author: CUMMINGS, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Bernard FEINBERG, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. John C. THOMPSON, Defendant-Appellee.
    Nos. 74-1253, 74-1254.
    United States Court of Appeals, Seventh Circuit.
    Heard June 7, 1974.
    Decided Sept. 12, 1974.
    Rehearing Denied in No. 74r-1253 Oct. 15, 1974.
    James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellant.
    Joseph A. Lamendella, Elmer Gertz and Wayne B. Giampietro, Chicago, 111., for defendants-appellees.

      Before CLARK, Associate Justice, CUMMINGS, Circuit Judge, and BEA-MER, Chief District Judge.

      . The Honorable Tom C. Clark, Associate Justice of the Supreme Court of the United States (Retired), is sitting by designation.

      . Chief Judge George X. Beamer of the Northern District of Indiana is sitting by designation.

   CUMMINGS, Circuit Judge:

These consolidated cases have a somewhat different procedural origin. In Feiriberg, pursuant to a motion for a Bill of Particulars under Rule 7(f) of the Federal Rules of Criminal Procedure, the district judge ordered the Government to respond to the following (see 371 F.Supp. at 1208):

1. ■ Whether a written memorandum or verbatim transcript of oral statements made by the defendant to Government agents or third persons exists;
2. Whether the Government has possession of existing memoranda or transcripts;
3. The name and address of the persons to whom the defendant made oral statements;
4. The date on which the defendant made oral statements; and
5. The substance of oral statements by the defendant.

The first four matters are not within the prohibition of the Jencks Act (18 U.S.C. § 3500), so that the district judge acted within his discretion in ordering the answers. See Will v. United States, 389 U.S. 90, 88 S.Ct. 269, 19 L.Ed.2d 305; United States v. Rimanich, 422 F.2d 817, 818 (7th Cir. 1970). In fact, the Government’s brief only challenges the order insofar as it requires the Government to produce the statements (or the substance thereof) made by the defendant to prospective government witnesses. On the Government’s motion to reconsider, the district court treated defendant’s request as one for discovery under Rule 16(a) of the Federal Rules of Criminal Procedure and again held that such statements were producible.

In Thompson the court granted defendant’s motion for discovery under Rule 16(a) insofar as the defendant sought to inspect and' copy statements made by him that were contained in statements made by third parties, within the possession, custody or control of the Government. Because of the restrictions of the Jencks Act, we reverse as to such statements in both cases.

In pertinent part, Rule 16(a)(1) permits the district court to order the Government to permit a defendant to inspect and copy or photograph any relevant “written or recorded statements or confessions made by the defendant, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government * * *.” The Advisory Committee’s notes make it plain that the words “to the attorney for the government” modify the phrase “the existence of which is known, or by the exercise of due diligence may become known”. 8 Moore’s Federal Practice, jf 16.01 [3] p. 16-5 (2d ed. 1973). Therefore, as held below (371 F.Supp. at 1216), Rule 16(a)(1) is not limited to statements of the defendant made to agents of the Government. United States v. Baker, 262 F.Supp. 657, 671-672 (D.D.C.1966); Moore, supra, |f 16.01 [1] p. 16-38.

On the other hand, Rule 16(b) provides in pertinent part that Rule 16 does not authorize the discovery or inspection “of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in” the Jencks Act. Accordingly, it is necessary to refer to the Jencks Act to see if it permits the discovery of defendants’ statements made to prospective government witnesses (371 F.Supp. at 1212).

In pertinent part, the Jencks Act provides (18 U.S.C. § 3500(a) ):

“In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) . . . shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.”

While we sympathize with broadened discovery in criminal cases, the foregoing statutory provision proscribes pretrial discovery of statements of government witnesses, including those parts which relate conversations of the defendant. Such statements are not producible under 18 U.S.C. § 3500(b) until after a witness called by the United States has testified on a subject matter related to the statements. United States v. Wilkerson, 456 F.2d 57, 61 (6th Cir. 1972), certiorari denied, 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337; United States v. Kenny, 462 F.2d 1205, 1212 (3d Cir. 1972), certiorari denied sub nom. Kropke v. United States, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176; United States v. Dorfman, 53 F.R.D. 477, 479 (S.D.N.Y.1971), affirmed, 470 F.2d 246 (2d Cir. 1972). The Commentary of the American Bar Association’s Advisory Committee on Pretrial Proceedings does not discuss the question although its report acknowledges other hurdles presented by the Jencks Act. See ABA Standards Relating to Discovery and Procedure before Trial (1969), pp. 58-59, 62. United States v. Duffy, 54 F.R.D. 549 (N.D.Ill.1972), dealt with a quite different, though possibly overlapping, discovery request, so that it does not support defendants.

As noted in Dorfman, in excluding pretrial discovery of oral statements made by defendant to prospective government witnesses, Congress was endeavoring to protect the security of those witnesses. Prohibiting the disclosure ordered here until the witness has testified at trial also protects the integrity of the Government’s evidence. Probably these same factors motivated the draftsmen of proposed Rule 16(a) (1)(A) of the Federal Rules of Criminal Procedure (presently scheduled to go into effect on August 1, 1975) to limit pretrial discovery to the “substance of any oral statement which the government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent” (emphasis supplied) (62 F.R.D. 304-305). Since the proposed rule was intended to give “greater discovery” than before (62 F.R.D. 308), it strongly reinforces our holding that the present rule does not permit the discovery sought.

As the district judge intimated, any statement of the defendant in the Government’s possession involves at least an implicit statement of someone else — if only the stenographer — that the defendant made the statement attributed to him. 371 F.Supp. 1213. This does not mean that we are overruling past decisions permitting the defendant to discover his own statements. There may be line-drawing problems, but the guiding principle is fairly clear. A defendant’s statement is discoverable when it or an account thereof is “written or recorded” (Rule 16(a)(1) ) promptly after the statement is made. Where a written record is contemplated when the statement is made and an account of the statement is eventually written down, the writting should be discoverable even if there was some delay. But where the statement is originally memorialized only in the recollection of a witness, then it is not discoverable even if that witness’ recollection is eventually written or recorded. Unlike the district judge, we accept the Government’s rationale that ordinarily “it is ‘manifestly impossible’ to reveal the contents and circumstances of a defendant’s statement without revealing the contents of the prospective witness’ statement which is forbidden by Section 3500” (371 F. Supp. at 1213).

In his opinion below, Judge Marshall has assembled powerful arguments in favor of his discovery orders. See 371 F.Supp. at 1205. Nevertheless, the language of the Jencks Act, incorporated by reference into Rule 16(b), prevents us from approving those orders insofar as they require the Government to produce before trial statements made by a defendant to a prospective government witness. The relief sought by the defendants must come from Congressional revisions of the Jencks Act or amendments to proposed Rule 16(a)(1)(A) to make it coextensive with the ABA Standards, supra, whose Section 2.-1(a) (ii) provides for the disclosure of “any written or recorded statements and the substance of any oral statements made by the accused * * *.” We would be able to adopt this standard in the absence of the Jencks Act bar.

