author: SWYGERT, Chief Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James V. PACENTE, Defendant-Appellant.
    No. 72-1988.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 5, 1973.
    Decided Dec. 28, 1973.

      Julius Lucius Echeles, Chicago, 111., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Sam J. Skinner, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and POOS, Senior District Judge.

       Senior District Judge Omer Poos of the Southern District of Illinois is sitting by designation.

   SWYGERT, Chief Judge.

James Pacente, a veteran Chicago police officer, was indicted on two counts: extorting money from Stojan Kovacevic, the owner of Chicago-Oak Liquors, a combination liquor store and tavern, in violation of the Hobbs Act, 18 U.S.C. § 1951; and making a false declaration before the grand jury in violation of 18 U.S.C. § 1623. Pacente was convicted after a jury trial and sentenced to concurrent terms of three years on each count. He has appealed and we reverse.

According to the evidence most favorable to the Government, Pacente solicited money from Kovacevic to prevent the latter from being arrested for having sold liquor to a minor. After making several offers of cash which were rejected by Pacente, Kovacevic wrote a check in the amount of $200 which was made out to cash and dated June 10, 1971. Subsequently, the check was cashed without endorsement at a tavern located near Pacente’s home. The tavern owner testified that Pacente did not cash the check although he was unable to remember who did. That testimony was contradicted by an FBI agent who stated that the owner had told him that a good friend of Pacente’s had cashed the check. There was no dispute that other Chicago-Oak Liquors’ checks had been cashed at this tavern.

Pacente was called before the Special February 1971 Grand Jury which was investigating possible violations of the Hobbs Act. He testified under oath that he did not receive the check for $200 which was dated June 10, 1971 and signed by Kovacevic. Subsequently, the grand jury returned an indictment in two counts charging extortion and the making of a false declaration. Prior to trial, defense counsel moved to have the Government proceed on only one count of the indictment, or, in the alternative, to sever the counts and provide separate trials for each. The motion was denied without reasons and the case set for trial. The denial of severance was again unsuccessfully raised after the conviction in a motion for a new trial and this appeal followed.

Although defendant raises several issues on appeal, we only focus on the question of whether severance should have been granted.

I

Pacente argues that the extortion and false declaration counts should have been severed as misjoined under Rule 8(b) of the Federal Rules of Criminal Procedure. As the Government correctly points out, Rule 8(a), not Rule 8(b), deals with the joinder of counts in this ease. Rule 8(b) pertains to the joinder of defendants and Rule 8(a) to the join-der of offenses. Rule 8(a) provides:

Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

The two offenses here are “based on the same act or transaction”: Pacente’s taking of the $200 from Kovacevic. The two offenses are also “connected together” since the false declaration count is based on a denial of having taken the money, a major element of the extortion. Moreover, the same evidence required to prove the extortion was used to prove the false declaration. See McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896). In United States v. Sweig, 441 F.2d 114, 118-119 (2d Cir. 1971), the Second Circuit held, in an appeal similar to the ease before us, that a conspiracy count could properly be joined with perjury counts under Rule 8(a) where the same evidence could be used to prove both conspiracy and perjury.

We are not persuaded by Pacente’s contention'. The counts here were properly joined under Rule 8(a).

II

Pacente next argues that even if join-der was permissible under Rule 8(a), a severance should have been granted pursuant to Rule 14 which provides in relevant part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. .

More specifically, defendant argues that he was prejudiced by the joinder of the two counts since the petit jurors were aware that the grand jury found that he had lied when he denied having taken the June 10, 1971 check from Kovacevic.

The Government responds that this case is no different from any other one, “since the existence of the indictment is an obvious indication that the Grand Jury felt that the defendant was guilty” and therefore there was no prejudice to Pacente in trying both counts together. While this observation may have applicability to a multicount indictment on various substantive charges, we find it to be an over-simplification and inapplicable to the situation before us. It is one thing for the petit jurors to believe that the grand jury concluded that probable cause existed that the defendant committed the substantive offense. It is quite another thing, however, for the petit jurors to know that the grand jurors — laymen like themselves — believed the defendant to have lied to them. Such knowledge serves to impair a defendant’s ability to effectively defend himself on the substantive charge. In the event the defendant testifies concerning the substantive charge, the knowledge of the false declaration count has the effect of informing the petit jurors that the defendant’s testimony is not to be believed. Accordingly, the defendant is impeached as soon as he reaches the witness stand. On the other hand, in the event that defendant chooses not to take the stand the substantive of-_ fense is substantially reinforced by the addition of the false declaration count.

Additionally, the joinder of the substantive count with the false declaration count tends to shift the burden of proof to the defendant who must prove that he did not lie to the grand jury. The problem, however, is that there is no way to confront and defend against the false declaration count. This dilemma has been recognized by this circuit in the analogous cases of United States v. Douglas, 155 F.2d 894 (7th Cir. 1946), and United States v. Grady, 185 F.2d 272 (7th Cir. 1950). In those cases the defendants were tried on informations which had attached thereto affidavits containing evidence against the defendants in the one case, and a statement that the charge made and the information was true in the other case. Judge Major, writing for the court in both cases, held that submission of the affidavits to the jury was prejudicial to the defendants because the defendants had no effective means of confronting the allegations contained therein. The defendants there had no opportunity to meet the ex parte hearsay allegations in the affidavits to the effect that the charges contained in the information were true. The conclusion of the af-fiant that the substantive charges were true was thought to interfere with the petit jurors’ ability to assess independently the evidence pertaining to the substantive charges when the affiant was not before them.

The prejudice which inured to the defendant here is further demonstrated by reference to a situation where the Government attempts to introduce at the trial of a defendant charged with a substantive offense only, evidence that defendant had also been indicted for perjury in connection with the same substantive charge. The evidence of the mere fact of indictment, however, would clearly be inadmissible because of the resulting prejudice to the defendant. IIIA Wigmore on Evidence, § 980a (Chadbourn Rev.1970).

This case is further complicated by the fact that the defendant, as a Chicago police officer, was subject to a rule of the Chicago Police Department under which he could be suspended or discharged for failing to testify before the grand jury. Accordingly, Pacente was faced with the prospect of either forfeiting his job or risking self-incrimination. This dilemma was recently recognized by this court in Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir., 1973). In that case the constitutional validity of the rule was struck down as depriving Chicago police officers the privilege against self-incrimination when a criminal proceeding might follow.

In support of its proposition that there is no prejudice in trying a substantive count with a false declaration count, the Government relies heavily on United States v. Sweig, 441 F.2d 114 (2d Cir. 1971). Sweig was jointly indicted with a codefendant who plead guilty before trial. Sweig argued on appeal that the joinder of the conspiracy charge with the multiple perjury charges was in violation of Rule 14. The Sweig case, however, is distinguishable from the one before us in three different respects. First, Sweig’s motion for severance under Rule 14 was based on the same proposition that he raised, arguing misjoinder under Rule 8(a): conspiracy and perjury are distinct offenses that should not be tried together. This argument was not directed to prejudice, but only to misjoinder of counts. In motions under Rule 8 the court must determine whether defendants or offenses may be joined. When joinder is improper, severance is the appropriate remedy and there is no discretion in the court’s ruling. If, however, joinder is proper and severance is requested under Rule 14, then the court must determine whether there is prejudice to either the defendant or the Government by the joinder. In that event, severance is required. This, however, is a discretional matter with the trial court which can be reversed only for abuse of discretion.

Second, the trial judge in Sweig, in denying the pretrial motion for severance, expressed his willingness to reconsider the question of severance at a later time, but the issue was never raised again and the court of appeals treated the claim as being waived.

Third, it appears that in Sweig the court never considered the question before us: whether knowledge of the petit jurors that the grand jurors found that the defendant had lied prejudiced him and required reversal. That court was concerned with “possible prejudice resulting from the admission of the tangential ‘hearsay’ declarations against the relevance of Sweig’s participation in conspiracy to his motive to lie before the grand jury.” Id. at p. 119.

We are not persuaded by the Government’s position that the court’s limiting instruction cured the prejudice that might have resulted by trying the two counts together. The instruction which the Government makes reference to reads as follows:

You are instructed to consider the testimony given by the defendant Pa-centé before the Grand Jury on February 22nd only as evidence under Count 2 of the indictment and you should not consider it as evidence on any other count in the indictment.

The court also instructed the jury not to consider the indictment itself as evidence of guilt, nor to be prejudiced against the defendant merely because an indictment had been returned against him.

A vital question is whether a limiting instruction such as the one here in the context of this case can erase the slate once it is written upon. The court must depend on the jury not to rely on the false declaration indictment and the defendant’s grand jury testimony, both of which would have been inadmissible as evidence if there had been separate trials on each count as we have noted above. Justice Frankfurter set forth a strong argument against the use of limiting instructions in his dissent in Delli Paoli v. United States, 352 U.S. 232, 247, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). The majority in that case upheld the admission of a codefendant’s confession to be used solely against the codefendant. The Court held that Delli Paoli was protected by the court’s limiting instruction to the jury that the confession be considered only as to the codefendant. We think that Justice Frankfurter’s dissent is also applicable to the limiting instruction here.

