author: JAMES M. CARTER, Circuit Judge:

text:
    Bruce A. CAMPBELL, Petitioner, v. UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT of CALIFORNIA, Respondent.
    No. 73-3022.
    United States Court of Appeals, Ninth Circuit.
    April 19, 1974.
    As amended Aug. 15, 1974.
    Rehearing and Rehearing En Banc Denied Sept. 26, 1974.

      James F. Hewitt (argued), Federal Defender, William A. Broekett, Jr., Asst. Federal Public Defender, San Francisco, Cal., for petitioner.
    James L. Browning, Jr., U. S. Atty., James A. Bruen (argued), Lawrence Callaghan, Asst. U. S. Attys., San Francisco, Cal., for real party in interest, United States.
   OPINION

On Petition for a Writ of Mandamus

Before DUNIWAY and CARTER, Circuit Judges, and SOLOMON, District Judge.

JAMES M. CARTER, Circuit Judge:

This case presents a problem of great importance in the administration of justice in the area of criminal law. The question presented by way of a petition for mandamus is whether an order of reference in a criminal case to a magistrate to hold an evidentiary hearing on a motion to suppress, and to make findings of fact and recommend conclusions of law, is valid.

Petitioner raises two questions:

(1) Is the statute, 28 U.S.C. § 636, under which the reference was made, constitutional as applied ?

(2) Is the order of reference within the scope of the statute ?

At the argument petitioner contended that the district court abused its discretion in making the order of reference. The contention was not presented by the petition for the writ, nor briefed on this appeal. It has no merit.

We deny the petition for a writ of mandamus.

I

Procedural Background

A criminal case, United States v. Bruce A. Campbell, was pending before the United States District Court for the Northern District of California. Campbell, the petitioner herein, filed a motion to suppress evidence. Pursuant to Local Rules 503 and 505 of the Northern District of California, the district court, on October 12, 1973, referred the motion to suppress to the United States Magistrate for recommended findings of fact and conclusions of law.

At the time the court proposed to refer the motion to the magistrate, both the petitioner and the government opposed the suggestion. The petitioner listed his objections as follows:

(1) Difficulty in getting a proper transcript from the magistrate because the procedure in effect provides for the use of a tape recording device rather than a court reporter;

(2) The statute, 28 U.S.C. § 636, does not authorize a magistrate to exercise the power to hear motions to suppress and Congress did not intend for a magistrate to sit in an Article III proceeding.

(3) The outcome of the motion to suppress will dispose of the case.

The government then joined in these objections.

The district judge stated as his “philosophy” in reviewing the proceedings of the magistrate that he accepted his rulings on facts because the magistrate “is a judicial officer” and a defendant is “entitled to one hearing on the question of fact on the motion to suppress.”

The judge further stated that he did not hear appeals from decisions of magistrates on questions of law and mixed questions of law and fact, and that he had previously granted a motion to suppress when the magistrate recommended that the motion be denied.

Local Rule 503 tracked the language of 28 U.S.C. § 636(b) limiting the scope of a magistrate’s duties in criminal matters to those which were “not inconsistent with the Constitution and laws of the United States.”

Local Rule 505(4) provides for a “review of a magistrate’s decision by the Judge” upon a notification in writing to the magistrate and the adverse party, with a statement of objections to be made promptly but in no event later than five days from notice of the magistrate’s action or decision. It further provides that “If review is requested, the Clerk shall promptly set and reasonably notice the time for review by the referring Judge; otherwise the court shall proceed to consider and take such action as it deems proper upon the report and any proposed order of the magistrate.” (Emphasis supplied.)

Following the order of referral, and before any proceedings were held, the petitioner Campbell, on October 12, 1973, filed a petition in this court for a writ of mandamus, directing the trial judge to withdraw his previously entered order of reference and directing the judge to take evidence on the hearing of the motion to suppress, and for a stay pending the court’s decision. A panel of this court granted a stay and expedited the proceeding.

II

Constitutionality of the Statute as Applied

Petitioner makes no frontal attack on the constitutionality of the statute on its face. In substance, petitioner is contending that the statute as applied is unconstitutional.

Petitioner’s first contention is based in part on Sec. I, Article III, of the Constitution of the United States. He contends that only an Article III judge can hear a motion to suppress. The section reads:

“Article HI. — The Judiciary
Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferi- or Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Palmore v. United States, 411 U.S. 389, 93 S.Ct. 1670, 36 L.Ed.2d 342 (1973), by analogy, decides this question. In that case, Palmore was tried and convicted by the Superior Court of the District of Columbia of a felony under the District’s Criminal Code. He contended he was entitled to be tried by an Article III judge with lifetime tenure and salary protection. The District of Columbia Court of Appeals affirmed and the Supreme Court, in turn, affirmed the District of Columbia Court of Appeals.

The defendant’s contention in Palmore was summed up by the Court as follows: “ . . . an Article III judge must preside over every proceeding in which a charge, claim, or defense is based on an Act of Congress or a law made under its authority. At the very least, it asserts that criminal offenses under the laws passed by Congress may not be prosecuted except in courts established pursuant to Article III.” The Court held, “In our view, however, there is no support for this view in either constitutional text or in constitutional history and practice.” [p. 400, 93 S.Ct. p. 1678], And, “It was neither the legislative nor judicial view, therefore, that trial and decision of all federal questions were reserved for Art. Ill judges. Nor, more particularly has the enforcement of federal criminal law been deemed the exclusive province of federal Art. Ill courts.” [p. 402, 93 S.Ct. p. 1678]. Amount of salary, lack of tenure and provisions for removal by a commission were found not to dictate a different decision, [pp. 407-410, 93 S.Ct. 1670.]

The magistrate serves for a term without tenure, at a salary below that of a district judge, and can be removed by the appointing judges. We see in these facts no reason to view his service as a violation of Article III of the Constitution.

III

Under 28 U.S.C. §. 636(b) a United States Magistrate May Hold an Eviden-tiary Hearing on a Motion to Suppress

Section 636(b) provides that there may be assigned to magistrates, in addition to the duties listed in Section 636(a), “such additional duties as are not inconsistent with the Constitution and laws of the United States.”

The additional duties authorized are not limited solely to those listed in § 636(b)(1), (2) and (3), nor by ejusdem generis, but may include any duties not inconsistent with the Constitution or laws of the United States.

The doctrine of ejusdem generis was one of the grounds listed in Wedding v. Wingo (6 Cir. 1973) 483 F.2d 1131 affirmed sub nom. Wingo v. Wedding, 414 U.S. 1157, 94 S.Ct. 914, 39 L.Ed.2d 109, 1974, for barring a magistrate from conducting an evidentiary hearing in a habeas proceeding and making recommended findings of fact and conclusions of law. The Eighth Circuit in Noor-lander v. Ciccone (1973) 489 F.2d 642, a habeas case, declined to subscribe to Wedding’s ejusdem generis reasoning (p. 647) and we likewise refuse to follow it in our case involving a motion to suppress evidence. The Supreme Court in Wingo v. Wedding, supra, did not discuss ejusdem generis in its affirmance. (See discussion, infra.)

The Sixth Circuit, in Wedding v. Wingo, supra, 483 F.2d p. 1135, stated: “This doctrine directs that a general provision of a statute will be controlled and limited by subsequent statutory language more specific in scope.” Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 228-229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957), was cited as authority for this proposition.

We cannot agree with the court’s application of the ejusdem generis doctrine to Section 636(b). In Fourco the Supreme Court held that a special venue statute, 28 U.S.C. § 1400(b), controlled - over a general venue statute, 28 U.S.C. § 1391(c). The Fourco case does not support the Sixth Circuit’s conclusion regarding Section 636(b).

