author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Titus THOMAS, aka Tee, Defendant-Appellant.
    No. 73-1403.
    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Rehearing and Rehearing Eh, Banc Denied Jan. 22, 1974.
    Robert Glass, New Orleans, La., for defendant-appellant.

      Gerald Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans La., for plaintiff-appellee.
    Before TUTTLE, BELL and GOLDBERG, Circuit Judges.

      . For the purpose of this opinion we use the word “intentional” as meaning “with intent to deceive the magistrate.” Of course, Phillips intended to use the name “Finley.” In that sense, his incorrect statement was intentional.

   TUTTLE, Circuit Judge:

This case primarily concerns the extent to which misrepresentations in affidavits by Government agents vitiate the search warrant issued pursuant thereto. Appellant Titus Thomas, a/k/a Tee, was convicted of possession of 128.46 grams of heroin, a Schedule I narcotic drug substance, in violation of 21 U.S.C. § 841(a)(1). This appeal seeks reversal on three grounds: (1) that the admitted misrepresentations in the affidavit by agent Phillips should vitiate the search warrant; (2) that the search conducted at night was illegal; and (3) that the arrest and search incident thereto were invalid. We readily find no merit in the latter two contentions, but determine that this ease presents substantial questions regarding the standards for evaluating affidavits containing misrepresentations.

However, careful consideration causes us to hold that this affidavit, purged of the factual errors, is sufficient to support the search warrant because (1) the misrepresentations were not intentionally made and (2) if unintentionally committed, the misrepresentations were not material to the showing of probable cause.

I. FACTS

The facts are undisputed. On May 8, 1972, agent Phillips of the Bureau of Narcotics and Dangerous Drugs made the following affidavit in support of his application for a search warrant:

“According to two reliable informants hereto referred to as Source 1 and Source 2 [both informants have furnished intelligence in the past that has led to the arrest and seizures of heroin] James H. FINLEY is a heroin trafficker. Source 1 supplied intelligence on September 20, 1971, that FINLEY conferred with him and at this time FINLEY stated that he was supplying numerous southern cities and that he wanted to expand his operations to include New Orleans.
“At this time FINLEY advised Source 1 that he would supply him with large quantities of heroin in the near future. FINLEY was driving a 1971 Lincoln bearing Alabama license 2A15335. The vehicle was registered to him at 470 East Ridge Road, Mobile, Ala.
“On Monday, May 1, 1972 Source 1 advised Affiant that FINLEY was in New Orleans and that FINLEY had sent an unknown male to him to-advise him that FINLEY had a supply' of heroin and could supply him with as much heroin as he wanted. Source 1 attempted to get in touch with FINLEY with negative results.
“On Sunday, May 7, 1972 Source 2 called Affiant and states that he had met earlier in the day with FINLEY and that FINLEY was residing at 2116 Iberville Street . . . Source 2 stated that he went to 2116 Iberville Street and talked with FINLEY about selling drugs for him. Source 2 told FINLEY that he was too afraid to do it. FINLEY explained to the source that he had rented an apartment across the street at 2117 Iberville and that he was keeping his cache at that location. FINLEY stated that he had to package some heroin and at this time he took Source 2 to the apartment [as described below]. The Source related that FINLEY lifted the bed in the apartment and removed a small suitcase and removed numerous packages. Source 2 then advised he left the apartment and told FINLEY that he was afraid of being caught by the police.
“On Sunday, May 7, 1972 at approximately 6:00 PM Affiant placed the premises of 2116 and 2117 under surveillance. At approximately 7:45 PM Affiant observed an unknown Negro male exit 2116 Iberville, go across the street to the door between 2115 and 2117 Iberville, use a key and enter the door. In approximately three minutes the unknown Negro male exited the premises and walked to the corner of Galvez Street and turned out of af-fiants’ vision. In approximately five minutes the unknown Negro re-appeared and walked back and entered 2116 Iberville Street.
“WHEREFORE Affiant respectfully requests . . . that a nighttime warrant pursuant to section 509 of the Controlled Substances Act ... be issued because of the need to search at the next most reasonable opportunity and because in my experience as a narcotics investigator drugs are likely to be more open for delivery and dealing at night and thus more exposed to seizure under a search warrant.”

The name, “James H. Finley” was capitalized as shown in the above recital. At the hearing on the motion to suppress, agent Phillips admitted that the informants mentioned in the affidavit did not designate the party discussed by the name of “James H. Finley,” but consistently referred to him as “Tee” during each conversation with Phillips. It was Phillips’ testimony that he, not the informants, as stated in the affidavit ascribed the name “James H. Finley” to the party discussed by the informants based on certain deductions after additional investigation. The affidavit, however, clearly states that the informants avowed that “James H. Finley” had shown source 2 the narcotics' and had solicited both sources 1 and 2 as salesmen.

Source 1 had related to Phillip that “Tee” met him in a 1971 Lincoln with an Alabama license tag 2A15335. Agent Phillips discovered through further investigation that this 1971 Lincoln had been associated in the Bureau of Narcotics and Dangerous Drugs Office in Mobile, Alabama with heroin traffic and was registered to “James H. Finley.” Phillips deduced that “Tee” was “James H. Finley” and used this name in the affidavit. Phillips did not learn that the man arrested was the appellant Titus Thomas who was the same person known as “Tee” until after appellant’s arrest.

Agent Phillips obtained the search warrant around 8:00 or 9:00 p. m. on May 8, 1972. The search warrant was executed shortly thereafter, at approximately 10:00p. m., at 2115-2117 Iber-ville Street, New Orleans, Louisiana, by agents Phillips, Costa and Curry. The landlady furnished these officers a key to 2117 after they showed her the search warrant; heroin was found both under the bed and in a locked suitcase. After seizing the contraband the officers proceeded to an area directly across from the premises searched and observed the front of 2116 Iberville Street. The landlady stated that Dickinson and Titus Thomas were the occupants of the apartment, and described Thomas as fifty years old, with receding hair, graying mustache, bright skin, heavy set and about six feet tall. While waiting across the street the agents observed Dickinson enter the apartment with a woman. After approximately ten or fifteen minutes, Dickinson, Thomas and two women left 2116 Iberville, and proceeded down the sidewalk. They stood for a moment or two; it appeared that they were going to separate; the women began to leave. The officers arrested Thomas and Dickinson as they were stepping off the curb on the side of the street opposite them at 2117 Iberville. The keys in Thomas’ .pocket fit the suitcase and the door to 2117 Iberville where the heroin had been located.

Phillips did not state to the magistrate his reason for believing “Tee” ’s name was “James H. Finley.” Phillips had assumed that “Finley” and “Tee” were the same persons since September of 1971, the time the circumstances concerning the automobile occurred. Also, both informants had stated that “Tee” was from Mobile, Alabama, the residence of “Finley.” The record does not reflect the specific physical description the two informants gave to Phillips of the persons they separately referred to as “Tee,” but Phillips testified that the description of the person he was investigating was:

“He was brown skinned, 45 years old. He would have had short hair, heavyset, heavy build, 230, 240 pounds, black male.”

Phillips had conducted a surveillance of 2116-2117 Iberville Street on the night prior to the issuance and execution of the search warrant on May 8, 1972. Phillips noted in the affidavit that on May 7, 1972, he observed a “Negro male” entering the apartment, but did not give any further description of this man. For these reasons, Phillips maintains that he did not intentionally misstate the facts in the affidavit prepared on May 8, 1972, because he believed “Tee” to be “Finley.”

The trial court found that Phillips maintained a good faith belief based upon his investigation that “Tee” was in reality a man named “Finley.” The erroneous theory of “Tee” ’s true identity was deemed trivial and insignificant as regarding the magistrate’s determination of probable cause. The court upheld the nighttime search and did not discuss the validity of the arrest.

II. MISREPRESENTATION IN AFFIDAVITS

The vast majority of decisions resolving attacks on the sufficiency of affidavits underlying search warrants are reached on the assumption that the affiant’s statements are true. But how is a court to deal with a defense attack on the veracity of statements made by the affiant or other government agents? This Court’s task is twofold: (1) to determine what standards should be applied in evaluating the validity of affidavits containing misrepresentations; and (2) to consider whether this affidavit passes muster under those stand-

ards.

In United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971) and in two recent cases, United States v. Jones, 475 F.2d 723 (5th Cir. 1973) and United States v. Morris, 477 F.2d 657 (5th Cir. 1973), this Court had occasion to consider “misrepresentative” affidavits supporting search warrants. These decisions determined that after deleting the erroneous statements, the affidavits were totally lacking in facts tending to show the requisite probable cause, and thus held the search warrants pursuant thereto invalid. In United States v. Upshaw, supra, 448 F.2d at 1218, 1222, appear the following pertinent comments:

“Purged of its erroneous statements, the affidavit was wholly lacking in facts tending to show that Davis was printing checks or identification documents or that any of the documents were on the premises of the print shop. Stripped of its incorrect assertions, the affidavit became like that in Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933), consisting of nothing more than the bare statement of affiant’s belief and cause to suspect that items were in a specified location. Mere affirmance of belief or' suspicion is not enough.
Id. at 47, 54 S.Ct. at 13, 78 L.Ed. at 162. See also Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
“Once it came to the attention of the court, from the testimony at the motion to suppress hearing, that evidence had been seized on the basis of statements 'of facts erroneously made by the affiant which struck at the heart of the affidavit’s showing of probable cause, the court was required to grant the motion [to suppress] . .

