspects which involve mere factual issues that have been determined by the jury’s verdict.

Affirmed.

      . Minkin was sentenced to a term of three years, with six months thereof to be served in a jail-type institution, and the balance on probation, conditioned on his making restitution.

      . Dace bad been charged for his part in the fraud in a separate indictment, which also contained twenty-three other counts against him for similar insurance frauds against Hartford. He was permitted to plead guilty to three of all these counts and, according to his testimony, was given a ten-year sentence, which he was engaged in serving at the time of Minkin’s trial. These proceedings were had before another district judge.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Calvin RICHARDSON, Defendant-Appellant.
    No. 74-1201.
    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1974.

      Thomas F. Schexnayder, Metairie, La. (Court-appointed), for defendant-appellant.
    Gerald Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   GOLDBERG, Circuit Judge:

On the afternoon of December 26, 1972, New Orleans police stopped defendant-appellant Calvin Richardson for driving his 1968 Pontiac GTO in the wrong direction on a one-way street in downtown New Orleans. Richardson carried two old acquaintances as passengers: Clarence Louis Fritz, riding in the back seat, and Ralph Joseph Anderson in the front passenger seat. After the police officers turned on their flashing light and honked at Richardson’s car, but before Richardson brought it to a halt, the back seat passenger turned around and looked at the patrol car, then turned back to the front and leaned forward as if handing something to the driver. Suspicious of this movement, when Richardson’s car stopped, the arresting officers asked all three occupants to get out of the car and identify themselves. While one of the officers examined the identifications produced, the other noticed a bag beneath the front seat on the floor of Richardson’s car, with a pipe or gun barrel protruding about two inches through a hole and in plain view. The officer seized the bag, detecting immediately that it contained a weapon; opening the bag, he discovered a sawed-off shotgun. The weapon was found to be loaded, and upon frisking Anderson, Fritz and Richardson, the officers located another live cartridge in Fritz’ jacket pocket. All three were arrested for possession of the sawed-off shotgun, placed in the back seat of the police patrol car, and advised of their rights under Miranda. Nevertheless, after a brief colloquy with his two associates, Richardson inquired of his captors : “What would happen if any one of us claimed it [the gun], takes the rap?” This appeal arises out of a jury’s response to that question.

Anderson, Fritz and Richardson were charged in a two-count indictment with knowingly and unlawfully possessing an unregistered shotgun in violation of 26 U.S.C. §§ 5845(a), 5861(b) (Count I), and with knowingly and unlawfully possessing a firearm which was unidentified by a serial number in violation of 26 U.S.C. §§ 5842, 5861(i) (Count II). Anderson pleaded guilty to both counts, and drew concurrent three-year sentences. After a joint jury trial at which Anderson, Fritz and Richardson all testified, Fritz and Richardson were convicted on Count I and acquitted on Count II. Fritz was sentenced to three years’ confinement; Richardson to five. Richardson brings this appeal, contesting the sufficiency of the evidence of his possession of the illegal weapon; contending that the trial court committed reversible error in not properly instructing the jury regarding evidence of Anderson’s guilty plea; and challenging the trial court’s jury instruction on reasonable doubt. 2We affirm.

A

The Government attempted to prove — and the jury evidently concluded —that Richardson was in constructive, though not actual, possession of the sawed-off shotgun. We have repeatedly recognized that possession of contraband drugs

may be actual or constructive, constructive. possession being dominion and control over the illegal drug. Such possession need not be exclusive, but may be shared with others, and is susceptible of proof by circumstantial as well as direct evidence.

Garza v. United States, 5 Cir. 1967, 385 F.2d 899, 901; Smith v. United States, 5 Cir. 1967, 385 F.2d 34, 38-39. See, e. g., United States v. Bowman, 5 Cir. Oct. 25, 1974, No. 74-3199. And we have applied the same principles in regard to possession of firearms or other objects. Certainly the mere presence of contraband in a car does not establish constructive possession by all of the car’s occupants. But we think that the evidence here, taken in the light most favorable to the Government, Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Warner, 5 Cir. 1971, 441 F.2d 821, 825, cert. denied 1971, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58, does establish constructive possession of the illegal weapon on the part of Richardson.

