author: BIGGS, Circuit Judge. GIBBONS, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Delmar Roy BURRELL a/k/a Del, Appellant, et al.
    No. 73-1893.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 25, 1974.
    Decided May 13, 1974.
    Richard L. Thornburgh, U. S. Atty., Henry G. Barr, James A. Villanova, Kathleen Kelly Curtin, Samuel S. Orr, III, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
    Thomas R. Ceraso, Greensburg, Pa., for appellants.
    Before BIGGS, GIBBONS and GARTH, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

The defendant-appellant Burrell was indicted on each count of a three count indictment which alleged a complex scheme involving the theft, transportation and attempted sale of tungsten carbide powder. Burrell’s principal contention is that the Government failed to produce any evidence, factual or circumstantial, which was sufficient to sustain his conviction on the second count of the indictment. He was acquitted on the other two counts. Burrell moved for a judgment of acquittal, for a new trial and an arrest of judgment. These were denied and the appeal followed.

The Government’s counter statement of the case is an adequate description of what is alleged to have been the basis of the scheme. Burrell and his codefendants “were accused of causing approximately 45,695 pounds of tungsten carbide powder stolen from the Teledyne Firth-Sterling Plant in West Elizabeth, Pennsylvania, on March 13, 1971, to be transported by truck from West Elizabeth, Pennsylvania, to Miami, Florida, where it was repackaged in 34 metal drums; of causing this tungsten carbide powder to be shipped consigned to Paul West to Tortola, British Virgin Islands, via St. Thomas, British Virgin Islands, on March 24, 1971; of causing this powder to be shipped from Tortola to Liverpool, England, via Jamaica on April 22, 1971; of causing 26 of the 34 drums to be shipped to Rotterdam, Holland, on July 30, 1971; of causing the aforesaid material to be stored in these respective places. They are also accused of attempting to market this material.” Burrell was charged in Count 2 of the indictment with transporting stolen property of a value in excess of $5,000 in interstate and foreign commerce and in aiding and abetting in the transportation, in violation of 18 U.S.C. §§ 2314 and 2.

Title 18, U.S.C. § 2314 provides in pertinent part: “Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting. Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud;

* * X*

“Shall be fined not more than $10,000 or imprisoned not more than ten years or both.”

Title 18, U.S.C. § 2 provides: “Principals. (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

There is abundant proof of the transportation of the stolen tungsten carbide powder in interstate and foreign commerce; however, Burrell’s connection with these activities is less than clear. The district judge agreed that the evidence failed to establish that Burrell transported or caused the transportation of the stolen material in interstate commerce but deemed it sufficient to support his conviction for aiding and abetting the transportation.

In evaluating the sufficiency of the proof of Burrell’s association with the venture we are cognizant that it is the law that more than mere presence is required in order to convict. It is also the law that evidence of an act of relatively slight importance may warrant a jury’s finding of participation in a crime. United States v. Garguilo, 310 F.2d 249, 253 (2 Cir. 1962); cf. United States v. Barber, 429 F.2d 1394, 1397, n.4 (3 Cir. 1970). Participation may also be shown by circumstantial evidence as well as by direct evidence. United States v. Garguilo, supra.

A careful examination of the record and a study of the brief and argument of counsel for the United States sums up all the evidence in respect to Burrell’s alleged participation in the conspiracy.

We resume it here: The testimony of Paul West established that Burrell did travel to Tortola in British Virgin Islands in the company of co-defendants Poland and Hendricks in the latter part of April 1971, and it is a fact that he arrived on Tortola on the very same day as the shipment of stolen tungsten carbide powder. At this time arrangements were made between West and Hendricks to ship the material to Europe and a telephone call was made to Arnold Rostan. It was the intention of Hendricks to have Rostan serve as sales agent for disposition of the tungsten carbide; however, this was not mentioned during this initial telephone conversation.

