text:
    BOARD OF EDUCATION OF the SCHOOL DISTRICT OF the CITY OF DETROIT, a school district of the first class, Plaintiff-Appellant, v. Ronald BRADLEY et al., Defendants-Appellees.
    No. 72-1811.
    United States Court of Appeals, Sixth Circuit.
    Nov. 27, 1972.

      George T. Roumell, Jr., Louis D. Beer, Jane Keller Souris, Russ E. Boltz, Riley & Roumell, Detroit, Mich., for plaintiff-appellant.
    Theodore Sachs, Ronald R. Helveston, Detroit, Mich., for defendants-appellees.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   ORDER

On receipt and consideration of a motion filed in the above styled case and entitled “Emergency Motion of Board of Education of the School District of the City of Detroit to Order Governor of the State of Michigan, the Attorney General of the State of Michigan, the Treasurer of the State of Michigan, the Superintendent of Public Instruction for the State of Michigan, the Members of the State Board of Education of Michigan and Other State Officials to Provide Funds to Keep the Detroit Public Schools Operating for a Full 180 Regular Days of Instruction,” and on inspection of the record in Bradley v. Milliken (Nos. 72-1809, 72-1814), the emergency motion referred to above is hereby dismissed for want of jurisdiction.

This record discloses that if this motion be conceived of as an appeal from Judge Roth’s injunctive order dated July 7, 1972, no notice of appeal has ever been filed concerning said order, and time for filing such a notice has long expired. If said motion be conceived of as a petition for equitable relief directed to the federal judicial power, it is clear to us that it must be directed in the first instance to the appropriate United States District Court with jurisdiction in the premises.

We specifically note that the fact that certain of the orders entered by Judge Roth have been appealed to this court does not deprive the District Court of jurisdiction to hear petitions to alter or amend continuing injunctive orders on the basis of change of circumstances. See Kelley v. Metropolitan County Board of Education of Nashville and Davidson County, Tennessee, 463 F.2d 732 (6th Cir. 1972).

The dismissal of the aforesaid motion is without prejudice to the right of the parties to seek in the District Court a modification of the order of that court dated July 7, 1972.


source: Caselaw Access Project

author: ESCHBACH, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Phillip L. ROGERS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles SPOTTS, Defendant-Appellant.
    Nos. 72-1305, 72-1306.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 28, 1972.
    Decided March 7, 1973.
    See also, D.C., 329 F.Supp. 327.

      Darryl K. Nevers, Wauwatosa, Wis., Robert J. Lerner, Milwaukee, Wis., for def endants-appellants.
    David J. Cannon, U. S. Atty., David B. Bukey, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before DUFFY, Senior Circuit Judge, CAMPBELL, Senior District Judge, and ESCHBACH, District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

       District Judge Jesse E. Eschbach of the Northern District of Indiana is sitting by designation.

   ESCHBACH, District Judge.

Defendants-appellants, along with a defendant, Jackson, subsequently acquitted, were charged in a twelve-count indictment with causing falsely made and forged securities (twelve money orders) to be transported in interstate commerce with fraudulent intent in violation of 18 U.S.C. §§ 2, 2314. Rogers was charged in Counts I through XI, and Spotts was charged in Counts I through VI as well as in Counts VIII and XII (Jackson was named in Counts IX through XI). Following submission of all the evidence in a joint jury trial, the trial court directed a verdict for defendants on Counts IX through XII for failure of the Government as a matter of law to prove as to these counts interstate movement of the money orders. On the remaining counts, the jury found the defendants guilty as charged. Each defendant was sentenced to thirty months imprisonment on each such count, the sentences to be served concurrently. Both Spotts and Rogers appeal from their convictions, which appeals were separately briefed and argued. Since these appeals result from a common trial and in part raise common questions, we will dispose of them in a single opinion. We affirm the convictions of both appellants.

Both appellants claim that as a matter of law the Government has failed to prove the interstate transportation of the money orders relating to the counts on which they were convicted. Rogers additionally argues that the trial court erred in ordering Rogers to execute handwriting exemplars in the form of the allegedly forged words on the money orders and that the trial court erred in refusing to strike in its entirety the testimony of a key Government witness when she exercised her Fifth Amendment right not to answer certain questions. Spotts additionally argues that the trial court erred in not severing Count XII and that the evidence as a whole is insufficient to convict him.

I. Proof of Interstate Movement of the Money Orders

The jury could reasonably have found the money orders identified in Counts I through VIII were genuine American Express money orders distributed by American Express to Sears, Roebuck & Co., Milwaukee, Wisconsin. The money orders were discovered to be missing from that store sometime in early October 1970, and they were forged and cashed in Wisconsin in October 1970. The defendants argue that, assuming the Government has sufficiently tied them to these encashments, still they should have been acquitted because the Government did not present evidence from which a jury could conclude beyond a reasonable doubt that these very money orders in fact moved in interstate commerce. It is clear that such proof is necessary to sustain defendant’s convictions. Gilinsky v. United States, 368 F.2d 487 (9th Cir. 1966). For its proof, the Government relied solely upon the documents themselves and the markings thereon. On the face of each money order was printed “American Express Company agrees to pay at 65 Broadway, New York, N.Y., the sum of. . . . ” On the back of each was printed “AMERICAN EXPRESS COMPANY RESERVES THE RIGHT TO REFUSE PAYMENT OR CHARGE BACK THIS MONEY ORDER IF IT IS RAISED, ALTERED OR STOLEN OR IF ANY SIGNATURE IS OMITTED OR FORGED.” Also on the back of the orders was stamped “PRESENTED FOR AMEXCO N.Y. PAYMENT.” Defendants argue that this real evidence is insufficient to support an inference of interstate movement of these money orders and that, in any event, these markings are inadmissible hearsay.

We are persuaded that the markings, any one of which might not be sufficient standing alone, taken together are sufficient to support a reasonable inference of interstate movement. The documents speak for themselves. The second quoted statement above shows that American Express Company decides whether to pay on money orders written on its paper. The first quoted statement shows that this decision is made in New York City. The third quoted statement reflects that these particular money orders were presented in New York for that decision.

Directly on point is United States v. Nelson, 273 F.2d 459 (7th Cir. 1960). In that case, the court, in considering a related issue, commented upon the use and meaning of documents and markings similar to those here at issue.