Congress, in § 636(b), used language which clearly stated its intentions that there may be assigned to a magistrate “such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to .... ” With such an express statement in the statute, it cannot be argued that the statute did not mean what it said. No conflict between a general and a specific proposition of law is involved as in the typical ejusdem generis situation.

The Supreme Court, in Wingo v. Wedding, supra, struck a blow against the use of magistrates, but we think that the case is limited to the use of magistrates in connection with habeas petitions and does not control our case. In substance, the Court held that 28 U.S.C. § 2243, like its predecessor, Rev.Stat. § 761, requires that the district court personally conduct evidentiary hearings in federal habeas corpus cases; that Congress, in enacting 28 U.S.C. § 636, did not intend to alter the requirements of 28 U.S.C. § 2243; and that the local rule authorizing magistrates to hold habeas corpus evidentiary hearings was invalid because it was inconsistent with the laws of the United States and because 28 U.S.C. § 636(b) limits a magistrate’s review in habeas matters to proposing, not holding a hearing. The Court also held that the review procedure relating to electronic recording did not enable the district court to evaluate, by observation, the credibility of the witness.

The question in our case is whether there is any similar requirement that the district court, at the first instance, hear the evidence on a motion to suppress.

Rule 41(e), Fed.R.Crim.P., as it read in 1948, stated:

“Motion for Return of Property and to Suppress Evidence. A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for the use as evidence anything so obtained on the ground that .... The judge shall receive evidence on any issue of fact necessary to the decision of the motion. . . .” (Emphasis added)

By an amendment of April 24, 1972, effective October 1, 1972, subsection (e) was amended so as to pertain only to motions for the return of property and subsection (f) was amended to cover motions to suppress evidence. Subsections (e) and (f) now read:

“(e) Motion for Return of Property. A person aggrieved by an unlaw search and seizure may move the district court for the district in which the property was seized for the return of the property on the ground that he is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted the property shall be restored and it shall not be admissible in evidence at any hearing or trial. If a motion for return of property is made or comes on for hearing in the district of trial after an indictment or information is filed, it shall be treated also as a motion to suppress under Rule 12.
“(f) Motion to Suppress. A motion to suppress evidence may be made in the court of the district of trial as provided in Rule 12." (Emphasis added)

The Notes of the Advisory Committee on Rules are not helpful.

Rule 41(f) as amended in 1972 requires us to consider Fed.R.Crim.P. 12. It has not been amended since its adoption.

“Rule 12. Pleadings and Motions before Trial; Defenses and Objections
-X* 'X -X* *x* *x*
(b) The Motion Raising Defenses and Objections.
(1) Defenses and Objections Which May Be Raised. Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.
(2) Defenses and Objections Which Must Be Raised. Defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than that it fails to show jurisdiction in the court or to charge an offense may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding.
* * * * -X- -X-
(4) Hearing on Motion. A motion before trial raising defenses or objections shall be determined before trial unless the court orders that it be deferred for determination at the trial of the general issue. An issue of fact shall be tried by a jury if a jury trial is required under the Constitution or an act of Congress. All other issues of fact shall be determined by the court with or without a fury or on affidavits or in such other manner as the court may direct.” (Emphasis added)

It is clear that the motion to suppress comes within subsection (b)(1) of Rule 12, as a defense that may be raised.

The last sentence of subsection (b)(4) of Rule 12, reading: “All other issues of fact shall be determined by the court with or without a jury or on affidavits, or in such other manner as the court may direct,” has resulted in little case law.

As to affidavits, we find only two cases: United States v. Mungiole (E.D.Pa.1954) 125 F.Supp. 32, states that the trial of mixed questions of law and facts on affidavits is not desirable. In re Alperen (D.Mass.1973) 355 F.Supp. 372, affirmed, sub nom. United States v. Doe (1 Cir.1973) 478 F.2d 194, approves the use of affidavits on the issue of whether the Attorney General properly authorized a wire tap.

We find no law on the meaning of the phrase “or in such other manner as the court may direct.”

The Notes of the Advisory Committee on Rules are not helpful.

It is clear why the Rules, by the 1972 amendment, provided separately for motions to return property (Rule 41(e)) and motions to suppress evidence (Rule 41(f)). It is not clear why under Rule 41(e), “The Judge shall receive evidence on any issue of fact . . . ”, except that the phrase was in subsection before the amendment. But the 1972 amendment to Rule 41(f) did not contain that language and placed the motion to suppress under Fed.R.Crim.P. 12, with its broad language in subsection (b)(4).

On the same date as the amendment of Fed.R.Crim.P. 41 (April 24, 1972), Fed.R.Crim.P. 5.1 was added.

“Rule 5.1 Preliminary Examination
(a) Probable Cause Finding. If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the federal magistrate shall forthwith hold him to answer in district court. The finding of probable cause may be based upon hearsay evidence in whole or in part. The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12. . . .” (Emphasis added)

Rule 5.1 concerns preliminary examination by a magistrate and does not concern motions to suppress as shown in subsection (a).

The Notes of the Advisory Committee on Rules is devoted largely to a discussion of the receipt of hearsay evidence by the magistrate. The Notes also state:

“For the same reason, subdivision (a) also provides that the preliminary examination is not the proper place to raise the issue of illegally obtained evidence. This is current law. In Giordenello v. United States, 357 U.S. 480, 484 [78 S.Ct. 1245, 2 L.Ed.2d 1503] (1958), the Supreme Court said:
[T]he Commissioner here had no authority to adjudicate the admissibility at petitioner’s later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41(e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may ‘ * * * move the district court * * * to suppress for use as evidence anything so obtained on the ground that * * * ’ the arrest warrant was defective on on any of several grounds.
* «• * * -x- *
See also C. Wright, Federal Practice and Procedure: Criminal § 80 at 143 n. 5 (1969, Supp.1971) 8 J. Moore, Federal Practice f[ 6.03 [3] (2d ed. Cipes 1970, Supp.1971). The Manual for United States Commissioners (Administrative Office of United States Courts, 1948) provides at pp. 24-25: 'Motions for this purpose [to suppress illegally obtained evidence] may be made and heard only before a district judge. Commissioners are not empowered to consider or act upon such motions.’ ”

The Giordenello case in 1958 referred to Fed.R.Crim.P. 41(e) before its amendment in 1972 removing motions to suppress from subsection (e) and placing them in (f), as set forth above. We do not think Rule 5.1 has any impact on our problem.

Since Fed.R.Crim.P. 12 now describes proceedings on motions to suppress evidence, it is the controlling rule. Unlike 28 U.S.C. § 2243, Rule 12 does not require the district court to conduct the hearing. We know of no statute which does so require. Instead, Rule 12 states that an issue of fact shall be determined in such manner as the court shall direct.

Accordingly, our case does not come within the bar of Wingo v. Wedding, supra. In addition, the procedure we propose, infra, for the district court’s consideration of magistrate’s proposed findings meets the problem of the credibility of witnesses based on observations discussed in Wingo v. Wedding, supra.

The use of magistrates has been upheld in the following situations not listed in § 636(b)(1), (2) or (3).

(a) Recommendation to the district court as to whether a motion to dismiss should be granted: Givens v. W. T. Grant Co. (2 Cir. 1972) 457 F.2d 612.

(b) Recommendation to the district court as to whether a motion for summary judgment should be granted: Remington Arms Co. v. United States (2 Cir. 1972) 261 F.2d 1268.

