author: BRIGHT, Circuit Judge.

text:
    Jack H. VESTAL and Mary S. Vestal, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant. John T. DANIEL and Thase F. Daniel, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    Nos. 73-1588, 73-1589.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 12, 1973.
    Decided May 1, 1974.
    Rehearing and Rehearing En Banc Denied June 12, 1974.

      Louis A. Bradbury, Atty., Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Jerry T. Light, Little Rock, Ark., for plaintiffs-appellees.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM O. STUART, District Judge, South District of Iowa, sitting by' designation.

   BRIGHT, Circuit Judge.

In 1962, cash basis-taxpayer Jack H. Vestal obtained contract rights to receive in the future a fractional share of a partnership in a Canadian oil and gas field development in return for' services rendered to certain of the limited partners in an oil development partnership, Olds, Ltd. The oil and gas rights were subsequently sold, and Vestal received installments of $8,143.81 in 1964, $129,984.39 in 1965, and $1,602.15 in 1966 in satisfaction of his contract rights to obtain a partnership share of the oil and gas field. On his income tax returns for each of those years, Vestal seeks to treat these sums as capital gains rather than as ordinary income. The Commissioner of Internal Revenue denied these claims. Vestal paid the tax and sued for a refund in the United States District Court for the Western District of Arkansas. That court granted Vestal relief. We reverse, holding the payments taxable as ordinary income.

In a related case, taxpayer John T. Daniel, an investor in the same Canadian oil field, sought to deduct as an income expense the sum of $25,422.54, paid to Vestal in 1964 and 1965 in satisfaction of Vestal’s contract right to receive a share of Daniel’s limited partnership interest in the oil and gas field. Daniel claimed he paid this money in the taxable years in question as compensation for investment advice which he had received from Vestal relating to the Canadian oil field. The Commissioner disallowed the claimed deduction as an expense, ruling that the questioned payment should be accounted for as a capital expenditure, i. e., a commission or finder’s fee to be added to the basis of the property obtained by Daniel through Vestal’s efforts. On Daniel’s refund suit, the district court sustained the taxpayer and the Government brings this appeal. We also reverse this decision.

The present tax questions arise out of investments made in the Olds Gas Field located in south central Alberta, Canada. According to the record, Robert M. Leibrock and four associates had formed Olds Holdings, Ltd. in 1961 to purchase a leasehold interest from Shell Oil Company in six shut-in wells and 60,000 acres of the Olds Gas Field for $50,000 in cash plus 15 percent of the gross income from the fields up to $700,000. In addition, Shell retained a ten percent overriding royalty.

Thereafter, Olds Holdings, Ltd. undertook a two-step plan for developing this oil and gas acreage for commercial purposes. The plan initially envisioned the formation of a limited partnership known as Olds, Ltd. composed of Leibrock and his associates from Olds Holdings, Ltd., who would serve as general partners and contribute their oil and gas interests in the Olds Field. They would then seek other investors who would subscribe one million dollars to Olds, Ltd. and own 50 percent of the venture as limited partners. The second stage of the plan called for the drilling of additional wells to establish the adequacy of reserves in order to satisfy the needs of any potential purchaser of gas. After obtaining a satisfactory gas sales contract, Olds, Ltd. planned to construct and operate a gas purification plant to remove excess hydrogen sulfide and carbon dioxide from the “sour” gas and market the resultant “sweet” gas and other by-products produced by this plant.

In November of 1961, taxpayer Vestal, a consulting engineer and geologist, first learned of the plan of Leibrock and his associates to develop the Olds Gas Field. At this time certain individuals had contributed about three-fourths of the needed capital of one million dollars to Olds, Ltd. and had joined the venture as limited partners. Vestal proposed to raise the remainder of the needed capital from his own clientele who resided in his home town of El Dorado, Arkansas. Accordingly, Vestal interested four El Dorado residents, including Daniels, in investing a total of $235,000 in the venture. Each of these four persons (hereinafter the El Dorado investors) subsequently became a limited partner in Olds, Ltd. For his efforts in presenting the investment opportunity to the El Dorado investors, Vestal received a separate contract agreement from each of them. These agreements, provided that each investor would deliver to Vestal a proper conveyance of one-eighth of his interest in the Olds, Ltd. partnership:

[F]rom and after the time the [El Dorado investor] has received from the proceeds of the sale of oil, gas, distillate, sulphur and other minerals from the interests acquired in said limited partnership, the entire costs incurred by [the investor] in drilling, developing, producing and operating the properties acquired by said limited partnership * * *.

However, these agreements stipulated that Vestal must obtain the consent of the general partners in order to become a participating limited partner in Olds, Ltd., and, as noted above, any El Dorado investor would not convey any part of his limited partnership interest to Vestal until such investor had recovered his initial investment and any future investment in Olds, Ltd., plus six percent interest compounded semi-annually.

The respective limited partnership agreements of the El Dorado investors in Olds, Ltd. and their contracts with Vestal were executed in 1962. Olds, Ltd. undertook some development in the Olds Field, drilling additional wells in 1962 and 1963, but capped them for want of a purchaser of any gas production. In June of 1964, the general partners pursuant to authority vested in them under the Olds, Ltd. partnership agreement, sold the partnership interests in the Olds Gas Field to Amarada Petroleum Company for approximately eleven million dollars. The purchase price was to be paid in three yearly installments from 1964 to 1966 and the proceeds divided equally between the general partners as a group and the limited partners as a group.

I.

VESTAL’S CLAIM

Each of the El Dorado investors, after receiving his share of the purchase price from the sale to Amarada and then deducting the amount of his investment plus compounded interest, issued a check to Vestal for one-eighth of the remaining balance. Vestal reported these sums as long term capital gain income on his individual income tax returns for each year.

The trial court judge, after hearing testimony and examining the written contracts and other documentary evidence, found that at the time the contracts were executed in June of 1962 the fair market value of the collective interest obtained by Vestal from the contracts with each El Dorado investor amounted to $29,375. He also found that the interests derived from these agreements constituted capital assets which were sold or exchanged in 1964. Accordingly, the court directed that his gains from this transaction be taxed at long term capital gain rates, using the $29,375 value in 1962 as the basis for the property exchange in computing the gain.

On this appeal, both parties concede that amounts received as compensation for personal services, whether paid in cash or kind, constitute ordinary income in the year which they are actually received. See Treas.Reg. § 1.61-2(d). The dispute between the parties, however, depends on whether Vestal’s contention that receipts from the contracts with the El Dorado investors relating to the Olds Gas Field constituted income and a capital asset when received in 1962, although he did not report the value of these contract rights as income on his 1962 return, or whether, as contended by the Government, the contract rights obtained by Vestal in 1962 constituted neither income in 1962 nor a capital asset.

The trial court’s finding that the fair market value of Vestal’s contract with the El Dorado investors amounted to $29,375 was based on Vestal’s own testimony and the opinion of Mr. Leibrock of Olds, Ltd., who testified as an expert on oil and gas matters. The Government’s position is that the rights obtained by Vestal in 1962 by virtue of his contract with the El Dorado investors were contingent, conditional, and speculative, and as a matter of law, did not constitute income taxable to Vestal in 1962.

The Treasury Regulations on Income Tax define gross income as including “income realized in any form, whether in money, property, or services,” Treas. Reg. § 1.61-1 (a), and, as we have already noted, Treas.Reg. § 1.61-2(d) provides that where services- are paid for with something other than money, the “fair market value” of the property or services taken in payment must be included in income. The term “fair market value” as used by this circuit in conjunction with the tax statutes has been broadly defined as the established market value of property, the sum resulting from fair negotiations between buyer and seller, Whitlow v. Commissioner of Internal Revenue, 82 F.2d 569, 572 (8th Cir. 1936), or the fair or reasonable value of the property, North American Telegraph Co. v. Northern Pac. Ry., 254 F. 417, 418 (8th Cir. 1918).

Where a contract calls for future payments of compensation based on unmet conditions, contingencies, or speculation, the courts have been loath to assess any present tax consequences to the transaction and thus to require the beneficiary of the contract to pay an income tax upon a potential, as distinguished from a guaranteed receipt of those funds. Deshotels v. United States, 450 F.2d 961 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1774, 32 L.Ed.2d 119 (1972); Mills v. Commissioner of Internal Revenue, 399 F.2d 744 (4th Cir. 1968); Pounds v. United States, 372 F.2d 342 (5th Cir. 1967); Edelman v. United States, 329 F.2d 950, 165 Ct.Cl. 91 (1964); cf. Victorson v. Commissioner of Internal Revenue, 326 F.2d 264 (2d Cir. 1964). Additionally, in executory contracts for future compensation payable in kind, such as in this case, compensation is not deemed to be paid until the taxpayer actually or constructively receives the property. Pounds v. United States, supra; United States v. Frazell, 335 F.2d 487 (5th Cir. 1964), cert. denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965); Smith’s Estate v. Commissioner of Internal Revenue, 313 F.2d 724 (8th Cir. 1963); Massey v. Commissioner of Internal Revenue, 143 F.2d 429 (5th Cir. 1944).

Bearing these principles in mind, we turn to the undisputed facts in the record.