The arresting officers testified that the sawed-off shotgun was discovered leaning against the transmission hump of Richardson’s car beneath, but “not completely” under, Richardson’s seat, and that it lay sufficiently exposed through the hole in the paper sack around it for its barrel to rest in the plain view of a police officer standing outside the car “just to the front of the [open] front door” on the passenger side. Transcript at 88, 103. Moreover, although the bag containing the weapon was evidently brought into the car by Anderson, back seat passenger Fritz— who had appeared to hand something to Richardson after the police presence had been detected — was found to be carrying a shotgun cartridge. Glasser does not,' of course, require or permit us to rubber-stamp every jury conviction, and does not permit the synthesis of facts from mere hypothesis. But the evidence here fully justified the jury in concluding that the gun was not foisted upon Richardson by his old acquaintances, or that he was unaware of its presence. We cannot conclude that “a reasonably minded jury” aware of these facts and apprised of Richardson’s inquiry about the effect of any one of the defendants’ admitting sole possession “must have a reasonable doubt” of Richardson’s shared dominion and control over the illegal weapon. United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353.

B

In identifying Anderson as a witness at Fritz’ and Richardson’s trial, the trial court made Anderson’s guilty plea known to the jury. Richardson argues here that, having so informed the jury, the trial court committed reversible error by failing to charge the jury that Anderson’s guilty plea could not be considered as evidence of Richardson’s guilt. Since Richardson failed to request such a cautionary instruction at trial, however, we review the lower court’s action only for evidence of plain error. F.R.Crim.P. 30, 52(b).

Our cases reflect a deep sensitivity to the possibilities of prejudice caused by allowing a jury in a criminal case to consider evidence of a co-defendant’s guilty plea. Thus, we observed in United States v. Baete, 5 Cir. 1969, 414 F.2d 782, 783-784,

that there may be aggravated circumstances in which [even] the strongest corrective instruction would be insufficient, as, for example, where the guilty plea of one codefendant necessarily implicates another or others.

In United States v. Harrell, 5 Cir. 1970, 436 F.2d 606, 613-617, we found plain error, and reversed a jury conviction despite the absence of objection at trial, when the jury was needlessly exposed to evidence of a coeonspirator’s guilty plea, “because there [were] present the ‘aggravated circumstances’ alluded to in Baete, [arid] because of the failure of the trial judge to give any sort of cautionary instruction.”

In the ease at bar, however, we are not faced with such “aggravated circumstances.” Richardson did not deny the unlawful presence of the weapon in his car. Rather, he admitted the weapon’s introduction into the car by Anderson — that is, Anderson’s guilt — but sought to disconnect Anderson’s actions and responsibility for the weapon from himself. Moreover, the very able trial court adequately instructed the jury that it could not base a guilty verdict as to Richardson solely on Anderson’s possession, but that it had to determine beyond a reasonable doubt the fact of Richardson’s own intentional and knowing possession. If there was error at all in failing to caution the jury precisely as Richardson now suggests, it was not plain error. Cf. United States v. Davis, 5 Cir. 1973, 487 F.2d 112, cert. denied, 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878; United States v. Franicevich, 5 Cir. 1972, 465 F.2d 467.

C

Richardson’s third specification of error relates to the trial court’s jury instruction on reasonable doubt, which provided in part:

Proof beyond a reasonable doubt is established if the evidence is such that you would be willing to rely and act upon it in the most important of your own personal affairs.

Richardson contends that this portion of the charge should have been in terms of “you would not hestitate” instead of “you would be willing.” Since there was no objection to the charge at trial, Richardson must demonstrate plain error to succeed on this appeal. F.R.Crim.P. 30, 52(b).