(c) Recommendation to the district court as to whether claimant was denied due process in her disability hearing and whether there was substantial evidence to justify the Secretary of Health, Education and Welfare in his denial of her claim. Dewrell v. Weinberger (5 Cir. 1973) 478 F.2d 699.

We therefore hold that a magistrate may preside at a pretrial motion to suppress evidence. It follows that the magistrate may make proposed findings of fact and conclusions of law, and present them to the district court along with a proposed order.

A magistrate may not, in a hearing on a motion to suppress, exercise ultimate decision-making power. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), holds that in the particular facts of that case, a district court abdicated its judicial function, [pp. 255-256, 77 S.Ct. 309]. However, La Buy is not here controlling.

There the district judge referred to a master two anti-trust cases (one with a prospective period of six weeks for trial), with instructions to prepare findings of fact and conclusions of law. The judge had made rulings and written memoranda and opinions on the cases over a period of years. The master was a private practitioner, not a judicial officer. The case stands for the proposition that the trial of an entire, complicated case may not be referred to a master. The ease is not helpful on the question of a reference to a magistrate for an evi-dentiary hearing and recommended findings and conclusions on a motion to suppress evidence.

In TPO, Inc. v. McMillen (7 Cir. 1972) 460 F.2d 348, the district court referred a motion to dismiss, treated as a motion for a summary judgment, to a magistrate for decision. A motion to vacate the reference, on the ground a magistrate was without power to rule on a motion to dismiss, was denied. The court of appeals granted a writ of mandamus, directing the district court to vacate the reference and the magistrate’s resultant order.

The court, quoting from the statute and legislative history, held:

“Congressional intent is clear that magistrates’ civil jurisdiction includes only ‘such additional duties as are not inconsistent with the Constitution and laws of the United States,’ that there is to be ‘no abdication of the decision-making responsibility’ of district courts, that ‘the district judge is to retain the ultimate responsibility for the conduct of pretrial or discovery proceedings,’ and that § 636 (b) ‘cannot be read in derogation of the fundamental responsibility of judges to decide the cases before them.’
“We conclude that magistrates have no power to decide motions to dismiss or motions for summary judgment, both of which involve ultimate decision making, and the district courts have no power to delegate such duties to magistrates.” (p. 359; Footnotes omitted.)

Thus, while a magistrate may recommend to the district court whether to grant a motion to dismiss, Givens, supra, or a motion for summary judgment, Remington, supra, he may not himself decide the motion. TPO, Inc., supra. Although a magistrate may recommend to the district court whether there is substantial evidence to support a denial by the Secretary of Health, Education and Welfare of a disability claim, Dew-rell, supra, he may not make a decision on this question. Ingram v. Richardson (6 Cir. 1972) 471 F.2d 1268, and TPO, Inc., supra. See Dye v. Cowan (6 Cir. 1972) 472 F.2d 1206, where the court in dictum states that the granting of a certificate of probable cause by a magistrate is ultra vires and void.

Although we hold that a magistrate is authorized to preside at an evidentiary hearing on a motion to suppress evidence and is authorized to make proposed findings of fact, conclusions of law and a proposed order after a hearing on a motion to suppress, we hold that the district court must make the final adjudication on the motion. TPO, Inc. v. McMillen, supra; United States ex rel. Henderson v. Brierley, supra; Noorlander v. Ciccone, supra; Asparro v. United States (D.C.Conn.1973) 352 F.Supp. 1085.

In carrying out its duties the district court will conform to the following procedure:

If neither party contests the magistrate’s proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law.
The district court, on application, shall listen to the tape recording of the evidence and proceedings before the magistrate and consider the magistrate’s proposed findings of fact and conclusions of law. The court shall make a de novo determination of the facts and the legal conclusions to be drawn therefrom.
The court may call for and receive additional evidence. If it finds there is a problem as to the credibility of a witness or witnesses or for other good reasons, it may, in the exercise of its discretion, call and hear the testimony of a witness or witnesses in an adversary proceeding. It is not required to hear any witness and not required to hold a de novo hearing of the ease.
Finally, the court may accept, reject or modify the proposed findings or may enter new findings. It shall make the final determination of the facts and the final adjudication of the motion to suppress.

Applying the above procedure to the case at bar, the district court was in error in stating it must accept the findings of the magistrate. The district court has the duty to make the final decision on the facts.

IV

The. Local Rules

We acknowledge that the Northern District was one of the first districts in the United States to implement the Magistrates Act and took a broader view than many of the other districts in the country.

We prefer not to discuss the local rules in detail. The evidentiary hearing has not been held, nor has the district court reviewed the magistrate’s recommendations. The matter has not been briefed. We make one comment.

Local 503 provides magistrates shall “have the additional power and duty . . subject to the review hereinafter provided in Rule 505, to perform any and all powers of a Judge of this Court in criminal matters which are not inconsistent with the Constitution and laws of the United States, including but not limited to the following: . . . (2) To hear motions regarding suppression of evidence under F.R.Crim. P. [Rule 41] or of statements obtained through illegal interrogation (Local Rule 205(b)); ...” (Emphasis added).

The phrase “to perform' any and all powers of a Judge of this Court,” even coupled with the statutory limitations (“not inconsistent,” etc.) raises questions of uncertainty and ambiguity. In certain situations the magistrate can exercise power of the judge, without any further action by the judge. (E. g., appointing counsel for indigents; approving substitution of counsel; fixing bail; etc.) In other situations the magistrate can make recommendations but the adjudication power rests only with the judge. (E. g., decision on a motion to suppress; for change of venue; for severance of trial of codefendants; etc.) The magistrate may prepare a memorandum and a recommended order, but the judge must adjudicate the motion.

Accordingly, Local Rules 503 and 504 (7) should be reexamined by the district court, and the district court should make clear the two categories and the matters properly included in each. Except in those instances in which the magistrate can act independently and make the final decision, the rules should provide that the magistrate shall make specific proposed findings of fact, conclusions or recommendations. The district court shall make the final determination.

The petition for a writ of mandamus is denied.

       Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation.

      . 28 U.S.C. § 636.
      “§ 636. Jurisdiction, powers, and temporary assignment
      (a) Each United States magistrate serving under this chapter shall have within the territorial jurisdiction prescribed by his appointment — •
      (1) all powers and duties conferred or imposed upon United States commissioners by law or by the Rules of Criminal Procedure for the United States District Courts;
      (2) the power to administer oaths and affirmations, impose conditions of release under section 3146 of title 18, and take acknowledgments, affidavits, and depositions ; and
      (3) the power to conduct trials under section 3401, title 18, United States Code, in conformity with and subject to the limitations of that section.
      (b) Any district court of the United States, by the concurrence of a majority of all the judges of suhh district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
      (1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts ;
      (2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions ; and
      (3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.