Each of the money orders bears the printed legend: “American Express Company, New York, New York, agrees to transmit and pay.” In our opinion this clearly indicated that the securities were payable at the American Express Company, in New York, New York. . . .' The money orders are each stamped “Paid, with an appropriate date inserted, AMEXCO, N.Y.” . . . The documents speak for themselves. They show that they were in fact paid at the American Express Company in New York, as abbreviated: “AMEXCO, N.Y.”, or “MEXCO, N.Y.” Id. at 460-461.

In short, the court held that the documents, without oral elaboration, had discernible meaning in their own right, namely, that payment was to be made, and in fact was made, in New York. While it is true that the court referred to expert testimony of an American Express agent regarding the stamp on the back, the court in interpreting the words on the front relied solely upon the printed words. In light of this interpretation, there is no reason to suspect that the court meant anything less than what it said about the stamped words, which is that they speak for themselves. In the similar case of United States v. Mustin, 369 F.2d 626 (7th Cir. 1966), this court, in holding that a check and a photostat thereof by an out-of-state bank supported an inference of interstate movement, described such expert testimony as proper but cumulative. See also United States v. Cordo, 186 F.2d 144, 146 (2d Cir.), cert. den, Minkoff v. United States, 340 U.S. 952, 71 S.Ct. 572, 95 L.Ed. 686 (1951) (charge of theft from interstate commerce). The court said, “The asserted lack of evidence to prove the interstate character of the goods when stolen fails in the light of the proof that the cartons and bales were each plainly labelled with the names of the North Carolina consignor and the New York consignee.” See also United States v. Crawford, 195 F.2d 472, 474 (3d Cir. 1952) (Labelling on the cartons adequately proved interstate character of the shipment). Cf. United States v. Palumbo, 317 F.2d 607 (2d Cir. 1963) (value of goods stolen proven by amount inserted on invoice).

Defendant cites the recent decision in United States v. Coleman, Case No. 68-CR-33 (E.D.Wis., July 30, 1968) (oral opinion). That case is distinguishable, however, as being a bench trial in which the judge was sitting as trier of fact and in that capacity found the Government’s evidence insufficient. In the instant case, the jury was the fact finder, and it found the evidence sufficient. Our function on appeal is not to make our own findings of fact, but to determine whether there was sufficient evidence in the record to support the fact, finder’s conclusion, and in this case there was.

Defendant Rogers, in addition to making an argument of logical insufficiency, now complains that the markings quoted above are inadmissible hearsay. However, at trial he made no such specific objection, as was done in Crawford, supra, 195 F.2d at 475 n. 4, nor did he otherwise seek to limit the purposes for which the money orders were admitted, such as was done in United States v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964). Moreover, the Government did not lead him to believe that further evidence would be forthcoming on the question of interstate movement of the documents. Hence, Rogers has waived his hearsay objection. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912); Gibson v. Elgin, Joliet & Eastern Railway Co., 246 F.2d 834, 836 (7th Cir.) (relying upon Diaz), cert. den., 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); American Rubber Products Corp. v. NLRB, 214 F.2d 47, 51-52 (7th Cir. 1954) (relying upon Diaz); United States v. Rosenberg, 195 F.2d 583, 596 (2d Cir.), cert. den., 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952).

II. Handwriting Exemplars

After indictment, but before trial, the Government sought a court order requiring that defendant Rogers execute examples of his handwriting. The court so ordered, and Rogers agreed to give examples in any form except the names and addresses used on the forged documents. The Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra.

Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating:

It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.”
. . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910).

The present case is indistinguishable . from Dionisio on legal grounds. While Dionisio dealt with voice exemplars and the exemplars in the instant case are handwritten, the Court in Dionisio, as in the other leading cases on point (Mara, Gilbert, Wade), dealt with such exemplars interchangeably and without constitutional differentiation. Moreover, in the instant case the exemplars were to be used only as a standard of comparison, and the trial transcript shows that both prosecutor and handwriting expert strictly limited themselves to such use.

Defendant argues on nonconstitutional grounds that the exemplar ordered was unduly prejudicial at trial. However, it is the trial court’s duty to weigh the potential prejudice from overemphasis against the usefulness of the exemplars for handwriting analysis. We cannot say that the trial court abused its discretion. Cf. United States v. Izzi, 427 F.2d 293, 295 (2d Cir.), cert. den., 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (1970); Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967), cert. den., Marshall v. United States, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968); United States v. Vignera, 307 F.Supp. 136 (S.D.N.Y.1969).

III. Witness Knauf’s Refusal To Answer Certain Questions

A key witness for the Government was Karen Knauf a co-participant in the crimes charged. It was she who actually passed the forged money orders. She testified , that Rogers, along with Spotts, planned where and when she would cash checks and that she saw Rogers forge several of the money orders. During cross-examination, she refused to answer certain questions on the grounds that the answers might tend to incriminate her: while testifying that she loved a certain Stanley Hall, whom she identified as also being involved in the crimes charged, and that she did many things for him, she refused to say whether she had lived with him. Also, while admitting that she was using drugs during the period in which she cashed the money orders, she refused to say which drugs she used, how extensively she used them, and who supplied them. At trial, Rogers objected that these refusals to answer questions so effectively denied him his right to cross-examine the witness regarding her credibility generally and her powers to observe that her entire testimony on direct examination should be stricken. On appeal, Rogers presses only one point. He argues that while the witness was within her rights in refusing to answer questions directed to her drug use, by her so doing Rogers was precluded from establishing that the witness’ ability to observe and remember the events about which she testified was impaired. See Wilson v. United States, 232 U.S. 563, 568, 34 S.Ct. 347, 349, 58 L.Ed. 728 (1914). Rogers contends such ability goes to the reliability of the witness’ entire direct testimony.

A witness’ refusal on Fifth Amendment grounds to answer otherwise permissible questions may, but need not necessarily, violate the defendant’s Sixth Amendment right as to part or all of the witness’ testimony. United States v. Collier, 362 F.2d 135 (7th Cir.), cert. den., 385 U.S. 779, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966); United States v. Cardillo, 316 F.2d 606 (2d Cir.), cert. den., 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963). See also Smith v. Illinois, 390 U.S. 129, 133 n. 8, 88 S.Ct. 748, 751, 19 L.Ed.2d 956 (1968); United States v. Saletko, 452 F.2d 193, 195-196, cert. den., 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581 (1972). The basis for determining whether a defendant’s Sixth Amendment right was violated has been stated as follows:

The ultimate inquiry is whether the defendant has been deprived of his right to test the truth of the direct testimony. . . . The distinction is generally drawn between invoking the privilege as to “collateral matters,” not requiring the striking of direct testimony, and invoking it as to “direct” matters. . . . But the line between “direct” and “collateral” is not clear, and the question in each case must finally be whether defendant’s inability to make the inquiry created a substantial danger of prejudice by depriving him of the ability to test the truth of the witness’s direct testimony. Fountain, supra, at 384 F.2d 628.

