author: BARNES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. John Robert HECK, Jr., et al., Appellants.
    Nos. 73-1671 to 73-1675 and 73-1697.
    United States Court of Appeals, Ninth Circuit.
    Jan. 30, 1974.
    As Modified on Denial of Rehearings in Nos. 73-1671, 73-1672, 73-1675, 73-1697, June 5, 1974.

      Morris Sankary (argued), San Diego, Cal., for appellants in 73-1671.
    E. Mac Amos, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.
    Mobley M. Milam (argued), San Diego, Cal., for appellant in 73-1672.
    Morris Sankary (argued), San Diego, Cal., for appellant in 73-1673.
    Christopher R. Bates, pro per, for appellant in 73-1674.
    Edward F. Ross, pro per, for appellant in 73-1675.
    G. G. Baumen.(argued), Los Angeles, Cal., for appellant in 73-1697.
    Before BARNES and ELY, Circuit Judges, and PLUMMER, District Judge.

       The Honorable Raymond B. Plummer, United States District Judge, Anchorage, Alaska sitting by designation.

   BARNES, Circuit Judge:

One or more of the eleven defendants who are parties to this appeal were charged in one or more counts of a superseding indictment (No. 13708), with having conspired to violate (Count I), or having substantively violated (Count II), 26 U.S.C. § 7212(b).

All defendants were charged in Count III with having conspired (18 U.S.C. § 371) to forcibly assault, oppose, resist, impede, or interfere with various federal officials, or (Counts IV to X) with substantively violating 18 U.S.C. § 111.

We note the difference in the subject matter in section 7212(b) and section 111; and that a violation of section 7212(a) was not charged in the indictment.

26 U.S.C. § 7212(b) reads as follows:

“(b) Forcible rescue of seized property. — Any person who forcibly rescues or causes to be rescued any property after it shall have been seized under this title, or shall attempt or endeavor so to do, shall, excepting in cases otherwise provided for, for every such offense, be fined not more than $500, or not more than double the value of the property so rescued, whichever is the greater, or be imprisoned not more than 2 years.”

18 U.S.C. § 111 reads as follows:

“Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this' title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.
“Whoever, in the commission of any such acts uses a deadly or dangerous weapon, shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”

18 U.S.C. § 1114, referred to in section 111, lists United States Marshals, any officer or employee of the Federal Bureau of Information, or any officer, employee or agent of the Internal Revenue Service, as the officers protected by the statute.

The offense charged against all defendants in the first count of the superseding indictment filed in this case alleged a conspiracy “to forcibly rescue property seized at the Heck Transfer & Storage Co., which property had been heretofore previously seized by agents of the Internal Revenue Service,” though still located on the Heck premises. The second count charges all defendants forcibly attempted to rescue the seized property (26 U.S.C. § 7212(b)).

Counts III and IV to IX do not concern the seized property directly, but charge in Count III that all defendants conspired “to assault, resist and interfere” with certain Government agents responsible for protection of the seized property, and in Counts IV to X, inclusive, various defendants were charged with the substantive offense of assaulting, resisting or interfering forcibly with various special agents of the Internal Revenue Service, while said agents were engaged in the performance of their official duties.

The theory of the first two counts rests on an alleged rescue of seized property. They differ from the remaining counts which rest on interference with the agents’ performing their official duties.

A variety of verdicts were returned by the jury, and varying sentences were imposed.

I. The Legality of the Seizure

Certain of the defendants charge that the legality of the Internal Revenue Service seizure was an essential issue that was required to be determined by the trier of fact before the defendants could be found guilty. The court instructed the jury the legality of the seizure was not before it.

Cooper v. United States, 299 F. 483 (3rd Cir. 1924) states the contrary:

“The offense denounced by the statute (26 U.S.C. § 7212(b)) has two essential ingredients — seizure of merchandise and rescue of merchandise seized. But there is more to it than that. There must be an unlawful rescue of merchandise lawfully seized. United States v. Page (D.C.) 277 F. 459. Hence, lawful seizure is not only an ingredient preliminary to an unlawful rescue but it is a prerequisite. And lawfulness of the seizure must be shown. This element of the offense cannot be pleaded by mere assertion or conclusion but must be pleaded by facts.” (Emphasis added.)

We note the Government’s Brief cites other authority to support its position that it need not plead and prove a lawful seizure; namely:

1. United States v. Oliver, 421 F.2d 1034 (10th Cir. 1970). The jury passed on the defense the vehicle had not been properly seized, but found it had been. The instruction objected to by Oliver is not quoted in the decision. The Oliver panel preceded its reference to Scolnick by this language: “There is a dearth of cases discussing 26 U.S.C. § 7212(b), however, we find the reasoning hereinafter quoted to be relevant.”
2. United States v. Bernstein, 287 F.Supp. 84 (S.D.Florida, 1968).

On such facts, the government, as here, relied on 26 U.S.C. § 6331 to authorize the seizure.

We need not pass upon this legal question, however, in view of our disposition of the first two counts, as hereinafter appears.

II. Evidence

Turning to the facts of the case before us, we emphasize certain of them. The crime charged is alleged to have been committed on May 9, 1972. The federal tax lien was filed and recorded in San Diego County on March 23, 1972, covering the “1040 Tax Liability” of Mr. and Mrs. Heck for the two years ending December 31, 1968 and December 31, 1969. (Gov.Ex.No. 1). A levy in the amount of $8,336.73 was made on May 3, 1972 (Def.Ex. a), and Mr. Heck received copy of that levy (Gov.Ex.- 5, para. 2), and a Notice of Seizure on May 4, 1972. (Gov.Ex. 13, 14, and 15). It was stipulated between counsel that the personal property was seized on May 9, 1972, and that the real property was seized on May 10, 1972 (R.T.1796).

III. Sufficiency of Evidence

A question quickly arises. How could the seized personal property be, on May 9, 1972, the object of an attempted rescue unless some defendant touched it, or picked it up, or attempted so to do? No one, save Mr. Heck, touched it, or attempted to touch it. The government cannot rely on Mr. Heck breaking the glass in his front door, because title to the real property was his subject to a lien, but prior to any seizure of it. He was entitled to break as many doors or windows as he desired prior to seizure. On May 9, 1972, Mr. Heck had ownership and use of the real property. (R.T. 243).

While there is a factual dispute between the parties as to “who pushed whom, if anyone,” through the entrance door to the Heck premises, if there is no testimony of any attempt by any person, made inside or outside the building, to “rescue” anything seized, or to remove any personal property from the real property physically, the government’s ease has not been established.

The government, to supply this insufficiency, points to its Ex. 5, as proof of threats made by Mr. Heck, and his ultimatum, that if the government did not restore the property levied upon by the government to him—

“ . . . my friends, as concerned and irate citizens will see that I am put back into business under my guaranteed Constitutional Rights.” (Gov. Ex. 5).

The difficulty with the prosecutor’s position is the testimony of Officer Williams that he did not read Ex. 5 (the letter), prior to the fracas on May 9, 1972.

There was evidence also of oral “threats” — such as Dr. Ross’:

“[T]he property would be returned to Mr. Heck by 12 o’clock, or else” (R.T. 232), and “If you are prepared to arrest 200 people, you are welcome to try” (R.T. 233); “that California has no death penalty and that any action could be taken against police officers short of killing them in order to rescue seized property.” (R.T. 235).

But there is no mention of threats, intimidation, obstruction, or impeding in section 7212(b), as there is in section 7212(a), and in 18 U.S.C. § 111.

We have before and again emphasize that the government saw fit to sue the defendants on two different theories, requiring differing proof. The first was expressed as a conspiracy to rescue seized property, and the substantive crime of forcibly attempting to rescue it. The second theory was expressed as a conspiracy to assault and interfere with government officials, and in doing so.

The only acts, violent or otherwise, directed against the Heck property, was defendant Heck’s breaking of the glass in the door to his unseized real property on May 9, 1972; his sitting at his seized desk inside said premises; the bandaging of his cut fingers, and some brave talk of future action suggested by defendants outside the Heck premises. At the most, Heck (in Ex. 9) threatened that there might be an attempt to rescue seized property.

The government emphasizes in its factual recital that defendant Ross was outside the Heck premises “walking up and down . . . reading out of a book entitled, The Big Bluff” (Ex. A-Z), making “comments about there being no death penalty in California, and that any action could be taken against police officers short of killing them.” When Heck picked up the large rock (shown in defendants’ Ex. R) to break the glass, he was surrounded by “a group” of three or four persons on each side of him, which group shouted, “Those SOB’s cannot stop us now.”

The difficulty in relying upon such testimony to prove Counts I or II is that they do not prove an attempt to rescue the only seized property as of 12:00 noon on May 9, 1972; i. e., the personal property. There was evidence of certain intent to enter the locked Heck premises, and that some did, but that would not be sufficient to prove Counts I or II as to any defendant.

We have carefully examined the record, and conclude there is insufficient evidence to prove beyond a reasonable doubt that any defendant forcibly attempted to, or did, rescue seized property. We therefore reverse all convictions of the seven defendants convicted on Count I, and the five defendants convicted on Count II, upon the insufficiency of the evidence to establish a violation of 26 U.S.C. § 7212(b).

