author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ardis Ray CASH, Defendant-Appellant.
    No. 74-1015.
    United States Court of Appeals, Ninth Circuit.
    June 20, 1974.
    Stephen Chase, Huntington Beach, Cal., for defendant-appellant.
    Darrell W. MacIntyre, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before WRIGHT and KILKENNY, Circuit Judges, and McGOVERN, District Judge.

       Of the Western District of Washington.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Appellant was convicted by a jury of bank robbery and the use of a dangerous weapon therein [18 U.S.C. § 2113(a), (d)]. On this appeal he argues that the evidence was insufficient to support the verdict and that conduct of the prosecutor was so grossly improper and prejudicial as to deprive him of a fair trial. The evidence was clearly sufficient, and we shall discuss only the appellant’s second contention.

The government’s evidence showed that appellant Cash and five other men met in a Los Angeles apartment in June 1972 to plan the robbery of a national bank. One of the group was employed at the bank as a security guard, and he supplied a diagram showing the interior of the bank and other information. Most of the robbers wore stocking masks and left no fingerprints when they left the bank with more than $16,000. Surveillance pictures taken within the bank and later introduced in evidence showed several of the participants, including the appellant who wore a stocking mask, white trousers, blue jacket, and cap. He was stationed near the front door.

Although the robbers escaped, extensive police work finally located one in Brooklyn, New York, and another in Waco, Texas. Each participant, including the bank guard, had received his share of the loot, about $3,000. Thirteen months after the robbery, on August 2, 1973, Los Angeles police officers arrested the appellant, who was then using the name “David Randles.” Being duly advised of his rights, appellant identified the other participants shown in the surveillance photographs and stated that each knew him as “Cash.”

On direct examination, testifying on his own behalf, appellant denied complicity in the bank robbery, asserted that he had never been convicted of a misdemeanor or felony, had had 15 years of schooling, including some college, and had an alibi for the date and hour of the robbery. He testified that he was visiting in his brother’s home at that time. During his cross-examination there occurred two incidents which, he asserts, were prosecutorial misconduct requiring a new trial. Three other incidents occurred during final argument to the jury.

Incident No. 1, on cross-examination:

The prosecutor asked appellant, “Why did you have identification for David Randles ?”

The defendant responded,

“Well, the reason that I had identification for David Randles, a fellow had got me — at least — I phrased that wrong. He told me that I could get this job at West Light Company on Main, but I couldn’t have no prior arrest record. I have a prior arrest record here in Los Angeles. So I was arrested for narcotics on July 4, 1972. I was arrested sometime not too long ago with a fellow on a burglary charge, but he indicated to the authorities he had just picked me up from the dentist’s office, which I could verify at any time, and that I did not know anything about what he was participating in.”

This answer, somewhat unresponsive and taken together with his direct testimony, caused the prosecutor to ask,

“As a matter of fact, you drove the car that was parked outside the liquor store when he went in and stole some liquor; is that not a fact ?”

The defense counsel objected and moved for mistrial; the court sustained the objection and directed the defendant not to answer the question, but he answered, “No, I didn’t.” The motion for mistrial was not granted.

The prosecutor admonished the defendant,

“Just answer my questions. Don’t go off in an unrelated field.” Shortly thereafter, his own counsel stated, “Your Honor, I’m going to admonish Mr. Cash to answer the question and don’t volunteer.”

Incident No. 2: On further cross-examination of the appellant, the following transpired:

“Q. When Officer Davenport asked you when he interviewed you on August 2, 1973, whether you committed this robbery or not, what did you tell him?
“A. Well, I told him that I didn’t. Yes, I remember I didn’t. To my best recollection, I believe that I told him I didn’t, and which I didn’t. And I wouldn’t have no reason to admit to it.
“Q. As a matter of fact, Officer Davenport asked you if you committed three robberies, one on August 21st, one on August 23rd, and this robbery?
“MR. TALCOTT: I’m going to object to that and ask for a mistrial at this time, your Honor.
“THE COURT: The jury is admonished to disregard the question and his objection is sustained.”

Incident No. 3, during final argument:

A witness for the prosecution, Willie Warner, testified that he had pleaded guilty to the bank robbery. He had identified the other participants from the surveillance photographs and testified that Cash, armed with a gun, stood near the front door of the bank as a lookout. He was either unable or unwilling to identify the appellant in the courtroom and, on redirect examination, intimated that a threat had been made against him by jail inmates while he was waiting to testify.

In argument to the jury, the prosecutor stated:

“Mr. Matthews participated in this robbery. Mr. Warner who uses narcotics — and I believe from Mr. Cash’s testimony, he testified to you ladies and gentlemen that he used narcotics during this period of time himself — I believe that when Mr. Warner said, T can’t say for sure whether that’s the man,’ when M. Talcott had him stand up, I can believe that Mr. Warner— probably there was a little question in his mind because, he too, we can assume, was probably under the influence of some kind of narcotics when they robbed this bank.
“MR. TALCOTT: I’ll object to that your Honor, as not being in evidence and prejudicial.
“THE COURT: Well, it’s argument of inferences which counsel is seeking to have the jury from evidence which is in. I think it’s argument.
“Overruled.”

Appellant argues there was no evidence that Warner or the appellant was under the influence of narcotics at the time of the robbery.

The other two incidents relied upon by the appellant as constituting prosecutorial misconduct took place during the prosecutor’s argument to the jury. We have considered them individually and collectively and conclude that they were within the realm of permissible argument and not prejudicial. We proceed to analyze the three incidents related above.

Prior to Incidents No. 1 and 2, appellant had demonstrated that he was an unresponsive witness. Twice his counsel admonished him to speak more loudly. He volunteered information which was not asked for and he evaded some questions. He admitted that he was a heroin user and was under the influence of narcotics on July 3, 1972, the date of the bank robbery. With reference to the interview by the Los Angeles police officer, he disputed much of the officer’s testimony and evaded other questions about that interrogation. But, he admitted that he had given the officer the name “David Randles.”

In light of what had gone before, the prosecutor’s question, “Why did you have identification for David Randles?” .was not improper. It did not invite the lengthy response by the defendant, of which he now complains, and did not contemplate a revelation of arrests for burglary and narcotics violations.

The prosecutor’s succeeding question was improper. Indeed, it was an argumentative statement, not in proper form:

“As a matter of fact, you drove the car that was parked outside the liquor store when he went in and stole some liquor; is that not a fact ?”

The trial judge acted promptly, sustained an objection before it was even made, and directed the witness not to answer. But the witness had already responded with a denial.

On review, we must look at this and the other actions complained of in light of all of the testimony introduced in a three-day trial, the exhibits in the case, the court’s instructions to the jury, and the trial judge’s own appraisal. The district judge characterized the evidence as “almost insurmountable.” In light of the overwhelming evidence of guilt, the prosecutor’s question could not have affected the jury’s verdict. The error was, therefore, harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see United States v. Fernandez, 497 F.2d 730 (9th Cir. 1974); United States v. Polizzi, 500 F.2d 856 (9th Cir. April 30, 1974).

We consider Incident No. 2 to be more serious. There was no foundation for the inquiry about three robberies, two of them unrelated to the crime charged. The police officer had referred to no such inquiry of the defendant, and we are left to speculate as to any possible purpose for the question.

We note, however, that prompt objection was made, together with a motion for mistrial. The court’s admonition to the jury was prompt. The incident was not referred to again, although defense counsel moved for a new trial on other grounds. We conclude that under the circumstances of this case the court’s admonition to the jury served to correct the impropriety. See Donnelly v. DeChristoforo, 416 U.S. 637, at 644, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

Incident No. 3, the reference to the use of narcotics by Warner and Cash, was not prejudicial. Appellant Cash already identified himself as a heroin user and had testified on direct examination that he used narcotics on the date of the robbery, while he was visiting his brother’s home. A witness for the prosecution, Billy Wayne Matthews, one of the other bank robbers, had testified that Cash was using drugs prior to the robbery. True, there was no evidence that Warner used drugs, but the reference- to him in the course of argument could not possibly have had any effect on the jury or its verdict.

We have examined the record with care and conclude that the defendant had a fair trial. It was not a perfect trial and, as might be expected in a major felony case, there were errors by both counsel. But none was of constitutional magnitude.

The conviction is affirmed.


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    Peter F. LaFRANCE, Petitioner, Appellee, v. George H. BOHLINGER, III, etc., Respondent, Appellant.
    No. 73-1327.
    United States Court of Appeals, First Circuit.
    Argued Jan. 5, 1974.
    Decided June 28, 1974.

      See also, 1 Cir., 487 F.2d 506.
    Bernard Manning, Asst. Atty. Gen., Boston, Mass., with whom Robert H. Quinn, Atty. Gen., John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., and David A. Mills, Asst. Atty. Gen., Chief, Crim. Appellate Section, Boston, Mass., were on brief, for appellant.
    Alexander Whiteside, II, Boston, Mass, by appointment of the Court, with whom Putnam, Bell & Russell, Boston, Mass., was on brief, for appellee.
    Before COFFIN, Chief Judge, and Mc-ENTEE- and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

The main question on appeal is whether a state judge committed constitutional error when he permitted the district attorney to use a witness’ prior statement to the police to impeach the witness without a judicial inquiry into its voluntariness and without instructing the jury to pass on its voluntariness. Cf. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). The district court ruled that the trial judge’s treatment of the statement, which implicated the accused as well as the witness in the crimes for which the former was on trial, violated the right of the accused to due process of law. Massachusetts contends that the Jackson requirements apply only to confessions of an accused, and that procedures required in that case should not be extended to the prior statements of a witness.