Such a judgment is to be made upon the whole record, and, on the record in the instant case, we conclude that Rogers’ right to cross-examination was not so limited as to warrant striking Knauf’s testimony. In general terms, the truthfulness of Knauf’s testimony, including her ability to observe and remember events, was broadly and incisively attacked in depth by three attorneys, and the witness’ “refusal to answer [did not add] critical weight to the prosecution’s case in a form not subject to cross-examination. . . . ” Collier, supra 362 F.2d at 139 n. 4, quoting Fletcher v. United States, 118 U.S.App.D.C. 137, 332 F.2d 724, 726 (1964). More specifically, as the trial court stressed, the witness was not testifying as to a single brief occurrence for which her powers of precise observation would be specially important. Rather, she testified about a series of meetings and transactions occurring over a period of two months with individuals well known to her. Moreover, in testifying about these events, the witness generally limited herself to readily observable elements thereof; she rarely testified about elements, such as particular statements by Rogers, which would require a particularly accurate memory. Finally, the witness’ testimony as to Rogers, who alone of the defendants asserts that his right to cross-examination was too limited, was strongly supported by the testimony of the handwriting expert that Rogers forged the money orders identified in Counts I through VIII.

IV. Severance of Count XII

In Count XII, defendant Spotts alone was charged, and the evidence of his involvement regarding that particular money order was strong and direct. Knauf testified that Spotts supplied her with the false ID used in the encashment and that he accompanied her in the car when she went to cash the money order. The handwriting expert testified that in his opinion the writing on the order was Spotts’. The trial court ultimately directed a verdict in Spotts’ favor on this count because the Government failed to prove interstate movement of the money order. Before trial, Spotts moved for severance of Counts IX through XII, and he now asserts it was error for the trial court not to have severed Count XII (Spotts was not charged in Counts IX through XI). Admitting joinder was proper, Spots claims there was prejudice requiring severance in that the strong evidence on Count XII quite probably would be relied upon by the jury in convicting Spotts on Counts I through VI and VIII, for which the Government’s evidence was much weaker, even though in a separate trial of Counts I through VIII the evidence on Count XII would have been inadmissible. There is no merit in defendant’s contention.

The trial court found joinder of defendants and counts proper under Rule 8(b), Fed.R.Crim.P., because the offenses charged appeared to be “closely related in time and manner so as to show a connectionlbetween them” and a “ ‘series’ of transactions which were part of a common plan.” Decision and Order, p. 2, filed June 21, 1971. Spotts does not attack this decision, nor could he. See United States v. Scott, 413 F.2d 932 (7th Cir. 1969), cert. den., 396 U.S. 1006, 90 S.Ct. 560, 24 L.Ed.2d 498 (1970); United States v. Spector, 326 F.2d 345, 349-351 (7th Cir. 1963); United States v. Thomas Apothecary, Inc., 266 F.Supp. 890, 892 (S.D.N.Y.1967). Moreover Spotts does not assert that evidence at trial failed to support the court’s initial finding.

Joinder being proper, this court will reverse the trial court only if abuse of discretion is shown. United States v. Kahn, 381 F.2d 824, 838 (7th Cir.), cert. den., 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967). The trial court is to balance possible prejudice to the defendant from joinder with the public interest in efficient use of judicial time through joint trial of defendants and offenses which are connected. In a case of multiple defendants, as the instant one, the showing needed for severance appears to be stronger than in a case of a single defendant with multiple counts. See Wright and Miller, Federal Practice and Procedure § 223 (1969). By any standard, however, Spotts has failed to show error on the part of the trial court. First, the record before the trial court at the time of Spotts' pretrial motion for severance (Spotts did not renew the motion at trial) falls far short of showing sufficient prejudice to Spotts to require severance. Spotts himself relies upon evidence brought forth after the motion, including important testimony at trial. It is clear, then, though this is not necessarily dispositive of defendant’s claim, that defendant’s motion for severance was properly denied when made. See United States v. Haupt, 136 F.2d 661, 673-674 (7 Cir. 1943) (no error in denying motion for severance, but upon hearing all the evidence, it was error not to grant the motion for a new trial). Secondly, a showing of differential proof as to counts is not per se a sufficient showing requiring severance or a new trial. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. Sherman, 84 F.Supp. 130 (E.D.N.Y.1947), aff’d in part, rev’d in part on other grounds, 171 F.2d 619 (2d Cir. 1948). Thirdly, prejudice requiring severance is not shown if evidence on the severed count would be admissible in the trial of the remaining counts, Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85, 91 (1964). Here, the trial court in its discretion could admit evidence regarding Count XII against Spotts in a trial on Counts I through VIII, not to show mere disposition to commit crime, but to show a common scheme of which both charged and non-charged activity is a part. See United States v. Birrell, 447 F.2d 1168, 1172-1173 (2d Cir. 1971), cert. den., 404 U.S. 1025, 92 S.Ct. 675, 30 L.Ed.2d 675 (1972) (count dismissed for failure to prove interstate aspect of case; evidence thereon nevertheless admissible); United States v. Weber, 437 F.2d 327, 332 (3d Cir. 1970), cert. den., 402 U.S. 932, 91 S.Ct. 1524, 28 L.Ed.2d 867 (1971); Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113, 1117-1121 (1969). Cf. United States v. Bucciferro, 274 F.2d 540 (7th Cir.), cert. den., 362 U.S. 988, 80 S.Ct. 1076, 4 L.Ed.2d 1021 (1960). Also, the evidence would lend meaning and strength to other testimony, for instance, that in prior meetings relating to Counts I through VIII with co-participant Knauf, along with co-defendant Rogers, Spotts was not merely passively present, which is insufficient to support a conviction, United States v. Carengella, 198 F.2d 3 (7th Cir.), cert. den., 344 U.S. 881, 73 S.Ct. 179, 97 L.Ed. 682 (1952), but was in fact an active participant. See United States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968).

