author: BUTZNER, Circuit Judge:

text:
    Joseph ACANFORA, III, Appellant, v. BOARD OF EDUCATION OF MONTGOMERY COUNTY, et al., Appellees.
    No. 73-1788.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Feb. 7, 1974.

      Michael H. Gottesman, Washington, D. C. (George H. Cohen, Darryl J. Anderson, Dennis D. Clark, and Bredhoff, Cushman, Gottesman & Cohen, Washington, D. C., on brief), for appellant.
    Robert S. Bourbon, Rockville, Md., for appellees.
    Melvin L. Wulf, Marilyn G. Haft, New York City, and Elsbeth Bothe, Baltimore, Md., on brief, for American Civil Liberties Union, amicus curiae.
    Stephen J. Poliak, John D. Aldoek, David Rubin, Joel D. Gewirtz, and Shea & Gardner, Washington, D. C., on brief for National Education Association, Maryland State Education Association, and Montgomery County Education Association, amici curiae.
    Before CLARK, Associate Justice, BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

       Supreme Court of the United States, retired, sitting by designation.

   BUTZNER, Circuit Judge:

Joseph Acanfora III appeals from an order of the district court denying him reinstatement to a teaching position in Montgomery County, Maryland. The district court held that the school officials wrongfully transferred Acanfora to a nonteaching position when they discovered that he was a homosexual, but it denied relief because of Acanfora’s subsequent press and television interviews. We hold that Acanfora’s public statements were protected by the first amendment. We conclude, however, that he is not entitled to relief because of material omissions in his application for a teaching position. Consequently, without reaching Acanfora’s claim that his denial of a teaching position is unconstitutional, we affirm the district court, but on different grounds.

I

While Acanfora was a junior at Penn State University he joined an organization known as the Homophiles of Penn State, which had as its purpose the development of public understanding about homosexuality. Acanfora not only attended Homophile meetings, but he served as the group’s treasurer and joined other members in bringing a lawsuit that established it as an official university organization. His public acknowledgement of homosexuality ultimately led to his suspension from a student teaching assignment, but a state court promptly ordered that he be reinstated. When Acanfora applied for teacher certification, however, Penn State officials differed as to his qualifications and forwarded his application to the Pennsylvania Secretary of Education without recommendation.

In the meantime, Montgomery County school officials, unaware that Acanfora was a homosexual, employed him as a junior high school science teacher. They didn’t learn of his homosexuality until several weeks after school opened in the fall, and only then as a result of a widely publicized press conference at which the Pennsylvania Secretary of Education announced favorable action on Acanfora’s application for teacher certification in that state. Shortly after this disclosure, the Montgomery County deputy superintendent of schools transferred Acanfora, without reduction in pay, from teaching to administrative work in which he had no contact with pupils. When the school officials did not accede to Acanfora’s demands that he be returned to his classroom assignment, he commenced this action.

II

Following his transfer to an administrative position, Acanfora granted several press and television interviews. The district court characterized the television programs as tending to spark controversy, and noted an element of sensationalism in Aeanfora’s remarks. It held that Acanfora’s appearances were not reasonably necessary for self-defense, but instead exhibited an indifference to the bounds of propriety governing the behavior of teachers. Consequently, the court, ruling that the refusal to reinstate Acanfora or renew his contract was neither arbitrary nor capricious, dismissed his suit.

The Supreme Court has explained the general principles that govern the intricate balance between the rights of a teacher to speak as a citizen on public issues related to the schools and the importance the state properly attaches to the uninterrupted education of its youth. Balancing these interests, the Court has ruled that a teacher’s comments on public issues concerning schools that are neither knowingly false nor made in reckless disregard of the truth afford no ground for dismissal when they do not impair the teacher’s performance of his duties or interfere with the operation of the schools. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Cf. Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966), cert. denied 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967). Aeanfora’s public statements must be judged by these constitutional principles, and not, as the district court suggested, by the common law doctrine of self-defense to defamation.

At the invitation of the Public Broadcasting System, Acanfora appeared with his parents on a program designed to help parents and homosexual children cope with the problems that confront them. Acanfora also consented to other television, radio, and press interviews. The transcripts of the television programs, which the district court found to be typical of all the interviews, disclose that he spoke about the difficulties homosexuals encounter, and, while he did not advocate homosexuality, he sought community acceptance. He also stressed that he had not, and would not, discuss his sexuality with the students.

In short, the record discloses that press, radio, and television commentators considered homosexuality in general, and Acanfora’s plight in particular, to be a matter of public interest about which reasonable people could differ, and Acanfora responded to their inquiries in a rational manner. There is no evidence that the interviews disrupted the school, substantially impaired his capacity as a teacher, or gave the school officials reasonable grounds to forecast that these, results would flow from what he said. We hold, therefore, that Acanfora’s public statements were protected by the first amendment and that they do not justify either the action taken by the school system or the dismissal of his suit. Cf. Tinker v. Des Moines Independent Sch. Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); James v. Board of Educ., 461 F.2d 566 (2d Cir.) cert. denied 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972).

III

On his application for a teaching position in the Montgomery County Schools, Acanfora responded to a request for information about his professional, service and fraternal organizations by mentioning only his student membership in the Pennsylvania State Education Association. In response to a request for information about his extracurricular activities, he listed swimming, bowling, student council, magazine and newspaper staffs, honor society, and Naval Reserve Officers Training Corps. He made no mention of his membership and official position in the organization known as the Homophiles of Penn State. Nevertheless, he verified that the information he submitted was accurate to the best of his knowledge. His omission of the Homophiles was not inadvertent. To the contrary, he realized that this information would be significant, but he believed disclosure would foreclose his opportunity to be considered for employment on an equal basis with other applicants.

Acanfora protests that refusal to employ or retain him as a teacher violates the first and fourteenth amendments. He contends that the school system cannot defend on any deficiency in his application because it was his homosexuality, not omissions from the application, that led to the unconstitutional discrimination against him. The school officials admit that if Acanfora had revealed his affiliation with the Homophiles they would not have employed him. They assert, however, that Acanfora’s intentional omission of his connection with the Homophiles bars his attack on the constitutionality of the school system’s employment policy. In its written opinion, the district court dealt only inferentially with this aspect of the school system’s defense. It found that to avoid rejection, Acanfora intentionally did not disclose his homosexuality in his application. It also found that the essential reason for Acanfora’s transfer was his admitted homosexuality. However, it expressed no conclusion about the effect of Acanfora’s misrepresentation, resting its decision instead on his public appearances after he was transferred.

IV

In a number of criminal eases, the Supreme Court has held that a defendant charged with fraud may not challenge the constitutionality of the statute which required him to furnish the information that he misrepresented. Thus, in United States v. Kapp, 302 U.S. 214, 217, 58 S.Ct. 182, 82 L.Ed. 205 (1937), a defendant who was indicted for furnishing false information to secure benefits under the Agriculture Adjustment Act could not assert the invalidity of the Act as a defense. Similarly, a person charged with making false statements in connection with a loan lacked standing to question the constitutionality of the Home Owners Loan Act. Kay v. United States, 303 U.S. 1, 6, 58 S.Ct. 468, 82 L.Ed. 607 (1938). The subject was critically reexamined in Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966), and Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 64 (1969), which dealt with the offense of filing false non-Communist affidavits to satisfy the requirements of the Taft-Hartley Act. Reaffirming earlier cases, the Dennis Court refused to consider the defendant’s attack on the constitutionality of the statutory requirement for the affidavit:

“It is no defense to a charge based upon this sort of enterprise that the statutory scheme sought to be evaded is somehow defective. Ample opportunities exist in this country to seek and obtain judicial protection. There is no reason for this Court to consider the constitutionality of a statute at the behest of petitioners who have been indicted for conspiracy by means of falsehood and deceit to circumvent the law which they now seek to challenge. This is the teaching of the cases.” 384 U.S. at 866, 86 S.Ct. at 1847.

In Bryson, the Court rejected the argument that the misrepresentation was of no consequence because the government could not constitutionally elicit the information:

“But after Dennis it cannot be thought that as a general principle of our law a citizen has a privilege to answer fraudulently a question that the Government should not have asked. Our legal system provides methods for challenging the Government’s right to ask questions—lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” 396 U.S. at 72, 90 S.Ct. at 360.

The principles stated in Kapp, Kay, Dennis, and Bryson have not been confined to criminal cases. In at least two instances Rodriguez v. Seamans, 150 U.S.App.D.C. 1, 463 F.2d 837 (1972) petition for cert. dismissed 409 U.S. 1094, 93 S.Ct. 704, 34 L.Ed.2d 678 (1973) and Williams v. United States, 434 F.2d 1346, 1354, 193 Ct.Cl. 440 (1970) (Nichols, J., concurring), courts have sustained discharges of government employees for furnishing false information pertaining to their qualifications despite the fact that the government’s questions were considered to be an unwarranted intrusion into constitutionally protected rights.

Acanfora asserts that the principles governing the foregoing cases do not apply to his situation because the school officials transferred him on account of his homosexuality, not the omission from his application. He relies on the principle that review of administrative action must be confined to the reasons assigned by the administrative agency. See e. g., Securities and Exchange Com. v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995 (1947) ; Johnson v. Branch, 364 F.2d 177 (4th Cir. 1966) cert. denied 385 U.S. 1003, 87 S.Ct. 706, 17 L.Ed.2d 542 (1967). This argument fails, however, because it lacks a clear factual basis and because it is predicated on an unduly restrictive application of the principles expressed in Dennis and Bryson.