The second theory pursued by the government against the various defendants in Count III was that all nine conspired (18 U.S.C. § 371) to “forcibly assault, resist and interfere” with Internal Revenue officers responsible for the protection of seized (personal) property (18 U.S.C. § 111) located at the Heck Transfer & Storage Company property at 2165 Newton Avenue, San Diego, California.

Defendants Eric Moths and Christopher Raymond Bates were found not guilty by the jury of the conspiracy charged in Count III. Eric Moths was found not guilty of assault on Dunlap (Count VII); and neither Moths nor Bates were charged with any other substantive count charging a violation of 18 U.S.C. § 111, alone.

We need consider, therefore, only the convictions of defendant Heck as to Count III; of Armin Moths as to Counts III and VI; of Steven Mitzner as to Counts III and V; of James Mitzner as to Counts III and VIII; of Charles Mitzner as to Counts III and IX; and of Edward F. Ross as to Count III.

As to Count III, the government proved beyond question that various assaults took place on Internal Revenue officers, both on the sidewalk and street, and on the Heck premises. Five separate assaults were charged in Counts IV, V, VI, VII, VIII, and IX. The jury found a knowing assault, or resistance, or interference, was proved as to five of these six counts (i. e., found Eric Moths not guilty on Count VII).

“It is well established that in determining the sufficiency of the evidence to sustain a conviction, the evidence must be construed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60 [62 S.Ct. 457, 86 L.Ed. 680] (1942); United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969); Kaplan v. United States, 329 F.2d 561 (9th Cir. 1964); United States v. Munns, 457 F.2d 271 (9th Cir. 1972).” (Appellee’s Brief, p. 66).

Viewing the evidence most favorable to the prosecution, there is no question but that the evidence is sufficient to support each of five specific violations of the law as to Armin Moths, the three Mitzners, and Lucien B. Burnham. First there are various photographs showing assaults, interference and resistance. Next, three or more eye-witnesses testified to each assault charge. All the Mitzner defendants were observed to assault Agent Rodriquez by witnesses Wrenn (R.T. 431), Timothy Buster (R.T. 744), Robert Cotten (R.T. 521-554), and FBI Agent Maloney. The Burnham assault was observed by three agents, and the Moths’ assault was observed by three agents.

Witness Wrenn was a photographer employed by the San Diego Union-Tribune newspaper, and had been for twenty-five years. He was disinterested, unprejudiced and was observant. He saw a “scuffle” between Agent Rodriquez and Dingwald, the man Rodriquez was trying to arrest. (R.T. 409). Wrenn testified he saw the three Mitzners “beating” at Agent Rodriquez (R.T. 430), and that he had taken a picture (Gov.Ex. 7) of them “pounding” at Rodriquez’ back (R.T. 469, 432, 472) in the presence of defendant Ross. Rodriquez threw no blows. The police then arrived. (R.T. 431, 496).

The same witness, Wrenn, saw Armin Moths “throwing his arms around and kicking . . . pretty violent about it and lunging back and forth while being arrested and handcuffed.” Wrenn saw no blows thrown by the officers (R.T. 432), nor did he see any officers initiate any “scuffles”.

Wrenn also took defendants’ Ex. AB (erroneously referred to as .defendants’ Ex. AC (R.T. 464), which shows Rodriquez putting the man in the yellow sweater (Dingwald) against an automobile, while he (Rodriquez) had hold of his arms from behind, and the crowd was trying to pull him (Rodriquez) away. (R.T. 465).

Wrenn heard the four or five men who were around Heck, when he approached the door, urge him to open the door. (R.T. 492). Among these men were Hohenstein and Charles and James Mitzner.

Cotten was a “waysman” in a shipyard. (R.T. 518). He was attending South Bay Trade School on May 9, 1972, located near the defendant Heck’s place of business. He was apparently a disinterested witness. He saw a bearded man “attack” a federal agent as the latter attempted to make an arrest, and he identified the man as Steven Mitzner, and the agent as Rodriquez. Cotten saw Charles Mitzner “kneeing” Rodriquez, and James Mitzner holding Rodriquez down.

One Mitzner brother also struck an agent just after defendant Heck entered the premises. Cotten saw no agent strike any person. (Defendants’ Ex. AS).

Buster was a student at South Bay Trade School on May 9, 1972. He saw Steven Mitzner strike a special agent on his left forehead; and heard Steven Mitzner curse the agent. Buster saw James Mitzner push and shove two special agents; and saw two more people (who were not arrested) strike agents or interfere with arrests (Defendants’ Ex. BK).

The foregoing is not all the evidence in the record indicating that defendant Armin Moths “forcibly assaulted, resisted and interfered with” Meyers; that the three Mitzners did the same to Rodriquez, and that Burnham did the same to and with Dunlap. We have cited references only to disinterested testimony.

There is thus clearly sufficient testimony in the record, viewed most favorably to the government’s position as we must, to establish the guilt on the five substantive counts against Armin Moths, Burnham, and the three Mitzners.

A conspiracy is defined as a combination of two or more persons to accomplish some unlawful purpose, or some lawful purpose by unlawful means. It is a partnership for criminal purposes in which each member becomes the agent for every other member (R.T. 1790), when the conspiracy has been proven to exist, and that the person charged was one of its members.

Under this definition, the evidence clearly enables a jury to find the required joint action between the five defendants substantively charged,' and Dr. Ross and Mr. Heck. Thus a conspiracy stands proved on Count III.

We next consider the alleged errors charged, other than the sufficiency of the ‘ evidence to establish a conspiracy, and the five substantive counts. We follow the outline of the arguments contained in the government’s brief, listing points III A to III R, inclusive.

There is no need, because of our conclusion with respect to Counts I and II to consider points III A, B, or C of the government’s topical index, nor need we, in view of our conclusions as to the evidence, supra, consider further III R.

We find no necessity of answering in detail III D, that Congress has no power to delegate the collection of taxes. Appellants John R. Heck, Jr. and Eric W. Moths argue that Congress may not pass legislation delegating the power to lay and collect taxes because the Sixteenth Amendment to the Constitution lacks an enabling clause. These appellants fail to realize that the collection power was vested in Congress prior to the passing of the Sixteenth Amendment.

Congress had the power to collect taxes on income prior to the passage of the Sixteenth Amendment and to make all laws necessary for carrying into execution this power under Article 1, Section 8, Clause 18 of the Constitution. Cf. Erwin v. Cranquist, 253 F.2d 26, 27 (9th Cir. 1958), cert. denied, 356 U.S. 960, 78 S.Ct. 997, 2 L.Ed.2d 1067 (1958).

Ill E. Constitutionality of Conspiracy Statute

Title 18 U.S.C. § 371 (the conspiracy statute), has repeatedly been held constitutional. In United States v. Edwards, 458 F.2d 875, 883 n. 7 (5th Cir. 1972), the claim that such statute was unconstitutional was held “clearly without merit,” and “unworthy of comment.” “The section has been widely applied in the prosecution of frauds upon the revenue” since 1867. United States v. Gradwell, 243 U.S. 476, 481, 37 S.Ct. 407, 409, 61 L.Ed. 857 (1917). This “is a valid statute.” Cullen v. Esola, 21 F.2d 877, 879 (1927).

Ill F. Opinions as to Constitutionality

Appellant Heck had no right to express his opinion or belief that tax laws are unconstitutional in the courtroom as a witness during the trial of this ease. Unless a defendant can qualify as an expert witness, no expression of opinion alone is admissible.

“One may not disobey a law even in the good faith that it is unconstitutional and, on that ground, avoid the consequences of his act if the law is within the constitutional power of Congress.”
Warren v. United States, 177 F.2d 596, 600 (10th Cir. 1949), cert. denied, 338 U.S. 947, 70 S.Ct. 485, 94 L.Ed. 584 (1950);
Finn v. United States, 219 F.2d 894 (9th Cir. 1955), cert. denied, 349 U.S. 906, 75 S.Ct. 583, 99 L.Ed. 1242;
Harris v. United States, 412 F.2d 384, 390 (9th Cir. 1969).

Ill G. Security Measures

The trial court had the discretion to institute security measures on the last day of the trial, including the presence of United States Marshals and the use of an electric magnometer. The trial judge had (a) received veiled threats in the mail (R.T. 134 and 1779); and (b) information that a demonstration was planned for the courtroom. (R.T. 1609, 1770). Spectators had been previously admonished for their loud comments. (R.T. 279).

The trial judge did not abuse his discretion. United States v. Greenwell, 418 F.2d 846, 847 (4th Cir. 1969); Loux v. United States, 389 F.2d 911, 919 (9th Cir. 1968).

III. H. Failure to Record Grand Jury Testimony

Appellants S. Mitzner, J. Mitzner, C. Mitzner, Burnham, and Ross and A. Moths argue that the failure to record grand jury testimony constitutes reversible error. They further contend that the presentation to the Grand Jury was based upon erroneous facts.

Appellants made no timely motions before the court to have the grand jury proceedings recorded. Further, recording is permissive, not mandatory. F.R.Crim.P. Rule 6(d); United States v. Trenary, 473 F.2d 680 (9th Cir. 1973); United States v. Daras, 462 F.2d 1361 (9th Cir. 1972). In addition, appellants were afforded complete discovery and, as a result, were in no way prejudiced by the failure to record. Reyes v. United States, 417 F.2d 916 (9th Cir. 1969).