Moreover, this Court in United States v. Morris, supra, 477 F.2d at 662, aptly summarized the rationale for suppressing evidence obtained due to erroneous affidavits:

“A contrary rule would leave the warrant requirement embodied in the fourth amendment open to circumvention by overzealous officials willing to make erroneous affidavits in the hope that the resultant search or arrest will yield conclusive proof of criminal conduct. The warrant procedure operates on the assumption that statements in the affidavit presented to the issuing magistrate are at least an accurate representation of what the affiant knows though possibly inadequate to show probable cause. It would quickly deteriorate into a meaningless formality were we to approve searches or arrests based upon misrepresentation or incorrect factual statements. ■ Thus when an affidavit contains inaccurate statements which materially affect its showing of probable cause, any warrant based upon it is rendered invalid.”

In this trio of cases this Court adopted the bifurcated procedure of excising the misrepresentative parts from the affidavit and then examining the residue for probable cause.

The difference with this case is that after purging this affidavit of its misrepresentations, probable cause for issuance of a search warrant still exists, even if the affidavit is viewed in the light most favorable to the appellant-defendant. If the consistent use of the name “Finley” were deleted, there would be nothing to link sources 1 and 2, and the information from sources 1 and 2 must satisfy probable cause requirements independent of each other. Source 1 could not conceivably alone constitute sufficient probable cause. Accordingly, this Court must evaluate what is left in source 2, after eliminating source 1 and all the misrepresentations in source 2. Even if we accept this view, sufficient probable cause remains in source 2 alone. The non-misrepresent-ative residue in source 2 discloses that: “X” met source 2 at 2116 Iberville Street; that “X” asked source 2 to sell heroin; that “X” said he was keeping a cache in his apartment which he showed source 2. Additionally Phillips had substantiated the reliability of the source, stating that he had furnished intelligence in the past. Thus, the affidavit complies with the well-established two-prong test for assaying affiants’ hearsay statements in that: (1) the affidavit presents sufficient objective evidence to enable the magistrate to conclude that the unnamed informant is credible or that his information is reliable, and (2) the affidavit sets forth some underlying circumstances which reveal the source of the informer’s information pertaining to the criminal activity. See 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).

Therefore, this case presents the issue, which this Court has not heretofore squarely faced: How is a misrepresenta-tive affidavit to be treated when after deleting the false material, there remain facts which might have supported a magistrate’s finding of probable cause?

The crucial question becomes whether, after deletion of the errors, surveying the non-misrepresentative residue for probable cause is the only standard to be applied in evaluating the effect of inaccurate affidavits supporting search warrants. We conclude not, in light of the fact that courts of several other circuits have adopted additional tests, and more importantly, this Court sounded the following significant caveat in a footnote in United States v. Morris, supra, 477 F.2d at 662 n. 6.

“We feel compelled to emphasize that there is nothing in the record which indicates that the erroneous statement in Williams’ affidavit was intentionally or willfully made. Nothing in this opinion is intended to suggest to the contrary.” ,

This comment appears to intimate that whether the misrepresentation was “intentional” or “willful” may affect in some circumstances the validity of the affidavit. Also, the district court in the instant case based its decision upholding the sufficiency of this affidavit not only on the fact that the name error was insignificant and not integral to a showing of probable cause, but also because the affidavit was made in good faith. The district court held:

“In the present case, Phillips maintained a good faith belief, based upon his experience in law enforcement and upon his investigation of narcotics cases, that ‘Tee’ was in reality a man named ‘Finley.’ The Court finds no willful attempt to deceive the magistrate, and it is clear that Phillips’ erroneous theory of ‘Tee”s real identity was trivial and insignificant as regard the magistrate’s determination that there was probable cause requisite to the issuance of a search warrant. . ” (Emphasis supplied).

Therefore, we hold that affidavits containing misrepresentations are invalid if the error (1) was committed with an intent to deceive the magistrate, whether or not the error is material to the showing of probable cause; or (2) made non-jntentionally, but the erroneous statement is material to the establishment of probable cause for the search.

This standard of evaluating the intent of the agent-affiant is supported by decisions in other circuits. .A recent opinion by the Court of Appeals for the Seventh Circuit in United States v. Carmichael, 7 Cir., 489 F.2d 983 [1973] extensively examined inaccurate affidavits supporting search warrants. First, although the Supreme Court has not decided the extent to which a court may permit an attack on a warrant where the allegations of the affidavit establish probable cause, the Seventh Circuit significantly held criminal defendants are entitled to a hearing under the following circumstances:

“ . . . in United States v. Pearce, 7th Cir., 275 F.2d 318, 321-322 (1960), this Court expressed its opinion in dicta that the propriety of such a hearing ‘is hardly open to question.’ * * *
“We now hold that a defendant is entitled to a hearing which delves below the surface of a facially sufficient affidavit if he has made an initial showing of either of the following: (1) any misrepresentation by the government agent of a material fact, or (2) an intentional misrepresentation by the government agent, whether or not material. See generally United States v. Dunnings, 425 F.2d 836, 840, 2d Cir. 1969, certiorari denied, 397 U. S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412; United States v. Halsey, 257 F. Supp. 1002 (S.D.N.Y.1966); Kipper-man, ‘Inaccurate Search Warrant Affidavits as a Ground for Suppressing Evidence,’ 84 Harv.L.Rev. 825 (1971).”

After determining that in certain circumstances a defendant was entitled to a hearing on the factual validity of an affidavit supporting a search warrant, the court proceeded to set the standards under which evidence would be suppressed;

“However, once such hearing is granted, more must be shown to suppress the evidence. Evidence should not be suppressed unless the trial court finds that the government agent was either recklessly or intentionally untruthful. A completely innocent misrepresentation is not sufficient for two reasons. Most importantly, the primary justification for the exclusionary rule is to deter police misconduct (see Kipper-man supra at 831, and cases cited), and good faith errors cannot be deterred. Furthermore, such errors do not negate probable cause. If an agent reasonably believes facts which on their face indicate that a crime has probably been committed, then even if mistaken, he has probable cause to believe that a crime has been committed. Such errors are likelier and more tolerable during the early stages of the criminal process, for issuance of a warrant is not equivalent to conviction.
“Negligent misrepresentations are theoretically deterable, but no workable test suggests itself for determining whether an officer was negligent or completely innocent in not checking the facts further. We therefore concluded that evidence should not be suppressed unless the officer was at least reckless in his misrepresentation. Even where the officer is reckless, if the misrepresentation is immaterial, it did not affect the issuance of the warrant and there is no justification for suppressing the evidence. Arguably, the same- conclusion could be reached as to deliberate but immaterial misrepresentations. However, we conclude that if deliberate government perjury should ever be shown, the court need not inquire as to. the materiality of the perjury. The fullest deterrent sanctions of the exclusionary rule should be applied to such serious and deliberate government wrongdoing.”

This discussion by. the court substantially adopts, with one modification, the standards for evaluating affidavits set forth in Kipperman, “Inaccurate Search Warrant Affidavits As A Ground For Suppressing Evidence,” 84 Harv.L.Rev. 825, 830-33 (1971). In short, the author proposes that evidence should be suppressed when there is either (1) an intentional misstatement by an affiant-agent, whether material or immaterial to showing probable cause; or (2) a negligent or unreasonable assertion in an affidavit, if material to showing probable cause, but not where (3) the mistake is innocent, even if material to probable cause. The only modification to Kipper-man’s analysis made by the Seventh Circuit was that mere ordinary negligence is not sufficient, for the misrepresentation must amount to recklessness.

Two other decisions are noteworthy. In United States v. Bowling, 351 F.2d 236, 421-422 (6th Cir. 1965), the Court of Appeals for the Sixth Circuit upheld a search warrant based on an affidavit containing factual errors, stating:

“Under this circumstance, we read the denial of the motion to suppress evidence as a holding that there was probable cause for the warrant and that errors in the affidavit were immaterial or unintentional,2 such as are produced by drafting ‘by non-lawyers in the midst and haste of a criminal investigation.’ United States v. Ven-tresca, supra, 380 U.S. at 108, 85 S.Ct. at 746.”

The Court of Appeals for the Eighth Circuit also briefly considered the effect of misrepresentations in affidavits in United States v. Bridges, 419 F.2d 963, 966-967 (8th Cir. 1969), where the defendant argued, for the first time on appeal, that the government agent falsely swore that the defendant had been convicted in 1961 for “narcotics violations and received a sentence of nine years.” Treating this contention in a footnote, the court dismissed the issue by pointing out that there was no showing in the record that the agent made the statement with “fraudulent intent” and that the error was “immaterial” since it was highly unlikely that any weight would be given a 1961 conviction for narcotics addiction in determining probable cause for the issuance of a search warrant in 1968. These two decisions by no means thoroughly considered the issue, but did inject the element of intent as a possible standard for evaluating the effect of misrepresentations in affidavits.

Other eases discussing inaccurate search affidavits have generally involved situations where, after deletion of the misrepresentations, the affidavit is clearly lacking in probable cause. See United States v. Harwood, 470 F.2d, 322, 324-325 (10th Cir. 1972); United States v. Roth, 391 F.2d 507, 511 (7th Cir. 1967); United States v. Botsch, 364 F.2d 542, 546 (2d Cir. 1966), cert, denied, 386 U.S. 937, 87 S.Ct. 959, 17 L.Ed.2d 810 (1967); United States v. Pearce, 275 F.2d 318 (7th Cir. 1960); United States v. Henderson, 17 F.R.D. 1 (D.D.C.1954). The Seventh and Fourth Circuits have also held that the willful or intentional use of a fictitious name as the affiant’s signature on a search warrant affidavit, intentional use of a fictitious name as the affiant’s signature on a search warrant affidavit per se voids the warrant. United States ex rel. Pugh v. Pate, 401 F.2d 6 (7th Cir. 1968) and King v. United States, 282 F.2d 398 (4th Cir. 1960).