Before instituting this action, Acanfora did not exhaust his administrative remedies, and the school officials conducted no formal hearing. The district court, however, declined to tax either party with these procedural lapses. It ruled that a remand for an administrative hearing “would be pointless as the substantive rift has widened and the parties have shifted their attention to a plenary hearing in this forum.” Therefore, the district court did not purport simply to review administrative action of the school officials. At the instance of both parties, it conducted an extensive trial on the merits of the case, admitting a great deal of evidence that had not been considered administratively. Under similar circumstances, we have ruled that a remand for an administrative hearing was unnecessary. See e. g., Horton v. Orange County Board of Educ., 464 F.2d 586 (4th Cir. 1972); Barker v. Hardway, 399 F.2d 638 (4th Cir. 1968). Accordingly, the consequences of Acanfora’s intentional omission of significant information from his application must be determined by examining the entire record of the district court proceedings, not just the administrative file that was compiled before the suit was instituted.

After Montgomery County school officials learned that Acanfora was a homosexual, the deputy superintendent wrote him that he was being transferred to a non-teaching position “while we gather information and assess the circumstances of the matter.” At the same time, the school officials realized that Acanfora’s application was incomplete because he had failed to include information about his affiliation with the Homophiles. They adverted to this omission during the course of this litigation, and it is apparent that they suspected Acanfora had purposely misled them. However, during the administrative phase of the controversy, before institution of the suit, they had no proof that his act was intentional. Not until Acanfora testified at the trial could the school officials confirm their suspicions that he consciously omitted the Homophiles from his application for a teaching position to avoid rejection.

It was Acanfora’s testimony that furnished the school system a factual basis for the defense of misrepresentation. After Acanfora testified, the superintendent of schools unequivocally assigned the conscious withholding of information as a reason for his unwillingness to reassign Acanfora to a teaching position. We conclude, therefore, that the school system should not be prejudiced because it did not include in the administrative file, as a reason for denying Acanfora a teaching position, information about his motives that were known to Acanfora but unknown to the school officials until he testified.

Not every omission of information in an employment application will preclude an employee from attack ing the constitutionality of action taken by the governing body that employs him. But here Acanfora wrongfully certified that his application was accurate to the best of his knowledge when he knew that it contained a significant omission. His intentional withholding of facts about his affiliation with the Homophiles is inextricably linked to his attack on the constitutionality of the school system’s refusal to employ homosexuals as teachers. Acanfora purposely misled the school officials so he could circumvent, not challenge, what he considers to be their unconstitutional employment practices. He cannot now invoke the process of the court to obtain a ruling on an issue that he practiced deception to avoid. “When one undertakes to . mislead [government officials] by false statements, he has no standing to assert that the operations of the Government in which the effort to . mislead is made are without constitutional sanction.” Kay v. United States, 303 U.S. 1, 6, 58 S.Ct. 468, 471, 82 L.Ed. 607 (1938).

Affirmed.

      . The application form for employment in the Montgomery County school system, which Acanfora signed, contained the following paragraph:
      “Read Carefully Before Signing:
      The information as submitted on this application is accurate to the best of my knowledge, I concur in the above statements and requirements. I understand that falsification of any information submitted on this application shall be cause for dismissal from service. I have signed this application form in the presence of a notary public, whose signature and seal appear below.”

      . We do not, however, approve of the parties’ failure to use administrative remedies to resolve their differences. An effective grievance procedure might have eliminated this expensive, protracted litigation.

      . For example, in an affidavit opposing Aeanfora’s motion for summary judgment, a school official asserted:
      “This litigation by reason of plaintiff’s false application, is contrived in every sense of the word. lie ought not to bootstrap his way into a constitutional issue out of such untruthfulness. Had he been truthful, defendants would not have been involved in this litigation as they would not have hired him in the first place.”

      . The deputy superintendent of schools testified :
      “Q In other words, would it be fair to say that neither the decision to transfer him nor the decision not to return him to the classroom had anything to do with his competency as a teacher?
      A I think the central issue, by that point in time, and we are talking about late October and November, and so on, was what appeared to us to be the fact that he was an advertised, activist homosexual.
      I think there was one other point that I had mentioned earlier. At least I thought I did, that was of concern to us, and that was why Mr. Acanfora had not indicated his membership in the Homophile Society on his application form, and I don’t know that I ever really knew the answer to that until in this courtroom yesterday when Mr. Acanfora indicated that he had consciously decided to withhold that information.
      Q Do you recall him further indicating that, in his judgment, had he written Homophile Society of Penn State University down as a social, fraternal or extracurricular activity on his application that in his judgment, that would have ended his opportunity for employment with the Montgomery County school system?
      A Yes, I recall him mentioning that. That was new information to me, also.

      . The superintendent of schools testified:
      “Q Under the circumstances of this matter, as you understand them, would you reinstate Mr. Acanfora at this time?
      A No.
      Q What are your reasons for not doing so?
      A You mean reinstate or reassign?
      Q Reassign to the classroom setting.
      A There are several reasons. Mr. Acanfora did not provide and consciously withheld information on his application which he was required to provide in the employment process.."


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold Tucker MATLOCK, Defendant-Appellant.
    No. 73-1646.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 27, 1973.
    Decided Jan. 23, 1974.

      John W. Palmer, Dyersburg, Tenn., for defendant-appellant; E. T. Palmer (Court-appointed), Dyersburg, Tenn., on brief.
    Thomas F. Turley, Jr., U. S. Atty., Glen Reid, Jr., Asst. U. S. Atty., Western District of Tennessee, Memphis, Tenn., on brief, for plaintiff-appellee.
    Before EDWARDS and MCALLISTER, Circuit Judges, and JOINER, District Judge.

       The Honorable Charles W. Joiner, United States District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM:

The defendant Harold Tucker Matlock was convicted on three counts of an indictment involving bank robbery. He claims three grounds of error in support of his request for reversal.

During the course of the trial, witnesses for the government were asked to wait in a designated room, a part of the Marshal’s offices, until they were called to testify. The defendant was detained in a cell adjacent to the Marshal’s office, and on two occasions was brought in handcuffs from that cell to the courtroom through the room in which the witnesses were waiting. This was a direct route to the courtroom but not the only route. On one occasion an unidentified person spoke and said “there goes Matlock.”

It is contended that the action of the Marshal in bringing the defendant through the room in which the government’s witnesses were waiting amounts to a “one man line up without counsel and violates the defendant’s constitutional rights.” United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).

We think that under the circumstances in this case no prejudice has been shown for the acts were not “so unnecessarily suggestive and conducive to irreparable mistaken identification that [defendant] was denied due process of law.” Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Nothing in the record indicates that the confrontation was arranged by the government. United States v. Furtney, 454 F.2d 1 (3rd Cir. 1972).

In addition, five of the government’s identification witnesses based their identification of the defendant on clear recollection of the defendant’s appearance at the time of robbery and a clear explanation of opportunity at that time to acquire facts sufficient to make an identification. The independent origin of the identification of the defendant and significant other evidence connectng the defendant with the crime makes the inadvertent confrontation in the witness room without prejudice to the defendant. United States v. De Bose, 433 F.2d 916 (6th Cir. 1970).

This court, however, does not condone arrangements that as a matter of course require a defendant to be paraded in front of identification witnesses while he is being brought to the courtroom. All possible steps must be taken to avoid confrontation which may on some occasions prejudice defendants and lead to identification based on the confrontation rather than on independent recollection. In this case, however, the total circumstances surrounding the chance encounters and the strength of the identification witnesses do not require us to reverse this case. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 704 (1966).

During the trial, counsel for the defendant indicated a desire to interview an eye witness. In the presence of defendant’s counsel, the government’s attorney informed the witness that “he did not have to talk unless he wanted to.” The defendant contends this action impeded his right of investigation.

Witnesses are neither the property of the government nor of the defendant. Gregory v. United States, 125 U.S.App.D.C. 140, 369 F.2d 185 (1966). Instructions to a witness not to cooperate with the other side or to talk to lawyers for the other side would not be proper, but a witness is free to talk or not unless compelled by order of the court. The action of the government’s lawyer is quite unlike that of the judge in Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), and the government’s agent and lawyer in United States v. Thomas et al., 488 F.2d 334 (6th Cir. 1973). In these cases the intrusion prevented the party from interrogating his witnesses in court. Here the witness was called and was cross examined by defendant’s counsel. The only advice given was the appropriate statement to the effect that the witness need not talk unless he wanted to. Advising him of his “right not to submit to the interview did not deny the defendant a fair trial.” United States v. White, 454 F.2d 435 (7th Cir. 1971).

The three counts on which the defendant was convicted arose out of a single bank robbery. Count I involved the robbing of a bank by use of force and violence, in violation of Title 18 U. S.C. § 2113(a). Count II involved the taking and carrying away with intent to steal money in custody of the bank, in violation of Title 18 U.S.C. § 2113(b). Count III involved the committing of an offense of bank robbery and while doing so assaulting a bank employee and putting his life in jeopardy, in violation of Title 18 U.S.C. § 2113(d).

The District Court initially sentenced the defendant to concurrent terms of 10 years on Counts I and II, to be followed by a subsequent sentence of 15 years on Count III, making a total period of imprisonment of 25 years. Apparently concerned about an attack on the sentence because the counts may have merged and overlapped, seventeen days later, while the defendant was still confined in the Shelby County Jail, the District Court filed an Amended Judgment and Commitment sentencing the defendant to 10 years on Counts I and II and 20 years on Count III, making all sentences run concurrently for a total period of imprisonment of 20 years. It is contended by the Appellant that the re-sentence increased the period of confinement as to Count III and was not valid because the defendant had already begun to serve his sentence.

Although Rule 35 of the Federal Rules of Criminal Procedure gives the court power to correct an illegal sentence “at any time” and he may correct a sentence imposed in an illegal manner “within 120 days after service is imposed”, this court has held that a District Court cannot increase a sentence after the defendant has started to serve it even though the increase merely carries out the intention of the court at the time of the original sentence. United States v. Adams, 362 F.2d 210 (6th Cir. 1966). The time the defendant starts to serve the sentence is clearly stated in Section 3568 of Title 18 of the United States Code to be “the date on which he is received at such jail or other place of detention” to await transportation to the place his sentence is to be served. In the ordinary case, therefore after sentence of commitment to the custody of the Attorney General, the Judge loses the power to increase the sentence at the point in time the defendant is held in custody for the purpose of carrying out the sentence, whether that involves screening the defendant or awaiting transportation for the service of the sentence. This, of course, has nothing to do with how jail time is computed in the service of the sentence. The same section makes clear that all “time spent in custody in connection with the offense or acts which the sentence was imposed” is to be credited on the sentence. 18 U.S. C. § 3568.