There is no evidence whatsoever, or at least none is pointed out to us and we can find none, that Burrell was present while this call was made or took any part in it. Additionally, the transcript of the trial at 531 states:

“Q, On direct examination, sir, all you stated was that you saw the two of them [Burrell and Poland] in Tortola at that time, is that correct ?
A. That’s correct.
Q, And can you tell me, sir, whether or not there was any discussion as to this tungsten carbide or this material in their presence or that they participated in?
A. None that I remember them participating in, no.
Q. None that you recall ?
A. No.”

It is also shown by West’s testimony that in late July of 1971, Burrell was present at a meeting with West in Palm Beach, Florida, at which time co-defendants Hendricks and Poland were also present. At this meeting, an attempted sale of the stolen tungsten carbide powder was discussed in Burrell’s presence. West testified at Transcript 489-491, as follows:

“A. I had a meeting with Ed Hendricks at that time.
Q. Where did that occur ?
A. Near Palm Beach.
Q. And what was discussed at that time?
A. Well, I told Ed what I had done in England and I told him that the trip was unsuccessful, and I told him that I could not handle this any longer and that I needed some money because my wife had received no money during the time I was gone.
Q. Let me ask you this: Who paid your expenses in going over to Europe with respect to your sales attempts ?
A. I paid the expenses. I paid all the expenses on the material.
Q. What did Mr. Hendricks say at that time?
A. Well, he said that he would give me some money as soon as possible and that he or someone else would continue to try to sell the material.
Q. At the time that you met Mr. Hendricks in West Palm Beach or Palm Beach, was anybody with him ?
A. Yes.
Q. And who would they be ?
A. The two gentlemen sitting here.
Q. Could you indicate them to the jury?
A. Yes, those two gentlemen right there.
Mr. Barr: Okay. Let the record reflect that the witness has indicated the defendants Edward Poland and Delmar Burrell.
Q. Now, when you told Mr. Hendricks that you weren’t successful, again, he indicated that somebody else, either he or somebody else would try to sell it, is that correct?
A. That’s correct.
Q. Did you give him any information or anything to indicate what companies might be interested in this material?
A. Yes, I gave him the names of the companies which I thought were possible buyers, not the lists of companies that I had called already, but the ones that I either had not called yet or the ones that looked as if they were interested.
•X* * *
Q. Now, after this meeting with Mr. Hendricks and at which the other two defendants were present, when was your next contact with respect to this material by one of the defendants?
A. I believe it was Mr. Poland called me from someplace in Europe.
Q. And what did he want at that time?
A. He asked if I would authorize him to receive samples of this material from the place where it was stored. . . . ”

It is not shown that Burrell had anything to do with the telephoning, nor is it clear that the powder was discussed in his presence as being stolen powder. If the latter had been shown Burrell might have been charged as an accessory after the fact and concealing the fact that stolen property had been in interstate commerce, but the prosecuting attorney made no attempt to bring such facts upon the record.

The limited extent of Burrell’s participation in the meeting was clarified on cross-examination. We quote now from Transcript 564-8:

“Q. And who all was present at that meeting ?
A. Mr. Hendricks was there and the two gentlemen here were there.
Q. Was there anybody else there?
A. There was another fellow there.
Q. Another person ?
A. Yes, another person.
Q. Do you know that other person?
A. No.
Q. Do you think you would recognize him if you saw him again ?
A. I am not sure, but I might.
Q. And can you tell me, I believe you have already testified that you saw Mr. Burrell once, is that correct ?
A. That’s right.
Q. And this was the second time that you had seen Mr. Burrell, is that correct?
A. That’s right.
Q. Did you have any trouble identifying him as one of the persons that you had seen?
A. No. No.
Q. Can you tell me whether or not the conversation that took place at the meeting in mid July was with everyone present, the four people that you have mentioned and yourself, or was it between you and one of those other persons or just who all participated in any discussion with regard to this material?
A. Hendricks and — well, the other two overheard some of it, I am sure, but the discussion was mainly with Hendricks.
Q. They may have have overheard it, is that correct ?
A. That’s correct.
Q. Did they participate in it?
A. I don’t remember.
Q. Now, can you tell me, sir, whether or not your memory with regard to this entire transaction was better a year ago than it is today ?
A. Generally, I would say, yes.
Q. And, therefore, sir, approximately one year ago today, on November 15, 1971, when you gave the statement to the United States Attorney, would I be correct that your answers would have been more responsive because you would have had a better recollection at that time?
A. I would think so, yes.
Q. Sir, I would ask you to again look at your statement of November 15, 1971, particularly pages 45 and 46. I am sorry. Start at the bottom of page 44 where I have indicated the first question on that page. Would you look at those three pages, please? Now, sir, again, do you remember being asked those questions and giving those answers on November 15, 1971?
A. Yes, sir.
Q. And were the answers to the questions that were asked of you at that time accurate?
A. As far as I can see, they were accurate, yes.
Q. Would you please, sir, read to the jury, starting with the check on the first question on page 44, over to the check that I have indicated on page 46, to an answer approximately halfway down the page? Would you please read that to the jury and would you again keep your voice up so the jury can hear you?
A. Does the name Edward Poland mean anything to you ?
I think he was a friend of Ed, a friend of Ed’s.
Q. Will you please keep your voice up a little?
A. All right. Then you met the man?
I met him.
Where did you meet him ?
I met him in Miami.
When was that ?

When I got back from Europe, I made the trip from Miami to see Ed and tell him what had happened in Europe, and I wanted to tell him I wasn’t very successful in selling this material and that I was going to go ahead and write some letters, but he hadn’t sent my money like he said he was going to. I really wasn’t interested in going on handling this material, and Ed, this fellow Edward Poland was a friend of his, and I met him there one time.

Did he participate in this conversation that you had with Hendricks about the material ?

No, but he was there, and there was someone else there whom I don’t remember his name. There were two other fellows there.

What were they doing there ?

I don’t know.

Did they have any connection with this transaction?

They may have, but if they did, I don’t know.

Did you ever have any conversation with Poland about the material ?

No, I didn’t talk with him about it or the other fellows that were with him. You mean in Miami ?

Anywhere. . . .”

The strongest item of testimony against Burrell is that he got in touch with Richard Sylvester and suggested Sylvester come to his home to talk about a certain matter. The pertinent testimony of Sylvester, Transcript 946-952, is set out below :

“Q. Now, I direct your attention to early August of 1971 and ask you if the defendant Delmar Burrell contacted you at or about that time ?
A. Yes, he did.
Q. And what was the nature of the contact?
A. He asked me to come out to his home and talk to him.
Q. Subsequently, did you go to his home?
A. Yes, I went to his home and there he asked me if I would like to go to Europe.
Q. Okay. Now, who was with you when you went to his home ?
A. My girl.
Q. And who was at Mr. Burrell’s home?
A. His wife.
Q. And where did this conversation take place?
A. Between Del and I ?
Q. Yes.
A. In his cellar.
Q. Okay, and what did he ask you at that time ?
A. He asked me if I was available to go to Europe, would I like to go to Europe.
Q. Now, had you been to Europe prior to this occasion ?
A. Yes, I had, on two other occasions.
Q. And did you go by yourself on those other occasions ?
A. The first time I went by myself and the second time Del and I went together.
Q. When did you go to Europe with Del, to the best of your recollection?
A. To the best of my recollection, 1968, summer of.
Q. And what else did he tell you when he asked if you wanted to go to Europe ?
A. He asked me if my passport was still valid and if I needed any shots.
Q. Okay. Did he tell you why he was asking you this ?
A. He had a friend that had some business to do.
Q. Did he tell you that friend’s name?
A. No.
Q. Did he mention anything about expenses at that time?
A. Yes, I said I would like to go, you know, but I didn’t have the money. He said, well, the trip would be paid for and all expenses.
Q. When he said the trip would be paid for, was he referring, what, to transportation or what at that time?
A. I took it to be transportation, you know, and expenses, which would be food.
Q. What did he tell you that you were supposed to do over in Europe with respect to this friend of his ?
A. The friend had some business to do. All I was to do would be to make it easier for him to find the places he had to go to and drop him off there and pick him up whenever his business was done.
Q. Did he indicate when this trip was to be made ?
A. As soon as possible.
Q. Now, when was your next contact with Mr. Burrell with respect to this trip?
A. A few days later he called and he asked if I was able to go for my passport within the next day or two.
Q. And what did you tell him at that time?
A. Yes, that I would be availalbe.
Q. Did he tell you anything else during that contact?
A. Where I was to meet the people that were going to go along.
Q. And where did he tell you to meet them?
A. Near the turnpike at Irwin.
Q. And subsequently did you meet with them?
A. Yes, I did.
* -X- * -X- * -X-
Q. Okay. And who did you meet there ?
A. Bill Altieri and an Ed Poland.
* -X -X- * -X- -X-
Q. Now, when you were speaking with Mr. Burrell, your earlier contact with respect to this trip, you indicated that he told you you wel&e just to show a friend of his around.
A. Yes.
Q. Did you indicate to him at all that that sounded a little bit strange?
A. Yes. And he said there is nothing, there is nothing wrong with it; if you are worried about it, just take the party to the door and go have a drink and then come back and pick him up; that there is nothing funny about it.”