Without further citation of authority we are convinced that there would be a sufficient ¿asis for invalidating a search warrant if the error was intentional, even though immaterial to the showing of probable cause. In fact, a warrant issued following an intentional misstatement of fact by an affiant-agent would present the clearest case for suppression. Kipperman’s reasoning is worth repeating:

“This would be a clear case of proscribed government action (perjury) which could be to some degree deterred by quashing warrants based thereupon. One could analogize intentional inaccuracy by the affiant to the knowing use of perjured testimony at trial and hold that the public policy against government distortion requires automatic suppression of the evidence obtained in such a manner regardless of prejudice. Thus an in-tehtional misstatement of fact in the affidavit would be fatal even if it were immaterial to proving probable cause, of if, unbeknownst to the lying af-fiant, the facts alleged in bad faith turned out to be true.” Kipperman, supra, at 831. invalidating warrants pursuant to intentional misrepresentations by government agents is a logical corollary of the deterrence philosophy underlying the exclusionary rule.

Therefore, the next step is to determine whether Phillips’ misrepresentations were intentional or unintentional. If unintentional, we have already concluded that the error was not material to the showing of probable cause, and therefore would not provide a basis for quashing the warrant. However, if the error was intentionally committed, the materiality of the error to the establishment of probable cause is not a prerequisite to invalidating the warrant.

Foremost, it should be emphasized that the statements regarding the name “James H. Finley” were clearly misrep-resentative; the only open question is whether the misrepresentation was in good faith or with an intent to mislead. Phillips may have in good faith deduced from his investigation about the license tag of the 1971 Lincoln that “Tee” was “James H. Finley.” However, Phillips drafted the affidavit so artfully that it appeared that these informers had called the party in question “Finley,” and not that Phillips had merely deduced that “Tee” must be “Finley.” Phillips did not state the mental processes he followed to make this deduction, which he easily could have done. The use of the name “Finley” also made it appear that sources 1 and 2 were conclusively referring to the same person. The consistent use of the name Finley tied these informant tips together: at sixteen places the name “Finley” is capitalized, thus emphasizing the correctness of the investigation about this person. The error was blantantly misrepresentative.

However, the saving feature is that through his investigation Phillips had secured the license tag number from the informants, discovered the car was registered to James H. Finley; he knew that both “Tee” and “James H. Finley” were from Mobile, Alabama, and consequently had a valid basis for assuming that “Tee” was “James H. Finley.” Although the issue is a difficult one, we feel compelled to affirm the district court’s finding that the agent’s belief was made in good faith and not with an intent to deceive the magistrate in this case.

In conclusion, we determine that the affidavit, purged of its errors, sufficiently supports the search warrant issued pursuant thereto because the misrepresentations (1) were not intentional, or (2) were not material to the showing of probable cause.

III. THE NIGHTTIME SEARCH

The search warrant was executed around 10:00 p. m., May 8, 1972. The warrant itself was a blank form filled in by the magistrate. At the beginning the form provided for the name of the affiant, and “That he (has reason to believe) (is positive) that . . .” probable cause to search the named premises exists. These alternative parenthetical were footnoted to a paragraph in the warrant which recited,

“The Federal Rules of Criminal Procedure provide: ‘The warrant shall direct that it be served in the daytime, but if the affidavits are positive that the property is on the person or in the place to be searched, the warrant may direct that it be served at any time.’ Rule 41(e).” (Emphasis supplied).

In the warrant issued by the magistrate, the parenthetical “is positive” was crossed out. All agreed that the trial court correctly held that Federal Rules of Criminal Procedure 41(c) could not authorize this night search, because the affiant was not positive that the contraband was at the place to be searched.

However, the provisions of the Federal Rules of Criminal Procedure 41(h) state:

“This rule does not modify any act, inconsistent with it, regulating search, seizure and the issuance and execution of search' warrants in circumstances for which special provision is made. . The term ‘daytime’ is used in this rule to mean the hours from 6:00 a. m. to 10:00 p. m. according to local time. ...”

The trial court held that this night search was proper under 21 U.S.C. § 879, because such act fell within the exception as allowed in Federal Rules of Criminal Procedure 41(h). It is provided in 21 U.S.C. § 879 that:

“(a) A search warrant relating to offenses involving controlled substances may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time.” (Emphasis supplied).

The appellant’s contention is that the italicized words require the magistrate to make an affirmative statement on the face of the warrant showing his satisfaction that probable cause existed to believe that the search was necessary at night. It is noted that before the command to search, the warrant recited,

“I am satisfied that there is probable cause to believe that the property so described is being concealed on the (premises) above described and that the foregoing grounds for application for issuance of a search warrant exist.”

The warrant concluded with- the command,

“You are hereby commanded to search forthwith the (place) named for the property specified, serving this warrant and making the search (in'the daytime) (at any time in the day or night) . . .”

The parenthetical “in the daytime” was crossed out. Thus, the appellant stresses that this warrant only stated the magistrate’s satisfaction with the showing of probable cause to search and commanded that the warrant be served “at any time in the day or night,” but failed to include any statement by the magistrate that he was satisfied that there was probable cause for the execution of the warrant specifically at" night. The appellant basically argues that the magistrate was required to state on the face of the warrant why he was authorizing the night search, without citing any case law to substantiate the position that more should have been done by the magistrate..

The government responds that section 879(a) requires only a determination by the magistrate that the night search was necessary, without demanding explanation on the warrant itself or the reasons therefore. It is stressed that Phillips on the last page of the warrant application stated adequate reasons for needing a night search:

“It is also requested that a nighttime warrant pursuant to section 509 of the Controlled Substances Act, (P.L. 91-513) be issued because of the need to search at the next most reasonable opportunity and because in my experience as a narcotics investigator drugs are more likely to be open for delivery and dealing at night and thus more exposed to seizure under a search warrant.”

Furthermore, it is asserted that the magistrate by the act of crossing out the section of the form “in the daytime” evidenced his finding of probable cause for a nighttime search and was not required to include statements on the face of the warrant specifically regarding the night element of the search.

The resolution of this issue is assisted by examining the prior law regarding federal narcotics search warrants, 18 U. 5. C. § 1405(1) , which was superseded by 21 U.S.C., § 879(a). Section 1405(1) provided, in pertinent part, that a:

“. . . Search warrant [relating to narcotics offenses] may be served at any time of the day or night if the judge or United States Commissioner issuing the warrant is satisfied that there is probable cause to believe that the grounds for the application exist.”

Section 1405(1) was uniformly interpreted to require only a showing of probable cause to search in order for a warrant relating to narcotics to be executed at night. In other words, if the warrant could legally issue, it could be served at any time, day or night. United States v. Stallings, 413 F.2d 200, 207 (7th Cir.), cert, denied, 396 U.S. 972, 90 S.Ct. 460, 24 L.Ed.2d 440 (1969); United States v. Pittman, 439 F.2d 906, 909 (5th Cir. 1971); United States v. Tucker, 262 F.Supp. 305 (S.D.N.Y.1966). The appellant contends that the new narcotics search warrant provision, 21 U.S.C. § 879(a), is significantly different because the judge must not only be satisfied that there is probable cause to believe that grounds exist for the warrant, but also “for its service at such time.” This language, argues appellant, is a new requirement, commanding affirmative action by the magistrate and probable cause to issue the warrant specifically at night.

This argument would be plausible, were it not for the fact that the legislative history of 21 U.S.C. § 879 reveals that no change was intended in application or meaning of section 1405(1) with the enactment of section 879(a).- Indeed, the House Report notes that:

“Subsection (a) of this section [21 U. S.C. § 879] incorporates 18 U.S.C. § 1405 and authorizes service of a search warrant at any time of the day or night if probable cause has been established to the satisfaction of the judge or U.S. Magistrate issuing the warrant.”

A recent decision by the Court of Appeals for the District of Columbia, United States v. Gooding, 155 U.S.App.D.C. 259, 477 F.2d 428, 432-439 (1973), extensively considered these two statutes, reviewing their legislative history and previous interpretations of section 1405(1). In the opinion of the Court, section 879(a) was a “direct descendant” of section 1405(1) and did not require a special showing of a need to search at night. Id. at 432-438. See United States v. Thomas, 294 A.2d 164 (D.C.App.1972).

In conclusion, it is significant that agent Phillips did affirmatively state adequate reasons for conducting the search at night, since it was necessary to search immediately and the warrant was obtained at 8:00 p. m. Consequently, we are not required to determine whether specific reasons for searching at night must be given in addition to the general-showing of probable cause. We only hold that where the magistrate did cross out “daytime” and did have an explanation in the affidavit adequately justifying the nighttime search, the magistrate was not required to repeat or further elucidate the special grounds for issuing the search at night on the warrant itself. Accordingly, the search warrant was properly issued and executed at night.

IV. LEGALITY OF THE ARREST

The trial court did not reach the legality of the arrest, because it ruled that the prior warrant seizures • were legal and thus led to the valid arrest. The appellant claims that the search warrant was illegal, therefore the arrest was illegal. Moreover, if the arrest was illegal, the taking of the keys from appellant was illegal. However, since this Court concludes that the search warrant was legal, this issue is pretermitted.

