author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene GAITHER, a/k/a Shag, Defendant-Appellant.
    No. 74-2197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1974.
    Howard L. Stopeck, Atlanta, Ga. (Court-appointed), for defendant-appellant.
    John W. Stokes, U. S. Atty., J. Owen Forrester, J. Robert Cooper, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appel-lee.
    Before COLEMAN, DYER and RONEY, Circuit Judges:

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

   PER CURIAM:

Convicted of heroin distribution, the defendant brought a § 2255 ■ attack on his six-year sentence on the ground that the district judge considered a defective 1951 Dyer Act conviction. The judge vacated the six-year sentence, stated that he would not “consider the prior conviction in assessing sentence in any way,” but then reimposed another six-year sentence.

Appellant attacks this resentencing process as being unconstitutional, arguing that it is inherently impossible for any court to disclaim consideration of a prior unconstitutional conviction in assessing sentence while still possessing knowledge thereof. He contends he is entitled to be resentenced by an appropriate court which does not possess any knowledge of this prior unconstitutional conviction. We disagree.

The trial judge clearly stated the reason the six-year sentence was appropriate without regard to the 1951 conviction.

“I have as is obvious simply reimposed the sentence which I imposed prior. ... I want to make a statement that the reason I’m doing this is that my sentence before and my sentence now is simply based upon my conviction that you, a nondrug user, were using and pushing drugs for gain, which had a deleterious effect upon the others, and this was not a mere street level but the defendant was a second level distributor, and that was the basis of my judgment of conviction before and it remains the basis of my judgment of conviction.”

In fact, a reading of the transcript of the original sentencing leaves some doubt that the district court gave much consideration to the 1951 conviction in the first instance. The defendant’s counsel argued “although Mr. Gaither has had a few prior brushes with the law that there is nothing of any consequence for almost the past 20 years.” The six-year sentence for a narcotics crime carrying a 15 year maximum does not indicate that the court considered anything but the reasons articulated in resentencing.

Out of an apparent abundance of caution, however, the district judge vacated the sentence and followed the guidelines set forth by this Court in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972). See Haynie v. United States, 474 F.2d 1051 (5th Cir. 1973); Russo v. United States, 470 F.2d 1357 (5th Cir. 1972).

Since the district court did not consider the 1951 conviction on resentencing, the alleged constitutional infirmity of that conviction is accepted as accurate and we need not review the arguments made to us on that issue.

Affirmed.


source: Caselaw Access Project

author: VAN OOSTERHOUT, Senior Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. John Anthony ROBERTS, Appellant.
    No. 74-1485.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Oct. 2, 1974.

      Robert E. Heisler, Clayton, Mo., for appellant.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

Defendant Roberts has taken this timely appeal from a conviction on Count I of an indictment charging he willfully and knowingly possessed a sawed-off shotgun which had not been registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d), and § 5871.

The evidence in the case before us is strong and convincing that defendant willfully and knowingly had in his possession a sawed-off shotgun with respect to which registration is required and that such gun had not been registered.

Defendant in another count of the indictment was charged with receiving a firearm which had been in commerce after having been convicted of a felony, in violation of 18 U.S.C. App. § 1202(a)(1). Defendant’s motion to sever the counts for trial, .based on the ground that the evidence of his conviction of a. felony would prevent a fair trial on the § 5861(d) charge was sustained. After defendant was tried separately on the § 5861(d) charge, the § 1202(a) (1) charge was dismissed.

As a basis for reversal of the conviction defendant asserts the following points:

I. The conviction of the defendant, a previously convicted felon, under 26 U. S.C. § 5861(d), for the possession of an unregistered firearm is a violation of his fifth amendment protection against self-incrimination since an attempt to register the firearm would be an admission of guilt of violating 18 U.S.C. App. § 1202(a)(1) which makes it a crime for a felon to possess a firearm.

II. Error in admitting in evidence a shotgun and three shotgun shells where the chain of custody has been severed.

We reject such contentions and affirm' for the reasons hereinafter set out.

I.

The defendant in the trial court moved to dismiss Count I of the indictment on the ground that § 5861(d) was unconstitutional as applied to him in that it violated his fifth amendment protection against self-incrimination. Such motion was overruled. On appeal he persists in such contention. He relies upon Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), United States v. Benner, 417 F.2d 421 (9th Cir. 1969), and other cases. The constitutional attack is completely undercut by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

In Freed, the Supreme Court calls attention to the substantial amendments made to Chapter 53 of 26 U.S.C. subsequent to Haynes with a view of eliminating the unconstitutional defects found in Haynes. The Court determined that the amended act does not violate the self-incrimination clause of the fifth amendment and details the reasons for reaching such conclusion.

Defendant urges that the record shows that he legally purchased the gun here in controversy in an unaltered condition and hence that he must be the person who converted the gun from a shotgun to a sawed-off shotgun and is the maker of the gun within the meaning of the registration statutes. Such fact is immaterial. Defendant is not charged as the maker of the gun but as a possessor. With respect to this situation, Freed states:

At the time of Haynes any possessor of a weapon included in the Act was compelled to disclose the fact of his possession by registration at any time he had acquired possession, a provision which we held meant that a possessor must furnish potentially incriminating information which the Federal Government made available to state, local, and other federal officials. Id., [390 U.S.] at 95-100, [88 S.Ct., at 729-732]. Under the present Act only possessors who lawfully make, manufacture, or import firearms can and must register them; the transferee does not and cannot register. It is, however, unlawful for any person “to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” 401 U.S. 601, 603-604, 91 S.Ct. 1112, 1115, 28 L.Ed.2d 356.

See 26 U.S.C. § 5861(d).

Defendant as possessor under the statute was not permitted to register the gun and. hence no issue of compulsory self-incrimination is presented.

