author: JAMESON, District Judge: WALLACE, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel Glenn ABASCAL, Defendant-Appellant.
    No. 74-2227.
    United States Court of Appeals, Ninth Circuit.
    Jan. 9, 1975.

      Howard Moore, Jr. (argued), Berkeley, Cal., for defendant-appellant.
    John J. Robinson, Jr., Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiffappellee.
    Before KOELSCH and WALLACE, Circuit Judges and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   OPINION

JAMESON, District Judge:

Manuel Glenn Abascal appeals from a conviction for criminal contempt in violation of 18 U.S.C. § 401. The district court, pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure, summarily found appellant guilty of contempt and imposed a ninety day sentence.

Background

The appellant was one of nine persons charged in a six count indictment with various offenses involving the illegal importation and possession of narcotics with the intent to distribute. At the time of the alleged contempt, appellant, who was free on bond, was attending a hearing before the district court on a motion made by one of his co-defendants. Appellant had come to the courthouse with his counsel to examine records in the clerk’s office in connection with a separate motion on behalf of appellant. While his attorney was in the clerk’s office, appellant entered the courtroom. Although he had apparently been asked to attend the hearing by counsel for the co-defendant, appellant was not directly involved in the proceedings nor was his presence in court required.

Court was recessed for fifteen minutes during the morning session. The clerk ordered those present to rise. Appellant remained slouched in his seat. When the court reconvened appellant was not present but subsequently returned. Noting appellant’s conduct at the opening session, the judge had his secretary prepare a statement which he intended to read to appellant.

At the noon recess, as the judge stood to leave the bench, the clerk ordered all to rise. At that moment counsel for appellant’s co-defendant asked the judge a question which was quickly answered. The clerk again ordered “All rise”. Everyone in the courtroom with the exception of the appellant rose. The following colloquy then occurred:

“The Court: Mr. Abascal, would you step forward, please?
“Defendant Abascal: (No response).
“The Court: Step forward, please.
“Defendant Abascal: Not without my counsel, sir.
“The Court: Mr. Cecil, he’s in contempt of court. I’ve told him to step forward. He has refused to get out of his seat. Put him in jail.”

That afternoon appellant, with his counsel, appeared before the court. Reviewing the incident of the morning, the judge stated that he had asked the appellant to step forward for the purpose of reading him the statement he had prepared. Appellant’s counsel was given an opportunity to comment. Following the remarks of his counsel, appellant stated:

“I’d likfe to address the Court and state that, as an institution, I meant no disrespect to the Court and that I required or requested for my fundamental legal right that my counsel be present before I be brought up in front of the Court”.

The court termed appellant’s conduct “insolent” and held that it “interfered with the judicial process in that it was a direct affront to the dignity of this court”. Relying on Rule 42(a), the 90 day sentence was imposed. Following the hearing, the judge filed a formal Certificate of Contempt as required by Rule 42(a). In the Certificate he held that the appellant’s failure “to step forward and his willfully remaining slouched in his seat while being personally addressed” were contemptuous and that he had seen and heard this contemptuous behavior which took place in the actual presence of the court.

Contentions on Appeal

Appellant contends that (1) his refusal to step forward when requested by the court at the noon recess did not interfere with the administration of justice and therefore was not contemptuous; (2) the court should have warned him that his conduct could subject him to criminal penalties; (3) the summary contempt procedure of Rule 42(a) was inappropriate; and (4) there was a likelihood of prejudice on the part of the trial judge rendering him unable to fairly adjudicate the matter of appellant’s contempt.

Contempt 18 U.S.C. § 401

18 U.S.C. § 401 empowers Federal courts

“. . .to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

The allegedly contemptuous behavior consisted of appellant’s “twice refusing to step forward and his willfully remaining slouched in his seat while being personally addressed” by the court. Appellant contends that this behavior did not constitute an actual obstruction to justice and therefore was not contemptuous within the meaning of 18 U.S.C. § 401. Ex Parte Hudgings, 249 U.S. 378, 383, 39 S.Ct. 337, 63 L.Ed. 656 (1919). We cannot agree.

It is true that the courts have questioned whether the trial court may require spectators “to perform purely ceremonial or symbolic acts.” Where, however, “such an act is accompanied by some disturbance, disorder or interruption, an obstruction may exist”. In re Dellinger, 461 F.2d 389, 401 (7 Cir. 1972). Here we are concerned with more than merely the observance of the formality of rising at the end of a court, session. Appellant defied a clear order directed to him personally by the court. The ability of a trial judge to compel obedience to his orders is fundamental to the proper functioning of our system of justice. Whether a person be directly involved in a judicial proceeding or simply a mere spectator, he is subject to all reasonable orders of the court, even those given at the end of a court session. We conclude that appellant’s refusal to step forward combined with his apparent disrespect for the court as manifested by his courtroom demeanor constituted an obstruction to the administration of justice punishable under 18 U.S.C. § 401.

Necessity of Warning

Appellant contends that the court committed reversible error in failing to warn appellant that he would be held in criminal contempt if he refused to step forward. We cannot agree. Under certain circumstances, this court and other courts have determined that a warning is necessary before a court may impose criminal penalties, Yates v. United States, 227 F.2d 848, 851 (9 Cir. 1955) and Daschbach v. United States, 254 F.2d 687, 692 (9 Cir. 1958), or deprive a person of his constitutional rights, Illinois v. Allen, 397 U.S. 337, 350, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring). Those cases, however, are factually distinguishable. We have not been cited nor have we found a case which, under circumstances like these, would require a court to give a warning before citing a person for criminal eon-tempt. Although we consider that a warning would have been appropriate, we cannot hold that the failure to warn constituted reversible error.

Applicability of Rule 42(a)

Rule 42 of the Federal Rules of Criminal Procedure prescribes the procedures to be followed in dealing with criminal contempt. Subdivision (a) provides for summary disposition and subdivision (b) for disposition upon notice and hearing. Here the district court summarily punished appellant pursuant to 42(a).

42(b) provides the “normal procedure” for adjudicating contempt. Harris v. United States, 382 U.S. 162, 165, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). Because the Due Process requirements of notice and hearing need not be observed in punishing contempt under 42(a), its application is “narrowly limited”. In re Oliver, 333 U.S. 257, 275, 68 S.Ct. 499, 92 L.Ed. 682 (1948). In Harris, supra, 382 U.S. at 164, 86 S.Ct. at 354, the Court stated:

“Rule 42(a) was reserved ‘for exceptional circumstances,’ Brown v. United States, 359 U.S. 41, 54, 79 S.Ct. 539, 548, [3 L.Ed.2d 609] (dissenting opinion), such as acts threatening the judge or disrupting a hearing or obstructing court proceedings. Ibid. We reach that conclusion in light of ‘the concern long demonstrated by both Congress and this Court over the possible abuse of the contempt power,’ ibid., and in light of the wording of the Rule. Summary contempt is for ‘misbehavior’ (Ex parte Terry, 128 U.S. 289, 314, 9 S.Ct. 77, 83, 32 L.Ed. 405) in the ‘actual presence of the Court.’ Then speedy punishment may be necessary in order to achieve ‘summary vindication of the court’s dignity and authority’ Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767.”