The judgment is affirmed.

      . At this juncture it is important to emphasize that tins case does not raise the issue of whether a defendant is entitled to a hearing to test the underlying factual validity of the affidavit on the basis of which a warrant has been issued. This question is yet to be resolved by the Supreme Court, and none of the Fifth Circuit cases heretofore concerning misrepresentative search warrants presented the question. See United States v. Morris, 477 F.2d 657, 662 n. 3 (5th Oir. 1973) ; United States v. Jones, 475 F.2d 723, 726 (5th Cir. 1973) ; United States v. Upshaw, 448 F.2d 1218, 1221-1222 n. 3 (5th Cir. 1971).

      . However, note footnote 2 supra.

      . See footnote 1 supra.

      . It should he emphasized that we do not reach the question of what degrees of unintentional misrepresentations, i. e., reckless or negligent or innocent, are necessary to invalidate an affidavit, since in any event the error in the instant case was immaterial.

      . Act of 18 July, 1956, ch. 629, Title II, § 201, 70 Stat. 573, repealed by Pub.L. No. 91-513, Title III, § 1101(b)(1)(A), 84 Stat. 1292 (1970).

      . H.R.Rep. No. 91-1444 (Part I), 91st Cong., 2d Sess. 54 (1970). See U.S.Code Cong.Adm.News, 91st Cong., 2d Sess., at pp. 4621-4622 (1970). Exactly the same language is contained in the Senate Report. S.R.P. No. 91-613, 91st Cong., 1st Sess. 30-31 (1969).


source: Caselaw Access Project

author: CHOY, Circuit Judge: ELY, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl Douglas MARTIN, Defendant-Appellant.
    No. 73-2166.
    United States Court of Appeals, Ninth Circuit.
    Dec. 17, 1973.

      Federal Defenders of San Diego, Inc., Robert L. Boles, San Diego, Cal., for defendant-appellant.
    William V. Smitherman, U. S. Atty., Michael B. Scott, Asst. U. S. Atty.', Phoenix, Ariz., for plaintiff-appellee.
    Before ALDRICH, ELY and CHOY, Circuit Judges.

       The Honorable Bailey Aldrich, Senior United States 'Circuit Judge for the First Circuit, sitting by designation.

   CHOY, Circuit Judge:

Martin was convicted by a jury of illegally possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970). We affirm.

Martin was arrested after the police, conducting a surveillance of his motel room, observed a car pull up to the motel, the driver enter Martin’s room carrying a brown paper sack, and, shortly after, both leave with Martin then apparently carrying the paper bag. A search of the car revealed a quantity of heroin under the front seat and more heroin concealed in a brown paper bag underneath the back seat. The driver of the car, Albertico Salazar, was eventually indicted along with appellant. Charges against Salazar were later dropped, however, in return for his testimony at trial — testimony which indicated a narcotics transaction had taken place between Martin and Salazar. A third occupant of the car, a young Mexican alien, was released after it was determined that he was not involved in the transaction. Upon his release the boy apparently returned to Mexico.

Attempted Coverup

At trial Salazar, through an interpreter, related that appellant had told him that he should “take the blame on this charge because he (appellant) was hot, and he was on parole”. Appellant argues that this is inferentially evidence of his past crimes which is inadmissible as part of the government’s case in chief. It is true that normally the prosecution may not initially attack a defendant’s character. See 1 Wigmore, Evidence § 57 (3d ed. 1940). However, reputation evidence, including evidence of past crimes, is admissible, as an exception to this rule, where “the evidence has probative force relevant to intent or motive, design, knowledge, identity, or habits. . . .” Smith v. Rhay, 419 F.2d 160, 164 (9th Cir. 1969). See generally 2 Wigmore, Evidence §§ 276, 278 (3d ed. 1940). For example, in Hass v. United States, 31 F.2d 13 (9th Cir.), cert, denied, 279 U.S. 865, 49 S.Ct. 480, 73 L.Ed. 1003 (1929), a witness testified that the defendant, who was charged with possession of opium, had attempted to assault him shortly before the trial. The testimony was held admissible “because it had some tendency to connect the appellant with the commission of the offense. . . . ” Hass v. United States, 31 F.2d at 15. Similarly, here the statement as to appellant’s attempted coverup, and the reasons for it, are an acknowledgement of guilt. The statement that he was “hot” and on parole, while not itself a declaration of the coverup scheme, indicates why Martin was asking Salazar to take the blame and is thus part and parcel of the incriminating statement.

Martin argues that Salazar’s testimony on this point is hearsay since the alleged admission was related to Salazar by a fellow prisoner who acted as an interpreter. Viewing the evidence, as we must, in a light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), it appears that Salazar was capable of understanding enough English to gather the purport of Martin’s statement. It was not hearsay because another inmate also translated it.

Release of Passenger

Prior to the trial, Martin moved for an order requiring the goverment to disclose the name of the third occupant of the car, the Mexican boy. A customs agent, James Miller, the only person to testify at the hearing on this motion, said that he was unable to recall or discover the boy’s name. Based on this, the court denied the motion. Martin contends that the failure of the government to at least record the witness’ name is a denial of due process.

While it might be a denial of due process for the government to fail to record the identity of an important witness where there are no other means available to learn that person’s identity, cf.. United States v. Mendez-Rodriguez, 450 F.2d 1 (9th Cir. 1971), this is not such a case. At the close of the pretrial hearing, the judge suggested that Martin’s counsel attempt to learn the boy’s identity from Salazar or his attorney. At trial, both Salazar and a local police officer testified as to the missing passenger’s name. Martin’s counsel did not request time to bring the boy to testify, presumably having learned the boy’s identity and then having discovered his testimony would be of no help. In light of this, it cannot be said the government’s failure was a denial of due process.

Assistance of Counsel

Martin next claims that he was denied effective assistance of counsel. To establish such a claim, a party must demonstrate that counsel’s conduct of his case was so lacking in professional skill as to reduce the trial to a farce or a mockery of justice. See, e. g., United States v. Valenzuela-Mendoza, 452 F.2d 773, 774 (9th Cir. 1971). Appellant points to three instances of alleged misjudgment which, it is said, prove trial counsel’s total lack of diligence in this case.

First, Martin complains of his counsel’s withdrawal of a motion to suppress the heroin seized in the search of Salazar’s automobile. This, however, falls far short of constituting ineffective assistance of counsel: it was a reasonable decision in the face of the fact that, as counsel admitted, there was almost certainly probable cause to search the vehicle without a warrant.

Second, Martin asserts that counsel was remiss in failing to object to certain of the trial court’s instructions regarding the criminal standard of proof. The court’s instructions con-tamed two statements which have been disapproved in this circuit. Yet in both cases in which such statements were criticized, this court found their inclusion was not reversible error under the circumstances because the instructions as a whole conveyed a proper notion of the standard of guilt. See United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973); United States v. Cummings, 468 F.2d 274, 280 (9th Cir. 1972). The same is true of the instructions here. Therefore, trial counsel’s failure to object does not demonstrate the sort of incompetency necessary for reversal.

Third, Martin points to the failure of his attorney to offer a special cautionary instruction on the reliability of the accomplice, Salazar. However, the issue of Salazar’s credibility was pursued in a number of ways; counsel attacked his credibility on cross examination; the testimony of a fellow inmate, called as a witness for Martin, tended to undercut Salazar’s version of events; and in final argument counsel strenuously argued that the accomplice’s testimony was suspect. Since appellant’s attorney actively pursued the reliability issue, we cannot say the failure to offer the cautionary instruction represents^ — even in combination with the other claimed mis judgments — such malfeasance that appellant was denied effective assistance of counsel. Compare Brubaker v. Dickson, 310 F.2d 30, 38-39 (9th Cir. 1962), cert, denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963) (total failure to present critical defense amounts to denial of counsel).

Stipulation of Facts

Finally, the government and Martin’s attorney agreed to stipulate as to the substance found in the car and as to its chain of custody. Appellant argues that the record must affirmatively reveal, as it does not, that he personally waived his constitutional right to confront witnesses by consenting to the stipulation. This is not an area where counsel is not permitted to waive his client’s rights. See, e. g., Wilson v. Gray, 345 F.2d 282, 286 (9th Cir.), cert, denied, 382 U.S. 919, 86 S.Ct. 288, 15 L. Ed.2d 234 (1965). We consider the matter one of degree, based perhaps upon the importance of the testimony and the likelihood of overcoming it if presented in court. It might well have been advantageous trial tactics not to dispute the indisputable. In any case the agreement was recited in open court while the appellant was present. If he had reservations about the stipulation, he could have made them known at that time. See Poole v. Fitzharris, 396 F.2d 544, 546 (9th Cir. 1968). This contention is totally without merit.

Affirmed.

ELY, Circuit Judge

(concurring):

I concur in the result. At the same time, I note that I am somewhat mystified over the trial court’s failure to instruct the jury to the effect that the testimony of an accomplice should be viewed with caution. All jurists recognize that this is true, especially when there appears the likelihood that an accomplice presenting testimony favorable to the prosecution is likely to obtain some benefits in exchange therefor. It is true that the defense counsel made no request that the instruction be given, and Martin, in attacking his conviction collaterally, may be able to establish that, by reason of his defense attorney’s dereliction in that respect, along with other circumstances, he did not receive that effective assistance of counsel to which he was entitled. Certainly it is inconceivable that there, was any valid “strategic” reason which might have justified the defense attorney’s failure to request an instruction of such importance to his client in this case. If I could act alone, I would hold that the court should have, acting sua sponte, given the instruction, and that its failure to do so constitutes plain reversible error. This, apparently, is the rule of the Tenth Circuit. See United States v. Owens, 460 F.2d 268, at 269 (10th Cir. 1972); see also Williamson v. United States, 332 F.2d 123 (5th Cir. 1964); cf. United States v. House, 471 F.2d 886 (1st Cir. 1973). And see the carefully researched opinion of Judge Coffin in McMillen v. United States, 386 F.2d 29, 30-36 (1st Cir. 1967).