More significantly, the Freed Court holds:

The transferor — not the transferee —makes any incriminating statements. True, the transferee, if he wants the firearm, must cooperate to the extent of supplying fingerprints and photograph. But the information he supplies makes him the lawful, not the unlawful possessor of the firearm. Indeed, the only transferees who may lawfully receive a firearm are those who have not committed crimes in the past. The argument, however, is that furnishing the photograph and fingerprints will incriminate the transferee in the future. But the claimant is not confronted by “substantial and ‘real’ ” but merely “trifling or imaginary hazards of incrimination” — first by reason of the statutory barrier against use in a prosecution for prior or concurrent offenses, and second by reason of the unavailability of the registration data, as a matter of administration, to local, state, and other federal agencies. Marchetti v. United States, supra, [390 U.S. 39], at 53-54, 88 S.Ct. [697], at 705 [19 L.Ed.2d 889], Cf. Minor v. United States, 396 U.S. 87, 94, 90 S.Ct. 284, 287, 24 L.Ed.2d 283. Since the state and other federal agencies never see the information, he is left in the same position as if he had not given it, but “had claimed his privilege in the absence of a . grant of immunity.” Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1610, 12 L.Ed.2d 678. This, combined with the protection against use to prove prior or concurrent offenses, satisfies the Fifth Amendment requirements respecting self-incrimination. [401 U.S. 601, 606, 91 S.Ct. 1112, 1116, 28 L.Ed.2d 356.]

Defendant points out that Freed did not involve a gun possessor who had been previously convicted of a felony and by reason thereof, any registration would require defendant to incriminate himself of a violation of 18 U.S.C. App. § 1202(a)(1), proscribing possession of a firearm by a convicted felon. The factual distinction pointed out exists but is not significant.

In United States v. Bright, 471 F.2d 723 (5th Cir. 1973), the court considered and rejected the fifth amendment attack made on § 5861(d) by the possessor of a gun who was a convicted felon. The court, after holding that § 5841(b) does not require or authorize registration of a gun by its possessor who is not a manufacturer or maker, held that a mere possessor is not required to give any information by § 5861(d). The court then went on to hold:

The same result would follow even if Bright was among those persons required by Section 5841(b) to register the gun in their own names (i. e., manufacturer, maker, or importer). Another amendment to the National Firearms Act spurred by the decision in Haynes, supra, prohibits the direct or indirect use of any information obtained from, firearm registration as evidence against the registrant “in a criminal proceeding” with respect to a violation of law that occurred prior to or concurrently with the registration. 26 U.S.C. § 5848. 471 F.2d at 726.

We agree with such holding and reject defendant’s constitutional attack on § 5861(d).

II.

The court admitted in evidence the sawed-off shotgun and three shotgun shells seized from the defendant at the time of his arrest over defendant’s objection that a proper chain of custody had not been established.

In United States v. Brown, 482 F.2d 1226, 1228 (8th Cir. 1973), we held, citing supporting authority, as follows:

The criteria governing admission of exhibits into evidence is that there must be a showing that the physical exhibit being offered is in substantially the same condition as when the crime was committed. That determination is to be made by the trial judge, not the jury, and may not be overturned except for a clear abuse of discretion. Factors to be considered in making the determination of admissibility include the nature of the article, the circumstances surrounding its preservation and custody, and the likelihood of others tampering with it. If upon the consideration of such factors, the trial judge is satisfied that in reasonable probability the article has not been changed in any important respect, he may permit its introduction in evidence.

The gun and shells which were offered and received in evidence were seized by the police at the time of the defendant’s arrest about 9 p.m. on January 19, 1974. The gun was initialed by two police officers and its serial number noted. One shotgun shell was taken from the seized gun and two similar shells were taken from the defendant at the time of the arrest. They were fully described by the officers and put in a sealed evidence envelope. The gun and the shells were delivered to the police laboratory about 9 a.m. on January 20, 1974.

The police officers took possession of the gun and shells at the time of seizure. They went off duty at 2 a.m. on January 20. There is some uncertainty as to the custody of the exhibits between 2 a.m. and 9 a.m. on January 20. The officers testified that the gun at the time it was offered in evidence was in exactly the same condition as it was when seized and some bystanders testified that the gun looked similar to the gun seized. No evidence to support a finding of any material change in the condition of the gun or the shells was introduced. The nature of the offered exhibits in controversy was such that the likelihood of tampering with them was remote. The court was warranted in crediting the testimony that the condition of the gun and the shells was the same as at the time of the seizure. The court did not abuse its discretion in receiving the gun and the shells in evidence.

The judgment of conviction is affirmed.

      . Section 5861(d) provides:
      It shall be unlawful for any person—
      * ❖ Ms * Ms
      (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record; * * *

      . Section 5871 fixes the penalties for violation of Chapter 53 offenses, including violation of § 5861(d).


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Harold Dean McGRAW, Appellant.
    No. 74-1346.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 11, 1974.
    Decided Oct. 2, 1974.
    Robert E. Heisler, Hayes & Heisler, Clayton, Mo., for appellant.
    Michael W. Reap, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

This is a timely appeal by defendant McGraw from his conviction and resulting sentence on an indictment charging that he willfully and knowingly possessed a sawed-off shotgun which had not been registered to him in the National Firearms Registration and Trans-, fer Record, in violation of 26 U.S.C. § 5861(d).'

The only point raised upon appeal is that 26 U.S.C. § 5861(d), as applied to him as a previously convicted felon, is unconstitutional and that it violates his fifth amendment protection against self-incrimination because any attempt to register the firearm would be an admission of guilt of violation of 18 U.S. C. App. § 1202(a)(1) which makes it a crime for a convicted felon to possess a firearm.