In Feinberg, the suppression order is reversed insofar as it is based on the Government’s failure to furnish defendant with the substance of his statements to prospective government witnesses. In Thompson, the suppression order is reversed insofar as it is based on the Government’s failure to produce before trial those parts of statements of prospective government witnesses containing statements of the defendant.

Affirmed in part; reversed in part; each party to bear its own costs.

      . In the' Will case, the district judge refused to order the Government to reveal the substance of statements made by defendant to private parties. 389 U.S. at 92, n. 1, 88 S. Ct. 269.

      . After the oral argument, the Government referred us to Part II of its brief in the pending ease of United States v. Jackson, No. 74-1488 (7th Cir.), which contends that the Government need not produce a pretrial list of its witnesses to defendants. Judge Marshall did not require the Government to produce such a list but only a list of persons to whom Ueinberg made oral statements. This is comparable to the procedure permitted in Will. See 389 U.S. at 92, n. 1 and 100-101, 88 S.Ct. 269. Therefore, we need not reexamine the witness list problem here.


source: Caselaw Access Project

author: ADAMS, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Simon HAWTHORNE, Appellant.
    No. 73-2046.
    United States Court of Appeals, Third Circuit.
    Argued June 27, 1974.
    Decided Sept. 5, 1974.

      Robert L. Potter, Reed Smith Shaw & McClay, Pittsburgh, Pa., for appellant.
    Richard L. Thornburgh, U.S. Atty., Charles F. Scarlata, Craig R. McKay, Kathleen Kelly Curtin, Asst. U.S. Attys., Pittsburgh, Pa., for appellee.
    Before ADAMS, HUNTER and GARTH, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

This appeal requires us once again to deal with difficult legal and factual problems relating to post-sentence attempts to withdraw guilty pleas.

Simon Hawthorne, appellant, was charged in a two count indictment, filed on May 3, 1973, with selling cocaine in violation of 21 U.S.C. § 841(a)(1). On May 14, 1973, Hawthorne pleaded not guilty to both counts. However, on July 5, 1973, he pleaded guilty at a Rule 11 proceeding to one of the two counts and, at the same time, the United States announced its intention to move to dismiss the other count.

At the Rule 11 proceeding, Hawthorne was asked several questions by the district court and the prosecutor to determine whether, in fact, his plea was being voluntarily entered. Hawthorne’s answers to questions concerning his belief, if any, that he would receive lenien-r cy apart from dismissal of one of the counts pending against.him are not consistent. Hawthorne responded affirmatively to the following question of the Assistant United States Attorney:

Aside from my representation to dismiss the first count and advise the court of any [sic] of your cooperation have any threats or promises been made to you to enter this plea?

Yet, Hawthorne responded negatively to the following questions of the district court:

Has anyone promised you that I, as the sentencing judge, would go easy on you?
* * * * -» -X-
Other than the fact that the Government has agreed to drop the first count if you plead guilty, has any other promise been made to you to induce you to change your plea from not guilty to guilty?
* * * -x- * *
No one on the side of the government, or your own lawyer, or anyone, has made you any promises ?

Further, in the presence of Hawthorne, the Assistant United States Attorney informed the district court that there had been no plea bargaining “in the sense that we have agreed upon any sentence.” Hawthorne’s court-appointed counsel agreed with this representation. The court imposed a sentence of 10 years.

One month after the guilty plea proceeding, Hawthorne wrote a pro se letter to the district court alleging, in substance, that his guilty plea had been prompted by his attorney’s promise to him that he would receive only a five year sentence. Hawthorne requested that he be permitted to withdraw his guilty plea. The district court, without a hearing, rejected the request in a brief opinion, dated November 2, 1973, which relied on Hawthorne’s negative responses to the series of questions directed to him by the district court at the guilty plea proceedings.

On November 13, 1973, Hawthorne wrote a second time to the district court, asserting that his answers to the court’s questions at the guilty plea hearing were given on the advice of his counsel. On the same day it received the letter, the district court, without a hearing, denied Hawthorne’s request for permission to withdraw his guilty plea. Hawthorne thereupon timely filed this appeal.

Here Hawthorne primarily contends that the allegations contained in his two pro se letters to the district court were sufficient, under Moorhead v. United States, to preclude the district court’s summary denial of the requested relief. In essence, it is Hawthorne’s position (1) that his allegations, if taken as true, require the court to allow him to withdraw his guilty plea, (2) that the district court cannot rely solely on his statements at the Rule 11 hearing in dismissing his allegations as untruthful, and (3) that the district court must conduct further proceedings to determine the veracity of his allegations.

We share the concern consistently expressed by this Court that statements by a defendant at Rule 11 proceedings should be accorded great weight when such defendant, after sentencing, disavows those statements and requests permission to withdraw his plea. Nevertheless, we must, as this Court has repeatedly done in the past, examine with care the defendant’s allegations and the district court’s disposition thereof in light of Rule 32(d) and the interpretive gloss placed on that provision.

In Moorhead, the district court had conducted a thorough Rule 11 proceeding before accepting the defendant’s guilty plea. Moorhead thereafter alleged that his attorneys had misled him at the time of his plea. He claimed that they “assured him there was a ‘proposition’ ” that he would receive a “light sentence” if he chose to plead guilty. Such an allegation, this Court ruled, was “sufficient to require the holding of an adversary hearing. . . . ” The Court noted, however, that it was within the district court’s discretion to determine the type of proceeding necessary to elicit the relevant facts, and that the defendant’s presence was not required in all cases.

Thus, in assessing Hawthorne’s assertion that the district court’s denial of his request for relief was unduly precipitous, we must decide whether his allegations, if taken as true, might warrant withdrawal of his guilty plea despite the fact that correct Rule 11 proceedings were conducted. Determinations of this sort are not free from difficulties. On several occasions this Court has attempted, in the context of particular factual situations, to strike an acceptable balance between the considerations underlying Rule 11 and those reflected by Rule 32(d) of the Federal Rules of Criminal Procedure. Rule 11 is designed to encourage courts to extract all relevant information concerning the voluntariness of guilty pleas at the hearing. But Rule 32(d) permits withdrawal of a guilty plea after sentence has been imposed when necessary to “correct manifest injustice.” The “manifest injustice” clause in Rule 32(d) implicitly acknowledges that, in some circumstances, even meticulous inquiry by the court at a Rule 11 proceeding may not foreclose a defendant’s opportunity to withdraw a guilty plea if the interests of justice so dictate. On the other hand, a high degree of finality must be accorded guilty pleas delivered after proper Rule 11 proceedings in order to avoid wholesale withdrawal of pleas when sentences are regarded by the pleaders as too harsh.