Our court, however, has held that, absent the request of defense counsel, the court’s failure to give the cautionary instruction is not plain error unless “the need for the instruction is sufficiently clear. . . . ” United States v. Marsh, 451 F.2d 219, at 221 (9th Cir. 1971). Applying, as I must, that qualified rule, I cannot bring myself to the conclusion that the judgment here challenged should be reversed.

      . The trial court instructed the jury: Whenever, after careful consideration of all the evidence, your minds are in that state where a conclusion of innocence is indicated equally with a conclusion of guilt, or there is a reasonable doubt as to whether the evidence is so balanced, a conclusion of innocence must be adopted.
      This instruction was criticized in United States v. Clay, 476 F.2d 1211, 1215 (9th Cir. 1973), a case decided only ten days before the trial in this case. Later the judge instructed the jurors that: “If the accused be proved guilty, say so. If not proved guilty, say so.” This statement was disapproved in United States v. Cummings, 468 F.2d 274, 281 (9th Cir. 1972).

      . Such an instruction must be given when requested by defense counsel, at least where the testimony of an accomplice is substantially uncorroborated. See, e. g., United States v. Davis, 439 F.2d 1105, 1106-1107 (9th Cir. 1971).

      . Nor was it error for the trial court not to give the cautionary instruction s-ua sponte. The trial judge’s failure must be plain error for this court to reverse in the absence of an offer by counsel. F.R.Crim.P. 52(b) ; United States v. Marsh, 451 F.2d 219, 221 (9th Cir. 1971) (dicta). Plain error will be found only where there is a strong need for the instruction: for example, where the accomplice’s testimony is almost entirely uncorroborated and it is, as well, both critical and suspect. See United States v. Griffin, 382 F.2d 823, 828-829 (6th Cir. 1967). Here Salazar’s testimony was supported by other evidence: (1) two separate tips were received concerning the room in which Martin was staying; (2) a paper sack, the same type of container in which some of the heroin was found, was observed first in Salazar’s hands and then being carried by Martin ; (3) Martin was registered in the motel under an assumed name; (4) the fact he left in a car with a stranger barely able to understand English went largely unexplained; and (5) Martin’s alibi was strongly controverted. Because of this, see United States v. Busby, 484 F.2d 994, 997 (9th Cir. 1973), and the fact counsel raised the issue of credibility at trial, see United States v. Ketola, 478 F.2d 64, 66 (9th Cir. 1973), there was no plain error.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jimmy L. POLITE, Defendant-Appellant.
    No. 73-2500
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1974.
    Rehearing Denied April 18, 1974.
    Géne V. Coker, Jacksonville, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, .U. S. Atty., John J. Daley, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   WISDOM, Circuit Judge:

Jimmy L. Polite appeals from his conviction of possession with intent to distribute 6% grams of heroin, in violation of 21 U.S.C. § 841(a). On appeal,-he attacks (1) the sufficiency of the evidence; (2) the admission of certain testimony concerning drugs other than those he was charged with possessing in the indictment; and (8) the trial judge’s charge to the jury. We affirm.

The defendant was found in his apartment with 6i/4 grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. The package was mailed from Thailand and addressed to Polite’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery Polite’s residence in of the package to Daytona Beach.

About twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, another a customs agent, and the other two, Daytona Beach police detectives, entered Polite’s apartment under a valid search warrant. They found Polite in a bedroom with 6% grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing á mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the -hall from the room where Polite had been found. It was established at trial that these “dime . bags” — small packets wrapped in aluminum foil containing about one milligram of heroin — are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer.

While the authorities were searching the apartment, Polite remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

The indictment charged possession with intent to distribute only the 6% grams found on the coffee table. The Government relied upon the 30 “dime bags” to prove that Polite had the requisite intent to distribute. Its theory was that the heroin found in packages suitable for street distribution indicated that Polite was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6%, gram quantity found on the coffee table.

Polite advanced a different theory of the evidence at trial. He testified that he was himself addicted to heroin and that he intended to use the entire 13-gram quantity himself. He said that the 30 “dime bags” found in the drawer were not packaged with any heroin from the 13-gram package. He alleged that he had had all of that heroin on the coffee table in front of him at the time he heard that the police were coming; and that when he heard of their arrival, he had wadded up the tinfoil with the rest of the heroin on it and had thrown it into a corner of a closet. He explained the remark he had made about “packing it up that quick” by saying he had made it in order to deflect the authorities from their search before they found the wadded-up foil containing the remaining heroin.

Polite’s first contention concerns the sufficiency of the evidence. He argues that the evidence was consistent with his theory that he was going to keep the heroin for his personal consumption; thus, he says, the jury “could not” have “excluded” this “hypothesis of innocence” as “unreasonable”. This, he argues, means that the evidence was insufficient to support the verdict.

The argument is without merit, because it reflects a misunderstanding of the standard by which this Court reviews the sufficiency of the evidence to support a guilty verdict.

The standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. (Emphasis added.)

Odom v. United States, 5 Cir. 1967, 377 F.2d 853, 855. As we understand it, the appellant’s argument is only that his theory that he intended to use the heroin himself is but “one hypothesis of innocence”, which he is suggesting might “satisfy this Court’s sense of reasonableness”; but we have often held that this is not enough to permit us to reverse the verdict. United States v. Squella-Avendano, 5 Cir. 1973, 478 F.2d at 433, 436. We must uphold a guilty verdict if there is any “theory of the evidence from which the jury might have excluded every hypothesis except guilt beyond a reasonable doubt”. Odom, swpra, 377 F.2d at 855 (emphasis supplied). Without recounting every piece of evidence leading to this conclusion, we conclude from our review of the evidence that-this standard was met in this case.

The appellant’s second contention is a dual one. He contends that the trial judge erred in admitting testimony (a) about the thirty packets of heroin found in the dresser drawer; and also (b) about the marijuana cigarette butts found in the drawer. Both, he argues, amounted to evidence of other crimes, and their introduction was therefore incurably prejudicial.

We disagree. The evidence concerning the thirty packets of heroin was admissible to show intent, as we have already noted, and evidence of other similar crimes is admissible to show intent. See, e. g., Mathews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381-1382. The testimony concerning marijuana was not admissible to show intent, but its admission did not, in our view, constitute reversible error. The testimony was confined to two statements made by two of the participants in the search of Polite’s apartment. They amounted to no more than descriptions of what they saw in the bedroom drawer; they were mere statements of having observed the res gestae. Later in the trial, when the Government sought to introduce the marijuana butts as an exhibit, and to have a chemist testify that the substance had been chemically identified as marijuana, the trial judge excluded the exhibit and instructed the jury to disregard the chemist’s testimony concerning marijuana. In this state of the record, we cannot hold that the brief allusions to marijuana in the testimony of the customs agent and police detective who searched the apartment were sufficiently prejudicial to require a new trial.

The principal objection to the charge to the jury concerns the trial judge’s instruction that:

[i]f you should find, beyond a reasonable doubt, that the Defendant had knowing and intentional possession, as charged, the fact of such possession alone, of a large quantity and/or quality of heroin, unless explained to the satisfaction of the jury, by the evidence in the case, permits, but does not require the jury to draw the inference and find that the heroin was possessed with intent to distribute

The appellant notes that there is no authority for permitting an inference of intent to distribute merely from the fact of possession of heroin of a high quality alone, and that this instruction, read literally, would authorize just such an inference. He argues, therefore, that the trial judge committed reversible error in giving this charge.

We cannot escape the obvious: the quality of the drugs possessed, in conjunction with the quantity, is relevant to the inference to be drawn from possession of a large quantity. Possession of six grams of 99.5% pure heroin — the purity of the heroin found in Polite’s possession — obviously supports more strongly an inference of intent to distribute than does possession of heroin of, say, 5% purity. Here, the evidence was sufficient to establish that the heroin Polite possessed, given its quality and quantity taken together, was worth $60,000 on the street. We conclude that it was highly unlikely that, in the circumstances of this particular case, the effect of the instruction was to lead the jurors into thinking they could infer intent from the quality of the heroin alone. We find no “strong probability that the [instructions] ‘taken as a whole were such as to confuse or leave an erroneous impression in the minds of the jurors’ ”. United States v. Clark, 2 Cir., 1973, 475 F.2d 240, 249, quoting Perez v. United States, 5 Cir. 1961, 297 F.2d 12, 16. We therefore find that the particular instruction in question did not constitute reversible error.

The appellant also objects to the sequence in which the judge’s instructions were given, arguing that it tended to confuse the jury on the issue of intent, and to the failure of the trial judge to give a literal definition of intent. We find these objections without merit.

Affirmed.


author: INGRAHAM, Circuit Judge:

text:
    UNITED STATES of America and Carl Rosen, Revenue Agent of the Internal Revenue Service, Plaintiffs-Appellants, v. Alvin I. MALNIK, Defendant-Appellee.
    No. 72-3153.
    United States Court of Appeals, Fifth Circuit.
    Feb. 8, 1974.

      Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John A. Townsend, Attys., Tax Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants.
    E. S. Corlett, III, Miami, Fla., Harvey M. Silets, Chicago, 111., for defendant-appellee.
    Before WISDOM, DYER and INGRA-HAM, Circuit Judges.
   INGRAHAM, Circuit Judge:

This is an appeal from an order of the district court dismissing a petition to .enforce an Internal Revenue Service summons issued under 26 U.S.C. § 7602.

The summons was issued on March 16, 1971, by Carl K. Rosen, an Internal Revenue Agent, to taxpayer Alvin I. Malnik, requiring him to give testimony and produce books and records for the investigation of his tax liability for the years 1959, 1960, 1962 and 1963. Mr. Malnik was scheduled to appear before Agent Rosen on March 29, 1971, but the appearance date was postponed twice. Finally, Mr. Malnik’s attorney, Harvey M. Silets, conferred with the Assistant Regional Counsel for the Internal Revenue Service, and it was mutually agreed that taxpayer Malnik would not appear personally at all. Instead, the Internal Revenue Service agreed to accept a written statement signed by taxpayer Malnik and his attorney to the effect that, had taxpayer personally appeared, “he would have asserted his appropriate constitutional privileges to all relevant and material questions propounded to him and to the pi'oduction of such of the records therein enumerated in his possession.” On the basis of this letter, the Internal Revenue Service did not require taxpayer to appear or to produce books and recoi'ds under the summons. More than seven months after this mutual agreement, however, on December 7, 1971, the Internal Revenue Service filed a petition to enforce the summons. Although the district court first ordered compliance with the summons, on rehearing the court denied enforcement and dismissed the petition.

The following issues are presented on appeal: (1) whether the mutual agreement between the Internal Revenue Service and taxpayer Malnik constitutes a “blanket” refusal to answer questions based on the Fifth Amendment, and (2) whether the district court properly sustained taxpayer’s Fifth Amendment objection to produce the requested bqoks and records.

Although we disagree with the reasons underlying the district court’s'disposition of this case, we affirm.

I.

In Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), the Supreme Court enunciated the standard for measuring when a witness may properly claim his right against self-incrimination, and thus refuse to respond to questioning.

“. . .To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim ‘must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.’ ”

Id., at 486-487; see United States v. Coffey, 198 F.2d 438, 440 (3rd Cir., 1952). A proper application of this standard implicitly requires that specific questions be propounded by the investigating body, and the claim of the right against self-incrimination must be claimed in response to each. A “blanket” refusal to answer all questions is unacceptable. United States v. Ponder, 475 F.2d 37, 39 (5th Cir., 1973); United States v. Ellsworth, 460 F.2d 1246, 1248 (9th Cir., 1972); Capitol Products Corp. v. Hernon, 457 F.2d 541, 542-543 (8th Cir., 1972); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir., 1969). See also United States v. Johnson, 465 F.2d 793, 796 (5th Cir., 1972); Wright & Miller, Federal Practice and Procedure, § 2018, at 142 (1970). Thus a subject of a subpoena should appear before the interrogating officer and under oath specifically claim his constitutional rights as to particular questions while answering others not presenting a threat of self-incrimination. See United States v. Ellsworth, supra, 460 F.2d at 1248; United States v. Bell, 448 F.2d 40, 42 (9th Cir., 1971); Daly v. United States, 393 F.2d 873, 877-878 (8th Cir., 1968); United States v. Terry, 362 F.2d 914, 917 (6th Cir., 1966); United States v. Harmon, 339 F.2d 354, 359 (6th Cir., 1964), cert. den. 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963; In re Turner, 309 F.2d 69, 71 (2nd Cir., 1962); Landy v. United States, 283 F.2d 303, 304 (5th Cir., 1960); United States v. Solon, 294 F.Supp. 880, 882 (E.D.N.Y., 1968), aff’d 405 F.2d 1211, 1212 (2nd Cir., 1968). On the basis of a record thus established, a reviewing court could scrutinize this record and determine whether the witness is mistaken in his claim “ ‘and that the answers cannot possibly have such tendency’ to incriminate.” Hoffman v. United States, supra, 341 U.S. at 488, quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881).

Malnik first contends that the mutuality of the agreement with the Internal Revenue Service is different from one party’s unilateral objection to answer all questions, and thus under these unique facts no blanket refusal to respond to questioning exists. We simply cannot agree. Malnik’s Fifth Amendment objection to comply with the subpoena is presented to us in the absence of specific questions that may or may not tend to incriminate. To sustain his objection this court, as well as Malnik, would have to completely and accurately anticipate every question. Regardless of the mutuality of the agreement, we think such an objection constitutes a blanket refusal to comply with the subpoena and therefore is unacceptable.

Malnik also urges that the district court correctly applied the Hoffman standard and therefore properly dismissed the petition for enforcement of the subpoena. Because the trial judge “must be governed as much by his personal perception of the peculiarities of the case” in making the determination whether the privilege against self-incrimination may be sustained, Hoffman v. United States, supra, 341 U.S. at 487, quoting Ex parte Irvine, 74 F. 954, 960 (C.C.S.D.Ohio, 1896), Malnik argues that the surrounding facts and circumstances of this case justify the court’s dismissal of the enforcement petition. We do not believe, however, that the peculiarities of this case compel a dismissal of the petition. It is simply impossible to anticipate every question that might be asked and conclude that each would present a distinct possibility of self-incrimination if answered by the witness. This is not to say that if Mal-nik testifies and produces documents, he may not object to every question. It is just that we cannot speculate and say that any response to all possible questions would or would not tend to incriminate the witness. Therefore, we think that Malnik should have been required, to appear pursuant to the subpoena and raise his constitutional claim with regard to specific questions.

n.

The second issue is whether the production of books and records of designated corporations and partnerships is subject to Malnik’s Fifth Amendment claim against self-incrimination. With regard to corporations, it is well established that a corporate officer or custodian of books and records must produce such records even though they might tend to incriminate the witness. United States v. White, 322 U.S. 694, 699, 64 S.Ct. 1248, 88 L.Ed. 1542 (1944); Wilson v. United States, 221 U.S. 361, 384, 31 S.Ct. 538, 55 L.Ed. 771 (1911). This rule is premised upon the governmental necessity to investigate such organizations, presumably conceived for the benefit of the public. Hale v. Henkel, 201 U.S. 43, 74-75, 26 S.Ct. 370, 50 L.Ed. 652 (1906). The one exception to this rule, which was relied on by the district court, is when the records are held by the corporate officer or custodian in a personal, as opposed to a representative, capacity.

Significantly, however, the distinction between personal and representative capacity has been narrowly defined. Even when the corporation has had only one stockholder, the courts have declined to hold that the corporate records and books were held in a personal capacity. Wright v. Detwiler, 345 F.2d 1012 (3rd Cir., 1965); Hair Industry, Inc. v. United States, 340 F.2d 510, 511 (2nd Cir., 1965), cert. den. 381 U.S. 950, 85 S.Ct. 1804, 14 L.Ed.2d 724 (1965); United States v. Guterma, 272 F.2d 344, 346 (28nd Cir., 1959); Chris-tianson v. United States, 226 F.2d 646, 653 (8th Cir., 1955); see United States v. Crespo, 281 F.Supp. 928, 936-937 (D.C.Md., 1968). The only case we have found in which a corporate officer or custodian can possess corporate records in a personal capacity, and consequently claim the privilege against self-incrimination, is when it is a foreign corporation. Application of Daniels, 140 F.Supp. 322, 327-328 (S.D.N.Y., 1956).

Relying initially on the government’s failure to deny Malnik’s contention that he held the corporate records in a personal capacity, the district court refused to require compliance wúth the summons. But we feel that this reason is an insufficient basis for denying enforcement of the petition under the peculiar circumstances of this case. Indeed, if Malnik can demonstrate that he holds these records in a personal capacity, he should be provided with the opportunity to do so. We cannot agree, however, that Malnik set forth sufficient evidence to show that the records were held in a personal capacity and thus subject to his claim against self-incrimination.

With regard to partnership documents, the Supreme Court in United States v. White, supra, set forth the test for determining whether such books and records are subject to the claim against self-incrimination. Essentially, the documents are not subject to Fifth Amendment rights if “the organization has a character so impersonal in scope of its membership and activities that it cannot be said to embody or represent the purely private or personal interest of its constituents.” Id., 322 U.S. at 701. Malnik contends that, because he claimed his rights under the Fifth Amendment, it is now encumbent upon the government to come forward and prove the impersonal character of the partnership. See United States v. Schoen-dorf, 307 F.Supp. 1034, 1037-1038 (E. D.Wis., 1970); Application of Weiss, 283 F.Supp. 97, 98 (E.D.N.Y., 1968); United States v. Cogan, 257 F.Supp. 170, 172 (S.D.N.Y., 1966). To the contrary, the government contends that, since under Hoffman the person invoking the privilege must show that it was properly invoked, the claimant here must demonstrate the personal character of the organization before he is entitled to claim the right against self-incrimination. See United States v. Quick, 336 F.Supp. 744, 745-746 (E.D.N.Y., 1972).

Presumably, the district court denied enforcement of the summons with respect to partnership records for the same reason it denied enforcement regarding corporate records. But the trial court’s record does not disclose whether the partnership was of such a personal character so as to subject the books and records to the partners’ rights under the Fifth Amendment. Because the district court failed to make a clear determination in regard to the partnership records, we decline to make that determination now.

III.