This case was consolidated for argument with United States v. Roberts, 503 F.2d 453. Opinion has been filed in that case on this date. Roberts and McGraw were represented by the same counsel. The constitutional attack here made is identical to that made in Roberts. For the reasons stated in Roberts, we reject defendant’s constitutional attack upon § 5861(d) and affirm the conviction.


text:
    Albert W. MORRIS, Appellant, v. UNITED STATES of America, Appellee. William W. WEIRBACH, Jr., a/k/a Richard Paul Conner, Appellant, v. UNITED STATES of America, Appellee.
    Nos. 74-1095, 74-1179
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 31, 1974.
    Rehearing Denied Dec. 3, 1974.

      Willis T. Taylor, Lubbock, Tex. (Court-appointed), for appellants.
    Robert B. Wilson, Asst. U. S. Atty., Lubbock, Tex., for appellee.
    Before COLEMAN, DYER and RO- , NEY, Circuit Judges.

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

   PER CURIAM:

This is an appeal from the district court’s denial of post-conviction relief under 28 U.S.C.A.- § 2255 following appellants’ jury conviction for possession of a chattel stolen while in interstate commerce, in violation of 18 U.S.C.A. § 659. Timely notices of appeal from these verdicts were filed, but the appeals were subsequently dismissed on appellants’ motions.

Appellants then filed motions to vacate sentence under 28 U.S.C.A. § 2255, raising, a number of alleged errors.. Their pro se pleadings, although not directly asserting involuntary abandonment of the right to direct appeal, contained allegations that: (1) the appellants had been px-evented from filing motions in the local jail where they were incarcerated pending appeal, and had dismissed their appeals so they might be transferred to federal facilities where they could attack their convictions .unhampered; and (2) the appellants were unwilling to proceed with trial counsel but were under the impression that they would have to continue to be represented by the same attorney or abandon their appeals. The district court consolidated appellants’ petitions because they arose from common transactions and denied them without hearing on the gx’ound that post-conviction relief was bax-red by the appellants’ “conscious election” to fox-ego direct appeal. We x-everse and remand for an evidentiax-y hearing on the issue of whether appellants’ x-ight to appeal was voluntarily and understandingly waived.

A direct appeal from a criminal conviction is a matter of right, and waiver or abandonment of this right will not be assumed unless the facts clearly support such an assumption. Chapman v. United States, 5 Cir. 1972, 469 F.2d 634, 637; McKinney v. United States, 5 Cir. 1968, 403 F.2d 57, 59. In the absence of any evidence that normal appellate procedures were bypassed in order to secure tactical advantage, see e. g., Larson v. United States, 5 Cir. 1960, 275 F.2d 673, appellants’ factual allegations taken together, if true, raise a bona fide issue as to whether their direct appeals were knowingly, understandingly, and voluntarily abandoned. In these circumstances, an evidentiary hearing must be held to resolve the issue of waiver. Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148, 150.

Although this ease raises the question of waiver in a somewhat unorthodox context in that appellants’ petitions cannot be fairly read as being bottomed on the denial of the right to appeal, we nevertheless treat the issue of waiver as being incorporated into the petition in the absence of evidence that the right to appeal was effectively abandoned, bearing in mind that the court below relied on waiver to deny consideration of the appellants’ claims. Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929, 931.

Reversed and remanded.

      . Constitutional claims raised on a § 2255 motion are, of course, only foreclosed when it appears that' the petitioner has “deliberately bypassed” his appellate remedies. See Kaufman v. United States, 1969, 394 U.S. 217, 223 n. 7, 89 S.Ct. 1068, 1072, 22 L.Ed.2d 227; Montgomery v. Hopper, 5 Cir. 1973, 488 F.2d 877.


author: McWILLIAMS, Circuit Judge.

text:
    ALBERTSON’S, INC., a Delaware corporation, et al., Plaintiffs-Appellants. v. The AMALGAMATED SUGAR COMPANY, a Utah corporation, and Utah-Idaho Sugar Company, a Utah corporation, Defendants-Appellees.
    No. 73-1894.
    United States Court of Appeals, Tenth Circuit.
    Argued July 10, 1974.
    Decided Oct. 2, 1974.

      Dennis McCarthy, Salt Lake City, Utah (Richard W. Giauque and Ricardo B. Ferrari, Salt Lake City, Utah, on the brief), for plaintiffs-appellants.
    R. F. Outeault, Jr., Los Angeles, Cal. (Ray, Quinney & Nebeker, Marvin J. Bertoch and James W. Freed, Salt Lake City, Utah, Allan M. Lipman, Jr.; Law-ler, Felix & Hall, Marcus Mattson and Robert P. Mallory, Los Angeles, Cal., on the brief), for defendant-appellee The Amalgamated Sugar Co.
    Francis R. Kirkham, San Francisco, Cal. (William E. Mussman and James F. Kirkham, San Francisco, Cal., on the brief), for defendant-appellee Utah-Idaho Sugar Co.
    Before BREITENSTEIN, Mc-WILLIAMS and BARRETT, Circuit Judges.
   McWILLIAMS, Circuit Judge.

This is an appeal pursuant to 28 U.S. C. § 1292(b) of an interlocutory order of the trial court granting in part, and denying in part, the plaintiffs’ motion that their civil antitrust action be maintained as a class action. 62 F.R.D. 43. Fed.R.Civ.P. 23. The action was instituted in the United States District Court for the District of Utah by Al-bertson's Inc., a retail grocery chain, Spudnut Industries, Inc., a manufacturer of pastries and confections, and Fisher Baking Company, Inc., a now defunct food processor, on behalf of themselves, and all persons and concerns similarly situated. The two named defendants are the Amalgamated Sugar Company, a Utah corporation, and the Utah-Idaho Sugar Company, also a Utah corporation, each of which has its principal place of business in Utah and which maintain sugar beet processing plants in Utah, Idaho, Washington and Oregon. The three named plaintiffs were purchasers of beet sugar from the defendants, and the main thrust of their complaint is that in setting the price of their beet sugar the defendants have violated federal and state antitrust laws.