The government contends that there are additional facts in this case making inapplicable Adams and the indicated application of 18 U.S.C. § 3568. The government asserts that at the time of the first sentence and until and after the resentence, the defendant was being held in jail without bond for violation of parole or for trial on another charge. Under these facts the holding in jail after the sentence would not be “to await transportation to the place his sentence is to be served.” 18 U.S.C. § 3568. If he was held for a purpose other than the judgment of commitment in this case, the sentence had not commenced on the date of re-sentence and the increase in the term of sentence was not improper.

The record available to us is not sufficient to determine if these facts are true. The case is remanded to the District Court to determine whether or not there was an independent basis for defendant’s custody and to dispose of the case in accordance with this opinion.


author: PHILLIPS, Chief Judge.

text:
    Fate THOMAS, Sheriff, Nashville Metropolitan Jail, Appellant, v. Mark Jerome BEASLEY, Appellee.
    No. 73-1628.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 3, 1973.
    Decided Feb. 5, 1974.

      W. Henry Haile, Asst. Atty. Gen., of Tennessee, Nashville, Tenn., on brief, for appellant; David M. Pack, Atty. Gen., of Tennessee, of counsel.
    Harold D. Hardin (Court-appointed) Nashville, Tenn., on brief, for appellee.
    Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.
   PHILLIPS, Chief Judge.

District Judge L. Clure Morton granted Mark Jerome Beasley’s application for a writ of habeas corpus. The decision of the District Court was based upon a finding that Beasley already had been put in jeopardy for the offense for which he was being held in custody awaiting trial, in violation of the Fifth Amendment to the Constitution of the United States. The Fifth Amendment is applicable to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 793, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

The State of Tennessee appeals. We affirm.

Beasley was arrested and jailed in November 1971. Along with three others he was indicted for armed robbery in January 1972 and trial was set for June 1972. Beasley was represented by an attorney in the office of the Public Defender of Davidson County, Tennessee. On the day of the trial the Public Defender announced that he had a serious conflict of interest and could not represent both Beasley and one of his co-defendants. Thereupon an attorney in private practice was appointed by the State trial court to represent Beasley. The case was continued again on September 18, 1972, because the chief prosecution witness was observing a religious holiday. At that time Beasley’s motion to dismiss for lack of a speedy trial was denied.

The case came to trial on September 19, 1972. A jury was impaneled and sworn and testimony commenced. The State’s first witness, the prosecutrix, had completed a substantial portion of her testimony before the court recessed for lunch. During the lunch recess, the State trial judge learned that counsel for two of the other defendants (but not including Beasley) had served previously as special night judge of the Court of General Sessions of the Metropolitan Government of Nashville and Davidson County, and in that capacity had signed the arrest warrants for the defendants. Due to this discovery, the trial judge stated that his only alternative was to declare a mistrial and requested defense counsel to consent thereto. Three defendants agreed to a mistrial, but Beasley objected.

Instead of proceeding with the trial of Beasley before the jury which already had heard a substantial part of the testimony of the prosecutrix, the State trial judge declared a mistrial as to Beasley over his objection, denied Beasley’s motion for a severance, and reset the case for trial at a later date. When the case was called again for trial, Beasley entered a plea of double jeopardy and renewed his motion to dismiss for lack of a speedy trial. The State trial judge overruled both the plea of double jeopardy and the motion to dismiss for lack of a speedy trial. Thereafter, he also dismissed Beasley’s petition for rehearing.

Thereupon Beasley filed a petition for certiorari and supersedeas in the Tennessee Court of Criminal Appeals, raising his defense of double jeopardy. The Court of Criminal Appeals dismissed the petition and the Supreme Court of Tennessee denied certiorari in unpublished decisions.

At the time the writ of habeas corpus was granted by the District Court on February 9, 1973, Beasley had been confined in jail continuously since November, 1971.

We agree with the District Court that jeopardy attached at the first trial and that Beasley’s plea of double jeopardy is a conclusive bar to retrial. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). The prohibition of the Double Jeopardy Clause “is not against being twice punished, but against being twice put in jeopardy . . . .” United States v. Ball, 163 U.S. 662, 669, 16 S.Ct. 1192, 1194, 41 L.Ed. 300 (1896).

We are unwilling to hold that Beasley must be returned to jail and be confined there pending a second trial, which clearly would be barred by his double jeopardy plea. As District Judge Morton said, “Under the state process petitioner must remain confined in the Nashville Metropolitan Jail until he is subjected to a second trial. If petitioner’s claim is a valid one, each day he remains in jail adds to the deprivation of his rights guaranteed by the double jeopardy clause.”

The State contends that the writ was granted prematurely because Beasley has not exhausted his State remedies. It is argued that he should be subjected to a second trial, where his plea of double jeopardy again would be entered; and that if Beasley should be convicted at the second trial, the appellate courts of Tennessee ought to be afforded an opportunity to pass upon the plea on its merits.

The exhaustion of remedies contention is answered conclusively by the recent decision of this court in Rivers v. Lucas, 477 F.2d 199 (6th Cir. 1973). Rivers was indicted for murder in the first degree. He plead guilty to manslaughter. A few months after sentencing, his conviction was reversed and remanded for further proceedings. Rivers moved to have the original indictment quashed or at least reduced to manslaughter. This motion was denied by the State trial court. Rivers appealed this denial all the way through Michigan’s appellate process without getting a decision on the merits.

In Rivers this court affirmed the grant of a conditional writ of habeas corpus saying:

“The only thing left for him to do in the state courts is to submit to trial on the murder charge. Since exposure to the risk of conviction is the very thing he is seeking to avoid, this step [submitting to trial] is not necessary for a complete exhaustion of state remedies where freedom from double jeopardy is the right sought to be preserved.” 477 F.2d at 202-203.

It is to be reemphasized that, in the case at bar, the first trial ended in a mistrial. Before the second trial commenced, Beasley moved to dismiss the indictment on double jeopardy grounds. As in Rivers, the entire appellate process in the State courts was exhausted without obtaining a decision on the merits. In the present case, as in Rivers, Beasley has done everything available within the State court system that it is possible for him to do to avoid retrial.

The Double Jeopardy Clause of the Fifth Amendment prohibits a defendant from being subjected to two trials for the same offense unless “manifest necessity” or the “ends of justice” require the declaration of a mistrial. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). “Manifest necessity” and the “ends of justice” do not require a second trial in the present case. The first trial of Beasley could have been completed before the jury which already had heard a substantial part of the testimony of the prosecutrix, in spite of the fact that a mistrial was declared as to other defendants. A severance at that time would have been the appropriate remedy. Since it is manifest under the authorities hereinabove cited that jeopardy already had attached as to Beasley, the Double Jeopardy Clause precludes the State of Tennessee from subjecting him to a second trial.

Affirmed.

      . The dismissal of Beasley’s petition for certiorari and supersedeas by the Tennessee Court of Criminal Appeals was on procedural grounds. That court said, “ [t] his is an interlocutory order from the Davidson County Criminal Court, and the defendant has not yet been to trial.”

      . On October 15, 1973, the Supreme Court vacated our judgment in Lucas v. Rivers, 414 U.S. 896, 94 S.Ct. 232, 38 L.Ed.2d 139 and remanded the case to this court for consideration of the question of mootness in light of People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973). Although a panel of this court subsequently dismissed Rivers as moot, the principle enunciated in Rivers with respect to exhaustion of remedies still stands as the law of this circuit.


author: DONALD RUSSELL, Circuit Judge:

text:
    Harvey B. JOHNSON, Appellant, v. RAC CORPORATION, Appellee.
    No. 73-1958.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1973.
    Decided Feb. 5, 1974.

      John P. McKenna, Washington, D. C. (Lawrence F. Rodowsky, Baltimore, Md., Rowley & Scott, Washington, D. C., Frank, Bernstein, Conaway & Goldman, Baltimore, Md., on brief), for appellant.
    Edmund P. Dandridge, Jr., Baltimore, Md. (Venable, Beatjer & Howard, Baltimore, Md., Bleakley, Platt, Schmidt & Fritz, New York City, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and RUSSELL and WIDENER, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

This is a products liability action to recover for personal injuries sustained in connection with a helicopter crash in the State of Virginia on December 31, 1970. Federal jurisdiction was based on diversity. The defendant RAC, alleged to be a Delaware corporation with its principal offices in New York, and one of the several defendants in the action, moved to dismiss on a number of grounds. Among the grounds of the motion was the claim of a failure on the part of the plaintiff to state a claim upon which relief could be granted against it. The basis of this ground was the voluntary corporate dissolution of the defendant more than three years before the institution of the suit pursuant to the provisions of the Delaware law, as established by the affidavit of the defendant’s “Chief Executive Officer” and “Chairman of the Board of Directors”. According to the defendant’s contention, the Delaware corporate statutory law proscribed the maintenance of any suit against a voluntarily dissolved Delaware corporation if the suit was filed more than three years after such dissolution. The plaintiff thereupon directed extensive interrogatories, to the defendant. In the affidavit submitted by the defendant, it appeared that the affiant became a director of the defendant in 1963 and Chairman of the Board of Directors June 19, 1969, over a year after its alleged dissolution, and became Chief Executive Officer in 1972, some four years after its dissolution. The affidavit also relates that the defendant has an employee who, living in Maryland but performing in Maryland no services for the defendant, does draw “checks relating to corporate activities outside Maryland.” In this affidavit, it is stated that, since 1965 the defendant has been “continued in existence solely for the purpose of disposing of certain remaining assets, dissolving and liquidating the proceeds of its sales to its stockholders, and pursuing tax refunds for prior years from the Federal Government and New York State.” The plaintiff’s interrogatories, among other things, sought, it is claimed by the plaintiff, to pierce the claim of the defendant that its activities were limited to dissolution and specifically inquired regarding the nature of the defendant’s continued operations. At this point, the defendant filed for a protective order to defer all discovery until after the motion to dismiss for failure to state a claim on which relief could be granted against it was ruled on. While no formal order was entered on this application of the defendant for a protective order, it would appear that all parties understood that no discovery as against this defendant would be permitted until this phase of defendant’s motion to dismiss on the ground that the statutory dissolution barred the maintenance of the action against it (the defendant) was disposed cf. The plaintiff complains that it was thereby denied a right to discovery in connection with this part of the motion to dismiss. The defendant replies that until the hearing the plaintiff had not pressed for further discovery. In any event, when this part of the motion to dismiss came on for hearing, the District Court denied the plaintiff’s request for discovery, assuming, it would seem, that the supporting affidavit submitted by the defendant was conclusive of the defendant’s right to a dismissal, and proceeded to dismiss the action against the defendant RAC. The plaintiff has appealed. We reverse.