The only additional evidence relied upon by the prosecution is set out in its brief as follows:

“(d) The government introduced Exhibit 122 which was an application for a passport submitted by defendant Burrell in August of 1971. This application revealed that Burrell intended to travel to England and Holland (where stolen property was located) for ‘business’ purposes.
“(e) On the weekend after the theft (March 20, 1971) a trailer identical to that used during the theft was observed on property owned or used by the defendant Burrell . . . .”

Upon a reading of the transcript, despite all the favorable inferences that might be drawn therefrom, the proof against Burrell seems exceptionally weak. The fact that Burrell travelled to Tortola in the British Virgin Islands in the company of the co-defendants Poland and Hendricks does not prove that Burrell had any part in the transportation of the stolen powder, albeit the three men arrived at Tortola the same day as the shipment of tungsten carbide powder and that also at this time the arrangements were made for the trans-shipment of the material to Europe. Despite the fact that Burrell was proved to be present at a meeting with West in Palm Beach at which the co-defendants Poland and Hendricks were also present, and the Government brief states, as we have quoted, that the matter regarding the attempted sale of stolen tungsten carbide powder was discussed in Burrell’s presence, there is nothing in the record to show that the discussion informed Burrell or made known to him that the proposed sale of tungsten carbide powder was stolen tungsten carbide powder and in particular the tungsten carbide powder which was stolen from Firth-Sterling Company. The same observation can be made respecting all of the conversations relied on by the Government, including the meeting with Sylvester. Items “(d)” and “(e)” quoted above certainly do not help the Government’s position.

The application for a passport does not establish knowledge of the theft or intent to aid in the transportation of the stolen material. The testimony identifying a similar trailer at Burrell’s place of business is of little moment considering that Burrell was employed in a trailer repair shop and no evidence was introduced purporting to demonatrate that the trailer used in the robbery was in any way unusual.

We are aware of the fact that all inferences are to be taken in favor of the United States when a judgment of conviction has been reached, but to convict upon this testimony is to treat inferences as facts and this we cannot do. We are also aware, as asserted by the Government, that evidence of an act of relatively slight moment may warrant a jury’s finding of a participation in a crime, but here the evidence is clearly insufficient to prove guilt beyond a reasonable doubt. Cf. United States v. Barber, 429 F.2d 1394, 1397, n.4 (3 Cir. 1970).

In view of our conclusions, it is not necessary to pass upon the other grounds asserted by Burrell in support of his motion for judgment of acquittal. The judgment of conviction will be reversed and the cause remanded with directions to the district court to enter a judgment of acquittal in Burrell’s favor.

GIBBONS, Circuit Judge

(dissenting).