III I. Motions for Severance

In Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), this court stated:

“Joint trials of persons charged together with committing the same offense or with being accessory to its commission are the rule, rather than the exception. There is a substantial public interest in this procedure. It expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once. . . . ”

Each defendant need not have participated in every act or transaction. This is evident from the express statement in the rule that all of the defendants need not be charged in every count. Mendez v. United States, 349 F.2d 650 (9th Cir. 1965), cert. denied. 384 U.S. 1015, 86 S.Ct. 1952, 16 L.Ed.2d 1036 (1966); Williamson v. United States, 310 F.2d 192 (9th Cir. 1962). Further, a joinder in one indictment of a conspiracy count and substantive counts is permissible under Rule 8(b). Baker v. United States, 393 F.2d 604, 607 (9th Cir. 1968).

All charges in this case arose out of the same series of transactions. The events culminating in the arrests sprang forth from the demonstration in front of the Heck property. All appellants were present at the demonstration.

Ill J. Was Appellant A. Moths Denied His Sixth Amendment Right of Confrontation By the Government’s Failure to Call Agent Meyer ?

We adopt the government’s answer en toto to this argument, and find no prejudicial error.

Ill K. Hearsay Statements Are Admissible If Made By a Conspirator in Furtherance of The Conspiracy or are Admitted to Show State of Mind and Intent.

Appellants Heck and E. Moths assert that various hearsay statements should have been excluded. These statements include: (1) the testimony of Agent Clovis setting forth appellant Ross’ statement that “ . . . if I could arrest 200 people I was welcome to try” (R.T. 876, 11. 9-11); (2) the testimony of witness Timothy Buster that he overheard appellants E. Moths and A. Moths discussing the fact that someone was going to bust in the door of the Heck building (R.T. 738, 11. 8-12); (3) the testimony of Revenue Officer Williams that appellant Ross made statements about there being no death penalty in California and using force short of killing an officer to rescue seized property (R.T. 235); (4) the testimony of Agent Clovis that co-conspirator Hohenstein stated he was at the demonstration for the purpose of restoring the seized property by entering the premises (R.T. 880, 1. 21-25; 881 1. 11-15) and (5) the testimony of FBI Agent Maloney that prior to the arrival of the agents of the FBI, the Internal Revenue Service told him they had made a seizure of the Heck company (R.T. 816-817). The first four statements were made by co-conspirators. Each was properly admitted as a statement in furtherance of the conspiracy. In addition, the statements of co-conspirator Ross about arresting 200 people and the statement of co-conspirator Hohenstein are admissible for the purpose of showing state of mind and intent. The fifth statement by Agent Maloney was not offered for the truth of the matter, but merely to show why the FBI went to the Heck premises.

Hearsay statements made by a co-conspirator in furtherance of the conspiracy are admissible. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); Carbo v. United States, 314 F.2d 718, 735 (9th Cir. 1963). The appellants acknowledge that this is the law, but argue that the conspiracy must be established prior to the admission of the statements. However, it is within the trial judge’s discretion to admit the declarations and acts of an alleged co-conspirator subject to later proof of the existence of the conspiracy. United States v. Castanon, 453 F.2d 932, 934 (9th Cir. 1972); Enriquez v. United States, 314 F.2d 703, 705 (9th Cir. 1963).

Ill L. The Trial Judge Did Not Abuse His Discretion by Failing to Ask All Of the Proposed Voir Dire Questions.

It is well established that the scope of the voir dire examination and the procedures to be utilized therein are matters within the sound discretion of the trial judge, and will not be disturbed on appeal unless the procedures used or the questions propounded are so unreasonable or devoid of the constitutional purpose as to constitute an abuse of that discretion. Haslam v. United States, 431 F.2d 362, 364 (9th Cir. 1970); Rodgers v. United States, 402 F.2d 830 (9th Cir. 1968); Amsler v. United States, 381 F.2d 37 (9th Cir. 1967).

We find no abuse of discretion.

Ill M. The Trial Court is Not Required to Instruct That the Circumstantial Evidence Must be Adequate to Exclude Every Hyppthesis Except That of Guilt.

Appellant A. Moths urges this court to change its rule on circumstantial evidence and to adopt the California rule. This'court has refused this invitation on past occasions. United States v. Rojas, 458 F.2d 1355, 1356 (9th Cir. 1972); Sablan v. People of Guam, 434 F.2d 837 (9th Cir. 1970).

The proper test is not whether the evidence excludes every hypothesis except that of guilt but rather whether the trier of fact could reasonably arrive at its conclusion. United States v. Nelson, 419 F.2d 1237, 1243 (9th Cir. 1969).

Ill N. The Jury Instructions Were Proper and Complete.

We have carefully considered the objections raised to the instructions requested, but not given, and we find the judge’s instructions proper, adequate, and not erroneous, and that they sufficiently and thoroughly covered all issues when considered, as we are required to consider them, as a whole.

Ill 0. The Government did not Withhold Exculpatory Evidence.

This alleged error had to do with the government’s alleged failure to produce a photograph allegedly taken by IRS Agent Hairgrove, which allegedly shows an individual not identified as a defendant, striking Agent Rodriquez.

Appellants made no attempt to obtain this photograph at trial. Further, the photograph was among those shown to defense counsel at pretrial proceedings. While it was not specifically pointed out that this was an individual who hit Agent Rodriquez, additional individuals who hit Rodriquez, other than appellants, were described in the report, made available to the appellants prior to trial. In addition, at the trial itself, Agent Clovis asked defense counsel if he desired the photograph in question, and was given a negative reply.

Counsel for defendants brought out the fact that others hit Agent Rodriquez and argued that there was an issue of mistaken identity regarding his clients. He repeatedly emphasized the picture taken by Hairgrove. (R.T. 170.7-1709, 1714). The appellants were in no way prejudiced by not having the actual picture. As the government urges, they were convicted because of the overwhelming amount of eyewitness testimony regarding these assaults.

We consider appellants’ alleged errors III P. and III Q. to be without merit. They approach the frivolous, particularly when no objections were made by any defendant to them at the trial.

CONCLUSION

1. As to defendant Heck, we reverse his convictions on Counts I and II, and affirm his conviction on Count III.

2. As to defendant Armin Moths, we reverse his convictions on Counts I and II, and affirm his conviction on Counts III and VI.

3. As to defendant Eric Moths, we reverse his conviction on Count II.

4. As to defendant Bates, we reverse his conviction on Count II.

5. As to defendant Steven Wayne Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts II and.V.

6. As to defendant James B. Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts III and VIII.

7. As to defendant Charles Edward Mitzner, we reverse his conviction on Count I, and affirm his convictions on Counts III and IX.

8. As to defendant Lucien B. Burn-ham, we reverse his convictions on Counts III and IV.

9. As to defendant Edward F. Ross, we reverse his conviction on Count I, and affirm his conviction on Count III.

Remanded for re-sentencing on affirmed convictions, and any other required proceedings, if any.

OPINION ON PETITION FOR REHEARING AND TO MODIFY JUDGMENT

First, the various stays of mandate heretofore granted by this Court are severally vacated;

Second, the motion made by the Appellee-Government to correct this Court’s opinion, filed January 30, 1974, is granted; and the following changes are made in said printed opinion:

(1) There is added to [page 9, line 16 of] the printed opinion filed, [499 F.2d pages 786, line 47, supra, after Count III a comma, and the words “and of Lucien B. Burnham as to Counts III and IV.”

(2) The reference to “Count II”, page 17, line 31, [499 F.2d page 791, line 49, supra,] is stricken, and “Count III” is inserted.

(3) After the word “Counts”, on page 18, line 2, [499 F.2d pages 791, line 17, supra,] and before the words “HI and IV” (same line and page), there are inserted the words “I and II, and affirm his conviction on Counts III and IV.”

(4) Footnote 2, p. 3, line 19 [499 F.2d page 783, line 16, supra,] is stricken entirely, and inserted in its place is “Counts I and III and V, but not guilty-on Count II.”

Third, we find no merit in the Petition for Rehearing filed on behalf of the three Mitzners and Burnham; and we deny it in every respect.

Mr. Bauman refuses to recognize that ;the indictment, in Counts III et seq., while referring to the I.R.S. Agents’ and officers’ “responsibility for the protection of seized property” charges only an assault under 18 U.S.C. § 111; and in Count III only, a conspiracy to assault in violation of 18 U.S.C. § 111.

Further, the statute (§ 111) not only protects the person named in § 1114 of Title 18 who “engaged in the performance of his official duties,” but also protects those assaulted “on account of the performance of his official duties.” (18 U.S.C. § 111 and § 1114). Certainly each officer assaulted was so assaulted “on account of . his official duties.”

While the alternative “on account of” language of the statute was not included in Count III, et seq., the language used in indictment Counts IV to IX specifically followed the language of the statute, and sufficiently charge the acts complained of. They fully apprise defendants of the charges against them; and would prevent a second trial against them for the same acts, i. e., no double jeopardy could exist.

See United States v. Chunn, 347 F.2d 717, 720 (4th Cir. 1965) which quotes United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922) (and later Supreme Court cases in note 7), and further states that the allegation which describes the person assaulted “as having been engaged in the performance of his official duties” is surplusage.