The Court has consistently stressed that the “need for immediate penal vindication of the dignity of the court” is the basis for Rule 42(a). Cooke, supra at 536, 45 S.Ct. at 395. Even though the “misconduct [occurs] in open court, in the presence of the judge, [and] disturbs the court’s business” and “all of the essential elements of the misconduct are under the eye of the court” and “are actually observed by the court”, it must appear also that “immediate punishment is essential to prevent ‘demoralization of the court’s authority * ■ * * before the public.’ ” In re Oliver, supra, 333 U.S. at 275, 68 S.Ct. at 509.

While the appellant’s refusal to step forward when ordered by the judge may have been contemptuous, it does not appear that it was necessary for the court to order immediate incarceration. The Supreme Court has consistently held that “the limits of the power to punish for contempt are ‘[t]he least possible power adequate to the end proposed.’ ” Harris, supra, 382 U.S. at 165, 86 S.Ct. at 354. Appellant’s misbehavior occurred after court had been recessed and while the judge was leaving the bench. Less drastic alternatives were available. If the judge deemed punishment by imprisonment necessary, the procedure outlined in Rule 42(b) should have been followed.

Appellee contends that this case is controlled by Comstock v. United States, 419 F.2d 1128 (9 Cir. 1969) wherein this court upheld a contempt conviction pursuant to Rule 42(a). In our opinion Comstock is factually distinguishable. There the defendant refused to rise when the adjournment of the court was announced. “He was admonished to rise. He refused. He was directed by the judge to approach the bench. He refused. When the Marshal took him by the arm and forcibly led him to the bench he went limp and as the court addressed him lay prostrate on the floor. At a subsequent court session the judge sentenced him to 15 days for contempt of court.” Id. at 1131. In Comstock the party charged with contempt was the defendant in the proceeding and his disobedience of the court command was followed by an actual disturbance in the courtroom. Here, the appellant was not directly involved in the proceeding and there was no disturbance of the nature involved in Comstock.

Punishment

Assuming arguendo, that the appellant’s conduct justified summary punishment pursuant to Rule 42(a), in our opinion the sentence imposed was excessive. Courts have discretion in punishing contemptuous conduct; but as the Supreme Court has stated:

“The ‘discretion’ to punish vested in the District Courts by § 401 is not an unbridled discretion. Appellate courts have here a special responsibility for determining that the power is not abused, to be exercised if necessary by revising themselves the sentences imposed. This Court has in past cases taken pains to emphasize its concern with the use to which the sentencing power has occasionally been put, both by remanding for reconsideration of contempt sentences in light of factors it deemed important, . . . and by itself modifying such sentences.” Green v. United States, 356 U.S. 165, 188, 78 S.Ct. 632, 645, 2 L.Ed.2d 672 (1958).

See United States v. United Mine Workers, 330 U.S. 258, 302-306, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

In Robson v. Malone, supra the court vacated a sentence imposed on two spectators who failed to rise when ordered to do so by the bailiff at the beginning and end of a court session. A sentence of thirty days had been imposed on one spectator and a sentence of ten days on the other. In vacating the sentences, the court noted that the failure to rise was not accompanied by any other disturbance in the courtroom. Stressing that the “contempt power is to be limited to ‘the least possible power adequate to the end proposed’ ” the court concluded:

“Our careful evaluation of the record convinces us that due enforcement of the court’s requirement that all rise required no more in these particular circumstances than was accomplished by the exclusion of appellants from the court room, and their being held in custody for four hours and two and one-half hours respectively.” 412 F.2d at 850-851.

Here, as in Robson, no other disturbance accompanied appellant’s refusal to step forward. Under these circumstances we conclude that the ninety day sentence was excessive. Appellant has already served two weeks of the sentence. Due enforcement of the requirement that the trial judge’s orders be obeyed has been accomplished by the time that the appellant has already served.

In summary we conclude that (1) appellant’s misbehavior was contemptuous and punishable under 18 U.S.C. § 401; but (2) did not constitute “exceptional circumstances” requiring “immediate penal vindication of the dignity of the court” pursuant to Rule 42(a); and (3) the remainder of the sentence of imprisonment should be vacated.

Remanded for vacation of remainder of sentence.

WALLACE, Circuit Judge,

(concurring):

I concur with the majority except for the last section of the opinion entitled “Punishment” and the vacation of the remainder of the sentence imposed. The district court should be left free to hold a hearing pursuant to Rule 42(b). If it does so, a new penalty may be imposed. Such a hearing may produce evidence which would be relevant to whether the imposition of a new contempt sentence requires modification. I cannot make that judgment before the Rule 42(b) hearing. Therefore, I would reverse merely on the basis that the district court proceeded upon Rule 42(a) instead of Rule 42(b).

      . The statement read:
      “Mr. Abascal, it concerns me not whether you have any respect for me personally. However, 1 do demand respect for this court. I suggest that if you entertain any thoughts of becoming an attorney, you conduct yourself accordingly while in the courtroom. This includes standing during the opening and closing of each court session. Your continued failure to do so will result in this court’s order that except during the hearings involving yourself, you will absent yourself from the courtroom, along with such other sanctions as this court shall impose on you.”

      . See also United States ex rel. Robson v. Malone, 412 F.2d 848, 850 (7 Cir. 1969).

      . In both Yates and Daschbach, this court held that witnesses, who had been held in civil contempt for refusing to answer questions at the command of the court, could not later be subjected to criminal contempt sanctions unless they had been warned that criminal penalties in addition to the civil contempt measures might be imposed for their failure to answer. In Illinois v. Allen, the Court was not concerned with a contempt charge but rather with the removal of a disruptive defendant from the courtroom.

      . The ABA Standards for Criminal Justice, Function of the Trial Judge, Sec. 712 states:
      “No sanction other than censure should be imposed by the trial judge unless
      (i) it is clear from the identity of the offender and the character of his acts that disruptive conduct was willfully contemptuous, or
      (ii) the conduct warranting the sanction was preceded by a clear warning that the conduct is impermissible and that specified sanctions may be imposed for its repetition.” (Emphasis added).
      The ABA Advisory Committee on the Judge’s Function in its commentary on this standard stated in relevant part:
      “A prior warning is desirable before punishing all but flagrant contempts. A warning may be effective in preventing further disorder and is therefore preferable to sanctions as a first step. It also assures both the court and the public that subsequent misconduct will be willfully contemptuous and deserving of punishment.”

      . Rule 42(a) provides:
      “A criminal contempt may be punished summarily if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court. The order of contempt shall recite the facts and shall be signed by the judge and entered of record.”

      . Rule 42(b) provides in pertinent part:
      “A criminal contempt except as provided in subdivision (a) of this rule shall be prosecuted on notice. The notice shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the criminal contempt charged and described it as such.”

      . The ABA Standards for Criminal Justice, Function of the Trial Judge, Sec. 7.4 states that “Before imposing any punishment for criminal contempt, the judge should give the offender notice of the charges and at least a summary opportunity to adduce evidence or argument relevant to guilt or punishment”. The Advisory Committee’s commentary on this section states in relevant part:
      “Although there is authority that in-court contempts can be punished without notice of charges or an opportunity to be heard, Ex parte Terry, 128 U.S. 289 [9 S.Ct. 77, 32 L.Ed. 405] (1888), such a procedure has little to commend it, is inconsistent with the basic notions of fairness, and is likely to bring disrespect upon the court. Accordingly, notice and at least a brief opportunity to be heard should be afforded as a matter of course.”