One of the most recurring of the difficulties [in observing the rules of evidence admissible against some but not all defendants] pertains to incriminating declarations by one or more of the defendants that are not admissible against others. The dilemma is usually resolved by admitting such evidence against the declarant but cautioning the jury against its use in determining the guilt of the others. The fact of the matter is that too often such admonition against misuse is intrinsi-' cally ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell. While enforcing declarant and admonishing the jury not to consider it against other defendants, Judge Learned Hand, in a series of cases, has recognized the psychological feat that this solution of the dilemma demands of juries. He thus stated the problem:

“In effect, however, the rule probably furthers, rather than impedes, the search for truth, and this perhaps excuses the device which satisfies form while it violates substance; that is, the recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody else’s.” Nash v. United States, 54 F.2d 1006, 1007. 352 U. S. at 247, 77 S.Ct. at 302.

This position taken by Justice Frankfurter and joined by Justices Black, Douglas, and Brennan later became the law when Delli Paoli was overruled by the Supreme Court in Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). As Justice Jackson said in his concurring opinion in Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949), “The naive assumption that prejudicial effects can be overcome by instructions to the jury, ... all practicing lawyers know to be unmitigated fiction.”

The use of limiting instructions as a means to avoid severance has had many critics.3 The criticism is summed up in Barton v. United States, 263 F.2d 894, 898 (5th Cir. 1959), in which the Fifth Circuit reversed a conviction for failure to grant a severance even though a limiting instruction was given. The court doubted whether the jury could carry out the instruction since “[t]o do so would require twelve minds more perfectly disciplined than those of the average human jurors.”

In view of the foregoing, we need not consider the other issues in this appeal.

The judgment of conviction is reversed and the case is remanded for a new trial.

      . Rule 8(b) provides:
      Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.

      . There is agreement between defendant and the Government as to the application of the abuse of discretion standard here. United States v. Kahn, 381 F.2d 824, 841 (7th Cir.), cert, denied, 389 U.S. 1015, 88 S.Ct. 591, 19 L.Ed.2d 661 (1967) ; United States v. Quinn, 365 E.2d 256, 267 (7th Cir. 1966).


source: Caselaw Access Project

author: RONEY, Circuit-Judge: GOLDBERG, Circuit Judge PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee FRICK and Quimet John Petersen, Defendants-Appellants.
    No. 72-2275.
    United States Court of Appeals, Fifth Circuit.
    Dec. 5, 1973.
    Rehearing and Rehearing En Banc Denied March 15, 1974.

      Malcolm G. Mundy, Jr., New Orleans, La., Raymond A. McGuire, New Orleans, La., for Petersen. Louis R. Koerner, Jr., James C. Murphy, Jr., New Orleans, La., for Frick (court appointed).
    Gerald J. Gallinghouse, U. S. Atty., Robert L. Livingston, Mary William Cá-zalas, Asst. U. S. Attys., New Orleans, La., for the United States.
    Before GOLDBERG, CLARK and RO-NEY, Circuit Judges.

      . Agent McDaniels testified that the distance was 15-16 inches; Frick, testifying before the magistrate, stated it was two feet.

   RONEY, Circuit-Judge:

Defendants Frick and Petersen were convicted on five counts under 18 U.S. C.A. §§ 2, 371, 1341 and 1343 of conspiring to defraud and defrauding certain persons through a sham loan brokerage business by using the mails and interstate telephonic communications. Only the question concerning the legality of a warrantless search of defendant Frick’s briefcase requires discussion of the reasons for our holding that the search was valid incident to arrest. The other seventeen errors asserted by defendants are subject to affirmance without extended discussion.

The morning after his indictment, defendant Frick was arrested at his car in the parking lot adjacent to his apartment building. At the time of the arrest, F.B.I. Agent McDaniels spotted an attache case lying on the back seat of Frick’s car, approximately two feet from the defendant. Recognizing the attache case as Frick’s and knowing that Frick had used it on numerous occasions during his “loan negotiations,” McDaniels seized the case on probable cause that it contained evidence pertinent to the arrest. An immediate check of its contents bore out McDaniels’ suspicions: the case contained documents used in the fraudulent transactions. The defendants assert that the seizure and subsequent search of the attache case without a warrant violated Frick’s Fourth Amendment rights.

I.

Only defendant Frick has standing to contest the search and seizure. Under the test recently established by the Supreme Court, defendant Petersen

(a) [was] not on the premises at the time of the contested search and seizure; (b) had no proprietary or pos-sessory interest in the premises; and (c) [was] not charged with an offense which includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.

Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973). Petersen contends that he has met the “proprietary interest” test by being in partnership with defendant Frick. Partnership, however, did not give him a proprietary interest in Frick’s attache case, the thing searched.

II.

For a warrantless search to be valid under the Fourth Amendment, it must fall within one of the “few specifically established and well-delineated exceptions.” Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). The case at bar meets the required exception as a search incident to a lawful arrest.

[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. . . . In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . There is ample justification, therefore, for a search of the arres-tee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Although there is some dispute in the record as to the exact distance between Frick and the automobile, and whether the door was open or closed, these discrepancies become inconsequential when the reasonableness of the search is tested by the Chimel standard. The automobile and the attache case were within the area of Frick’s immediate control. The attache case was not isolated or hidden in some distant room of the house or securely locked in the trunk of the car. It was in plain view and readily accessible to Frick. The possibility of it housing, not only the evidence found, but also a dangerous weapon was not remote.

The exigencies of the situation plainly justified Agent McDaniels’ actions. The officers were dealing with objects which are extremely mobile: the automobile and the attache case. There is the possibility that codefendant Petersen might have removed either of them prior to the officers obtaining a warrant. Some other friend unknown to the officers might have done likewise. It would be reasonable to expect Frick would be released on bond within short order and again be free to exercise his control over the automobile and the attache case.

To prevent these possibilities, Frick contends Agent McDaniels could have stationed an officer with the automobile while another proceeded to secure the warrant, or in the alternative, that the officers take the attache case but postpone their search until the impartial magistrate issued a warrant. The defense overlooks a vital Fourth Amendment interference: by stationing a guard over the car or removing the attache case while securing the warrant, a definite “seizure” would take place. This is an intrusion on the defendant’s rights, just as much as the search.

For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. . Given probable cause to search, either course is reasonable under the Fourth Amendment.

Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975. 1981, 26 L.Ed.2d 419 (1970).

On facts similar to the case at bar, the Ninth Circuit has recently ruled on the propriety of seizing an automobile or container located therein before obtaining a search warrant.

Here the police might have seized the car pending a magistrate’s determination. This would have been the lesser intrusion upon Evans’ rights, but it would have been the greater intrusion upon the rights of Miss Kane, the owner of the car. On the other hand, it is easy to say that the footlocker could be confiscated by the police and taken to the magistrate, but a seizing would then have already occurred — a substantial interference. Standing guard still represents the same interference with property rights as well as an unnecessary use of law enforcement personnel. Under these circumstances, either course might be reasonable under the Fourth Amendment, but the immediate search was preferable. Given probable cause, we hold that the necessary exigent circumstances were present for a war-rantless search.

United States v. Evans, 481 F.2d 990, 994 (9th Cir. 1973). Given the probable cause in the ease at bar, we hold that the immediate search was reasonable under the circumstances.

The defense also contends that officer McDaniels admittedly knew of the attache case for a considerable period prior to the arrest, knew of its possible contents, and had adequate time to secure a search warrant after the indictment and prior to leaving on his arrest mission. This contention misreads the nature of the facts which gave probable cause to believe the case contained evidence.

An attache ease is designed to be a convenient receptacle to temporarily carry while in transit a small quantity of papers or items of like nature. The probability that it contains business documents flows from the fact that the case is being used in conjunction with business travel. The probability that Frick’s attache case contained documentary evidence at that time arose from a combination of factors: (1) Frick had utilized the case to carry loan documents on a previous out of state business trip; (2) he was arrested on a work day; (3) at his automobile; (4) at a time in the morning which is normally associated with going to work; and (5) he had the attache case with him. Agent Mc-Daniels could not have known that all of these events would coincide prior to the time of the arrest. Yet it was because these factors did coincide that probable cause existed.

Finally, the defense argues under Chimel, supra, that the arrest was “staged” to enable Agent McDaniels to search and seize the attache case. Frick was not arrested immediately after the indictment was returned but was arrested the following morning. The arrest took place in the parking lot rather than Frick’s apartment. Arrest immediately after the return of the indictment is not required, however. It is sufficient that the arrest be within a reasonable time after the indictment. United States v. Palmer, 435 F.2d 653, 655 (1st Cir. 1970). Agent McDaniels testified that Frick was not arrested in his apartment because the officers had difficulty in locating it in the building. Immediately thereafter, Frick was discovered in the parking lot, and the arrest completed. McDaniels testified that he had not observed the attache ease prior to the arrest. This evidence does not support the argument that the arrest was “staged” to permit the search and seizure.

III.

The other challenge to the convictions of the defendants are without merit and we address them seriatim, combining some, without regard to which defendant assei’ted the error on this appeal.

(1) The evidence presented was sufficient to support the convictions. United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

.(2) The District Court’s instruction to the jury concerning circumstantial evidence was not erroneous. United States v. Stokes, 471 F.2d 1318 (5th Cir. 1973); United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert, denied, 404 U.S. 829, 92 S.Ct. 65, 30 L. Ed.2d 58 (1971).

(3) Since the entire transcript was presented to defense counsel, the issue on appeal is moot.