The accused, LaFrance, petitioned in the district court for a writ of habeas corpus, and this appeal is from allowance of the writ. He sought release from a Massachusetts correctional institution where he was confined after convictions for manslaughter, leaving the scene of an accident, and operating a motor vehicle without a license and so as to endanger. The facts are set forth comprehensively in the district court’s opinion, 365 F.Supp. 198 (D.Mass.1973), as well as in the earlier Supreme Judicial Court opinion, affirming LaFrance’s state conviction, 1972 Mass.Adv.Sh. 177, 278 N.E.2d 394. We thus restate only the most essential facts.

LaFrance was indicted for the hit and run death of Paul Butler, who had been struck by a speeding car while standing on the side of the road. Neither the car nor its occupants were identified at the time, and the car itself was never found. At a jury trial in the Superior Court the prosecution presented evidence that LaFrance was aware of the accident suspiciously soon after it had occurred, that he had attempted to get the people whose apartment he had been visiting to provide a false alibi, and that he had admitted guilt in a telephone call to one Wendall Frost. By itself, this evidence was legally sufficient to convict, as the Supreme Judicial Court found. Commonwealth v. LaFrance, supra, 278 N.E.2d at 396. In defense LaFrance took the stand to deny having left the apartment that evening, a complete alibi if believed. Earlier La-France’s companion, Richard Brown, who was called as a government witness, had likewise testified that he and La-France remained at the apartment all evening. However, the prosecutor had shown Brown a typed statement which Brown acknowledged having signed at the police station. In the statement Brown recounted that LaFrance and he had left the apartment, climbed into a stolen car, and, with LaFrance driving, had struck something.

With the court’s permission, and over the objections of the defense, the district attorney led and vigorously examined Brown with respect to the contents of the statement. When asked why, in light of his current testimony, he had said what he did, Brown replied that officer Dale Clark had treatened him; he testified that the statement was, in effect, a police fabrication signed because he was strung out on drugs, frightened, and willing to say anything to get back to his cell.. Brown denied that the statement was given of his own free will, and persisted in maintaining that it was false.

The court advised the jury that the statement was to be regarded solely to determine whether Brown’s testimony was truthful and not as evidence that LaFrance had committed the crimes charged. The officers present when Brown gave the statement also testified, asserting that Brown provided all the details, seemed “normal”, and made no physical complaints, although he “broke down and shook and wept; and said he thought this whole thing was a dream.”

The district court decided three issues. First, it rejected, as do we, the Commonwealth’s contention that LaFranee did not exhaust state remedies. Although the opinion of the Supreme Judicial Court dealt mostly with state law issues, LaFrance’s brief before the court raised, if secondarily and without much focus, the relevant federal claims. Both Jackson, supra and Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967), were cited, and LaFrance specifically complained of the court’s neglect “even to inquire whether the statment had been voluntarily made.”

Second, the district court rejected what it labelled the “confrontation contention”, namely that LaFrance was deprived of the right to confront the witness against him when the contents of Brown's out of court statement were put before the jury. We agree that neither Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), nor Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), apply. In neither case could the witness whose prior statement was in issue be cross examined. Brown, to the contrary, was present and available for cross examination; he did not invoke his privilege against self-incrimination. There was no inability to confront. Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The final point raised before the district court was that Brown’s inculpatory statement should not have been admitted, even for impeachment, without a determination that it was voluntary. The district court, equating the statement with a confession, held that it could not be admitted without a prior judicial determination of voluntariness and without submission of the issue of voluntariness to the jury. We agree that there was a sufficient factual issue concerning whether the statement was coerced to necessitate a prior judicial heáring, out of the jury’s presence. But we do not agree that the constitution required the court to submit the issue of voluntariness to the jury.

In Jackson the Court emphasized that the Fourteenth Amendment forbade the use of an involuntary confession not only because of its probable unreliability but also,

“because of the ‘strongly felt attitude of our society that important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.’” Id. at 386, 84 S.Ct. at 1785.

Indeed this, rather than emphasis upon presumed unreliability, was the rationale, Mr. Justice White, the author of Jackson, made this point unmistakably in Lego v. Twomey, 404 U.S. 477, 484-485, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) :

“We noted in Jackson that there may be a relationship between the involuntariness of a confession and its reliability. [footnote omitted] But our decision was not based in the slightest on the fear that juries might misjudge the accuracy of confessions and arrive at erroneous determinations of guilt or innocence. . . .
“Quite the contrary, we feared that the reliability of even coerced confessions could impermissibly influence a jury’s judgment as to voluntariness. The use of coerced confessions, whether true or false, is forbidden because the method used to extract them offends constitutional principles. Rogers v. Richmond, 365 U.S. 534, 540-541, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). [footnote omitted] The procedure we established in Jackson was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Nothing in Jackson questioned the province or capacity of juries to assess the truthfulness of confessions.”

The rationale is important, because if the only infirmity of Brown’s statement could be its possible unreliability, we might well conclude that the jury was the proper party to pass on that. Use of the statement was limited to impeachment, which meant that the jury was supposed merely to regard it as an item of evidence against which to weigh Brown’s current testimony. Deciding what weight to give evidence is a jury’s traditional task. There is no reason to assume that a judge is better equipped.

But Jackson and Lego reject combining into a single jury question the issue of coercion and that of the statement’s weight and reliability. They hold that the court (or a separate jury apart from the trial jury) must pass on voluntariness to make certain that decision on that question is not influenced by impressions of guilt or innocence. At stake is not “improving the reliability of jury verdicts”, see Lego, supra at 486, 92 S.Ct. 619, but screening out evidence which, if found to be induced by coercion, is unacceptable regardless of its. truth or untruth.

“Due process of law requires that a coerced confession be excluded from consideration by the jury. It also requires that the issue of coercion be tried by an unprejudiced trier, and, regardless of the pious fictions indulged by the courts, it is useless to contend that a juror who has heard the confession can be uninfluenced by his opinion as to the truth or falsity of it. . The rule excluding a coerced confession is more than a rule excluding hearsay. . . . Morgan, Some Problems of Proof Under the Anglo-American System of Litigation (1956), 104-105.” Jackson, supra at 382-383 n. 10, 84 S.Ct. at 1784.

At first blush, the same reasoning might seem equally applicable to any coerced statement, whether or not that of the accused. Nonetheless, we should not overlook some important differences, even where the statement, as here, has many confession-like traits. The major differences are as follows:

1. An impeaching statement is not substantive evidence of guilt. A confession, on the other hand, is the most damning evidence against a defendant and therefore deserving, perhaps, of greater care before it is admitted.

2. Exclusion of involuntary confessions is a principle rooted in the common law. Although there have been many different rules, there has never been significant support for the use of confessions secured by outright coercion. There is no such clear legal tradition for the suppression of involuntary impeaching statements. Indeed, a few jurisdictions have permitted even involuntary confessions to be used for impeachment. See III J. Wigmore, Evidence § 821 n. 9 (Chadbourn rev. 1970).

3. It is clear that the exclusionary rule neither demands nor permits an absolute parallel between affirmative evidence and impeaching statements. See Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), the Court reaffirmed the distinction, holding that a confession received without Miranda warnings may be used to impeach a defendant who voluntarily elects to testify.

4. Arguably there is greater urgency for a hearing outside the jury’s presence in confession cases. If an accused is not afforded such a hearing at which he can present evidence of coercion, he is forced to choose between remaining silent at his trial or taking the stand, thus opening himself to cross examination and impeachment. A witness such as Brown was faced with no such dilemma.

5. Any extension of exclusionary rules and procedures tends to complicate trials, and may result in withholding important evidence from the jury. To add, except for very good reason, to the underbrush of legal technicalities at this time seems undesirable.

6. Finally, persons not themselves the victims of illegal government conduct typically lack standing to assert the constitutional rights of others. To the extent that only Brown’s rights may have been violated, LaFrance should not be allowed to invoke vicariously an exclusionary rule. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Pruitt, 464 F.2d 494, 495 (9th Cir. 1972); United States v. Schennault, 429 F.2d 852, 855 (7th Cir. 1970).

The foregoing list provides potent reasons not to treat a witness’ impeaching statement like a confession. But we must also examine the other side of the coin.

It is unthinkable that a statement obtained by torture or by other conduct belonging only in a police state should be admitted at the government’s behest in order to bolster its case. This was the thinking of the Jackson court; and precisely because the jury’s concern with convicting a guilty defendant might lead it to credit a coerced confession, the Court required a separate hearing. Yet methods offensive when used against an accused do not magically become any less so when exerted against a witness.

“Due process does not permit one to be convicted upon his own coerced confession. It should not allow him to be convicted upon a confession wrung from another by coercion, [footnote omitted] A conviction supported only by such a confession could be but a variation of trial by ordeal.”

Malinski v. New York, 324 U.S. 401, 430-431, 65 S.Ct. 781, 89 L.Ed. 1029 (1945) (Rutledge, J., dissenting). See also Bradford v. Michigan, 394 U.S. 1022, 89 S.Ct. 1738, 23 L.Ed.2d 48 (1968) (Warren, J., dissenting from denial of certiorari); Hysler v. Florida, 315 U.S. 411, 423-424, 65 S.Ct. 688, 86 L.Ed. 932 (1942) (Black, J., dissenting). Involuntary confessions have been excluded both because of the danger of unreliability and, more importantly, out of a sense of fundamental unfairness best expressed as the “deep-rooted feeling that the police must obey the law while enforcing the law”. Spano v. New York, 360 U.S. 315, 320-321, 79 S.Ct. 1202-1206, 3 L.Ed.2d 1265 (1959). See generally Developments in the Law — Confessions, 79 Harv.L.Rev. 935 (1966). Since a statement coerced from an accused is neither less trustworthy than one from a witness nor more offensive to society’s sense of fairness, it would seem illogical invariably to require a Jackson hearing in the first case but never in the second. See People v. Underwood, 61 Cal.2d 113, 37 Cal.Rptr. 313, 389 P.2d 937 (1964) (en banc); People v. Newman, 30 Ill.2d 419, 197 N.E.2d 12 (1964). Contra, State v. Paul, 83 N.M. 619, 495 P.2d 797 (1972); People v. Bradford, 10 Mich.App. 696, 160 N.W.2d 373 (1968), cert. denied, 394 U.S. 1022, 89 S.Ct. 1638, 23 L.Ed.2d 48 (1969). See also Comment, The Right of a Criminal Defendant To Object to the Use of Testimony Coerced From a Witness, 57 Nw.U.L.Rev. 549 (1962); Note, 58 Geo. L.J. 621 (1970).