Both the plaintiff and the defendant have argued at length the construction of the Delaware statute which prescribes the time within which a suit must be brought against a voluntarily dissolved Delaware corporation. We do not, however, reach this point. The order of dismissal must be reversed on procedural grounds. The factual authority for the dismissal, as found by the- District Court, rests on the supporting affidavit submitted by the defendant, which purported to detail the circumstances relating to the defendant’s corporate dissolution, matters that did not appear in the complaint itself. When a motion to dismiss under Rule 12(b)(6) is founded on matters outside the pleadings, the District Court is obligated “to treat the motion to dismiss as one for summary judgment and to dispose of it as provided in Rule 56.” Carter v. Stanton (1972) 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569; Smith v. Blackledge (4th Cir. 1971) 451 F.2d 1201, 1202; Leviner v. Richardson (4th Cir. 1971) 443 F.2d 1338, 1342; Phillips v. Columbia Gas of West Virginia, Inc. (D.C.W.Va.1972) 347 F.Supp. 533, 535, aff. (4th Cir.) 474 F.2d 1342. In such event, the rule expressly provides that “all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” And, as the Court said in Dale v. Hahn (2d Cir. 1971) 440 F.2d 633, 638, “It seems fair to include within the term ‘reasonable opportunity’ some indication by the court to ‘all parties’ that it is treating the 12(b) (6) motion as a motion for summary judgment”, with the consequent right in the opposing party to file counter affidavits or to pursue reasonable discovery. This was the procedure followed in Barnes v. A. Sind & Associates (D.C. Md.1963) 32 F.R.D. 39, 41, rev. on other grounds, (4th Cir.) 341 F.2d 676, where, after noticing “all parties” that it was treating the motion as one for summary judgment, gave the opposing party the right to “file his counter affidavits within 15 days after he has completed his discovery.” In Gould, Inc. v. Chafee (1971) 146 U.S.App.D.C. 206, 450 F.2d 667, 669, where, contrary to the procedure in Barnes, the Court had acted without giving the plaintiff the opportunity to rebut the showing of the defendant, the Court reversed a dismissal entered under Rule 12(b)(6), because, in deciding the motion on the affidavits submitted by the moving party, the Court had failed to give the opposing party “appropriate notice” of its right to contest the material facts set forth in the moving papers submitted in support of the motion.

In this case, the District Court did not indicate to the parties that it was treating the 12(b)(6) motion as' a motion for summary judgment nor did it provide by appropriate order “reasonable opportunity” for the plaintiff to file any “material made pertinent to such a motion by Rule 56.” The plaintiff should have been afforded an opportunity, as the procedure followed in Barnes suggests, to employ discovery, in order to counter, if he could, the facts set forth in the defendant’s affidavit or to establish a factual basis for his action against the defendant; and this is especially so since the facts on which the defendant predicates its motion in this respect lie peculiarly within the knowledge of the defendant. Moreover, the right to maintain a products liability suit against a dissolved corporation, in process of liquidation under statutory authority, for post-dissolution-accrued claims has received at best limited judicial or textbook consideration. The plaintiff has suggested in argument that, contrary to the defendant’s contention in its affidavit submitted, the defendant, despite its dissolution, is not restricting itself to liquidating its business but may be engaged generally in carrying on its regular business. Whether this is a fact and, if a fact, can support this action should await the completion of discovery. Moreover, the Delaware corporate law vests the Chancery Court with discretion to extend the period allowed by Section 278 for suit against a dissolved corporation. 8 Del. Code Ann., § 278. The plaintiff should have the right to inquire whether such an extension has or has not been granted by the Chancery Court. Of course, the affidavit filed by the defendant indicates that none of these points just outlined will prove, after discovery, to support the maintenance of this action against the defendant. And this may well be true but we do not think the plaintiff should be absolutely foreclosed from any reasonable testing of the facts stated in that affidavit by discovery. The cause must accordingly be remanded in order to permit the plaintiff, within a reasonable time fixed by the District Court, to file such counter affidavits or material deemed pertinent to that part of defendant’s motion to dismiss that is based on 12(b)(6), after reasonable opportunity for discovery. The discovery should, though, be limited strictly to matters pertinent to this particular ground of the motion.

Remanded with directions.

      . Rule 12(b)(6), Rules of Civil Procedure, 28 U.S.C.

      . Delaware Code, Title 8, § 275(b) (e), (1970, Cum.Supp.)
      A distinction has been made between a voluntary corporate dissolution and one arising out of a forfeiture for failure to pay license taxes or fees. Smith-Johnson Steamship Corporation v. United States (D.C.Del.1964) 231 F.Supp. 184, 186, n. 2; hut of., Ross v. Venezuelan-American Independent Oil Pro. Ass’n, Inc. (D.C.Del.1964) 230 F.Supp. 701, “relying on the dubious precedent of Wax v. Riverview Cemetery Co., 41 Del. [2 Terry] 424, 24 A.2d 431,” as the decision was described by the writers in 56 Cornell L.Rev. 865 at 888, n. 131.

        See, also, Watts v. Liberty Royalties Corporation (10th Cir. 1939) 106 F.2d 941, 944 (involving a Delaware corporation) :
      “ * » * It has generally been held that where charter laws provide for a cancellation and forfeiture of a corporate charter and corporate powers for failure to pay fees and also provide for a reinstatement of the powers of the corporation and for restoration of its charter upon the payment of its fees, the penalty provisions providing for the forfeiture of its charter rights are largely for the purpose of collecting the charter fees and do not end the life of the corporation.”
      To the same effect is Purcel v. Wells (10th Cir. 1956) 236 F.2d 469 (decided under Texas law).

      . Delaware Code, Title 8, § 278 (1968 Cum. Supp.).
      “It is well settled at common law and in the federal courts that a corporation which has been dissolved is as if it did not exist.” United States v. Safeway Stores (10th Cir. 1944) 140 F.2d 834, 836. All actions pending against it are abated and no new actions may be begun unless there is “some statutory authority [of the state of incorporation] for the prolongation of its life, even for litigation purposes.” Chicago Title and Trust Co. v. Forty-One Thirty-Six Wilcox Bldg. Corp. (1937) 302 U.S. 120, 125, 58 S.Ct. 125, 127, 82 L.Ed. 147; Oklahoma Gas Co. v. Oklahoma (1927) 273 U.S. 257, 259, 47 S.Ct. 391, 71 L.Ed. 634; Sedgwick v. Beasley (1949) 84 U.S.App.D.C. 325, 173 F.2d 918, 919; International Pulp Equip. Co. v. St. Regis Kraft Co. (D.C.Del.1944) 54 F.Supp. 745, 748. Most jurisdictions have, however, chosen to provide by legislation “for a partial continuation of the existence of a corporation after the termination of its corporate life, for the purpose of enforcing liabilities that had previously accrued against it. Statutes of this type are remedial and should be broadly and liberally construed.” United States v. Maryland & Virginia Milk Producers (D.D.C.1956) 145 F.Supp. 374, 375. Generally, these statutes fix a time limit -within which suit must be filed after dissolution. The reason for such limitation was stated in Bishop v. Schield Bantam Company (D.C.Iowa, 1968) 293 F.Supp. 94, 96:
      “There should be a definite point in time at which the existence of a corporation and the transaction of its business are terminated. To allow, as the plaintiff contends, the continued prosecution of lawsuits perverts the definiteness and orderly process of dissolution so as to produce a continuous dribble of business activity contrary to the intent of the winding up provisions of the statute.”

        See, also, American Optical Co. v. Philadelphia Electric Co. (D.C.Pa.1964 ) 228 F.Supp. 293, 295; and Hern and Alexander, Effect of Corporate Dissolution on Products Liability, 56 Cornell L.Rev. 865, 913 (1971).
      Whether there is such statutory “promulgation” of corporate life in a particular case, so as to permit “a partial continuation of the existence of a corporation” after dissolution for purposes of suit, is determinable by reference to the laws of the state of incorporation of the dissolved corporation; Rule 17(b), Federal Rules of Civil Procedure, to this effect is no more than a restatement of a iDrinciple already firmly established in federal law. Wright & Miller, Federal Practice and Procedure, vol. 6, p. 738 (1971). Thus, in Oklahoma Gas Co. v. Oklahoma, supra, (273 U.S. at 259-260, 47 S.Ct. at 392) the Court put it:
      “The matter [of the capacity of a dissolved corporation] is really not procedural or controlled by the rules of the court in which the litigation pends. It concerns the fundamental law of the corporation enacted by the state which brought the corporation into being.”
      For this reason, assuming that the defendant RAO has been legally dissolved under the laws of Delaware, the right of the plaintiff to maintain this action against the defendant is controlled by the statute law of Delaware.
      There is some authority that, if a foreign corporation has qualified under the laws of another state, it, even though dissolved under the laws of the state of its incorporation, remains suable in the qualifying state until the laws of the qualifying state regulating withdrawal of a qualifying foreign corporation had been complied with. Trounstine v. Bauer, Pogue & Co. (2d Cir. 1944) 144 F.2d 379, cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621, and Dr. Hess & Clark, Inc. v. Metalsalts Corp. (D.C.N.J. 1954) 119 F.Supp. 427. In its supporting affidavit, the defendant RAC alleges that it has never qualified under the laws of Maryland, where this suit was begun and, if this information is correct (and we do not imply to the contrary), these cases are inapposite to this case. .