Hawthorne relies heavily on United States v. Shneer to support his contention that his two pro se letters alleged facts which, if taken as true, would require the district court to permit him to withdraw his guilty plea. In Shneer, the defendant submitted affidavits supporting the motion to withdraw his guilty plea. The district court, after a hearing, denied the motion and this Court affirmed. But, in affirming, we indicated that if the defendant could establish that he pleaded guilty “in reasonable reliance upon misrepresented information [concerning an understanding with the prosecutor regarding the severity of the sentence], limiting the issue to the fact that the misrepresentation, however innocent, was made by the defendant’s counsel, an officer of the Court,” he would be entitled to withdraw his plea. Thus, Shneer supports the proposition that a guilty plea delivered when there has been misrepresentation by counsel and reasonable reliance thereon constitutes “manifest injustice” under Rule 32(d).

In Moorhead itself, this Court appeared to reaffirm this aspect of Shneer. We pointed out that if Moor-head established that his counsel told him that a “proposition” for light sentence existed between defense counsel and the prosecutor, “[a] plea induced by such misrepresentations does not meet the federal standards of voluntariness.”

In Masciola v. United States, we distinguished the Moorhead situation from that where the defendant’s counsel merely “predicted” the likely sentence to follow a guilty plea. “Manifest injustice,” the Court stated, “does not result from erroneous advice from counsel as to what sentence will be imposed.” Apparently, under the circumstances of Masciola, the defendant could not have reasonably relied on counsel’s prediction' of the likely sentence in determining whether or not to plead guilty.

That Masciola does not undermine the standards for determining manifest injustice set forth in Shneer and Moor-head was made clear by this Court in Valenciano v. United States. There we held “that the Moorhead rule persists with continuing vitality and that the contrary result reached in Masciola was the product of particular facts and limited contentions.” In Valenciano, the Court stated that an evidentiary hearing of some type is mandated “[wjhere the voluntariness of the plea is attacked with an assertion that one’s counsel or the prosecutor, or both, made an out-of-court arrangement or ‘proposition’ as to the outcome of a sentence which differs from that pronounced by the court. ”

It would appear, therefore, that under present case law if Hawthorne’s pro se letters can be read to assert that he reasonably believed that the statements of his counsel meant that arrangements had been made with respect to the length of sentence to be imposed upon a plea of guilty, he must be afforded some type of hearing. If, on the other hand, counsel’s statements, as revealed in Hawthorne’s letters, may reasonably be regarded as mere predictions of the future actions of the judge, Hawthorne is not entitled to such hearing.

The analysis and approach of this Court does not significantly undermine the finality of the Rule 11 proceedings. A defendant will not lightly plead guilty in order to determine what sentence he will receive if he so pleads, because his answers to the questions concerning the voluntariness of his plea put to him by the district court would, in most cases, place upon him a heavy burden to establish the veracity of his post-sentence assertions. This is especially so if the district court follows the suggestions made by this Court in Paradiso v. United States and in United States v. Valenciano.

In Paradiso we said (482 F.2d at 413):

In connection with their rule 11 inquiry on a plea of guilty, district judges should in essence inform the defendant that plea bargaining is specifically approved by the court and that he may truthfully inform the court of any plea negotiations “without the slightest fear of incurring disapproval of the court.” Inquiry should also be made of counsel for the parties as to any plea negotiations. Should inquiry reveal the presence of plea negotiations, counsel for the parties should be required to state plainly the terms of record and the defendant should state of record whether he understands them and concurs. The court, of course, is not obligated to accept any recommendation or bargain reached by the parties, and it should so inform the defendant when any bargain is disclosed.

We also suggested, in Valenciano, (495 F.2d at 587):

“. . .A showing in the rule 11 plea reception proceeding may, under certain circumstances, obviate a subsequent § 2255 hearing if the plea reception record discloses that (1) the defendant states that no promise, representation, agreement or understanding was made or that none other than that disclosed in open court was made to him by any person prior to the entry of the plea, and (2) the defendant affirmatively states that no out-of-court promise, representation, agreement or understanding required the defendant to respond untruthfully or contrary to the terms thereof in the in-court plea reception proceedings, and (3) that the defendant understands that he may not at a later time contend that any promise, representation, agreement or understanding was made by any person other than that set forth in open court. While such disclaimers may not obviate the necessity of subsequent § 2255 evidentiary hearings in all cases, it may be prudent for defense counsel, prosecutor, or the court to elicit such disclaimers from the defendant at the time of the reception of the guilt plea. . . . ”

Considering the increasing number of applications for withdrawal of guilty pleas predicated on “promises,” “representations,” “predications” and the like, allegedly made by defense counsel, to defendants, it now becomes apparent that what we may have once considered merely an advisable measure for Rule 11 proceedings has now become imperative. We believe that the district courts should place defendants under oath for the Rule 11 proceedings, and that the Paradiso and Valenciano advice and disclaimers should be included as well.

While we recognize that such disclaimers, even under oath, may not obviate the necessity of subsequent § 2255 evidentiary hearings, they may furnish a basis for an independent proceeding against the defendant who answers the court’s inquiries under oath and later attempts to withdraw his plea, claiming that the answers previously given were untrue.

But Hawthorne’s pro se letters present a different type of problem. To ferret for the substance of Hawthorne’s assertions concerning counsel would appear fruitless, for Hawthorne’s allegations are “inartfully pleaded.” We should, however, not hold Hawthorne to the same standards that would be applied to a defendant who, at the time he petitions a court for relief, is adequately represented by counsel. Hawthorne essentially claims that his counsel “promised” him that he would receive a five year sentence, rather than the ten year sentence that was imposed. Two inferences, conflicting in terms of the rule of law we must apply, seem equally plausible. Hawthorne may have understood that counsel’s “promise” was based on his experience in criminal matters, on his knowledge of the tendencies of the sentencing judge, or on any of a number of other factors unrelated to any putative agreement with the prosecutor. Conversely, the statements constituting counsel’s “promise” may well have been reasonably construed by Hawthorne as indicating that an agreement with respect to sentence had been reached.

Since Hawthorne is now represented by different counsel, it would appear appropriate under the peculiar circumstances of this case — the equivocal and inartful nature of the applicant’s submissions — that he be given an opportunity to offer a fuller exposition of the statements made to him by original counsel prior to sentencing. At oral argument, Hawthorne’s new counsel, in fact, suggested that such procedure would be acceptable. We agree that on the record before it, the district court did not err in refusing to grant an evidentiary hearing. We do not require that an evidentiary hearing in this context be held unless and until good cause within the principles of Moorhead, supra, has been established by affidavits.

Affidavits supporting Hawthorne’s assertions in his pro se letters may’-well suffice to give the district court an understanding of the precise nature of Hawthorne's allegations. After submission of the affidavits, the district court should be in a better position to judge whether a further hearing is called for.