The Supreme Court has clearly stated its judgment, and the Courts of Appeals which have found themselves directly confronted with these alternative phrasings of the reasonable doubt instruction have generally been consistent in emphasizing, that the form of instruction contended for by Richardson here is the fairer and better of the two. Those courts have nevertheless been equally unanimous in holding that use of the “would be willing” form objected to here does not constitute plain error, a result with which we find ourselves obliged to conform at this time in light of the correctness of the remainder of the trial court’s charge on reasonable doubt. That conclusion should not be taken as any encouragement to the district courts to employ the “would be willing” form however. We join the plea echoed by our sister circuits that the district courts henceforth employ the “would not hesitate” language in their reasonable doubt instructions.

The judgment appealed from is

Affirmed.

      . We find Appellant Richardson’s other points without merit.

      . United States v. Virciglio, 5 Cir. 1971, 441 F.2d 1295, 1298; accord, United States v. Craven, 6 Cir. 1973, 478 F.2d 1329, 1333, cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85; United States v. Black, 6 Cir. 1972, 472 F.2d 130, 131, cert. denied, 411 U.S. 969, 93 S.Ct. 2161, 36 L.Ed.2d 691; United States v. Holt, 8 Cir. 1970, 427 F.2d 1114, 1117.

      . See e. g., United States v. Tyler, 5 Cir. 1973, 474 F.2d 1079, 1081; United States v. Bullock, 5 Cir. 1971, 451 F.2d 884, 891.

      . See United States v. Horton, 5 Cir. 1973, 488 F.2d 374, 381-382, cert. denied, 416 U.S. 993, 94 S.Ct. 2405, 40 L.Ed.2d 772; Montoya v. United States, 5 Cir. 1968, 402 F.2d 847; Guevara v. United States, 5 Cir. 1957, 242 F.2d 745; United States v. Bethea, 1971, 143 U.S.App.D.C. 68, 442 F.2d 790, 793; Bettis v. United States, 9 Cir. 1969, 408 F.2d 563, 567. See also United States v. Martin, 5 Cir. 1973, 483 F.2d 974.

      . For his own part, Richardson denied knowing the contents of the bag brought into the car by Anderson; denied knowing Anderson very well; denied that the gun was under the driver’s seat; and denied asking.the arresting officers the consequences of one defendant’s “taking the rap.”

      . Richardson’s car had bucket seats in front which were separated by a console.

      . See United States v. Womack, 5 Cir. 1972, 454 F.2d 1337, 1346; United States v. Harrell, 5 Cir. 1970, 436 F.2d 606, 613-618; United States v. Baete, 5 Cir. 1969, 414 F.2d 782; Bearden v. United States, 5 Cir. 1963, 320 F.2d 99; Scarborough v. United States, 5 Cir. 1956, 232 F.2d 412, 414; Babb v. United States, 5 Cir. 1955, 218 F.2d 538.

      . In his closing argument, Richardson’s counsel stated;
      Anderson pleaded guilty to possession of til© gun. He is guilty, and he told the world he is guilty.
      That is the whole issue. Did the government prove to you that Fritz and Richardson] had control over this gun? ...
      . . . We know Anderson had the gun, and lie admitted his guilt.
      Transcript at 202, 204.

      . Holland v. United States, 1954, 348 U.S. 121, 140, 75 S.Ct. 127, 13S, 99 L.Ed. 150, 167.