      . Cf., Oklahoma Gas Co. v. Oklahoma, supra, (273 U.S. at 261, 47 S.Ct. 391).

      . Cf., Bahen & Wright, Inc. v. C.I.R. (4th Cir. 1949) 176 F.2d 538; United States v. Cummins Distilleries Corporation (6th Cir. 1948) 166 F.2d 17.

      . The Delaware statute has been involved in many cases that have arisen in federal courts, both in Delaware and in other jurisdictions. Among these are Melrose Distillers v. United States (1959) 359 U.S. 271, 79 S.Ct. 763, 3 L.Ed.2d 800; Smith-Johnson Steamship Corporation v. United States, supra (231 F.Supp. 184) ; Ross v. Venezuelan-Ameriean Independent Oil Pro. Ass’n, Inc., supra (230 F.Supp. 701) ; Damon Alarm Corp. v. American District Telegraph Co. (D.C.N.Y.1969) 304 F.Supp. 83; Matthies v. Seymour Manufacturing Company (D.C.Conn.1958) 23 F.R.D. 64 (rev. on other grounds, (2d Cir.) 270 F.2d 365) ; Lyman v. Knickerbocker Theatre Co. (1925), 55 App.D.C. 323, 5 F.2d 538 (but see Sedgwick v. Beasley, supra, 173 F.2d at 919 on this .case) ; Trounstine v. Bauer, Pogue & Co. (D.C.N.Y.1942) 44 F.Supp. 767, aff. (2d Cir.) 144 F.2d 379, cert. denied 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621; United States v. Safeway Stores, supra (140 F.2d 834) ; United States v. Line Material Co. (6th Cir. 1953) 202 F.2d 929; United States v. P. F. Collier & Son Corp. (7th Cir. 1953) 208 F.2d 936. In a number, the point in controversy was not whether the statutory time limit was absolute: that seemingly was assumed. The issue was whether the proceedings were of the character that fell within the class of actions which could be maintained within the three year period. Mel-rose Distillers v. United States, supra (359 U.S. at 273, 79 S.Ct. 763) ; United States v. United States Vanadium Corporation (10th Cir. 1956), 230 F.2d 646, cert. denied 351 U.S. 939, 76 S.Ct. 836, 100 L.Ed. 1466; United States v. Safeway Stores, supra (140 F.2d 834) ; United States v. Line Material Co., supra (202 F.2d 929) ; United States v. P. F. Collier & Son Corp., supra (208 F.2d 936).

      . See, to the same effect, Costen v. Pauline’s Sportswear, Inc. (9th Cir. 1968) 391 F.2d 81, 85 & n. 5; Sims v. Mercy Hospital of Monroe (6th.Cir. 1971) 451 F.2d 171, 173; Wright & Miller, Federal Practice and Procedure, vol. 5, at 683 (1969).

      . See Hern & Alexander, Effect of Corporate Dissolution on Products Liability, 56 Cornell L.Rev. 865 (1971). In Chadwick v. Air Reduction Company (D.C.Ohio 1965) 239 F.Supp. 247, 251, the right to maintain such a suit against the dissolved corporation was sustained but in Bishop v. Schield Bantam Company, supra (293 F.Supp. 94), the right was rejected. Both cases, however, were decided on the language of the individual State statutes.

      . See, 19 Am.Juris.2d, § 1648, but of., 16A, Fletcher on Corporations, § 8141 (rev.vol. 1962) :
      “Under certain circumstances a corporation may become liable for torts committed after its dissolution, as where a de facto existence continues the corporation so as to carry with it a liability then accruing. Ordinarily, however, a corporation has not even a de facto existence after the expiration of its charter, and where this is the case, such a liability does not arise. The remedy would be against the individuals committing the wrong.”

        See, also, Garzo v. Maid of the Mist Steamboat Co. (1952) 303 N.Y. 516, 104 N.E.2d 882, 887:
      “In addition, where, as here, a corporation carries on its affairs and exercises corporate powers as before, it is a de facto corporation as well, and ordinarily no one but the state may question its corporate existence.”

      . Whether application to the Chancery Court must be made within the three-year period after dissolution, as allowed under Section 278, see Levin v. Fisk Rubber Corp. (1943) 27 Del.Ch. 200, 33 A.2d 546, 548 (decided under an earlier version of the Statute).


author: PER CURIAM.

text:
    Kenneth E. PARKER and Henry L. Emmitt, Petitioners-Appellants, v. STATE OF OKLAHOMA and/or Park J. Anderson, Warden, Oklahoma State Penitentiary, Respondents-Appellees.
    No. 73-1480.
    United States Court of Appeals, Tenth Circuit.
    Submitted Jan. 14, 1974.
    Decided Feb. 7, 1974.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Appellants, state prisoners, were convicted by a jury in the District Court of Oklahoma County, Oklahoma of the robbery with firearms of the Park Plaza Liquor Store in Oklahoma City. The conviction was affirmed by the Oklahoma Court of Criminal Appeals. Emmitt et al. v. State, 473 P.2d 290 (Okl.Cr. App.1970). They now appeal from the denial of habeas corpus relief pursuant to 28 U.S.C. § 2254.

The evidence produced at trial established that the liquor store was robbed on the evening of August 15, 1968 by two persons, one of whom displayed a blue steel automatic pistol. The robbers took several bottles of the store’s merchandise, as well as currency and change from the cash register. Shortly afterward, appellants were arrested at a motel where a social gathering was in progress. When appellants were in police custody, the arresting officers conducted a thorough search of the room which they had been occupying. The search produced two bottles of liquor which had been in plain view, a blue steel automatic pistol of the same type used in the robbery and a sock containing approximately $94.00 which was recovered from behind the back panel of a television set in the room. These items were admitted into evidence at the trial over appellants’ objection.

Almost immediately after their arrest and prior to the commencement of formal criminal proceedings, appellants were placed in a police line-up where the clerk on duty at the time of the robbery positively identified them as the robbers. Appellants were again positively identified by the clerk at trial.

Both appellants contend that the warrantless search of the motel room after their arrest was illegal and that they were denied the effective assistance of counsel on the direct appeal of their conviction. In addition, appellant Parker contends that he was denied counsel at the police line-up in violation of the Sixth Amendment to the United States Constitution.

Parker fails to establish a constitutional violation merely because he was not offered counsel at a police lineup. The record indicates that the lineup and contemporaneous eye witness identification occurred shortly after his arrest and before he was formally charged. In Wilson v. Gaffney, 454 F.2d 142 (10th Cir. 1972) we included the assistance of counsel at preindictment lineups in the panoply of rights which must be afforded an accused. Subsequent to our opinion in Wilson, the Supreme Court held that the right to counsel does not attach at line-ups conducted prior to the initiation of judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). We now adhere to the rule announced in Kirby.

After an evidentiary hearing, the state trial court overruled appellants’ pre-trial motion to suppress evidence obtained in the motel room search on the grounds that the search was incident to a lawful arrest. The court below concluded that this was a proper application of the then existing law. We agree. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Cochran v. United States, 389 F.2d 326 (10th Cir. 1968), cert. denied 391 U.S. 913, 88 S.Ct. 1808, 20 L.Ed.2d 653 (1968). Appellants strenuously argued that the rule in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 decided June 23, 1969, which considerably narrowed the permissible scope of searches incident to arrest, should be applied retroactively. Chimel is not applicable to searches conducted prior to that decision. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Finally, appellants contend that they were denied the effective assistance of counsel on their direct criminal appeal. There is nothing in the record to substantiate their claim that counsel failed to comply with the standards of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Further, it appears that the Oklahoma Court of Criminal Appeals accorded appellants a full and fair review of all proceedings. Our own review of the transcript of appellants’ trial yields nothing to indicate that they received other than a fair trial.

Upon docketing in this court, the parties were notified that we were considering summary affirmance. Thereafter, appellants filed a memorandum addressing the merits and opposing summary affirmance. Nevertheless, a careful and thorough review of the files and records in this cáse convinces us that the district court correctly denied relief.

Accordingly, the judgment of the district court is affirmed.

Affirmed.


author: STEPHENSON, Circuit Judge. HEANEY, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. William Marcellus PARKER, Appellant.
    No. 73-1138.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Nov. 27, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 27, 1973.

      Albert L. Harvey, Des Moines, Iowa, for appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal from a jury conviction for distributing heroin questions trial court rulings on evidentiary matters.

Appellant Parker and George William Carter were charged in two counts of an indictment with distributing heroin on two occasions on June 19, 1972. The trial court upon motions by each defendant granted separate trials for the reason that since Carter was charged in a third count with an additional sale of heroin the interest of justice would better be served by separate trials. Carter was tried first and convicted. Appellant received concurrent 10 year sentences plus 3 years parole on each count. <21 U.S.C. § 841(b)(1)(A))

The evidence disclosed that on two occasions on June 19, 1972 appellant participated in the distrbution and sale of heroin to informant Edward Mitchell. The procedure followed was essentially the same with respect to each purchase. Informant Mitchell was strip searched at the Des Moines Office of the Federal Bureau of Narcotics and Dangerous Drugs, supplied with $140 cash, then driven to the general area of defendant Carter’s residence by Dennis Harker, Special Agent for the Bureau; surveillance was established over informant by Harker and other agents; Harker observed informant enter the Carter residence, exit therefrom about ten minutes later and then join Harker in his auto where he displayed 18 capsules later identified as heroin which Mitchell testified he purchased from defendant Carter and appellant Parker (Count II—afternoon purchase); Harker and informant returned to the Bureau office where the capsules were field tested, then placed in a lockseal envelope, lodged in the safe and the following day mailed by registered mail to the Bureau laboratory in Chicago where the substance was identified as containing heroin.