1) The contracts between taxpayer Vestal and the El Dorado investors called for payments in the future.
2) The contracts called for contingent payments, i. e., to be delivered after the El Dorado investors had recovered their investment in the Olds, Ltd. partnership, plus interest.
3) The distribution of the payment in kind (a conveyance of a one-eighth interest in the Olds Field held by each El Dorado investor) was conditional, i. e., dependent on obtaining consent of the general partners of Olds, Ltd.
4) The value of the interest in kind to be delivered in the future rested in part on speculative factors. In 1962 no additional steps had been taken toward the development of the Olds Gas Field, except for the raising of additional capital and the commencement of drilling of additional wells as required by the terms of the lease purchased from Shell Oil Company. The construction of facilities to change “sour” gas to “sweet” gas, the obtaining of a customer to purchase the gas, the obtaining of a market for by-products produced in the gas production ; in short, all the steps needed to convert and sell the gas, remained as subjects for future action. Although plaintiff submitted proof that the gas field leased by Olds, Ltd. contained proven reserves, no rate of return was or could be established in 1962 for any investor, although the overall return to the limited partners over 25 years was said to be 16 million dollars.
5) No established market was shown for any limited partnership interests in Olds, Ltd. None had been transferred. The witnesses in giving their opinions on “fair market value” calculated Vestal’s contract rights as worth “at least” one-eighth of the total subscription of the El Dorado investors, one-eighth of $235,000, or $29,375.

We must recognize that Vestal’s contract rights to later obtain a possible interest in the Olds Field had value, but such recognition does not support a view that Vestal received income under the federal tax laws. In an early case involving an agreement for annual payments based on iron ore tonnage to be extracted in the future, the Supreme Court determined that the taxpayers did not become obligated to pay an income tax based on the present value of the contract right, observing:

The liability for income tax ultimately can be fairly determined without resort to mere estimates, assumptions and speculation. When the profit, if any, is actually realized, the taxpayer will be required to respond. [Burnet v. Logan, 283 U.S. 404, 412-413, 51 S.Ct. 550, 552, 75 L.Ed. 1143 (1931).]

Two recent Fifth Circuit cases are instructive. In United States v. Frazell, 335 F.2d 487 (5th Cir. 1964), cert. denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965), taxpayer-geologist promoted investments in oil-bearing properties and obtained a contract from investors for services rendered. The contract, which was executed in 1951, stipulated among other things that he was to receive an interest in the oil properties, but was not to be considered as owning any interest, until the investors “shall have recovered their full costs and expenses * * In 1955, taxpayer received a vested interest through issuance of stock in a corporation organized for the purpose of holding the oil properties. Taxpayer claimed entitlement to a tax-free exchange under § 351(a) I.R.C. of 1954, on the theory that he had initially received an interest in the oil and gas field in 1951, and had participated in a tax-free exchange in 1955. Under the statute a payment received for services cannot qualify as tax-free exchange. The court rejected the taxpayer’s claim, stating:

The contract made it clear that Frazell [taxpayer] would “not have the right to dispose of any rights which may accrue to him” before those costs were recovered. 213 F.Supp. at 472. But after November, he would have received a largely unrestricted interest in about 13% of the partnership properties. That this interest was primarily, if not entirely, in return for Frazell’s services to the enterprise is undisputed. Thus, so much of the interest Frazell was to receive in November 1955 as could be attributed to his services for the oil venture would have been ordinary income to him in the year of receipt.
The applicable rule is in no way changed by Frazell’s contention that his interest in the enterprise was a “carried interest.” * * Even if Frazell is taken to have had some sort of interest in the properties in question from their first acquisition, his interest would not have become possessory until November 1955. Under Treasury Regulation § 1.721-1 (b)(1), the value of that interest would have been taxable to him at that time. [335 F.2d at 489-490 (footnote omitted).]

Pounds v. United States, 372 F.2d 342 (5th Cir. 1967), also holds contrary to taxpayer’s contentions. There the taxpayer was a real estate broker who, for services rendered, obtained a contract in 1954 from the owner of a tract of land for a share of the profits that might be realized on the land — 12% percent for taxpayer’s brokerage service and a further 12% percent share attributable to a second broker’s service which taxpayer acquired by purchase for $2,500. The owner’s contract with taxpayer contained this provision:

It is further agreed that at such time as this property is sold and the total investment has been recovered, including taxes and other expenses which may develop in the interim from its purchase date to the date of sale, such excess as develops to be net profit which shall (sic.) divided, first 25% of the actual net profits shall be remitted as appreciation and remuneration for your efforts in working out all of the details necessary in the consummation of this deal. [372 F.2d at 344.]

The real estate produced a profit in 1959, and in that year taxpayer received his 25 percent share ($14,481.41). He sought capital gains treatment using as a basis $5,000 as the 1954 value of the property. The court held the 12% percent interest in profits in place of the usual agent’s commission constituted ordinary income as compensation for services rendered under I.R.C. § 61(a). The court further held the taxpayer’s contract right to share in future profits, although “property” in the broad sense, could not be deemed as a capital asset under the circumstances. See also Vaaler v. United States, 454 F.2d 1120, 1122 (8th Cir. 1972). The Pounds court stated:

But where the taxpayer has only a right to share in the profits that might be realized, that interest cannot be treated as a capital asset. The definition of a capital asset must be narrowly applied and its exclusions interpreted broadly in order to effectuate the congressional purpose underlying the capital gains provision. Capital gains treatment was intended to relieve the taxpayer from the excessive tax burden on gain resulting from a conversion of capital investment. [372 F.2d at 346.]

The court concluded:

We give weight to the fact that Pounds had no legal or equitable interest in the land; he had only a contingent right to share in future profits, if any, in return for personal services rendered. In these circumstances we must classify his 12% per cent share of the profits as ordinary income under Section 61(a). In any event the payment Pounds received would be ordinary income since there was no “sale or exchange” as required by Section 1222. [Id. at 348.]

The foregoing eases hold contrary to Vestal’s contentions. The testimony offered at the trial by Vestal and Mr. Leibrock, his expert witness, that in their opinion Vestal’s contract rights in 1962 were worth at least $29,375, cannot establish a fair market value for the property in the face of the documentary evidence existing in 1962, which consisted of the written plan for development of the Olds Gas Field, the partnership agreement establishing Olds, Ltd. and Vestal’s agreement with the El Dorado investors. These documents undisputably show that the amount of or value of Vestal’s ultimate compensation rested upon speculative factors. To permit opinion evidence to establish a value for the property some years later would permit the taxpayer to vary at will the taxable incidents of the 1962 transaction without incurring any consequences for a change of mind.

Vestal did not pay any tax in 1962 based on the receipt of income attributable to his contract rights obtained from the El Dorado investors that year. Vestal candidly testified:

A No, sir, I did not, because I keep books on a cash basis, it never occurred to me to report anything until I had actually received the money for it.
Q All right. Is that the only reason you didn’t report it ?
A Yes, sir.

Yet taxpayer several years later seeks a new tax arrangement. He now asserts that he received $29,375 in additional income to that reported in 1962. If that is the case, he would not now pay any tax on that unreported income because of the running of the statute of limitations. 26 U.S.C. § 6501. Yet If the Government at any time prior to the liquidation of Olds, Ltd. sought to assess additional income taxes against Vestal for income received in 1962, Vestal could have mounted persuasive arguments showing that his contract called only for future compensations.

In addition, a very serious valuation problem would have arisen in attempting to value the contract rights in 1962. Undervaluation would allow compensatory income taxable at ordinary rates to be treated as capital appreciation upon 'taxpayer’s actually receiving the performance promised him by the contract. See Pounds v. United States, supra. When dealing with a situation such as the present where taxpayer holds an executory contingent contract payable in the future, the tax laws should not be construed so stringently, on the one hand, so as to require a taxpayer to pay an income tax on its estimated value; nor should they be construed so loosely, on the other, as to permit him to establish a basis for those same contract rights in the absence of a showing that there was an actual trading or marketing of those rights. In this respect, taxpayer cannot at the same time “have his cake and eat it, too.”

Appellee would distinguish the preceding cases cited by the Government by relying on Dorman v. United States, 296 F.2d 27 (9th Cir. 1961). There taxpayer received a contract from a landowner to become a partner in a ranching operation in return for his managing the ranch. The taxpayer would obtain a “fully paid vested interest” upon repaying the sum of $300,000 lent to taxpayer by his co-partner to acquire the partnership property. More than six months later the ranch was sold and taxpayer received $12,470 for his share after payment of all his obligations to his co-partner. The taxpayer sought to account for the receipt of these funds on a long term capital gains basis. The trial court denied taxpayer relief but on appeal the Ninth Circuit reversed, holding that the trial court erred in characterizing the payment as salary or severance pay. The court ruled that taxpayer, in obtaining a right to acquire a partnership interest in the future, received a capital asset which he relinquished for the sum of $12,470. “The relinquishment of these rights,” according to the court, “constitute[d] the sale of a capital asset and the gain upon the sale constitutes [a] capital gain.” 296 F.2d at 32 (citation omitted).

Dorman is itself distinguishable, however, because neither the parties nor the court attempted to place any initial value on the contract right obtained by the taxpayer. Moreover, the Ninth Circuit carefully noted that different tax consequences would follow if the questioned payment were deemed compensation payable in the future. Such payment would qualify as ordinary income when received.

We hold that in 1962 Vestal received neither income nor acquired any “basis” for any contract rights obtained from the El Dorado investors. His receipt of monies in 1964, as the equivalent of a one-eighth share of the rights of the El Dorado investors in the limited partnership, constituted a payment for his services under the contracts with the El Dorado investors. Thus, when received these amounts were reportable and taxable as ordinary income.

II.