“Thus, the indictment is sufficient without this phrase, and we consider such statement to be surplusage which may be ignored as a useless, innocuous averment. See Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927); Bary v. United States, 292 F.2d 53 (10th Cir. 1961); United States v. Vazquez, 319 F.2d 381 (3rd Cir. 1963).”
United States v. Chunn, supra, at 721.

We likewise classify as surplusage the government’s allegation that the officers “were responsible for the protection of seized (personal) property.”

Sub silentio, our opinion inferentially ruled that 26 U.S.C. § 6331 was constitutional. We now specifically so hold.

“There is obviously an imperative public interest in favor of the prompt collection of delinquencies. But manifestly it cannot be validly considered an overriding policy in any particular situation unless Congress has so demonstrated its intention.”
United States v. Sullivan, 333 F.2d 100, 119 (3rd Cir. 1974); Phillips v. Commissioner, 283 U.S. 589 at 595, 51 S.Ct. 608, 75 L.Ed. 1289 (1930).
“[T]axes are the life-blood of government, and their prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection.”
Bull v. United States, 295 U.S. 247, 259-260, 55 S.Ct. 695, 79 L.Ed. 1421 (1935), quoted in Perez v. Ledesma, 401 U.S. 82, 127, note 17, 91 S.Ct. 674, 698, 27 L.Ed.2d 701 (1971).
“There are ‘extraordinary situations’ that justify postponing notice and opportunity for a hearing. Boddie v. Connecticut, 401 U.S. 371, at 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113. These situations, however, must be truly unusual. Only in a few limited situations has this Court allowed outright seizure without opportunity for a prior hearing. First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, . . ”
Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 1999, 32 L.Ed.2d 556 (1972) citing Phillips v. Commissioner, supra, in note 24. See Mitchell v. Grant, 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (decided May 13, 1974). (The Fuentes language quoted is not overruled or affected by the Mitchell case.)

In Sandnes’ Sons, Inc. v. United States, 462 F.2d 1388, 1392, 199 Ct.Cl. 107 (1972), it was pointed out that in Fuentes v. Shevin, supra, “the Court expressly excludes revenue collection procedures from the scope of its decision.”

Thus, no part of § 6331 has been declared unconstitutional, and none of the cases cited by Mr. Bauman, either in his original brief or in his Petition for Rehearing, convince us that we can ignore the Phillips case, for there is here the precise, rare and extraordinary situation “where some valid government interest is at stake” that permits the deprivation of a protected interest — i. e., a prior hearing, and “justifies postponing the hearing until after the event.” Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971) cited in Board of Regents v. Roth, 408 U.S. 564, 570, note 7, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972).

Fourth, we find no merit in the Petition for Rehearing filed on behalf of defendant Heck, and we deny it. His petition cites only to his breaking his glass door with a rock. His written “demand” and oral statements were sufficient, however, to show he was a co-conspirator to cause a confrontation with, and if necessary, an assault on, the officers.

Fifth, we find no merit in the Petition for Rehearing filed on behalf of Ar-min R. Moths. It first relies on Mitzner’s and Burnham’s Petition, hereinbefore discussed. It also raises the question as to whether there was proof Moths knew of the official capacity of the person assaulted, i. e., he suggests no criminal intent existed. Much reliance was placed by Moths on United States v. Rybicki, 403 F.2d 599 (Sixth Circuit 1968). However, the facts in Rybicki were totally different than those here present, in that Rybicki was a veteran who had received injuries in the Korean War, has previously been “annually hospitalized for from three to four months,” and was then “regularly prescribed a tranquilizer to slow me down a bit.” The court reciting the above and more, then said, “The law and the special facts of this case persuade us to reverse.” 403 F.2d at 604. (Emphasis added.)

We rely on United States v. Kartman, 417 F.2d 893, 894 (1969); McEwen v. United States, 390 F.2d 47 (9th Cir. 1968); and United States v. James, 464 F.2d 1228, 1230 (9th Cir. 1972); where all judges cited and relied upon the McEwen case, supra at 50, which rejected the earlier cases, and described the rationale of why “knowledge that such person is a federal officer” was not a necessary element of 18 U.S.C. § 111-

See cases listed in U.S.C.A. (18 U.S.C. § 111, note 5), and particularly United States v. Chunn, 347 F.2d 717 (4th Cir. 1965), and cases collected (note 13).

Sixth, we find no merit in the Petition for Rehearing filed by appellant Edward F. Ross, appearing in pro per. We deny it.

Mr. Ross attacks the rule of law that “in determining the sufficiency of the evidence to sustain a conviction, the evidence must be construed by the appellate court in the light most favorable to the government.” Citing no cases, he asserts that such a rule violates the United States Constitution. There is no such rule in the trial court, but scores of Supreme Court cases and hundreds of Courts of Appeal decisions have affirmed the rule here urged by the government, and followed, without deviation, by all Federal Appellate Courts. It is, as lawyers state, horn-book law.

Seventh, no Petition for Rehearing having been sought by defendant Bates, or Eric Moths, no action with respect to them is required.

All Petitions for Rehearing having been denied, and our opinion having been modified as set forth hereinabove, let the mandate issue forthwith.

      . The court instructed the jury, after reading part of 26 U.S.C. § 7212(b) :
      “The property seized in this case is only that described in Exhibits 13, 14 and 15.”
      These documents are lists of auto trucks, tractors or vans, valued at $400.00, and office furnishings, valued at $91.00.

      . Defendant Erie C. Moths was found guilty on Count II and not guilty on Counts I, III, and VII. The defendant Christopher R. Bates was found guilty on Count II, and not guilty on Counts I and III.

        Defendant Steven W. Mitzner was found guilty of Counts I, III and V, but not guilty on Count II.
      Defendant James B. Mitzner was found guilty on Counts I, III, and VIII; not guilty on Count II.
      Defendant Charles E. Mitzner was found guilty on Counts I, III, and IX, and not guilty on Count II.
      Defendant Lucien B. Burnham was found guilty on Counts I, II, III, and IV.
      Defendant Edward F. Boss was found guilty on Counts I and III and not guilty on Count II.
      Defendant Dingwald was granted a severance of his trial by the trial court. Thus we need not consider herein Count X.
      Defendant Hohenstein was found guilty but granted a new trial by the trial court.

      . See note 3 on page 783.

        3. The defendant Burnham was sentenced on Counts I to Count VI, a fine of $1,000, but imposition of sentence of imprisonment was suspended and the defendant placed on probation for a period of three years. His sentence on Count II was made concurrent with Count I with a fine of $500. His sentences on Counts II and IV were concurrent with each other and concurrent with I, and the court fixed the fine at $1,000.
      The sentence of James B. Mitzner, found guilty on Counts I, III, and VIII was the same as defendant Burnham’s, $250, all counts concurrent.
      The sentence of Eric C. Moths, found guilty on Counts I and III was similar to defendant Burnham’s with a fine of $1,000 concurrent as to each count.
      The sentence of Charles E. Mitzner, who was found guilty of Counts I, III, and IV, was similar to Burnham’s with a fine of $1,000 concurrent as to each count.
      The sentence of Steven W. Mitzner, who was found guilty on Counts I, III, and V, was similar to that of defendant Burnham’s all counts were concurrent with each other.
      The defendant Christopher B. Bates was found guilty on Count II, fined $50; sen-fence of imprisonment suspended, and six months’ probation granted without supervision.
      The sentence of defendant Eric C. Moths, who was found guilty on Count II, was similar to that of defendant Bates.
      The sentence of Armin Moths, who was found guilty on Counts I, II, III, and VI; was fined $1,000 on Count I; imposition of imprisonment was suspended and probation for three years was granted with a $500 fine on Count II, concurrent with Count I; and Counts III and VI concurrent with Count I and each other.
      The defendant Heck was found guilty on Counts I, II, and III, and sentenced to a $1,000 fine, imposition of imprisonment was suspended, and three years’ probation was granted. Count II was ordered concurrent with Count I with a fine of $500, and Count II was sentenced concurrent with Count I, with a fine of $1,000.

      . B.T., p. 1795, line 24, et seq.

      . Shepardizing the Cooper case is of some, but litle help. But one recent case is cited, United States v. Scolnick, 392 F.2d 320 (3rd Cir. 1968). The government refers to Scolnick as authority for the proposition that the validity of .the government lien was irrelevant, as the district court instructed the jury. Quoting from Scolnick at page 326, the government suggests that their position finds support in this language:
      “. . . The necessary premise for defendant’s assertions is that they are relevant factors in a trial where a defendant is charged with the criminal offense of rescuing property seized by the Service under the circumstances herein stated. . . . To permit such issues to be raised in connection with a prosecution under these statutes would be to encourage violent self help where' civil remedies are admittedly available. . . .” (Emphasis added.)

        But the circumstances stated in Scolnick are not the circumstances found herein. The headnotes in Scolnick state in part:
      “6. Fact that evidence is illegally obtained exclusively by state officers does not automatically preclude its use in federal criminal trials.”
      “8. Federal officers are not required to comply with state statutes relating to searches of safety deposit boxes in order for evidence found therein to be admissible in federal prosecution.”
      “16. Once government has seized property belonging to defendant it has interest in such property so that defendant who takes such property from government’s possession could be found guilty of rescuing property seized by the government.”