About 10 p. m. the same day informant and agent Harker returned to the Carter residence where informant Mitchell again purchased heroin from Carter and appellant (Count I). This time the transaction took place on the open porch of the Carter residence and was witnessed by Agent Harker from his car across the street. He testified, “* * * Mr. Parker handed something to Mr. Mitchell from his pocket * * * Mr. Mitchell handed Mr. Parker what appeared to be currency.” The same procedure of strip search, surveillance, field test, mailing and lab test was followed with respect to the night purchase (Count I) as was followed with the afternoon purchase.

Informant Mitchell testified as to both transactions, indicating that in the afternoon while he was inside the Carter residence appellant gave him 2 capsules and defendant Carter the remaining 16 capsules; that he gave some money to Carter and some to appellant; and that he told Carter he was coming back later that night to buy a spoon (heroin); that evening he returned to the Carter residence where on the front porch he again purchased heroin giving Carter $165; appellant was present with Carter on the porch during the transaction.

Appellant testified very briefly in his own behalf, stating that he did not recall the day of June 19, 1972, nor his activity on that date; he further denied being involved in the transactions referred to in Counts I and II of the indictment. In addition, he offered testimony of witnesses tending to establish that a shoplifting charge against informant Mitchell which occurred some 3 months after the heroin purchases was dismissed for reasons other than his guilt or innocence. Through cross-examination of Agent Harker appellant established that informant Mitchell had been convicted of two felonies (theft) and one misdemeanor. Also that he had been arrested on several occasions.

The trial lasted some 5 days with the jury returning its verdict of guilt after two hours deliberation. The evidence of guilt was strong and the sufficiency thereof to support the verdict is not challenged.

Exhibits

Appellant urges that the trial court erred in admitting into evidence and sending to the jury certain memoranda (memo) written by Agent Harker upon the lockseal envelope containing the heroin and a “Report of Property Collected, Purchased or Seized” (Report) which was made out in part by Agent Harker and in part by the chemist at the Bureau laboratory. The memo on the lock-seal envelope (exhibit 13) objected to included :

Name: Carter, George, et al
Address: 1208 11th St., Des Moines, Iowa
Evidence: Heroin
Purchased by: SL220003
Where obtained: 1208 11th St., Des Moines
Date: 6/19/72
Time: 10:45 P.M.
Amount Paid: $165.00
Witnesses: S/As Thornton, Harker, Overbaugh, BNDD Agents A. Way & H. Smith, Iowa Div. Narcotics Sgt. P. McVey & J. Trotter DMPD
Person Reporting Case: S/A Dennis Harker

Defendant objected to the same as being hearsay and not the best evidence. The trial court ruled that the exhibit would be admitted and that before submitting it to the jury the court would determine whether any of the material would be stricken. Ultimately exhibit 13 and a similar exhibit (exhibit 12) with reference to the heroin purchased in the afternoon were admitted. Exhibit 7 (appendix 1) and a similar exhibit, exhibit 6, were likewise received in evidence over objections that they contained hearsay, not the best evidence, and that exhibit 7 had been altered. The exhibits were not received in evidence until witnesses who recorded the disputed material had testified with respect thereto. The witnesses included: Agent Harker, who made out the memos on the lockseal envelope and the upper portion of the Report (lines 1-14); Ferris H. Van Sickle, who conducted the chemical tests and testified with respect to the heroin contained in the lockseal envelopes, testified with respect to the lower portion of exhibits 6 and 7 denominated Laboratory Evidence Receipt Report and Laboratory Analysis/Comparison Report.

After the chemist testified with respect to the laboratory portion of the Reports, appellant added to his objection:

The witness is present in the court room and has testified substantially to everything that’s on the report. This tends to compound his testimony and reduce it to writing for observation, when other testimony in the trial was not reduced to writing for observation. It is a cumulative matter and is a hearsay statement as far as this trial is concerned.

Ultimately the court admitted the exhibits and they were sent to the jury along with other exhibits.

Appellant now urges that our decision in Sanchez v. United States, 293 F.2d 260 (CA8 1961) requires reversal. The government urges alternately that Sanchez is wrong and should be overruled, it is distinguishable, and in any event the evidence of guilt is so overwhelming that if error occurred, it was harmless. It is our view that Sanchez is distinguishable.

A persuasive argument can be made that at least the chemist’s portion of the exhibit is admissible under the Business Records Act 28 U.S.C. § 1732(a). United States v. Ware, 247 F.2d 698 (CA7 1957). The making of the chemical analysis of the substance in question is a part of the daily routine of the Bureau laboratory and it is a part of this routine to record a description of the item received, its weight, the dilutent, the adulterants and the active drug ingredient. In other words it was in the regular course of the business of the Bureau laboratory to make the tests and record the results. See, Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 87 L.Ed. 645 (1942). Compare, Kay v. United States, 255 F.2d 476, 480 (CA4 1958), where a certificate showing the alcoholic content of a blood sample was received in evidence; Blanchard v. United States, 360 F.2d 318 (CA5 1966), certificate by an official of the Federal Bureau of Narcotics that heroin in appellant’s case had been destroyed was held to be admissible under Business Records Act, 28 U.S.C. § 1732; Harris v. Smith, 372 F.2d 806 (CA8 1967), hospital records received; however, in Picker X-Ray Corp. v. Frerker, 405 F.2d 916, 922-924 (CA8 1969) hospital records which had no relationship to treatment but were related to an incident that could result in a lawsuit were held not to be admissible; Cullen v. United States, 408 F.2d 1178 (CA8 1969) bank records indicating loss of cash following a robbery were admitted; LaPorte v. United States, 300 F.2d 878 (CA9 1962) “Did not Report” in Selective Service file admitted to prove fact asserted under 28 U.S.C. § 1732 and § 1733; see generally, M. Ladd and R. Carlson, Cases and Materials on Evidence, 952-977.

It is generally recognized that “The purpose of the Business Records Act was to allow reliable and accurate records to be introduced without the necessity of calling the person who made the entry. The Act was not designed, however, to facilitate the introduction of hearsay as to which the reporter, if he appeared in person, would not be allowed to testify.” United States v. Burruss, 418 F.2d 677, 678 (CA4 1969). In the latter case theft reports were held admissible to show a car was reported stolen, but not that it was in fact stolen. Accord, United States v. Shiver, 414 F.2d 461 (CA5 1961); United States v. Graham, 391 F.2d 439, 447-448 (CA6 1968).

The upper portion of the Reports and the memos on the lockseal envelopes were filled out by Agent Harker who had personal knowledge of the significant facts stated thereon, thus we are not presented with the problem of hearsay discussed in Burruss, supra, except for the afternoon sale to informant Mitchell which took place inside the defendant Carter’s house. However, this transaction was testified to in detail by informant. Thus the information contained in the exhibits was cumulative. United States v. Thompkins, 487 F.2d 146 (CA8 1973).

This brings us to what we perceive to be the thrust of Sanchez, supra, and the cases cited in accord therewith. The mischief is “The jury thus had before it a neat condensation of the government’s whole case against the defendant. The government’s witnesses in effect accompanied the jury into the jury room.” Sanchez, supra, 293 F.2d at 269.

The general rule is that exhibits properly admitted into evidence may be sent to the jury room. United States v. Jackson, 477 F.2d 879 (CA8 1973); United States v. Warner, 428 F.2d 730, 736-738 (CA8 1970). Considerable discretion in sending exhibits to the jury must be granted the trial court. Probative value of evidence admitted must be weighed against possible prejudice that may result if the exhibits are sent to the jury. The trial judge who has heard the evidence and observed at first hand the issues as they developed during the trial can best determine whether exhibits should be received and sent to the jury. We should not interfere unless there is a clear abuse of discretion. United States v. Johnson, 319 U.S. 503, 519-520, 63 S.Ct. 1233, 87 L.Ed. 1546 (1942).

Reports such as were used here, and the memoranda on the lockseal envelopes serve a valuable function vital to admissibility in preventing “the tampering with or misidentification” of the evidence during the chain of custody prior to the chemical analysis and prior to trial. See, United States v. Wilford Jackson, 482 F.2d 1264 (CA8 1973).

In the instant case prior to the admission of the disputed exhibits into evidence appellant vigorously cross-examined Agent Harker with respect to the handling of the lockseal envelopes and the content of his Reports. In fact counsel pointed up the error on exhibit # 7 where in line 13, Remarks, Bureau exhibit # 2 was typed instead of #3. Later when the exhibit was offered in evidence appellant made the additional objection: “It can be discerned from looking at the exhibit that its been altered.” Although we have not been favored with a transcript of the oral arguments, it can fairly be said that in the cross-examination of Harker appellant forcefully attacked the handling of the exhibits and the written entries thereon. Under these circumstances it certainly was within the discretion of the trial court to admit the exhibits and send them to the jury room.

We think Sanchez, supra is distinguishable since in that case there is no indication that objection was made by appellant that the exhibits had been altered, or that the chain of custody and the manner of handling the controlled substance was being questioned. See also, Special Concurrence in Sanchez, 293 F.2d at 270. Other distinguishing features will be discussed in connection with the next point raised by appellant.

Had an appropriate request been made, the trial court might well have instructed the jury that the writing was received for whatever bearing it might have on the issue of custody and the government’s handling of the disputed substance and should be considered for no other purpose. However, we are satisfied that in this case the jury fully understood the issues involved and that in the final analysis the government’s case rested largely on the credibility of Agent Harker and on Count II with the testimony of informant Mitchell. We are convinced that error, if any occurred, in admitting the exhibits was not prejudicial.