(4) There was no abuse of discretion in the denial of the motions for severance and for continuance. Peterson v. United States, 344 F.2d 419 (5th Cir. 1965).

(5) There was no abuse of discretion in denying the submission of questions proposed by the defense to the prospective jury on voir dire examination. See United States v. Jackson, 448 F.2d 539 (5th Cir. 1971). The voir dire transcript does not reveal any prejudice to the defendants through the jury selection process.

(6) The prosecutor’s statements were not sufficiently prejudicial to require reversal.

(7) It was within the discretion of the trial judge to allow the “sucker” exhibit to be introduced as evidence.

(8) There was no error in allowing the Government to present evidence of other crimes to show system and intent. United States v. Goldsmith, 483 F.2d 441 (5th Cir. 1973); United States v. Harrison, 461 F.2d 1127 (5th Cir. 1972).

(9) Brady V. Maryland, 373 U. S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), does not require all evidence to be produced to the defense, just that which is material. United States v. Jordan, 399 F.2d 610, 615 (2d Cir. 1968). Nor is Brady applicable at pre-trial stages. Archer v. United States, 393 F.2d 124, 126 (5th Cir. 1968).

(10) The Government has no duty to call all of the witnesses it subpoenas. United States v. Harper, 460 F.2d 705, 706 (5th Cir. 1972).

(11) The jury was properly instructed concerning the indictment, and could have copies of it during deliberation. See United States v. Baker, 418 F.2d 851 (6th Cir. 1969), cert, denied, 397 U.S. 1015, 90 S.Ct. 1248, 25 L.Ed.2d 429 (1970).

(12) Taken as a whole, the jury instruction to disregard the testimony of Mr. Franks was proper since the testimony was hearsay.

(13) The trial judge could consider the defendants’ use of assumed names since the only limitation on the information the judge is permitted to consider in sentencing is that which in fact is not true. Davis v. United States, 376 F.2d 535 (5th Cir. 1967).

(14) Cruel and unusual punishment did not result from sentencing the defendants to prison rather than probation.

(15) It was not error for the trial judge to deny defendants’ motions for acquittal and new trial.

Affirmed.

GOLDBERG, Circuit Judge

(concurring in part and dissenting in part):

I concur in Parts I and III of the opinion of my brother Roney, but I am compelled to dissent from the panel’s holding that the seizure and search of the defendant Frick’s briefcase was lawful. This Circuit has already heard from me at some length on what I feel to be the erosion of Fourth Amendment guarantees by a hostile judiciary, see United States v. Colbert and Reese, 5 Cir. 1973, 474 F.2d 174, 179; and it is with some reluctance that I have undertaken yet another dissent in the area. My brothers may well hope, as I do, that this will be my postlude to the dirges that have been scored for the Fourth Amendment, but I cannot absolutely forswear future elegies, for the concepts of individuality and privacy expressed in that Amendment are sacred to me. This latest exercise in loose construction, if not distortion, of both the language of the Constitution and the applicable decisions of the Supreme Court requires an answer. For that reason I regretfully, but firmly, dissent.

Our inquiry must begin, as the panel opinion itself seems to accept, with the recognition that warrantless searches are always exceptions to the general Fourth Amendment rule. As such they are “per se unreasonable” unless justified by certain exigent circumstances, Coolidge v. New Hampshire, 1971, 403 U.S. 443, 454-455, 91 S.Ct. 2022, 29 L. Ed.2d 564; nor are these exigencies to be easily found. The Supreme Court has persistently reminded us that the exceptions are few in number, Katz v. United States, 1967, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576; limited in construction, Jones v. United States, 1958, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514; and difficult of proof, McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Only when these admonitions are firmly in mind is it possible to appreciate the broad swathe the panel’s opinion cuts through Fourth Amendment law.

Defendants, Robert Lee Frick and Quimet John Petersen, were indicted on five counts of conspiracy and fraud on November 23, 1971. On the following morning five agents of the Federal Bureau of Investigation arrived at Frick’s apartment armed with an arrest warrant. Defendant Frick was taken into custody in the parking lot of his apartment building. At the time of the arrest the agents patted Frick down and handcuffed him. During the course of this arrest procedure agent McDaniels observed a briefcase on the floor of the back seat of Frick’s car. McDaniels removed the briefcase and searched it on the scene. Certain papers were discovered as a result of this search which were introduced into evidence at the trial. This followed the decision of a magistrate and subsequently of the trial judge himself that the actions, of the agent had not violated the Fourth Amendment’s guarantee against warrantless searches. The panel majority affirms this disposition on what appear to be two distinct bases: (1) the search was justified under Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, as incident to a lawful arl’est; and (2) the search was within the guidelines laid down in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, for cases involving automobiles.

I. Search Incident to Arrest

The standards for acceptable action under the Fourth Amendment as expressed in Supreme Court opinions have seldom been models of clarity. But the parameters of Chimel come as close to precision as seems possible in an area of the law necessarily concerned with “reasonable” action under various “exigent” circumstances. Chimel provides that at the time and place of arrest the apprehending officers may conduct “a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. at 763, 89 S.Ct. at 2040.

At the time of the search in question here the defendant Frick was in the custody of five federal agents; he either had been, or was in the process of being, handcuffed; and he stood in an open parking lot between one and one half and two feet away from his automobile. On the basis of these facts my brothers in the majority conclude that a search of the briefcase was justified out of a reasonable fear that Frick might gain access to its contents and either turn a weapon on the agents or dispose of evidence. However, the opinion is understandably devoid of any indication of the manner in which Frick, an individual with no previous record for recklessness or violence, might have accomplished the rather extraordinary feats of overpowering his trained captors, breaking his bonds, and destroying crucial evidence.

By any reasonable interpretation, the area within Frick’s control at the time of this search amounted to no more than his own person, under the most generous constructions of Chimel. While it must be admitted that had Frick been possessed of the skill of Houdini and the strength of Hercules, he might conceivably have reached the contents of the briefcase, neither the panel majority nor the court below placed him in such legendary company. The possibility of legerdemain cannot create the justification for a warrantless search, at least under my reading of Supreme Court decisions in this area. I do not believe my vision distorted or my view myopic.

Had the agents nevertheless feared that Frick might reach exceptional levels of strength and cunning as a result of his desperate plight, surely the simple expedient of closing and locking the car door would have had the salutary effect of protecting the defendant’s interests in privacy while guarding the safety of the officers and the integrity of the investigation from an irrational rampage. Indeed, if the federal agents legitimately thought that Frick might gain access to the briefcase, their conduct in removing it from the car and opening it in his presence appears precisely calculated to increase, rather than remove, that possibility. If, as agent McDaniels testified, the car door was open at the time of the arrest, the commonplace action of depressing the lock and closing the door would have provided the maximum possible protection against the dangers of violence and destruction outlined in Chi-mel.

My brothers in the majority, however, ignore both the fact of Frick’s captivity and the clear indication that the agents did not fear possible destruction at his hands. They choose instead to adopt what amounts both literally and figuratively to a yardstick test. Under the view of Chimel advocated here the reason for the exception to the warrant requirement — the possibility of serious physical destruction at the time of arrest — is evidently considered irrelevant. The Court looks not at all to the question of whether the briefcase was realistically within Frick’s reach. Rather, both the limited standards of Chimel and the physical realities of the arrest are subordinated to the panel’s own extraordinary theory of Frick’s capabilities. Although fictions and physical impossibilities may be tolerable in the interpretation of certain arcane branches of real property law, they have no place in the application of constitutional protections.

Certainly the possibility exists that opinions written and judgments made in the isolation of appellate chambers may too easily ignore the harsh realities of law enforcement, as many critics of the expansion of constitutional rights in the criminal field have been anxious to point out. But the panel’s application of Chimel to the facts of Frick’s arrest demonstrates that courts .may also err by exaggerating both the ingenuity of criminal accused and the legitimate fears of policemen. Such judicial timidity leads to ivory tower speculations entirely unrelated to the actions or experience of the officers in the field.

II. The Automobile Search

Though the panel places its primary reliance on the Chimel exception to the warrant requirement, the Government in its brief before this Court concentrated largely on the so called “car exception” to the search warrant requirement first recognized in Carroll v. United States, 1925, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, and most recently explicated by the Supreme Court in Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. The majority’s emphasis on the “mobile” nature of Frick’s car and the citation to Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, a decision which relied heavily on Carroll, indicate that at at least some support was drawn from this argument. At the outset it should be noted that any holding in favor of the applicability of the Carroll exception only takes the Government over the first hurdle — it justifies the removal of the briefcase from Frick’s car. The subsequent warrantless inspection of the contents of the closed briefcase requires independent analysis.

There are two general requirements for the application of Carroll and the consequent warrantless search of a motor vehicle. First, the officers must have probable cause to believe that the car contains contraband or other evidence. Second, certain exigent circumstances must exist such that “it is not practicable to secure a warrant.” Coolidge v. New Hampshire, 402 U.S. at 460, 91 S.Ct. at 2034, quoting Carroll v. United States, 267 U.S. at 153, 45 S.Ct. 280. The facts of this case fail to demonstrate either of these essential elements.