      . As stated in Cooke, supra at 536, 45 S.Ct. at 395, with respect to summary contempt procedures:
      “Punishment without issue or trial was so contrary to the usual and ordinarily indispensable hearing before judgment, constituting due process that the assumption that the court saw everything that went on in open court was required to justify the exception; but the need for immediate penal vindication of the dignity of the court created it.”

      . The brief hearing following the initial incarceration of the appellant does not render what would otherwise be an improper exercise of the summary contempt powers constitutionally permissible. A reading of the transcript of the hearing indicates that the purpose of the hearing was simply to impose sentence. Appellant’s guilt had already been determined.

      . The district court denied motions for a stay pending appeal and for release on bail. On July 1, 1974 this court granted appellant’s application for release on bail.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    COPPER LIQUOR, INC., and Harold Letcher (Robert Earl Basham, Jr., H. A. Anthony and Willis Ray Loving, as the personal representative of Appellee, Harold Letcher, substituted in the place and stead of Appellee, Harold Letcher, Deceased), Plaintiffs-Appellees, v. ADOLPH COORS COMPANY, Defendant-Appellant.
    No. 73-3913.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.
    Leo N. Bradley, Golden, Colo., William B. Browder, Jr., Midland, Tex., for defendant-appellant.
    Vann Culp, Midland, Tex., James R. Warneke, San Antonio, Tex., for plaintiffs-appellees.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   PER CURIAM:

The plaintiffs’-appellees’ petition for rehearing challenges our conclusion in Copper Liquor, Inc. v. Adolph Coors Co., 5 Cir. 1975, 506 F.2d 934, that the proof on the questions of injury in fact and the amount of damages was insufficient to support the verdict. Moreover, they assert that this Court’s opinion changes the law on the standard of proof of injury and damages in private anti-trust actions, and imposes a much more onerous burden on plaintiffs than has heretofore been the case. We have examined all the points raised in the petition, and we find them without merit.

The Court has read the entire trial transcript. We were aware that Mr. Williams testified that some cases of Coors might have been sold at a profit: “I believe it was $5.20, I believe. I’m not sure, it has been so long.” But this impressionistic recollection is not inconsistent with Coors’ assertion in its brief, uncontradicted in appellees’ brief, that Letcher lost money overall on all Coors sold because of his practice of using it as a “loss leader.” Although there is some evidence in the record regarding how many times Letcher advertised the beer as a “weekend special,” that is different from evidence regarding how much was actually sold at a profit and how much at a loss and the actual amounts of the profits and losses. We therefore adhere to our understanding of the evidence on the question whether Letcher sold Coors at an overall profit or loss.

The uncertainty surrounding virtually every aspect of the earlier attempt to prove injury and damages led us to remand for further proceedings. Moreover, as we understand it, the theory of the plaintiffs’ damage expert relied upon by the jury, see 506 F.2d at 952 n. 11 and accompanying text, was largely premised on the effect on overall sales of all products of no longer having Coors as a “loss leader”. The primary difficulty we alluded to in this computation (although there were many others) was that it was wholly based upon a decline in bank deposits of about $7,000 between the months of June and July, 1966. We said: “[The expert’s] assumption that these deposits accurately reflected gross sales of all products for the periods in question is unsupported.” 506 F.2d at 954. Even if they accurately represented a decline in gross sales, we noted, there was no showing that this decline was attributable to the loss of the Coors account. In other words, regardless of whether Letcher sold Coors at an overall profit or loss, the root assumption of the damage calculation did not demonstrate the necessary causal relationship between the loss of Coors and the purported decline in gross sales. Demonstration of such a causal relationship is vital to a showing of actual injury. We do not retreat from this view.

Much of the balance of the plaintiffs’ argument in the petition for rehearing deals with alternative methods of computing damages that were apparently not relied upon by the jury, and we therefore need not consider them at this point. They may properly be developed on remand.

The appellees’ charge that we have attempted to change the standard of proof of injury and damages in private antitrust suits is lacking in merit. Our duty was to determine, on the basis of a factual context at once constricted and complex, whether the record was barren of “substantial probative facts” on the fact of injury and the amount of damages. See Hobart Bros. Co. v. Malcolm T. Gilliland, Inc., 5 Cir. 1973, 471 F.2d 894, 902. Just and reasonable estimates based upon relevant data are, of course, still appropriate — once the plaintiffs demonstrate actual injury. But the mere proof of an anti-trust violation, without more, cannot support an award of damages. We held only that in this case the highly speculative nature of the plaintiffs’ proof was insufficient to support a finding of injury and award of damages, and we adhere to that view.

The petition for rehearing is therefore denied, and no member of this panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure, Local Fifth Circuit Rule 12) the petition for rehearing en banc is denied.


author: COLEMAN, Circuit Judge.

text:
    Winford Anthony WEEKS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2134.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.
    Rehearing Denied April 28, 1975.
    Michael A. Maness, Richard Stephanow (Court appointed), Houston, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Larry F. York, Lonny F. Zwiener, Calvin Botley, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before THORNBERRY, COLEMAN and ROSENN , Circuit Judges.

       Of the Third Circuit, sitting by designation.

   COLEMAN, Circuit Judge.

In this appeal from the denial of federal habeas corpus relief to a Texas state prisoner, convicted of the possession of heroin, we are asked to review events which occurred almost ten years ago.

On June 6, 1965, Winford Anthony Weeks, the appellant herein, and William James Cooper were arrested outside of Port Lavaca, Texas, and afterwards charged with the possession of heroin. Immediately following the arrest, Weeks’ pickup truck was searched at the Calhoun County jail and heroin was discovered in the truck heater hose. Failing in a motion to suppress evidence, Weeks was tried to the Judge of the Twenty-fourth Judicial Circuit of Texas, found guilty of unlawful possession of heroin, and sentenced to ten years imprisonment. His conviction was upheld on appeal to the Texas Court of Criminal Appeals, and, at a later date, his petition for a writ of habeas corpus was denied in the state courts. Having exhausted his state remedies, Weeks applied to the United States District Court for the Southern District of Texas for habeas corpus relief in April, 1972. After a hearing in the District Court before Judge Seals, the writ was denied.

We affirm the judgment of the District Court.

The constitutional claims raised in Weeks’ habeas corpus petition are that he was arrested without probable cause; that subsequent to his arrest his pickup truck was searched in violation of the Fourth Amendment. There was no warrant issued for either the arrest or the search.

The existence of probable cause depends on the evidence heard by the state trial court. The state trial judge recorded no findings of fact but specifically stated, in denying the motion to suppress, that in his opinion probable cause existed for the arrest and that consent had been given for the subsequent search. The Texas Court of Criminal Appeals affirmed on both points.

The actors in the scenario which led to the apprehension of Weeks were a previously reliable informer and two government agents.

At approximately two o’clock on the afternoon of June 6, 1965, William M. Kline, Assistant United States Customs Agent in charge at Laredo, Texas, received a telephone call from Romero Villareal, the Customs Port Investigator at Falcon Heights, Texas. Villareal told Kline that he had received information from a confidential informer, who had proven reliable in the past, that a delivery of heroin would be made that day at a certain place in Alice, Texas, to two unnamed male suspects driving a turquoise and white pickup truck. Upon receipt of this message Kline immediately set out for Alice in an attempt to apprehend the suspects.