DANIEL’S CLAIM

Daniel reported a long term capital distribution from Olds, Ltd. of $187,-149.62 on his 1965 individual income tax return. In that same year he distributed $25,422.54 to Vestal under the terms of the El Dorado investors agreement whereby Vestal was to receive a one-eighth interest in Olds, Ltd. after the recovery by Daniel and the other El Dorado investors of their investments plus compounded interest. As we have already noted, Daniel claimed this distribution as a deductible expense from ordinary income under 26 U.S.C. § 212, not a capital expenditure incurred in the acquisition of an asset. We reject this claim.

In describing the transaction, Daniels testified:

Q Would you, in your own words, explain that first contact ?
A Well, it was about 10:30 one night and Jack called me and I had already gone to bed, and he told me he had a deal he thought I would be interested in. I told him Thase [Daniel’s wife] and I had planned to go to Little Rock the next day and I’d see him the day following, and he said, “Well,” said [sic.] “this is a pretty important deal and,” he said, “unless there is something unusual about a trip to Little Rock I think you should see me tomorrow”. So I asked Thase about putting thé trip off, and she said okay we would put it off. So the next day he came and submitted the proposition to me, and I bought it.

On cross-examination he further explained :

Q In other words, he gave you information about the investment, he consulted with you and advised you on whether or not to make the investment ?
A Yes, sir.
Q And then in return you made the investment and were to give him an interest for bringing it to you?
A Yes, sir.

Here, the impetus for the investment came from Vestal who undertook to raise the balance of about $250,000 needed for additional capital by Olds, Ltd. Vestal thought the investment attractive and undertook to sell the proposal to Daniel and others. This transaction between Vestal and Daniel was isolated and spontaneous. Daniel offered no evidence that he had requested Vestal to find him oil investments or that he had retained Vestal to provide him with advice as a consultant.

The payments made by Daniel was the price which Vestal exacted in return for bringing to Daniel this investment opportunity. Thus, the payments made by Daniel to Vestal to obtain the investment must be characterized as a commission or finder’s fee and must be deemed “costs incurred in the acquisition or disposition of a capital asset * * * to be treated as capital expenditures.” Woodward v. Commissioner of Internal Revenue, 397 U.S. 572, 575, 90 S.Ct. 1302, 1305, 25 L.Ed.2d 577 (1970), affirming 410 F.2d 313 (8th Cir. 1969). See Helvering v. Winmill, 305 U.S. 79, 59 S.Ct. 45, 83 L.Ed. 52 (1938); Helgerson v. United States, 426 F.2d 1293 (8th Cir. 1970). Accordingly, these amounts are not deductible as ordinary and necessary expenses but instead must be added to Daniel’s basis in his partnership interest as a capital expenditure incurred in the acquisition of an asset.

The tax court decision of Edward Mallinckrodt, Jr., 2 T.C. 1128 (1943), relied on by appellee and the district court, is distinguishable on its facts and does not support the Daniel deduction. In Mallinckrodt, an investor-taxpayer and an investment consultant had engaged in an ongoing and continuous relationship over several years. The taxpayer, who derived his income from large investments in stocks and bonds, claimed a business expense deduction for amounts expended in obtaining advice from the investment consultants “as to what investments under the then existing conditions ought to be disposed of, what ought to be purchased in their stead, and what investments might be safely and profitably retained.” 2 T.C. at 1146-1147. While the tax court found for Mallinckrodt, we think that his arrangement sharply contrasts with the single-investment arrangement between Vestal and Daniel.

We reverse and direct that the suits for tax refunds be dismissed.

Reversed.

ORDER ON PETITION FOR REHEARING

On petition for rehearing and suggestion for rehearing en banc taxpayers-Vestals contend our decision conflicts with Diamond v. Commissioner, 492 F.2d 286 (7th Cir. 1974), affirming 56 T.C. 530 (1971). Although Diamond was not cited to us previously, we do not find that decision inconsistent with our holding in Vestal.

In Diamond, the taxpayer was a mortgage broker who, along with a third party who held a contract to purchase an office building, agreed in 1961 to purchase and operate the building as a joint venture. They consummated the purchase in February, 1962, and shortly thereafter Diamond sold his interest for $40,000, and sought to account for these proceeds as a short term capital gain on his 1962 income tax return. The Seventh Circuit, in agreement with the Tax Court, rejected the plaintiff’s contention and held the sum to be ordinary income. The Seventh Circuit also stated that even if capital gain treatment were appropriate, no gain had occurred for, as the Tax Court determined, the value of Diamond’s partnership interest as received on February 18, 1962, and as sold a few weeks later, amounted to $40,000.

Aside from certain aspects of partnership tax law, not present in the Vestal case, the determination that Diamond received ordinary income in the tax year of 1962 and the court’s statement that “the receipt of a profit-share with determinable market value is income,” 492 F.2d at 291, is consistent with our holding in Vestal. In Diamond, the taxable event occurred in 1962, when the parties actually acquired the building to be held as a joint venture, not in the prior year when the preliminary contract was made. Similarly, in Vestal; we hold that the taxable event occurred upon acquisition of the actual joint venture interest by Vestal, not in an earlier year upon execution of the initial contract between Vestal and the El Dorado investors.

Accordingly, the petition for rehearing is denied.

      . Mary Vestal, taxpayer’s wife, is a party by reason of their filing a joint tax return.

      . Mrs. Daniel is likewise joined as a party because of the joint income tax return.

      . The combined district court opinion dealing with the Vestal case and the Daniel case is unofficially reported at 73-1 U.S.T.O. 1J9260 (W.D.Ark.1973).

      . Treas.Reg. § 1.61-2(d) in part reads:
      (d) Compensation paid other than in cash — -(1) In general. If services are paid for other than in money, the fair market value of the property or services taken in payment must be included in income. If the services were rendered at a stipulated price, such price will be presumed to be the fair market value of the compensatioii received in the absence of evidence to the contrary.

      . According to testimony, the general partners would surely have consented to Vestal’s obtaining an interest in the venture as a limited partner by a transfer from the El Dorado investors,

      . The court stated that no problem existed with regard to the 12% percent interest which taxpayer purchased from the other participating real estate broker as the basis of the property became fixed by the payment of the purchase price. Pounds v. United States, 372 F.2d 342, 348 (5th Cir. 1967).

      . Cf. Deshotels v. United States, 450 F.2d 961, 966-967 (5th Cir. 1971), cert. denied, 406 U.S. 920, 92 S.Ct. 1774, 32 L.Ed.2d 119 (1972), holding that testimony does not prevail over written terms of the contract in fixing the tax consequences flowing from taxpayer’s agreement.

      . Section 212 in part reads:
      In the case of an individual, there shall be allowed as a deduction all the ordinary
      and necessary expenses paid or incurred during the taxable year—
      (1) for the production or collection of income [.]

      . The tax court opinion was affirmed by this court in Mallinckrodt v. Nunan, 146 F.2d 1 (8th Cir.), cert. denied, 324 U.S. 871, 65 S.Ct. 1017, 89 L.Ed. 1426 (1945), but we did not discuss or pass on the business expense deduction issue which is presently relevant to Daniel’s claim.


source: Caselaw Access Project

author: FRIENDLY, Circuit Judge: OAKES, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Cynthia EDWARDS, Appellant.
    No. 575, Docket 73-2488.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 20, 1973.
    Decided May 29, 1974.

      J. Jeffrey Weisenfeld, New York City (Goldberger, Asness, Feldman & Breitbart, New York City, of counsel), for appellant.
    David DePetris, Asst. U. S. Atty. (Edward John Boyd, V, Acting U. S. Atty., E. D. New York, and L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.
    Before FRIENDLY, HAYS and OAKES, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal from a conviction following a non-jury trial for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) is another in the growing list of cases relating to the validity of airport searches. Problems have multiplied as practical considerations have required that the “profile” method, on the basis of which this court first upheld the validity of an airport search, United States v. Bell, 464 F.2d 667 (2 Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), should be relegated to a supplementary role and that primary reliance should be placed on passage through a magnetometer and the search of carry-on luggage. Although no one could reconcile all the views expressed in the opinions of the various circuits or, indeed, of this circuit alone, a consensus does seem to be emerging that an airport search is not to be condemned as violating the Fourth Amendment simply because it does not precisely fit into one of the previously recognized categories for dispensing with a search warrant, but only if the search is “unreasonable” on the facts. This is altogether in line with the command of the first clause of the Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . . ” Surprise has been expressed that “the Amendment nowhere connects the two clauses; it nowhere says in terms that one might expect it to say: that all searches without a warrant issued in compliance with the condition specified in the second clause are eo ipso unreasonable under the first.” Trial Manual for the Defense of Criminal Cases (Preliminary Draft No. 1, Sept. 29, 1966), Joint Committee on Legal Education of the A.L.I. and A.B.A., 28. But, as Professor Telford Taylor demonstrated in a brilliant lecture, Search, Seizure and Surveillance, this was not a lapse by the draftsmen. Rather “our constitutional fathers were not concerned about warrantless searches, but about overreaching warrants.” While the heavy judicial gloss that a warrant-less search is invalid unless within an appropriate “exception” is surely here to stay, recognition of the historical background of the Amendment, with its stress on the seizure of books and papers on political affairs and the search of homes for illegally imported goods, helps to determine when an exception is justified. Nothing in the history of the Amendment remotely suggests that the framers would have wished to prohibit reasonable measures to prevent the boarding of vessels by passengers intent on piracy.

I.