      . “Local Rules of Practice, United States District Court, Northern District of California :
      RULE 503:
      MAGISTRATES — ADDITIONAL POWERS AND DUTIES — CRIMINAL MATTERS
      Pursuant to 28 U.S.C. § 636(b), each of said magistrates in this district shall have the additional power and duty, whenever requested by a Judge’s order of reference and in the manner and subject to the review hereinafter provided in Rule 505, to perform any and all powers of a Judge of this Court in criminal matters 'which are not inconsistent with the Constitution and laws of the United States, including but not limited to the following:
      (1) To hear discovery motions in criminal cases, including but not limited to motions and proceedings under F.R.Crim.P. 16; to conduct pretrial proceedings in criminal cases, including, but not limited to pretrial motions and proceedings under F.R.Crim.P. 17.-1 and Local Rule 208.
      (2) To hear motions regarding bill of particulars ; transfer proceedings under F.R. Crim.P. 20; removal proceedings under F. R.Crim.P. 20(b) ; mental competency proceedings under 18 U.S.C. §§ 4241-4248; revocation of probation ; narcotic rehabilitation proceedings under 18 U.S.C. §§ 4251 — 4255; suppression of evidence under F.R.Crim.P. 41 or of statements obtained through illegal interrogation (Local Rule 205 (b)) ; change of place of trial; severance of trial as to multiple defendants; appointment of expert witnesses, interpreter or examining physician ; fixing the terms and conditions of bail (P.R.Crim.P. 46; 18 U.S.C. §§ 3141-3152) ; appointment and release of counsel; to conduct voir dire examination and impanel trial juries in criminal cases upon written agreement of the parties.
      RULE 504:
      MAGISTRATE — SERVICE ON CRIMINAL CALENDAR OP THE COURT
      Pursuant to 28 U.S.C. § 636(b), each of said magistrates in this district shall have the additional power and duty, whenever assigned and directed by a General Order of this Court, to preside over the Criminal Calendar of the Court (L.R. 200) and, when so assigned and directed, to perform, without further request or reference from a Judge, the following functions of Criminal Calendar Judge as set forth in L.R. 200(b) and L.R. 205(a).
      (1) To appoint counsel.
      (2) To fix terms and conditions of bail.
      (3) To conduct arraignments under Rule 10, P.R.Cr.P.
      (4) To take or enter pleas of “not guilty” and to thereupon refer the case to the Judge to whom assigned as provided in L.R. 200(e) for all further proceedings.
      (5) To order prejudgment reports whenever a defendant states an intention to plead “guilty” or “nolo contendere” and thereupon to refer the case for plea and judgment to the Judge in the same manner as in (4) hereof.
      (6) To grant motions to dismiss when made by the United States Attorney; to accept waivers of indictment under Rule 7(b), P.R.Cr.P., and to permit amendments of information under Rule 7 (e).
      (7) To hear motions made prior to plea under Rule 12, P.R.Cr.P., or Local Rule 205(a) without any reference by a Judge but only in the manner and to the extent prescribed by statute and subject to review by the assigned Judge as hereinafter provided in L.R. 505. Such motions include motions for bill of particulars under Rule 7(f) ; motions to strike surplusage under Rule 7(d) P.R.Crim.P.; motions regarding mental competency under 18 U.S.C. §§ 4244 and 4248; motions for transfer under Rule 20, P.R.Cr. P.; motions for removal under Rule 40(b), P.R.Cr.P.
      RULE 505:
      REFERENCES TO MAGISTRATES — PROCEDURE — REVIEW
      (1) Except as otherwise provided by Rule 504, the additional powers and duties described in Rules 502 and 503 shall be exercised only upon written order of reference by a Judge of this Court precisely setting forth the subject matter and terms of the reference. Any such reference order shall be filed with the Clerk in the action or matter from which the reference arises and a certified copy thereof delivered by the Clerk to the Presiding Magistrate, who shall have power to subassign any such reference to another magistrate.
      (2) Magistrates, acting under such a reference are authorized to set hearings on the referenced matter, notify and require parties to appear, witnesses to appear, require proofs, briefs and argument, and to make such further orders as may be incidental or necessary to the completion of the reference.
      (3) The magistrate’s records (which shall be maintained separately from the Clerk’s file and entitled “Magistrate’s Pile Re -,” bearing the same title and number as the District Court file), shall consist of the certified copy of the order of reference, all papers, transcripts or summaries of evidence, all exhibits or briefs filed with the magistrate during the reference and the docket of proceedings taken before him, together with the magistrate’s report and recommendation, findings, conclusions, and proposed order.
      (4) Any party who desires review of a magistrate’s decision by the Judge, shall promptly (in no event later than 5 days from notice of the magistrate’s action or decision) so notify the magistrate and the adverse party in writing with a statement of his objections.
      Upon completion of the reference and expiration of the time for notice of request for review (or upon admission of notice by all parties), the magistrate shall lodge his record with the Clerk for delivery to the referring Judge, including in the record the magistrate’s certificate of service of notice of his decision (or their admission of notice thereof) and any objections or requests for review (or any waiver by the parties of review) .
      If review is requested, the Clerk shall promptly set and reasonably notice the time for review by the referring Judge; otherwise, the Court shall proceed to consider and take such action as it deems proper upon the report and any proposed order of the magistrate.
      (5) The Presiding Magistrate shall maintain a register of all references pending before a magistrate showing the title and number of the case, the date of the reference order, the Judge making the reference, the magistrate to whom the reference was assigned, and the subject matter of the reference. The Presiding Magistrate shall also quarterly report to the Chief Judge upon the condition of the Reference Register.”

      . The legislative history of Sec. 636 is set forth in detail in TPO, Inc. v. McMillen (7 Cir. 1972) 460 F.2d 348, and Noorlander v. Ciccone (8 Cir. 1973) 489 F.2d 642.

      . Note to Rule 41:
      “As amended, subdivision (e) provides for a return of the property if (1) the person is entitled to lawful possession and (2) the seizure was illegal. This means that the judge in the district of seizure does not have to decide the legality of the seizure in eases involving contraband which, even if seized illegally, is not to be returned.
      A sentence is added to subdivision (e) to provide that a motion for return of property, made in the district of trial, shall be treated also as a motion to supjjress under rule 12. This change is intended to further the objective of rule 12 which is to have all pretrial motions disposed of in a single court appearance rather than to have a series of pretrial motions made on different dates, causing undue delay in administration.
      Subdivision (f) is new and reflects the position that it is best to have the motion to suppress made in the court of the district of trial rather than in the court of the district in which the seizure occurred. The motion to suppress in the district of trial should be made in accordance with the provisons of rule 12.”

      . “Note to Subdivision (b) (4). This rule substantially restates existing law. It leaves with the court discretion to determine in advance of trial defenses and objections raised, by motion or to defer them for determination at the trial. It preserves the right to jury trial in those cases in which the right is given under the Constitution or by statute. In all

        other cases it vests in the court authority to determine issues of fact in such manner as the court deems appropriate." (Emphasis added)

      . See United States v. Matlock, 415 U.S. 164, 172, 94 S.Ct. 988, 994, 39 L.Ed.2d 242, where the Court stated :
      “. . : the rules of evidence normally applicable in criminal trials do not operate with full force at hearings before the judge to determine the admissibility of evidence.” Citing Brinegar v. United States, 338 U.S. 160, 173, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). And in Note 9, 94 S.Ct. at 994, reference is made to the difference between admissibility of evidence on the merits as contrasted to use of evidence “. . . for the purpose of determining a preliminary question of admissibility. . . . ”

      . In discussing the magistrate’s function of assisting judges on criminal pretrial motions, Judge William E. Doyle, Chairman of the Judicial Conference’s Committee to Implement the Federal Magistrate’s Act, now a judge of the Tenth Circuit, wrote:
      “The provision adopted makes clear that the magistrate in performing this function is rendering assistance to the judge. This does not set any limit on the extent of pretrial work which is subject to performance by the magistrate. It does, however, require that the district judge retain the ultimate responsibility in every such matter. It would seem that within this framework the magistrate could hear and preliminarily at least determine every type of pretrial motion so long as the decision making function is not surrendered."

      # # ❖ #
      “So long as the assignments are specific and do not involve the delegation to the magistrate of the trial of a case and as long as the report is advisory, most any specific task is subject to referral.” Implementing the Federal Magistrates Act, 39 Journal of Kansas Bar Assn. 25, 07, 69 (1970). (Emphasis added).