The complaint contains three counts. Count one alleges that the defendants have agreed, combined, and conspired to fix, raise, maintain and stabilize the price of processed beet sugar in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. Count one additionally alleges that the defendants have attempted to monopolize trade and commerce in beet sugar in violation of Section 2 of the Sherman Antitrust Act, 15 U.S.C. § 2. As to these particular claims, the trial court granted the plaintiffs’ motion that such be maintained as class actions on behalf of all direct purchasers of beet sugar from the defendants within what is described as the “complaint area,” about which more will be said later. This ruling is not involved in the present proceeding.

Count one also contains an additional claim that the defendants have engaged in an unlawful tying arrangement in violation of the aforesaid Sections 1 and 2 of the Sherman Antitrust Act. The trial court denied plaintiffs’ motion that this particular claim be maintained as a class action, and in this interlocutory appeal the plaintiffs challenge the propriety of such order.

Count two alleges that the defendants through their use of a distant basing point price system are guilty of unlawful price discrimination in violation of Section 2(a) of the Clayton Antitrust Act, as amended by the Robinson-Pat-man Act, 15 U.S.C. '§ 13(a). Count three alleges that the defendants have unlawfully combined and conspired to control the price of beet sugar and charges for its transportation in violation of the Utah Constitution and local Utah antitrust laws. The trial court denied plaintiffs’ request that counts two and three proceed as class actions, and plaintiffs also challenge the propriety of those orders in this appeal.

A two-day evidentiary hearing was held in connection with the plaintiffs’ motion that their entire case proceed as a class action. Though the trial court probably did not make “findings of fact,” as that term is used in Fed.R.Civ. P. 52, nonetheless in its carefully prepared memorandum consisting of some twenty-six typewritten pages it did “give certain facts” as thus developed by the parties at the aforesaid evidentiary hearing. Thus the trial court did not resolve this matter in a factual void and the record as thus made, coupled with the trial court’s memorandum order granting in part, and denying in part, the plaintiffs’ motion, gives insight into the trial court’s reasoning, save and except as to Count three in the complaint alleging violation of Utah laws. We will reserve comment on that part of the trial court’s order denying the request that Count three proceed as a class action, and will first consider the propriety of the trial court’s order that the claims based on tying arrangement and price discrimination should not be maintained as class actions.

In denying plaintiffs’ request that their claims based on a tying arrangement and price discrimination proceed as class actions, the trial court concluded that there was a conflict of interest within the class and a lack of commonality of interest as required by Fed.R. Civ.P. 23(a)(3) and (4) and (b)(3). Before considering the conflict of interest issue, we, like the trial court, would refer to the evidence before the trial court at the time of its ruling.

The so-called “complaint area” with which we are here concerned consists of the states of Utah, Idaho, Washington, western Wyoming, and all of Oregon, except for the extreme southern portion thereof. The plaintiffs are currently engaged in their respective business enterprises within that area, except for the one plaintiff, Fisher Baking Industries, Inc., which has now ceased operations, but was operating during the complaint period, which was January 1, 1961, to December 31, 1970. One defendant, Amalgamated Sugar, maintains three sugar beet processing plants in Idaho and one in Oregon, and the other defendant, Utah-Idaho, maintains two processing plants in Washington, and one such plant in both Idaho and Utah.

Albertson’s purchases beet sugar from the defendants for purposes of resale, and also for use in the preparation of baking goods, ice creams, and the like, which in turn are sold to the public. The other two named plaintiffs purchased beet sugar from the defendants for use in the preparation of bakery goods, confections, and the like. The members of the class which the named plaintiffs seek to represent are all other direct purchasers for purpose of resale of beet sugar from the defendants in the complaint area, including, according to the defendants, hundreds of grocers, bottlers, confectioners, bakeries, dairies, canners, and others situate throughout the complaint area, who have purchased sugar from the defendants at any time during the complaint period, which is from 1961 through 1970. As indicated, the gravamen of the complaint relates to the manner in which the defendants set the price for their sugar. Let us look at the manner in which the defendants fix the price of their beet sugar in the complaint area.

Sugar, whether it be cane or beet, is a fungible goods, with the ultimate product being chemically identical. Hence, if there were a retail price differential between cane and beet sugar, the buying public would generally purchase the lower price sugar, be it beet or cane, since there is little real difference between the two. Because of this identity, the pricing policy followed by the defendants is to meet the price for which cane sugar sells in any given locality, and the defendants will quickly follow any increase or decrease in the price of cane sugar. The defendants, according to testimony, cannot profitably operate if they undersell the charge made for cane sugar. On the other hand, the defendants never attempt to charge more than the figure for which cane sugar is selling in a particular market, since, as indicated, the buying public would purchase the sugar, be it cane or beet, selling for the lower price, sugar being an essentially fungible goods. It is for these reasons that the defendants attempt to tie their pricing into that of the cane sugar processors. The cane sugar processors were in the continental United States market before the beet sugar processors, and it is perhaps for this reason, i. e., a custom that has developed in the trade, that the beet sugar processors gear their pricing to that of the cane sugar processors, rather than vice versa. In any event, that’s the way it is.

The price which the defendants charge for sales of processed beet sugar to purchasers within the complaint area is made up of two components: (1) The base price charged by California and Hawaii Sugar Company, a cane sugar refiner found by the trial court to be a price leader, FOB its Crockett, California, refinery; plus (2) a “prepay” equal to the cost of shipping the cane sugar from the Crockett refinery to the particular price zone within the complaint area in which the purchaser is located, the complaint area being itself subdivided into some ten to twelve price zones. In thus setting their price, the defendants will meet the price of C & H.