Accordingly, the judgment of the district court will be vacated and the case remanded for proceedings consistent with this opinion.

      . Rule 11 of the Federal Rules of Criminal Procedure provides in relevant part as follows :
      A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.

      . Hawthorne’s first letter to the district court read as follows:
      I took my attorney’s word that if I pled guilty, I would only receive a 5 year sentence. If the court would have asked me at the time of the guilty j)lea, I would have told the court that my attorney said 5 years is all I would get on this guilty idea. So actually I was lied to by my counsel, and should not be deprived [of] my rights to a trial because of the attorney’s promise.

      . Hawthorne’s second letter read as follows:
      [T]he court is right, in my answer to the court as far as Rule 11, but the answers were only given to t’ is Honorable Court on the advice of incompetent counsel.
      In other words, my attorney told me to answer this way, and I would thus get 5 years instead of the 10 in [sic] which 1 received from your Honorable Court. When the court asked if I would plead guilty, has any promises been made to induce me to change my plea from not guilty to guilty, and I replied in the negative, this was only on instructions from my attorney and the promise of 5 years.
      These were instruction by my incompetent attorney to obtain a 5 year sentence in a change of plea.

      . 456 F.2d 992 (3d Cir. 1972).

      . Id. at 993.

      . Id. at 994.

      . Id. at 995.

      . Id.

      . 194 F.2d 598 (3d Cir. 1952).

      . Id. at 600.

      . Hawthorne calls our attention to Mosher v. LaVallee, 351 F.Supp. 1101 (S.D.N.Y. 1972), where the district court held that defense counsel’s misrepresentation that the judge had promised a particular sentence rendered the guilty plea involuntary and amounted to a denial of effective representation of counsel.

      . 456 F.2d at 995.

      . 469 F.2d 1057 (3d Cir. 1972).

      . Id. at 1059.

      . 495 F.2d 585 (3d Cir. 1974).

      . Id. at 586.

      . Id. at 587.

      . dee Id. at 586.

      . 482 F.2d 409 (3d Cir. 1973).

      . 495 F.2d 585 (3d Cir. 1974).

      . See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

      . Although not directly before us on this appeal, appellant (through his new counsel) has brought to our attention an issue concerning the special parole portion of his sentence, which may be inconsistent with recent decisions of this Court. If raised before the district court, we suggest that the district court consider the applicability of Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974).


author: HOLLOWAY, Circuit Judge.

text:
    Donald V. HATCH and Viola Hatch, Plaintiffs-Appellants, v. Earl E. GOERKE et al., DefendantsAppellees.
    No. 74-1017.
    United States Court of Appeals, Tenth Circuit.
    Argued July 12, 1974.
    Decided Sept. 20, 1974.

      Vincent L. Knight, Oklahoma City, Okl. (Richard L. Young, Native American Legal Defense & Education Fund, Inc., Albuquerque, N. M., on the brief), for plaintiffs-appellants.
    Larry L. French, Edwards & French, Seminole, Okl. (William G. Smith, Fen-ton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., on the brief), for def endants-appellees.
    Before HILL, SETH and HOLLOWAY, Circuit Judges.
   HOLLOWAY, Circuit Judge.

This is a civil rights suit brought by parents of children attending the public schools of Canton, Oklahoma, asserting several federal constitutional claims against local school officials and the local District Attorney. Injunctive and declaratory relief and damages are sought, the claims being asserted as a suit under 42 U.S.C.A. §§ 1981-1983 and 2000d, and jurisdiction being claimed under 28 U.S.C.A. §§ 1343(3) and (4). Plaintiffs also requested convening of a 3-judge court pursuant to 28 U.S.C.A. §§ 2281-2284.

Essentially plaintiffs claim that their constitutional rights have been violated in that: (1) the local rules for student appearance, by requiring the cutting of their son’s Indian braided hair, violated their parental rights to raise their children according to their own religious, cultural and moral values in violation of the guarantees of the First, Fifth and Fourteenth Amendments of the federal constitution; (2) the expulsion of their son, without a hearing, from the Canton Public Schools for failure to have his hair cut in accordance with the rules was a denial of Fourteenth Amendment procedural due process; (3) the Oklahoma compulsory school attendance statutes, 70 O.S.A. § 10-105 et seq., are unconstitutionally vague and overbroad on their face, and invalid as applied; and (4) permitting religious services to be conducted by a Ministerial Alliance on the public school premises during school hours contravenes the establishment and free exercise clauses of the First Amendment protecting religious freedom. Plaintiffs aver a threat of prosecution by the District Attorney under the compulsory attendance statute and request a 3-judge court and equitable and other relief:

An order of the trial court concluded that plaintiffs had failed to distinguish their ease from Freeman v. Flake, 448 F.2d 258 (10th Cir.), which held that the constitution does not impose on the federal courts the duty and responsibility of supervising the length of a student’s hair, and that the problem, if it exists, is one for the states. On this authority the court dismissed the complaint and action. We affirm the dismissal as to the claim challenging the hair style regulation and the claim asserting the uneonstitutionality of the compulsory school attendance statute, and the refusal to convene a 3-judge court. However, we are unable to agree that the claim of denial of due process by the expulsion without a hearing and the claim that religious services are being unconstitutionally permitted, were insubstantial. We must hold that those claims should not have been dismissed.

We will detail the facts and allegations of the complaint in discussing these propositions, to which we now turn.

First, plaintiffs challenge the validity of the rules for student appearance. They claim a constitutional right, as parents, to raise their children according to their own religious, cultural and moral values, and assert a deep belief of themselves and their son in maintaining his Indian appearance by wearing braids.

On this issue the complaint alleges essentially the following facts. The plaintiffs are husband and wife, Viola Hatch being an American Indian and an enrolled member of the Arapaho Tribe. They have three school-age children who have, until recently, regularly attended Oklahoma public schools, two daughters and one 10-year old sqn, Buddy. Defendant Cash is Superintendent of the Canton Public Schools and defendant Dow is the Elementary Principal in Canton. Defendants Herman Haigler, Hoots, Garriott, Bob Haigler and Acre comprise the Canton Board of Education. Defendant Goerke is the District Attorney for the District in which Canton is situated.

On or about September 20, 1972, Buddy Hatch is alleged to have been summarily expelled without a hearing from the fifth grade by Principal Dow for failure to have his hair cut in accordance with the school rules for student appearance. Those rules provided, among other things, that boys’ hair should be kept trim and neatly groomed and should not extend below the eyebrows or on the collar. Buddy was wearing his hair in braids, in traditional Indian fashion, with the full approval and encouragement of his parents.