      . See McKinney v. Parsons (5 Cir. 1974) 488 F.2d 452, a post-conviction case where the district judge adopted the findings of a magistrate that certain films and magazines were obscene. The court reversed because the district judge did not personally inspect the alleged obscene material.

      . Retired Justice Tom Clark recommended full use of tlie magistrate :
      “Rather than more judges, I submit that we need to change our attitude about the functions that require a judge’s attention. ‘There was a time when we could perhaps afford the luxary of having fulltime judges deal with every minute detail of a judicial proceeding; but that moment is gone. We are in a crisis. We have more litigation, the cases are more complex, and the load continues to grow.’” (Citation omitted). ❖ ❖ * *
      “It remains to be seen whether all the district courts will utilize the magistrate system to its fullest extent. In some districts, the judges have been reluctant to extend the magistrate’s functions much beyond those of a commissioner, apparently feeling that every part of the judicial function requires the personal attention of the district judge. Hopefully, the success of the program in other districts will convince everyone that effective administration of justice is best achieved by full use of the magistrate.” Parajudges and the Administration of Justice, 24 Vanderbilt L.R. 1167, 1170, 1172, 1173, 1178 and 1179 (1971).


source: Caselaw Access Project

author: MOORE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James G. MASLANKA, Walter Richard Ercius, Steven Garrett Lamb, Barry Wesley Korn, Floyd Farrell Capo, Michael John Knight, and David Strongosky, Defendants-Appellants.
    No. 73-3416.
    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.
    Rehearings and Rehearing En Banc Denied Dec. 4, 1974.

      Hugh M. Davenport, Jacksonville, Fla., Oscar B. Goodman, Las Vegas, Nev., for Maslanka.
    Michael Knight, pro se.
    Robert A. Douglass, St. Petersburg, Fla., for Ercius.
    Martin G. Weinberg, Joseph S. Oteri, Boston, Mass., for Lamb and Korn.

      Percy Foreman, Dick DeGuerin, Houston, Tex., for Capo, Knight, Strongosky.
    William Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., Stewart J. Car-routh, Melvin R. Horne, Asst. U. S. Attys., Tallahassee, Fla., for plaintiff-appellee.
    Before MOORE, AINSWORTH and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge for the Second Circuit, sitting by designation.

   MOORE, Circuit Judge:

This appeal is from judgments of conviction entered against appellants in the United States District Court for the Northern District of Florida after a jury trial. Each appellant was accused and convicted of conspiring to import marijuana into the United States, 21 U. S.C. § 963 (1970) (Count 1); actual importation of the marijuana, 21 U.S.C. § 952(a) (1970) (Count 2); conspiring to possess the marijuana with intent to distribute, 21 U.S.C. § 846 (1970) . (Count 3); and actual possession of the marijuana with intent to distribute, 21 U.S.C. § 841(a) (1970) (Count 4).

Appellants were each sentenced to five years’ imprisonment on each count — to be served consecutively in each case with the exception of Ercius who was sentenced to serve his sentences on counts 3 and 4 concurrently with those on counts 1 and 2. We reverse the convictions on counts 1 and 2, the importation counts, and order that the indictments on these counts be dismissed. We affirm the convictions on counts 3 and 4, the possession counts.

The Facts

On March 5, 1973, Florida State Narcotics Agents were informed by two fishermen that there was a large pile of a substance believed by them to be marijuana at a spot along Rocky Creek, a navigable inlet of the Gulf of Mexico, across from Buckeye Landing. Agents Mortonson, Herring, and Kinsey along with Deputy Dyals, were sent to investigate this discovery and, upon crossing Rocky Creek, they located 18,000 pounds of what a field test proved to be marijuana. Shortly after this determination, Agent Kinsey noticed a blue Cadillac across Rocky Creek on the dirt road approaching the landing. He watched the progress of the Cadillac which, when it reached a spot on the road where the driver could see the unmarked police car at the landing, immediately turned back toward Florida State Route 361. Agent Kinsey shouted to one of their number, Agent Mortonson, who had remained with the police car, to follow “the blue car.” Mortonson started off in pursuit.

When Mortonson reached the intersection of the dirt road with Route 361, he saw a blue car, the only vehicle in sight, about half a mile north on Route 361, accelerating rapidly. Mortonson, after placing a blue revolving light on his dashboard, pursued the blue car, flashing his headlights and blowing his horn. The pursuit lasted approximately five miles, with Agent Mortonson reaching speeds of 105 miles per hour. After the Cadillac had pulled over, Agent Morton-son stopped his car behind it and, pulling his gun, approached the vehicle. Mortonson ordered the driver, appellant Maslanka, out of the car and arrested him for “attempting to elude a police officer and speeding.” While he was “patting down” Maslanka, Mortonson noticed a strong odor of marijuana about Maslanka’s person. He then ordered the other two occupants — appellants Knight and Ercius — out of the ear, and discovered the odor of marijuana around them as well. These three appellants were then arrested for the possession of the marijuana at Rocky Creek.

By this time another agent had arrived and the appellants were searched. The search of Maslanka revealed an airline ticket for passage from Kingston, Jamaica, to Ocho Rios and several receipts from Jamaican stores for clothing purchases. The search of Knight revealed a piece of paper covered with additions — apparently some sort of tally— cigarette papers and a cigarette made from what was later ascertained to be marijuana. It was also noted that the Cadillac bore out-of-state plates. •

Knight and Ercius were then taken to a police station. Maslanka, however, was taken by Mortonson in company with several other officers back to the landing. After they turned off Route 361 onto the dirt road and had proceeded to within 1,500-1,800 feet of the landing, they overtook a blue pick-up truck with Michigan license plates headed in the direction of Rocky Creek. Appellant Capo was driving, appellants Strongosky and Korn were with him in the cab, and appellant Lamb was in the open rear portion of the vehicle. Appellants were stopped and informed of the purpose of the agents’ presence at the landing. They were then given their Miranda, warnings, and asked to step out of the truck. It was noticed that three of appellants, Strongosky, Korn, and Lamb, were dressed in work clothes covered with vegetable particles and were unkempt as if they had been working in hay. It was further noticed that there was a strong smell of marijuana about these three. At this point all four, Capo, Strongosky, Korn and Lamb, were requested to accompany the officers to the landing where they were arrested.

While these appellants were taken off to jail, the agents began shifting the marijuana so that it could be removed for safekeeping. As it was eventually determined that the pile contained 18,000 pounds of the substance, the moving operation took most of the night. The sacking containing the marijuana was marked Kingston, Jamaica, the bags apparently having been made for the Shell Chemical Company operations in that city. At the site a barge half full of marijuana was discovered and it was eventually learned by investigation that it bore the fingerprints of Knight and Korn. It also was learned that this barge belonged to Capo.

Early the next morning, after the marijuana had been safely transported, Agents Kinsey and Mortonson returned to the jail where appellants had been incarcerated, took their clothes (with the exception of Capo’s) and sent them to a laboratory. The laboratory report as introduced at trial stated that minute particles of marijuana were contained in the clothing along with bits of jute fiber similar to that used in the sacking which contained the marijuana.

Probable Cause to Arrest

Each appellant contends that the case against him should have been dismissed because it stemmed from an arrest based on insufficient cause. The trial court at the suppression hearing overruled appellants’ objections stating with regard to appellants Maslanka, Knight, and Er-cius, who were in the blue Cadillac:

An officer who did not stop that vehicle ought to be removed from office in circumstances such as these.