At approximately 4:30 p. m., while in Beeville, Texas, Kline received a radio message from his original informant, that he had personally observed a pickup truck in Alice, Texas, matching the description previously given by the informer. Villareal gave Kline the license number of this vehicle and stated further that an agent had seen this truck meet another vehicle. In addition, Villa-real advised Kline that the informer had by that time reported that the delivery of heroin had been made that, afternoon in Alice.

The evidence indicated that the informer was a narcotics delivery man, allowed to enter the United States in order that law enforcement officers could apprehend the parties to whom delivery was made.

Upon receipt of the second communication from Villareal, Kline proceeded to the Sheriff’s Office in Beeville, where he requested that a police radio bulletin be broadcast, directing the Texas Department of Public Safety to look out for and apprehend the suspect vehicle. The bulletin contained a description of the truck by color and the license plate number relayed by Villareal to Kline. No name was given for either of the two male suspects, their names being then unknown.

At 6:55 p. m. of the same day, the radio bulletin initiated by Kline was rebroadcast by the Department of Public Safety and received by Deputy James O’Neil, dispatcher for the Calhoun County Sheriff’s Department in Port Lavaca, Texas. O’Neil made the following entry in his log book:

“Time, 6:55 p. m., Department of Public Safety signal 1067. Contents of the message: ‘Pick up and hold for Narcotics Division a white and turquoise pickup, license number 4K5298 ’.”

O’Neil personally conveyed the message to Deputies W. L. Warren and Raymond King, who were present in the dispatcher’s office at that time, and who then went out on patrol.

A short time after this the Deputies spotted a turquoise and white pickup truck, bearing the license number given in the radio bulletin. It was heading at a high rate of speed on Highway 35 toward Port Lavaca. The officers radioed a message to O’Neil:

“Time, 7:13 p. m., have a pickup ahead of us traveling at a high rate of speed, advise city unit to stand by to intercept.”

Warren and King pursued the vehicle and approximately two minutes later overtook it as it pulled into a service station some five miles outside of Port Lavaca. At this point the officers arrested the driver of the truck, William James Cooper, and its passenger, Win-ford Anthony Weeks, the truck owner. The arrest was undertaken solely on the basis of the radio bulletin previously initiated by Agent Kline, and not on the basis of any speeding violation. King made a cursory inspection of the cab of the pickup truck, in which he found an unloaded shotgun, the stock of which was protruding from under the seat.

After completing a search of the suspects and the preliminary examination of the contents of the truck cab, King and Warren placed the suspects in their patrol car and set out for the Calhoun County Sheriff’s Office in downtown Port Lavaca. A deputy who had arrived on the scene at the time of the arrest drove appellant’s truck to the Sheriff’s Department garage, since the owner of the filling station had asked that it be moved because it was interfering with access to his station.

The officers and suspects arrived at the Sheriff’s Office at approximately 7:30 p. m., at which time the suspects were booked, fingerprinted, photographed, charged with possession of heroin and required to change into white jail clothes. Shortly after this they were taken to the adjoining garage where the pickup truck was parked. Chief Deputy Joe Roberts advised Weeks and Cooper that he had reason to believe that there was heroin concealed in the vehicle, and he requested their permission to conduct a search. Weeks and Cooper responded that they knew nothing about any heroin and that Roberts could go ahead and look. The Chief Deputy then searched the vehicle and discovered approximately sixteen grams of heroin concealed in the truck heater hose.

At approximately 9:00 p. m., Agent Kline arrived from Beeville and conducted a second search in which he discovered an additional quantity of heroin.

Frank C. Kelly, a local Justice of the Peace authorized to issue search warrants, testified that he was on the scene but not until after the first heroin discovery. However, at no time prior to either search was application made for a search warrant. Subsequent to the searches, complaints were filed with Magistrate Kelly. On the following day, June 7, a preliminary hearing was held and the defendants were released on bond.

I

Probable Cause

The first issue raised by appellant is that he was arrested without probable cause — the information provided police officers by the informer was insufficient to establish it. Appellant relies on the Aguilar, Spinelli, Whiteley trilogy of Supreme Court decisions to assert that the record fails affirmatively to reveal underlying circumstances which would demonstrate that the informer’s information was accurate. Further, appellant contends that the informer’s lack of first hand knowledge of criminal activity in this case was not cured by independent police activity tending to corroborate the substance of the tip, Draper v. United States, and the record fails to show that this was a situation in which “information gathered by the arresting officers can be used to sustain a finding of probable cause for an arrest that could not adequately be supported by the tip alone”.

This Court is of course thoroughly aware of the teachings of Aguilar and Spinelli. Without, in any sense, disregarding the principles there announced, the instant situation seems more clearly to fit within the factual context of Whiteley, supra, and of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

In Whiteley, upon receiving a tip that defendant had committed a burglary, the sheriff applied for and was granted a warrant for defendant’s arrest. The affidavit did not state that the informer had any first hand knowledge that the defendant had committed the crime, nor did it furnish a basis for determining that the informer was reliable. It stopped with the mere allegation that the defendant had committed the crime. After obtaining the arrest warrant, the sheriff put out an all points bulletin to pick up and hold defendant. In this bulletin the sheriff furnished a description of the defendant, his automobile, and some of the goods allegedly taken from the house. Upon receiving this bulletin two patrolmen spotted defendant’s automobile and effected an arrest. Just pri- or to the arrest, one patrolman asked defendant to identify himself, to which he responded with a false name. The defendant claimed that he was arrested without probable cause. The Supreme Court agreed. Relying on Aguilar and Spinelli, the Court first held that the affidavit in support of the arrest warrant patently failed to establish probable cause. Not only did it lack allegations respecting the accuracy of the informer’s information, but it also lacked allegations from which the informer’s reliability could be determined. While acknowledging that the arresting officers were entitled to rely on the police bulletin in making the arrest, the Court stated that if the officers who initiated the bulletin did not offer sufficient evidence to establish probable cause, any arrest based substantially on the bulletin would suffer from the same deficiency. Turning next to the issue of whether, aside from the defective warrant, independent police activity was able to glean sufficient facts to establish probable cause, the Court found the arrest deficient in this respect also. The Court held that this was not a case where independent police investigatory work corroborated the information provided in the informer’s tip, because prior to the arrest the police witnessed no activity on the part of defendant that would indicate that he had committed the burglary in question.

In distilled form, Whiteley stands for two key propositions. First, police officers contacted by radio bulletin are entitled to rely upon a warrant issued to the party initiating the bulletin. Where, however, the warrant is issued without a sufficient showing of probable cause, any subsequent arrest made in substantial reliance on this warrant is constitutionally invalid. Secondly, Whiteley emphasized that where the government seeks to corroborate an otherwise insufficient informer’s tip on the basis of an independent police investigation, it has to show that information acquired through the investigation tends to indicate that the defendant is in the process of committing, or has previously committed, a crime.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), an informer who for several months had been providing narcotics agents with reliable information reported that defendant had gone to Chicago to • receive a shipment of heroin and that he would return to Denver on a specified train with the drugs on his person. Although the evidence failed to show whether the informer had any first hand knowledge of the defendant’s criminal activity, the informer described the defendant in meticulous detail, giving a description of defendant’s physical appearance, the clothes which he would be wearing when he alighted from the train, the type of luggage he would be carrying, and the fact that defendant was in the habit of walking very fast. Relying on this information, federal narcotics agents met the train as it arrived in Denver and arrested the defendant at the station. The arrest was challenged as being without probable cause. The Supreme Court disagreed. It employed a two-step analytical process. The Court noted that the informer had always given accurate and reliable information in the past [which was shown in the case presently before us], and that every bit of his information with respect to the description of defendant had been independently verified by the officers who spotted defendant at the railroad depot. The Court then stated that since the agents had verified every bit of the description given them by the informer, they had reason to believe the remaining information that defendant was carrying narcotics.