The facts are stated in Judge Zavatt’s opinion, 359 F.Supp. 764 (E.D.N.Y.1973), and we shall limit ourselves to the essentials. Defendant Cynthia Edwards arrived at La Guardia Airport in New York City on the evening of August 23, 1972, to take an Eastern'Air Lines “shuttle” flight to Boston. The relevant regulations of the Federal Aviation Administration then in effect with respect to nonreservation flights such as the shuttle required that:

1. Where metal detectors are available
A. Each certificate holder shall prevent the carriage aboard its aircraft of baggage on or about the person of passengers unless that baggage has been examined by a responsible representative of the certificate holder or a law enforcement officer and,
. B. The certificate holder shall require each passenger to clear through a metal detector without indication of unaccounted for metal on his person prior to boarding.

Near the entrance to the boarding gate were two large printed signs, plainly warning, among other things,

PASSENGERS AND BAGGAGE SUBJECT TO SEARCH.

When an Eastern employee announced over a loudspeaker that the flight could be boarded, he also announced that all carry-on luggage would be searched.

At this time Miss Edwards was in the line of boarding passengers, carrying a pocketbook and what she described as a “beach bag.” She activated the magnetometer — for what reason the record does not disclose. The Deputy United States Marshal who examined the beach bag found that it contained, among other things, a pair of slacks wrapped around a package. In answer to the Marshal, Miss Edwards said the package was a box of Tampax. Removing the slacks, the Marshal found that in fact the package contained a large number of glassine envelopes, each containing a white powder. He later found other such envelopes in three pockets in the beach bag, bringing the total to 1,664. Miss Edwards testified she knew that there were about 1,600 envelopes in the bag and that the white powder was heroin. The alleged illegality of the search is thus the sole ground of the appeal.

Because of the simplicity of the facts, the appeal presents, in clear and uncomplicated form, the basic question whether the FAA regulations with respect to the search of carry-on baggage in force in August, 1972, violated the Fourth Amendment. There were here no makeweights, such as suspicious behavior; false identification, meeting of the “profile,” and the like, that have assisted the Government in cases such as United States v. Bell, supra, 464 F.2d 667; United States v. Riggs, 474 F.2d 699 (2 Cir.), cert. denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973); United States v. Moreno, supra, 475 F.2d 44; and United States v. Skipwith, supra, 482 F.2d 1272. On the other hand, the search was strictly in accordance with the regulations; there was no removal of Miss Edwards to another area as in United States v. Ruiz-Estrella, 481 F.2d 723, 724 (2 Cir. 1973); and the case presents no such questions concerning a search of her person as were considered in Albarado. There is likewise no suggestion that the marshal was acting in response to any tip that Miss Edwards was transporting narcotics rather than in a good faith effort to carry out the regulations.

In my concurring opinion in United States v. Bell, supra, 464 F.2d at 675, I wrote concerning searches designed to prevent airplane hijacking:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.

While that view was not accepted by a majority, neither was it rejected. Judge Mulligan, who wrote for the court, had no occasion to consider the question; while Judge Mansfield expressed some misgivings, the facts did not require him to consider the special problem of the conceded inapplicability of the “profile” method to shuttle flights. United States v. Ruiz-Estrella, supra, left the question open in this circuit since the majority there refused to infer on the basis of the record that the posters had apprised the defendant of his ability to avoid search by not boarding the flight, 481 F.2d at 728-729. Approving references to the view expressed in the concurring opinion in Bell have been made in United States v. Doran, 482 F.2d 929, 932 (9 Cir. 1973), and United States v. Skipwith, supra, 482 F.2d at 1276. We apply it on the facts here.

The reasonableness of a warrantless search depends, as many of the airport search opinions have stated, on balancing the need for a search against the offensiveness of the. intrusion. We need not labor the point with respect to need; the success of the FAA’s anti-hijacking program should not obscure the enormous dangers to life and property from terrorists, ordinary criminals, or the demented. The search of carry-on baggage, applied to everyone, involves not the slightest stigma, see United States v. Albarado, supra, 495 F.2d at 807. More than a million Americans subject themselves to it daily; all but a handful do this cheerfully, even eagerly, knowing it is essential for their protection. To brand such a search as unreasonable would go beyond any fair interpretation of the Fourth Amendment. If experience should demonstrate that the Government is abusing its authority and is using the airport search not for the purpose intended but as a general means for enforcing the criminal laws, a means for limitation can be found in the suggestion in Judge Aldrich’s dissenting opinion in United States v. Skipwith, supra, 482 F.2d at 1280-1281. See also United States v. Davis, supra, 482 F.2d at 909-910 & n. 44. But unless and until there should be evidence of abuse, we hold to the traditional rule that if the search is proper, it is of no moment that the object found was not what the officer was looking for, Abel v. United States, 362 U.S. 217, 238, 80 S.Ct 683, 4 L.Ed.2d 668 (1960).

The factual element of knowledge of the ability to withdraw that was held to be wanting by the majority in Ruiz-Estrella was clearly present here, as the district judge found, 359 F.Supp. at 767. Whereas in Ruiz-Estrella the Government for tactical reasons, see 481 F.2d at 728 n. 4, did not rely on the signs, here it does. To be sure, while the signs state “PASSENGERS AND BAGGAGE SUBJECT TO SEARCH,” they do not say in ipsissimis verbis that search can be avoided by not proceeding to the designated area. But the signs and the announcement made over the loudspeakers did say that it was only “passengers” whose baggage was subject to search. Although we cannot understand why, rather than permit continued argument on this point, the Government has not taken the simple step of adding to the signs language with respect to withdrawal so plain that he who runs may read, it would outrage common sense to suppose that an intelligent woman, neither blind nor deaf nor ignorant of the language, was not aware as the district judge found “that she was as free to step out of the line of passengers (as she had been to enter that line) if she did not want her baggage to be searched,” 359 F.Supp. at 767. Miss Edwards simply miscalculated the odds.

We thus have no occasion to consider the correctness of the district court’s further finding of consent. While we do not necessarily agree with everything said on this subject in Albarado, supra, 495 F.2d at 806-807, the Bell concurring opinion does not rely on consent of the sort that would validate an otherwise unlawful search, see Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The point is rather that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further.

The only point requiring further discussion is whether the marshal’s search of the beach bag was too extensive. Our prior decisions settle that issue in favor of the Government. As Judge Mulligan wrote in Bell, supra, 464 F.2d at 674 :

[T]he weapon of the skyjacker is not limited to the conventional weaponry of the bank robber or the burglar. His arsenal may well include explosives. . . . [The object found] could have been gunpowder or some other explosive or deleterious substance which a hijacker might well use to cow the crew and passengers. . The fact that the object was not metal should not have concluded the inquiry.

See also United States v. Albarado, supra, 495 F.2d at 809.

Affirmed.

OAKES, Circuit Judge

(concurring in the result):

I concur in affirmance but on grounds different from Judge Friendly. Judge Friendly’s concurrence in United States v. Bell, 464 F.2d 667, 674 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), and his decision here rest upon the proposition that “the danger alone” of possible hijackings makes airport searches reasonable so long as they are made in g<pd faith, with reasonable scope, and the passenger has prior notice of the search so as to be able to avoid air travel. This proposition, however, while perhaps not explicitly rejected, certainly has not been adopted by this circuit. Rather, as suggested by Judge Mansfield in his concurrence in Bell, 464 F.2d at 675-676, the proposition seems inconsistent with the Supreme Court decisions on search and seizure and basic fourth amendment principles. See McGinley & Downs, Airport Searches and Seizures — A Reasonable Approach, 41 Fordham L.Rev. 293, 315-16 (1972). Cf. Note, Airport Security Searches and the Fourth Amendment, 71 Colum.L.Rev. 1039, 1049-50 (1971).

Today airports, tomorrow some other forms of search, which may be “applied to everyone” in the words of Judge Friendly’s majority opinion. It is all too easy to permit encroachments upon personal liberty whenever there surfaces “a barbarism hidden behind the superficial amenities of life.” See R. Heilbroner, An Inquiry into the Human Prospect 15 (1974). Airplane hijacking is not the only “barbarism” which may result in calls for new means of investigation and detection “applied to everyone.” Whether it be a wave of political kidnappings, as are so common in South America but not yet common in this country; racial murders of random victims, which in San Francisco resulted in the stop and search of persons solely on the basis of race, see Bazile v. Alioto, C 74 0867 ACW (N.D.Cal. Apr. 25, 1974) (preliminarily enjoining such searches); organized civil disobedience on a grand scale, such as occurred in Washington, D. C., in 1971 resulting in the unlawful arrests of literally thousands of persons, see Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir.) (on rehearing), cert. denied, 414 U.S. 880, 94 S.Ct. 162, 38 L.Ed.2d 125 (1973); or the publication of classified defense information which was thought by some governmental officials to justify warrantless wiretaps or even the hiring of an extra-legal staff to burglarize a doctor’s office,

[hjistory reveals that the initial steps in the erosion of individual rights are usually excused on the basis of an “emergency” or threat to the public. But the ultimate strength of our constitutional guarantees lies in their unhesitating application in times of crisis and tranquility alike.

United States v. Bell, 464 F.2d at 676 (Mansfield, J., concurring). See also Fifth Avenue Peace Parade Committee v. Gray, 480 F.2d 326, 333-335 (2d Cir. 1973) (Oakes, J., dissenting; cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974).