The due process requirements of a fair .trial clearly extend to matters dealing with a witness' credibility. In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959), the Court said,

“The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness.”

The credibility of a key witness is often, as here, critical to the accused’s case; effective impeachment helps the government. The government would not violate Napue by offering a statement which it believes to be voluntary simply because a witness, in order to bolster a changed story, charges that he was intimidated by improper police tactics. But if the charge is stated under oath and a factual issue established, the court and the government may not simply brush it aside. The court has a duty to make an inquiry outside the hearing of the jury sufficient to satisfy itself that there is nothing to the claim; and should the charge be substantiated, it is wrong that the government benefit from the tainted evidence.

Neither the confession eases nor Napue deal with the exclusion of impeaching statements. But, in Harris, the Court was careful to point out that there was no claim that the confession had been coerced; its further insistence that the “truthworthiness” of an impeaching statement satisfy “legal standards” strongly implies that it would not favor the use of statements extracted by coercion. Id. at 224, 91 S.Ct. 643. In a similar case holding that suppressed statements made in the absence of counsel could be used for impeachment, the Second Circuit also noted that it would be a different question if the prior admission were found to be unconstitutionally coerced. United States v. Curry, 358 F.2d 904, 912 (2d Cir. 1965).

We conclude that although there is no absolute parallel between the exclusionary rule relative to confessions and that relative to impeaching statements of witnesses, there is a point at which the same considerations apply to both. That point has been reached here because there is a substantial claim by the defendant that the impeaching statement offered by the government was obtained by police threats and other blatant forms of physical and mental duress. Where such a claim is made, and supported by sworn testimony, the court has a duty to conduct its own inquiry and to exclude the statement if found to have been unconstitutionally coerced. Its duty stems from “the concept of due process, which now protects the accused against pretrial illegality by denying to the government the fruits of its exploitation of any deliberate and unnecessary lawlessness on its part.” United States v. Toscanino, 500 F.2d 267 at 275 (2d Cir. 1974). We emphasize that our holding goes no further than this; it is not to be interpreted as making applicable the Miranda or even pre-Miranda rules inferring involuntariness from circumstances falling short of the grave misconduct here mentioned. Since our decision is premised upon the rationale that use of coerced testimony entails a violation of the defendant’s due process right to a fair trial, there is no standing problem. LaFranee is not complaining of the purported denial of Brown’s constitutional rights, but only of his own.

It does not follow that LaFranee had a federal constitutional right' to have voluntariness also put to the jury. That contention is disposed of by Lego, supra, holding that there is no such right. In the case of confessions, Massachusetts has traditionally required voluntariness to be put to the jury if the court resolves the issue against the accused. But the Massachusetts courts have never passed on a procedure involving a statement other than a confession. It may be that they will not wish to extend the confession rule to statements by ‘ witnesses. That decision, in any event, is not for us to make.

Since voluntariness did not have to be put to the jury, a new trial is not inevitable. Rather the case should be returned to the Massachusetts, court so that a hearing on the issue of coercion may be held there. If the statement is found not to have been coerced, the prior judgment of conviction may stand. Otherwise the judgment should, of course, be vacated. The district court did not err in not itself holding an evidentiary hearing on voluntariness. We leave to the district court pending completion of state proceedings the status of LaFranee, who has been released on recognizance.

As assistance in interpreting this decision, we add the following: In any except the most glaring case, we will not look with favor on claims of coercion not timely and expressly raised during trial. Unless a serious factual dispute can be shown to exist, and one in which, if successful, the defense would be entitled to exclusion, no hearing at all is necessary. Cf. Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1970). Finally, when need for a hearing is established, the government’s burden to prove an absence of physical or mental coercion is by a preponderance of the evidence. Lego, supra. In all except the most unusual case, we should • anticipate that the court’s duty of inquiry would require minimal interruption of proceedings.

Remanded for proceedings in accordance herewith.

      . Brown’s full testimony, which we do not repeat, concerning his physical and mental condition at the time he gave the statement was accurately summarized by the district court, see LaFrance v. Bohlinger, supra at 201-203.

      . In Commonwealth v. Kleciak, 350 Mass. 679, 216 N.E.2d 417 (1966), the court reversed its older holding that an involuntary confession could be used for impeachment.

      . The issue has been raised in federal eases, but not decided. See, e. g., Turner v. Pennsylvania, 338 U.S. 62, 65-66, 69 S.Ct. 1352, 93 L.Ed. 1810 (1949) ; United States v. Wolfe, 307 F.2d 798, 801 (7th Cir. 1962).

      . In the present case, Brown’s statement was a major event in the trial. It easily could have affected the outcome. His claims, if believed, would establish that he was questioned for a long period of time, took drugs in the presence of his interrogators, was frightened and dazed, and eventually signed a statement known to himself and the police to be false. These claims have been denied both in government testimony at trial and in affidavits furnished to us; and we do not suggest that we accept Brown’s version. Brown, indeed, has since pleaded guilty to a perjury charge stemming from his testimony in this case; and while it is not clear what testimony was perjured, his conviction obviously bolsters the government’s, and diminishes LaFrance’s, position.

      . We make no' distinctions between placing the statement before the jury by leading questions, by reading its contents, or otherwise.

      . In Jackson v. Denno, 378 U.S. at 395-396, 84 S.Ct. at 1790, the Court said:
      “Obviously, the State is free to give Jackson a new trial if it so chooses, but for us to impose this requirement before the outcome of the new hearing on voluntariness is known would not comport with the interests of sound judicial administration and the proper relationship between federal and state courts. We cannot assume that New York will not now afford Jackson a hearing that is consistent with the requirements of due process. Indeed, New York thought it was affording Jackson such a hearing, and not without support in the decisions of this Court, [footnote omitted] when it submitted the issue of voluntariness to the same jury that adjudicated guilt. It is. both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence. But as to Jackson, who has already been convicted and now seeks collateral relief, we cannot say that the Constitution requires a new trial if in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined to be voluntary.”

      . While we do not today decide the question, we do not envisage that any new principle embodied herein will be given retroactive effect. Cf. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).


author: ALFRED T. GOODWIN, Circuit Judge: HUFSTEDLER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Jim Ladesma [LEDESMA], Appellant. UNITED STATES of America, Appellee, v. Oscar Venicio QUIROZ-SANTI, Appellant.
    Nos. 73-1583, 73-1582.
    United States Court of Appeals, Ninth Circuit.
    May 21, 1974.

      Martha Goldin (argued), Alan Saltzman, of Saltzman & Goldin, Hollywood, Cal., for appellant in 73-1583.
    Michael Kenney, Asst. U. S. Atty. (argued), Los Angeles, Cal., for appellee in 73-1583.
    Carl E. Stewart (argued), of Eilers, Stewart, Pangman & Millar, Newport Beach, Cal., for appellant in 73-1582.
    Michael Kenney, Asst. U. S. Atty. (argued), D. Henry Thayer, Eric A. Nobles, Asst. U. S. Attys., William D. Keller,' U. S. Atty., for appellee in 73-1582.

       The Honorable Bruce R. Thompson, United States District Judge for the District of Nevada, sitting by designation.

   OPINION

Before HUFSTEDLER and GOODWIN, Circuit Judges, and THOMPSON, District Judge.

ALFRED T. GOODWIN, Circuit Judge:

Jim Ledesma and Oscar Venido Quiroz-Santi appeal their convictions for conspiring to possess and distribute cocaine in violation of 21 U.S.C. § 846 and for possessing, with intent to distribute, cocaine in violation of 21 U.S.C. § 841(a)(1). They assert errors in the admission of evidence and also seek reversals for insufficiency of the evidence. We affirm both convictions.

In November, 1972, Nancy Pena of North Hollywood, California, received a letter from her adopted sister, Isabelle Soto, an unindicted co-conspirator living in Chile. Soto requested a telephone number at which Pena could be reached. Pena had no telephone of her own, so she sent Soto the number of a friend and neighbor, Dora Acerbi. Beginning early in December, Pena received a series of calls on Acerbi’s telephone from Soto, in which the two discussed Soto’s plan to visit Pena in Los Angeles. Later, Soto canceled these travel plans, but said that instead, she would be sending presents for Pena’s children.

On December 1, 1972, a trunk from Chile arrived at the Los Angeles airport addressed to Pena. A routine customs inspection revealed over 22 pounds of cocaine concealed under a false bottom in the trunk. When Pena arrived at the airport to claim the trunk, she was arrested by Customs agents. After deciding that Pena probably had no knowledge of the cocaine smuggling, the agents sought and received her cooperation in their investigation. At their request she called Soto in Chile to report the arrival of the trunk. Soto called back later that day to advise Pena to save the trunk until she could reclaim it. Both these conversations were recorded by the government, with Pena’s permission.

Meanwhile, Customs Agents removed most of the cocaine and replaced it with a filler that resembled cocaine, leaving only a sufficient quantity of the drug to serve, if needed, as evidence.

On December 8, Pena received another call from Soto in which Soto told Pena that two men, whose names were Benevadas and Castro, would pick up the trunk shortly.