. The complaint also averred that the plaintiffs explained to the defendant officials that the hair style of Buddy is not just a matter of personal freedom but that it is plaintiffs’ wish to raise him so that he will be proud to be recognized as an Indian. It is alleged that plaintiffs feel they have a basic right to inculcate in their children a knowledge of and respect for Indian customs, traditions and religious beliefs. And the complaint avers that defendants are attempting to coerce plaintiffs to have Buddy give up his traditional appearance, even in his own home, by the hair style rule.

Plaintiffs say their case is distinguishable from Freeman v. Flake, supra, since we there dealt only with student rights, and not parental rights. They assert that their constitutional rights, as parents, include the basic freedom to bring up their children according to their own religious, cultural and moral values, relying on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15; Pierce v. Society of Sisters, 268 U. S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, and Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L.Ed. 1042. They argue that the challenged hair length regulation violates this parental right by imposing the school’s non-Indian standard of appearance on their son, even in the privacy of their own home.

We must agree with the trial court that the distinction sought to be drawn does not avoid the reasoning in Freeman v. Flake. Freeman held that the federal constitution and statutes do not impose on the federal courts the duty and responsibility of supervising the length of a student’s hair, and that the problem, if it exists, is one for the states and should be handled through state procedures. 448 F.2d at 259. And Freeman concluded that “[c]omplaints which are based on nothing more than school regulations of the length of a male student’s hair do not ‘directly and sharply implicate basic constitutional values’ and are not cognizable in federal courts under the principles stated in Epperson v. Arkansas.” 448 F.2d at 262. See also New Rider v. Board of Education, 480 F.2d 693 (10th Cir.).

In view of this reasoning we feel that the complaint against the hair style regulation lacks constitutional substance regardless of who makes the challenge. That the claim is one of invasion of parental rights is not, therefore, grounds for avoiding the Freeman holding, reaffirmed in New Rider.

Nor are we persuaded by plaintiffs’ arguments based on Wisconsin v. Yoder. The Yoder case involved compulsory schooling that “ . . . contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child.” 406 U.S. at 218, 92 S.Ct. at 1534. Despite the generalized allegations made by the plaintiffs here, we cannot agree that the hair style regulation involves a sharp clash with a complete and religiously founded concept of raising children as in Yoder.

Freeman did stress the absence of any claim of racial or religious discrimination. See 448 F.2d at 260. And New Rider likewise emphasized that there was no fundamental right at issue and that no suspect classification was being applied. 480 F.2d at 698. While the complaint here makes a broad claim of a discriminatory effect on the basis of race or national origin (Complaint, fllO) along with other generalized allegations on religion as stated above, we do not feel the allegations are sufficient to place this case outside the holding of Freeman and New Rider. Thus we affirm the dismissal as to the claim challenging the hair style regulation as here applied.

Secondly, we turn to the challenge to the validity of the Oklahoma compulsory school attendance statute, 70 O.S.A. § 10-105. The statute provides in essence that it is a misdemeanor punishable by a $50 fine or imprisonment in the city jail for not more than 10 days, or both, to neglect or refuse to cause or compel a child to attend and comply with the rules of some public, private or other school, unless other means of education are provided for the full term the schools are in session. Plaintiffs argue that this statute, under which they are allegedly threatened with prosecution, is unconstitutionally vague and overbroad on its face, and invalid as applied in the case of their son.

We are not persuaded that the school attendance statute is invalid. In terms it merely provides reasonable requirements for causing school attendance and compliance with the rules of some public, private or other school. “There is no doubt as to the power of a State, having a high responsibility for education of its citizens, to impose reasonable regulations for the control and duration of basic education.” Wisconsin v. Yoder, 406 U.S. 205, 213, 92 S.Ct. 1526, 1532.

The Oklahoma statute recognizes a general but not unlimited power in the making of necessary school rules. See United States v. Cassiagnol, 420 F.2d 868, 876 (4th Cir.). We feel its purpose and scope are clear and that the claim of vagueness is untenable. See Broadrick v. Oklahoma, 413 U.S. 601, 607-609, 93 S.Ct. 2908, 37 L.Ed.2d 830; United States v. Guterma, 189 F.Supp. 265, 273-275 (S.D.N.Y.).

In connection with the claim of overbreadth, we note that the statute on its face makes no attempt to regulate free speech. And . its application through the hair style rule does not control pure speech nor any form of “symbolic speech” within the protection of the First Amendment. Freeman, supra, 448 F.2d at 260-261. Our case is thus unlike Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. In view of these circumstances and the terms of the statute we are convinced that the claim of overbreadth is likewise without merit. See Broadrick v. Oklahoma, supra, 413 U.S. at 609-618, 93 S.Ct. 2908; Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439. The real controversy here is with the local student appearance rule and, as stated, no substantial challenge can be made to it in view of Freeman and New Rider.

Plaintiffs say the trial court erred in riot convening a 3-judge court to consider their claim for equitable relief against prosecution under the allegedly unconstitutional compulsory attendance laws. However, we are satisfied that the challenge to the underlying school attendance statute itself is clearly insubstantial and did not require convening a 3-judge court. Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152. The claim of invalidity of the hair style rule is likewise insubstantial and, since it is of only local application, the challenge to it did not require a 3-judge court in any event. Board of Regents v. New Left Education Project, 404 U.S. 541, 542-543, 92 S.Ct. 652, 30 L.Ed.2d 697.

Thus, we cannot agree that there was error in dismissing the claim of invalidity of the compulsory attendance statute or in failing to convene a 3-judge court and affirm the dismissal as to such claim and the denial of the request to convene a 3-judge court.

Next we consider plaintiffs’ claim that the court erred in dismissing the claim of violation of the First Amendment guarantees of religious freedom.

The complaint averred that the defendants unconstitutionally permitted religious services to be conducted on the physical premises of the Canton public schools during school hours. These religious services are allegedly conducted by the local Ministerial Alliance with the full cooperation and approval of defendant school officials. Plaintiffs allege further that defendants “even go so far as to tell plaintiffs’ daughters what clothing they must wear to said services.” (Complaint, |f|f 5 and 10). Defendants’ actions are alleged to violate the establishment and free exercise clauses of the First Amendment.

These allegations may not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80; Keenan v. Looney, 227 F.2d 878, 880 (10th Cir.). We cannot say that proof under such allegations could not make a case of violation of the religious freedom guarantees in view of several leading First Amendment cases.

The First Amendment’s religious guarantees have been applicable to the States ever since the Supreme Court’s decision in Everson v. Board of Education, 330 U.S. 1, 14-15, 67 S.Ct. 504, 91 L.Ed. 711. The Court there stated, id. at 15, 67 S.Ct. at 511:

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one' religion, aid all religions, or prefer one religion over another.