Draper preceded Aguilar, Spinelli, and Whiteley but its rationale is consistent with the analysis required by Aguilar: (1) the reliability of the informant and (2) the observation of corroborating facts taking place as predicted by that informant.

The present appeal is considerably reminiscent of United States v. Squella-Avendano, 5 Cir., 1971, 447 F.2d 575. In that case we reversed the suppression of evidence involving 200 pounds of cocaine. The officers got on trail of the contraband through the reports of an informant who had not previously been used in connection with any other investigation. It was not known when or how the cocaine would arrive in Miami from Chile, but on July 26, 1970, the informant advised that the cocaine had arrived and that the defendants were attempting to rent a certain type of automobile which would be used to pick up and deliver the cocaine. Later, the informant supplied information concerning the make of the car and was able to give the last three digits of the license plate. The car was placed under surveillance. The next day it was seen parked beside an aircraft, where cartons were being unloaded from the airplane and into the car. The ensuing chase resulted in the arrest of the defendants. The Squella-Avendano opinion contains an exhaustive analysis of Aguilar, Spinelli, and Whiteley.4 5****** It was pointed out, 447 F.2d at 580, that “less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant’s report to make it ‘apparent that the informant had not been fabricating his report out of whole cloth’ ”.

Consistently with the teachings of Whiteley, the Port Lavaca officers who stopped the pickup truck properly relied on the bulletin broadcast from Beeville.

The issue is thus narrowed to whether officer Kline had probable cause to request the issuance of the bulletin. In view of the facts and legal principles herein discussed, we are of the opinion that he did.

In the first place, the original tip came from an informer previously found to be reliable, indeed so reliable that it appears he was allowed to enter the United States for the purpose of assisting in the apprehension of narcotics violators.

In the second place, his prediction that a turquoise and white pickup truck, occupied by two males, would be in Alice that afternoon proved to be correct. That truck was observed at what most likely was the meeting place named by the informant, else there would have been no report of a government agent observing the meeting in Alice, population 20,121, when he got the actual truck tag number.

Thirdly, before Kline caused the issuance of the bulletin the same informant had notified the officers who were working in concert that the heroin had, in fact, been delivered in Alice that afternoon.

This, of course, was not enough to convict of a crime beyond a reasonable doubt but it was enough to warrant a reasonably vigilant officer in believing that these two males in the truck of this description were engaged in violations of the narcotics laws, Draper v. United States, supra; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). It was enough that reasonable men could believe that the informant’s report was not fabricated, United States v. Squella-Avendano, supra.

Accordingly, we hold that the appeal on this point is not well taken.

II

Consent to Search

“The officers and suspects arrived at the Sheriff’s Office at approximately 7:30 p. m., at which time the suspects were booked, fingerprinted, photographed, charged with possession of heroin and .required to change into white jail clothes. Shortly after this they were taken to the adjoining garage where the pickup truck was parked. Chief Deputy Joe Roberts advised Weeks and Cooper that he had reason to believe that there was heroin concealed in the vehicle, and he requested their permission to conduct a search. Weeks and Cooper responded that they knew nothing about any heroin and that Roberts could go ahead and look. The Chief Deputy then searched the vehicle and discovered approximately sixteen grams of heroin concealed in the truck heater hose.” — This opinion, page 762, ante.

With the exception of the testimony of the appellant, which the District Court specifically discredited, there is not the slightest indication, from any source whatever, that before or during the search the officers used any kind of force, threats, intimidation or other form of coercion on Weeks or his traveling companion. Nor was consent obtained under the cloak of any asserted authority to search, such as an invalid search warrant. Rather, the record is clear that the men under arrest were informed that the presence of heroin was suspected and permission was requested in order to establish or negate that fact.

Petitioner-appellant launches a valiant attack on the validity of the consent, urging the absence of Miranda warnings [Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] and non-compliance with the teachings of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

This “no consent” argument must be rejected in the light of our decision in United States v. Horton, 5 Cir., 1973, 488 F.2d 374, rehearing en banc denied:

The arrest of the defendants was based on probable cause, and there is no indication in the record that the investigating officers used tactics that would augment the degree of the coercion that is inherent in any arrest. There is no evidence in the record of any intimidation, physical or psychological abuse, or threats tending to invalidate the consent. Although the suspects were not informed of their right to remain silent and that anything they said might be used against them, this is only one consideration in assessing voluntariness. In light of all the surrounding facts and circumstances, we are convinced that the consent was voluntary. Id., at 381.

See also Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), no Miranda advice but the consent to search was given prior to the arrest; also, United States v. Jones, 5 Cir., 1973, 475 F.2d 723, where at the time of consent Jones was handcuffed, in the presence of at least five F.B.I. agents, but the warnings had been given.

Since Weeks had been arrested on probable cause, the officer requesting permission to search had been informed of that probable cause by other officers, and the search took place immediately after the vehicle had been removed from the scene of the arrest to the Sheriff’s Office, it was valid, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Boyd, 5 Cir., 1971, 436 F.2d 1203; United States v. Chapman, 5 Cir., 1973, 474 F.2d 300; Carlton v. Estelle, 5 Cir., 1973, 480 F.2d 759. See also Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974).

Affirmed.

      . Weeks v. State, 417 S.W.2d 716 (Tex.Cr. App.), cert. denied, 389 U.S. 996, 88 S.Ct. 500, 19 L.Ed.2d 494 (1967).

      . Weeks v. Estelle, Civil No. 72 — H—506 (S.D., Tex., filed March 13, 1974).

      . At the hearing in the District Court, Judge Seals heard testimony from Weeks, in addition to admitting the record of the state court proceedings into evidence. However, Judge Seals did not find Weeks to be a credible witness. To the extent that Weeks’ testimony conflicted with the evidence presented in the state court, his testimony was discounted. The reasons given for refusing to accept Weeks’ credibility were: (1) his demeanor in testifying; (2) conflicts between Weeks’ testimony and testimony presented at the state court proceedings; (3) Weeks’ record of criminal convictions subsequent to the one at issue in this case. Judge Seals’ reasons for doubting Weeks’ credibility are supported by the record. The upshot is that the determinative evidence here is the record of the state court proceedings.

      . Kline encountered car trouble on the way to Alice, and was forced to arrange for another agent to transport him to Beeville.

      . Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

      . 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

      . Brief for appellant at page 8, quoting Whiteley v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306, 312 (1971).

      . 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306, 313 (1971). At this point the Court observed:
      “We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest.”

      . 401 U.S. at 567, 91 S.Ct. at 1036, 28 L.Ed.2d at 312, 313. In stating this rule, the Court was merely reaffirming a principle previously established in Spinelli. See Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588, 21 L.Ed.2d 637, 642, 643, 644, 645 (1969).