On the afternoon of December 11, Pena’s neighbor, Acerbi, received a telephone call from Ledesma seeking Pena’s new address. Acerbi gave Ledesma the address, and that evening Ledesma arrived in a taxi at Pena’s apartment. Quiroz-Santi followed Ledesma in a rented automobile, and remained in his car. After undercover agents had returned with the trunk, it was loaded into Ledesma’s waiting taxi. Ledesma, still followed by Quiroz-Santi, then returned to their motel room in Hollywood. The trunk was stored in the room, and Ledesma and Quiroz-Santi left the motel and did not return until early the next morning.

That afternoon, after Quiroz-Santi had bought a lock for the trunk, he and Ledesma took the trunk to a railway-express office and arranged to have it shipped to Ledesma, under an assumed name, in New York City. Ledesma and Quiroz-Santi were arrested that evening. Customs agents also seized the trunk at the railroad station. Two days later, with a search warrant, the agents searched the trunk and discovered that the false bottom and the concealed cocaine had not been disturbed.

Ledesma and Quiroz-Santi testified in their defense. They said they had come from New York on a vacation and had met a man in a cocktail bar who asked them to pick up a trunk of his from a friend and to send it on to New York. He agreed to pay Ledesma $150 and to assist him in finding a rent-controlled apartment back in New York in exchange for Ledesma’s assistance. Ledesma consented. Quiroz-Santi did not take an active part in the conversation, but did assist Ledesma in claiming and attempting to forward the trunk. Both Ledesma and Quiroz-Santi denied any knowledge that cocaine was hidden in the trunk.

Both defendants object to the admission in evidence of the trunk and the cocaine contained within it, and of the recorded conversations between Soto and Pena. Both also claim that in any event the evidence was insufficient to support their convictions.

I. The Trunk

Although the trunk was not searched the second time until after a search warrant had been obtained, it was lawfully seized by government agents at Customs, ánd remained subject to governmental seizure and control thereafter while it was being used as bait. See 21 U.S.C. § 881(a)(3).

There was no prejudicial error in refusing to grant Quiroz-Santi an evidentiary hearing on his motion to suppress. Rule 41(e), Federal Rules of Criminal Procedure, provides that the court “shall receive evidence on any issue of fact necessary to the decision of the motion.” Evidentiary hearings need not be set as a matter of course, but if the moving papers are sufficiently definite, specific, detailed, and nonconjectural to enable the court to conclude that contested issues of fact going to the validity of the search are in question, an evidentiary hearing is required. Cohen v. United States, 378 F.2d 751, 760-761 (9th Cir.), cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L.Ed.2d 215 (1967).

In the present case we need not decide whether Quiroz-Santi’s motion met the Cohen standard. Although a pretrial evidentiary hearing could have been conducted, the Customs agents involved in the seizure testified at the trial. Quiroz-Santi examined them thoroughly on the circumstances surrounding the surveillance of the defendants and the trunk. While the practice of consolidating the suppression hearing with the trial is not to be commended in all cases, the defendants here were not prejudiced by the denial of a separate hearing, and no reversible error occurred.

As property subject to forfeiture, see 21 U.S.C. § 881(a)(3), the trunk was properly seized by Customs agents when they took possession of it from the railway-express office at which it had been left. See 21 U.S.C. § 881(b) (4); cf. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Although we need not decide whether the agents could have entered a private residence without a warrant in order to seize the trunk, we have no difficulty in holding that they acted prop-, erly in seizing a trunk, known to have been used to smuggle cocaine, from a railroad shipping office. Since the seizure was legal, the motion to suppress was correctly denied, and the trunk and its contents were properly admitted into evidence.

II. The Soto-Pena Conversations

Ledesma and Quiroz-Santi also objected on hearsay grounds to the admission of testimony and transcriptions of telephone conversations between Nancy Pena and Isabelle Soto. The government counters by arguing that Soto’s statements were properly admitted as those made by a co-conspirator during the course of the conspiracy.

Before out-of-court conversations of a co-conspirator may be used as evidence against a defendant, there must be proof from a source apart from the statement: (1) that a conspiracy existed, and (2) that the member against whom the conversation is introduced had knowledge of and participated in the particular conspiracy alleged. See Glasser v. United States, 315 U.S. 60, 75, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972); United States v. Bentvena, 319 F.2d 916, 949 (2d Cir. 1963). In United States v. Griffin, 434 F.2d 978, 983-984 (9th Cir. 1970), cert. denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), we quoted with approval from United States v. Ragland, 375 F.2d 471 (2d Cir. 1967), cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2d 987 (1968), where Judge. Waterman of the Second Circuit wrote:

“ * * * [0]nce some conspiracy, agency or concert of action is independently shown * * *, hearsay statements made in furtherance of such relationship * * * are admissible. However, the independent evidence need not, as appellant suggests, be so clear and convincing as to compel, absent contradiction, a finding of the fact sought to be proved.
“The threshold requirement for admissibility is satisfied by a showing of a likelihood of an illicit association between the declarant and the defendant although it might later eventuate that the independent evidence so admitted proves to be insufficient to justify submitting to the jury the issue of defendant’s alleged guilty involvement with declarant * * *. In determining preliminary questions of fact relating to admissibility of the hearsay the trial judge has wide discretion * * * and need only be satisfied, if he accepts the independent evidence as credible, that that evidence is sufficient to support a finding of a joint undertaking * * * .
“Moreover, the independent evidence of illicit association may be totally circumstantial * * *. Nor is it necessary in this circuit that such independent evidence be inconsistent with all reasonable hypotheses of innocence, as appellant suggests, * * * to legitimate its admissibility * * *.” 375 F.2d at 476-477. (Emphasis in original.)

The foundation evidence here meets this standard. First, there was independent proof that a conspiracy existed. We note that the 22 pounds of cocaine contained in the trunk was the equivalent of some 100,000 dosages and had a street value in excess of $900,000. These facts, along with shipment of the trunk from Chile to Los Angeles, where it was claimed first by Pena and then by two strangers, are sufficient to establish the existence of a conspiracy of two or more persons to possess and distribute cocaine.

There must also be some independent proof of each defendant-conspirator’s knowledge of and participation in the conspiracy. Both defendants argue vehemently that this kind of evidence was lacking. They concede that they picked up a trunk at Pena’s apartment and shipped it to Ledesma in New York, but they contend that there is no evidence from which it can be inferred that they knew that the trunk contained cocaine. The appellants conclude that, without such knowledge of the principal purpose of the conspiracy, Soto’s hearsay statements cannot be admitted against them.

We will note briefly some of the evidence on which a finding of requisite knowledge could have been based. Pena’s neighbor testified that Ledesma had told her that he had obtained her telephone number by calling Soto in Chile. From this telephone call, an inference could properly be drawn that Ledesma participated in or even knew of Soto’s illegal plan. We are not convinced by Ledesma’s attempt to deny the appropriateness of an unfavorable inference by invoking the rule that mere association with guilty persons is insufficient to establish intentional participation in a conspiracy. See United States v. Falcone, 311 U.S. 205, 210, 61 S.Ct. 204, 85 L.Ed. 128 (1940). In view of the inconsistency between Ledesma’s telephone call and Ledesma’s explanation of his involvement with the trunk, the judge had the right to disbelieve the defendants’ story of how they flew from New York to California because Quiroz-Santi had had a fight with his wife and then happened to meet a stranger in a bar who paid them money to pick up a trunk of his and ship it to New York. The court was entitled to infer that Ledesma and Quiroz-Santi did not fly across the country and devote a substantial amount of their time and money on the west coast in locating and shipping a stranger’s trunk, about which they knew nothing. It was far more likely that Ledesma and Quiroz-Santi were at least partially-informed members of the conspiracy, whose job it was to forward the trunk from Los Angeles to New York. Also, Ledesma used a false name and carried false identification; Quiroz-Santi used a different address for his residence when renting an automobile than when registering at the motel; Quiroz-Santi followed Ledesma’s taxi over, to Pena’s apartment, parked a block away, and waited in the darkened car with a newspaper in front of his face; Ledesma, when picking up the trunk at Pena’s apartment, did not mention that he was sent by a stranger whom he had met the previous night, but said that he himself needed the trunk to send clothes back to New York.

There was sufficient independent evidence that Ledesma and Quiroz-Santi had knowledge of and participated in the conspiracy to distribute cocaine to justify admitting the hearsay, statements of Soto.

Quiroz-Santi also argues that even if Soto’s half of the conversation is admissible under the co-conspirator exception to the hearsay rule, Pena’s half still is not admissible since she was little more than a government agent. A similar problem was met in United States v. King, 472 F.2d 1 (9th Cir. 1973). What was said there is every bit as applicable here:

“ * * * For the Judge to have excised all of * * * [Pena’s] half of the discussions would have rendered the recorded conversations, which were legitimate evidence, unintelligible.” 472 F.2d at 5.

Moreover, Pena was present at the trial and was subjected to rigorous cross-examination by both defendants. Under these circumstances we find that most of the justifications normally relied upon for excluding hearsay did not exist here. See C. McCormick, Evidence 581-83 (2d ed. E. Cleary 1972).

Finally, Ledesma contends that because two of the conversations took place on December 5, 1972, and the indictment charges that the conspiracy began “on or about December 8, 1972,” these conversations were inadmissible as predating the existence of the alleged conspiracy. This court has previously rejected the notion that the beginning of the conspiracy must be specifically proved:

“ * * * Speaking generally, the government had no knowledge of the exact time or place of the formation of the conspiracy, and to require it to specify the particular time and place, and limit the proof to that time and place, would defeat almost every prosecution * * *.” Toliver v. United States, 224 F.2d 742, 744 (9th Cir. 1955).

See also Heike v. United States, 227 U.S. 131, 145, 33 S.Ct. 226, 57 L.Ed. 450 (1913).

III. Insufficiency of the Evidence

Both Ledesma and Quiroz-Santi contend that there was insufficient evidence to support their convictions. They again argue that the evidence proved only that they took into their temporary possession a trunk which happened to contain smuggled cocaine. Proof that they knew of the cocaine, they contend, was entirely absent.