As indicated, the main thrust of the plaintiffs’ action is that the manner in which the defendants set the price of their beet sugar within the complaint area is violative of federal and state antitrust laws. In this regard it is the contention of the plaintiffs that throughout the entire complaint area the “prepay” component of the price charged by the defendants for their beet sugar almost invariably exceeds the actual freight charge for the transportation of the beet sugar from the defendants’ processing plants to the purchaser in question. This excess is referred to by the plaintiffs as “phantom freight.”

The defendants, on the other hand, contend that phantom freight is but a play upon’ words, and that no correlation between prepay and actual freight charges was ever intended. The defendants, it is said, are merely trying to meet the sale price for cane sugar throughout the entire complaint area and that in computing their price in their effort to meet cane sugar competition, the defendants have simply adopted a formula which is based on the C & H FOB price on cane sugar at the Crockett refinery, plus the cost of shipping such cane sugar from the Crockett refinery to the particular location of the purchaser. Viewed in this light, assert the defendants, the price charged purchasers by the defendants is the delivered price, and accordingly the purchaser is not charged anything, as such, for freight.

The trial court denied plaintiffs’ request that their claims based on tying arrangement and price discrimination be maintained as class actions on the ground that there was not a commonality of interest within the class, and that in fact there was a conflict of interest among the class members. The trial court was of the view, which is not challenged on appeal, that if the plaintiffs be ultimately successful on their claims based on tying arrangement and price discrimination, the defendants would necessarily be enjoined from pricing their beet sugar on the base point pricing method. This would mean that the defendants would have to devise a new and different pricing system which would give recognition to the actual freight charges involved. All of which would mean that the purchaser in a particular price zone within the complaint area nearer to one of the defendants’ plants would pay a less price for beet sugar than would the purchaser further removed, though still within the same price zone in the complaint area, from the defendants’ processing plant. The trial court concluded that such indicated a conflict of interest within the class, a conflict not only as to the price to be paid for beet sugar, but also a conflict which would be disruptive of the competitive position of the various members of the class, all of whom, as indicated, were direct purchasers, who, in turn, resold the sugar, in one form or another, to the consuming public. We agree with the trial court’s analysis of the matter.

For an action to be maintained as a class action, a plaintiff must satisfy the four requirements of Rule 23(a) and any one of the three subdivisions of Rule 23(b). Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973). The burden is upon the party requesting a class action to show that the several requirements of Fed.R.Civ.P. 23 are satisfied. Rossin v. Southern Union Gas Company, 472 F.2d 707 (10th Cir. 1973). The trial court, as above indicated, was not satisfied that the requirements of the aforesaid rule had been satisfied, particularly the requirements relating to commonality of interest among the class. The trial court perceived that if the plaintiffs succeeded in showing an unlawful tying arrangement or price discrimination, its “final order would enjoin all ‘objectionable’ contracts and thereby effectively end base point pricing.” The trial court recognized that in all probability any substitute pricing plan devised by the defendants would not result in any purchaser paying more for beet sugar than he was presently paying, though some would be paying less than others, depending upon their proximity to defendants’ processing plants. Because of such disparity, the trial court concluded that there was a conflict of interest among class members as concerns their competitive relationship, one with the others. In this connection the trial court commented as follows:

Even though the price of sugar will not be raised as a result of this litigation, conflict of interest among the class members is still present. The diversity of interest stems from the disruption of competitive relationships throughout the Intermountain Northwest region. The aim of the tying agreement allegation is to reverse the present situation where customers closer to the refineries pay more for sugar than the more distant purchasers. It is evident that, if this injustice is “rectified,” the competitive position of a distant customer will be substantially changed vis-a-vis his more local competitor. The defendants introduced an exhibit which typifies the potential alteration in the current competitive relationships among class members regardless of what new basic price is charged. To take the most drastic change as shown by the chart, as between purchasers at Salem, Oregon, vis-a-vis a buyer at Yakima, Washington, the net change is 69 cents per hundred-weight (per bag).

It is axiomatic that a plaintiff cannot maintain a class action when his interests are antagonistic to, or in conflict with, the interests of the persons he would seek to represent. Hansberry v. Lee, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Schy v. Susquehanna Corporation, 419 F.2d 1112 (7th Cir. 1970). See also 7 Wright and Miller, Federal Practice and Procedure § 1768. And this requirement of adequate representation must be stringently applied because members of the class are bound unless they affirmatively exercise their option to be excluded, even though they may not be actually aware of the proceedings. Alameda Oil Company v. Ideal Basic Industries, Inc., 326 F.Supp. 98 (D.C.Colo.1971).

We recognize that the mere fact that the various members of the class will benefit unevenly is no such conflict as will preclude the maintenance of a class action. However, the instant case goes beyond a mere disparity in benefit. The named plaintiffs and the class they would represent are themselves competitors, and we agree with the trial court that if the defendants’ present system of pricing is outlawed, “the competitive position of a distant competitor will be substantially changed vis-a-vis his more local competitor.” The effects of the abrogation of the defendants’ base point pricing method would indeed have far-reaching and diverse impact on the defendants’ hundreds of purchasers for purposes of resale of beet sugar in the complaint area. In sum, our study of the matter leads us to conclude that the trial court did not abuse its discretion or otherwise err in denying plaintiffs’ request that their claims based on an alleged tying arrangement and price discrimination be maintained as class actions on the grounds of lack of commonality of interest among the class members. We find ourselves in general agreement with the trial court’s line of reasoning, and the record is supportive of such reasoning.