      . 358 U.S. 307, 312, 314, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 333, 334 (1959). See Justice White’s discussion of the logic of Draper in his concurring opinion in Spinelli. Spinelli v. United States, 393 U.S. 410, 426, 427, 89 S.Ct. 584, 594, 595, 21 L.Ed.2d 637, 649, 650 (1969) (White, J., concurring).

      . See Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637, 643, 644 (1969).

      . See Footnote No. 5, supra. Also, United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).


author: SCHATZ, District Judge.

text:
    UNITED STATES of America, Appellee, v. Cecil Edward PUGH, Appellant.
    No. 74-1615.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided Jan. 29, 1975.

      William H. Craig, Little Rock, Ark., for appellant.
    O. H. Storey, III, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before ROSS and STEPHENSON, Circuit Judges, and SCHATZ, District Judge.

       ALBERT G. SCHATZ, United States District designation. Judge for the District of Nebraska, sitting by

   SCHATZ, District Judge.

Cecil Edward Pugh was charged with two counts of making a false statement in connection with a loan application, in violation of 18 U.S.C. § 1010. Upon trial to a jury, a verdict of not guilty was returned as to Count I and a verdict of guilty was returned as to Count II. On appeal Pugh argues that the following errors were committed by the trial judge:

I. Denial of the defendant’s pretrial motion to prevent the government from introducing defendant’s prior felony conviction as impeachment evidence if the defendant testified at the trial.
II. Failure to give certain instructions requested by the defendant.
III. Denial of the defendant’s motion for judgment of acquittal, or in the alternative for a new trial.
IV. Improper procedure in sentencing.

We disagree and affirm the judgment of conviction.

In April of 1972, the defendant purchased a house in Little Rock, Arkansas, for which in May of that year he submitted an application to the Metropolitan Bank of Little Rock for an F.H.A. Title I property improvement loan. In the application he stated that he planned to improve his house by adding steel siding and miscellaneous repairs, wrought iron work and an extended concrete driveway. As a result of this application, a loan was extended to the defendant in the sum of $2,600.00, the amount listed by him as the estimated cost of the improvements. During the summer of 1972 a wrought iron railing was installed on the defendant’s house at a cost of approximately $255.00. In December of 1972, the defendant submitted an F.H.A. Title I property improvement loan application to the First National Bank of Little Rock, in which he listed plans: to add insulation (steel siding), to close in a carport, to add wrought iron railings and posts, and to finish the garage and concrete drive. The loan was granted in the sum of $4,650.00, the amount requested by the defendant. In March of 1973, the defendant listed his house for sale with a realty company, and in the next month the house was sold. Other than the $255.00 railing, none of the improvements listed in either loan application were made. At the time of his trial the defendant had remained current in his payments of the first loan with the Metropolitan Bank and had repaid the entire amount of the second loan to the First National Bank.

I.

The defendant Pugh had two previous felony convictions. The first was in federal court at age sixteen for a violation of the Dyer Act for which he was sentenced under the Youth Corrections Act. The second was in an Alabama state court in 1963 at age twenty for second degree burglary. Prior to trial, defendant moved for an order requiring the government not to disclose evidence of either conviction to the jury if he took the stand, and testified. The trial judge sustained the motion as to the Dyer Act conviction, but overruled it as to the burglary conviction. On appeal, defendant argues that the burglary conviction would have been improper impeachment evidence because of the age of the defendant at the time of this conviction and the difference between the nature of the offense and that charged in the indictment in the instant case. This Court has consistently held that prior felony convictions are admissible if a defendant wishes to testify, United States v. Rucker, 496 F.2d 1241 (8th Cir. 1974), and the factors advanced by defendant in this case are not of sufficient severity to persuade us to hold that the trial judge erred in ruling that the burglary conviction could be admitted, United States v. Scarpellino, 431 F.2d 475 ■ (8th Cir. 1970).

II.

The government’s case relied heavily on circumstantial evidence. Defendant requested an instruction to the effect that in order to convict him the jury had to find that the circumstantial evidence excluded or negated every reasonable hypothesis other than guilt. This instruction was refused by the trial judge. Relying upon Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), this Court has previously held that such an instruction is confusing and incorrect and that the better rule is to instruct on the standards of reasonable doubt, United States v. Fryer, 419 F.2d 1346 (8th Cir. 1970), cert. denied, 397 U.S. 1055, 90 S.Ct. 1399, 25 L.Ed.2d 672. The jury was properly instructed on reasonable doubt in this case and the requested instruction on circumstantial evidence was properly refused.

The trial judge also refused an instruction requested by defendant on intent. The important elements of this tendered instruction were contained in other instructions given by the trial judge and the refusal of this particular instruction was not error.

III.

The third assignment of error is an attack upon the sufficiency of the evidence to support the verdict as to Count II. In this case the evidence shows that two home loan applications were made, that two loans were granted, but that the improvements actually made were worth far less than the value of the loans. The critical issue was whether at the time the applications were made, defendant intended to use the proceeds for home improvements. Defendant introduced evidence tending to support his defense that he did have the necessary intent at the time of the applications, and clearly a question of fact was presented to the jury. Viewing the evidence in the light most favorable to the government as we must, United States v. Madden, 482 F.2d 850 (8th Cir. 1973), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318, we find substantial evidence to support the verdict as to Count II.

IV.

Defendant asserts that prior to sentencing, his counsel requested and was denied the opportunity to examine the presentence report prepared for the Court by the Probation Office. The record does not disclose this request, but assuming that it was made, such a denial is not error, Hess v. United States, 496 F.2d 936 (8th Cir. 1974).

Defendant also alleges that the trial judge considered improper material in imposing sentence. The record shows that at the time of sentencing, the trial judge mentioned several prior arrests of the defendant concerning which the defendant and his counsel had the opportunity to and did comment, especially as to those arrests which did not result in convictions. There is no indication that the trial court based the sentence upon these arrests. Moreover, the trial judge specifically stated he would not inquire into a case pending against the defendant upon which no disposition had been reached. We find no error in this procedure.

Judgment affirmed.

      . We do note, however, the comment of Judge Lay in United States v. Carden, 428 F.2d 1116, 1118 (8th Cir. 1970):
      We acknowledge on the other hand that the Advisory Committee, in recommending Rule 32(c), did not contemplate an absolute rule of nondisclosure without relevancy to the' particular circumstance of a case. In fact the Advisory Committee observed in part:

        “It is hoped that courts will make increasing use of their discretion to disclose so that defendants generally may be given full opportunity to rebut or explain facts in presentence reports which will be material factors in determining sentences.” (Emphasis ours.) Notes of Advisory Committee on Rules, Fed.R.Crim.P. 32(c)(2) (18 U.S.C.A. Supp.1970.)

        See also United States v. Dace, 502 F.2d 897 (8th Cir. 1974), and in particular the discussion at pages 907-908.


author: WISDOM, Circuit Judge: C.OLEMAN, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.
    No. 74-1335.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.

      Oscar J. Pena, Laredo, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Daniel V. Alfaro, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

Eugene Cecil McKim appeals his conviction for escape from federal custody in violation of 18 U.S.C. § 751(a). The indictment charged that he had willfully escaped from the Jim Hogg County Jail in Hebbronville, Texas. The evidence showed that officers of the United States Border Patrol arrested McKim near Hebbronville on September 9, 1972, while in possession of about sixty pounds of marijuana. He was turned over to a United States Customs officer, who lodged him in the Jim Hogg County Jail in accordance with a contract between the United States Government and the local authorities for the temporary detention of federal prisoners. Two days later and before he could be brought before a United States magistrate McKim and a cellmate escaped through a large hole they had managed to make in the wall of the jail. McKim was rearrested the next day.