      . “The relevant facts adduced in the record indicate Oliver owed prior transportation taxes on his truck for two separate years. After consultation with an I.R.S. agent, Oliver signed a tax report showing the tax due and transmitted it to the proper office. Payment did not accompany the tax return because Oliver was unemployed and without funds to transmit to the I.R.S. During several intervening months there were discussions between the I.R.S. and Oliver relative to the delinquency. It is agreed that Oliver disclosed and I.R.S. knew there were two vehicles unencumbered which could be levied upon for payment of the tax.
      “On September 5, 1968, the I.R.S. levied on wages then due from Oliver’s employer, searched for a bank account in Oliver’s hometown, and seized one of the vehicles. The agents marked the seized vehicle with a seizure sticker and tags and hired a tow truck to tow the vehicle to a location where it would be impounded while notice and sale were accomplished.
      “While the I.R.S. agents were in the process of towing the vehicle from Oliver’s home to the place where it would be impounded, Oliver came upon them, stopped the tow truck, and rescued the vehicle. He returned the vehicle to his home, later moving it to a neighbor’s lot for safekeeping.”
      United States v. Oliver, supra, at 1036.

      . “On December 14, 1967 a revenue agent went to the defendant’s home to attempt to collect $1,990.83 in back taxes. The agent had a levy for four assessments. After discussion with the defendant and a refusal to pay, the agent attempted to execute the levy by -seizing the defendant’s two Cadillacs. The defendant physically interfered and prevented the seizure. The defendant was sub-, sequently charged with violating 18 U.S.C. § 2232 which provides:
      ‘Whoever, before, during, or after seizure of any property by any person authorized to make searches and seizures, in order to prevent the seizure of securing of any goods, wares or merchandise by such person, staves, breaks, throws overboard, destroys, or removes the same shall be sj< * * f a

      . The only overt act charged against defendants other than defendant Heck in Count I was .that they “traveled” to the vicinity of 2165 Newton Avenue, San Diego, California.

      . “Appellant A. Moths was found guilty in Count Six of assaulting and interfering with Special Agent Robert Meyer. During the trial, Agents Dunlap (R.T. 974), Zarndt (R.T. 1045), and Graham (R.T. 1064) all testified that they observed A. Moths assault Agent Meyer. Agent Meyer did not testify. His testimony was originally scheduled for rebuttal, but when the defense testimony did not weaken the government’s case, the decision was made not to call Agent Meyer. This would have only prolonged the two-week trial being held during the Christmas holiday season. No attempt was ever made by any appellant to subpoena Agent Meyer.
      “The Confrontation Clause requires that an adequate opportunity for cross-examination exists. This may be satisfied even in the absence of physical confrontation. Douglas v. Alabama, 380 U.S. 415, 418 [85 S.Ct. 1074, 13 L.Ed.2d 934] (1964).
      “A defendant lias no right to confront a ‘witness’ who provides no evidence at trial. United States ex rel. Meadows v. New York, 426 F.2d 1176, 1184 (2d Cir. 1970); United States v. Russell, 282 F.Supp. 106, 112 (E.D.Pa.1968). Nor is the government required to call all of the witnesses to a crime. Rivera v. United States, 318 F.2d 606, 607 (9th Cir. 1963); United States v. Mosby, 422 F.2d 72, 74 (8th Cir. 1970).
      “Appellant could have called Agent Meyer if he had desired to do so. His right of confrontation was satisfied by this available opportunity. There is no evidence to indicate that the failure of the government to call Meyer was induced by any improper motive. His testimony would have been cumulative and the government was not required to call him.” (Government Brief, at 45 and 46).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles Jason QUINN, Appellant, v. UNITED STATES of America, Appellees.
    No. 74-1118.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1974.
    Decided July 9, 1974.
    Charles Jason Quinn, filed typewritten brief pro se.
    William F. Clayton, U. S. Atty., and David R. Gienapp and Edward Carpenter, Asst. U. S. Attys., Sioux Falls, S. D., for appellees.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

This is an appeal from the district court’s order denying Charles Jason Quinn’s 28 U.S.C. § 2255 motion to vacate his sentence imposed for violation of 18 U.S.C. § 1153 and § 661. That conviction was affirmed by this Court on appeal in United States v. Quinn, 467 F.2d 624 (8th Cir. 1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1390, 35 L.Ed.2d 599 (1973). Quinn’s post conviction attack on his sentence relates solely to the second count of the indictment which charged him with unlawfully taking and carrying away, with intent to steal or purloin, the personal property of another of the value of more than $100, in violation of .18 U.S.C. § 1153 and § 661. Quinn asserts in his § 2255 motion that he was deprived of an instruction for a lesser included offense contrary to the dictates of Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). Although the events occurred and the conviction was rendered prior to the date of the Keeble decision, Quinn asserts that Keeble should be applied retroactively and that, because he received no lesser included offense instruction, his sentence should be vacated. We have already determined that the principle announced in the Keeble decision would not receive full retroactive effect in this circuit. United States v. Grant, 489 F.2d 27, 33 (8th Cir. 1973). However, we affirm the district court order denying Quinn’s § 2255 motion for another reason.

We have recently reiterated that

[t] he Supreme Court has recognized four grounds properly within the scope of a motion under 28 U.S.C. § 2255:
(1) “that the sentence was imposed in violation of the Constitution or laws of the United States,” (2) “that the court was without jurisdiction to impose such sentence,” (3) “that the sentence was in excess of the maximum authorized by law,” and (4) “that the sentence is otherwise subject to collateral attack.”
Hill v. United States, 368 U.S. 424, 426-427 [82 S.Ct. 468, 7 L.Ed.2d 417] (1962). The writ is not designed for collateral review of errors of law committed by the trial court such as errors in trial procedure which do not cross the jurisdictional line. Sunal v. Large, 332 U.S. 174, 179 [67 S.Ct. 1588, 91 L.Ed. 1982] (1947). . . . However, constiturtional defects in the process are cognizable under a § 2255 motion. Kaufman v. United States, 394 U.S. 217, 222 [89 S.Ct. 1068, 22 L.Ed.2d 227] (1969). Accordingly, . . . only where a sentence is void or otherwise subject to collateral attack [does] § 2255 [afford] a remedy.

Jackson v. United States, 495 F.2d 349 (8th Cir. 1974). Collateral attacks, of course, are authorized where a jurisdictional or constitutional error is of the magnitude that there has been a denial of a fair trial. Hill v. United States, supra, 368 U.S. at 428, 82 S.Ct. 468; Franano v. United States, 303 F.2d 470, 472 (8th Cir.), cert. denied, 371 U.S. 865, 83 S.Ct. 125, 9 L.Ed.2d 102 (1962); 2 C. Wright, Federal Practice and Procedure § 5á3 at 591 (1969). The claimed error need not have its source in the Constitution, but a collateral attack may be maintained if the prisoner is in custody in violation of the laws of the United States. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). The appropriate inquiry is whether the claimed error was a “fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, supra, 368 U.S. at 428, 82 S.Ct. at 471. Under these standards, Quinn is not entitled to relief.

Quinn was tried in federal court under the jurisdictional grant of the Major Crimes Act, 18 U.S.C. § 3242. The penalty provisions for the Major Crimes Act are set forth in 18 U.S.C. § 1153. It provides, in part:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

Id. Of the above enumerated offenses, some are defined, others defined and punished, in accordance with the laws of the State in which the offense was committed. The remaining enumerated offenses are subject to the same laws and penalties as all other persons com.mitting any of the offenses within the exclusive jurisdiction of the United States. Larceny is one such offense and it is defined by 18 U.S.C. § 661 as follows : ■

Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows:
If the property taken is of a value exceeding $100, or is taken from the person of another, by a fine of not more than $5,000, or imprisonment for not more than five years, or both; in all other cases, by a fine of not more than $1,000 or by imprisonment not more than one year, or both.
******

Taking property valued at less than $100 is therefore within the definition of the substantive crime of larceny; it is a crime in the exclusive jurisdiction of the United States; and it is a crime cognizable under 18 U.S.C. § 1153 when committed by an Indian in Indian country. This then is not a case to which Keeble is applicable where “an Indian prosecuted under the Act . . . [sought] a jury instruction on a lesser included offense where that lesser offense [was] not one of the crimes enumerated in the Act.” Keeble v. United States, supra, 412 U.S. at 206, 93 S.Ct. at 1994. The substantive offense here was enumerated in the Act by virtue of the incorporated definition of 18 U.S.C. § 661. Quinn was at all times entitled to the lesser offense instruction for a violation of that section. See Larson v. United States, 296 F.2d 80 (10th Cir. 1961).