I agree with Judge Biggs’ statement of the governing law, and I can find no fault with his treatment of the record facts. But while I agree that the proof against Burrell outlined in his opinion is, as he says, exceptionally weak, mindful that after a verdict it must be looked at in the light most favorable to the government, I believe it to be sufficient. See United States v. Kenny, 462 F.2d 1205, 1226-1227 (3d Cir.), cert. denied, 409 U.S. 914, 93 S.Ct. 233, 34 L.Ed.2d 176 (1972); United States v. Alper, 449 F.2d 1223, 1226-1227 (3d Cir. 1971), cert. denied, 405 U.S. 988, 92 S.Ct. 1248, 31 L.Ed.2d 453 (1972); United States v. Carlson, 359 F.2d 592, 597 (3d Cir.), cert. denied, 385 U.S. 879, 87 S.Ct. 161, 17 L.Ed.2d 106 (1966). There are just too many coincidences of Burrell being at a critical place at a critical time in the movement of the stolen merchandise. I cannot disregard the cumulative effect of the circumstantial evidence of his involvement. It suggests to me more than that Burrell kept bad company.

      . The judgments of conviction of Grover Edward Hendricks and Edward Thomas Poland, who were tried with Burrell, at our Nos. 73-1894 and 73-1895, respectively, were affirmed by judgment orders of this court filed February 4, 1974, 492 F.2d 1238, 1239.

      . The second count of the indictment is as follows: “On or about the 13th day of March, 1971, through on or about the 16tli day of June, 1971, in the Western District of Pennsylvania and elsewhere, the defendants, Delmar Roy Burrell, Grover Edward Hendricks, and Edward Thomas Poland, did with unlawful and fraudulent intent, transport and cause to be transported in interstate and foreign commerce, to wit, from West Elizabeth, Pennsylvania, to Miami, Florida, and from Miami, Florida, to Tortola, British Virgin Islands, and from Tortola, aforesaid to Liverpool, England certain goods and merchandise of a value in excess of $5,000, to wit, 45,695 pounds of tungsten carbide powder, then knowing the same to have been stolen. In violation of Title 18, United States Code, Sections 2314 and 2.”

      . Government’s Brief, p. 14.


source: Caselaw Access Project

author: KOELSCH, Circuit Judge:

license: Public Domain

text:
    Patrick BAKER, Petitioner-Appellant, v. Carl HOCKER, Warden, Nevada, State Prison, Respondent-Appellee.
    No. 72-2993.
    United States Court of Appeals, Ninth Circuit.
    May 6, 1974.

      Richard F. Ellers (argued), Nevada City, Cal., for petitioner-appellant.
    Robert A. Groves, Deputy Atty. Gen. (argued), Robert List, Nev. Atty. Gen., Carson City, Nev., for respondent-appellee.
    Before CHAMBERS and KOELSCH, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United States District Judge for the District of Oregon, sitting by designation.

   OPINION

KOELSCH, Circuit Judge:

Patrick Baker appeals from denial of his petition for writ of habeas corpus. 28 U.S.C. § 2254. We affirm.

Harold Craden’s store was robbed by three men the evening of January 8, 1970. The store was well lit. Craden observed the men for some forty-five minutes before the robbery occurred, as they browsed in the store before committing the crime. Craden called the police immediately after the men fled. The police broadcast the description Craden gave them; and, in response, a short time later a police car tried to stop the car in which appellant and two other, men were riding. The car fled at high speed, but stopped when the police fired a warning shot. Merchandise taken from Craden’s store and a gun were found in the car, and the three were arrested.

At a lineup conducted the next day, Craden identified the two men arrested with appellant as those who had robbed his store, but did not identify appellant, who was also in the lineup. However, first at the preliminary hearing, and later at trial, Craden positively identified appellant as one of the men who robbed him, and appellant was convicted.

Appellant now contends he was denied due process by the admission of Craden’s trial identification, apparently on the theory that it was based on his previous identification at the preliminary hearing. The identification procedure used there, he asserts, was “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The substance of appellant’s complaint is that during the preliminary hearing he was seated at counsel table beside the two men Craden had previously identified, thereby suggesting to Craden that appellant was the third man who robbed the store.