We feel a substantial claim is alleged under the principles of cases applying the establishment clause. See McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601; School District of Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844; see also Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 772-773, 93 S.Ct. 2955, 37 L.Ed.2d 948; Vaughn v. Reed, 313 F.Supp. 431 (W.D. Va.). We must hold that this claim may not be dismissed on its face since it raised a substantial question of violation of federal constitutional rights which these plaintiffs, as parents, are entitled to assert. E.g., Engel v. Vitale, supra, 370 U.S. at 423, 82 S.Ct. 1261.

We consider lastly plaintiffs’ claim of denial of due process by expulsion of their son without a prior hearing. The complaint alleges that the son was summarily expelled without a hearing from the fifth grade of the Canton Elementary School by defendant Dow. The principal’s letter to plaintiffs, attached as an exhibit to the complaint, states that until compliance is achieved with the rules for student appearance, admittance must be refused to their son. Thus the complaint and exhibit state at least that an indefinite suspension was imposed without a hearing, and based only on violation of the rules for student appearance.

Not every school disciplinary action gives rise to a federal constitutional claim. See Yench v. Stockmar, 483 F.2d 820, 823 (10th Cir.). However, it has been recognized that due process entitles students in the public schools to be accorded the rudimentary elements of a hearing before they are expelled or suspended for a lengthy or indefinite period, absent some extraordinary situation requiring immediate action before a hearing. See, e. g., Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir.), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193; Brown v. Strickler, 422 F.2d 1000 (6th Cir.); Farrell v. Joel, 437 F.2d 160 (2d Cir.); Betts v. Board of Education of City of Chicago, 466 F.2d 629 (7th Cir.); Strickland v. Inlow, 485 F.2d 186 (8th Cir.), cert. granted, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (4/16/74); Black Coalition v. Portland School District No. 1, 484 F.2d 1040 (9th Cir.); Vail v. Board of Education of Portsmouth School District, 354 F. Supp. 592, 601-604 (D.N.H.); Sullivan v. Houston Independent School District, 307 F.Supp. 1328, 1342-1343 (S.D. Tex.); Knight v. Board of Education of City of New York, 48 F.R.D. 108 (E.D. N.Y.). This follows from the Fourteenth Amendment due process principle that a hearing must be afforded before the deprivation of a protected interest, absent special circumstances. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569-570, 92 S.Ct. 2701, 33 L.Ed.2d 548; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. And regardless of the validity of the hair style rule, the opportunity to appear and argue, at least, for leniency or special consideration could be of substantial value. See Betts v. Board of Education of City of Chicago, supra, 466 F.2d at 633; Knight v. Board of Education of City of New York, supra, 48 F.R.D. at 111.

We must hold that at least an informal hearing, with knowledge of the misconduct charged and an opportunity to respond or appeal for leniency, is called for before the opportunity to receive an education is denied through an expulsion or a lengthy or indefinite suspension. Therefore, we cannot say that it appears beyond doubt that the plaintiffs can prove no set of facts entitling them to relief on this claim. Conley v. Gibson, supra. Of course, we do not decide that there was a denial of procedural rights in the handling of this case by the defendant school officials. This must be determined when the facts are developed. We only hold that, on its face, this claim cannot be dismissed.

Accordingly the judgment is affirmed in part, vacated in part, and remanded for further proceedings.

      . We note that Glaser v. Marietta, 351 F. Supp. 555 (W.D.Pa.), in the context of a claim of parental right to prohibit corporal punishment of a child by school authorities, has recognized that parents have separate and distinct rights. Nevertheless, we feel that Freeman and New Rider control here.

      . A further claim is made that the statute makes an unconstitutional delegation of power to define criminal conduct. Whether viewed as a form of federal due process claim, or as a pendent state law claim, we are satisfied for the reasons stated by us in rejecting the claim of vagueness that this related argument also lacks merit. See United States v. Grimaud, 220 U.S. 506, 521-522, 31 S.Ct. 480, 55 L.Ed. 563; United States v. Cassiagnol, 420 F.2d 868, 876 (4th Cir.).

      . The McCollum case involved classes conducted by a City Council on Religious Education -with separate groups taught by Protestant, Catholic and Jewish representatives in the School buildings. Students not wishing the religious instruction were required to continue secular studies ' in other rooms. ■ Students released from secular study for the religious instructions were required to be present at the religious classes. This religious instruction was held to violate the establishment clause. 333 U.S. at 211-212, 68 S.Ct. 461.

      . The Oklahoma School Code did provide for an appeal from suspension for immorality or persistent violation of regulations. See 70 O.S.A. § 24-101 (eff. July 2, 1971). This right to appeal, after the suspension was effected, was referred to by the letter from the principal in this case.

      . As explained in Dixon v. Alabama State Board of Education, supra, 294 F.2d at 158, the nature and extent of the hearing should vary depending on the circumstances of the particular case.

      . We are satisfied that the parents — the ones to whom the principal’s letter and its conditions were addressed — have a sufficient stake to assert the due process claim here. See Sullivan v. Houston Independent School District, supra, 307 F.Supp. at 1343.


author: VAN DUSEN, Circuit Judge.

text:
    UNITED STATES of America v. Frank E. CRUTCHLEY, Appellant, and Florence Gorman.
    No. 74-1023.
    United States Court of Appeals, Third Circuit.
    Argued May 17, 1974.
    Decided Sept. 16, 1974.

      Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., Louis J. Ruch, Special Atty., Dept, of Justice, DEA Task Force, Philadelphia, Pa., for appellee.
    Harry S. Tischler, Asst. Defender, Philadelphia, Pa., for appellant.
    Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This case is before the court on appeal from a November 27, 1973, judgment of conviction and probation sentence entered after a court finding that defendant was guilty of theft of government property on June 5, 1973, in violation of 18 U.S.C. § 641, as charged in count I of a three-count indictment.

One bail hearing was held before U.S. Magistrate Powers on June 6 and another bail hearing was held before U.S. Magistrate Naythons on June 13.

On June 29, 1973, the first indictment was returned by the grand jury and on August 28, 1973, defendant filed a Petition to Dismiss Indictment, alleging that a malfunction of the recording machinery prevented his counsel from securing a transcript of the June 6 and June 13 hearings and that no record had been made of the grand jury proceedings leading to the June 29 indictment. On August 31, 1973, a superseding indictment was returned after the first indictment had been dismissed. Count I of both indictments contained the same language. No recording had been made of the grand jury proceedings leading to the first indictment, but there was a recording of the government agent’s or agents’ testimony leading to the second indictment (N.T. 21 of Document 11 in Criminal No. 73-483, E.D.Pa.).

On September 10, 1973, an Amended Motion to Dismiss the Indictment (Document 8 in Criminal No. 73-483, E.D. Pa.) was filed.