      . See, e. g., United States v. Emalfarb, 6 Cir. 1973, 484 F.2d 787, 790-791, cert. denied, 414 U.S. 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (citing cases) ; United States v. Cole, 8 Cir. 1972, 453 F.2d 902, 906-907, cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122; United States v. Nuccio, 2 Cir. 1967, 373 F.2d 168, 174, cert. denied, 387 U.S. 906, 87 S.Ct. 1688, 18 L.Ed.2d 623; United States v. Dunmore, 8 Cir. 1971, 446 F.2d 1214, cert. denied 1972, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734; United States v.. Acarino, 2 Cir. 1969, 408 F.2d 512, 517, cert. denied, 395 U.S. 961, 89 S.Ct. 2101, 23 L.Ed.2d 746; Scurry v. United States, 1965, 120 U.S.App.D.C. 374, 347 F.2d 468, cert. denied 1968, 389 U.S. 883, 88 S.Ct. 139, 19 L.Ed.2d 179; cf. United States v. Wright, 7 Cir. 1966, 365 F.2d 135, 140, cert. denied 1967, 386 U.S. 918, 87 S.Ct. 879, 17 L.Ed.2d 789. But cf. United States v. Steinkoenig, 5 Cir. 1973, 487 F.2d 225, 230; James v. United States, 5 Cir. 1969, 416 F.2d 467, 475-476, cert. denied 1970, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87.

      . See James v. United States, 5 Cir. 1969, 416 F.2d 467, 475-476, cert. denied 1970, 397 U.S. 907, 90 S.Ct. 902, 25 L.Ed.2d 87; cf. United States v. Steinkoenig, 5 Cir. 1973, 487 F.2d 225, 230. This result is not altered by the fact that the proof of possession in this case rested on circumstantial evidence. See Holland v. United States, 1954, 348 U.S. 121, 139-140, 75 S.Ct. 127, 137-138, 99 L.Ed.2d 150, 166-167.


author: OPINION ELY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bong Shew CHEUNG, Defendant-Appellant.
    No. 73-3184.
    United States Court of Appeals, Ninth Circuit.
    Sept. 25, 1974.
    Richard Keith Corbin (argued), Sacramento, Cal., for defendant-appellant.
    Bruce Babcock Jr., Asst. U. S. Atty. (argued), Sacramento, Cal., for plaintiff-appellee.
   OPINION

Before MERRILL and ELY, Circuit Judges, and REAL, District Judge.

ELY, Circuit Judge:

Cheung was charged in four counts of a five count indictment with having committed four offenses. One of the counts involving Cheung, Count Five, was dismissed during the trial pursuant to stipulation. Convicted of the remaining three charges, Cheung appeals.

Count One of the indictment, specifying 18 U.S.C. § 371, charged Cheung with having conspired with others to transport in interstate commerce jewelry and other property having a value in excess of $5,000, knowing the jewelry and other property to have been stolen.

Count Three, specifying “18 U.S.C. §§ 2314, 2,” charged that one Cerf individually committed the offense described in Count One and charged that Cheung “did knowingly and willfully aid, abet, counsel, command, induce, procure, and cause the commission of the aforesaid offense.”

Count Four, specifying “18 U.S.C. §§ 2314, 2,” charged Cerf with having committed another unlawful interstate transportation of goods known to be stolen and alleged that Cheung aided, abetted, etc., this offense in the same language as heretofore quoted in the charge made against Cheung in Count Three.

On this appeal, Cheung makes two contentions. First, he vigorously argues that the evidence was insufficient to justify the jury’s determination of his guilt. Our review of the record convinces us that, as to the charge of conspiracy, the contention must be rejected. Cheung argues that the prosecution did not adequately prove his knowledge that the personal property in question was stolen. The testimony of three of the prosecution witnesses undermines this argument. One of these witnesses, Gail Lundell, who was employed by Cheung at the time of the conspiracy testified in part:

“Well, I asked him [Cheung] if the jewelry was stolen and I said, it’s just, you know, look too suspicious to me. He said, ‘Yes, it is stolen but it’s not from this country.’ ”

Another prosecution witness, Doug Bell, had conversed with Cheung concerning Cheung’s attempt to sell him, Bell, some of the jewelry. We quote a portion of Bell’s testimony as follows:

“And he [Cheung] said he had somewhere around $120,000.00 worth of jewelry for sale. It was wholesale. And he wanted to know if I would buy it for forty thousand. These are approximate prices. And I told him that, you know, ‘Why was it such a good price, was it hot?’ and he said yeah. I said, T don’t even want the stuff here. I don’t even want it in the store.’ So he made a statement something to refer to: ‘You never get rich by being honest.’ ”