He was not, however, tried for the offense of escape from federal custody until well over a year after these events. Instead, he was tried and convicted of importation, possession, and conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a), 841(a)(1), and 960(a)(1). This conviction was reversed on appeal on the ground that the border patrol agents lacked reasonable suspicion or probable cause for stopping and searching McKim’s automobile. United States v. McKim, 5 Cir. 1973, 487 F.2d 305.

The opinion reversing the marijuana conviction was rendered November 12, 1973; the indictment for escape was filed on November 26, 1973. During the course of oral argument in this Court, counsel for the Government conceded that the decision to seek this indictment from the grand jury was made because the Government had not prevailed in the earlier appeal. McKim had been indicted twice before for the offense of escape, and on each occasion the district court granted the Government’s motion to dismiss the indictment under Fed.R. Crim.P. 48(a) without the consent of the defendant.

McKim raises five contentions in this appeal. He says, first, that his conviction should be set aside because he was denied a speedy trial. Second, he contends that the evidence was insufficient to convict because it did not prove what he asserts are two necessary elements of the offense of escape. Third, he argues that the indictment was fatally defective in that it failed to allege that the arrest establishing the custody from which he escaped was for a felony. Fourth, he says that the trial court incorrectly charged the jury in that it omitted any reference to what he maintains is the necessity of proving, under 18 U.S.C. § 751(a) and the indictment, that the arrest was lawful and that it was for a felony. Finally, he contends that, in the event we uphold his conviction, the maximum sentence for escape the trial court imposed should run either from the date of his apprehension, September 12, 1972, or at least from the date this Court reversed his conviction on the marijuana charge, rather than from the date sentence was imposed.

We have concluded that McKim’s conviction must be reversed.

I.

The Supreme Court considered the standards to be applied to determine whether an accused’s Sixth Amendment right to a speedy trial has been denied in Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. The Court rejected an approach focused primarily on the delay between indictment and trial, and declined to hold that an accused’s failure to demand a speedy trial constituted a “waiver” of the right. It noted, instead, that both the delay involved and assertion or nonassertion of the right were only factors to be weighed with other relevant factors in a “balancing test” of the conduct of the prosecution and the defense, along with the reason proffered for the delay and the prejudice, if any, to the defendant.

“[T]he Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ ” the Supreme Court noted in United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468. Marion involved a delay of nearly three years between the conclusion of the alleged criminal scheme that was the subject of the prosecution and the return of the indictment. The Court reversed the dismissal of the indictment, stating that there is no constitutional right to a speedy indictment; prejudice must be shown. In Marion no actual prejudice had been proved or even asserted, and, although actual prejudice stemming from prosecutorial delay might be demonstrated at trial, the appellees’ due process claims were “speculative and premature.” 404 U.S. at 326, 92 S.Ct. at 466, 30 L.Ed.2d at 482.

Barker and Marion lead us to conclude that, in the circumstances of this case, McKim was not denied a speedy trial. He has made no showing— indeed, has not attempted to show — actual prejudice. The first indictment was. filed on January 29, 1973. The trial on the third indictment was held on January 22, 1974, so that the actual delay between the time of the first indictment and the trial, while substantial, is not so great as to give it decisive weight. The troublesome fact here is that the indictment was filed twice, twice dismissed without consent of the defendant, and filed a third time, as Government counsel conceded in this Court, because the Government did not prevail in McKim’s appeal of his marijuana conviction. To be sure, the Government’s conduct here is distinguishable from the “deliberate attempt to delay the trial in order to hamper the defense” that the Court in Barker noted should be “weighed heavily” against the Government. 407 U.S. at 531v 92 S.Ct. 2182, 2192. But that is the most favorable thing that can be said of it. The prosecutor’s motive in seeking an indictment in the first place may be irrelevant to the speedy trial issue, but his motive in twice obtaining indictments and twice moving to dismiss them is relevant to the inquiry whether the delay in bringing the defendant to trial was justified.

Nevertheless, there is no showing of prejudice to the defendant, the third indictment was filed within the statute of limitations, and the trial was had within two months. We feel compelled, therefore, to resolve Barker’s balancing test in favor of the Government and hold that McKim was not denied a speedy trial.

II.

Because of their interrelation, we will consider together McKim’s contentions regarding the sufficiency of the indictment, and the correctness of the court’s charge to the jury.

The statute, quoted above, provides a maximum sentence of five years or a $5,000 fine or both if the custody or confinement from which the defendant has escaped “is pursuant to lawful arrest” and is “by virtue of an arrest on a charge of felony” or a conviction of any offense, but provides a maximum sentence of only one year or fine of $1,000 or both if the custody or confinement is by virtue of a misdemeanor charge, prior to conviction. The indictment in the present case does not state whether the alleged offense leading to the custody was a felony or misdemeanor, a very important distinction here because the defendant had not even been brought before the United States Magistrate.

In Theriault v. United States, 5 Cir. 1970, 434 F.2d 212, although the indictment charged arrest on the charge of a felony, there was no proof introduced at trial on whether the charge was a felony or a misdemeanor. This Court held that the defendant’s three-year sentence must be vacated and that he must be resentenced in accordance with the penalties provided in the statute for escape from custody or confinement on the charge of a misdemeanor. We reasoned that the felony provisions of the statute might be analogized to a statute ..providing enhanced punishment in cases where specified aggravating circumstances appeared. Noting that courts had sanctioned the imposition of the lesser sentence provided by the statute on remand for resentencing when proof of the aggravating circumstances failed in such cases, we concluded in Theriault that the sentence should be vacated and the case remanded for resentencing under the provisions relating to escape from custody on the charge of a misdemeanor.

In the ease before us, the indictment was silent as to the nature of the offense leading to the custody, and the court did not charge the jury at all on the point. There was only a passing hearsay reference to a felony arrest during the course of trial, hardly enough to constitute a basis for a jury finding of guilt beyond a reasonable doubt, particularly when the jury was not even instructed on the point. The proof was sufficient to prove, at most, escape from custody on account of a misdemeanor charge. The appropriate remedy, following Theriault, would be to vacate the sentence and remand for resentencing. This would result in McKim’s immediate release, inasmuch as he has been in confinement since September 1972, and in confinement under the judgment of conviction in the present case since January 1974, and the maximum sentence that could be imposed on resentencing would be one year imprisonment.

We must, however, proceed and consider McKim’s further contention that his conviction was invalid in any event because the custody from which he escaped was not the result of a lawful arrest. This question would not be mooted by a remand for resentencing, because the trial court might still assess a fine. Moreover, the Supreme Court has held in the habeas context that, because of the substantial collateral consequences flowing from a criminal conviction even after the sentence imposed has been satisfied, unconditional release from custody did not moot an application for habeas relief. Carafas v. LaVallee, 1968, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554. If collateral consequences prevent mootness of a habeas application upon unconditional release, they prevent mootness of the further issue McKim raises in his direct appeal.