In acknowledging that the general airport search does not seem to fall within the recognized exceptions to the warrant requirement, the majority opinion seems to me all too unconcerned with the Supreme Court command that “ ‘except in certain carefully defined classes of cases, a search . . . without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.’ ” Cady v. Dombrowski, 413 U.S. 433, 439, 93 S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973), quoting Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Whether this statement be “judicial gloss” (the Supreme Court referred to it as “one governing principle, justified by history and current experience,” Camara v. Municipal Court, 387 U.S. at 528) or the Framers’ intention based on common law experience, it recognizes the proper reluctance of courts to authorize searches without probable cause found by an independent magistrate.

As to the Framers’ intention, Professor Taylor's enlightening lecture, Search, Seizure and Surveillance, may stand for the majority’s proposition that our constitutional fathers were more concerned about “overreaching warrants” than “warrantless searches.” If so, however, this is because there is no indication that warrantless searches were, or could be, conducted of any person other than a suspected felon and then only incident to an arrest. T. Taylor, Two Studies in Constitutional Interpretation 28, 39 (1969). As Taylor says, “The only victims of such searches were those who, as probable felons, were the objects of hue and cry, hot pursuit, or an arrest warrant.” Id. at 39. Indeed, Professor Taylor refers to Pollock and Maitland, who in turn speak of the fact that historically “in general the only persons whom it is safe to arrest are felons, and that a man leaves himself open to an action, or even an appeal, of false imprisonment if he takes as a felon one who has done no felony.” F. Pollock & F. Maitland, The History of English Law 582-83 (2d ed. 1909) (emphasis added). In other words, under the common law ordinary persons were protected from warrantless searches by an action for false arrest. It was such effective protection that overreaching constables resorted to general warrants rather than risk search without any warrant at all, hence in part the Framers’ concern with “overreaching warrants” rather than “warrantless searches.” Today, and for some time, however, a suit for false árrest has provided no practical protection against a warrantless search, and the fourth amendment has required probable cause for a warrant. In the absence of the common law protection against warrantless searches and the difficulty in avoiding the probable cause requirement in obtaining warrants, the number of warrantless searches and their threat to individual liberties have increased greatly. The response of the Supreme Court has been to equate the reasonableness of a search with the presence of a warrant and to limit strictly exceptions from this rule.

Professor Taylor’s contribution to the treatment of warrantless searches has been directed at recognizing the broad scope of a search, incident to arrest, see United States v. Edwards, 415 U.S. 800, 804 n. 6, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974); United States v. Robinson, 414 U.S. 218, 233 n. 3, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); that is, as I have said, the focus of his attention in the applicable portions of his lecture. Nor is his conclusion inconsistent with a strict interpretation of other exceptions from the warrant requirement:

searches incident to arrest are permissible, and in exceptional cases, if authorized by warrant [or allowable because they fall within the recognized exceptions to the warrant requirement, e.g., “stop-and-frisk”] searches independent of arrest may be carried out.

T. Taylor, supra, at 49 (emphasis original) (footnote omitted).

In United States v. Albarado, 495 F.2d 799 (2d Cir. 1974), this court engaged in a very careful weighing of the privacy invaded and the danger involved in allowing that a particular, strictly limited and supervised airport search would be “reasonable” as a new “carefully defined” and jealously guarded exception to the warrant requirement. In so doing, this court attempted to give guidance and direction to law enforcement officials as to the permissible limits of the airport search and to make clear that cries of “danger” from those whose primary concern is “security” would be strictly scrutinized and critically examined when made to justify hitherto unknown searches. This, I feel, is the critical omission from Judge Friendly’s opinion, which through its broad phraseology does not provide guidance to officials, but instead implies that those cries of “danger” will be accepted at face value and that determinations of reasonableness by those entrusted with providing security will be accorded some sort of weight. Such an approach tends to abandon the responsibility of courts to make those very determinations entrusted to them and to relegate our individual liberties to the discretion of security officials.

But this does not mean that there may not be an affirmative answer in this case to the question, one left unanswered in our recent decision in United States v. Albarado, supra: whether a search of all carry-on luggage of air travelers absent any suspicious or other special circumstances violates the fourth amendment.

In Albarado the panel noted that forcing one to waive a constitutional right by submitting to a search in order to utilize air travel is a form of coercion, and therefore that any waiver so obtained would not be free and voluntary. Id. at 807 & n. 14. See also United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973); Note, supra, 71 Colum.L. Rev. at 1049-50. Here, however, there was no such coercion. All baggage is not generally subject to search according to the FAA’s directives; rather, only carry-on baggage is generally subject to search. Thus, one is not forced to choose between flying to one’s destination and having one’s baggage searched. Rather one may merely consign any baggage he does not want searched to the baggage compartment. The only imposition upon the passenger then is not having the bag during the flight and, perhaps, a little wait at the destination for his luggage. Clearly this is not the same case involved when the only way to avoid search is to forego flying. The conclusion, therefore, must be that a carry-on luggage search, unlike the personal search, may be justified on a consent basis.

If, however, appellant did not know she could avoid the search by checking her bag, she would not know she could withhold her consent to a baggage search and still fly. Her consent, therefore, would not be knowing. In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Court was concerned with a somewhat analogous situation where the court of appeals had reversed a district court conviction because there was no evidence that the defendant had known he could withhold consent. In reversing the court of appeals in turn, the Court stated that voluntariness of consent “is a question of fact to be determined from the totality of all the circumstances.” Id. at 227. It added that “knowledge of the right to refuse consent is one factor to be taken into account,” but it is not “the sine qua non of an effective consent.” Id. Thus, in Schneckloth the Court found that upon all the facts there had been an adequate showing of voluntariness, even absent a showing of actual knowledge of the right to refuse consent. The Supreme Court’s opinion seemed to turn on whether there was any evidence of coercion either applied by the authorities or felt by the defendant. As discussed above, the FAA system, as presently practiced, does not coerce passengers into having their luggage searched. There is no evidence, moreover, that appellant here felt any coercion. Indeed, there was evidence to the contrary: the marshal asked if he could search her bag, and, according to the marshal, appellant responded affirmatively.

Beyond this, in the suppression hearing appellant, who took the stand, made no claim and gave no indication that she felt coerced either directly or indirectly. In this situation, there was no custody and no inherently coercive situation. Here appellant gave all the outward indications of consenting voluntarily. Thus I have no hesitation in concluding that appellant consented to the search of her bag. That conclusion, suggested by the district court, is that appellant gave her consent, knowing there was heroin in her bag, in the belief that it would not in any case be found.

Finding implied consent as I do, and as the district court did, it is reasonable to suppose that appellant’s implied consent was limited to that search of her luggage necessary to insure that she was not carrying weapons or explosives. Were this not so, there might be some question whether the marshal here went beyond the bounds of that consent. In Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (1968), the Court said, “The scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Thus, in the search of carry-on luggage, the right to search, even when based on consent, is not general, but one limited to the search for weapons or explosives. The marshal is not given a license to search for drugs among all airline passengers. Nevertheless, his search must be thorough, for “if we are authorizing anything, we are authorizing what is necessary to get the job done.” United States v. Albarado, supra, at 807. The limit of the marshal’s search of carry-on luggage or of containers therein ought to be what was indicated in United States v. Kroll, 481 F.2d at 886, and quoted approvingly by this court in Albarado at 809. A search would be permissible “ ‘of that which may reasonably be deemed to conceal a weapon or explosives. Reasonableness, in this context, is a matter of probabilities.’ ”

In the case before us the marshal upon opening appellant’s beach bag found two pairs of slacks, one of which was wrapped around a package. The marshal asked what it was, and appellant replied it was a box of Tampax. This answer was apparently inconsistent with the feel of the package. Moreover, the package was apparently wrapped in the slacks so as to conceal it. The size of the package, in any case, which contained 1,664 glassine envelopes of heroin, was sufficient at least to conceal explosives, if not a small pistol. In these circumstances it was reasonable for the marshal to remove the slacks and look within the exposed brown paper bag, thereby discovering the heroin.

I concur in the judgment affirming the conviction:

      . Footnote 1 to Judge Oakes’ opinion in United States v. Albarado, 495 F.2d 799, at 801 n. 1 (2 Cir. 1974), lists 18 decisions by courts of appeals on this subject since the initial one in United States v. Lindsey, 451 F.2d 701 (3 Cir. 1971), cert. denied, 405 U. S. 995, 92 S.Ct. 1270, 31 L.Ed.2d 463 (1972). Three more can now he added, United States v. Crain, 485 F.2d 297 (9 Cir. 1973); United States v. Ogden, 485 F.2d 536 (9 Cir. 1973); and United States v. Palazzo, 488 F.2d 942 (5 Cir. 1974).

      . Within a few days after the decision in United States v. Bell, there occurred the first hijacking of a shuttle flight — for which the profile method is totally inapplicable.

      . Magnetometers have become increasingly sophisticated and are being used at a growing number of airports. Even where magnetometers are in use, however, there is considerable variation in the procedures when a passenger has activated the device, see United States v. Albarado, supra, 495 F.2d at 802 n. 3.

      . We are not here required to and do not consider what circumstances may justify the search of checked baggage, a procedure routinely followed by at least some airlines on international flights from the United States. Compare United States v. Garay, 477 F.2d 1306 (5 Cir. 1973), and United States v. Palazzo, supra, with United States v. Cyzewski, 484 F.2d 509 (5 Cir. 1973), relating to more particularized searches of checked baggage.