Appellant’s contention is untenable. As Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court’s latest explication of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), makes clear, a constitutionally invalid identification confrontation must be “unnecessarily suggestive,” and, in addition, under the “totality of the circumstances” create a “very substantial likelihood of irreparable misidentification.”

Appellant fails to clear even the first hurdle. Undoubtedly any in-court identification confrontation, whether at a preliminary hearing or at trial, whether the defendant is tried alone or with others, carries with it the stigma of the inevitable suggestion that the state thinks the defendant has committed the crime. Perhaps in appellant’s case the suggestion was compounded by the presence of the two previously identified men. But more than suggestion is required for a due process violation — the procedure must create “unnecessary” or “impermissible” suggestion. As in Stovall, the necessity and constitutional propriety of a suggestive confrontation must be judged in light of the state’s interest in the procedure as well as by the danger it poses to a defendant. Here the state has a substantial interest in the joinder of related criminal proceedings. Appellant’s contention, if accepted, would make suspect joint proceedings in all situations where each defendant has not previously been identified. The danger posed by a courtroom identification is insufficient to require such a result. The risk of a mistaken identification becoming irreparably “fixed” and not later to be shaken by cross-examination, which condemns suggestive confrontations in the police station, is far less present in the court proceeding because, as here, the identification can be immediately challenged by cross-examination. See United States v. Johnson, 461 F.2d 1165, 1169 n.9 (5th Cir. 1972). Cf. United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

Moreover, “the totality of the circumstances” indicate that the identification procedure used created little likelihood of misidentification. The victim had an extensive opportunity to view the robber before and during the crime. He was certain of his identification at the confrontation, which occurred only three months after the crime. He made no other inconsistent identifications, his prior description of appellant was, while general, consistent with appellant’s appearance, and he adequately explained his failure to identify appellant in the lineup. See Neil v. Biggers, supra, at 199.

The judgment is affirmed.


author: PER CURIAM.

text:
    La MAUR, INC., Plaintiff-Appellee, v ALBERTO-CULVER COMPANY and Leonard H. Lavin & Company, Defendants-Appellants. ALBERTO-CULVER COMPANY and Capitol Packaging Co., Counterclaimants-Appellants, v. La MAUR, INC., Counterdefendant-Appellee.
    No. 73-1713.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 17, 1974.
    Decided May 14, 1974.
    Rehearing Denied June 14, 1974.
    W. Thomas Hofstetter, Chicago, Ill., for appellants.
    Harold D. Field, Jr., Leonard, Street & Deinard, Minneapolis, Minn., for appellee.
    Before HEANEY and STEPHENSON, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This appeal is from the holding of the United States District Court for the District of Minnesota that the Alberto-Culver Company’s hair product “Blondes American Style” infringed upon the La Maur, Incorporated, trademark “Style” and the family of trademarks derived therefrom. The opinion is reported at 179 U.S.P.Q. 607 (1973).

Appellant, Alberto-Culver, claims here, as it did in its counterclaim below, that the La Maur “Style” trademark should be cancelled and that La Maur is in violation of the antitrust laws. AlbertoCulver also claims that the trial court erred in several other aspects, contending primarily that the record in the case shows no evidence of any likelihood of confusion between the La Maur and Alberto-Culver marks. According to Alberto-Culver, the marks are not similar in sound, appearance or meaning; further, the trial court did not consider this fact and therefore its finding of likelihood of confusion is clearly erroneous.

After careful consideration of the entire record we are satisfied that the district court’s determination that the “requisite ‘likelihood of confusion’ exists”, is based on findings that are not clearly erroneous and that no error of law appears.

Implicit throughout the trial court’s exhaustive examination of the facts and law is the overriding consideration of trademark similarity. The findings of the district court are amply supported by the record. Further amplification of the trial court’s opinion would serve no useful purpose.

Accordingly we affirm on the basis of the trial court’s extensive and well-reasoned opinion.