V. Sufficiency of The Evidence Against Spotts

Spotts, finally, argues that the evidence against him on Counts I through VI and VIII is insufficient as a matter of law to convict him. The record, however, contains evidence from which a jury could conclude beyond a reasonable doubt not only the essential interstate movement of the orders but also could find Spotts guilty as charged in that (a) during the period when Karen Knauf was passing forged money orders, Spotts, in concert with Rogers, developed a scheme for passing forged money orders, which scheme included Knauf as the one who would actually cash the money orders, and (b) when Knauf cashed the money orders on which Spotts and Rogers were convicted, she was acting under the direction and control of both Spotts and Rogers even though both were not at all times physically present with her. Cf. Phillips, supra at 307.

Accordingly, the convictions appealed from in both 72-1305 (Rogers) and 72-1306 (Spotts) are affirmed.

      . Rogers made no objection when the money orders supporting Counts I and II were admitted into evidence. As to the money orders named in Count III through VIII, he made no objection regarding the printing and stamp on the back, and he only objected in vague terms to “some extraneous matter written on the front of the money orders.” (Emphasis added)

      . On their facts Mara and Dionisio are limited to actions by a grand jury. However, the language of the Court was broad:
      Handwriting, like speech is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. Mara, supra at 21 of 410 U.S., 93 S.Ct. 774.
      In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), we said that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office. ...” 389 U.S. 347, 351, 88 S.Ct. 507, 511.

        Dionisio, supra at 14 of 410 U.S., 93 S.Ct. 764.
      In any event, the facts in this case satisfy any possibly applicable Fourth Amendment standards. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908.

      . As stated, the Dionisio case arises in the setting of a grand jury hearing, while in the instant case questions relate in part to activities at trial. There is language in Wade which suggests that a trial setting raises separate questions. (In Wade, the defendant was made at a line-up to speak words used by a robber.) However, it appears that in Wade the jury was made aware of the defendant’s exemplar. Moreover, the Court in Dionisio referred to Gilbert as being exactly on point, and in Gilbert the exemplars were clearly used at trial. In short, it is not constitutionally significant whether the words of an exemplar are in terms related or unrelated to the particular case or used at trial so long as the exemplar is treated solely as a standard of comparison.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    Noble David JELLUM, Jr., Petitioner-Appellee, v. Hoyt C. CUPP, Superintendent, Oregon State Penitentiary, Respondent-Appellant.
    No. 72-1418.
    United States Court of Appeals, Ninth Circuit.
    March 6, 1973.

      John H. Clough, Asst. Atty. Gen. (argued), Lee Johnson, Atty. Gen., Salem, Or., for respondent-appellant.
    L. A. Aschenbrenner (argued), of Marmaduke, Aschenbrenner, Merten & Saltveit, Portland, Or., for petitioner-appellee.
    Before ELY, WRIGHT and WALLACE, Circuit Judges.
   EUGENE A. WRIGHT, Circuit Judge:

The state has appealed from a judgment of the district court, granting a writ of habeas corpus and directing the release of Jellum unless the state should reindict him. Although other issues are raised, we agree with the district court that the only substantial question is whether the statute under which Jellum was convicted is unconstitutionally vague. We agree with the district court’s conclusion that it is and we affirm.

Jellum pleaded guilty to a charge of “committing an act of sexual perversity.” was sentenced, and later sought post-conviction relief in the Oregon courts. His petition was dismissed as was a petition for review by the Oregon Supreme Court. He then applied to the district court for relief.

Although Jellum pleaded guilty to the state charge he may still challenge the constitutionality of the statute under which he was sentenced. Ex parte Siebold, 100 U.S. 371, 377, 25 L.Ed. 717 (1879).

The Oregon Supreme Court has recognized the vagueness of the term “act of sexual perversity” and has limited its application to a narrow range of prescribed conduct. Under the state court’s construction in State v. Anthony, 179 Or. 282, 169 P.2d 587, cert. denied 330 U.S. 826, 67 S.Ct. 865, 91 L.Ed. 1276 (1946), three elements are required for a violation: (1) the direct involvement of a sex organ; (2) unnatural conduct contrary to the course of nature which (3) is performed for the purpose of accomplishing abnormal sexual satisfaction on the part of the actor. Such a narrowing construction redefines the statute and is binding on federal courts. Shuttlesworth v. Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176 (1965).

The district court concluded that even as limited by Anthony the statute is unconstitutionally vague. The relevant criteria for vagueness are spelled out in Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 520-521, 15 L.Ed.2d 447 (1966):

“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, withodt any legally fixed standards, what is prohibited and what is not in each particular case.”

Of course, we must consider the constitutionality of the statute in light of the conduct with which Jellum is charged. One to whom application of a statute is constitutional will not be heard to attack the statute on the ground that it would be unconstitutional as applied to other persons or other situations. United States v. National Dairy Products Corp., 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

Jellum was charged with accosting a woman in a shopping center parking lot, knocking her down in a scuffle which may have indicated some intent to rape, and then urinating on her.

Our inquiry then is twofold: did the statute, as limited by Anthony (1) give Jellum adequate notice that his conduct was prohibited, or (2) give jurors legally fixed standards from which they could have determined whether Jellum’s act was or was not prescribed by the statute?

We do not reach the first question in our holding that the statute, as limited, supplies no legally fixed standards and constitutes a grossly unconstitutional delegation of legislative power to the prosecutor, judge and jury.

In determining whether a statute is unconstitutionally vague, courts have traditionally looked to the common law background for interpretation of broad terms. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948). Employing that search with reference to the phrase “unnatural conduct contrary to the course of nature,” we find that it had no definite meaning at common law. A similar term, “crime against nature,” did have a definite meaning and has generally been held to be synonymous with sodomy; however, the Oregon Supreme Court has held that sodomy is not an “act of sexual perversity.” Anthony, supra, 169 P.2d at 598. Similarly, the term “abnormal sexual satisfaction” has no common law background.

Recourse to the dictionary gives us no enlightenment either. There is simply no commonly accepted, definite meaning of the phrase “unnatural conduct contrary to the course of nature.” Accordingly, we must conclude that the statute, as construed in Anthony, supplies a jury (or a judge sitting without a jury) no legally fixed standards under which to determine guilt. Further, we note that the statute does not supply any standard or basis for a trial judge to apply in submitting one case to a jury or refusing to submit another for jury consideration. This same looseness in the statutory language would allow a state prosecutor to use the statute selectively to rid the community of persons subjectively deemed guilty of committing “abnormal” or “unnatural” acts.