After a hearing on September 12, 1973, the district court made the following ruling with these findings, inter alia, on the petitions to dismiss the indictment (N.T. 21-24 of Document 11):

“My ruling is that there has been no showing of prejudice by reason of the apparent absence of some of the testimony which may have been presented at a preliminary hearing.
“I express it in those words advisedly, because I think the record is, unfortunately, still rather fuzzy as to just what did happen. There is, for example, no evidence as to who testified. There is no evidence as to what was said or as to the extent which it might conceivably bear on the ability of the defendants to make an adequate defense of the ease.
“Be that as it may, I find as a fact that the reason for the non-availability of the testimony is not due to the fault of either side and will point out that the rationale that underlies some of the eases which grant dismissals for somewhat similar reasons, although not certainly similar to this case, but the basic rationale is that the defendant should be in as good a position as the government, that the government should not have access to information which the defendant does not have.
“Now, to the extent that a government witness testified at the preliminary hearing, both sides were there and heard it. If it turned out that the government had access to a transcript and the defendant didn’t, obviously that would be unfair and improper. But here neither side has access to a transcript of the statement. Each side has to rely on its own recollection of what was said, to the extent that that becomes relevant at trial, and I frankly doubt that it would be likely to have much bearing on the trial in any event.
“Now we go to the question of the grand jury testimony. The record establishes conclusively that the now pending indictment is a superseding indictment and that all testimony presented to the grand jury in support of the superseding indictment was, in fact, transcribed, and that a transcript of the testimony of each witness who testifies at trial will be available for cross .examination purposes.
“It seems to me that obviously accords the defendants all of their rights.
“The argument is made that because there was an earlier indictment at which the testimony was not transcribed that that somehow alters the •situation. I would point out in passing that the only evidence before me is as to what the practice of the United States Attorney’s office has been with regard to transcribing the testimony of some witnesses and not others.
“There is, in point of fact, no evidence before me that that practice was followed in this case at any stage. There is no evidence as to who testified before the grand jury as to either indictment. In short, there is simply a total failure of proof.
“But assuming for the moment that certain witnesses testified in support of the first indictment, their testimony was not recorded, there was a superseding indictment, and their testimony was recorded, I am at a loss to understand how the defense can claim any prejudice by reason of that circumstance.
“So to make a long story short, I find that there is no merit under the circumstances of this case to the arguments presented on behalf of the defendants, and I deny the motions to dismiss the indictment.”

The government evidence at the October 23, 1973, nonjury trial showed that defendant and co-defendant Gorman met with a government special agent (Kean) acting in an undercover capacity on June 5, 1973 in Philadelphia. Kean told Crutchley he wanted to buy narcotics and they negotiated for Crutchley to sell Kean two bundles of heroin for $210. Crutchley took Kean to 2349 Orkney Street, where the defendant talked to the occupant, who was in the doorway of the house, and returned saying that the $210. would have to be given to the occupant-seller before the heroin would be delivered. Government funds in the amount of $210. were given to defendant who, together with the co-defendant, was later observed climbing out of a rear window of the house with the money. The defendant and co-defendant were then arrested, at which time co-defendant Gorman stated she knew Kean was “the police” and “they . . . planned to rob [him]” (N.T. 13).

The defendant offered no evidence at the trial. The trial judge made these specific findings, inter alia (N.T. 86-89):

“. . . the evidence clearly discloses that the defendant Crutchley at least had set upon a scheme to defraud the person who was, in fact, the agent of the United States by taking the $210 under the pretense that he would buy narcotics with it, but having at that time no intent to purchase narcotics with the money, but rather an intent to convert the money to his own use.
“I base that finding in large part upon the fact that Mr. Crutchley did take the money, the full amount of $210, and by the arrangements that he made with the owner of the house, Mr. Baker, it is apparent that he had no intention of procuring narcotics.
“I find that he thereafter tried to sneak out the back way with the money, thus nailing down the fact that he intended to steal it and did not intend to buy narcotics with it.
“I find that the evidence is insufficient to make a firm finding that the defendant Crutchley knew at the time that he got the money that it was government money.
“As a legal conclusion, I have concluded that the law is that the government does not have to prove knowledge on the part of the defendants as to the ownership of the money. I find that the money was owned by and did belong to the United States government, that the evidence as to the tracing of the money, specifically the evidence relating to government Exhibit G-l is true and correct and that the money which was recovered from the two defendants respectively was part of the money which had been furnished to them through the agent.
“So, to repeat, I find the defendant Frank Crutchley guilty of the first count as charged. ...”

The trial judge’s legal conclusions included the statement that “. . . the original taking was larceny by trick” (N.T. 89).

I. Absence of any record of Magistrates’ hearings.

A. Bail hearings.

No statute or rule of court requires a recording or transcript of the bail hearings and the record does not show any prejudice or unfairness to defendant resulting from the absence of such recording or transcripts. See III below.

B. The preliminary hearing of July, 1973.

The absence of any record of the preliminary hearing of July, 1973 did not prejudice the defendant in this case, and such hearing was not required by 18 U.S.C. § 3060(e).

A preliminary hearing is not “required to be accorded an arrested person ., if at any time subsequent to the initial appearance of such person before a judge or magistrate and prior to the date fixed for the preliminary examination pursuant to subsections (b) and (c) an indictment is returned . against such person in a court of the United States.” See 18 U.S.C. § 3060(e). As noted above, the defendant was subject to the indictment of June. 29, 1973, at the time of the July preliminary hearing.

Furthermore, the district court found “as a fact that the reason for the nonavailability of the testimony is not due to the fault of either side,” and “neither side has access to a transcript of the statement.” See page 1197 above.

II. Practice of the United States Attorney in some cases of selectively recording or transcribing only those portions of grand jury testimony presented by non-government witnesses.

The district court found that there was no evidence that the above practice, which is apparently often used in the United States District Court for the Eastern District of Pennsylvania, was used in this ease. It held that there was “a total failure of proof” that this practice was followed “in this case at any stage” (see page 1197 above). The evidence shows that there was no recording or transcript of the testimony before the first grand jury and that “all testimony presented to the grand jury in support of the superseding - indictment was transcribed and that a transcript . will be available [at trial] for cross-examination purposes.” Thus, there was no error in its denial of defendant’s motion to dismiss the superseding indictment.

Nevertheless, because of our concern with this problem, we requested the parties to this case to submit supplemental memoranda, as a result of which we have been informed by appellee as follows:

“About a year ago the Criminal Division asked all the United States Attorneys to comment upon a proposal to require the recording of all grand jury proceedings. ... A number of United States Attorneys complained of the difficulty currently encountered in obtaining the services of court reporters on a timely basis and questioned whether a recording requirement could reasonably be met. The use of electronic recording equipment to record all grand jury proceedings might be practical, but the cost for the equipment, necessary personnel, and a certain amount of acoustical engineering would be very substantial.
“The advisory committee on the criminal rules of the Judicial Conference is now considering the amendment of Rule 6 of the Federal Rules •of Criminal Procedure to require the recording of all grand jury proceedings. It is anticipated that the committee will soon make its recommendation concerning the substance and scope of the proposal.