A. Probable Cause

I concur without reservation in the conclusion of my brothers that no probable cause existed to support a search warrant for Frick’s briefcase prior to the day of the arrest. The panel opinion, however, purports to find the missing elements of probable cause merely in the fact that the briefcase was observed in the defendant’s car on a weekday morning. The record does not even disclose that the agents had seen Frick carrying the briefcase on the morning of the arrest. For all that agent Mc-Daniels and his cohorts knew, it had been sitting on the floor of Frick’s car for days. Surely the panel does not intend to hold that the arrest of an individual for a crime involving the use of paper automatically creates probable cause to believe that any or every receptacle of the accused is a storehouse for evidence. To say that the arresting officers had probable cause to believe that the briefcase contained evidence of the crime endows those officers with a supernatural clairvoyance. The justification of an arrest does not automatically litmus itself into a justification for a search. There are no facts supporting a belief that the probable cause for arrest and the probable cause for the search were identical twins. To hypothesize that the briefcase contained documents of guilt mocks the logic of Fourth Amendment analysis. Countless innocent items could have been contained within its immobile and non-violent exterior, and constitutional guarantees are not to be nullified by speculation. In this case the officers’ suspicions were borne out. But the Supreme Court has made it clear, beyond room for intelligent dispute, that mere suspicion does not constitute probable cause. See Gior-denello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d. 1503; Brinegar v. United States, 1949, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Beck v. Ohio, 1964, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142.

B. Exigent Circumstances

Even granting that probable cause ex--isted for the belief that Frick’s automobile contained evidence of the crime, the search must still be justified by the presence of exigent circumstances which made it impractical for the FBI agents to obtain a warrant. There is no other responsible reading of the Supreme Court’s decisions, and I interpret the panel’s references to various “exigent” factors as a tacit recognition of that fact. See Carroll v. United States, supra; Brinegar v. United States, supra; Chambers v. Maroney, supra. The very notion of a category of automobile searches is really no more than the expression of the fact that these extraordinary circumstances requiring immediate action are more likely to occur when the locus of the search is as frequently and easily moved as an automobile.

The Supreme Court’s recent decision in Coolidge v. New Hampshire involved, like the case before us, the warrantless search of an automobile parked at the defendant’s residence. In considering the arguments advanced in support of the police action under Carroll and Chambers, the Court noted the categories of exigent circumstance necessary to trigger the warrant exception:

“The word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears. And surely there is nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States — no alerted criminal bent on flight, no fleeting opportunity on an open highway after a hazardous chase, no contraband or stolen goods or weapons, no confederates waiting to move the evidence, not even the inconvenience of a special police detail to guard the immobilized automobile.” 403 U.S. at 461-462, 91 S.Ct. at 2036.

The Government and the panel evidently attempt to bring this case within the parameters defined in Coolidge and earlier decisions on the basis of the fact that Frick’s co-indictee, Petersen, had not yet been taken into custody at the time of the search, and would therefore be likely to disturb the evidence. It should first be noted that, if the agents even remotely feared or suspected that Petersen would come to Frick’s apartment building after the arrest, their conduct was little short of amazing. The record shows that originally a portion of the five agent detachment which participated in the arrest of Frick had been detailed to apprehend Petersen. Unable to locate the latter at his home, this detail tagged along on the Frick arrest. The panel opinion now asks us to believe that trained agents of the FBI, having failed in their initial assignment to apprehend a man, and having reason to believe that he would arrive at a certain location, blithely departed that location leaving no one behind to stand guard. To my mind, the action of the agents in departing the scene speaks more convincingly than a volume of post hoc judicial theorizing. At the very-least, it points up the failure of the Government to fulfill its burden of clearly demonstrating its contention that there was need for. an exception to the warrant requirement, United States v. Jef-fers, 1951, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59, because of a reasonable fear on the part of the agents that “confederates [were] waiting to move the evidence.” 403 U.S. at 462, 91 S.Ct. at 2036.

The size of the FBI detachment present at Frick’s apartment on the morning of his arrest and the nature of its assignments are strong indications of the inapplicability of Carroll and its progeny to this case in another sense as vtell. Surely in this instance sound law enforcement and the fullest possible protection of Fourth Amendment rights coincided in requiring that the car and its contents remain undisturbed pending application for a warrant, but that at least one of the five agents remain behind on watch. My brother Roney attempts to avoid any such approach by contending that, since the stationing of an agent at the car would itself constitute an intrusion on Frick’s Fourth Amendment rights, the further intrusion of the search and seizure is without additional constitutional significance. I hope that in my shock at such a contention I am not being unfair to the majority; but I can only interpret the opinion as holding that once a small infringement on individual rights is accepted in the name of some important state interest, then any-added burden is necessarily proper. The theory is apparently that, if you can take an inch, you are constitutionally entitled to a mile. Even to state the proposition is to reveal its fragility. The holding in Chambers v. Maroney, supra, on which the panel evidently relies, is not to the contrary. Chambers held that, given the probable cause and exigent circumstances necessary for a highway search under Carroll, the police could instead impound the car and conduct the search at the station. In Chambers the final intrusion rested on independent constitutional justifications; and in Coolidge a majority of the Supreme Court explicitly rejected the notion, evidently advanced by the panel here, that one category of Fourth Amendment exception can justify intrusions different in degree or type. 403 U.S. at 473-484. Indeed, the Coolidge opinion specifically noted the presence of police guards on duty at the defendant’s house after his arrest as one factor obviating the need for an. immediate search. 403 U.S. at 461, & n. 18, 91 S. Ct. 2022.

The final deficiency in the panel opinion lies in its failure to explain why, granting for the moment a right to seize the briefcase, the search itself could not have awaited a presentation of the facts to a neutral magistrate. Certainly the panel majority cannot hope to rest behind the discredited notion that lesser intrusions can justify greater ones. See United States v. Garay, 5 Cir. 1973, 477 F.2d 1306; United States v. Brett, 5 Cir. 1969, 412 F.2d 401, 406. Viewed from any angle there were no circumstances requiring the agents to search without a warrant at the time of Frick’s arrest. And in the absence of such compulsion, the representatives of the United States, whether officers in the field or judges on the appellate bench, are never justified in departing from the Constitution’s command that searches be authorized by warrants.

In epilogue I can only express my hope that the current judicial mood will not result in the relegation of the Fourth Amendment to oblivion. Privacy meant so much to the founding fathers that, in order to guarantee its primacy, they were willing to countenance the possibility that criminals might at times conceal the fruits or other indicia of their crimes. The wiser course for both judges and private citizens is to heed their teachings on the fundamental requirements -of a free society. This is my judicial philosophy^ — strict construc-tionism, if you please.

Before GOLDBERG, CLARK and RONEY, Circuit Judges.

PER CURIAM:

On petitions for rehearing, we have considered whether our opinion sets any precedent in the law of search and seizure as it applies to so-called exigent circumstances unrelated to the execution of a warrant for arrest. Believing as we do, that all facts must be considered in .determining the reasonableness of a search without a warrant, our holding here is not compartmentalized so as to make any facts unimportant and we voice no opinion whatsoever as to whether we would hold this search reasonable absent the arrest warrant or upon any of the other facts differing from those at bar. The petitions for rehearing are denied.

Judge Goldberg would grant the petitions for rehearing for the reasons set forth in his dissent to the panel opinion.

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petitions for rehearing en banc are denied.

      . Defendant Petersen voluntarily appeared before the magistrate after learning of the indictments. The arresting officers did not know of this. At the time of Frick’s arrest, two of the officers had failed to locate Petersen at his residence and had joined the other officers at Frick’s residence, in probability expecting to possibly locate Petersen there.

      . Petersen claims eighteen errors were committed; Frick bases his appeal on six.

      . Note, Joint and Single Trials under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 554-56 (1965).

      . Judge Roney dismisses the factual dispute as to whether the car door was open or shut at the time of the arrest as irrelevant to the disposition of this case. Although I am of the opinion that, on the facts of this arrest, the automobile and its contents were well outside the scope of Frick’s immediate control, regardless of the state of the car door, it is certainly conceivable that the additional barrier of a closed car might be important in the decision of a closer case.

      . Though the majority does not explicitly rely on it, the passing reference to the fact that the briefcase was in “plain view” of the officers might be taken as an api>eal to that exception to the warrant requirement. However, any such attempt would face two insuperable obstacles. The first was succinctly outlined in Coolidge v. New Hampshire, 1971, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564.
      “ . . . [Pjlain view alone is never enough to justify the warrantless seizure of evidence. . . . Incontrovertible testimony of the senses that an incriminating object is on the premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.”
      In this case, as in Coolidge, the “premises” of the criminal suspect consisted of his automobile. Since the FBI agents did not have to enter the car in order to effect Frick's arrest, they had no independent justification for the intrusion on a constitutionally recognized zone of privacy. In the absence of such a justification, the plain view doctrine cannot apply.
      Even had the officers been entitled to enter the car, however, the resort to plain view would fail. Frick challenges the introduction of the contents of the briefcase and not the case itself. Those papers were most certainly not in view at all until the seizure and search had been completed. If the plain view doctrine is justified here, then it could as easily be used to justify the warrantless seizure and search of a desk, cabinet, or closet on the premises of the accused at the time of his arrest on the basis of an officer’s suspicion or hope that they contained evidence of the crime. This is precisely the kind of broad search Chimel was written to curtail.