We agree that there was no direct evidence of knowledge. However, the same circumstantial evidence which we reviewed in connection with the foundation for the telephone calls could cause a jury to infer that the defendants knowingly entered into a conspiracy to possess and distribute cocaine. We recognize that the independent evidence called upon to justify the admission of Soto’s statements against Ledesma and Quiroz-Santi may be sufficient for that purpose yet insufficient to support their convictions. See United States v. Ragland, 375 F.2d at 477. Here, however, the independent evidence, along with Soto’s statements, was sufficient to sustain the jury’s verdict.

Some of the evidence from which a jury could infer that the defendants knowingly took part in a conspiracy to possess and distribute it, may bear repeating here: (1) The defendants left New York one day after Soto had told Pena that two men would be coming shortly to pick up the trunk; (2) the day after their arrival in Los Angeles they began their efforts to locate the trunk; (3) they invested a substantial amount of time and money in locating and shipping an apparently empty trunk; (4) when Ledesma left a note with Pena’s child at school to be delivered to Pena, he used an alias rather than his own name; (5) Pena’s neighbor and a federal agent disguised as her friend both testified that Ledesma had said that he had gotten her telephone number, a number known only to a very few people, by calling Pena’s relative in Chile; (6) Pena and the disguised federal agent both testified that Ledesma was very nervous when he came to pick up the trunk; and (7) Pena’s neighbor testified that when Ledesma found that the trunk was not at Pena’s apartment he got angry and asked, “How is it possible that this lady has given the trunk to somebody else when her sister had told her to keep it here ?”

Since Quiroz-Santi argues that the evidence was especially slim against him, we think it appropriate to deal with him separately. Concededly, Ledesma appeared to take the more active role in moving the trunk along its way. The evidence, however, supports the inference that Quiroz-Santi’s apparent disassociation with the venture did not reflect his innocence but rather his desire to insulate himself from criminal liability. For example, rather than join Ledesma in the taxi ride over to Pena’s apartment, Quiroz-Santi chose to follow in a rented ear. The jury could quite properly reject Quiroz-Santi’s explanation for this curious behavior and instead view it as part of an attempt to avoid being seen in Pena’s residence with Ledesma and the trunk. Moreover, Quiroz-Santi parked in a darkened automobile outside the apartment building, with a newspaper in front of his face. Apparently curious at the source of Ledesma’s delay, he cruised in front of the apartment once and returned to a parking place a block from the building. On another occasion Ledesma made a telephone call to Pena’s neighbor seeking Pena’s address. When she had difficulty understanding Ledesma, Quiroz-Santi, who was standing by, took over the telephone from Ledesma and arranged the meeting for that evening. This behavior, along with the other evidence we have cited, was sufficient to sustain the jury’s verdict against Quiroz-Santi.

Both Ledesma and Quiroz-Santi object to the government’s suggestion that the jury’s disbelief of their testimony can somehow buttress deficiencies in the government’s evidence. Although the government clearly has the burden of proof to establish guilt beyond a reasonable doubt, and although the defendants clearly have the right to elect not to testify, if they do testify, a jury may properly base its finding in part on the defendant’s testimony and their disbelief in its truth. See United States v. Chase, 503 F.2d 571, at 573 (9th Cir., 1974) ; United States v. Hood, 493 F.2d 677, at 681 (9th Cir. 1974).

Here, Ledesma and Quiroz-Santi, at least one of whom indicated at one point that he was unemployed, said that they flew out from New York to Los Angeles for a three-day holiday vacation because Quiroz-Santi had had a fight with his wife. They said that soon after arriving they met a stranger in a bar, and that for $150 and the stranger’s promise of assistance in finding a rent-controlled apartment back in New York they spent much of the remainder of their vacation attempting to locate the trunk and mail it back east. Taxis were rented at considerable expense to transport themselves and the trunk back and forth across town. The name of the mystery man whom they were supposedly assisting was changed from Coco to Benevadas during the trial in order to make it conform to evidence revealed by the prosecution at trial. When Ledesma arrived at Pena’s apartment to claim the trunk, he made no mention of this stranger; rather, he said that he was planning to use the trunk to send clothes back to New York. In fact, he shipped the trunk to himself, and made no effort to locate Coco-Benevadas. When Ledesma and Quiroz-Santi elected to testify on their own behalf, they assumed the risk that the jury not only would disbelieve their story but also might wonder, quite properly, why their explanation of their conduct was so improbable.

We express no opinion as to whether the 69 grams of cocaine returned to the trunk by the Customs agents was a large enough quantity to make Ledesma and Quiroz-Santi entrepreneurs and, hence, to support their convictions for possession with intent to distribute. (The 69 grams, when diluted to a “street” quality, would yield approximately 1380 dosages, or nine months of intake for a typical user and was valued at approximately $6,700.) See United States v. Mather, 465 F.2d 1035, 1037-1038 (5th Cir.), cert. denied, 409 U.S. 1085, 93 S.Ct. 685, 34 L.Ed.2d 674 (1972), which held that possession of 197.75 grams of cocaine, valued at $2,500, was sufficient to justify the inference of intent to distribute. Since both defendants received identical, concurrent sentences on the conspiracy and possession counts, and since we have sustained the convictions on the conspiracy counts, we need not consider a claim of error connected only to the possession counts. See Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692 (1929); United States v. Ayala, 465 F.2d 464, 465 (9th Cir. 1972), cert. denied, 409 U.S. 1127, 93 S.Ct. 947, 35 L.Ed.2d 259 (1973); Johnson v. United States, 427 F.2d 537, 539 (9th Cir. 1970).

We find no merit in the other assertions of error raised by Ledesma and Quiroz-Santi.

The judgments of conviction are affirmed.

HUFSTEDLER, Circuit Judge

(concurring in part and dissenting in part):

Although I concur in the majority’s affirmance of Ledesma’s conviction, I cannot join in affirming Quiroz-Santi’s conviction. In my view, there was not sufficient independent proof of Quiroz-Santi’s knowledge of and participation in the conspiracy to permit introduction against Quiroz-Santi of hearsay testimony of statements made by alleged co-conspirators. Without the hearsay testimony, the evidence against Quiroz-Santi was not sufficient to sustain his conviction.

The Government produced only meager evidence of Quiroz-Santi’s knowing participation in the conspiracy apart from the hearsay testimony concerning telephone conversations between Nancy Pena and Isabelle Soto and the transcriptions of several of those conversations: (1) Quiroz-Santi flew with Ledesma from New York, shared a motel room with him, and accompanied him while Ledesma picked up and shipped the trunk; (2) Quiroz-Santi used a different address when renting a car from that used in renting the motel room; (3) he waited outside Pena’s apartment in a rented car while Ledesma picked up the trunk; and (4) he talked to Pena’s neighbor when Ledesma had difficulty communicating with her. In addition, Quiroz-Santi’s explanation for his conduct was somewhat strained.

All other “independent evidence” detailed in the majority opinion, including the hearsay testimony of Pena’s neighbor that Ledesma told her that he had obtained her telephone number from Soto in Chile, concerns only Ledesma’s involvement in the conspiracy. It is fundamental that evidence of Ledesma’s guilt cannot be used to prove Quiroz-Santi’s participation in the conspiracy merely because the two men associated with each other. (E. g., Sibron v. New York (1968) 392 U.S. 40, 62-63, 88 S.Ct. 1889, 20 L.Ed.2d 917.) Other than establishing that he associated with Ledesma, the independent evidence of Quiroz-Santi’s involvement revealed only that he engaged in some ambiguous conduct while traveling with Ledesma. That evidence is not sufficient to support a finding that Quiroz-Santi was a knowing participant in the conspiracy; conduct less innocuous repeatedly has been held insufficient to constitute prima facie evidence of involvement in a criminal enterprise. (See, e. g., Sibron v. New York, supra, at 62-63; United States v. Di Re (1948) 332 U.S. 581, 592, 68 S.Ct. 222, 92 L.Ed. 210; United States v. Strickler (9th Cir. 1974) 490 F.2d 378, 380.)

Evidence that is not sufficient to justify admission of hearsay testimony of the Soto-Pena conversation is necessarily insufficient to sustain the jury’s verdict that Quiroz-Santi was guilty of conspiring to possess and distribute cocaine.

I would reverse Quiroz-Santi’s conviction.


author: HUFSTEDLER, Circuit Judge:

text:
    Dolly Cusker AKERS, Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, et al., Appellees.
    No. 71-3002.
    United States Court of Appeals, Ninth Circuit.
    June 20, 1974.

      Gerald J. Neely (argued), of Towe, Neely & Ball, Billings, Mont., Albert A. Grorud, Washington, D. C., for appellant.
    Keith L. Burrowes, Asst. U. S. Atty. (argued), Otis L. Packwood, U. S. Atty., Shiro Kashiwa, Asst. Atty. Gen., Billings, Mont., George R. Hyde, Lands Div., U. S. Dept, of Justice, Washington, D. C., for appellees.
    Before HUFSTEDLER and KILKENNY, Circuit Judges, and TAYLOR, District Judge.

       Honorable Fred Taylor, District of Idaho, sitting by designation.

   HUFSTEDLER, Circuit Judge:

Mrs. Akers, an Indian and the widow of John Akers, also an Indian, challenges the determinations of the Secretary of the Interior that her husband’s will disinheriting her was valid and that she had no dower interest in the restricted Indian allotment land that he devised to a third person. Summary judgment in favor of the Secretary was granted and she appeals.