Finally, the Government points to some of the testimony of a witness Schwartz. This testimony reads: ■

“I at this point got into a little deeper conversation with Mr. Cheung regarding the property and et cetera and he said there was a great deal more of this jewelry available of it, that the people needed the money in order to go back and get it.
Q. Keep going.
A. At which time he did use a terminology — I guess I must have asked the question because at this point—
Q. What question ?
A. Whether this material was the legitimate material — legitimate jewelry or otherwise because when the price starts dropping like this there is something wrong.
Q. What did he say?
A. He — I don’t remember the exact terminology, but to the effect that the property was warm or hot, what have you, that it had to be stolen someplace in the Islands.
Q. The Islands?
A. Yes.
Q. What Islands?
A. In Hawaii.
Q. What else? Did he tell you where it had come from ?
A. He didn’t name any specific place that this had come from other than the three — yeah, I believe it was three individuals or two individuals had brought it over.
Q. Did he say how it was stolen?
A. No.
Q. Well, did he say what kind of heist that was involved ?
A. Well, some jewelry store.
Q. Did he indicate whether or not it was a burglary, something of that sort?
A. Just that it had been taken.
Q. From a jewelry store in Hawaii ?
A. Yes.”

Viewing the evidence in the light most favorable to the Government, as we must, the foregoing testimony was more than adequate ' to warrant the jury’s determination that Cheung was indeed fully aware that the jewelry in question had been stolen.

Cheung’s second argument is to the effect. that since the principal defendant charged in Counts Three and Four was acquitted of the substantive offenses charged therein, Cheung’s conviction for having aided and abetted the commission of the offenses cannot stand. The penalties assessed against Cheung for his conviction on the three offenses were ordered to be served concurrently. In light of this, the majority, exercising its discretion, deems it unnecessary to consider Cheung’s challenge to his convictions under the second two counts.

Affirmed.

       Honorable Manual L. Real, United States District Judge, Los Angeles, California, sitting by designation.

      . The author of ting opinion believes, contrary to the majority, that the issue presented in Cheung’s second argument should be discussed and that the judgments of conviction on Counts Three and Four should be vacated. His statement in this respect, is as follows:
      “In its brief, the Government frankly concedes the general validity of Cheung’s second contention. See, e. g., Karrell v. United States, 181 F.2d 981 (9th Cir.), cert. denied, 340 U.S. 891 [71 S.Ct. 206, 95 L.Ed. 646] (1950). It attempts to avoid Cheung’s argument, however, by arguing in its brief that Cheung was also charged, under 18 U.S.C. § 2(b) ‘with earning interstate transportation of the stolen jewelry’ (emphasis in original). This argument is not supported by the record. At no point in the four-page indictment is there any reference to 18 U.S.C. § 2(b). Moreover', the judgment of the District Court, which, is and ought to be, controlling, specifically recites that Cheung’s conviction under Count Three was pursuant to ‘Title 18 U.S.C, Section 2314’ and, as to the conviction under Count Four, the judgment refers to the statute and the offense involved as “Title 18 U.S.C., Section 2(2314) (Aiding and Abetting).’
      “In tlie light of the prosecution’s failure to refer- to 18 U.S.O. § 2(b) at any point in the indictment and the failure of the judgment to include any reference to that statute, I would not permit the prosecution, at this belated stage of the proceeding, successfully to rest its whole rebuttal to Cheung’s meritorious contention on that statute.
      “I recognize that since Cheung’s conviction of the offense charged in Count One of the indictment must stand, the majority, exercising it discretion, is empowered to omit any discussion of the challenge made by Cheung to his convictions under Counts Three and Four. I, however, think it important to emphasize the desirability of specificity in indictments and, even more importantly, in the District Court’s written judgments of conviction. I would, therefore, vacate the judgments of conviction under Counts Three and Four.”