      . The panel opinion mentions three other allegedly “exigent” circumstances justifying the search of Frick’s car and briefcase. However, all are so obviously contrary to both the law and common experience, that I have difficulty viewing them as anything more tiian makeweights, designed to obscure rather than advance constitutional analysis.

        (1) The mobile character of the attache case: Every Supreme Court decision emphasizing the necessity of a search warrant and the narrow, technical nature of the exceptions has involved evidence no less movable than the briefcase and papers considered here. See, e. g., Coolidge v. New Hampshire, 1971, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (vacuum sweepings) ; Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (coins). At no point has it ever been suggested by the Court that exigent circumstances exist whenever the desired evidence is neither bolted to the floor nor too heavy to be moved. Indeed, the opinion of the Court in Coolidge treated any such contention as the ultimate reductio ad absur-dum of all faulty Fourth Amendment analysis :
      “. . [A] good number of the containers that the police might discover on a person’s property and want to search are equally [as] movable [as an automobile], e. g., trunks, suitcases, boxes, briefcases, and bags. How are such objects to be distinguished from an unoccupied automobile — not then being used for any illegal purpose — sitting on the owner’s property? It is true that the automobile has wheels and its own locomotive power. But given the virtually universal availability of automobiles in our society there is little difference between driving the container itself away and driving it away in a vehicle brought to the scene for that purpose. Of course, if there is a criminal suspect close enough to the automobile so that he might get a weapon or destroy evidence within it, the police may make a search of appropriately limited scope. Chimel. . . . But if Carroll v. United States . . . permits a war-rantless search of an unoccupied vehicle, on private property and beyond the scope of a valid search incident to an arrest, then it would permit as well a warrantless search of a suitcase or a box. We have found no case that suggests such an extension of Carroll.” 403 U.S. at 461, n.
      18, 91 S.Ct. at 2035. [Emphasis added] An exception which the Supreme Court was unable to find and unwilling to make in its own cases has evidently developed, contrary to all precedent, in this Circuit.
      (2) The possibility that an unknown friend of the defendant might remove the evidence: Presumably even the most disagreeable suspect will have a few friends able and perhaps willing to cart off incriminating evidence. But once again, the panel presents no case support for the argument that this possibility creates an exigent circumstance. And even in the case of a confederate on the loose, the law requires at least some indication that the destruction of evidence is likely or imminent. We have nothing here but the Court’s ruminations over what the agents might have feared.
      (3) The possibility that the suspect himself, once released on bail, will destroy the evidence : At this point the opinion enters the realm of the surreal. It is, of course, blatantly incorrect even to suggest that the booking and bail procedure is conducted more speedily than the process for submitting affidavits to a federal magistrate. More importantly, the panel opinion once again asserts as an exceptional, exigent circumstance a condition that has been and will continue to be present in virtually every criminal case. If the panel is correct then exigent circumstances justifying a search on probable cause alone will exist in every case, save that of a friendless defendant, ineligible for bail, or one in possession of indestructible and unmovable evidence. It is beyond me how the majority can reconcile these alleged “exigencies” with its own admission that the exceptions to the warrant requirement are few and well-delineated.


author: STEVENS, Circuit Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter TRUTENKO, Defendant-Appellant.
    No. 73-1606.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 30, 1973.
    Decided Dec. 28, 1973.
    Richard T. Sikes, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck and Arnold Kanter, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

The principal question presented is whether a reference to the jurors’ pecuniary interests during the prosecutor’s closing argument constitutes reversible error. Although the remark was plainly improper, when it is considered “in relation to all else that happened” during the trial, we are convinced that it could have “had but very slight effect” upon the jury’s deliberations. See Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557. We therefore affirm.

Defendant, a doctor, was convicted on 10 counts of a 12-count indictment charging that he caused the mails to be Used in connection with a scheme to defraud insurance companies in violation of 18 U.S.C. § 1341. He was accused of overstating the number of visits by accident victims on bills which he rendered to their attorney, knowing that they would be used in the adjustment of the victims’ claims. Thus, for example, claimant Raiford testified that he only visited the defendant on four or five occasions, but the doctor’s bill reflected 23 visits. The government contended that the doctor misdescribed his services and overstated his charges to enable the victims and their lawyer to obtain inflated settlements.

Shortly after their respective accidents, some of the claimants had given signed statements to an adjuster for the Chicago Transit Authority which referred to the same, or approximately the same, number of visits as did the doctor’s bills. At trial those claimants testified to the lesser number of visits. Since the credibility of those witnesses was of critical importance, in his closing argument defense counsel appropriately stressed their original falsifications to the claim adjuster.

In rebuttal, the prosecutor sought to rehabilitate these witnesses and, in doing so, made the improper comment challenged on this appeal. Referring to one of the claimants’ statements, he said:

“Of course he has got the man’s address right. There is no reason to lie about that. The name of the guy’s wife, everything in there is going to be accurate except for the key points, and the client has to go along if he wants the settlement, and these people are only human. If they can get an extra buck out of an insurance company, they are going to do it because they probably had been paying plenty in premiums just as you people have, and the reason you are paying plenty is because the insurance companies are forced to pay out on phony claims, and that is what the majority of these are.” Tr. 613.

The last portion of this comment was undeniably improper. 'The record does not, and properly could not, contain any evidence about the jurors “paying plenty in premiums.” More significantly, the comment was an appeal to the pecuniary interest of the jurors, unquestionably an unacceptable predicate for an argument in a criminal trial.Since pecuniary interest would necessarily disqualify a prospective juror from service, it is patently improper to make an appeal to that interest in closing argument. State v. Warford, 106 Mo. 55, 16 S.W. 886, 888 (1891); Nareisco v. Mauch Chunk Tp., 369 Pa. 549, 87 A.2d 233, 235 (1952).

Whenever an error like this occurs, a strong argument for reversal can be made. See Judge Pell’s persuasive dissent in Epperson v. United States, 490 F.2d 98 (7th Cir. 1973). Reversal would have the salutary effect of deterring similar prosecutorial misconduct in the future. In each case, however, we must evalúate the importance of error in the context of the entire trial before deciding to reverse. See Kotteakos v. United States, supra; cf. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 237-238, 60 S.Ct. 811, 84 L.Ed. 1129. After such consideration, for the following reasons we conclude that reversal is not warranted in this case.

First, notwithstanding defendant’s argument to the contrary, our examination of the record leaves us with no doubt as to the sufficiency of the evidence of defendant’s guilt. Even though we do not accept Judge Hand’s suggestion in United States v. Lotsch, 102 F.2d 35, 37 (2d Cir. 1939), that our judgment on the issue of guilt or innocence should determine whether or not to order a new trial, our appraisal of the evidence is relevant in determining the likelihood that the jury’s conclusion may have been affected by the error. On the record before us, we consider that possibility remote.

Second, apart from the improper remark quoted above, the prosecutor’s argument was dispassionate and well reasoned. He properly reminded the jury to decide on the basis of the evidence and not to accept statements of counsel, either his own or his opponent’s, as evidence. His presentation as a whole — excepting the comment in dispute — was a fair appeal to reason.

Third, the thrust of the objectionable comment was not entirely adverse to the interests of the defendant. Its primary purpose was to persuade the jury that certain witnesses were credible even though they had been parties to the fraud on the insurance companies. Since these witnesses were participants in the very fraud of which defendant was accused, any comment which tended to mitigate their wrong would also tend to mitigate the seriousness of the defendant’s misconduct. Conversely, to the extent that the reference to “paying plenty in premiums” prejudiced the defendant, it also impugned the character of the witnesses upon whom the government was relying. We do not therefore condone the comment; we merely infer that its actual impact was somewhat ambiguous.

Fourth, since the amounts of money involved in defendant’s bills were modest, there was a lesser risk of prejudice than in a case like Epperson. It would border on the absurd to infer that overstatements of this defendant’s bills had any actual effect on insurance premiums. Even though it was, of course, improper to remind them that they pay insurance premiums, it is evident that jurors who have the intelligence to understand the relationship between the payment of claims and their own insurance costs are not likely to predicate their determination of guilt or innocence on an isolated remark of this character. In almost every criminal trial, if the jurors assume that the defendant is guilty as charged, they, as members of society, have a personal stake in his conviction.

Fifth, we consider it significant that experienced and competent trial counsel did not object to the prosecutor’s comment. We do not hold that the error was waived because we recognize the tactical considerations that militate against interrupting an adversary’s closing argument. We are inclined to believe, however, that if the comment were sufficiently prejudicial to warrant reversal, counsel who was present at the time either would have objected forthwith or else would have requested the trial judge to give a curative instruction. There was opportunity after argument, and before the court instructed the jury, to make such a request. The absence of any such request tends to corroborate our appraisal of the probable impact of the remark as minimal.

Finally, we have carefully reviewed the instructions which the trial judge did give. Read as a whole, they fairly stated the issues and unequivocally reminded the jurors of their obligation to perform their duty without prejudice and on the basis of the evidence rather than any statements of counsel. Our familiarity with such routine admonitions does not detract from the real meaning those words convey to inexperienced jurors presumably faithful to their sworn oaths.