       Honorable Earl Larson.


author: PER CURIAM:

text:
    William B. WILSEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 504, Docket 73-2177.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 5, 1973.
    Decided April 30, 1974.
    Lionel G. Hest, New York City (Debevoise, Plimpton, Lyons & Gates, New York City, on the brief), for petitioner-appellant.
    Paul V. French, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty. N. D.N.Y., on the brief), for respondent-appellee.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

William B. Wilsey appeals from an order of the United States District Court for the Northern District of New York, Edmund Port, J., denying without a hearing Wilsey’s petition under 28 U.S. C. § 2255 to set aside his four-year sentence, entered in February 1971 after a guilty plea, for conspiring to counterfeit Federal Reserve notes. 18 U.S.C. § 371. Wilsey claims that the judge, in sentencing him, was improperly influenced by some prior convictions obtained when Wilsey did not have counsel and therefore not to be considered under United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). The Government argues that the judge’s remarks on the record show that he imposed sentence without relying on any prior unconstitutionally obtained convictions of appellant.

We view the judge’s comments as ambiguous and the record as unclear. Accordingly, we remand the proceeding so that the district judge may make brief findings as to (1) whether the pre-sentence report contained the challenged convictions; and (2) if so, whether he would have given a different sentence if he had known they were constitutionally invalid. If the answer to both questions is yes, the judge should determine whether the prior convictions were had without counsel, and, if so, he should re-sentence. If the answer to either (1) or (2) is in the negative, the judge should simply make a finding to that effect, cf. Schawartzberg v. United States, 382 F.2d 1012 (2d Cir. 1967) (per curiam), cert. denied, 391 U.S. 928, 88 S.Ct. 1817, 20 L.Ed.2d 669 (1968); United States v. Janiec, 464 F.2d 126, 132 (3d Cir. 1972), and not disturb the sentence.

      . Appellant points out that his co-defendant received a sentence of only six months,


text:
    UNITED STATES of America, Appellant, v. STATE OF WASHINGTON, Appellee.
    No. 73-1793.
    United States Court of Appeals, Ninth Circuit.
    April 30, 1974.
    Harry R. Sachs (argued), Wallace H. Johnson, Asst. Atty. Gen., Dept.,of Justice, Washington, D. C., Stuart F. Pierson, Asst. U. S. Atty., Seattle, Wash., George R. Hyde, Appellate Section Land & Natural Resources Division, Washington, D. C., for appellant.
    Joseph L. Coniff, Asst. Atty. Gen., (argued), Olympia, Wash., for appellee.
    Scott E. Little, Boulder, Colo., for amicus, Native American Rights Fund.
    Before KOELSCH, HUFSTEDLER and KILKENNY, Circuit Judges.
   OPINION

PER CURIAM:

This appeal presents for decision, a contention under which the appellee challenges the continued existence of the Puyallup Indian Reservation and, as a consequence, the right of the Puyallup Tribe of Indians to fish, free from state interference, on that part of the Puyallup River lying within the Reservation. This is a federal question, Satiacum v. Washington, 414 U.S. 1, 94 S.Ct. 209, 38 L.Ed.2d 1 (1973); which was left open in Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 394, n. 1, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968), and Moses v. Kinnear, 490 F.2d 21, 27-28 (CA 9 1974).

After a careful study, we can find no meaningful distinction between the Cushman Act, the Act of April 28, 1904, 33 Stat. 565, and its predecessor, the Act of March 3, 1893, 27 Stat. 612, 633, the legislation upon which appellee relies, and the Act of June 17, 1892, 27 Stat. 52, construed by The Supreme Court in Mattz v. Arnett, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973). Nor can we discern a significant variance between the historical background, including the continuing congressional and agency recognition, of the Klamath River Reservation involved in Mattz and the historical background and continuing recognition of the questioned Puyallup Reservation. For that matter, the historical background and continuing congressional and agency recognition of the Puyallups would appear to be substantially more impressive than that of the Klamaths. Consequently, we have no alternative other than to hold that the rationale of Mattz is controlling and that the Puyallup Indian Reservation continues to exist.