Likewise with regard to the other appellants who were apprehended in the blue pick-up truck he ruled:

The arrest of Mr. Capo and the other occupants of that vehicle is obviously not an impermissible arrest because of the circumstances and I am not going to dwell further on that.

With these conclusions we agree.

To determine the presence or absence of probable cause to arrest, one must consider the totality of the circumstances surrounding the arrest. As the Supreme Court stated in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964):

Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that petitioner had committed or was committing an offense.

379 U.S. at 91, 85 S.Ct. at 225. See also United States v. Bowers, 458 F.2d 1045 (5th Cir.), cert. den., 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972).

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

The marijuana was hidden in a remote area of a rural county. This area was approached by a narrow deadend road. A ear came down the road but, upon observing an unmarked car at the landing, turned back, apparently in flight, toward the highway. Certainly these facts provided reason for Agent Mortonson to investigate. Mortonson reached Route 361 and observed the car rapidly moving toward the north. His pursuit lasted for five miles at speeds around 100 miles per hour. First, Agent Mortonson arrested the driver for speeding, and then noticed the pervading smell of marijuana about Maslanka’s person as well as the passengers.

An officer need not have probable cause before investigating suspicious circumstances:

We believe that these . . . officers would have been derelict in carrying out their appointed duties had they neglected to investigate given all of the circumstances at hand,

United States v. Allen, 472 F.2d 145, 147 (5th Cir. 1973).

Similarly, it is obvious that the agents, in stopping the blue pick-up truck with the out-of-state plates, were acting within their authority to make an investigatory stop. The road to Rocky Creek was not well frequented, and the last car that had come down it had held three persons who were covered with marijuana. The agents merely stopped the truck and, having given the occupants their Miranda warnings, asked them where they were going. At that point the fact that three of the four smelled of marijuana supplied a probable cause for their arrest.

The Seizure of Appellants’ Clothing

The warrantless seizure of appellants’ clothing took place at the jail some twelve hours or more after their arrest. This procedure is attacked by appellants as being violative of their Fourth Amendment rights. It is argued that since appellants were already in custody, see note 9 swpra, and had been in custody all night, there was no reason for the agents not to apply for a warrant.

This issue has undergone considerable judicial scrutiny in recent cases. The crux of the matter is not the warrant-less seizure of the clothes for the purposes of laboratory testing for such seizures have been generally upheld. Rather, the difficulty arises out of the delay between the arrests and the seizure.

However, any difficulty with respect to the facts of this case has been put to rest by the Supreme Court's recent decision in United States v. Edwards, et al., 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In Edwards, supra, Edwards had been arrested at 11:00 P.M. and taken to the local jail. The next morning substitute clothing was provided and his clothing, worn at the time of the alleged crime, was taken for examination for traces of paint chips [marijuana here] which might have been related to paint chips discovered at the scene of the crime. The trial court admitted proof obtained from the clothing, the Court of Appeals reversed (474 F.2d 1206 (6th Cir. 1973)) but on cer-tiorari, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771, the Supreme Court reversed and concluded that “the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.” 415 U.S. at 802, 94 S.Ct. at 1236. The facts now before us are sufficiently similar to warrant a similar conclusion.

A search incident to an arrest must be reasonably contemporaneous to that arrest, but it is a test of reasonableness in light of the particular circumstances that must be applied. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967); United States v. Preston, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). By way of illustration is United States v. Caruso, 358 F.2d 184 (2d Cir. 1966) in which a prisoner’s clothes were taken from him some six hours after his arrest. The Court stated:

Here the clothes were constantly in sight, were taken on the person of the suspect at the time of arrest and were continuously in custody. [citation omitted] The appellant’s contention means that the seizure of his clothing could have been made constitutionally only if, immediately on his arrest, he had been stripped to the buff on the public highway. Even though that April 13th may have been a very pleasant spring day, we are of the opinion that the argument is somewhat extreme.

358 F.2d at 185-186.

In a similar vein is United States v. Williams, 416 F.2d 4 (5th Cir. 1969) in which this Court, overcoming objections to an arrest-seizure delay of nine hours, stated:

This taking-for-testing was not an afterthought, but rather an action which was an integral part of, and therefore incident to, the process of arrest.

416 F.2d at 8. See also United States v. Gonzalez-Perez, 426 F.2d 1283 (5th Cir. 1970).

Testing the facts of the present case by these eases we find no violation of constitutional rights. The first duty of the arresting officers, after the apprehension of appellants, was to secure the marijuana. This, considering the sheer bulk of the material to be moved, reasonably took all night. Then, at the first practicable moment, the agents returned to the jail where the appellants were held and took their clothes for analysis. Under the particular circumstances of this case, we approve this warrantless seizure as properly incident to the arrest.

Sufficiency of the Evidence with regard to the Possession Counts

Maslanka, Capo, and Ercius contend that the Government introduced insufficient evidence to support their convictions on Counts 3 (conspiring to possess marijuana with intent to distribute) and 4 (possession of marijuana with intent to distribute). After considering the evidence presented in the light most favorable to the Government, as is our duty on the present appeal, we find that it is sufficient to uphold the convictions. We will first review the evidence underlying the convictions on the latter count.

Maslanka, Knight and Ercius were first noticed in a remote district on a road at the end of which was concealed an enormous cache of marijuana. Upon noticing that there were unknown persons at the landing, they fled the scene at a high rate of speed. When apprehended they were so covered with marijuana residue that the investigating officer could smell it about them. Jute fibers similar to the sacks containing the marijuana were found in their clothing. Further Knight’s fingerprints were found at the scene of the cache. On the basis of these facts, a reasonable jury could draw a connection between Maslanka, Knight and Ercius and the cache at Rocky Creek, and could well find them guilty beyond a reasonable doubt. For an exposition of the standard of review appropriate here, see United States v. Quinones-Alvarado, 464 F.2d 12 (5th Cir.), cert. denied, 409 U.S. 1026, 93 S.Ct. 474, 34 L.Ed.2d 320 (1972).

Capo argues that there was no evidence that his clothes contained the marijuana and jute fibers found on the others. However, evidence was offered tending to prove that Capo was seen in company with Lamb on the day the cache was discovered; that Capo’s boat was operating in Rocky Creek the night before the discovery; that Capo drove Strongosky, Lamb and Korn to within 1,800 feet of Buckeye Landing the day the marijuana was discovered before being stopped by the police; that the clothes of Capo’s passengers were covered with marijuana and jute particles; that part of the marijuana was discovered in a scow belonging to Capo; that one of his passengers’ .fingerprints were found on the scene of the marijuana cache; and that when Capo was questioned by the police concerning his presence at Buckeye Landing, he stated that he was searching for a lost boat that his passengers had said was in the environs of Rocky Creek. The connective factors between the marijuana cache and his passengers have already been set forth. Thus, his suggestion that his passengers were in the process of leading him to the scene of their crime to recover his scow — half full of their marijuana — is somewhat beyond credibility. If he were not at Rocky Creek to find his scow in the company of the others, a jury might well argue, why was he there? Although mere association or presence would not be enough to support the present conviction, there is no doubt that the present case proved a more intimate relationship.

Turning now to the conspiracy to possess with intent to distribute, the major attack on this count was that there was little evidence connecting the several alleged conspirators. Of course, once evidence of a conspiracy exists, only slight evidence is required to connect each defendant to the joint plan. United States v. Lee, 483 F.2d 968 (5th Cir. 1973). The fact that there was a huge pile of marijuana and that all appellants (with the exception of Capo) smelled of the substance and all were in the vicinity of the cache, is more than sufficient under the circumstances. Neither has there been any evidence that there was another enormous pile of marijuana where appellants could become covered with the substance. Nor is it very likely that appellants had merely happened upon the pile and were removing it on an individual basis. With regard to Capo, his association with the other conspirators and the use of his boat to transport the marijuana taken in addition to the unlikeliness of his explanation for his presence at Rocky Creek also is adequate.