To entitle a defendant to a lesser included offense instruction, however, a proper request must be made. United States v. Thompson, 492 F.2d 359, 362 (8th Cir. 1974). Here, the defense counsel did not object to the court’s proposed instructions in chambers; he did not submit any request for a lesser included offense instruction. Rather, he acquiesced in the instructions as delivered to the jury. Quinn’s failure to request the lesser offense instruction cannot be characterized as a constitutional deprivation on a theory that there was recent and unequivocal authority in this circuit denying precisely the instruction sought which would render futile a request. Such a situation permitted us to excuse a failure to request a lesser offense instruction in United States v. Grant, supra, 489 F.2d at 29-30. Kills Crow v. United States, 451 F.2d 323, 325 (8th Cir. 1971), cert. denied, 405 U.S. 999, 92 S.Ct. 1262, 31 L.Ed.2d 467 (1972), the unequivocal and contrary authority referred to in Grant, ultimately reversed by the Supreme Court in Keeble, did not purport to deal with federally defined offenses. To the contrary, Kills Crow disallowed a lesser offense instruction where the major crime was federally cognizable, yet the lesser included offense as defined by state law was not enumerated in the Act and was therefore thought to be outside the jurisdiction of the federal courts. That is not the case here. Kills Crow never altered the necessity to request a lesser offense instruction where the lesser offense was cognizable at federal law and was enumerated in the Act. Keeble does not represent an intervening change in the substantive law which governed Quinn’s right to a lesser included offense instruction.

F.R.Crim.P. 30 provides, in part:

No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.

Quinn’s noncompliance with Rule 30 is a trial error not properly within the scope of collateral attack. Weaver v. United States, 418 F.2d 475, 476 (8th Cir. 1969). 28 U.S.C. § 2255 affords no remedy for such an error. See Jackson v. United States, supra.

For the reasons hereinbefore expressed, the judgment of the district court is affirmed.

      . Rape and assault with intent to commit rape. 18 U.S.C. § 1153.

      . Burglary, assault with a dangerous weapon, assault resulting in serious bodily injury, and incest. 18 U.S.C. § 1153. Within this group of offenses was the offense for which Keeble was tried and convicted.


author: SWYGERT, Chief Judg.e.

text:
    Lincoln Theodore PERRY, Plaintiff-Appellant, v. COLUMBIA BROADCASTING SYSTEM, INC., et al., Defendants-Appellees.
    No. 72-1905.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 28, 1973.
    Decided March 12, 1974.
    Certiorari Denied Oct. 15, 1974.
    See 95 S.Ct. 150.

      John D. Raikos, Indianapolis, Ind., for plaintiff-appellant.
    Thomas M. Scanlon, Indianapolis, Ind., for defendants-appellees.
    Before SWYGERT, Chief Judge, O’SULLIVAN, Senior Circuit Judge, and STEVENS, Circuit Judge.

       Senior Circuit Judge CLIFFORD O’SULLIVAN of the Sixth Circuit is sitting by designation.

   SWYGERT, Chief Judg.e.

Lincoln Theodore Perry appeals from the ■ district court’s grant of summary judgment for the defendants. Perry, an Illinois resident, brought suit against the Columbia Broadcasting System, Inc. (CBS), Xerox Corporation, and Twentieth Century-Fox Film Corporation, all incorporated in New York and doing business in Indiana, and the Indiana Broadcasting Corporation, an Indiana corporation which owned and operated WISH-TV, a television station in Indianapolis. The district court had jurisdiction under 28 U.S.C. § 1332.

Perry is a professional movie actor and entertainer nationally known by his stage name, Stepin Fetchit. CBS developed and broadcast a series of seven telecasts entitled “Of Black America.” The series was broadcast nationally by CBS, sponsored by Xerox, and shown locally on WISH-TV. “Of Black America” dealt with the history, culture, and experience of Negroes in the United States. The first telecast in the series was entitled “Black History: Lost, Stolen, or Strayed” and was broadcast nationally on July 16, 1968 and rebroadcast on July 23, 1968. It is this telecast that is the subject of the litigation.

“Black .History: Lost, Stolen, or Strayed” was written by CBS staff and narrated by Bill Cosby, a nationally known black entertainer. According to the district court’s findings the telecast “described how badly the Negro had been portrayed in the history books, the movies, and other facets of life in the United States.”

In the preface of the segment of the telecast which dealt with the treatment of Negroes in movies, Bill Cosby stated:

In the past fifty years, 33,000 feature films have been made in the United States, and about 6,000 of them have had parts for black actors. For the most part, the black portraits have been drawn by white writers, white producers, and white directors for a white audience.
Most black parts were the way white Americans wanted them to be. The black male was consistently shown as nobody, nothing. He had no qualities that could be admired by any man, or more particularly, by any woman.

Famous black actors mentioned in the movie segment included Bert Williams, Bill “Bojangles” Robinson, Willie Best, and Perry. The section dealing with Perry included film clips from movies that Perry had made interspersed with the following narrative commentary by Cosby:

The tradition of the lazy, stupid, crap-shooting, chicken-stealing idiot was popularized by an actor named Lincoln Theodore Monroe Andrew Perry. The cat made two million dollars in five years in the middle thirties. And everyone who ever saw a movie laughed at- — Stepin Fetchit.
*■■****•*
It’s toó bad he was as good at it as he was. The character he played was planted in a lot of people’s heads and they remember it the rest of their lives as clear as an auto accident.
-X -X X X -X -X
He played in movies with other actors who were as American as Mom’s raspberry jello. If they accepted the stereotype, how wrong could it be?

The thrust of Perry’s complaint was that the “ [d] efendants, without plaintiff’s permission or consent to use either his real name or take parts out of context, intentionally violated plaintiff’s right of privacy and maliciously depicted plaintiff as a tool of the white man who betrayed the members of his race and earned two million dollars portraying Negroes as inferior human beings.” The district court after finding no genuine issue on any material fact concluded that there was neither a defamation of Perry nor an invasion of his privacy in the telecast. A second basis for its ruling was the conclusion that defendants had a constitutional right to comment on Perry since he was a public figure involved in issues of public interest and since there was no evidence that the telecast was made with knowledge of falsity or with reckless disregard of the truth.

I

The first question is whether there was defamation. Perry contends that Cosby’s statement was false in that he was neither lazy nor stupid, that the characters he portrayed in the movies never shot craps or stole chickens, and that he never made two million dollars during the middle nineteen-thirties. The record shows that, first, Cosby did not say that Perry was lazy or stupid but that the characters he portrayed represented such a “tradition.” Second, the commentary did not state that Perry shot craps or stole chickens. Third, Perry was himself responsible for the erroneous two million dollar figure. He fostered the story and allowed it to circulate publicly so that he could be given credit for being a millionaire and also for setting an example that Negroes are millionaires. He is estopped now to point out its falsity.

Perry also contends that a jury could reasonably have concluded from the narrative that he had been charged with selling out his race by accepting two million dollars for portraying black people as “lazy, stupid, crap-shooting, chicken-stealing idiot[s].” Under Indiana law, which controls in this diversity action, a statement may be defamatory when it is such as would tend to hold the plaintiff up to hatred, contempt, or ridicule, or when it causes him to be shunned or avoided or tends to injure him in his profession, trade, or calling. Prosser v. Callis, 117 Ind. 105, 107-108, 19 N.E. 735, 736 (1889). Under this definition, the charge that Perry sold out the other members of his race would be a defamation.

The defendants deny such a meaning to the words and argue that the “blame for the roles was squarely placed by the telecast upon the whites who wrote, produced and directed them.” We agree with the defendants that' white directors, producers, and writers were blamed in the telecast for creating the role, but this does not exclude the construction that Perry has placed on the words in issue. We agree that a jury could have found the intended meaning of the commentary was that Perry had sold out his race for money. A different but innocent construction, however, that could reasonably have been drawn was that Perry’s excellent character portrayal reinforced the stereotype view that many white persons had of blacks during the nineteen-thirties and that white moviegoers were willing to pay two million dollars for that reinforcement. “If the words [such as here in issue] are capable of two constructions, one of which would be innocent, still it [is] a matter of fact to be determined by the jury, whether they be used in an innocent sense or otherwise.” Waugh v. Waugh, 47 Ind. 580, 585 (1874).

Furthermore, in the event the jury found that a defamatory construction of the words was intended, they would then have to determine whether the intended meaning — that Perry had sold out his race — was true or false. No action would lie if that construction was true.

II

The next question is whether there was an invasion of Perry’s privacy. Cosby’s commentary dealt with two matters, the character that Perry portrayed in the movies he made and the making of two million dollars for acting in those roles. Perry was not a private citizen; he had been extensively exposed to the public. He began performing in southern minstrel shows, moved to vaudeville, and then in 1925 appeared in the movies. He was in at least thirty-three movies in the 1920’s and 1930’s. His last picture prior to the alleged invasion of privacy was in 1938. However he continued from 1938 to 1968 in show business entertaining at picture clubs, fairs, radio shows, road shows, night clubs, opera houses, supper clubs, minstrel shows, vaudeville, medicine shows, Broadway shows, and on television. Perry complains that the “Black History” telecast has injured his professional reputation as an actor and caused Mu-hammed Ali and others to shun him. He also contends that the damage to his professional reputation caused him to lose the television role of “Sanford and Son.”

Perry himself summed up his notoriety as Stepin Fetchit in a deposition:

I became a household word. I elevated the Negro and I became a Hollywood motion picture star, and this was during the time that a Negro couldn’t ride in the front of a bus, couldn’t go in no white restaurants, in' no white hotels. This was north and south, California, and everyplace.

Thus Perry by his own admission was a public figure. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (an athletic director); Cepeda v. Cowles Magazines and Broadcasting, Inc., 392 F.2d 417 (9th Cir.), cert. denied, 393 U.S. 840, 89 S.Ct. 117, 21 L.Ed.2d 110 (1968) (a professional baseball player); Time, Inc. v. Johnston, 448 F.2d 378 (4th Cir. 1971) (a professional basketball player turned coach).