As the trial judge stated in his well-reasoned opinion:

“The varieties of human sexual behavior are encyclopedic. A beginning inventory, from arson to zooerasty, can be found in R. von Krafft-Ebing, Psychopathia Sexualis. If a statute allows the district attorney to pick through this catalog and make a felony of any sex-related act that offends his concept of ‘normal’ behavior, the statute is, of course unconstitutional.”

It is not enough to say that the prosecutor, judge, and trier of fact may exercise their own common sense and good judgment in determining what is “unnatural conduct” and “abnormal sexual satisfaction.” The Oregon Supreme Court itself expressly rejected that argument in State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969). That case involved a statute making it criminal to engage in conduct which “manifestly tends to cause” a minor to become delinquent. The court found this statute unconstitutionally vague because of the lack of any standards as to the causes of delinquency.

Jellum’s guilty plea admitted an episode of socially obnoxious behavior which indicates the need for the State of Oregon to seek institutional care for him. However, since the terms “unnatural conduct contrary to the course of nature” and “abnormal sexual satisfaction” are so vague as to supply no standards by which the prosecutor, judge, or jury could decide whether Jellum’s conduct was prohibited or not, we hold that the State of Oregon must use other, constitutional means to secure its goal.

In the district court, the state advised the court that Jellum had exhausted his state remedies. For the first time, on this appeal, the state suggests that failure to appeal to the United States Supreme Court constituted a deliberate by-pass of state remedies. The district court did not consider the question and we decline to do so, under the circumstances.

The Order of the district court is affirmed.

      . The entire statute reads as follows :
      O.R.S. 167.040(1). “Any person who commits sodomy or the crime against nature, or any act or practice of sexual perversity, either with mankind or beast, or sustains osculatory relations with the private parts of any person, or permits such relations to be sustained with his private parts, shall be punished.
      In 1971 the Oregon legislature rewrote their laws dealing with sexual behavior, and this statute is no longer on the books. Jellum, however, was sentenced by the state court in May 1969.

      . Jellum v. Cupp, 4 Or.App. 210, 476 P.2d 205 (1970).

      . Webster’s Third New International Dictionary, for example gives us the following definitions:

        Unnatural

      :not innately characteristic of the nature of man
      :not being in accordance with nature
      :not being in accordance with normal feelings or behavior
      ¡PERVERSE, ABNORMAL
      ¡inconsistent with what is natural or expected

        Nature

      ¡normality especially as prescribed by law for sexual relations — usually used in the phrase AGAINST NATURE

        Normality

      :the quality or state of being normal ¡conformity with the norm

      . We note that in State v. Anthony, supra, the court relied on earlier cases which were reversed by State v. Hodges, supra.


author: MULLIGAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Elvin Lee BYNUM et al., Appellants.
    Nos. 376-401, Docket 72-1857, 72-1884, 72-2101, 72-1763, 72-2142 and 72-2143.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 17, 1972.
    Decided March 14, 1973.

      Henry J. Boitel, New York City, for appellant, Elvin Lee Bynum.
    Patrick M. Wall, New York City, for appellant, Joseph Cordovano.
    Aaron J. Jaffe, New York City, for appellants, Abraham Wright, Lance Small, Newbry Mitchell and Irving Birnbaum.
    Frederick T. Stant, Norfolk, Va., for appellants, Fannie Mae Garnett, Jacqueline Fuller Dyson, John Feroldi and Levis Nedd.
    Theodore Rosenberg, Brooklyn, N. Y. (Frank A. Lopez, Brooklyn, N. Y., of counsel), for appellant, Vincent Altamura.
    H. Elliot Wales, New York City (Michael P. Direnzo, New York City, on the brief), for appellants, John Coniglio and Charles Tuzzolino.
    Jerome Lewis, New York City, for appellant, Angelo Mele.
    W. Cullen MacDonald, Asst. U. S. Atty., S. D. N. Y., New York City (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., New York City, and John W. Nields, Jr., and John M. Bush, Asst. U. S. Attys., S. D. N. Y., New York City, of counsel), for appellee.
    Before SMITH, KAUFMAN and MULLIGAN, Circuit Judges.
   MULLIGAN, Circuit Judge:

These are appeals by Elvin Lee Bynum, Joseph Cordovano, Abraham Wright, Lance Small, Newbry Mitchell, Irving Birnbaum, Vincent Altamura, Angelo Mele, John Coniglio, Charles Tuzzolino, John Feroldi, Levis Nedd, Fannie Mae Garnett and Jacqueline Fuller Dyson from judgments of conviction entered on June 27, 28 and July 7, 1972, in the United States District Court for the Southern District of New York, after a trial before Hon. Milton Pollack, United States District Court Judge, and a jury.

The Indictment- (71 Cr. 1169) containing three counts was filed on October 13, 1971. All of the appellants were charged with conspiring to obtain and sell narcotics in violation of Title 21, United States Code, §§ 173 and 174 (repealed 1970) and Title 26, United States Code, §§ 4705(a) and 7237(b) (repealed 1970). All of the defendants were found guilty. Counts Two and Three separately charged Levis Nedd and Michael Lebbers (Malachy Libbers) with unlawfully carrying a firearm in the commission of the felony charged in Count One, in violation of 18 U.S.C. § 924. Appellant Nedd was found guilty under Count Two.

In view of the disposition we make here, we need not recite in detail the facts in this drug conspiracy, nor need we discuss the numerous points raised on appeal. Suffice it to say that in addition to the usual sordid operation of purchasing, cutting and packaging large quantities of cocaine and heroin, the conspiracy charged here included criminal assault, planned robberies for the purpose of procuring drugs and the planning of the murder of a suspected informant to insure the continuance of the conspiracy. The Government’s case was in the main provided by an informant Stewart, who while acting as a trusted key member of the conspiracy, was simultaneously supplying the Government with detailed information about the criminal activities of his associates. Despite the wealth of information provided by Stewart, which in several instances was corroborated by physical surveillance, the Government also introduced into evidence written transcripts and played recorded telephone conversations of defendants Bynum and Cordovano for the purpose of further supporting Stewart’s testimony. For the reasons discussed below, the admission of the evidence has, in our view, raised serious questions of statutory construction and, possibly, of constitutional interpretation, which we are loathe to decide on the basis of the sparse record before us.