There is no suggestion here that the action of the trial court in refusing to permit plaintiffs’ claims based on tying arrangement and price discrimination to proceed as class actions is inconsistent with its ruling that plaintiffs’ claims based on conspiracy and attempt to monopolize should proceed as class actions. In this regard the trial court noted that as concerns the claims based on conspiracy and monopoly, any relief which might ultimately be granted “would not go to the continuation of base point pricing.” Hence, there would be no potential conflict of interest, since the defendants’ system of pricing would continue as in the past. On the other hand, however, if the plaintiffs are successful in their claims based on tying arrangement or price discrimination, the defendants’ pricing of their beet sugar on the base point pricing method would be ended, thereby giving rise to the conflict of interest found by the trial court.

We are in somewhat of a quandary as concerns the trial court’s denial of the plaintiffs’ request that their third count (the one based on violation of Utah antitrust law) be maintained as a class action. The trial court denied this particular request, without comment. As indicated, the trial court prepared a twenty-six page memorandum in explanation of its other rulings on plaintiffs’ class action request, but made no explanation as to why this particular claim should not proceed as a class action.

Plaintiffs argue here that since the trial court granted their 'request that their claims based on federal law relating to unlawful conspiracy and monopoly be maintained as a class action, it would follow that similar claims based on state law should also proceed as a class action. Contrarily, the defendants offer several possible explanations which would support the action of the trial court denying plaintiffs’ request that Count three be maintained as a class action. Our problem is that we simply do not know the basis for the action of the trial court in this regard, and in such circumstance it becomes difficult to review the propriety of the action thus taken. Accordingly, we are inclined to vacate that part of the order denying class action treatment for Count three, and remand the matter with direction that the trial court reconsider this phase of the order only. Upon reconsideration, the trial court should then in some wise articulate the basis for its ultimate determination as to whether Count three should proceed as a class action. Whatever its ultimate decision in this connection may be, we perceive no good reason why such should be the subject of any subsequent interlocutory appeal. Count three is not the core of this case.

Like the trial court, we would emphasize the “limited scope” of the trial court’s inquiry, and the equally limited scope of our own review of the matter. Except for Count three, the sole issue is the propriety of the trial court’s determination that the claims based on tying arrangement and price discrimination should not be maintained as class actions. We have concluded that, based on the record then before it, the trial court did not err in its determination that they should not so proceed because of a conflict of interest within the class. That, in our view, ends our present review, and we need not here consider other matters sought by the plaintiffs to be reviewed at this stage of the ease. They will have to await the trial of the case on the merits. Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973), at page 339, plus footnote 7.

The order of the trial court is affirmed, except as to that portion of the order relating to Count three. That portion of the order is vacated, and the matter is remanded for further consideration by the trial court, consonant with the views herein expressed.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Christine Sieko MASTBERG, Defendant-Appellant.
    No. 73-2581.
    United States Court of Appeals, Ninth Circuit.
    Sept. 19, 1974.

      Michael E. Withey, of Smith, Kaplan & Withey, Seattle, Wash., for defendant-appellant.
    J. Ronald Sim, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before BROWNING and WALLACE, Circuit Judges, and WILLIAMS, District Judge

       Honorable Spencer Williams, United States District Judge, San Francisco, California, sitting by designation.

   OPINION

WALLACE, Circuit Judge:

Mastberg appeals her conviction of unlawful importation of heroin in violation of 21 U.S.C. §§ 952(a) and 960(b) (1), charging that evidence derived from a body-cavity search should have been suppressed. We affirm.

Mastberg and two male companions entered the United States from Canada approximately 3:00 a. m. at the Blaine, Washington, port of entry. Customs inspector Hassebrock saw open chocolate milk cartons in the vehicle and, upon questioning the occupants of the car, noticed that Mastberg and the driver were nervous and restless. Hassebrock requested the assistance of another inspector and asked the occupants to get out of the car. After observing needle marks on the arms of all three individuals, the inspectors escorted them to the customs building where they searched the trio’s clothing. Hassebrock’s search of Mastberg’s purse revealed a plastic bag which contained some balloons. A strip search of the two males revealed nothing. A matron accompanied Mast-berg to a search room and conducted a strip search. Mastberg removed her clothing and told the matron that she was wearing a tampon because she was menstruating. The matron testified that she saw a double or looped string protruding from Mastberg’s vagina instead of one string which the matron said was normal for a tampon. After the matron asked Mastberg several times to remove the tampon, she finally told her that if she did not remove it a medical doctor would be called to do so. Reluctantly admitting that she had something other than a tampon in her vagina, Mastberg removed a prophylactic with three balloons inside, each containing heroin.

Mastberg asserts that there were no objective, articulable facts to establish a real suspicion justifying a strip or skin search. In addition, she argues that the search was in fact a body-cavity search and that even if there was a real suspicion for a strip search, there was no clear indication that she was carrying contraband and thus the body^cavity search was illegal.

I. THE STRIP SEARCH

The first phase of the matron’s search was a strip or skin search. In order for the search to be valid, the government agent must have a real suspicion prior to the suspect’s disrobing.

“Real suspicion” justifying the initiation of a strip search is subjective suspicion supported by objective, ar-ticulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross our border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched; otherwise, the scope of the search is not related to the justification for its initiation, as it must be to meet the reasonableness standard of the Fourth Amendment.