A collateral question is whether the commentary, although about a public figure, concerned any element of Perry’s private life which might have amounted to an invasion of privacy. Cosby’s comments dealing with the stereotype created by Perry dealt with his public role as an actor, not with his private life. The comments concerning the two million dollars Perry had made in his acting career during the nineteen-thirties did not concern Perry’s private life. Perry denied having made that much money and contends that it was erroneous to state otherwise. Perry however cannot complain now of the error since he is the one who initiated that misstatement.

Perry also -contends that there was an invasion of his privacy when only excerpts rather than the full length of his movies were shown. Perry agrees that it would not have been an invasion of his privacy to show the whole film. There was no invasion when only a portion of the film was shown. Perry, as we have earlier noted, was a public figure. The subject with which the telecast dealt, the stereotype, and erroneous characterization of Negroes in film, was a matter of public interest. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967).

Lastly Perry contends that it was an invasion of privacy to comment on his acting role in movies during the 1930’s since he had not made a movie since 1938. It is not necessary in this appeal to deal with the question whether a lapse of time will restore a public figure to the status of a private citizen. Perry continued to be a public figure at the time of the broadcast. He may not have had the breadth of national fame with which he was earlier associated, but he was still active in show business and was being considered for the star role in a television series as well as for the subject of a movie about his life.

Ill

The remaining question in this appeal is whether the defendants were privileged in commenting upon Perry’s movie roles as Stepin Fetchit and the money that he made for his performances. The district court found that Perry was a public figure and that the issue of the treatment of Negroes in American movies was of interest to the public. As we earlier noted, we agree.

In New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686 (1964), the Supreme Court held that the First Amendment’s protection of freedom of expression prohibited “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” This standard was later extended to issues of public interest. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), and to comments about public figures, Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967).

Perry argues that the New York Times standard does not apply in this case since this was not a news program but a show made for profit as well as to foster militancy among blacks. The Supreme Court rejected the commercial argument in the New York Times"case. The defamation there was a full page advertisement. “That the Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold.” 376 U.S. at 266, 84 S.Ct. at 718. This proposition is equally applicable to motion pictures, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), and telecasts, United Medical Laboratories v. Columbia Broadcasting System, 404 F.2d 706 (9th Cir. 1968), cert. denied, 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969). Perry’s second point is that the telecast encouraged “black militancy as a solution to future black problems” and that “[b]laek militancy is not an acceptable solution to either black, white, or mixed jury.” Freedom of expression does not mean freedom to express only approved ideas, it means freedom to express any idea. “The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and beliefs which are offered.' N. A. A. C. P. v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405.” New York Times Co. v. Sullivan, 376 U.S. at 271, 84 S.Ct. at 721.

Perry also contends without authority that even if CBS and WISH are protected by New York Times, it does not apply to Xerox which sponsored the telecast. To follow this logic would leave the First Amendment a meaning1 less phrase in most areas of the media. It would result in advertisers in magazines, newspapers, and television being sued for statements in which they had no hand. The free and robust debate fostered by the Constitution would quickly wither at the hands of censors for advertisers. “The effect would be to shackle the First Amendment in its attempt to secure ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” New York Times Co. v. Sullivan, 376 U.S. at 266, 84 S.Ct. at 718.

Finally, Perry argues that there was evidence of actual malice in the production of the telecast. The trial judge made lengthy findings as to the detailed research that went into the production of this television series and found the evidence to be uncontradicted that the defendants had no knowledge of any falsity nor did they act in reckless disregard of the truth. Perry has shown us nothing to refute those findings.

The grant of summary judgment for the defendants is affirmed.

      . Twentieth Century-Fox was dismissed from the case on Perry’s own motion.

      . Perry’s contention here is confused with an argument that there has been a violation of his contract and copyright rights in showing only excerpts from his films, No action was alleged in the complaint on these theories.

      . After several years of major riots in the ghettoes of the cities, the National Advisory Commission on Civil Disorders was established to investigate the causes of the upheavals. One of the resulting recommendations was to the media to deal with the problem of race relations in this country.
      In short, the news media must find ways of exploring the problems of the Negro and the ghetto more deeply and more meaningfully. To the editors who say “we have run thousands of inches on the ghetto which nobody reads” and to television executives who bemoan scores of under-watched documentaries, we say: find more ways of telling this story, for it is a story you, as journalists, must tell — honestly, realistically, and imaginatively. It is the responsibility of the news media to tell the story of race relations in America, and with notable exceptions the media have not yet turned to the task with the wisdom, sensitivity, and expertise it demands. Report of National Advisory Commission on Civil Disorders (1968), at p. 384.

      . Prosser, Torts 827-28 (4th ed. 1971).


author: BOREMAN, Senior Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Edward Junior CLARK, Appellant.
    No. 73-2420.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1974.
    Decided July 9, 1974.

      Walter H. Bennett, Jr., Charlotte, N. C., for appellant.
    David B. Sentelle, Asst. U. S. Atty. (Keith S. Snyder, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and FIELD, Circuit Judge.
   BOREMAN, Senior Circuit Judge:

On June 7, 1973, the West Branch of the Northwestern Bank of Charlotte, North Carolina, was robbed. The robber, wearing a halloween mask that covered his entire head, carried a “walkietalkie” and a .537 magnum pistol. A sum of $16,861.00 was taken from a bank, its deposits being insured by the Federal Deposit Insurance Corporation. Police pursued the robber as he drove away from the scene and eventually arrested him. He was later identified as Fancy English, Jr. Upon arresting English the police recovered all of the stolen money, including “bait money.” English informed the authorities that Edward Junior Clark (the appellant here) had aided him in the robbery. According to English, Clark was stationed in a second getaway car near the bank and had a “walkie-talkie” for the purpose of communicating warnings to English during the robbery. Clark, a bus driver for Charlotte Coachline, was stopped by F.B.I. agents while driving his regular route on June 8, 1973. Armed with an arrest warrant, the agents took Clark into custody,, told him he was a suspect in the bank robbery and informed him of his rights. Clark, although declaring that it must be a mistake, said he did not wish to make a statement. He was taken to the U. S. District Courthouse in Charlotte to appear before a U. S. Magistrate for a bond hearing and a determination of indigency. Bond was set at $5,000.00 and it was determined that Clark was not entitled to court-appointed counsel as an indigent.

After the hearing, at approximately 4:30 p. m. on June 8, Clark was confronted by F.B.I. agents Kenny and Willis. After informing him they wished to interview him concerning the robbery of June 7, Kenny advised Clark of his rights by reading aloud a form entitled “Advice of Rights, Waiver of Rights.” Clark then read the form to himself and said, “I had better talk to a lawyer.” The agents announced that such a request effectively ended the interview. Once again Clark declared that the arrest was a mistake and that he knew nothing about the robbery. The agents left at 4:50 p. m. and the U. S. Marshal transported Clark to the county jail.

At 8:00 p. m. on the same day, June 8, agents Kenny and Willis went to the jail to fingerprint Clark. The three were in a small rectangular room with no one else present. Agent Kenny, who admits that he was the initiator of a conversation concerning interrogation, asked Clark to submit to further questioning regarding the bank robbery. Even though the agents knew that Clark only four hours earlier had expressed the desire for the advice of counsel and that he had no attorney as yet, they continued their efforts to persuade him to answer their questions. When Clark persisted with his claim of mistake agent Kenny made the following statement:

“If, in fact, you have nothing to do with any of this, you have nothing to fear from us. In other words, you have nothing to lose. On the other hand, if you are involved, then it will come around you.”

Next the officers told Clark that his friend, English, had made serious allegations against him in a confession. Although agent Kenny stated that he could not recall with certainty, he admitted that in all likelihood he stated that Clark would be better off if he told the truth. The agents read Clark his rights from the waiver form and had him read them again. Clark refused to sign a waiver of his rights but did consent verbally to submit to questioning without an attorney present. Interrogation commenced sometime after 8:00 p. m. and continued until 8:56 p. m. The statement taken from Clark implicated him in the bank robbery, as an accomplice of English.

During the interrogation on the night of June 8, Clark asked if he could have court-appointed counsel represent him at an upcoming lineup. Agent Kenny-agreed to talk to the U. S. Magistrate or the Judge about the matter. Thereafter the U. S. Attorney told Kenny that it was impossible for Clark to have court-appointed counsel and that Clark had previously been so informed by the Magistrate. Kenny failed to relay the substance of this discussion to Clark. Prior to June 16, 1973, a lineup was scheduled, but it was canceled since Clark had not yet retained the services of an attorney. Although the authorities were aware that Clark had a right to be represented by counsel at the lineup they thought, so they testified, that the counsel issue was being employed by Clark as a delaying tactic. Consequently on June 16, 1973, the lineup was held; Clark was not represented by counsel. The lineup consisted of Clark and English, both black, three other black males and one white male. The lineup was viewed by M. J. Mitchell, owner of a novelty and gift shop, who identified Clark as one of two men who had been shopping for a mask similar to the one used in the bank robbery.