The defendant Bynum, the principal figure in the conspiracy, used as his headquarters, a residence on Linden Boulevard in Brooklyn which was occupied by his paramour, the defendant Garnett. On the basis of information from independent informants and the personal knowledge of agents who had worked with Bynum when he was acting as a Government informant, an application was made pursuant to the wiretap authorization provisions of 18 U.S.C. § 2516 to tap the telephone of Garnett at her residence which was believed to be the focal point of Bynum’s drug dealing operation. Other means of investigation were deemed to be inadequate. Cf. 18 U.S.C. § 2518(1)(c) & (3) (c).

On January 29, 1971, Judge Anthony Travia, United States District Court, Eastern District of New York, entered an order authorizing the Government to intercept and record telephone communications to and from the Garnett telephone at Linden Boulevard. On January 28, 1971, a second telephone was installed at the Linden Boulevard address. The Government learned of this second telephone through the interception of messages on the first telephone. Judge Travia entered an order on February 12, 1971 authorizing the interception and recordation of messages on the second telephone at Linden Boulevard. Finally on February 18, 1971, an order was entered authorizing the continuance of the first telephone intercept for 14 days so that both taps terminated on March 3, 1971.

The major concern we have in this appeal is whether or not the electronic surveillance of the two telephones in question was conducted in such a fashion as to minimize the interception of communications not otherwise subject to interception. The statute, § 2518(5), requires that an order authorizing such interception contain such a provision. The extension order of February 18, 1971 failed to contain the limitation; however, since it is a continuation or extension of the initial order, we consider that it incorporates by reference the minimization language of the first order. Appellants maintain, and a reading of the record would indicate, that every single conversation on these telephones from the time of the installation of the taps until March 3, 1971 was intercepted and recorded by Government agents. Appellants argue that there was no minimization effort here at all and therefore there was a violation of both the statute and the orders authorizing the taps. The Government urges in rebuttal that the appellants made no objection to the introduction of the recordings on this ground before trial, but did so only after the trial was over. At that point, counsel who had made the motion failed to appear on the return date and therefore the motion was dismissed. The Government’s argument is inaccurate. On April 13, 1971, Mr. Hochheiser, attorney for Garnett, explicitly moved for the suppression of all the tapped conversations because of the failure of the Government to minimize the interceptions. While no motion for an evidentiary hearing was made, there was a clear argument that since every conversation no matter what its nature was recorded, there could not have been any effort to minimize. Judge Pollack made no decision on the motion at this point. The motion was renewed on trial at the conclusion of the testimony of Inspector Bitzer, Bureau of Narcotics and Dangerous Drugs, who supervised the wiretap. The motion was denied after trial and dismissed when counsel failed to appear. In view of these facts we find that the minimization issue was raised in timely fashion both before and during the trial and is properly raised on appeal. The Government further urges that neither Bynum nor Cordovano has standing to raise the minimization question. Since the phone was in Garnett’s home and listed in the name of one Fred Garnett, we have no doubt that she has properly raised the issue. Moreover, Bynum was clearly an “aggrieved person” as defined in 18 U.S.C. § 2510(11) and therefore is given leave to raise the question of the legitimacy of the surveillance under 18 U.S.C. § 2518(10) Since Bynum was the central figure in the conspiracy, a reversal as to him might well render the convictions of the lesser figures in the scheme vulnerable and entitle them all to new trials. See United States v. Weiss, 103 F.2d 348, 352 (2d Cir.), rev’d on other grounds, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298 (1939).

The issue of minimization has never been considered by this Court. Appellants rely on United States v. King, 335 F.Supp. 523 (S.D.Cal.1971) and United States v. Scott, 331 F.Supp. 233 (D.D.C.1971), where as in this case, all conversations were monitored and since a high percentage of irrelevant or innocent conversations were intercepted, violations of the statute were found to exist. In United States v. Focarile, 340 F.Supp. 1033 (D.Md.1972), the court made the comment that if no attempt at all is made to minimize the interception of innocent calls, there would not only be a blatant violation of the statute but probably a violation of Fourth Amendment Constitutional rights (340 F.Supp. at 1046).

A different approach supporting the position of the Government although not cited by the United States, is found in United States v. Cox, 462 F.2d 1293 (8th Cir. 1972). In that case again there was 100% interception of telephone conversations with a substantial number of the calls being unrelated to the drug conspiracy charged. Chief Judge Matthes found the minimization issue to be purely statutory and not of constitutional dimension. That court found that the minimization question was to be determined on a case by case basis with the practical observation that the determination of whether or not a conversation was innocent or irrelevant often could not be made until the conversation was over and the interception terminated. The court further questioned whether suppression of all intercepted conversations was in any event the proper remedy for a violation of the statute in view of the civil remedy for damages against the investigating officers provided by 18 U.S.C. § 2520. The court, however, emphasized that the District Court judge who authorized the wiretap order closely supervised the interceptions, requiring reports from the United States Attorney at five day intervals. The transcripts of these reports were made available to the Circuit Court on appeal.

It seems evident that we are faced here with weighty issues of first impression in this Court which may well be raised again in other trial and appellate litigation. Unlike the district court eases which have considered the minimization problem in other Circuits, we have here no breakdown or analysis of the intercepted conversations. We do know that 198 reels of tape containing more than 3000 conversations were made available to appellants before trial. What percentage of these are irrelevant or innocuous we do not know. The record only indicates that on one phone between January 30, 1971 until February 13, 1971, some 770 completed telephone calls were intercepted. Of these, 108 allegedly relate to illegal drug traffic and 21 refer to other criminal activity. This information is provided in the affidavit of an Inspector of the Bureau of Narcotics and Dangerous Drugs in support of the extension of the initial wiretap order of Judge Travia.'

A reading of the testimony of the agent who supervised the surveillance would indicate that all conversations were recorded but only those presumably inculpatory were ever transcribed. The mischief lies in the interception obviously and what was not transcribed remains unknown. Although there is an allegation that the conversations were coded and guarded, which may account for the total interception, we are provided with no explanation of why some minimization was not possible to achieve. We know nothing of the nature or tenor of those calls which might be deemed innocent. The orders of Judge Travia required the United States Attorney to make reports at five day intervals indicating the progress of the investigation and the need for continuing interception. The record does not indicate whether the reports were made, and none have been made available to us. In short we do not know how closely the wiretap was supervised under the terms of the orders.