Mr. and Mrs. Akers lived on restricted land in Montana. The land had been acquired with Mrs. Akers’ funds, but title was taken solely in Mr. Akers’ name. Their ranching and farming enterprise was managed largely by Mrs. Akers during the last several years of Mr. Akers' life because he had become a chronic alcoholic. During the fifteen months before his death in February 1959, Mr. Akers drew three wills, respectively dated December 3, 1957, December 5,-1957, and December 10, 1958. In a proceeding before a hearing officer of the Department of the Interior, Mrs. Akers successfully contested the 1958 will on the ground that Mr. Akers’ deterioration from alcoholism rendered him mentally incompetent to execute the will. The December 5, 1957, will was contested before a different hearing examiner. The will was held valid on the examiner’s finding that Mr. Akers had executed that will during a lucid interval. The examiner also rejected Mrs. Akers’ claim to dower in the restricted land. She exhausted her administrative remedies and appropriately sought judicial review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706, of the Secretary’s determinations affirming the examiner. (Tooahnippah v. Hickel (1970) 397 U.S. 598, 90 S.Ct. 1316, 25 L.Ed.2d 600.)

Only two of the several issues Mrs. Akers raises on appeal require discussion: (1) the sufficiency of the evidence to support the administrative determination that Mr. Akers was competent to execute the December 5, 1957, will, and (2) Mrs. Akers’ claim of the dower in the restricted land.

The evidence on the question of Mr. Akers’ mental competency when he executed the will was conflicting. We cannot say that the evidence that he had a lucid interval when he made the will was too insubstantial to support the administrative finding.

Mrs. Akers’ assertion of a dower right in the restricted land must also be rejected. Alienation of restricted Indian allotment land is controlled by federal law. Montana’s dower law cannot of its own force entitle Mrs. Akers to claim a wife’s interest in her deceased husband’s restricted lands. If the relevant federal statute had incorporated Montana law by reference (cf. e. g., 25 U.S.C. § 348), Mrs. Akers could have claimed dower under that federal statute. The governing federal statute, 25 U.S.C. § 373, however, does not refer to state law. Even if Congress had merely failed to exclude local law in this context, Mrs. Akers might have claimed dower (see Blundell v. Wallace (1925) 267 U.S. 373, 376, 45 S.Ct. 247, 69 L.Ed. 664), but section 373 manifests an intent to exclude local law. (Id. at 377, 45 S.Ct. 247; Blanset v. Cardin (1921) 256 U.S. 319, 41 S.Ct. 519, 65 L.Ed. 950.) The sole limit on an Indian testator’s freedom to devise restricted lands is the power vested in the Secretary of the Interior to disapprove wills devising restricted property.

Because each of the specific findings made by the Secretary in this case was amply supported in the record before him, Mrs. Akers can successfully challenge his decision only if he failed to exercise fully the discretion given him by the statute. If the Secretary’s discretion were broad enough to allow him to disapprove Mr. Akers’ will because the will violated the principles of public policy that prompted Montana to enact its dower law, we would remand to the Secretary for an exercise of that discretion, for the Secretary did not exercise discretion in this regard. The Supreme Court, however, has substantially limited the Secretary’s discretion under section 373. The Secretary ma'y disapprove a will only if it is technically deficient or if it is irrational. Where, as in this case, it is rational to disinherit a disfavored relative in preference to a more distant but more favored relative, the Supreme Court has indicated that the Secretary is not free to disapprove the will merely on notions of fairness or equity. (Tooahnippah v. Hickel, supra, 397 U.S. at 610, 90 S.Ct. 1316, 25 L.Ed.2d 600.) In Tooahnippah, the Court reversed the Secretary’s disapproval of a will disinheriting a daughter with whom the father had had little contact in favor of a niece with whom the testator had lived. The Secretary’s approval of Mr. Akers’ will is unassailable, for the Secretary upon adequate evidence has exhausted the discretion thus given to him.

Although the Blanset and Tooahnippah cases require us to affirm the judgment in the Secretary’s favor, we cannot in good conscience do so without expressing our dissatisfaction with this state of the law. Congress’ overriding purposes in enacting the General Allotment Act of 1887 (25 U.S.C. § 331, as amended) were to protect the Indians’ interests in restricted land and to provide Indian allottees and their families with permanent homes. (E. g., Hopkins v. United States (9th Cir. 1969) 414 F.2d 464; Wheeler v. Petite (D.Ore.1907) 153 F. 471; Parr v. United States (D.Ore.1907) 153 F. 462; cf. Squire v. Capoeman (1956) 351 U.S. 1, 76 S.Ct. 611, 100 L.Ed. 883.) The policy has been consistently implemented by recognizing that dower and curtesy rights, existing under state law, apply to allotment lands held by the deceased allottee upon his or her death intestate. (Wheeler v. Petite, supra; Parr v. United States, supra; “Dower Rights in Restricted Indian Estates” (1954) 61 Interior Dec. 307 (Solicitor’s opinion reaffirming right to dower in Montana allotments passing by intestate succession); St. Dennis v. Breedan (1898) 27 Interior Dec. 312 (curtesy); Harrison v. McCauley (1898) 27 Interior Dec. 399 (dower).)

In Blanset v. Cardin, supra, 256 U.S. 319, 41 S.Ct. 519, a non-Indian widower claimed that his Indian wife’s will devising all of her allotment lands to her children and grandchildren was void to the extent that it deprived him of a one-third interest in her lands under Oklahoma law. In rejecting his claim, the Supreme Court explained that nonrecognition of the state law fulfilled Congress’ purpose in enacting section 373, which was “to afford ‘protection to dependent and natural heirs against the waste of the estate as the result of an unfortunate marriage and enforced inheritance by state laws.’ ” (256 U.S. at 326, 41 S.Ct. at 522.) The Court exhibited no awareness that the Blanset rule, erasing state law protecting a spouse from disinheritance, would also deprive an Indian widow or widower of any share of allotment land if the allottee devised all of the land to a third person, Indian or non-Indian, free from state or federal restrictions. Perhaps, the Court assumed that the Secretary under seetion 373 had the power to protect a disinherited Indian spouse by disapproving a will that devised all of the ¿llotment land to others. That, assumption, if ever it existed, did not survive Tooahnippah v. Hickel, supra, 397 U.S. 598, 41 S.Ct. 519, which limited the Secretary’s discretion to evaluation of the technical validity of the will and the rationality of the decedent’s testamentary scheme.

Together Blanset and Tooahnippah produce the anomalous result that an Indian’s devise of restricted lands is less restricted than an Indian’s (or a non-Indian’s) devise of any other realty. He or she can will that property free from any state law designed to protect a surviving spouse, and there is no federal law that fills the state law gap. Although we cannot reconcile the result with the public policy expressed by state law establishing dower and curtesy rights or with the congressional intent to provide- family homes for Indian allot-tees and their dependents, we are unable to avoid it. The anomaly will persist until the Supreme Court reconsiders Blanset and Tooahnippah, the Secretary writes appropriate regulations, or Congress amends section 373 by eliminating all federal restrictions on the testamentary disposition of allotment lands, leaving the dispositions to be controlled by state law (cf. Blundell v. Wallace, supra), or imposes some federal scheme protecting from disinheritance the spouses of Indian allottees.

Affirmed.

      . Title in Mrs. Akers under a resulting trust theory was neither asserted in the proceedings before the Secretary or the district court nor argued before this court. We therefore do not address the question of whether the restricted land was properly included in Mr. Akers’ Estate. (Of. 25 C.F.it. § 15.32 (1958).)

      . The Secretary concluded that the will was not unjust or unnatural because there was evidence of disharmony between husband and wife in the later years of their marriage. While the evidence suggests that the disposition directed by the will was rational, it is irrelevant to a determination of whether, even if rational, such a disposition should be disapproved because it is contrary to public policy.

      . “[0]ne of [the] main purposes [of the general allotment act] was to furnish a permanent home, ultimately, for the families of such Indians. ... In order, therefore, to carry out the idea of affording a permanent home for the Indian family, there was a purpose, manifestly, to secure the widow in the home of a deceased head of a family by some permanent right. Dower is suited to this purpose.” Wheeler v. Petite, supra, 153 F. at 473.
      “The interpretation I have given to the act, construed in connection with the treaty, seems more in consonance with the intendment of Congress and the expectations and anticipations of the Indians. It secures, as was stipulated in the treaty of 1855, to the family, in case of the death of the head thereof, the possession and enjoyment of the permanent home and the improvements thereon. Otherwise, it might happen that the wife of a deceased allottee, or the husband of such an allottee, would be left without any estate whatsoever in any of the Indian lands upon the reservation. . . . So- at the death of the husband the wife is left without the benefit of any allotment, unless she is to have her dower, which will secure to her the measurable possession and enjoyment of the permanent home. Otherwise, she is left homeless and remediless, dependent wholly upon the charity of relatives and friends, with the government discharged of its guardianship.” Parr v. United States, supra, 153 F. at 470-471.
      The paternalism that characterizes the Allotment Act undoubtedly now offends many Indians and non-Indians, but we are free neither to rewrite history nor to redraft the Act to conform to our notions of contemporary social attitudes.