Oral Hearsay Testimony

On the redirect examination of Agent Harker the government made further inquiry concerning the afternoon purchase by informant Mitchell as follows:

Q. And did you have any conversation with Mr. Mitchell at the time he gave you the pills—capsules?
A. Yes sir.
Q. What was that conversation ?
A. I asked him who he bought them from. He replied, “Mr. Parker and Mr. Carter.”
(Appellant’s counsel): Your Honor, may that go out as hearsay, please.
The Court: Where did this take place, Mr. Donielson?

Through further questions by the United States Attorney the witness related that the conversation took place when informant entered the Agent’s automobile, which was about five minutes after the Agent saw him leave the residence where the purchase took place. The record then discloses that counsel for appellant requested “your Honor, may we approach the Bench for a minute?” (Discussion at the Bench among the Court and counsel, off the record). The Court: “The objection will be overruled at this time.” We, of course, have no way of knowing whether the conversation at the bench influenced the Court’s ruling and we will not speculate. We do know that a few minutes later the witness without objection testified: “He (Informant) stated that he got 16 capsules from Mr. Carter and two from Mr. Parker.”

Nevertheless, upon this record we hold that appellant, without repeating his objection preserved his hearsay objection. See, United States v. Allsup, 485 F.2d 287 (CA8 1973). Appellant now urges that the testimony was hearsay and erroneously admitted under our holding in Sanchez, supra. The government contends that the evidence was admissible under the Proposed Rules of Evidence 803(1) Present Sense Impression and 803(2) Excited Utterance, 51 F.R.D. 315, 419. Since these Rules have not been adopted we express no opinion with respect to whether the Proposed Rule 803(1) would allow admission of the testimony to prove the truth of the statement made by informant.

We are satisfied that Sanchez, supra is clearly distinguishable. There a vast amount of detailed hearsay testimony was admitted to bolster the testimony of an informant for whose credibility the government refused to vouch. 293 F.2d at 265.

Here the claimed hearsay was limited to informant’s report of the afternoon purchase some five minutes after the purchase took place, to which, informant later testified in person and about which he was thoroughly cross-examined. At the most it was cumulative evidence. It corroborated informant’s own testimony as to what actually took place and as to what he reported to Agent Harker. It should further be noted that Agent Harker personally witnessed the night sale (Count I). Concurrent sentences were imposed on each count. Whatever error existed was harmless.

Motion for Mistrial

Appellant contends the trial court erred in refusing to grant a mistrial because the government improperly injected appellant’s reputation as an issue in the case.

Appellant at the commencement of his cross-examination of Agent Harker interrogated him with respect to how many times he had seen appellant since the heroin purchases in question, which Harker testified was once during the instant trial; whether prior to the purchases he had seen a picture of appellant, and in so doing ultimately elicited the following answer: “I did not see a picture beforehand. Correction, I saw approximately 20 pictures of known narcotics violators, and his picture was one of them. Before I ever went on that date.” Upon objection the trial court struck the answer and admonished the jury not to consider the same. Later during the proceedings, out of the presence of the jury, appellant moved for a mistrial because of the prejudice created. The trial court in overruling the motion observed, “I don’t believe that the statement, which was promptly stricken upon motion, and in a manner that was not particularly inflammatory —I think the defense counsel was well-advised to treat it lightly at the time, to reduce any possible additional prejudice.”

We have made it abundantly clear that unless a defendant has placed his general character in issue it is improper to show that he is of bad character. United States v. Crawford, 438 F.2d 441 (CA8 1971). Thus the reference by the witness to appellant’s picture among a group of known narcotics violators was improper and correctly stricken by the trial court. There is no indication that the government sought to elicit the information given. We cannot assume the jury failed to heed the admonition of the trial court to not consider the same. Under the circumstances we cannot say that the trial court abused its discretion in refusing to declare a mistrial. McWilliams v. United States, 394 F.2d 41 (CA8 1968).

Appellant cites another instance where Agent Harker volunterred information derogatory to his reputation which was not objected to at the time. Unless appropriate motion to strike, for a cautionary instruction, or for mistrial are made at the appropriate time the error is not properly preserved for review on appeal. United States v. Carter, 448 F.2d 1245, (CA8 1971); United States v. Cable, 446 F.2d 1007 (CA8 1971).

We, of course, must also review under the plain error rule, Rule 52(b) Fed.R.Crim.P. We have scrutinized the entire record, with particular attention to Agent Harker’s testimony, and the allegation that appellant was prejudiced by the volunteer statements concerning appellant just referred to. Agent Harker was subjected to exhaustive cross-examination —hard blows were struck with respect to his use of informant Mitchell, a man of questionable character, and the procedures followed by Harker in supervising the purchase and handling of the heroin involved. This is as it should be. The charges and penalties were severe. Counsel for appellant is to be commended for his able defense of a difficult case. But we must also weigh the complained of answers in the context of the cross-examination. We are satisfied that the responses were inadvertent and had little effect, if any, upon the jury’s determination of the real issues involved. The trial court granted appellant’s counsel wide latitude in his cross-examination and carefully protected appellant’s rights when an improper response was elicited. Error, if any, was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); United States v. Mancino, 468 F.2d 1350 (CA8 1972).

In summary, the evidence as to appellant’s guilt, particularly with respect to Count I, was overwhelming. Under these circumstances substantial injury to the rights of the accused must appear before a judgment will be reversed for the erroneous admission of evidence. Lowe v. United States, 389 F.2d 108, 112 (CA8 1968).

Affirmed.

HEANEY, Circuit Judge

(dissenting).

I respectfully dissent. In my view, it was error to receive in evidence the “memos” on the loekseal envelopes and to send the “memos” to the jury along with other exhibits. This case is difficult to distinguish from United States v. Brown, 451 F.2d 1231 (CA5 1971), and Sanchez v. United States, 293 F.2d 260 (CA8 1961). Here, as in those cases, it is hard to say that the “memos” did not influence the jury to the defendant’s detriment. Had the only information on the loekseal envelopes been the “chemist’s portion of the exhibit,” the majority’s view would be sustainable. In such event, the exhibits would have properly been admissible under the Business Reeords Act.

Under the circumstances, I feel that the matter should be remanded for a new trial.

I concur with the majority’s disposition of the remaining issues.

APPENDIX I

On Petition for Rehearing en Banc

The Court having considered petition for rehearing en banc filed by counsel for appellant and, being fully advised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied.

      . His conviction was affirmed in an unpublished opinion of this Court. United States v. George William Carter, No. 73-1133 September 18, 1973. Matters raised in appeal differ from those raised here.

      . His direct testimony occupies less than a page of the transcript, total testimony less than 3 pages.

      . The exhibits were filled in shortly after the events occurred.

      . See, United States v. Brown, 451 F.2d 1231 (CA5 1971) ; United States v. Ware, 247 F.2d 698 (CA7 1957) ; See also, United States v. Adams, 385 F.2d 548 (CA2 1967).

      . Precise figures were not given but from the chemist’s testimony a fair inference can be drawn that several similar exhibits are received daily for laboratory analysis.

      . We have held that physical presence of the heroin as an exhibit received in evidence was not essential to establish that the crime charged had been committed. Ware v. United States, 259 F.2d 442, 444 (CA8 1958) ; accord, Blanchard v. United States, supra, 360 F.2d at 320.

      . Compare appendix lines 13 and 5.

      . In cases where custody is not in issue and proper objection is made, the sending of such exhibits to the jury might well be found to be error.

      . Sanchez, although a three-count indictment involved one transaction with marihuana; the hearsay admitted was extensive. It was a thin case. 293 F.2d at 270.

      . United States v. Thompkins, supra.

      . The event complained of occurred during the government’s case in chief. Later appellant testified and on cross-examination admitted he had been convicted of a felony.

      . Agent Harker in response to appellant’s cross-examination regarding informant Mitchell’s felony record and bad reputation referred to Mitchell’s association with appellant Parker and defendant Carter.

      . The cross-examination of Agent Harker occupies over 85 pages of the transcript.

      . Other errors alleged by appellant that (1) the court erred in refusing to suppress reference to the fact that the Bureau Office was across the hallway from the courtroom and (2) the court erred in refusing to admit evidence regarding the reasons for dismissal of a state court charge against informant Mitchell several months after the incident on trial, are devoid of merit and do not warrant discussion. In connection with the latter point see, United States v. Madden, 482 F.2d 850 (CA8 1973).

       For separate statement of BRIGHT and ROSS, Circuit Judges, on petition for rehearing en banc, and for dissent of LAY and HEANEY, Circuit Judges, to denial of r& hearing en banc, see 8 Cir., 491 F.2d 529.


author: STEPHENSON, Circuit Judge. HEANEY, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Chauncey Lee JONES, Appellant.
    No. 73-1194.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Nov. 27, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 27, 1973.

      Michael J. Laughlin, Urbandale, Iowa, for appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal from a jury conviction for distributing heroin challenges evidentiary rulings made by the court. One of the errors alleged involves admission into evidence of the lock seal envelope containing the heroin with notations thereon as to the conclusions of the government chemist. Another was the admission into evidence of a report describing the purchase which is mailed along with the evidence to the laboratory. Similar errors were alleged and discussed in United States v. William Marcellus Parker, 491 F.2d 517 (CA8 filed this date).