In view of the importance of the issues here involved we believe the best course to follow now is to remand to Judge Pollack for an evidentiary hearing to develop a record which will clarify the points we have discussed so that a proper determination can be made by this Court. This panel will retain jurisdiction of this matter. After findings are made below, this Court will require supplemental briefs of the parties on the minimization question, including the issue of the appropriate remedy in the event it is ultimately determined that either the minimization order issued by Judge Travia, or the minimization provision of the statute, was violated in this case. The parties will also brief the question whether such violations, if such be found, are, or are not, under the circumstances of this case, to be deemed violative of the Fourth Amendment.

Remanded.

      . On June 27, 1972, Judge Pollack sentenced Bynum to a thirty year term of imprisonment and Cordovano to a sixteen year term of imprisonment. Each was fined $20,000.
      On June 28, 1972, Judge Pollack pronounced the following sentences: Mele, to a twenty year term of imprisonment and a $5000 fine; Coniglio, to a twelve year term of imprisonment and a $5000 fine; Feroldi, to a ten year term of imprisonment; Wright, Small, Tuzzolino and Mitchell to seven year terms of imprisonment; Garnett to a six year term of imprisonment; and Altamura, Dyson and Birnbaum to five year terms of imprisonment.
      On July 7, 1972, Judge Pollack sentenced Nedd to concurrent terms of imprisonment of fifteen years on Count One and five years on Count Two. Finding that defendants Bynum, Cordovano, Mele, Feroldi and Coniglio each presented a danger to the community, Judge Pollack denied bail and each is now imprisoned. The remaining defendants are enlarged on bail.

      . Libbers and another defendant, Stanley Sherman, had their motions to dismiss granted. Lillian Bynum, another defendant, had her trial severed on the motion of the Government. Defendant Charles Moody testified for the Government and later pleaded guilty to an Information charging him with participation in the conspiracy in question. Robert Wallock, George Stewart, Robert Nesbitt, Edna Collins and Morty Molin were named as co-conspirators but not as defendants.

      . 18 U.S.C. § 2518(5) provides in pertinent part:
      Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.

      . “Aggrieved person” means a person who was a party to any intercepted wire or oral communication or a person against whom the interception was directed.

      . 18 U.S.C. § 2518(10) provides in pertinent part:
      (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
      (i) the communication was unlawfully intercepted;
      (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
      (iii) the interception was not made in conformity with the order of authorization or approval.
      Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

      . See, contra, United States v. George, 465 F.2d 772 (6th Cir. 1972), where there was a violation of the wiretap order authorizing surveillance only when particular individuals were using the telephone. The electronic interception was conducted without regard to the terms of the order. The court finding that the protective limitations of the order were defeated, found the wiretap evidence inadmissible and ordered a new trial which would exclude any wiretap evidence procured in violation of the order. The court found not only a violation of the statute but constitutional infirmity under Desist v. United States, 394 U.S. 244, 246, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).


author: ENRIGHT, District Judge:

text:
    UNITED STATES of America, Appellant, v. Ernest James COX and Ella Doris Roberts, Appellees.
    Nos. 72-2212, 72-2472.
    United States Court of Appeals, Ninth Circuit.
    March 12, 1973.

      Ronald Bain (argued), David C. Marcus, Los Angeles, Cal., for appellees.
    William D. Keller, U. S. Atty., Jan Lawrence Handzlik, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for appellant.
    Before MERRILL and CHOY, Circuit Judges, and ENRIGHT, District Judge.

       The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation.

   ENRIGHT, District Judge:

On February 16, 1972, a two count indictment was returned charging defendants Ernest James Cox and Ella Doris Roberts with violating 21 U.S.C. § 841(a)(1), possession with intent to distribute narcotics. Before trial, a motion to suppress was made and argued; the district court granted the motion. A timely notice of appeal was filed by the government. While appeal was pending the indictment was dismissed over the objection of the United States. The government now appeals that dismissal as well as the granting of the motion.

THE FACTS

Defendant Cox had previously been confined for a federal violation; he was paroled in January, 1969. While on parole he became involved in further difficulties with State authorities. Charges against him were either filed or considered. A federal parole officer, hearing of these charges and believing that Mr. Cox’s parole time had not fully expired, ordered issuance of a parole warrant on January 6, 1972. But in transmitting the warrant to the United States Marshal, the parole officer appended a form letter setting forth various standard directions to the Marshal applicable in federal parole violations. In the instant letter of instruction, one of the paragraphs was marked:

Please hold Warrant in abeyance. If pending charge results in no-eonviction, advise Board for further instructions. However, should subject change plea to guilty or be found guilty, place a detainer and assume custody if and when released.

The warrant and instruction letter were received by the United States Marshal’s office in Los Angeles on January 10, 1972. That day, the supervising deputy of the warrant section noted receipt in his office’s warrant register.

The key fact in this ease is that in his handling of the warrant, the officer did not heed the critical paragraph of the instruction letter but, rather than properly placing the letter within the files annexed to the warrant, improperly assigned the warrant to other deputies for execution.

These marshals maintained possession of the warrant until January 25, 1972. On that date, upon their transfer within the Marshal’s office,’ they turned over possession of their warrants to Deputy Marshal Vilt. He carried it within his briefcase until February 7, 1972 while he worked on other warrants.

On February 7, 1972, Vilt and his partner requested and gained the cooperation of the Los Angeles Police Department to effectuate the arrest. While approaching the residence, they saw the motions of shadows and heard movement. An observer was posted at the rear of the structure. The marshals then announced their presence and purpose. Mr. Cox opened the door; the marshals entered and placed him under arrest.

As one of the marshals entered, he observed Ms. Roberts running from the living room through the dining room, brown paper bag in hand. He followed her' to the bathroom where she had locked herself. Through the keyhole he saw her dispose of the bag through the window. Ms. Roberts was then apprehended and returned to the living room; there the police officers had assembled other individuals present. The bag was confiscated and was found to contain narcotics.

Subsequently, the marshals obtained a search warrant for the residence. A thorough search revealed a large quantity of narcotics.

Prior to the arrests of the individuals present, Mr. Cox had been arrested for a parole violation during 1971. Mr. Cox filed a petition for writ of habeas corpus, contending that the Bureau of Prisons had not properly credited him with 629 days on his sentence. On January 31, 1972, District Judge Curtis granted the relief requested, and judgment was entered on February 18, 1972. The practical effect of his ruling is that Mr. Cox’s original sentence terminated on September 15, 1971.