-After considering all that happened in the trial court, we therefore hold that the prosecutor’s comment in this case did not constitute reversible error. We trust, however, that our adverse reaction to an appeal to the pecuniary interest of jurors will be manifest from this opinion read as a whole. The burden of persuading us that any similar appeal in the future was not deliberate prose-cutorial misconduct requiring us to exercise our supervisory power will indeed be a heavy one. Cf., United States v. Ott, 489 F.2d 872 (7th Cir.). See also United States v. Fullmer, 457 F.2d 447 (7th Cir. 1972). See also United States v. Signer, 482 F.2d 394 (6th Cir. 1973), cert, denied 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549.

We have considered defendant’s other claims of error and find them to be without merit. The judgment is Affirmed.

SWYGERT, Chief Judge

(dissenting).

As the majority recognizes the assistant United States Attorney’s remark was improper. And it was so highly prejudicial that I think all the reasons advanced by Judge Stevens for affirmance, while worthy of consideration, do not satisfactorily answer the assertion that the prejudice suffered by the defendant requires a reversal.

The majority’s first two arguments are based on the view that in the overall context of the trial and the closing argument this remark was inconsequential. I believe this underestimates the prejudicial impact implicit in such a remark when made by the representative of the Government.

I cannot accept the majority’s third argument that the actual impact of the statement was ambiguous since its prejudicial effect also “impugned the character of the witnesses upon whom the government was relying.” Although it is arguable that the plea to their pecuniary interest might have caused the jurors to blame the Government witnesses for the high price of their insurance premiums, the defendant and not the witnesses was the one upon whom the jury passed judgment. It is not likely that the jurors would have discredited the witnesses’ testimony, since that action could never help to lower their premiums whereas they might believe a guilty verdict could.

As to the majority’s fourth argument it is sufficient to note that the proseeutor’s appeal was to the jurors’ self-interest rather than their reason.

The fifth reason offered by the majority to support their position is that trial counsel failed to object or request a curative instruction and thus trial counsel too must have felt that the impact of the remark was minimal. The prejudicial effect of this comment was, however, raised in the motion for a new trial. Moreover, the majority has failed, I submit, to fully consider a trial counsel’s dilemma when situations such as here arise during final argument. Judge Pell in his dissent in the recent case in this court, Epperson v. United States, 490 F.2d 98 (7th Cir., 1973) graphically articulated the problem:

Counsel is in a precarious position when improper argument is made. If immediate objection is made, the interruption of the argument may only serve to emphasize the improper comments in the minds of the jury. An objection out of the hearing of the jury, unless it secures a mistrial, is subject to the same difficulty. 490 F. 2d at 101.

Finally the majority maintains that the trial judge sufficiently reminded the jurors of their duty of impartiality in his instructions. In my opinion, these general instructions, remote from the occurrence, did not neutralize the harm. The language of the Supreme Court in Viereck v. United States, 318 U.S. 236, 248, 63 S.Ct. 561, 566, 87 L.Ed. 501 (1943), is apposite:

At a time when passion and prejudice are heightened by. emotions . we do not doubt that these remarks addressed to the jury were highly prejudicial, and that they were offensive to the dignity and good order with which all proceedings in court should be conducted. We think the trial judge should have stopped counsel’s discourse without waiting for an objection ....

This circuit has taken a similar stance. Judge Pell, writing for the court in United States v. Cook, 432 F.2d 1093, 1107 (7th Cir. 1970), stated:

In some instances, if a prosecuting attorney’s remarks were continuously of an inflammatory nature with an appeal to prejudice or similar improper motives, the court might well have the duty sua sponte to correct the situation.

Unlike United States v. Grooms, 454 F.2d 1308 (7th Cir. 1972), the comment in the instant case was not merely an appeal based on the personal belief of the prosecutor, but rather an appeal based on the interest of the jurors as premium payers. On the other hand, the case before us is similar to United States v. Fullmer, 457 F.2d 447 (7th Cir. 1972), in which this court reversed the defendant’s conviction because of prejudicial remarks by the prosecutor. In Fullmer the remarks were addressed to the juror’s fear of riots and snipers whereas the remark in this case was addressed to the juror’s discontent with high insurance premiums. In both instances the comments “could only arouse passion and prejudice causing what we feel was reversible error . . . ” Full-mer, supra at 449.

Recently we have had before us an increasing mumber of appeals involving alleged improper remarks by Government counsel during their summations. Warnings such as we’ gave in United States v. Grooms, 454 F.2d 1308 (7th Cir. 1972), seem not to have been heeded. See United States v. Tanner, 471 F.2d 128, 136 (7th Cir. 1972). Accordingly, I think firmer and more drastic steps are called for. Moreover, we ought not excuse such conduct because no objection was made. It is a truism that a trial judge should see to it that every defendant receives a fair trial. The judge is not a spectator at a gladiatorial contest. A prejudicial comment such as occurred here required the judge to rebuke counsel and give a curative instruction — -without being prompted by an objection.

      . In United States v. Medansky, 486 F.2d 807 (7th Cir. 1973), the defendant challenged a closing argument in which the prosecutor said: “Mr. Medansky not only now was cheating everybody who has to pay for automobile insurance, . . . the companies, . . . [and] his clients. . Now he was cheating . . . Dr. Becker.” 486 F.2d at 815. Whatever improper inferences the jury might have made from this argument, it was not a direct appeal to the pecuniary interest of the jurors. Medanslcy, therefore, does not control the present case.

      . “On the hearing of any appeal . . . in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” 28 U.S.C. § 2111. This rule is also set forth in Rule 52(a), Fed.R.Crim.P.

      . Consider, for example, these excerpts :
      “The Jury’s function is to determine the facts. This should be done without prejudice, fear or favor, and solely from a fair consideration of the evidence.
      * * * *
      “In determining the facts you are reminded that before each of you was accepted and sworn to act as a juror, you were asked questions regarding your competency, qualifications, fairness and freedom from prejudice or sympathy. It was on the faith of those answers that you were accepted by the parties and those answers are binding on each of you now as they were then and they should remain so until you are discharged from consideration of the case.

        % sfc s¡« %

      “Statements and arguments of counsel, as I said earlier, are not evidence.” Tr. 617-618.

      . Defendant argues that it was error to refer to the fact that the lawyer to whom he submitted his bills had been convicted of fraud. This fact was brought out during the government’s direct examination of the lawyer, without objection from defendant, presumably because defense counsel might have inquired about the conviction on cross-examination for impeachment purposes. In any event, the fact was properly before the jury and was not unduly emphasized during argument. Defendant also argues that it was error to refer to the claims as “phony” when they were merely exaggerated, rather than entirely false. Finally, defendant challenges the sufficiency of the evidence, but it . was plainly adequate when construed in the manner required by Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

       Not only do such comments fail to add anything in any way probative of the real issues confronting the trier of fact, but they also possess the seeds of reversible error in that they tend to amplify the possibility that lay jurors may be misdirected from properly weighing the evidence. . . . ” 454 F. 2d at 1312.


author: BRIGHT, Circuit Judge.

text:
    Joseph Daniel WALKER, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1491.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1973.
    Decided Jan. 23, 1974.
    James W. Gallman, Fayetteville, Ark., for appellant.
    James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM 0. STUART, District Judge, Southern District of Iowa, sitting by designation.

   BRIGHT, Circuit Judge.

Joseph Daniel Walker appeals from a jury verdict in the United States District Court for the Western District of Arkansas, convicting him of armed bank robbery in violation of 18 U.S.C. § 2113(d). Because the trial court erred in admitting into evidence a pistol— found on the defendant at the time of his arrest but demonstrably unconnected with the crime — we must reverse and remand for a new trial.

On February 12, 1973, an individual wearing a hooded Army jacket, sunglasses, and a black wig, entered the Eastside Branch of the First National Bank of Fort Smith, Arkansas, shortly before closing time, brandished a revolver, and escaped with some $44,000 in cash. Subsequent police investigation led three days later to the arrest of the defendant and the seizure of a chrome-plated “Four-Hand Arms 32 caliber revolver,” found in the defendant’s coat pocket.

At the trial, the Government elicited testimony regarding this pistol from the branch manager and the teller who were involved in the robbery. Both specifically stated that the pistol shown to them in court — the one seized from the defendant’s person — was definitely not the weapon used in the robbery. The manager’s description of the robbery weapon detailed the difference between the chrome-plated revolver found on Walker and the one used in the robbery which he said “had a flat black or bluing on it like a Rossi or imported Italian.”

Despite this testimony and defense counsel’s repeated objections, motions to exclude, and motions for mistrial, the trial court nevertheless admitted the pistol into evidence following the testimony of the police officer who seized the weapon from the defendant. We hold that this was prejudicial error.

This is not at all the classic case of admitting into evidence a “similar” weapon which was found in the possession of a defendant but which could not be positively identified as that used in a crime. Such evidence has been regularly admitted as relevant. E. g., Banning v. United States, 130 F.2d 330, 335 (6th Cir. 1942) ; United States v. Cunningham, 423 F.2d 1269, 1276 (4th Cir. 1970). Here there was positive evidence that the pistol admitted was not similar to the one used in the crime. Thus the traditional justification for the admission of such a weapon is cut away and the evidence must be seen as irrelevant since it was not probative of the proposition that the accused committed the crime charged.

Further the pistol is “irrelevant” in the other sense of the word, since it leads only to inferences about matters that were not properly provable in this case, i. e., the defendant’s dangerous character. See McCormick’s Handbook of the Law of Evidence § 185 (1972). As the California Supreme Court has correctly stated in People v. Riser, 47 Cal.2d 566, 305 P.2d 1, 8 (1956):

When the prosecution relies * * * on a specific type of weapon, it is error to admit evidence that other weapons were found in [the defendant’s] possession, for such evidence tends to show, not that he committed the crime, but only that he is the sort of person who carries deadly weapons.