United States v. Guadalupe-Garza, 421 F.2d 876, 879 (9th Cir. 1970). The following objective, articulable facts are before us to establish “real suspicion” justifying the strip search:

1. Mastberg and the driver of the car appeared “nervous” and “restless.”

2. The customs inspector observed open chocolate milk cartons in the car.

3. All three of the suspects had needle marks on their arms.

4. The inspector found balloons in Mastberg’s purse.

5. The two male companions were strip-searched and no contraband was found.

Mastberg, citing three of our prior cases, United States v. Holtz, 479 F.2d 89 (9th Cir. 1973), United States v. Summerfield, 421 F.2d 684 (9th Cir. 1970), and United States v. Shields, 453 F.2d 1235 (9th Cir.), cert. denied, 406 U.S. 910 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972) asserts that in each one there was some objective, unambiguous evidence of present drug possession. Comparing these cases to the facts of the instant case, Mastberg argues that there were not enough objective, articulable facts to support a real suspicion of her smuggling. Mastberg claims that the suspicious factors in the present case when compared with Holtz were minimal. In Holtz, two male companions crossed the border accompanied by Holtz. At the border crossing, an inspector noticed that the three were “unkempt, anxious and uneasy.” 479 F.2d at 90. Another inspector noticed “that one of the men was very nervous and ‘strung out’ and that he kept blinking his eyes,” that another man was “subdued” and that Holtz “also seemed nervous.” Id. The car had New Mexico license plates yet.the trio was crossing the border at Nogales, Arizona. The occupants had no luggage and had declared no purchases. One inspector thought he smelled marijuana, although none was found. A condom was found in Holtz’ purse. As the search continued, one of the men became increasingly nervous. None of the three had any identification, but all gave a name and address. The Bureau of Customs’ computer identified one of the men as a known associate of a heroin dealer in New Mexico. Fresh needle marks were found on both the men but a strip search of them revealed no contraband. However, during the strip search, one of the two men became so sick he vomited. A strip search of Holtz revealed heroin and we upheld the search.

In Shields, we stated:
Appellant’s nervousness (reflected in an uncomfortable, rigid posture, high-pitched and strained voice, avoidance of the inspector’s eyes, and exaggerated emphasis upon the plaster of Paris souvenirs purchased across the bordqjr); the needle marks upon her arms, including one or two that were “seeping,” and hence only one to four hours old; similar marks upon her companion’s arms; and the shortness of their visit (one to one-and-a-half hours) were “objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect” that she was concealing contraband on her body.

453 F.2d at 1236. And in Summerfield, we said:

We consider that the customs authorities in this case had a “real suspicion” sufficient to order appellant to strip. They testified that appellant appeared nervous and his eyes were pinpointed not unlike those of one under the influence of narcotics. He had a number of fresh needle marks on both arms. A search of his wallet revealed three rolled-up cotton balls of the kind frequently employed by narcotics users.

421 F.2d at 685.

We accept Mastberg’s argument that in Holtz and Shields the facts were stronger support for real suspicion of smuggling than the facts of this case. We do not necessarily agree, however, that the facts in Summerfield are any stronger than those presented here. In addition, there are other cases from our own circuit in which the facts, as compared to those in this case, were no stronger yet no weaker. For example, in United States v. Gil de Avila, 468 F.2d 184 (9th Cir. 1972) the only facts supporting a real suspicion were that the occupants of the car were extremely nervous, that they had brought nothing from Mexico other than a loaf of bread and that one of the four occupants (although not the defendant-appellant) had needle marks on both arms. We upheld the strip search.

Even if we were to concede that the facts in this case were weaker than the facts in our prior cases, Mastberg’s point would not be well taken. Comparing a case before us with our other cases may, at times, be helpful. But we are not concerned with whether the government had a better case in Holtz or Shields than in this case; the question is whether, on these facts alone, the search was reasonable under the real suspicion test.

Nevertheless, case comparison is helpful in determining what is important when the test is applied. In analyzing our border search cases, we find that ■certain factors have been instrumental in establishing a real suspicion of smuggling. Also, certain factors tend to bear a more direct relationship to suspicion of smuggling than others. Some of these factors are present in this case. For example, a person’s nervousness while crossing the border is frequently a fact taken into account in determining whether to conduct a strip or body-cavity search. Holtz, supra, 479 F.2d at 90; United States v. Sosa, 469 F.2d 271, 272 n.1, 273 (9th Cir. 1972); United States v. Velasquez, 469 F.2d 264, 265 (9th Cir. 1972); United States v. Gil de Avila, 468 F.2d 184, 185 (9th Cir. 1972); Shields, supra,, 453 F.2d at 1236; Summerfield, supra, 421 F.2d at 685; Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945 87 S.Ct. 980, 17 L.Ed.2d 875 (1967). Similarly, needle marks on the person’s arms are frequently a factor. Holtz, supra, 479 F.2d at 91; Sosa, supra, 469 F.2d at 272; Velasquez, supra, 469 F.2d at 265; Shields, supra, 453 F.2d at 1236; Summerfield, supra, 421 F.2d at 685; Rivas, supra, 368 F.2d at 710. Both of these elements were present in this case. In addition, there were the open milk cartons and the balloons. A customs inspector testified that addicts often carry-liquids with them and frequently conceal contraband drugs in body cavities by using balloons.

Obviously, some of the factors in the present case are more important than others in determining whether a real suspicion of smuggling was established. If we were to consider each of the factors separately, the needle marks would be the most likely indication of smuggling and the element to which we lend greater weight. In degree of relative importance, nervousness would rank next. Neither the needle marks nor the nervousness can be considered totally innocuous. However, the milk containers and balloons each considered separately could be totally innocuous and are the least likely indication of smuggling. Many persons crossing the border probably carry balloons or open liquid containers and yet do not arouse a suspicion of smuggling. The open liquid containers and the balloons, even when considered together, could be totally innocuous. However, we do not view each of these separately to determine the reasonableness of the search. We must consider the totality of the factors, viewing them in the light of an experienced customs inspector, when determining the legality of the strip search.