INVALIDITY OF THE WARRANT

The government correctly states that a parole warrant issued while a man is on parole may be executed after the original term has expired. Cox v. Feldkamp, 438 F.2d 1, 3 (5th Cir. 1971); Williams v. United States Board of Paroles, 428 F.2d 1210 (5th Cir. 1970); Melton v. Taylor, 276 F.2d 913 (10th Cir. 1960); Schiffman v. Wilkinson, 216 F.2d 589, 591 (9th Cir. 1954), cert. denied, 348 U.S. 916, 75 S.Ct. 299, 99 L.Ed. 719 (1955).

Thus, the government would have us hold that even if it were conceded that Mr. Cox was discharged from parole as of January 31, 1972, the date the habeas corpus relief was granted (i.e., before the search of the premises), rather than on February 18, 1972, the date of formal judgment (i.e., after the search), nevertheless the validity of the previously issued warrant was not affected.

Appellees, on the other hand, argue that Mr. Cox’s parole status ended on September 15, 1971, notwithstanding that this determination was not made until January or February, 1972. Thus, appellees argue that the parole warrant, not having been issued within the maximum term of the original sentence, is necessarily invalid. 18 U.S.C. § 4205. We need not decide this issue for different reasons dictate the conclusion that the warrant was indeed invalid.

The crux of this instant ease is what the government would term the discovery of the evidence through serendipity by marshals acting properly in the good faith performance of their duties. We cannot agree.

The government cites Agnew v. City of Compton, 239 F.2d 226, 231 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957) for the proposition that “[n]o one has a constitutional right to be free from a law officer’s honest misunderstanding of the law or facts in making an arrest.” But that statement arose in a civil rights action and centered about the necessity of establishing an intent to discriminate or deprive one of a federal right. Here, however, the issue is not civil damages but whether a violation of the fourth amendment requires suppression. Hence, Agnew offers the government nothing of merit.

The United States also relies upon Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) and United States v. Baca, 444 F.2d 1292 (10th Cir. 1971) to establish that when officers act in good faith and in so doing make a reasonable mistake, their misunderstanding is excused to the extent that the search is held nonviolative. Abel and Baca were, however, both premised on specific findings of the respective district courts, that the agents had not acted in bad faith and that the warrant had in the regular' course of events been issued in good faith. The district court here made no such finding. Rather, Judge Williams stated:

I understand further that the warrant, together with that appended note, came to the possession of the United States Marshal and that either accidentally or on purpose the marshal sought to execute or serve that warrant on or about February 7th, despite the admonition of the parole officer to hold the warrant in abeyance;

Reporter’s Transcript p. 51.

The government also calls this court’s attention to Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971). The Supreme Court there upheld a warrantless search incident to a warrantless arrest of a wrong man. Again, though, Hill was based upon reasonable, good faith belief. Id. at 802, 91 S.Ct. 1106. But good faith notwithstanding, Hill may be distinguished, for Hill concerns mistaken identity rather than an invalid warrant. More analogous to the instant situation is Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) in which the court held an arrest to be invalid because the warrant was deficient despite the good faith of the arresting officers. Thus, in good faith officers can search without warrant a wrong man incident to a warrantless arrest, yet in good faith officers cannot arrest the right man if the warrant be invalid. This is not an anomaly. Law enforcement agents must take suspects as they find them; verbal descriptions and even photographs are not foolproof. Common sense dictates that officers must utilize such imperfect information to their best ability. The determination of the validity of the instant warrant is not similarly hampered. Appellees cite this court to Chieppa v. Krimsky, 169 F.Supp. 337 (S.D.N.Y.1959). There petitioner argued that it was improper to defer execution of a warrant via an annexed letter; the district court found his argument spurious. “The power to defer necessarily creates the power to give implementing instructions to defer. It is an emphasis of form over substance to argue that the warrant itself must call for its delayed execution, and that an accompanying letter is insufficient.” Id. at 344. Thus, we would hold that an accompanying letter of instruction directing the officers to hold a warrant in abeyance has the same effect as if the direction had been included on the face of the warrant. Thus, the warrant being invalid, the arrest is invalid, absent of course any independent reason for an arrest.

The government, nevertheless, contends that even if the warrant was defective and hence the marshals were unlawfully present, evidence of another, different crime discovered on the premises is admissible. The government relies upon United States v. Bacall, 443 F.2d 1050 (9th Cir. 1971), cert. denied, 404 U.S. 1004, 92 S.Ct. 565, 30 L.Ed.2d 557 (1971), and on United States v. Williams, 436 F.2d 1166 (9th Cir. 1970). Its reliance is misplaced. Bacall pertained to an involved investigation in which the illegal activity resulted in information — considered to be de minimis in comparison with the mass of other legitimate information — that led to the evidence sought to be suppressed. Williams involved officers gaining information from neighbors in a quest merely to find “animal sitters” after an illegal arrest and search. Here the primary illegality was the actual entrance of the marshals: what they immediately saw was neither de minimis or so attenuated by an unrelated sequence of events as to be purged under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Having concluded that the taint of the primary illegality was not purged, it is unnecessary to determine whether probable cause existed to invade the privacy of the bathroom, the decision to do so being founded merely upon the rapid movement of Ms. Roberts, paper bag in hand.

DISMISSAL OF THE INDICTMENT

During the pendency of the appeal on the suppression issue, the defendants moved for dismissal of the indictment. The government resisted and relied upon 18 U.S.C. § 3731 which provides, in part: “Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be released in accordance with chapter 207 [general release provisions] of this title.” The trial judge, nevertheless, granted dismissal, concerned as he was with the aspects of the guarantee of speedy trial within the sixth amendment. We are mindful of United States v. Mitchell, 425 F.2d 1353 (8th Cir. 1970), cert. denied, 400 U.S. 853, 91 S.Ct. 85, 27 L.Ed.2d 90 (1970), but, given the circumstances of this case, we do not feel the district court erred.

The orders of the district court are, therefore, affirmed.

      . Another individual, Manuel H. Ramirez, was present at the residence at the same time, allegedly to buy narcotics from appellee Cox. He was arrested and later indicted and eventually tried in March, 1972. During the course of the Ramirez trial, the court granted a motion to suppress certain evidence on the basis of the unlawful execution of the parole warrant for the arrest of Cox, and a mistrial was granted. The government appealed the granting of the motion, only to later dismiss its appeal.

      . Thus, if the arresting officer himself originally had ample probable cause to arrest, the invalidity of the warrant would not be fatal to the government’s cause. E. g., Ray v. United States, 412 F.2d 1052, 1053 (9th Cir. 1969). Here, however, the marshals had no reason, save the warrant, to invade the residence at the outset.