Here the pistol lent itself to inferences regarding the defendant’s propensity to behave violently, and, as with other evidence of a defendant’s bad character,” the prosecution may not employ such tactics unless the defendant himself places the matter at issue. See McCormick, supra at § 190. In the setting of a jury trial, whatever probative value this sort of evidence may have is outweighed by the danger of prejudice. Admission of the pistol, therefore, compels reversal, for in our examination of the whole record, we are satisfied the error was more than harmless.

The prosecution bottomed its case on eyewitness identification from several persons in the bank. Yet other witnesses in the vicinity of the crime could not identify the defendant as the robber who, as we have already noted, entered the bank at least partially disguised by his wearing of a hood, sunglasses, and a black wig. The defendant testified and denied his implication in the robbery, stating that he was working as a bricklayer at the time of the robbery. Of course, in taking the stand, the defendant was required to disclose his status as an ex-convict. His alibi was supported by witnesses, members of his family, and others. The prosecution produced less than an airtight case. An inquiry from the jury to the court madé almost immediately upon the jury’s retirement disclosed at least one juror’s preoccupation with weapons as they related to the case, for that juror wanted to know if the FBI had confiscated two guns at appellant’s residence. The court then sent a message advising the jury to rely on their memory of the case.

Taking all circumstances in account — the nature of the prosecution’s case and that of the defense, the prosecutor’s argument concerning the gun in question and the inquiry from a juror we must conclude that the introduction of the weapon as an exhibit in the trial served to seriously prejudice the defendant.

Defendant raises two other points on his appeal which require comment. Because we remand for a new trial, it is unnecessary to address ourselves to the issue relating to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and the alleged failure of the government to supply exculpatory information to the defendant since the information is now in the defendant’s hands. As to the second point, we find no error in the testimony of police officer Daniels regarding the time at which he personally received notice of the bank robbery. Although it would undoubtedly have been hearsay for Officer Daniels to have testified to the time at which the bank’s burglar alarm sounded at the police station — since he was not personally present — defense counsel’s several objections during the questioning of Officer Daniels successfully kept out any erroneous testimony on this point.

Because of the prejudicial error stemming from the admission of the pistol seized from the defendant, the ease must be reversed and remanded for retrial.

Reversed and remanded.

      . On cross-examination, the police officer himself admitted that he found no weapon identifiable as having been used in the robbery :
      Q. You did not find the weapon used in the robbery did you?
      A. No, sir. I found none that I know of that was used in the robbery.
      Q. The witnesses do not describe any such things as Government’s Exhibit Four. That’s a pistol there.
      A. This was the only pistol I found.
      Q. None of the witnesses you talked to de-cribed the gun that is chrome plated, did they?
      A. No, sir.

      . The Supreme Court’s decision in Moore v. Illinois, 408 U.S. 786, 798-800, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972), relied on by the Government, has not expanded this category of admissible evidence. In its limited constitutional review of a state court case, the Court merely held that it was not a violation of the due process clause of the fourteenth amendment to admit a weapon which was suitable for committing the crime charged even though there was no showing that it was the actual weapon used. The Court did not reach the question of the admissibility of the weapon under common law evidentiary principles which apply to direct appellate review of a judgment of conviction.

      . The prosecution indeed relied upon precisely this type of inference in its closing argument on rebuttal:
      Ladies and gentlemen, I want to ask you this, here is a man on parole, that was in the process of taking a loaded gun from his home to an address that he had given as his address because his brother did not answer the telei>hone. * * * [The police] searched the defendant, they found a gun on him; oh, he was going to work, lie sure was, he was going to work somebody over, just exactly like the way he worked those people over in the bank

      . Appellant’s wife testified on cross-examination that the defendant kept two guns at his premises. She identified one as the weapon in question which the prosecutor introduced into evidence and the other as a tiny, black or blue weapon.


author: MATTHES, Senior Circuit Judge.

text:
    Walter Floyd LITTLE, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1410.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 15, 1974.
    Decided Feb. 1, 1974.
    Ben Ely, Jr., of Kortenhof & Ely, St. Louis, Mo., for appellant.
    Richard Coffin, Sp. Atty., U. S. Dept, of Justice, St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

       Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   MATTHES, Senior Circuit Judge.

Appellant was indicted, tried and found guilty of distributing heroin on October 2, 1972, and again on October 11, 1972. He has appealed from the judgment of conviction.

There is no controversy over the evidence produced by the government at the trial. Appellant did not testify and offered no witnesses in his behalf. The transactions followed the pattern which has become a common practice in apprehending and prosecuting persons who unlawfully' distribute controlled substances. The government informer in this case, Charles Bullock, purchased heroin on each occasion from appellant. Before the purchase, one or more officers attached to the office of Drug Abuse Law Enforcement (DALE) searched Bullock and gave him a stated amount of currency, the serial numbers thereon having been recorded. Bullock then contacted appellant and made the purchase under the surveillance of DALE officers. In due time the indictment was returned and the prosecution followed.

Appellant vigorously contends that he was denied a fair trial because the government failed to produce Bullock at the trial in accordance with the prior assurance of the Assistant District Attorney that Bullock would be present and available for examination by appellant’s counsel. At the outset of the trial, which was scheduled for April 16, 1973, but which began the next day, April 17, a thorough examination of two of the officers who participated in the purchases revealed that they undertook a diligent search for Bullock several days prior to the scheduled trial date, but their efforts to locate him were unsuccessful. Thereupon, the court denied appellant’s motion for a mistrial and the trial proceeded.

After the appeal had been docketed in this court, the United States Attorney, acting pursuant to our action in United States v. Pollard, 479 F.2d 310 (8th Cir. 1973); United States v. Kitchen, 480 F. 2d 1222 (8th Cir. 1973); and United States v. Barnes, 486 F.2d 776 (8th Cir. 1973), filed a motion for a limited remand of the case to the district court to enable that court to conduct an eviden-tiary hearing for the purpose of determining whether the government deliberately concealed Bullock and whether appellant was prejudiced by his inability to examine Bullock before the jury. The government’s motion to remand was granted, and on December 6, 1973, the district court heard the sworn testimony of the Assistant United States Attorney, who had prosecuted the case, and Charles Bullock, the informer. Appellant and his trial attorney were present, and appellant’s attorney extensively cross-examined the witnesses. After the hearing, the district judge, acting pursuant to our order of remand, made supplemental findings and transmitted his findings and the transcript of the December 6 hearing to this court. In pertinent part, the court found that the government did not deliberately conceal any exculpatory information possessed by Bullock; that a subpoena for him had been prepared at the direction of the prosecutor; that officers attempted to locate Bullock and to serve the subpoena upon him, but their efforts were fruitless; that Bullock did not possess any evidence which would impeach the credibility of the government’s case or which would have been helpful to the defense of the charge; that Bullock’s testimony at the hearing was an affirmation of statements which he had previously furnished to DALE officers and was in accord with the trial testimony of the officers who participated in the two purchases.

Appellant’s attorney attaches importance to the fact that on June 29, 1973 —after the trial — Bullock, while confined in the St. Louis, Missouri, city jail, gave a written statement to an associate of appellant’s counsel. Therein Bullock denied selling narcotics to appellant on October 2 or October 11, and stated that the government officers had known where Bullock was located at the time of the trial. However, during the December 6 hearing, Bullock unequivocally testified that the statements made by him on June 29, 1973, were untrue, that he lied because he was in fear of his own safety, and that on June 29 appellant Little was also confined in the St. Louis city jail. In Bullock’s words, “Well, they had jumped on one informant at the city jail, jumped on him pretty bad, so they knew I was up there, so they had a knife and he was trying to jump on me. I didn’t have any friends up there so I had to do something, so that’s what I did.”

The district judge, in his findings, stated that he believed that Bullock’s fear for his life had prompted his statements to Mr. Nussbaumer (associate of appellant’s counsel) and that no prejudice had arisen from the government’s failure to make the informant available to the appellant.

Our examination of the record of the trial and of the hearing on remand leads us to the inescapable conclusion that appellant was not prejudiced by his inability to examine Bullock during the trial. It is convincingly clear that the government did not in any respect conceal Bullock or any exculpatory evidence. Consequently we conclude that justice has been served and that the case should not be remanded for another trial.

Appellant also complains because the prosecution struck all black members of the jury panel. We considered a similar contention in Pollard v. United States, 483 F.2d 929 (8th Cir. 1973). Our holding there is dispositive of the issue. The fatal weakness of appellant’s claim is the absence of any proof to show that the United States Attorney’s office in the Eastern District of Missouri has systematically excluded blacks from the jury in cases in which the defendant is of the same race. Under the plan for random jury selection blacks are regularly summoned for jury duty. Moreover, it is commonly known to members of the Bar who practice in the federal court for the Eastern District of Missouri and to the author of this opinion that blacks serve on jury panels in criminal cases regardless of the color of the skin of the defendant.

Appellant was represented by Mr. Ben Ely, an able and experienced trial lawyer, but in view of the overwhelming evidence of guilt Mr. Ely was unable to persuade the jury of his client’s innocence. Neither has he been able to persuade us that the verdict of guilty resulted from any prejudicial error.