      . According to Mr. Justice Harlan, specially concurring, the Secretary might have a greater area of discretion if he acted pursuant to promulgated regulations. (Id. 397 U.S. at 619, 90 S.Ct. 1316.) No regulations relevant to the issue in this case have been promulgated.


author: FEINBERG, Circuit Judge:

text:
    Joseph de LORAINE, Plaintiff-Appellant, v. MEBA PENSION TRUST, Representing the National Marine Engineers’ Beneficial Association, and Mildred E. Killough, Individually and in her capacity as Administrator of the MEBA Pension Trust, Defendants-Appellees.
    No. 973, Docket 74-1096.
    United States Court of Appeals, Second Circuit.
    Argued May 8, 1974.
    Decided June 14, 1974.
    E. Judson Jennings, New York City (Legal Services for the Elderly Poor,’on the brief), for plaintiff-appellant.
    Morton M. Maneker, New York City (Proskauer, Rose, Goetz & Mendelsohn, Robert J. Jossen, New York City, on the brief), for defendants-appellees.
    National Senior Citizens Law Center, Robert B. Gillan, Los Angeles, Cal., as amicus curiae.
    Before ANDERSON, FEINBERG and MANSFIELD, Circuit Judges.
   FEINBERG, Circuit Judge:

Plaintiff Joseph de Loraine, a marine engineer, voluntarily retired from his trade in 1964 after 20 years service. He was then 46 years old. At, the time, plaintiff signed a statement which described his retirement as permanent and recognized that any return to employment in the maritime industry without permission of the Trustees would entail forfeiture of his pension rights. Plaintiff thereafter received regular pension payments from defendant MEBA Pension Trust. In 1968, during a period of increased demand for marine engineers resulting from the Viet Nam war, the Trustees granted plaintiff and others permission to return to work. In December 1970, citing the cessation of this demand, the Trustees adopted a blanket resolution withdrawing for all the 1968 grant of permission; plaintiff, fearing the loss of his pension, retired once again. After unsuccessfully pursuing state administrative remedies, he sought redress in the United States District Court for the Southern District of New York. The principal theory of his complaint was that the 1970 resolution violated the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., because it was motivated by his union’s desire to replace older engineers with younger workers who would enrich the union’s coffers by paying high training school and initiation fees. Judge Harold R. Tyler, Jr., granted defendants’ motion for summary judgment and dismissed the complaint. 355 F.Supp. 89 (D.C.1973). Plaintiff thereafter filed an amended complaint, alleging that because the 1970 resolution was improperly motivated, the pension fund was not being administered in accordance with the requirements of section 302 of the Taft-Hartley Act, 29 U.S.C. § 186. In an unpublished opinion, Judge Tyler dismissed the amended complaint for lack of subject matter jurisdiction, holding that it asserted at most a breach by the Trustees of their fiduciary responsibilities under state law.

We affirm the decisions of the district court. The Age Discrimination in Employment Act provides that it shall not be unlawful for a labor organization “to observe the terms of . any bona fide employee benefit plan such as a pension . . . plan, which is not a subterfuge to evade the purposes of this chapter . . . .” 29 U.S.C. § 623(f)(2). MEBA Pension Trust was established in 1955, long before the passage of the Act, and pays substantial benefits to a broad class of workers. Thus, the Trust is certainly not itself a subterfuge to evade the purposes of the statute. We put to one side whether this does not end plaintiff’s claim under the Act and assume arguendo that the Act applies to improper administration of a bona fide pension plan. Even on this assumption, however, plaintiff’s action must fail. He was not, because of his age, forced to retire in 1964; he did so voluntarily. And he does not contend that the Trustees acted illegally in making complete withdrawal from the industry a prerequisite to a pension. That condition was equally imposed upon all and its legitimate purpose — to protect the pension fund from exhaustion by those who would use their benefits as unemployment insurance or to support extended sabbaticals — is readily apparent. Nor does he deny that the “complete withdrawal” policy, suspended during a period of peak wartime demand for marine engineers, was reinstated at a time when that demand ceased. Against this background, plaintiff even on a motion for summary judgment had the burden of setting forth some facts to show that the blanket reinstatement of the original unattacked policy was discriminatory. As Judge Tyler properly held, 355 F.Supp. at 92, plaintiff failed to do so, offering instead “mere conclusory allegations.”

This reasoning also requires dismissal of the Taft-Hartley Act claim of the amended complaint, although Judge Tyler dismissed it on a different basis. Plaintiff contends that the Trustees, in adopting the 1970 resolution, were administering the pension plan for the institutional benefit of the union, rather than “for the sole and exclusive benefit of the employees” as required by section 302(c)(5) of the Act, 29 U.S.C. § 186(c)(5). This contention, however, requires very much the same showing of improper motivation as the Age Discrimination Act claim and rests upon virtually the same inadequately substantiated allegations. Consequently, we hold that plaintiff has failed to raise any genuine issue of material fact necessitating trial of his Taft-Hartley Act claim.

Judgment affirmed.

      . The text of the statement was as follows:
      I, Joseph de Loraine, hereby certify that I have withdrawn and shall remain completely withdrawn during my retirement from any employment aboard any vessel documented under the laws of the United States or aboard any vessel covered by any collective bargaining agreement with the Association and any employment in the Association Locals or Plans.
      A return to employment, as noted above, without written permission from the Trustees, shall be penalized in accordance with the MEBA Pension Trust Regulations.
      At the time of de Loraine’s 1964 withdrawal from the industry, the MEBA Pension Trust regulations provided:
      . . . Retirement defined. To be considered retired an employee must withdraw completely from any further employment aboard any vessel documented under the laws of the United States or aboard any vessel covered by any collective bargaining agreement of the Association.

      . The 1970 Resolution provided:
      Whereas, the emergency need for Marine Engineers brought about by the Vietnam War no longer exists,
      It Is Hereby Resolved by the Trustees that each permission heretofore granted by the Trustees to a pensioner to return to Covered Employment pursuant to Section 14 of Articles II and II-A of the Regulations shall be terminated effective April 1, 1971, or the termination date of any voyage on which he is then sailing, whichever is later, and it is further Resolved, that the Administrator shall so advise each affected pensioner of this resolution.

      . Plaintiff’s charge of age discrimination under New York law was dismissed on the merits by the State Division of Human Rights in May 1971. The State Human Rights Appeal Board affirmed in December 1971, both on the merits and on jurisdictional grounds.

      . Plaintiff alleged that half of the Trustees were representatives of the union and that the union president was chairman of the Board of Trustees.

      . Various state law claims by plaintiff were also dismissed for lack of pendent jurisdiction. These claims are not involved in this appeal.

      . Plaintiff does claim, however, that at the time of his first withdrawal the Trustees followed a “swinging door” policy, granting permission to return to work in the industry without loss of pension rights as a matter of course. But this contention flies in the face of the pension trust regulations and plaintiff’s own signed statement of withdrawal, see note 1 supra, and on the motion for summary judgment, he offered no evidence of the existence of such a policy beyond his own assertion that it was well known in the industry.

      . On this view of the age discrimination claim, we need not review the district court’s alternative holding that defendant pension trust was not a “labor organization” or agent thereof within the meaning of the Act. 29 U.S.C. § 630(d). We also decline to consider at this time the argument of amicus curiae, National Senior Citizens Law Center, that the Act prohibits involuntary retirement pursuant to a pension plan before age 65. As noted in text, plaintiff did not take this position in the district court.

      . In his only affidavit in opposition to defendants’ motion for summary judgment on the original complaint, plaintiff simply stated a belief that the 1970 resolution was designed to discriminate against older workers without indicating the source of this belief.

      . As noted earlier, Judge Tyler dismissed this claim for want of subject matter jurisdiction, holding that §§ 302(c) (5) and (e) of the Taft-Hartley Act, 29 U.S.O. §§ 186(c) (5) and (e), did not confer jurisdiction upon the federal courts to entertain a suit alleging maladministration — as distinguished from structural defects — in covered pension plans. Whether this was a proper characterization of the law and what constitutes a structural defect raise difficult and complicated issues. Compare Snider v. All State Administrators, Inc., 481 F.2d 387 (5th Cir. 1973), cert. denied, 414 U.S. 685, 94 S.Ct. 771, 39 L.Ed.2d 90 (1974), and Bowers v. Ulpiano Casal, Inc., 393 F.2d 421 (1st Cir. 1968), with Lewis v. Mill Ridge Coals, Inc., 298 F.2d 552, 558 (6th Cir. 1962) (dictum), Lugo v. Employees Retirement Fund, 366 F.Supp. 99 (E.D.N.Y.1973), and Porter v. Teamsters Health Funds, 321 F.Supp. 101 (E.D.Pa.1970). In view of the insubstantiality of plaintiff’s case on the merits, we express no opinion on these issues.

      . The principal additional piece of evidence ■ proffered was a letter from the president of the union to another retiree seeking to return to work. This letter says essentially that reinstatement of retirees is not practical given the financial structure of the pension plan.


text:
    UNITED STATES of America, Appellee, v. Ballard WILLIAMS, Defendant, Appellant.
    No. 73-1145.
    United States Court of Appeals, First Circuit.
    Argued April 1, 1974.
    Decided May 28, 1974.
    Rehearing Denied June 21, 1974.

      Gerald F. Lucey, Boston Mass., with whom Moulton, Looney, Mazzone, Falk & Markham and Robert Y. Murray, Boston, Mass., were on brief, for appellant.
    Alan R. Hoffman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

After two days of trial, Ballard Williams pleaded guilty to conspiracy to distribute heroin and to possession with intent to distribute in violation of 21 U.S. C. §§ 841(a)(1), 846. The district court, which had reviewed a presentence report and heard argument from Williams and his counsel, sentenced Williams to 12 years in prison with a 5 year special parole term, three years less imprisonment than the government had recommended. Williams contends that the court erred in relying upon materially untrue and factually inaccurate statements in the report which conveyed the impression that he had played a major role in a large scale heroin distribution operation. He also questions the propriety of considering sentences imposed upon his codefendants.