“III. PRACTICE FOLLOWED IN EACH OF. THE UNITED STATES DISTRICT COURTS OF THE THIRD CIRCUIT REGARDING THE RECORDING OF GRAND JURY TESTIMONY.

“The same general practice with regards to recording grand jury testimony is followed in the Eastern District of Pennsylvania, the Western District of Pennsylvania, the District of New Jersey and the District of Delaware. In these Districts the testimony of lay witnesses is recorded and the testimony of agents on indictments is not recorded. Exceptions to this general practice in some cases are made at the discretion of the Assistant United States Attorney.
“The Middle District of Pennsylvania as a general practice does not record any grand jury testimony.”

See pp. 8-10 of appellee’s supplemental memorandum.

We have held that the recording of all grand jury testimony is not required. See United States v. Heckman, 479 F.2d 726, 732 (3d Cir. 1973). However, the federal courts considering the requirements governing the recording of grand jury testimony have generally stated that in a criminal case the parties should be in an equal position in their ability to impeach witnesses through the use of grand jury testimony, see Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and hence the practice of only transcribing a portion of the grand jury testimony has been disapproved. See, for example, United States v. Battisti, 486 F.2d 961, 963-964 (6th Cir. 1973); United States v. Arradondo, 483 F.2d 980, 984-985 (8th Cir. 1973); United States v. Aloisio, 440 F.2d 705, 708 n.2 (7th Cir. 1971); United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970); Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967); United States v. Cianchetti, 315 F.2d 584, 591 (2d Cir. 1963).

The practice of recording the grand jury testimony only of non-Government witnesses is undesirable, since it denies defendants the same opportunity available to the Government of impeaching the trial testimony of those witnesses unfavorable to their case. If the testimony of any grand jury witness or witnesses is to be recorded, either by a court reporter or a recording device, all such testimony should be recorded so that the defense and the Government will both have available all portions of the grand jury testimony, provided that the court approves the method, form and condition of disclosure. This practice would prevent the recording of only those portions of grand jury testimony helpful to the Government.

III. Contention that 18 U.S.C. § 64.1 requires proof that the defendant knew that “the property taken was that of the United States.”

After careful consideration, we approve of the district court holding that the Government was not required to prove that Crutchley was aware that the property taken belonged to the United States. We decline to follow the view adopted in Findley v. United States, 362 F.2d 921 (10th Cir. 1966). In United States v. Howey, 427 F.2d 1017 (9th Cir. 1970) , the court used this language at 1017-1018:

“We think that Findley is wrong, and we decline to follow it.
“It was not an essential part of the common law larceny-type offense that the thief knew who owned the property he took; it was enough that he knew it did not belong to him. The legislative history provides no support for an assumption that Congress intended in section 641 to add to the common law offenses a new requirement that a thief know who owned the property he was stealing.
“The reason for including the requirement that the property, in fact, belongs to the Government was to state the foundation for federal jurisdiction. A defendant’s knowledge of the jurisdictional fact is irrelevant, as we have held in many cases interpreting analogous statutory provisions.”

The position taken in Howey, supra, has been followed in subsequent decisions of the United States Court of Appeals dealing with this subject. See United States v. Smith, 489 F.2d 1330, 1332-1334 (7th Cir. 1973); United States v. Boyd, 446 F.2d 1267, 1274 (5th Cir. 1971); Baker v. United States, 429 F.2d 1278 (9th Cir. 1970).

Contention that 18 U.S.C. § 6il does not encompass larceny by trick. IV.

The Supreme Court has made clear that 18 U.S.C. § 641 was designed to apply to not only larceny and embezzlement but all “instances” where under “slightly different circumstances under which one may obtain wrongful advantages from another’s property”. Morissette v. United States, 342 U.S. 246, 271, 72 S.Ct. 240, 254, 96 L.Ed. 288 (1952). See also Crabb v. Zerbst, 99 F.2d 562, 564-565 (5th Cir. 1938).

In view of these authorities, this contention is rejected.

For the foregoing reasons, the November 30, 1973, district court judgment will be affirmed.

      . Count I charges that defendant “wilfully and knowingly, did embezzle, steal, purloin and convert to [his] own use [$210.], money of the United States,” in violation of 18 U.S:C. § 641.

      . A preliminary hearing was held before U.S. Magistrate Naythons in July. No stenographic transcript or recording of this hearing was made.

      . As noted below, the district court found that all the testimony before the grand jury was transcribed but it is not clear whether testimony was offered by one or two agents.

      . The district court finding of guilt on Count I was not based on any contention that defendant knew the money stolen was t' e property of the United States, despite the oral statements of the co-defendant to this-effect at the time of the arrest. Under these circumstances, defendant’s arguments as to the prejudice caused by the absence of such recording or transcripts are irrelevant,

      . Accord United States v. Schrenzel, 462 F.2d 765, 772-773 (8th Cir. 1972); United States v. Mallory, 460 F.2d 243, 248 (10th Cir. 1972); United States v. Kind, 433 F.2d 339, 340-341 (4th Cir. 1970); United States v. Harper, 432 F.2d 100, 102 (5th Cir. 1970); United States v. Watson, 421 F.2d 1357 (9th Cir. 1970); United States v. Cianchetti, 315 F.2d 584, 591 (2nd Cir. 1963).
      Several circuit court of appeals decisions state that recording of the grand jury proceedings is the better practice; see United States v. Aloisio, 440 F.2d 705, 708 (7th Cir. 1971); United States v. Cramer, 447 F.2d 210, 214 (2nd Cir. 1971); cf. Schlinsky v. United States, 379 F.2d 735, 740 (1st Cir. 1967). See also Knudsen, “Pretrial Disclosure of Grand Jury Testimony”, 60 F.R.D. 237, 253 ff. (1973); ABA Report of the Special Committee on Rules of Procedure, 52 F.R.D. 87, 94-95 (1971). The failure to compel production of grand jury testimony where there is no record, however, is not reversible error. Wyatt v. United States, 388 F.2d 395 (10th Cir. 1968).
      Since the Advisory Committee on Criminal Rules of the Judicial Conference of the United States is now considering “suggestions with respect to the operation and use of the grand jury and to the legal problems connected therewith” (Report of the Pro-ce_edings of the Judicial Conference of the United States at p. 81, September 13, 14, 1973), including the recording of testimony (see ICnudsen, supra), we do not consider it desirable to require the recording of all grand jury testimony at this time.

      . In Morissette, the Supreme Court said:
      “The history of § 641 demonstrates that it was to apply to acts which constituted larceny or embezzlement at common law and also acts which shade into those crimes but which, most strictly considered, might not be found to fit their fixed definitions.” 342 U.S. at 269, n.28, 72 S.Ct. at 253.