On July 3, 1973, the Grand Jury returned a multi-count indictment against English and Clark in which Clark was charged with the offense of aiding and abetting English in the armed robbery of the bank in violation of 18 U.S.C. § 2113(a), (b) and (d) and 18 U.S.C. § 2. Clark plead not guilty and was tried before a jury. At trial Clark moved to suppress the evidence concerning the oral confession. He also moved to strike the in-eourt identification, claiming that certain irregularities in the lineup tainted that identification. The trial judge denied both motions. English testified for the government implicating Clark as joining in planning the robbery and as aiding and abetting as a lookout. The jury returned a verdict of guilty and Clark was sentenced to twelve years in prison.

Clark has addressed his appeal primarily to the issue of the claimed violation of his fifth amendment right not to be compelled to be a witness against himself in light of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He insists that his confession was coerced and should not have been admitted in evidence against him. The record suggests that these same coercive factors also resulted in Clark’s possible waiver of his sixth amendment right to counsel representation and advice prior to subjecting himself to police interrogation. It is virtually impossible here to separately analyze and consider the claimed violation of those rights. We observe that evidence which is offered to show that a confession was the product of coercion may also be relevant on the issue of whether there was an accompanying voluntary waiver of the right to counsel.

Presented for determination here is the question whether the fifth and sixth amendment rights of an accused, who had previously indicated his desire to consult with an attorney, were violated when he was interviewed at the insistence of government agents without the presence of an attorney. The single issue underlying the purported waiver of each of those constitutional rights is whether the record supports the conclusion that such waiver was voluntarily made. The standard of voluntariness is not whether the accused was coerced in traditional terms but whether appropriate measures were taken to safeguard his rights and to insure that his statements were the product of free choice. Miranda v. Arizona, 384 U.S. 436, 457, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “In determining whether a defendant’s will was overborne in a particular ease, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). The legally significant facts surrounding the interrogation session at which Clark confessed are undisputed.

During the initial interview by F.B.I. agents following his arrest, Clark indicated his desire to speak with an attorney prior to answering any questions. “If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). The Government recognizes this principle but insists that Clark, at the subsequent interview waived his right to counsel and voluntarily confessed to the offense charged. We recognize the possibility that, under given circumstances, an accused may later waive a right which he previously asserted. Dillon v. United States, 391 F.2d 433, 437 (10 Cir. 1968). However, evidence that an accused has previously asserted his right to confer with counsel is a factor which weighs heavily against a finding that a subsequent uncounseled confession is voluntary. See United States v. Slaughter, 366 F.2d 833, 840-841 (4 Cir. 1966). Additionally, we note that agent Kenny stated unequivocally that he initiated' the interview during which Clark allegedly waived his right to speak with an attorney and confessed. This initiation of the subsequent interview at which the confession was elicited is a factor which, under these circumstances, is a strong indication of involuntariness. United States v. Slaughter, supra at 840.

There is nothing in the record to suggest that agent Kenny’s decision to conduct a second interrogation of Clark was prompted by any manifestation on the part of Clark that he had changed his mind and desired to be interrogated without the assistance of counsel; “[o]nce the privilege has been asserted, ... an interrogator must not be permitted to seek its retraction, total or otherwise.” United States v. Crisp, 435 F.2d 354, 357 (7 Cir. 1970). Less than four hours had elapsed between the time Clark stated that he wanted to talk with an attorney before answering any questions about the robbery and the time he confessed; obviously this was an insufficient period of time for Clark, who was incarcerated, to retain counsel. At the very least, the agents should have afforded Clark sufficient time to employ and consult with counsel before they initiated any subsequent interview.

We have noted elsewhere in this opinion the similarity between the psychological tactics condemned by the Supreme Court in Miranda, supra, and the techniques employed by the interrogators in this instance. We thus find ample support for our conclusion that Clark’s confession was the product of coercive conduct by the government agents and not the result of a voluntary waiver of his fifth amendment rights.

The factual circumstances surrounding Clark’s waiver of his sixth amendment right to counsel are also strikingly similar to those which we held compelled reversal of the conviction of the defendant in United States v. Slaughter, 366 F.2d 833 (4 Cir. 1966). We reproduce the following passage from Slaughter which we find pertinent here:

“We find no waiver of the right to counsel in this record. Here, appellant manifested his desire to exercise his right to counsel. For reasons of conscience or otherwise, he did not initiate additional conversation with agents of the F.B.I. about the matter with which he was charged . His interrogation was initiated solely by the F.B.I. In the time that had elapsed since the request to consult counsel, appellant could have obtained a lawyer if he knew of one to employ and had the means to employ him; but it cannot be said that his failure to have a lawyer within approximately 25 hours of his request was unreasonable delay on his part, or an attempt to postpone indefinitely a decision on his part whether to submit to interrogation. . A statement that appellant had a right to remain silent, on the facts here, was insufficient to overcome the respect to which his expressed desire to consult counsel was entitled. This statement here followed by a response to interrogation with nothing more, is insufficient to form a basis for waiver. We conclude that appellant did not waive his rights under the Sixth Amendment, and admission of the testimony concerning what he said in response to interrogation after he claimed the right to counsel was reversible error.”

Slaughter, supra at 840-841.

The undisputed evidence in this record strongly suggests coercion; the facts do not provide adequate support for the conclusion of the district court that Clark voluntarily waived his constitutional rights. A confession can be received into evidence only after the Government has established by a preportrderance of the evidence that the confession was voluntarily made. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); United States v. Watson, 469 F.2d 362 (5 Cir. 1972). We conclude that the district court was clearly erroneous in its finding that the defendant had voluntarily waived his constitutional rights under the fifth and sixth amendments.

Since we decide that the admission of Clark’s confession into evidence was reversible error it will be necessary that he be released or retried. In the event he is retried it is obvious that the same objections will be made to the pretrial lineup that Clark has pressed before us on this appeal. In the interest of judicial economy we address ourselves to that issue to assist the trial court.

Clark contends that he was denied his right to counsel at the pretrial lineup as a result of agent Kenny’s conduct. Clark alleges that he was misled by Kenny into believing that counsel would be provided for him at the lineup. First, we note that agent Kenny agreed only to look into the matter; he did not agree to secure counsel foi Clark. Secondly, Clark had been officially notified by the Magistrate that he was not entitled to the services of court-appointed counsel. Whatever confusion may have existed in Clark’s mind about his entitlement for appointed counsel must have been resolved when a scheduled pretrial lineup was postponed so that Clark would have more time to retain counsel. “It is undisputed that [Clark] . was given a reasonable time to secure counsel of his personal choice. It is equally clear that he was financially able to retain counsel. In these circumstances, his failure to retain counsel was properly treated by the court as a waiver of his right to counsel [at the lineup].” United States v. Terry, 449 F.2d 727, 728 (5 Cir. 1971) (citations omitted). As we said in United States v. Grow, 394 F.2d 182, 210 (4 Cir. 1968):

“[Clark] ... ‘is incorrect in his assumption that Sixth Amendment rights have been newly-wrapped in a climate which affords a defendant the right to obtain a delay at his whim and caprice, or to obtain a reversal because he was unable to frustrate justice.’ ”

Furthermore, there is nothing in the record to support Clark’s assertion that the in-court identification was tainted by a previous unfair out-of-court identification. The voir dire examination conducted by the district court adequately established the fairness of the lineup in which Clark participated.

The judgment of the district court is reversed and the case is remanded with directions that Clark be released and discharged from custody unless the United States shall elect to retry him within a reasonable period of time to be fixed by the district court.

Reversed and remanded.

      . Compare the events that occurred during this interrogation with established interrogation practices criticized in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court referred to police manuals and texts, then in general use, in its discussion:
      The officers are told by the manuals that the “principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation.” Miranda v. Arizona, 384 U.S. 436, 449, 86 S.Ct. 1602, 1615, 16 L.Ed.2d 694 (1966).
      To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. . . . These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already — that he is guilty. Explanations to the contrary are dismissed and discouraged. Id. at 450, 86 S.Ct. at 1615.
      In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered:
      “[T]he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. . . . The interrogator may also add, ‘Joe, I’m only looking for the truth, and if you’re telling the truth, that’s it. You can handle this by yourself.’ ’’ Id. at 454, 86 S.Ct. at 1617.
      The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. “This usually has a very undermining effect. ...” Id. at 453, 86 S.Ct. at 1617.
      The Miranda Court, in condemnation of then current police interrogation practices, practices similar to those employed in this case, was concerned with the obvious evils attendant upon such procedures.

      . The fact that Clark did appear with privately retained counsel at a preliminary hearing only two days after the lineup lends some credence to the surmise that Clark was using the counsel issue as a delaying tactic.

      . Mitchell knew English personally and had already identified him as the purchaser of the mask. Mitchell testified that two men came to Ms shop looking for a certain type of halloween' mask; that one was English and the other was Olark, the man he had picked from the lineup; that because most of his masks were in storage Mitchell made no sale that day; that English came back alone on two more occasions and eventually purchased two masks. One mask was in evidence and was identified by the witness as the same type sold by him to English.

      . See note 1, supra.

      . In Slaughter there was no evidence that the accused had affirmatively waived his right to counsel either orally or in writing. While in the instant case the accused did orally waive his right to counsel, he simultaneously refused to sign the waiver of rights form. Such indecisive conduct in view of surrounding circumstances does not convince us that his apparent change of position was the product of intelligence and understanding. United States v. Nielsen, 392 F.2d 849, 853 (7 Cir. 1968).