While we disagree with the district court’s dismissal of the petition to enforce the subpoena, there is still a basis on which to affirm its ultimate conclusion. We believe that the mutual agreement between the IRS and Malnik that he need not appear under the summons constitutes a waiver of any rights the IRS may have had. The IRS specifically agreed that Malnik need not appear, and yet seven months after entering into this agreement they asked the district court to compel him to comply with the summons. Moreover, we feel that the agreement constitutes a waiver not only with regard to Malnik’s testimony, but also regarding the production of documents, for we find nothing in the agreement that would limit its meaning to cover only testimony. Therefore, based solely on the government’s indiscriminate agreement that Malnik need not comply with the demand of the summons, we affirm.

      . Sec. 7602 provides as follows :
      For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized'—
      (1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry ;
      (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and xdace named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
      (3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.

      . The summons required Malnik to produce the following:
      General ledgers; general journals; accounts receivable ledgers ; escrow ledgers, cash receipts and disbursement journals; fee income invoices and journals; purchase invoices; deposit tickets, cancelled checks and bank statements of the domestic and foreign bank accounts from which accounts you had the right of ownership and withdrawing funds; closing statements, purchase, sales and loan agreements from which agreements you derived income, expenses, loans for yourself and third parties, and interests in various enterprises and franchises ; broker statements, partnership agreements, journals and ledgers, all specifically related but not limited to your law practice, real estate transactions, mortgage and loan businesses, banking business and investments in closely-held and publicly owned corporations. The records summonsed are those of all corporations in which you were either a stockholder, officer, and director and which records are now in your possession or control including domestic and foreign corporations, including the World Bank of Commerce, Ltd. and the World Bank of Commerce (Overseas) Ltd. of the Bahamas. The foreign banks referred to above include but are not limited to the Barclay Bank and the Bank of World Commerce, Bahamas and the International Credit Bank, Switzerland.

      . Elaborating on this contention, Malnik describes four aspects of this case that are particularly peculiar. First, Malnik points out the past relationship between himself and the Internal Revenue Service. Malnik has previously been tried and acquitted on two criminal tax charges relating to the same years under investigation by the instant summons. Second, taxpayer Malnik urges that there is a possibility of incrimination under United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952). Under Beacon Brass, Malnik might be subject to prosecution for making false representations to government agents in an attempt to evade taxes. Additionally, Malnik asserts that his answering questions would expose him to possible charges for perjured testimony given in the prior trial on criminal tax charges and for making false statements to federal officers. 18 U.S.C. § 1001 (1970). Third, Malnik says the government’s contention that there is no possibility of instituting criminal proceedings against him as a result of the investigation is unfounded. Even though Agent Rosen’s only functon is to investigate civil tax liability, he has an obligation to report any possible criminal violations of which he may learn during the investigation. Finally, Malnik argues that the question by question approach is not the exclusive means of properly invoking the Fifth Amendment claim against self incrimination.

      . As an alternative ground for refusing to enforce the summons with regard to corporate documents, the district court held that it was too broad and unclear. We recognize that enforcement of an unclear and overly broad summons would violate the Fourth Amendment’s proscription of unreasonable searches and seizures. United States v. Morton Salt Co., 338 U.S. 632, 652-653, 70 S.Ct. 357, 94 L.Ed. 401 (1950) ; Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208, 66 S.Ct. 494, 90 L.Ed. 614 (1946). And we are also aware that a district court’s determination that a summons is overbroad or unclear is generally within its discretion. United States v. Ruggeiro, 425 F.2d 1069, 1071 (9th Cir., 1970) ; Dunn v. Ross, 356 F.2d 664, 667 (5th Cir., 1966). But we do not require the revenue agent to describe the books and records he seeks in minute detail. The documents must be described only with “reasonable particularity” so as to give the witness sufficient information to determine which records are to be produced. First National Bank of Mobile v. United States, 160 F.2d 532, 535 (5th Cir., 1947) ; see United States v. Dauphin Deposit Trust Co., 385 F.2d 129, 131 (3rd Cir., 1967), cert. den. 390 U.S. 921, 88 S.Ct. 854, 19 L.Ed.2d 981. Moreover, if a summons appears to be overly broad and therefore unenforceable, the district court may modify the summons and delineate appropriate limitations so that it sufficiently describes the documents sought. Dunn v. Ross, supra,
        356 F.2d at 667; Venn v. United States, 400 F.2d 207, 212 (5th Cir., 1968) ; Falsone v. United States, 205 F.2d 734, 739 (5th Cir., 1953) ; see United States v. Bowman, 435 F.2d 467, 470, n. 6 (3rd Cir., 1970). We emphasize, however, that nothing we say in this regard authorizes the production of documents that are irrelevant or immaterial to the investigation.
      Additionally, we are not persuaded by Malnik’s reliance on United States v. Solomon, 71-1 USTC ¶ 9284 (S.D.Fla., June 12, 1970), aff’d. 437 F.2d 110 (5th Cir., 1971). In Solomon there was a demand for corporate records of a particular corporation, but there were two corporations with almost identical names. That problem does not seem to arise under these facts because the IRS requests the production of documents of all corporations.

      . In United States v. White, supra, 322 U.S. at 699, the Supreme Court noted the personal character of the right against self-incrimination.
      “Since the privilege against self-incrimination is a purely personal one, it cannot be utilized by or on behalf of any organization, such as a corporation. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Wilson v. United States, 221 U.S. 361, 31 S.Ct. 538, 55 L.Ed. 771; Essgee Co. v. United States, 262 U.S. 151, 43 S.Ct. 514, 67 L.Ed. 917. See also United States v. Invader Oil Corp., D.C., 5 F.2d 715. Moreover, the papers and effects which the privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. But individuals, when acting as representatives of a collective group, cannot be said to be exercising their personal rights and duties nor to be entitled to their purely personal privileges. Rather they assume the rights, duties and privileges of the artificial entity or association of which they are agents or officers and they are bound by its obligations.”

      . Because we disagree with the reasoning of the district court, but affirm its judgment on a wholly different ground, we do not think that the doctrine of res pidicata would preclude the IRS from issuing another subpoena pertaining to the same subject matter. J. Moore, Federal Practice ¶ 0.416[2], at 2232 (1965).


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred Mark DOVER, III, Defendant-Appellant.
    No. 73-2470
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 11, 1974.

      Hugh O’Neill, Washington, D. C., for defendant-appellant.
    William S. Sessions, U. S. Atty., James W. Kerr, Jr., Jeremiah Handy, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Pursuant to Rule 35, F.R.Crim.P., appellant sought to have the District Court review his sentence of five years imprisonment with a three year special parole term imposed after his conviction, based on a plea of guilty, of conspiracy to smuggle marijuana into the United States from Mexico. The District Court denied the appellant’s request for resen-tencing pursuant to the provisions of the Federal Youth Corrections Act, 18 U.S. C.A. § 5010 and we affirm.

Appellant was convicted of conspiracy along with four co-defendants, each of whom was sentenced as a youth offender under 18 U.S.C.A. § 5010(b). The Court gave no reasons at the time of sentencing as to why Dover was sentenced as an adult rather than a youth. However, in its order denying the motion for resentencing, the Court stated that “the Defendant is a youth offender who will not derive benefit front treatment pursuant to the provisions of 18 U.S.C. § 5010.” The Court then cited three prior state convictions of the appellant involving similar offenses.

We recognize the intention of Congress in the Federal Youth Corrections Act to provide the youth offender with rehabilitative treatment rather than retributive punishment, H.R.Rep. No.2979, 1950 U.S.Code Cong.Service, pp. 3983-3986. .Whether the trial judge must make express findings that the defendant would not benefit from youth treatment before sentencing him as an adult is an open question. See United States v. Ward, 1971, 147 U.S.App.D.C. 149, 454 F.2d 992, on remand, D.C., 337 F.Supp. 185 requiring such findings, and United States v. Dorszynski, 7 Cir. 1973, 484 F.2d 849 contra, cert. granted 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed. 2d 548, 42 L.W. 3352. While the District Judge did not inform Dover at his sentencing hearing as to the reasons why he was not to be sentenced under the Federal Youth Corrections Act, he did so on the hearing of the Rule 35, F.R.Crim.P. motion.

It is within the Court’s discretionary power not to sentence a youth offender under 18 U.S.C.A. § 5010 if the Court determines that the youth would not benefit from the treatment. Cox v. United States, 4 Cir. 1973, 473 F.2d 334; United States v. Ward, supra. We conclude that, if required- by the Act, the Court made adequate, although belated, findings that Dover would not benefit from the treatment provided under the Act and did not abuse its discretion in sentencing the appellant as an adult. To this we would add that if he were to prevail here, all he would be entitled to is a formal resentencing at which time the District Judge would have before him the information already twice considered, the last time by articulated reasons. There is no showing that a third hearing would produce any different facts or judgmental conclusions.

Affirmed.