The judgment is affirmed.


author: PER CURIAM.

text:
    ARMCO STEEL CORPORATION et al., Petitioner, v. UNITED STATES of America et al., Respondents.
    No. 74-1051.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 16, 1974.
    Decided Jan. 22, 1974.
    See also, D.C., 56 F.R.D. 408.
    Charles R. Murnane, St. Paul, Minn., for Armco.
    Edward T. Fride, Duluth, Minn., for Reserve,
    Byron E. Starns, Deputy Atty. Gen., St. Paul, Minn., and Bradford Whitman, U. S. Dept, of Justice, Washington, D. C., for respondents.

      Before BRIGHT, ROSS and WEBSTER, Circuit Judges.
   PER CURIAM.

Petitioners Armco Steel Corporation (Armco) and Republic Steel Corporation (Republic) seek permission under 28 U. S.C. § 1292(b), to appeal from an interlocutory order of the district court in No. 5-72 Civ. 19 (District of Minnesota, Fifth Division), joining them as party defendants.

The petitioners were joined as parties by the district court following approximately five months of trial which at this point has proceeded solely against Reserve Mining Company, a Minnesota corporation. Armco and Republic each own 50 percent of the stock of Reserve, each elects 50 percent of the board of directors of Reserve, and Reserve produces taconite solely for Armco and Republic. In the suit, the plaintiffs, United States and the State of Minnesota, charge that Reserve’s discharge of taconite tailings into Lake Superior has and is producing pollution of the lake in violation of law. The controversy in part involves an issue concerning a potential hazard to the health of the citizens of Duluth-Superior and other nearby communities. These communities draw water for consumption purposes from Lake Superior. Issues of such import, of course, should be expeditiously resolved.

Judge Lord in ordering the joinder of the additional parties, in part stated:

It is claimed that Reserve’s discharge is in violation of federal and state laws and creates a common law nuisance. If these allegations are established, Reserve may be called upon to make recompense in the form of civil penalties or injunction, for its violations. If because of the corporate structure established by Armco and Republic, Reserve is incapable of meeting its obligations imposed as a result of its wrongdoing, this may well be an appropriate case in which to go beyond the corporate entity and look to Armco and Republic to make good the wrong committed by Reserve.
-» * * * * -X-
This Court is not now called upon to decide whether Reserve is a mere instrumentality of or a single enterprise with Armco and Republic. It is sufficient for the decision of the pending motion that the moving parties have alleged facts that, if proven, may entitle them to recover against Armco and Republic. Hence if plaintiffs’ motion otherwise complies with rules of procedure and due process, the motion should be granted.
* * * # # -X-
Naturally, at this stage in the proceedings, the Court cannot determine if any relief at all will be granted; or, even if a remedy is granted, it may not include Armco and Republic. However, the Court by this Order will insure that if, in fact, relief is called for that all responsible parties necessary to effectuate the remedy selected by the Court are subject to the Court’s jurisdiction. Since under some circumstances complete relief could not be accorded without the joinder of Armco and Republic, it is the Court’s conclusion that they should be joined pursuant to Rules 19(a)(1), Fed.Rules of Civ.Pro.

In responding to Armco and Republic’s claims of prejudice and violations of due process by being joined in this complex and protracted litigation after several months of trial, Judge Lord added:

As for the claim of prejudice and due process, it should first be noted that if plaintiffs establish their claims that Reserve is a mere agent or instrumentality of Armco and Republic, then in fact Armco and Republic have been in the case all along in the person of Reserve. Certainly Armco and Republic have had a substantial stake and interest in this lawsuit. As sole shareholders in Reserve, and as guarantors of Reserve’s substantial obligations, they have hundreds of millions of dollars at stake in this litigation. Representatives of Armco and Republic have participated in discovery, attended some of the Court sessions and receive daily transcripts of the proceedings.

Upon entering the order of joinder, the district court consented that the joinder be the subject of appeal pursuant to 28 U.S.C. § 1292(b) by certifying that:

The resolution of this issue of join-der by the Court of Appeals before this Court is called upon to fashion any relief may result in significant saving of judicial time and an earlier termination of the litigation. The nature and type of relief granted, if any, might be substantially different with these defendants present than in their absence. In order for the Court to fashion meaningful relief it is essential that it be determined whether or not the Court has properly joined the defendants at this stage in the proceedings, based upon the plaintiffs’ showing concerning the relationship between Armco, Republic and Reserve.
The Court, therefore, pursuant to 28 U.S.C. 1292(b) (1970), certifies this question for review by the Eighth Circuit Court of Appeals.

The petitioners in seeking permission to appeal assert the following propositions as controlling questions of law for our consideration upon the allowance of this interlocutory appeal:

(1) That no conditions exist in this case justifying the piercing of the corporate veil and thus justifying the imposition of liability upon petitioners, Arm-co and Republic, should judgment eventually be entered against Reserve Mining Company; and,
(2) The order joining Armco and Republic as defendants at this stage denies them due process.
Petitioners strongly press these points. Given the unusual nature and importance of this litigation, we believe we should consider the merits of petitioners’ arguments. Accordingly, we authorize this interlocutory appeal under 28 U.S.C. § 1292(b).
During oral argument upon the petition to this court to allow the § 1292(b) appeal, the parties agreed that if we authorized the appeal we might consider the merits upon the submission already made. Accordingly, we turn to the merits.

We believe it apparent from the record that the district court ordered joinder only upon a hypothetical state of facts, i. e., that, if liability were ultimately resolved against Reserve Mining Company, circumstances not now known to the parties might make it necessary to require Reserve’s stockholders, as separate corporate entities, to participate with Reserve in effecting adequate relief. The plaintiffs, however, concede that the presence of Armco and Republic is unnecessary at this stage of the proceedings. The joint brief of respondents United States, the State of Minnesota, and the Minnesota Pollution Control Agency show these parties to take the following position on the necessity of joinder at this time:

We respectfully submit that the causes of action alleged against Reserve Mining Company by the several plaintiffs can be pleaded and proven without the necessity of joinder of Armco and Republic Steel Corporations as formal parties to this action. There is no doubt that Reserve discharges taconite tailings into Lake Superior and that the district court may assess the harm resulting from that discharge, the technological feasibility of its abatement, and the economic impact of various alternative methods of disposal without exercising formal jurisdiction over the two parent corporations, Armco and Republic. Whether or not the two latter companies are parties to this action, the claims for relief in the original cause can be adjudicated. Evidence can and will be adduced as to the ability of Armco and Republic Steel to pay for pollution control expenditures through payments of Reserve’s costs, as they now do. To the extent that recovery of civil penalties and mandatory relief may be frustrated by Reserve’s inability to pay and lack of jurisdiction in this suit over Armco and Republic, a separate action can be brought against them.

Moreover, plaintiffs take the position that regardless of joinder, if they establish a basis for attributing the liability, if any, of Reserve to its corporate shareholders, that Armco and Republic as such shareholders have sufficient privity of interest with Reserve Mining so as to be bound by the court’s determination of liability under principles of res judicata.

In resolving this appeal we need not decide these issues, nor the contention, raised by Armco and Republic, that conditions do not exist which justify piercing the corporate veil of Reserve Mining in order to require Armco and Republic to shoulder some burden of overcoming and alleviating the effects of the alleged pollution of Lake Superior. These matters must first be determined by the district court. We do not undertake their resolution here.

But what is manifestly made clear to us is that the forced joinder of the defendants at this time creates serious due process problems and creates an unnecessary risk of creating reversible error in this protracted litigation. The district court has ordered the petitioners Armco and Republic to immediately participate in these proceedings. The necessity of joinder here relates only to a possible remedy in overcoming the effects of pollution. The justification for joinder thus rests on mere hypothetical speculation.

Moreover, although the trial court has stated that its proceedings in this ease to date have been geared toward a “quick and efficient” determination of the plaintiffs’ allegations that the discharge of taconite tailings constitutes a danger to the public health, the joinder of defendants can only serve to delay the termination of the trial, perhaps for many months. The trial court in a memorandum issued in connection with its joinder order stated that it would permit counsel for Armco and Republic “to recall all previous witnesses or prepare and call new witnesses for additional testimony on cross-examination.” While such procedures might arguably serve to reduce the potential prejudice to appellants from the joinder order, utilization by them of such procedures would greatly delay the submission of liability issues to the court.

Under these circumstances and under the showing presently made by plaintiffs, we hold that the district court abused its discretion in ordering Armco and Republic to become parties and to participate in the ongoing lawsuit at once. We express concern that the resolution of the important “health hazard” issue might be greatly delayed by such joinder.

We understand the concern of the trial court in desiring to have all interested parties before that court. But Armco and Republic are entitled to notice of the claims against them and a fair opportunity to present a defense to these claims. We think it far better to defer any order of joinder until the health and liability issues have been resolved.

We make it clear, however, that our direction to the district court to set aside the joinder order is without prejudice to the rights of the plaintiffs to subsequently move that Armco and Republic be joined as parties following completion of the evidence relating to health hazards and liability. At that time, the record may show some basis for joining Armco and Republic in order to provide appropriate relief. Our ruling will not necessarily preclude subsequent joinder of Armco and Republic if the plaintiffs make a proper showing of adequate need for these parties in the litigation.