Sufficiency of the Evidence with regard to the Importation Counts

As to Counts 1 and 2, conspiracy to import the marijuana, and actual importation of the marijuana, the Government’s case grows weaker. Evidence was introduced that the marijuana probably came from Jamaica — at least it was contained in sacking from Jamaica. There was also evidence introduced that one of appellants, Maslanka, had been in Jamaica less than a month previous to the discovery of the marijuana, but there was no evidence that while in Jamaica Maslanka had engaged in the purchase of any drugs. A final bit of evidence is that Capo’s boat was heard the night before the discovery running back and forth between Rocky Creek and the Gulf of Mexico. However, there was no evidence that his boat ever went outside the territorial waters or met with any other craft that had. The Government contends that this is sufficient evidence to support a conviction for importation and that the proof submitted here is more suggestive of importation than that in United States v. Quinones-Alvar-ado, 464 F.2d 12 (5th Cir. 1972). Therefore, concludes the government, the jury had enough evidence before it to draw inferences which would exclude every reasonable hypothesis of innocence. We must disagree.

The crucial element of proof missing from the present case and present in Quinones-Alvarado, supra, and United States v. Warner, 441 F.2d 821 (5th Cir. 1971), relied on by the Government, is a connection between members of the alleged conspiracy and the method of the importation. The marijuana did not come to this country from Jamaica in Capo’s boat. It is possible that Capo’s boat was used to transfer the marijuana from another boat on the night in question; it is possible that members of the alleged conspiracy arranged to have the marijuana secreted at some spot other than Rocky Creek and then moved it there later. But there was no proof at all that either of these events happened. To find guilt either one must assume that the appellants were part of a larger conspiracy, other members of which arranged the importation; or that one of the appellants, most likely Maslanka, while he was in Jamaica, arranged the importation. While either of these theories provides the basis for speculation and it seems fairly certain that such a large amount of marijuana did not grow in Dixie County, such speculation does not provide proper support for the verdict on these counts. Accordingly, the convictions on Counts 1 and 2 are reversed and the case is remanded with instructions to dismiss the indictment on these counts.

The Importation Charge

Our decision above makes it unnecessary to consider alternative objections to the convictions on Counts 1 and 2.

Sentencing Procedure

All appellants, save Ercius, . assail some portion of the procedure followed by the court in their sentencing. It is argued that the court should have (a) disclosed the presentence reports and (b) given more weight to the individual aspects of the various appellants’ cases. It is also claimed that the court in sentencing appellants penalized them for exercising their Fifth Amendment rights. There is no merit in any of these arguments.

First, although there is authority in support of general disclosure of presentence reports, see inter alia United States v. Brown, 470 F.2d 285 (2d Cir. 1972), there is no doubt that such a disclosure rests in the discretion of the trial judge. United States v. Warren, 432 F.2d 772 (5th Cir. 1970). We have no reason to suppose that discretion was abused here. Second, the determination of what weight to give individual factors is also within the trial judge’s discretion, especially in this case where it is clear that the court considered the various factors only to conclude that they were of little importance with the exception of the ages of the appellants. We have no cause to substitute our views for those of the sentencing judge. Third, after a careful consideration of the record, we conclude that the appellants were in no way punished for the exercise of their Fifth Amendment rights in refusing to testify but, rather, that the severity of their sentences stemmed from the large size of their operation and their lack of cooperation with the Government after their convictions on the basis of overwhelming evidence.

All arguments raised by appellants having been considered, we affirm their convictions on Counts 3 and 4, and reverse their convictions on Counts 1 and 2 and order that the indictments on those counts be dismissed. Since we are reversing the convictions on Counts 1 and 2, we remand for resentencing in accordance with this opinion.

      . 21 U.S.C. § 963 (1970) reads:
      Any person who attempts or conspires to commit any offense defined in this sub-chapter [II, entitled “Import and Export”] is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . 21 U.S.C. § 952(a) (1970) reads in part: It shall be unlawful to import into the customs territory of the United States from any place thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subehapter I of this chapter, ....
      Marijuana is listed in schedule I, 21 U.S.C. § 812(c)(1)(c) (10) (1970).

      . 21 U.S.C. § 846 (1970) is identical with 21 U.S.C. § 963 (1970) set out at footnote 1, supra, and has reference to offenses listed in subchapter I, entitled “Control and Enforcement.”

      . 21 U.S.C. § 841(a) (1970) reads in part: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; .

      . Rocky Creek is located approximately 100 miles north of Tampa in a remote section of rural Dixie County , near the town of Stein-hatchee. Buckeye Landing, so-called because the Buckeye Paper Company, which owns some 70,000 acres around Rocky Creek, maintains a dock and picnic table there for the use of its employees and, apparently, the general public, 686a [all appendix references are to the general appendix of appellants unless otherwise noted], is reached by way of a narrow dirt road which intersects Florida State Route 361 which runs parallel to the shoreline.

      .
      Q: All right. And when you came up you stopped your car behind it how many feet about?
      A: Approximately fifteen to twenty feet.
      Q: And when you got out did you take your gun in your hand?
      A : Yes, sir, I did.
      V v -!* i|c
      Q: And when you gave orders to them, whoever was in the car, to get out one at a time, were you pointing the gun at the car?
      A: Yes, sir, I was.
      Q: And at the individuals as they each one after the other got out of the car?
      A: Yes, sir.
      :]: *
      Q: And as you were talking to them did you —did you continue pointing the gun at them?
      A : Yes, sir, I did. 697a-98a.

      . Agent Mortonson testified that he had worked in the narcotics field during his almost ten years as a law enforcement officer and had smelled marijuana “many” times. 639a.

      . The arrests took place in the late afternoon or early evening. 635a.

      . Q: Had either you [Agent Mortonson] or Agent Kinsey meanwhile obtained a search warrant for these clothes so as to — ns a basis for your taking of the clothes and having them sent to the lab?
      A: No, sir, we had not.
      er : Xou just did that as a part of the follow up of the routine investigation of the ease, did you not?
      A: That is correct.
      Q: And you did not feel that you needed a search warrant?
      A: No.
      Q: But you had them in custody, is that correct?
      A: Correct, that is correct. 154a-55a.