The escape statute must be read in the disjunctive insofar as the nature of the confinement and custody it governs is concerned. It proscribes escapes and attempts to escape from (1) the Attorney General or his authorized representative, or (2) from any institution in which he is confined by direction of the Attorney General, or (3) from custody under any judicial process issued under the laws of the United States, or (4) from custody of an officer or employee of the United States “pursuant to lawful arrest.” As far as our research shows, the quoted language of the statute has never been construed. The Government argues in favor of broad proposition that “one may not test the legality of his confinement by escape,” but none of the cases cited in its brief deal with an escape at the same juncture in the criminal process involved in the present case, and in each of them the statement is dictum. Whatever might be said of the relevance of the lawfulness of an arrest in a prosecution for escape after conviction, the phrase “pursuant to lawful arrest” modifying “custody” between the time the suspect is apprehended and the time he is presented to the magistrate is something more than inert verbiage. We have examined what little legislative history exists of the present statute and its predecessors, and have found in it no suggestion on the proper construction of this language. We give effect to the literal meaning of the statutory language and hold that a lawful arrest resulting in custody from which he escaped is an essential element of the offense under the portion of 18 U.S.C. § 751(a) with which McKim was charged, and under the language of the indictment itself. To the extent the circumstances of the arrest raise questions of fact, these questions must be submitted to the jury; to the extent they raise questions of the legal significance of facts, as they often will in cases involving the Fourth Amendment and the exclusionary rule, they are questions for the trial court.

The Government’s brief contains very little on the point, but in oral argument its counsel proffered a number of “fallback” positions in the event we should reject its citation of the dictum that “one may not test the validity of one’s confinement by escape.” We should find an arrest “unlawful” for the purposes of the escape statute, he argues, only when the conduct of the arresting officer is such as to impose civil or criminal liability on the officer, as in the case of malicious use of excessive force in making an arrest. Or at least, he argues, we should not hold an arrest “unlawful” in a prosecution for escape unless the arresting officer has not acted “in good faith” or “reasonably.” In any event, counsel concludes, “lawfulness” of an arrest for the purposes of the escape statute should be governed by the standard of lawful police conduct at the time the arrest was made.

We see no merit in these contentions. The stop, search, and arrest in McKim’s case were contemporaneous, and this Court in United States v. McKim, 5 Cir. 1973, 487 F.2d 305, held that there was neither reasonable suspicion nor probable cause for the stop and search conducted by the border patrol. The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing .the place to be searched, and the persons or things to be seized.” The problem here is whether evidence obtained by a stop and search that violated the Fourth Amendment may nevertheless afford probable cause for the contemporaneous arrest, and hence render it “lawful” for the purposes of the escape statute.

The question whether the arrest was lawful is like any other question of law that arises in litigation in the sense that on appellate judicial review it is the duty of the court to determine whether the conduct in question was lawful in light of the constitutional standard established when the case comes before it. It is true that many holdings in the area of search and seizure, an area closely related to the question before us, have been denied retrospective sweep, but the benefits of those holdings are invariably extended to the litigants who have brought the question before the court. We must, then, determine the lawfulness of the arrest under the constitutional standard of today.-

This case is unusual in that, at the time of McKim’s trial on the escape charge, issues central to the determination of the lawfulness of the arrest had already been litigated between the same parties, and had been decided in McKim’s favor. We refer, of course, to the earlier appeal to this Court that determined that the stop and search violated the Fourth Amendment. This Court has said before that “[t]he aversion to the exploratory search has deep roots, and the fourth-amendment condemnation of this practice refutes the State’s circular argument that the fruits of the search can justify the arrest . .” Texas v. Gonzales, 5 Cir. 1968, 388 F.2d 145, 148. As Professor Wright has noted, “[a]n otherwise legal search or arrest cannot stand if probable cause for it was established only by a prior illegal search.” 3 Wright Federal Practice & Procedure, Criminal § 677, at 135 (citations omitted).

Where, as here, the stop, search, and arrest are contemporaneous, probable cause to arrest cannot be predicated upon evidence obtained in a stop and search violative of the Fourth Amendment. It is at this point that the doctrine of collateral estoppel, held to be incorporated in the Fifth Amendment guarantee of freedom from double jeopardy in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, comes into play. It is true that the doctrine has a limjted ambit and, as has been noted, “will not often be available to a criminal defendant. In most cases the defendant enters a general plea of not guilty. Because the prosecution is required to prove every element of the crime beyond a reasonable doubt, the court’s instructions usually offer the jury several theories upon which the defendant may be acquitted. Collateral estoppel is therefore of limited value because it is not often possible to determine with precision how the judge or jury has decided any particular issue.” Schaefer, Unresolved Issues in the Law of Double Jeopardy: Waller and Ashe, 58 Calif.L.Rev. 391, 394 (1970). The present case, however, is one in which the earlier determination of the particular issue of the lawfulness of the stop and search was free from doubt, since the Fourth Amendment ground was the only one upon which the earlier conviction was reversed. It follows that, at the trial in the present case, the defendant was entitled to the benefit of collateral estoppel on the issue of the lawfulness of the stop and search, the effect of which would have been, as we have said, to negate the lawfulness of the arrest,

Even if the collateral estoppel element were not present in this case, the conviction is properly reversed on an alternative ground. The trial court forbade any inquiry into the lawfulness of the arrest. Because we hold that a lawful arrest is an essential element of the offense charged under the statute and the indictment, and must be demonstrated by proof beyond a reasonable doubt, it follows that the court’s failure to take proof on the issue was reversible error.

The judgment of conviction is reversed.

C.OLEMAN, Circuit Judge

(concurring).

I concur in the within and foregoing opinion for the reason that I understand it as applying only to those cases in which the escape occurred subsequent to arrest and before the prisoner is presented to the Magistrate for a committal hearing.

      . 18 U.S.C. § 751(a):
      “Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both; or if the custody or confinement is for extradition or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined not more than $1,000 or imprisoned not more than one year, or both.”

      . The indictment reads as follows:
      “THE GRAND JURY CHARGES:
      That on or about September 11, 1972, in the Laredo Division of the Southern District of Texas, and within the jurisdiction of this Court, Eugene Cecil McKim did unlawfully, willfully, and knowingly escape from an institution in which he was confined by order of an officer of the United States, pursuant to lawful arrest, to-wit: the Jim Hogg County Jail, Hebbronville, Texas. (Violation: Title 18, United States Code, Section 751(a).)”

      . The Court found that the facts in the case closely resembled the facts of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596, and did not consider whether the search was lawful under the standard prevailing before Almeida-Sanchez was decided. Later, this Court decided United States v. Miller, 5 Cir. 1974, 492 F.2d 37, holding that Almeida-Sanchez should not be given a retroactive sweep. For a recent exposition of the law to be applied in cases that arose before Almeida-Sanchez, see United States v. Newell, 5 Cir. 1975, 506 F.2d 401; United States v. Bowman, 5 Cir. 1974, 502 F.2d 1215; United States v. Hart, 5 Cir. 1975, 506 F.2d 887 (collecting Fifth Circuit Texas border search cases decided in the past ten years).

      . See generally, Godbold, Speedy Trial — Major Surgery for a National Ill, 24 Ala.L.Rev. 265 (1972); Note, Right to a Speedy Trial, 20 Stan.L.Rev. 476 (1968).

      . See fn. 1.

      . See fn. 2.