      . The apppellant was 21 years old at the date of his conviction which qualified him for youth treatment under the Act since the Act is directed at those youths between the ages of 18 and 22 years,


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard GAINES, Defendant-Appellant.
    No. 73-3306
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 15, 1974.
    Denis Dean, Miami, Fla. (court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In a jury trial Gaines was found guilty of conspiracy to import marihuana in violation of 21 U.S.C.A. §§ 952(a) and 963. We find without merit his contentions that the district court erroneously failed to give cautionary instructions with respect to hearsay testimony and that there was insufficient evidence to take the case to the jury. Gaines further urges that it was error for the trial court to refuse to instruct the jury as to the statutory definition of marihuana. We disagree and affirm,

Noting that the federal statutory definition of marihuana refers only to Cannabis sativa L., Gaines calls our attention to the fact that while the Government’s expert chemist agreed that there are three species of marihuana, i. e., Cannabis sativa L., Cannabis indica, and Cannabis ruderalis, the chemist was unable to differentiate between the three. Building upon the premise that Cannabis sativa L. is the only species of marihuana expressly prohibited by statute, Gaines argues that the court’s refusal to give the jury an instruction containing the statutory definition of marihuana deprived the jury of considering whether the Government’s expert was sufficiently trained and whether he sufficiently tested the substance to prove beyond a reasonable doubt that in fact the substance examined was Cannabis sativa L. and not Cannabis indica.

The Third Circuit recently considered the issue raised by Gaines and concluded that Cannabis indica is included within the statutory definition of marihuana. United States v. Moore, 3 Cir. 1971, 446 F.2d 448. Similarly, the Second Circuit, while recognizing the possibility that there may be some botanical opinion that Cannabis is polytypal, found that

there is no question but that the lawmakers, the general public and overwhelming scientific opinion considered that there was only one species of marihuana . . . Whether this is scientifically exact or not, the statute provided at the time of the offense a sufficient description of what was intended to be prohibited to give notice to all of the illegality of appellant’s actions.

United States v. Rothberg, 2 Cir. 1973, 480 F.2d 534, 536.

We are in full agreement with what has been said by our sister Circuits, and. thus find no error in the district court’s refusal to instruct the jury with respect to the statutory definition of marihuana.

Affirmed.

      . 21 U.S.C.A. § 802(15) provides in relevant part:
      “The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not. , . . ”


text:
    Louis Collins COCHRAN, Petitioner-Appellant, v. UNITED STATES of America, and United States Attorney General, et al., Respondents-Appellees.
    No. 73-3650
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 19, 1974.

      Louis Collins Cochran, pro se.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Louis Cochran, a federal prisoner, appeals from an order of the district court denying his motion for mandamus relief. He is currently confined to the federal penitentiary in Atlanta resulting from a guilty plea to a charge of counterfeiting. He filed his mandamus action in the district court in an attempt to receive credit against his three-year sentence for various periods of time during which he alleged he had been in custody resulting from the counterfeiting charge. We affirm.

It is claimed that prior to his sentencing he had been incarcerated in jail for 20 days and subsequent to his arrest and prior to his guilty plea had been free on bond for 203 days. Accordingly, he requested credit for the total period of 223 days of alleged “custody.” At the time he filed his motion for relief, prison authorities were considering his application for credit for the time spent in jail but they had refused to consider the period of time during which he was free on bond. Because of Cochran’s evident partial failure to exhaust his prison remedies, the district court correctly limited its review to the 203 days spent free on bond. See O’Connor v. Attorney General, 470 F.2d 732, 734 (5th Cir. 1972); Pace v. Clark, 453 F.2d 411 (5th Cir. 1972).

We are thus limited to a review of the question whether a prisoner is entitled to credit against his sentence for time he spent while released on bond prior to his conviction on a plea of guilty. In support of his contention that he is entitled to receive credit for the 203 days while free on bond, Cochran relies on Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). In that decision the Supreme Court held that a criminal defendant released on his own recognizance pending execution of sentence following conviction was in “custody” within the meaning of the federal habeas corpus statute, 28 U.S.C. §§ 2241(c)(3) and 2254(a). In a rather novel syllogism, Cochran maintains that since 18 U. S.C. § 3568 provides that the Attorney General “shall give . . . [any person convicted of an offense] credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed,” a defendant free on bail is in “custody” for habeas corpus purposes and thus is also in “custody” within the meaning of § 3568.

Our reading of Hensley however, reveals that Cochran’s attempted patchwork extension of the “custody prerequisite” within the meaning of § 3568 is both misplaced and unsupported. Hensley is limited to the unique requirements and factors of a criminal defendant seeking federal habeas corpus relief while he is released on his own recognizance and after he has exhausted his state remedies. The opinion draws heavily from our legal history as to the traditional purpose to be served by the writ of habeas corpus. The Court carefully limited its review, posing the crucial issue in a proscribed manner. Justice Brennan limited the scope of the issue reviewed by stating:

This case requires us to determine whether a person released on his own recognizance is “in custody” within the meaning of the federal habeas corpus statute. 411 U.S. 345, 93 S.Ct. 1571, 1572, 36 L.Ed.2d 294, 297 (1973) (emphasis added).

Cochran’s attempted superimposition of the Hensley definition of “custody” to be used in habeas corpus proceedings upon the credit to be given prisoners for time previously served while their case is pending ultimate resolution is unwarranted, illogical and unsupported by judicial precedent in analogous situations.

The term “custody” as used in § 3568 was interpreted by the Ninth Circuit not to include time spent while on bail. See Sica v. United States, 454 F.2d 281 (9th Cir. 1971); cf. Marchese v. McEachen, 451 F.2d 555 (9th Cir. 1971), cer. denied 406 U.S. 945, 92 S.Ct. 2043, 32 L.Ed.2d 332 (1971). Similarly, we have previously held that an inmate whose parole is revoked is not entitled to credit on sentence for the time spent on parole. Starnes v. Cornett, 464 F.2d 524 (5th Cir. 1972), cert. denied 409 U.S. 987, 93 S.Ct. 341, 34 L.Ed.2d 253 (1972); Woods v. United States, 449 F.2d 740 (5th Cir. 1971); Blanchard v. United States, 433 F.2d 13 (5th Cir. 1970), cert. denied 401 U.S. 959, 91 S.Ct. 989, 28 L.Ed.2d 244 (1970).

Accordingly, the judgment of the district court is affirmed.


text:
    UNITED STATES SERVICEMEN’S FUND et al., Plaintiffs-Appellants, v. KILLEEN INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
    No. 73-1591.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1974.
    Rehearing and Rehearing En Banc Denied April 16, 1974.
    James M. Simons, Austin, Tex., for plaintiffs-appellants.
    Bob Burleson, Jim D. Bowmer, Temple, Tex., for defendants-appellees.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

In August 1971 the United States Servicemen’s Fund (USSF) applied to the Superintendent of Schools of Killeen Independent School District to use the high school auditorium in Killeen, Texas, to present a theatrical production on September 18, 1971. The USSF, according to the complaint, is a non-profit corporation “concerned with the welfare of persons who are serving or have served with the military”. The performance, including skits, songs, and readings, some by well-known entertainers, was intended primarily for the soldiers at nearby Fort Hood. A representative of the USSF described the show as a “political satire on the war in Southeast Asia”. It was a “counter-USO show”, presenting “ideas against U. S. military involvement in Southeast Asia, and reflecting] upon the ‘liberalization policies’ of the Army”.

On August 10, 1971, the School Board denied use of the auditorium to the USSF. The USSF and three individuals who alleged that they desired to attend the performance then sought in federal court a declaratory judgment and a preliminary injunction restraining the Kil-leen Independent School District from discriminating against the USSF and the individual plaintiffs because of their ideas and beliefs and enjoining the Board to make available the auditorium to the USSF. The court denied the preliminary injunction, and the USSF applied to this Circuit for a summary reversal and a preliminary injunction pending appeal. By order of an emergency panel on September 17, 1971, this Court denied the application, adding:

“[T]he parties are advised that the court considers that the mere passing of September 18, 1971 without performance being held does not moot the case so far as the underlying issues on the constitutionality of the standards and their application by the public authorities are concerned.”

United States Servicemen’s Fund v. Kil-leen Independent School District, 5 Cir. 1971, No. 71-2787. The district court entered final judgment on December 21, 1972, denying all relief.

We do not deviate from the opinion of this Court in 1971 that the “mere passing” of September 18, 1971, without a USSF performance in the Killeen High School auditorium did not moot the questions raised. The combined circumstances, however, convince us nevertheless that the appeal must now be dismissed as moot.

Not only has the date for the performance passed, but from the American viewpoint so has the conflict in Southeast Asia. The USSF does not allege that it desires to use the Killeen High School auditorium for any purpose in the future. Thus we are faced with a situation where we can see no real and immediate controversy between the parties.

The USSF has not transcended the particularized, no-longer-existing, fact situation from which this suit arose. Most important, the USSF did not attempt to bring a class action on behalf of itself and other organizations that might seek to bring similar “political” shows to Killeen High School. See Brockington v. Rhodes, 1969, 396 U.S. 41, 43, 90 S.Ct. 206, 24 L.Ed.2d 209.

That the complaint seeks declaratory relief does not save the action. Whether in actions for declaratory judgment or other relief, federal courts established under Article III of the Constitution do not render advisory opinions. United Public Mine Workers v. Mitchell, 1947, 330 U.S. 75, 89, 67 S.Ct. 556, 91 L.Ed. 754. The test is “whether the facts alleged, under all the circumstances, show that there is a substantial controversy between parties having adverse legal interests of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 1941, 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826. The unlikelihood that the same relevant circumstances will again throw the USSF and the Killeen School Board into'conflict precludes us from finding that there is “sufficient immediacy and reality” here to justify a declaratory judgment. See Golden v. Zwickler, 1969, 394 U.S. 103, 109, 89 S.Ct. 956, 22 L.Ed.2d 113.

Dismissed as moot.

      . The panel was composed of Brown, Chief Judge, and Ingraham and Roney, Circuit Judges. Judge Roney concurred in the denial of the application but took no stand on the mootness issue.