      . We are cognizant that Agent Mortonson approached the Cadillac with his revolver drawn. See note 6, supra. It may be that, under different circumstances, our inquiry for probable cause would have to be conducted at this point. We note that the Ninth Circuit case of United States v. Strickler, 490 F.2d 378 (9th Cir. 1974), held that “an armed approach to a surrounded vehicle whose occupants have been commanded to raise their hands” was a full blown arrest, 490 F.2d at 380, and considered probable cause at that point.
      First, it is clear that there are significant differences between the StrieJder case and the one at bar: Agent Mortonson was alone on a lonely highway; he wished to speak to the driver of a car, the occupants of which were three young males, who had just led him on a five-mile chase, at high rates of speed. Mortonson was under a duty to investigate the situation. By drawing his revolver as he approached the Cadillac it may reasonably be contended he was exhibiting proper caution under the circumstances. It does not seem to us that, without regard to motive, solely because an officer draws his weapon, an investigatory stop is turned into an arrest. To require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
      Second, it is not necessary under the present facts to distinguish the Strickler case. Agent Mortonson certainly had probable cause to arrest the driver of the Cadillac for speeding, whether or not his actions in so doing were subjectively motivated by the 18,000 pounds of marijuana back at the landing. Thus, the initial arrest of Maslan-ka was proper. United States v. Saunders, 476 F.2d 5 (5th Cir. 1973).
      Nor does the cited case of Graham v. State, 60 So.2d 186 (Fla.1952) hold to the contrary for in that case not only were there grave doubts whether appellant, who had been arrested for reckless driving, was guilty of that offense but also it appeared on the record that the arresting officer had been lying in wait for appellant and had intended to arrest her on whatever pretext appeared to be available in order to facilitate his search of her car.
      The fact that appellant Maslanka was not prosecuted for the acts for which he was initially arrested certainly does not, in and of itself, make that arrest a sham. Since appellants appear to concede, as with all candor they must, that Maslanka was in fact speeding, their contention that there was no probable cause for his arrest is without merit.

      . Capo’s clothing was not taken with the others’ apparently because Capo was too large to fit the alternate clothing available at the jail. Br. of appellants Capo, Knight and Strongosky at 8 n. 1.

      . Our holding on this point obviates any need to consider the Government’s alternative position — that the seizure of the clothes was a permissible “second glance” at the evidence. For a discussion of this exception to the usual search and seizure requirements, see United States v. Grill, 484 F.2d 990 (5th Cir. 1973) and United States v. Brett, 412 F.2d 401 (5th Cir. 1969).

      . Appellants Knight, Korn, Lamb and Strongosky do not raise this argument in their briefs. In the cases of Knight and ICorn whose fingerprints put them at the scene of the crime, this omission seems most reasonable, but in the cases of Lamb and Strongosky it would seem that they have just as valid an argument here as appellants Maslanka and Ercius. Since, however, we find against Maslanka and Ercius on this point, we may note that we would similarly find against Lamb and Strongosky.

      . For this reason, we need not consider the claim that the two conspiracy counts were duplicitous. Compare Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1947) with American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1966). See also United States v. Mori, 444 F.2d 240 (5th Cir. 1971).

      . We have read with interest the views of appellants Maslanka and Ercius with regard to the legality of the laws relating to marijuana. We find them, however, to be legally without merit.


author: JAMES M. CARTER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eduardo CASTILLO-BURGOS, Defendant-Appellant.
    No. 74-1519.
    United States Court of Appeals, Ninth Circuit.
    July 26, 1974.
    Certiorari Denied Nov. 11, 1974.
    See 95 S.Ct. 330.

      Mary V. O’Hare, Deputy Federal Defender (argued), San Diego, Cal., for defendant-appellant.
    James W. Meyers, Asst. U. S. Atty., (argued), San Diego, Cal., for plaintiff-appellee.
   OPINION

Before CARTER and TRASK, Circuit Judges, and WHELAN, District Judge.

JAMES M. CARTER, Circuit Judge.

This is an appeal from the judgment of conviction for importation of marijuana into the United States in violation of 21 U.S.C. §§ 952, 960, and 963, and for possession with intent to distribute in violation of 21 U.S.C. § 841(a). We affirm the conviction, but vacate the sentence and remand for resentencing.

Defendant was sentenced to the custody of the Attorney General for five years, to be confined for six months with the remainder of the sentence to be suspended, and placed on five years probation. In addition, the district court ordered him to be permanently deported.

On November 13, 1973, defendant entered the United States at the Tecate entry, driving a Ford truck with California plates. Inspection of the vehicle revealed a metal compartment built underneath the bed of the truck. Inside the compartment, customs agents found 86 brick-shaped packages containing marijuana. Defendant claimed to have had no knowledge that the vehicle contained marijuana.

He contends on appeal that: (1) the district court erred in instructing the jury that they could infer from the defendant’s driving a contraband-laden vehicle that he knew that it contained contraband; and (2) the district court exceeded its authority in ordering that the defendant be permanently deported.

Jury Instruction

The challenged instruction read as follows:

“You are instructed that if you find that the defendant was the driver and sole occupant of the automobile containing the contraband in this case and if you find that the marijuana was found inside that automobile and concealed in its body, you may infer from these two facts that the defendant knew the marijuana was in the automobile. However, you are never required to make this inference. It is the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant any inference which the law permits the jury to draw.”

The instruction properly states the law of this circuit that knowledge may be inferred from the fact that the defendant was driving or was otherwise in control of a contraband-laden vehicle. United States v. Ramos (9 Cir. 1973) 476 F.2d 624, 625; United States v. Dixon (9 Cir. 1972) 460 F.2d 309; United States v. Ascolani-Gonzalez (9 Cir. 1971) 449 F.2d 159.

The defendant contends, however, that the instructions should have specifically directed the jury to disregard the inference of knowledge if they believed the defendant’s testimony. The only support for this contention is Freije v. United States (1 Cir. 1967) 386 F.2d 408, 410. Freije is distinguishable from the present case, and in any event is not controlling in this circuit.

In Freije, the defendants were car salesmen who constantly came into possession of vehicles as part of their job. They possessed many cars on a continuing basis and could not reasonably be expected to have complete knowledge of the source of each one. Under these special circumstances, the First Circuit believed that the traditional inference of knowledge by mere possession was weakened when the salesmen possessed stolen cars as employees of a car sales business. 386 F.2d at 410-411. The court therefore held that an additional instruction that the defendant’s explanation of his possession must be disbelieved before the usual inference could be drawn, was required.

In the present case, there were no such special circumstances requiring an additional instruction. Possession was not the casual possession of an inventory item as in Freije.

Counsel for defendant further contended at oral argument that the inference instruction violated due process because there was no rational relationship between the facts proved and the ultimate facts inferred, citing Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). This contention was raised neither in the court below nor in the briefs on appeal. Furthermore, Tot is easily distinguishable from this case.

In ~'Tot, the Supreme Court struck down a statutorially created presumption that, from a defendant’s prior conviction of a crime of violence and present possession of a firearm, it shall be presumed that the article was received in interstate or foreign commerce, and that the receipt occurred after the effective date of the statute. The Court held that “reason and experience” did not support the presumption. 319 U.S. at 467, 63 S.Ct. at 1244.

In the present case, the permissible inference, unlike the mandatory presumption in Tot, is clearly supported in reason and experience. It would be perfectly reasonable for a rational juror to infer from a driver’s presence within and his dominion and control over the vehicle, that he has knowledge of contraband within it, particularly since he had the registration papers in his possession. Ramos, Dixon, and Ascolani-Gonzalez, supra, implicitly so held.

Deportation Sentence

The district court ordered the defendant permanently deported at the expiration of the six months prison term. Defendant contends that the sentence constituted cruel and unusual punishment in violation of the eighth amendment, and also exceeded the authority of the district court. Since we agree that the district court exceeded its authority, we do not reach the question of the validity of the sentence under the eighth amendment.

Congress has enacted laws governing the admission, expulsion, and deportation of aliens, 8 U.S.C. §§ 1181-1255. Those laws delegate authority to order deportation to the Attorney General and not to the judiciary. 8 U.S.C. §§ 1251-1255. Nowhere in this detailed statutory scheme is there a provision for a court to deport aliens sua sponte. Therefore, the sentence must be vacated and remanded for resentencing. Upon remand, the district court may impose a condition of probation that if the defendant is deported, he may not return to the United States without proper papers.

The judgment of conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.

       Honorable Francis O. Whelan, United States District Judge, Central District of California, sitting by designation.