      . An analogy has been found in the border search, see United States v. Moreno, 475 F. 2d 44, 51 (5 Cir.), cert. denied, 414 U.S. 840, 94 S.Ct. 94, 38 L.Ed.2d 76 (1973); United States v. Skipwith, 482 F.2d 1272, 1275 (5 Cir. 1973). However, the principle that seems most nearly applicable to the airport search is that recognized in Colonnade Catering Corp. v. United States, 397 U.S. 72, 76, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and applied in United States v. Biswell, 406 U.S. 311, 314-317, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), sustaining warrantless searches of records maintained or products held by regulated industries. Such “administrative searches,” conducted pursuant to a general regulatory scheme rather than an investigation to secure evidence of a crime, have regularly been upheld where the statutory procedures have been deemed reasonable. Cf. Wyman v. James, 400 U.S. 309, 318, 324-325, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Downing v. Kunzig, 454 F.2d 1230 (6 Cir. 1972); United States v. Schafer, 461 F.2d 856, 858 (9 Cir.), cert. denied, 409 U.S. 881, 93 S.Ct. 211, 34 L.Ed.2d 136 (1972) ; United States v. Miles, 480 F.2d 1217, 1218-1219 (9 Cir.) cert. denied, 414 U.S. 1008, 94 S.Ct. 369, 38 L.Ed.2d 245 (Nov. 5, 1973). But since an attempt to fold airport searches under the rubric of this type of administrative search would entail the question of reasonableness, as well as the need for dealing with language in Almeida-Sanchez v. United States, 413 U.S. 266, 271, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), the issue of reasonableness may as well be faced directly.

      . Taylor, Two Studies in Constitutional Interpretation 41 (1969). Although the lecture was delivered early in 1967, unhappily it did not become available until 1969, and then under an unilluminating title. It is finally getting the attention it deserves, see United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771.

      . Department of Transportation Press Release No. 103-72, dated December 5, 1972, extended these requirements to all flights. Where metal detectors were not available, the directive required that “each passenger [submit] to a consent search prior to boarding,” 37 Fed.Reg. 25934 (1972).

      . Contrary to what is now the usual procedure, Miss Edwards was carrying her pocketbook and the beach bag when she passed through the magnetometer. Her pocketbook contained keys, coins and perfume containers with metal caps which could well have been responsible for activation. The marshal searched the pocketbook without finding weapons or contraband before searching the beach bag.

      . While the activation of the magnetometer would be a suspicious circumstance with respect to Miss Edwards’ person and the pocketbook she was carrying, its pertinence to the beach bag had been attenuated to the point of exhaustion by the discovery that the pocketbook contained innocent objects capable of causing activation and no dangerous ones, see fn. 8.

      . In addition, Judge Browning reached essentially the same conclusion in his thorough opinion for the court in United States v. Davis, 482 F.2d 893, 910-912 (9 Cir. 1973).

      . Although our decision here is limited to shuttle flights, since that is the sole issue before us, we do not wish to be understood as intimating that we would decide otherwise with respect to reservation flights. When such a case arises, the Government would be well advised to make a factual presentation why the FAA extended the magnetometer-search regulations to such flights, see fn. 7, rather than continuing to rely on the “profile.”

      . This case is further distinguishable from Ruis-Estrella in that there the search of the carry-on baggage did not take place in the course of and as a necessary incident to boarding the flight.

      . Judge Friendly says that prior notice of “fair warning” goes to “reasonableness.” He does not claim that consent is implied by proceeding through the airport search when warned of its existence. In United States v. Albarado, 495 F.2d 799, 806-807 (2d Cir. 1974), this court held that if air travel were conditioned on submission to a search, the potential air traveler’s submission would be the product of coercion and hence would not constitute implied consent. It was noted, however, that the warning of the search made the search less intrusive thereby, as compared, for instance, with a Terry search with its element of surprise and actual physical coercion. Id. at 807. Judge Friendly does not “necessarily agree with everything said on [consent] in Albarado,” hut that portion of the Albarado decision dealing with consent was not dictum, since to find the evidence unlawfully seized it was necessary to refute the claim that appellant had impliedly consented to the search.

      . The meaning of the Constitution must be considered to change or adapt to meet changing times, with the course of history. The entire content of the concept of a Right to Privacy, while it has many fourth amendment antecedents, is basically a product of the 20th Century. One supposes that our fourth amendment protections may have themselves expanded to meet the threat of governmental encroachment on civil liberties exemplified by the totalitarian countries in the 1930’s. See Jackson, J., dissenting in Brinegar v. United States, 338 U.S. 160, 180-181, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) :
      Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

      . The comments in Judge Friendly’s footnote 5 of the instant opinion I do not answer here as lie recognizes that note as purely dictum.

      . See United States v. Palazzo, 488 F.2d 942 (5th Cir. 1974); United States v. Ogden, 485 F.2d 536, 538 (9th Cir. 1973). Compare United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973).


text:
    Sherrill Gary BRINKLEY, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 73-1444, 73-1445.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1973.
    Decided April 9, 1974.
    Rehearing Denied May 14, 1974.
    Rehearing En Banc Denied July 12, 1974.

      Henry J. Osterloh, Little Rock, Ark., for appellant.
    Wilbur H. Dillahunty, U. S. Atty., and John Forster, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM G. STUART, District Judge, Southern District of Iowa, sitting by designation.

   BRIGHT, Circuit Judge.

Sherrill Gary Brinkley appeals from a jury verdict in the United States District Court for the Eastern District of Arkansas, finding him guilty of one count of attempted bank robbery in kviolation of 18 U.S.C. § 2113(a)(2), and one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371. Appellant alleges six grounds of error, including three relating to his unsuccessful assertion of the insanity defense.

The evidence at trial revealed that a series of extortionate telephone calls were made to banks in the Little Rock, Arkansas, area during September and October of 1972 in which the caller threatened to detonate bombs in bank buildings or in the homes of bank officers if various demands for money were not met. A tape recording of one of these calls was obtained by a bank security officer, and bank employees and officers identified the voice as that of the man who had also made the other calls. The voice of the caller was identified by Brinkley’s ex-wife and by several close friends as being that of appellant. Testimony of two indicted co-conspirators identified appellant as a participant with them in the theft of dynamite, as the man who ordered one of them to wait at a specific location for a “drop” of money from a bank, and as the man who placed a “package” beneath the window of a bank officer’s home at a location which was subsequently the scene of a violent explosion. Other witnesses supplied miscellaneous pieces of corroborating evidence.

In his trial strategy, appellant sought to rely on the defense of not guilty by reason of insanity at the time of the commission of the offense. In this regard, he alleges the following errors: (1) the trial court refused to grant appellant’s pretrial request for appointment of an independent psychiatrist to examine the appellant at government expense pursuant to 18 U.S.C. § 3006A(e)(l); (2) the trial court refused to give a jury instruction on insanity; and (3) the Government failed to carry its burden of proof regarding appellant’s sanity beyond a reasonable doubt.

I.

In United States v. Schultz, 431 F.2d 907 (8th Cir. 1970), this court examined the denial of a request for psychiatric examination within the framework of 18 U.S.C. § 3006A(e) of the Criminal Justice Act [now § 3006A(e)(l)] which provides:

Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court * * * shall authorize counsel to obtain the services.

In Schultz, we held that it was error for the trial court to refuse appointment of an independent psychiatrist where evidence indicated that within the recent past the defendant had acted bizarrely, had been hospitalized as a mental patient on prior occasions, and had been diagnosed as a mental patient. 431 F.2d at 911-912. In attempting to enunciate some general standard for determining when expert services would be “necessary” under § 3006A(e), we stated:

No standard can be arbitrarily articulated covering all circumstances under which an accused demonstrates his entitlement under the Act to services of experts to present an adequate defense. Trial counsel, of course, makes his request in the context of pretrial investigation of the circumstances surrounding an alleged crime. The discretion possessed by the district court would appear to be somewhat narrower than its power under Fed.R.Crim.P. 17(b), the rule by which a federal district court may authorize a financially pressed defendant to produce witnesses necessary for trial through subpoena at governmental expense. In evaluating a 17 (b) request, the trial court may consider the nature and effect of the evidence proposed by the defendant — whether material or not, whether cumulative in nature or not. The trial court possesses a broad discretion to grant or deny a 17(b) application. * * * In our view, the courts ought to apply a more lenient standard in determining the need for services of experts in preparation for trial than that applied under 17(b). [431 F.2d at 909-910 (citations omitted).]

We further stated:

While a trial court need not authorize an expenditure under subdivision (e) for a mere “fishing expedition”, it should not withhold its authority when underlying facts reasonably suggest that further exploration may prove beneficial to the accused in the development of a defense to the charge. Considering the purpose of § 3006A(e) of the Criminal Justice Act to provide the accused with a fair opportunity to prepare and present his case, the application of the accused’s counsel for such services must be evaluated on a standard of reasonableness. [431 F.2d at 911 (footnote omitted).]

Since our decision in Schultz, other circuits have considered this problem and endeavored to provide additional guidance to trial courts faced with such requests.

In United States v. Taylor, 437 F.2d 371 (4th Cir. 1971), the Fourth Circuit noted that, by making expert psychiatric assistance available, § 3006A(e) (1):

goes beyond other provisions relating to determinations of mental illness in enabling a defendant and his attorney to have expert medical assistance throughout the preparation and presentation of an insanity defense.
Once counsel has concluded that these services are necessary to enable him properly to evaluate and present possible defenses, the statute entitles him to secure them for his client on a showing of necessity. [437 F.2d at 377 (footnote omitted).]