Accordingly, the judgment of the lower court is vacated and the cause is remanded to the trial court for proceedings in conformity herewith, including the entry of an appropriate decree. •

It is so ordered.

      . Created by Treaty of Medicine Creek, December 26, 1854, 10 Stat. 1132.

      . Decided subsequent to the lower court decision in favor of the appellee.


text:
    ALEX BROWN, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 73-2006.
    United States Court of Appeals, Sixth Circuit.
    Argued April 8, 1974.
    Decided April 30, 1974.
    Bennet Kleinman, Cleveland, Ohio, for appellant; Kahn, Kleinman, Yanowitz & Arnson, Gary D. Greenwald, Cleveland, Ohio, on brief.
    Jonathan S. Cohen, Atty., Dept. of Justice, for appellee; Scott P. Cramp-ton, Asst. Atty. Gen., Meyer Rothwacks, Libero Marinelli, Jr., Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief.
    Before WEICK and LIVELY, Circuit Judges and CECIL, Senior Circuit Judge.
   PER CURIAM.

The taxpayer, a corporation, appeals from the decision of the United States Tax Court upholding a determination by the Commissioner of Internal Revenue of an income tax deficiency for its fiscal year ending May 31, 1969. The deficiency determination was based on a finding that the taxpayer was availed of for the purpose of avoiding federal income tax with respect to its shareholders within the meaning of the Internal Revenue Code provisions dealing with unreasonable accumulations, Sections 531 through 537.

Upon consideration of the record, briefs and oral arguments the court concludes that the findings of fact of the Tax Court are not clearly erroneous, but are supported by substantial evidence. The inferences drawn by the Tax Court from the evidence are reasonable and lead to the conclusion that the deficiency was correctly determined.

Therefore it is ordered that the decision of the Tax Court be and it hereby is affirmed for the reasons set forth in the memorandum opinion of Judge Tannenwald which is reported at 60 T.C. 364 (1973).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Monroe VAUGHN, Defendant-Appellant.
    No. 73-1722.
    United States Court of Appeals, Sixth Circuit.
    Argued April 1, 1974.
    Decided May 3, 1974.
    Donald M. Kresge, Ada, Ohio (Court-appointed), on brief, for defendant-appellant.
    Frederick M. Coleman, U. S. Atty., Clarence B. Taylor, Asst. U. S. Atty., Cleveland, Ohio, on brief, for plaintiffappellee.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   PER CURIAM.

Appellant was convicted after jury trial in the United States District Court for the Northern District of Ohio on a charge of possession of stolen mail matter, in violation of 18 U.S.C. § 1708 (1970).

The principal issue briefed and argued before us on this appeal concerns appellant’s claim that his refusal to sign a written waiver of his Miranda rights rendered inadmissible the product of any interrogation which had been conducted in relation to this case. It is conceded that the postal inspectors who interrogated appellant read him his full Miranda rights and there is nothing to contradict the District Judge’s ruling that his subsequent identification of himself and his subsequent answers to questions were voluntarily given.

The Fifth Circuit has held: “[Wjhen all the circumstances indicate that the defendant knew of his right to remain silent and intelligently waived that right, the refusal to sign a written waiver does not render a confession inadmissible.” United States v. Johnson, 455 F.2d 311, 314 (5th Cir. 1972). This language was recently quoted in support of this court’s refusal “to adopt . . . a narrow construction of Miranda” in a fact situation somewhat parallel to our instant case. Hill v. Whealon, 490 F.2d 629 (6th Cir. 1974). We now express agreement with the Fifth Circuit’s view that the refusal to sign a written waiver, standing alone, does not render inadmissible statements or evidence voluntarily given after full warnings.

As we read this record, there was ample evidence from which the jury could have concluded (beyond reasonable doubt) that appellant knowingly sought to cash a stolen welfare check made out to another party, and was caught red-handed in the act.

No other appellate issues of substance are presented and the judgment of conviction is affirmed.