Appellant was charged in a one count indictment with distributing heroin on August 23, 1972. The evidence disclosed that on that date Detective Gene A. Crosby of the St. Louis Metropolitan Police Department was in Des Moines, Iowa under an assignment to the Drug Abuse Law Enforcement Program; Crosby accompanied by informant Edward Mitchell was driven by other agents to a pool hall in the vicinity of 11th and University, Des Moines, Iowa where Mitchell introduced Crosby to appellant; immediately thereafter Crosby purchased from appellant eight capsules, later identified as containing heroin, for $125; a few minutes after making the purchase Crosby and Mitchell left the pool hall and were driven back to the Bureau of Narcotics and Dangerous Drugs Office in Des Moines, where the heroin was field tested, placed in a lock seal envelope and mailed to the Bureau laboratory in Chicago where it was analyzed by a chemist who testified as to its heroin content.

The government’s case was presented through testimony of Detective Crosby, other government agents who participated in the trip to the area where the purchase was made and conducted general surveillance of the operation, and the laboratory chemist.

Appellant did not testify in his own behalf, but offered the testimony of witnesses connected with the pool hall who testified that they had not seen appellant in the pool hall during the period in question. Appellant also offered the testimony of character witnesses. Informant Mitchell was called by appellant and testified briefly to the effect that he did not know appellant but on cross-examination conceded he had seen him quite a few times.

The evidence of guilt was strong and the sufficiency thereof in support of the verdict of guilt is not challenged.

Exhibits

Appellant charges that the court erred in admitting into evidence over his hearsay objection the lock seal envelope with the chemist’s notations thereon as to his conclusions with respect to the contents therein. Appellant also claims similar error in the admission into evidence of a report concerning the alleged purchase which accompanied the evidence to the laboratory and the bottom portion of which contains the chemist’s analysis of the substance involved. These exhibits were similar to the exhibits fully described in United States v. William Marcellus Parker, supra, submitted the same date as this cause. They will therefore not be further described herein.

Appellant charges prejudicial error in the admission of these exhibits in the light of this court’s decision in Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961); accord, United States v. Brown, 451 F.2d 1231 (5th Cir. 1971). The thrust of Sanchez has been fully discussed in Parker and the same will not be here repeated.

We find that Sanchez is distinguishable from the instant ease. Here, as in Parker, the exhibits were not received in evidence until the witnesses who made the entries had testified with respect thereto.

We further note that the chain of custody and the handling of the suspected substance was challenged, particularly in the cross-examination of the chemist. The file also indicates that appellant in his motion for new trial below contended that “the chain of evidence was broken and thus, the exhibit (lock seal envelope) was erroneously admitted into evidence.” Under these circumstances it was not an abuse of discretion for the trial court to send the exhibits to the jury.

Prior Transaction

Finally appellant urges that the trial court erred in not granting his motion for mistrial based on the government’s action in introducing testimony concerning an observed prior transaction between appellant and informant Mitchell.

On cross-examination of Detective Crosby appellant developed the fact that Crosby had never been in the pool hall before the transaction in question; had seen appellant before but had only spoken to him once; and was in the pool hall approximately five to ten minutes. On re-direct examination Crosby testified that on August 19, 1972, four days before the disputed sale, he had “observed appellant making a transaction with Mr. Mitchell.” Appellant promptly moved to strike the answer because it was highly irrelevant, incompetent, immaterial and prejudicial. The court responded, “I am not sure that it isn’t proper redirect, but I am going to sustain the motion to strike it. It may go out.” Appellant then requested to be heard out of the presence of the jury and urged that a mistrial be declared, and if not granted, the court should admonish the jury to disregard the answer given by Crosby. The motion for mistrial was denied and the jury admonished in accordance with appellant’s request.

We find no abuse of discretion in denying the motion for mistrial. We will not assume that the jury disregarded the court’s instruction to ignore the answer which was stricken.

It should also be noted that the trial court recognized that the disputed answer might be admissible as proper redirect examination. The transcript reveals that on cross-examination appellant was probing Crosby’s ability to make an accurate identification of appellant. This was consistent with his announced intention to rely on an alibi. Appellant followed this announced defense by later offering witnesses who testified that they had not seen appellant in the pool hall where the purchase was made during the general period involved.

In United States v. Lewis, 423 F.2d 457 (8th Cir. 1970) we held that “Evidence of prior conduct which may constitute a separate crime is admissible and relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one stands to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. (Citing cases) * * * Whether the probative value of such evidence outweighes its potential for prejudice to the defendant generally addresses itself to the discretion of the trial judge (citing cases).”

Here the evidence might have been admitted on the issue of identity. The trial court did not abuse its discretion in striking the evidence and denying a mistrial.

In the final analysis the evidence of guilt was strong. Appellant’s alibi defense was weak. We are satisfied that appellant has failed to demonstrate error requiring reversal.

Affirmed.

HEANEY, Circuit Judge,

(dissenting).

I respectfully dissent for the reasons set forth in my dissent in United States v. William Marcellus Parker, 491 F.2d 517 (CA8, filed this date).

On Petition for Rehearing En Banc

The Court having considered petition for rehearing en banc filed by counsel for appellant, and, being fully advised in the premises, it is ordered that the petition for rehearing en banc be, and it is hereby, denied,

Considering the petition for rehearing en banc as a petition for rehearing, it is ordered that the petition for rehearing also be, and it is hereby, denied.

      . Crosby testified that before departing, informant Mitchell was strip searched because it was not then certain that Crosby could make the buys.

      . The exhibits were filled out shortly after the events described occurred,

      . The Omnibus Hearing Report filed prior to trial indicated the parties “will attempt to stipulate a chain of custody.” Had this been done we would find it difficult to sanction the procedure here followed.

      . The Omnibus Hearing Report indicated “Defendant will rely on an alibi.”

      . Upon the close of the evidence the court included an instruction on appellant’s alibi defense.

      . Since 21 U.S.C. § 841(a) requires that the person be charged with “knowingly or intentionally” violating the Act and the jury was so instructed, the evidence was also possibly admissible, within the discretion of the trial court, on the issue of knowledge and intent. United States v. Brown, 453 F.2d 101, 108-109, & n. 8 (8th Cir. 1971) ; see also, United States v. Simon, 453 F.2d 111, 115 (8th Cir. 1971).

       For separate statement of BRIGHT and ROSS, Circuit Judges, on petition for rehearing en bane and for dissent of LAY and HEANEY, Circuit Judges, to denial of rehearing en banc, see page 529, infra.


author: LAY and HEANEY, Circuit Judges

text:
    UNITED STATES of America, Appellee, v. William Marcellus PARKER, Appellant. UNITED STATES of America, Appellee, v. Chauncey Lee JONES, Appellant.
    Nos. 73-1138, 73-1194.
    United States Court of Appeals, Eighth Circuit.
    Jan. 3, 1974.
    Certiorari Denied May 13, 1974.
    See 94 S.Ct. 2396.
   On Petition for Rehearing En Banc

BRIGHT and ROSS, Circuit Judges, separate statement of views on petition for rehearing.

We vote against a rehearing en banc because the circumstances in these cases indicate that the errors in admitting the questioned exhibits were nonprejudicial.

Judge Vogel, writing Sanchez v. United States, 293 F.2d 260, 269 (8th Cir. 1961), aptly states the law that it is error and ordinarily reversible error to receive an exhibit containing “a neat condensation of the government’s whole case against the defendant.” (Emphasis in original.) Id., at 269, quoting from United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957). In Sanchez, the prosecution offered a weak case and in addition to improperly introducing the questioned exhibits, also presented hearsay evidence, to which objection had been taken. This court granted a new trial. Here, the government presented strong cases, apparently free of serious trial error except for admitting into evidence and sending to the jury the exhibits which in part recited the alleged facts of each defendant’s sale of drugs to a government informant. That recitation constituted hearsay and the trial court in each ease should have ordered the references to details of the sales transaction removed from the exhibits.

Prosecutors who insist upon introducing a written narrative summary of the facts of sale into evidence in the trial of a narcotics case create a needless risk of injecting prejudicial error into the proceedings.

LAY and HEANEY, Circuit Judges

(dissenting).

We dissent from the denial of a rehearing en banc. The government’s attempt to use a similar report in the form of a written summary of its proof has been ruled improper by every circuit which has been faced with the question, including our own. See Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961); United States v. Brown, 451 F.2d 1231 (5th Cir. 1971); United States v. Ware, 247 F.2d 698 (7th Cir. 1957). Cf. United States v. Adams, 385 F.2d 548 (2d Cir. 1967).

The reasoning that the report is simply cumulative has been rejected by these same courts. As the Fifth Circuit in United States v. Brown, 451 F.2d 1231, 1234 (5th Cir. 1971), observed:

We conclude, as did the Court of Appeals of the Seventh Circuit, that even though “the persons who made the memoranda were present at the trial and were tendered for cross-examination (and) that the memoranda were merely cumulative of other evidence properly in the record and that there was overwhelming evidence properly received of the defendant’s guilt”, we cannot say that the error did not influence the jury, to the defendant’s detriment, or even that it had but very slight effect.

The majority opinion distinguishes Sanchez v. United States, 293 F.2d 260 (8th Cir. 1961), on the ground that in Sanchez custody and identification were not in issue, whereas Parker and Jones challenged the government’s chain of custody and identification. The majority here indicates that where “custody is not in issue and proper objection is made, the sending of such exhibits to the jury might well be found to be error.” Thus, the defendant who attempts to assert objection to a possibly faulty chain of custody or misidentification must risk that in so doing he subjects himself to prejudicial hearsay containing a condensation of the government’s case. As stated by the Seventh Circuit, “[t]he government’s witnesses in effect accompanied the jury into the jury room.” United States v. Ware, 247 F.2d 698, 700 (7th Cir. 1957).

In cases where such hearsay is contained in the report, it would be a simple procedure to excise the prejudicial portion before giving it to the jury. Hopefully, our disagreement will point up to the government that if such a prejudicial report is in the future offered into evidence it may face a possible reversal, whether custody is challenged or not.

      . It is significant that two members of the Sanchez court, Judge Vogel and Judge Gardiner, felt the error committed was so prejudicial that it constituted plain error. As Judge Van Costerbout pointed out in his concurring opinion, no objection was made in the trial court to the exhibits.