The court concluded that while “the required quantum of this showing has not often been the subject of review”, it was manifest that expert services were required where there was evidence of the defendant’s extensive history of mental disturbance, his record of impulsive behavior,' his own desire for treatment, and previous expert medical opinion tó the effect that he was “psychotic” and lacked sufficient internal controls over his conduct. 437 F.2d at 378. The court remanded the case for an independent psychiatric examination with orders to the trial court to grant a new trial if the report indicates the existence of “a substantial question of criminal responsibility.” 437 F.2d at 379.

The Fifth Circuit in United States v. Theriault, 440 F.2d 713 (5th Cir. 1971), emphasizing that standards under § 3006A (e)(1) “are not susceptible of arbitrary articulation but can best be developed on a case by case basis”, id. at 715, remanded that case for a new trial since no ex parte hearing had been held and the trial record clearly indicated the need for an expert psychiatric witness to aid the defense. In a special concurrence, Judge John Minor Wisdom examined the legislative history of the Criminal Justice Act as well as relevant constitutional policies and concluded as follows:

I would read the statute, therefore, as requiring authorization for defense services when the attorney makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial means to support his defenses. The trial judge should tend to rely on the judgment of the attorney, who has the primary duty of providing an adequate defense. Such reliance is recommended by the difficulty of requiring the trial judge to take an adversary view of the ease. * * * Additionally it avoids forcing the defendant to reveal private information to the court in order to support the request for such services. Further it comes close to putting the indigent defendant in the same position as a non-indigent defendant, where the defense attorney would determine whether to engage the services. There is a limitation contained in the statute. A maximum amount of $300 is authorized for each expert. This explicit limitation reinforces our interpretation of the requirement of necessity. Congress chose an expenditure limit rather than requiring defendants to demonstrate unusual need for defense services. [440 F.2d at 717 (citations omitted).]

Judge Wisdom’s views have since been adopted by the Ninth Circuit in United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973), which holds that § 3006A(e) (1):

requires the district judge to authorize defense services when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.

In United States v. Chavis, 155 U.S.App.D.C. 190, 476 F.2d 1137 (1973), the District of Columbia Circuit undertook an elaborate effort to “delineate the precise parameters of the requirement” concluding:

The answer to this question of when psychiatric assistance is “necessary” depends upon two variables. First, a judge should consider the likelihood that an insanity defense is warranted. Obviously a court should not be required to appoint a psychiatrist if there is absolutely no reason to think that such a plea would be successful. A trial judge’s evaluation of this factor could, among other things, be based upon a prior medical history of psychological imbalance, testimony by those acquainted with the defendant regarding his actions and apparent mental state, or the judge’s own evaluation of the defendant’s demean- or. Second, the judge should consider whether the defendant has received sufficient psychiatric assistance from other sources; an adequate defense under some circumstances could be prepared based on the findings, assistance and testimony of a court-appointed psychiatrist. The issue does not revolve around the technical fact of under what provision a psychiatrist is appointed, but rather the substantive issue of whether the defendant received the assistance “necessary to an adequate defense.” Such assistance could come from the testimony and aid of court-appointed psychiatrists, independent charitable institutions, or even a concerned independent psychiatrist who is donating his time to the ends of justice. These and other sources of psychiatric assistance might, under some circumstances, provide a defendant with the expert assistance needed to prepare “an adequate defense” and thereby render an appointment under § 3006A “unnecessary.” [476 F.2d at 1143.]

The court vacated the defendant’s conviction and remanded the case for a supplementary evidentiary inquiry to determine if any prejudice resulted from the denial of an independent psychiatric examination, since a Government psychiatrist had examined the defendant and testified on his behalf. The court went on to detail specifically the areas and issues that were necessary to be explored in the supplementary hearing to determine if the quality of the defense had been rendered “inadequate.” Id. at 1144-1145.

Turning to the case at bar and with the benefit of having the entire trial record before us, we conclude that the trial court should have granted defendant’s request for an independent psychiatric examination. Although there is merit to the elaborate evaluative process espoused by the D. C. Circuit in Chavis, we think a more direct approach is preferable. We agree with Judge Wisdom’s concurring opinion in Theriault, adopted by the Ninth Circuit in Bass, that the trial judge should tend to rely on the judgment of the defense attorney if the latter “makes a reasonable request in circumstances in which he would independently engage such services if his client had the financial means to support his defenses.” 440 F.2d at 717. See Comment, “Developing Standards for Psychiatric Assistance for Indigent Defendants under the Criminal Justice Act,” 59 Iowa L.Rev. 726 (1974). This is nothing more than the “reasonableness standard” which we applied in United States v. Schultz, supra, 481 F.2d at 911-912.

The legislative history of the 1970 amendments to § 3006A support this view. The Senate Subcommittee, which studied procedures followed under the Act, stated:

Thus, we heard of attorneys who suspected their clients of being mentally disturbed, but had no evidence of this suspicion to present to a judge as a justification for his authorizing expenditures for psychiatric examinations. (We are unaware of whether the local district court’s attitude toward subsection (e) authorizations was sufficiently hostile to justify these attorneys’ timidity about requesting authorization.) Consequently, we feel that the bar should be bold in seeking subsection (e) authorizations, and the bench should be tolerant in entertaining and relatively generous in granting them. [Subcomm. on Constitutional Rights of the Senate Comm, on the Judiciary, 90th Cong., 2d Sess., Report of the Criminal Justice Act in the Federal District Courts at 220-21 (Comm. Print 1969).]

See also Note, “The Indigent’s Right to an Adequate Defense: Expert and Investigational Assistance in Criminal Proceedings,” 55 Cornell L.Rev. 632 (1970); Kutak, “The Criminal Justice Act of 1964,” 44 Neb.L.Rev. 703 (1965).

Although motion for an examination and for a continuance were not filed until the day set for trial — apparently because of a change in trial counsel necessitated by the serious illness of original appointed counsel — the trial court properly conducted an ex parte hearing as required by § 3006A(e)(l). At that hearing, appellant took the stand and testified that he had in the past undergone psychological counselling for over a year, that he was a frequent user of the drug LSD (d-Lysergic acid diethylamide and tartrate), that he suffered “flashbacks,” and that he had been knocked unconscious and hospitalized as a result of an automobile accident. Appellant’s mother then took the stand and testified that appellant’s personality had recently changed and that “he does need some sort of help.”

In overruling the request for psychiatric assistance, the trial court stated:

On the basis of the record, the Court doesn’t see any indication that this young man was mentally incompetent at the time of his initial offense. He may well have been taking drugs at the time. There is some indication in the report that he was. This, of course, does not indicate any incapacity to stand trial at the present time or any defense of insanity for lack of capacity at the time of the offense. I find nothing to indicate from the evidence and reports that he was mentally incompetent at the time.

It is true that mere addiction to narcotics raises no inference of psychiatric disorder. See Bailey v. United States, 386 F.2d 1 (5th Cir. 1967); Heard v. United States, 121 U.S.App.D.C. 37, 348 F.2d 43 (1964). Yet it is also true that there may be cases where “prolonged and extensive use of narcotics has substantially impaired the capacity to control behavior,” and “such evidence might compel a verdict of not guilty by reason of insanity.” Green v. United States, 127 U.S.App.D.C. 272, 383 F.2d 199, 201 (1967); see generally Gaskins v. United States, 133 U.S.App. D.C. 288, 410 F.2d 987 (1967). Similarly, we have held it proper to submit the issue of insanity and criminal responsibility to the jury where the defense has introduced evidence of severe, chronic alcoholism and its possible physiological effects on the brain such as “blackouts.” See United States v. Leeper, 413 F.2d 123 (8th Cir. 1969); Mason v. United States, 402 F.2d 732 (8th Cir. 1968).

In light of the changing state of medical knowledge regarding hallucinogens, we think that the district court may have underestimated the unique and potentially dangerous impact that prolonged use of LSD appears to have on the psychological state and behavioral patterns of some users. See Lunter, “The Effect of Drug-Induced Intoxication on the Issue of Criminal Responsibility,” 8 Crim.L.Bull. 731 (1972) ; Comment, “LSD — Its Effect on Criminal Responsibility,” 17 DePaul L.Rev. 365 (1968). Testimony presented by the defense at trial drew attention to the existence of such effects. Defense counsel should have been allowed to explore the possible effects of LSD on appellant and the issue of whether these effects might amount to insanity under our definition of that defense in United States v. Frazier, 458 F.2d 911 (8th Cir. 1972). See State v. Hall, 214 N.W.2d 205 (Iowa Sup.Ct., 1974) (LeGrand, J., dissenting). Under the circumstances of this case, to deny appellant expert services that could reasonably be described as necessary to assure an adequate defense constitutes error. The question remains as to the proper remedy under the circumstances here. We are not dealing with an insanity defense resting upon the existence of a record of mental illness prior to the commission of the crime as in the Schultz case. Rather the defense presents a narrow question whether prior use of LSD produced such impairment or derangement of defendant’s mental capacity to amount to insanity.

The best resolution of a similar matter is the one adopted by the Fourth Circuit in United States v. Taylor, supra, where the court held:

The error here does not necessarily require that the judgment be set aside. It is entirely possible, despite the indications of mental difficulties, that a thorough examination would not have provided counsel with any meaningful assistance in preparing an insanity defense; it might even have led him to conclude that there was, in fact, no basis for one. In that event, the error would be harmless. Accordingly, we will temporarily suspend the judgment now on appeal and remand the ease to the district court with directions to appoint a reputable private psychiatrist to assist defense counsel pursuant to 18 U.S.C. § 3006A (e). The psychiatrist should be instructed to examine Taylor thoroughly and for so long as he deems it necessary in order to reach an informed opinion as to his mental condition. On completion of his examination he will provide a report of his examinations and his conclusions to the court and to counsel. If the report indicates the existence of a substantial question of criminal responsibility, and if defense counsel represents that he intends to rely on it on retrial, the judgment will be vacated and a new trial granted. Otherwise, the judgment of conviction will stand affirmed. [437 F.2d at 379 (footnotes omitted).]