The objectionable material is mainly contained in the part of the report entitled “official version of the offense”:

The records of the Bureau of Narcotics and Dangerous Drugs indicate that the codefendant, Clarence Hardy, was operating a large heroin distribution business in New York; New York, Washington, D.C. and Chicago, Illinois. It is alleged that Hardy was the leader of this large-scale operation and his principal ‘lieutenants’ in the operation were George Evans, Harold Bradshaw and the defendant, BALLARD ' WILLIAMS. WILLIAMS’ participation in this operation consisted of cutting and bagging the heroin in New York and then delivering same to street distributors. In early December 1971, Hardy, Evans, WILLIAMS, and Wiley met in a home on 202nd Street, New York, where two suitcases were packed with money of various denominations. The four individuals then drove to Kennedy Airport where they boarded a plane for a flight to St. Thomas, Virgin Islands. The two black suitcases of money were carried on to the plane. On arriving in St. Thomas, all four defendants went to an office building where they met with a Polynesian-looking individual. Hardy turned over the two suitcases of money to this individual and the following day this person met with Hardy and gave him a folding suitbag, plaid in color. The four defendants then took a taxi to the airport and returned to New York with WILLIAMS carrying the plaid suitcase. This plaid suitcase contained four kilograms of heroin.
“In the latter part of December 1971, this heroin distribution operation was expanded to include the Boston and Lawrence areas due to the fact that there was ‘heat’ on the business in New York. Several trips were made by various individuals from New York to the Boston area at which time heroin, which had been prepared by various individuals including the defendant, WILLIAMS, in New York, was transported to Boston.
“On January 19, 1972, Agents Lavoie and Fencer of the Bureau of Narcotíes and Dangerous Drugs negotiated with the defendants, Wiley, Evans and WILLIAMS in a Lawrence, Massachusetts, restaurant regarding the purchase of quinine and the purchase of one-eighth kilogram of heroin, A photographic surveillance of this meeting was conducted by an agent of the Bureau of Narcotics and Dangerous Drugs.
“On January 30, 1972, the defendant, BALLARD WILLIAMS, transported several of Hardy’s workers in Hardy’s mobile camper from New York to Lawrence.”

In the evaluative summary the probation officer commented, “Although Mr. Williams does not have a serious prior record, he is reported to have been one of the ringleaders in the present ease . . .” The report also describes the defendant’s version of the offense. It states that Williams admits to sifting, bagging and delivering heroin but that he claims he came to Lawrence, Massachusetts only to secure a truck driver’s license.

Williams received a copy of the report five minutes before the sentencing hearing. At the hearing, he disputed the official version of the facts and asserted that the “ringleader” label was inaccurate. But he did not request an evidentiary hearing or continuance, nor announce what rebuttal evidence he wished to offer. To what extent, if any, the court relied upon the presentence report is unclear. But even if it took account of the disputed matter, we find no error. We add, however, that it would seem better practice to make presentence reports available more than five minutes before sentencing, thus both eliminating one source of post-sentence complaint and ensuring adequate opportunity to prepare any rebuttal.

Williams first contends that he was surprised by the material in the presentence report. But the latter adds virtually nothing to what was alleged in the indictment, what the prosecutor had said in his opening statement at the trial (and at the change of plea hearing), and what three witnesses had testified to. We say “virtually nothing” mainly because the characterizations of Williams as a “lieutenant” and “ringleader” were arguably new; but they stated only what the judge might have inferred from the earlier presentations. And the presentence report did not detail crimes beyond the one to which Williams had pleaded. Cf. United States v. Weston, 448 F.2d 626 (9th Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972).

Williams’ second argument is that the court failed to provide “a meaningful chance to test the reliability of the information which is to be used in sentencing” because there was no evidentiary hearing. But his counsel had earlier cross-examined two of the government’s trial witnesses, and Williams’ failure to request a hearing gave the court no reason to suspect that he wished such an opportunity.

In sentencing, a court may rely upon responsible unsworn or out of court statements relative to the circumstances of the crime and to the defendant. See Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); United States v. Picard, 464 F.2d 215, 219 (1st Cir. 1972); United States v. Strauss, 443 F.2d 986, 990-991 (1st Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 88, 30 L.Ed.2d 90 (1971). However, Williams points to United States v. Weston, supra, holding that the government has a duty to substantiate challenged information that is unsupported and difficult to rebut. In Weston the presentence report mentioned criminal conduct much more serious than that for which the defendant had been convicted. Moreover, the factual basis for believing the report was almost nil — -“Unsworn evidence detailing otherwise unverified statements of a faceless informer that would not even support a search warrant.” Id. at 631. In comparison the sentencing judge in the instant case had the sworn testimony of three witnesses. Since the facts and characterizations in the report were by no means unsupported the Weston holding is inapposite. See United States v. Needles, 472 F.2d 652 (2d Cir. 1973).

The final issue raised is likewise without merit. The court mentioned two stiff sentences received by codefendants, stating: “This shows, in my opinion, the extent of the ring . . . ” Williams was then sentenced to a lesser term of imprisonment than the codefendants who were mentioned by the court had received. Not only is it not reversible error to compare a contemplated sentence .with that imposed upon others for a similar offense, but to do so is in the interests of fairness. Cf. Rodriquez v. United States, 394 F.2d 825 (5th Cir. 1968); Shepard v. United States, 257 F.2d 293 (6th Cir. 1958).

Affirmed.

Ballard Williams seeks a rehearing, contending that the cases cited in support of the proposition that the court did not err in considering the sentences received by his codefendants are inapposite. These two cases were cited in the government’s brief; Williams had ample time to research the issue and present his arguments before an opinion was written. “It is implicit in the judicial process, as reflected in our Local Rule [15], that, barring a substantial excuse, the court will digest a case but once, and ruminates only in the loose sense of the word.” Cross Baking Co., Inc. v. N. L. R. B., 453 F.2d 1346, 1351 (1st Cir. 1971). See also United States v. Doe, 455 F.2d 753, 762 (1st Cir. 1972). Overlooking the failure to explain why his arguments were not presented before, we reiterate that a sentencing court may take into account a wide variety of relevant factors, including the terms of imprisonment imposed upon others for similar offenses. It is not critical that the codefendants may have been sentenced by a different judge. The judge had been exposed to evidence and information concerning their activities, and we reject any rule which would forbid one sentencing judge from reflecting upon the sentences imposed by another for related or similar crimes. Neither in his brief on appeal nor in the petition for rehearing has Williams cited any cases to the contrary.

Rehearing is denied.

      . The conspiracy count was a compendium charging 17 others along with Williams. Among alleged overt acts were a suggestion to Williams that a trip to the Virgin Islands was necessary to procure heroin, Williams’ packing money for the Caribbean purchase and subsequent flight to St. Thomas, his transporting several kilos of heroin to an apartment in Long Island, his presence in New York when heroin was cut and bundled, his discussion of heroin and quinine with federal agents in Lawrence, and a trip to Lawrence at which time he removed, along with others, heroin from 1500 bundles.
      At the change of plea hearing, Williams admitted to bagging and delivering heroin, but denied that he had gone to the Virgin Islands or that he knew about any drugs being sold in Massachusetts.
      However, at the trial which preceded the change of plea, a coconspirator named Wiley had testified to seeing Williams deliver loose bundles of heroin to one Danny, receiving in return large sums of money. Williams, Wiley testified, fetched him from the airport following his return from a heroin delivery in Illinois, was present when Hardy discussed going to the “Island” for heroin, carried a suitcase full of money to St. Thomas, and may have been the person carrying the suitcase with 4 kilos of heroin on the return trip to New York. Wiley said he observed Williams in New York cut and bag heroin. Moreover, Williams supplied him with drugs for the Lawrence operation. In Lawrence Williams was said to have accompanied Wiley and another coconspirator when they went to meet two whites interested in purchasing heroin; Williams had talked to one of them about the amount of quinine needed to cut an eighth of a kilogram. On the following day when the sale was consummated Williams was not present but he received half of the proceeds. Williams drove all the workers from New York to Lawrence and gave some heroin to one of them to sell in Washington. When he was about to return to New York, he remarked to Wiley that he had to fetch more heroin.
      A government agent testified that he had observed his coagent speaking with Williams in Lawrence but did not hear the conversation. After his testimony Burton, another coconspirator, testified that on several occasions he was present in an apartment in Queens when Williams supplied heroin, bonita, and quinine, and ordered the workers to sift and bag the heroin. Williams also did some bagging. Williams usually paid Burton for the cutting work and once advised him he would be paid as soon as Williams collected money from the street. Burton was present when Williams was told he had to “bring the troops to Massachusetts” and was among the group which Williams drove there.
      At the change of plea hearing the prosecutor informed the court that if the trial had proceeded, the government would have introduced authenticated photographs of Williams meeting with agents in Lawrence and the testimony of one agent that he had “asked Williams how much quinine would be needed to cut an eighth of a kilogram of heroin and what the cost would be, and Mr. Williams responded, ‘4 ounces, §50 an ounce.’ ”

      . Count VI of the indictment, dismissed after Williams pleaded guilty to conspiracy, charged him with the distribution of heroin in Lawrence on January 20, 1972. Nothing is said about this in the report. A discussion with federal agents on the 19th, mentioned in the report, is relevant to the conspiracy count.

      . American Bar Association Standards Relating to Sentencing Alternatives and Procedures § 4.1 (a) (Approved Draft 1968).

      . Although Williams cites several cases for the proposition that effective rebuttal always requires an evidentiary hearing, they do not go beyond advocating disclosure of the presentence report and an opportunity to comment. See United States v. Fischer, 381 F.2d 509, 512 (2d Cir. 1967) ; United States v. Brown, 470 F.2d 285, 288 (2d Cir. 1972) ; United States v. Rosner, 485 F.2d 1213, 1230 (2d Cir. 1973). Opportunity for an evidentiary hearing is not invariably required whenever the defendant disputes a statement in his presentence report. See, e. g., United States v. Espinoza, 481 F.2d 553, 557-558 (5th Cir. 1973) ; United States v. Needles, 472 F.2d 652, 657-658 (2d Cir. 1973); Fernandez v. Meier, 432 F.2d 426, 427 (9th Cir. 1970). There may, of course, be circumstances where fairness requires one. See, e. g. Haller v. Robbins, 409 F.2d 857, 859-860 (1st Cir. 1969); United States ex rel. Brown v. Rundle, 417 F.2d 282, 285 (3d Cir. 1969).