We direct the district court to afford appellant similar relief.

II.

Appellant alleges two other grounds of error related to his unsuccessful insanity defense, but on the trial record as it stands we find no merit in his contentions. The errors alleged — in the trial court’s failure to instruct on insanity and in the Government's failure to carry its burden of proving defendant’s sanity beyond a reasonable doubt — hinge upon the defendant's adducing some slight evidence supporting the claim of insanity. The question of the sufficiency of this evidence is for the court. See Blake v. United States, 407 F.2d 908, 911 (5th Cir. 1969). We can find no fault with the trial court’s determination that defendant failed to make the requisite showing to justify an instruction on insanity and an imposition on the Government to prove defendant’s sanity. We note that the trial court did give, a lengthy and detailed charge on the effect of drug use on criminal intent. Whether expert psychiatric testimony would have altered defendant’s showing is a matter best left to be determined by the trial court in the hearing ordered above.

III.

We have also examined appellant’s other contentions and- find them without merit. There was no abuse of discretion by the trial court in denying appellant’s motion for a continuance made on the day of trial. See United States v. Harrelson, 477 F.2d 383 (5th Cir. 1973). See generally Stamps v. United States, 387 F.2d 993 (8th Cir. 1967). Nor was the appellant prejudiced by one witness’ brief, hearsay account of comments by one co-conspirator about “other crimes.” The trial judge immediately instructed the jury to ignore the remark except to the extent that they may be statements of a co-conspirator having to do with the alleged conspiracy on trial; hence there is no error. See Phelps v. United States, 160 F.2d 858, 873 (8th Cir. 1947).

Finally, we have scrutinized the record on this appeal to evaluate appellant’s claim that there was insufficient evidence of a conspiracy to convict him. Testimony of co-conspirators as well as a variety of circumstantial evidence makes it plain that there was sufficient evidence before the jury to uphold the verdict.

SUMMARY

Because of our holding in part I of this opinion, the judgment now on appeal is suspended and the case is remanded for an independent psychiatric examination and for a hearing before the district court upon the psychiatrist’s report of that examination. If defendant can show prejudice resulting from the denial of expert services at his trial and if defense counsel represents that he will rely upon the psychiatrist’s testimony on any retrial, the judgment should be vacated and a new trial granted. Otherwise the judgment will stand affirmed.

Remanded.

ORDER ON REHEARING

For the most part, matters presented on the Government’s petition for rehearing may be considered by the district court in determining whether the results of the independent psychiatric examination will justify vacating the judgment. We repeat what we said in the main opinion: that a new trial should be granted if the psychiatrist’s report of examination, read against the background of the evidence at the trial, discloses the existence of a substantial question of criminal responsibility.

We think a word need be added for the guidance of the district court and appellant’s counsel relating to proper physical arrangements for the independent psychiatric examination in light of appellant’s present incarceration: the function of making these arrangements falls within the discretion of the district court.

We deny the petition for rehearing.

      . In 1970, Congress by Pub.L. 91-447 § 1(a) amended § 3006A(e) so that additional expenditures beyond the $300 limit eould be authorized by the court if the services were “of an unusual character or duration.” 18 U.S.C. § 3006A(e) (3) (1970), amending 18 U.S.C. § 3006A(e) (1964). In addition, a new provision was added to permit attorneys to obtain assistance costing up to $150 without prior court approval. 18 U.S.C. § 3006A (e)(2), amending 18 U.S.C. § 3006A (e) (1964). See 1970 U.S.Code Cong, and Admin.News 3982.

      . Our decision in United States v. Maret, 433 F.2d 1064 (8th Cir. 1970), is no authority to the contrary, for there appellant presented no grounds to justify an additional independent psychiatric examination since appellant had already received two examinations at the Federal Medical Center at Springfield, Missouri, including one to determine competency at the time of commission of the crime. Both reports showed a diagnosis of competency and referred to the patient only as a “sociopathic personality.” See Comment, “The Criminal Justice Act of 1964— Defendant’s Right to an Independent Psychiatric Examination,” 28 Wash. & Lee L.Rev. 457 (1971). We recognize, of course, that there is a substantial functional distinction between a § 3006A examination and one conducted either under 18 U.S.C. § 4244 at the request of the United States Attorney or under Fed.R.Crim.P. 28 at the request of the court. But since, as the Fifth Circuit stated in Therimlt, “the court has a responsibility to prevent abuses of appointive processes,” 440 F.2d at 715 n. 3, the results of a § 4244 or Rule 28 examination may be highly pertinent in determining the reasonableness of counsel’s request for a § 3006A(e) (1) appointment.

      . At the trial, Dr. Edwin Barron, a physician in family practice, testified for the defense in a general way as to the possible effects that LSD might have on an individual. He had not personally examined appellant and he did not undertake to express any opinion on defendant’s competency at the time of his alleged criminal conduct. His testimony in part read:
      Q Can LSD be dangerous ?
      A Yes, it certainly can.
      Q What are some of the effects?
      A The effects of LSD, while there can be very wild moods, swings, there can also be fits of depression. There can be a manic behavior manifested. There can also be behavior exhibited so far as to result in suicide. And there have been medical articles published that have indicted LSD in suicide cases.
      Q Are there other catastrophic reactions? And what are they?
      A LSD has been described as having catastrophic results. I will just refer to you from a pharmacologic text I have here: “The catastrophic reactions to LSD cause a severe disruption of psychological defense mechanism and they do cause repressions and denial in an individual precariously defended against confrontation of conflict material.” * * *
      Q Can a use.- of LSD be on a long trip without taking LSD?
      A Yes, he certainly can. In the text referred to by Dr. Goff, the estimate there is 25 to 50 trips; that after 25 to 50 trips on LSD, or taking LSD, that a person can be maintained or sustained in a permanent trip; that he finds that it’s no longer necessary at all to take LSD. He doesn’t have to have the LSD. And this is the type of thing that is feared especially in experimentation with the drug. * * *
      Q Doctor, I am going to ask you about a term now, and you will have to explain the term. What are flashbacks?
      A Flashbacks are events that occur that are characterized with LSD, but they can occur with some other drugs. An individual can be sitting here just as we are now and, with no warning, no apparent precipitating cause, there will be a behavioral change, and he will experience the same thing that he experienced, or similar to what he experienced at the time that he took this drug. The greatest danger of the flashback that I have been personally aware of was when an airline pilot, particularly a co-pilot, had taken LSD some twenty months previously and had a flashback during a landing, I think, of a jet aircraft. This basically is a broad description of what the flashback is. But the flashback can be precipitated by other causes.
      Q What, for instance, Doctor?
      A Stimulants can precipitate the flashback. If an individual has taken LSD, say, a year or two years ago, or even longer — again this is unknown as to the precise time — and then took a diet pill, or amphetamine, it has been shown that amphetamines will produce the flashback.

      . The trial court charged the jury as follows :
      You are further told that the defendant contends, in addition to the denials just mentioned, that during the overall period with which you are concerned he was using drugs extensively, particularly the drug commonly known as LSD, and that at times, he contends, he was under the influence of the drug and at other times was suffering from after effects or repercussions from its use, and that the impact of that drug use during the overall period in question was such that he was not acting rationally and was mentally incapable of forming any intent to extort or attempt to extort money from a bank or to conspire with others to do so. I shall now instruct you to some extent in connection with that contention.
      Let me say, first, that before you may find the defendant guilty in either of these two cases, you must be convinced by the evidence beyond a reasonable doubt that he acted wilfully; that is to say, that he acted intentionally and deliberately and with a conscious purpose to violate the law or to act in disregard of the law. Now, it is not a defense to a criminal charge that the act or acts in question was or were committed, if at all, while the defendant was under the influence of a drug voluntarily consumed by him, or while he was suffering from the after effects or repercussions, or flashbacks, as I believe they’ve been called, of or from a drug so consumed by him. However, if the act or acts charged as a crime or as crimes are such acts as to require the acting party to think rationally or to form a specific intent, and if his faculties are so impaired by drug use that he cannot think or act rationally or form a specific intent to do the act or acts in question, then he is not responsible criminally for the act or acts charged against him. And where the question arises, as it has done in this case, then the burden is on the Government to prove by the evidence and beyond a reasonable doubt, among other things, that the defendant had the capacity to think and act rationally and that he did so act, and that he acted, if at all, wilfully, as that term has been defined to you. That is, that he acted intentionally and deliberately, and with a conscious purpose to violate the law or to act in disregard of the law.
      Now, it is for you to say from the evidence whether by reason of drug use, including the after effects thereof, the defendant’s intellect, the reasoning power of his mind, was so impaired that he could not rationally conceive a design or form an intent to extort money from a bank by threats, intimidations or violence, or to conspire to do so, or to knowingly and wilfully undertake to carry out such a design or intent, if there was one. And, if you find affirmatively from the evidence that the defendant’s faculties were impaired to the extent that I have indicated, or if you have any reasonable doubt whether the defendant’s faculties were impaired to the indicated extent, then it would be your duty to acquit the defendant.