Considering the evidence in this light, we view the facts as follows. The trio crossed the border at 3:00 a. m. Their nervousness aroused some suspicion. The open liquid containers coupled with the knowledge that addicts frequently carry liquids with them aroused further suspicion. The needle marks indicated that the travelers were possible addicts and certainly heightened suspicion. The balloons, coupled with the knowledge that they are frequently used to smuggle contraband in body cavities, added to the suspicions. The two male suspects were strip-searched first. The results were negative. When the strip search of Mastberg’s companions revealed nothing, suspicion on Mastberg was heightened.

While any single objective, articulable fact in this case might not support the conclusion of attempted smuggling, the test is whether all the facts viewed as a whole by an experienced customs inspector would lead to the necessary satisfaction of the real suspicion test. The district court found real suspicion existed. Mastberg has not met her burden of demonstrating that the trial court was wrong.

II. NERVOUSNESS AS EVIDENCE

Mastberg argues that the district court erred by receiving and relying upon “nervousness” as an articulable fact because the only evidence of nervousness was the opinion testimony of a witness. After one of the customs inspectors testified on direct examination that Mastberg was “nervous,” her counsel sought to attack that testimony:

Q. But you didn’t write anything down there as to what facts indicated nervousness?
A. I remarked “extreme nervousness”. [On the search report] Q. Wouldn’t you feel that is your subjective evaluation of her based on your experience?
A. Yes, it is.
Q. There aren’t any objective facts you can point to at this time which would indicate this nervousness? I’m referring to such things as shying eyes away, fiddling with her hands, anything like that, is that a fair statement?
A. No, I couldn’t at this time single out any one specific item when I say nervousness.

Mastberg argues that the inspector’s testimony on nervousness did not contain any objective facts and therefore it cannot support real suspicion. We disagree.

Testimony about corporeal appearances such as nervousness and drunkenness have produced considerable controversy. While the older view might preclude witnesses from giving their “opinion” on whether a particular person appeared nervous or intoxicated, under the modern, and probably majority, view a lay witness may state his opinion that a person appeared nervous or intoxicated. E. g., People v. Smith, 94 Cal.App.2d Supp. 975, 210 P.2d 98 (1949) (intoxication); People v. Hernandez, 70 Cal.App.2d 190, 60 P.2d 564 (1945) (intoxication). See 32 C.J.S. Evidence § 546 (38) (1964).

We hold that the procedure followed at the suppression hearing was correct. The inspector testified that Mastberg appeared nervous and counsel on cross-examination sought to attack that testimony by asking about the underlying facts. The inspector testified that he could not pinpoint the specific fact which led him to believe that Mast-berg was nervous. He did not write down the facts on the search report. He only wrote on the search report that she appeared nervous. His testimony on nervousness was admissible. The trier of fact must weigh the accuracy of the testimony of the customs inspector and judge its credibility. Here, the trier of fact presumably resolved the factual issue in favor of the government. None of the trio testified and disputed the accuracy of the inspector’s testimony. We cannot say that the trier of fact should have disregarded the testimony of nervousness.

III. THE INSPECTORS NEED NOT RELATE THE BASIS FOR THEIR SUSPICIONS TO THE MATRON

The matron admitted that the other inspectors did not tell her about the circumstances which they thought justified the strip search of Mastberg. Therefore, Mastberg contends the search is invalid because the person searching did not possess all of the articulable facts justifying the intrusion. The testimony of the matron demonstrates that she knew that the inspectors believed they had evidence that Mastberg was attempting to smuggle something, otherwise they would not have called upon her to conduct a strip search. It would be an absurdity and a miscarriage of justice for us to reverse this case simply because the inspectors did not communicate to the matron what they considered to be objective, articulable facts to justify a strip search. To require the inspectors to convey the basis of their suspicion to the matron would only be a meaningless gesture which could serve no useful purpose for either law enforcement or protection of an individual’s personal rights. In United States v. Velasquez, 469 F.2d 264, 266 (9th Cir. 1972), we rejected the argument that customs inspectors must convey their knowledge of the facts to a physician before he can conduct a rectal probe. The same principle applies here.

IV. THE BODY-CAVITY SEARCH

Finding a justification for the strip search, however, only begins our inquiry. Mastberg contends that before the contraband was seized, a body-cavity search had occurred and the clear indication test must be met. We agree.

In Rivas v. United States, 368 F.2d 703, 710 (9th Cir. 1966), cert. denied, 386 U.S. 945, 87 S.Ct. 980, 17 L.Ed.2d 875 (1967), we described a body-cavity search as “a search involving an intrusion beyond the body’s surface . . . .” In Henderson v. United States, 390 F.2d 805, 808 (9th Cir. 1967), we said that “if in the course of the search of a woman there is to be a requirement that she manually open her vagina for visual inspection to see if she has something concealed there, we think that we should require more than a mere suspicion.” And in Morales v. United States, 406 F.2d 1298, 1299-1300 (9th Cir. 1969), we held “that when the cavity to be searched is a vagina” a clear indication must exist. Although the matron did not search Mastberg’s vagina, she told Mastberg that if she did not remove the tampon herself, a doctor would be called to do so. Although the district court made no specific finding on consent, it is abundantly clear from the record that Mastberg's removal of the object was not by consent and was a “search.” Since this was “a search involving an intrusion beyond the body’s surface,” and, the cavity to be searched was the vagina, we hold that the clear indication standard must be applied.

During the course of the strip search, the matron observed that Mast-berg was nervous and that she had needle marks on her arms. She also observed a double string protruding from Mast-berg’s vagina, indicating that an object was concealed therein. Since the string was plainly visible during the strip search, it could properly be considered by the matron in applying the clear indication test. Holtz, supra, 479 F.2d at 93 & n.3. Though Mastberg claimed to have only a tampon in her vagina, the matron had good reason to disbelieve this claim since, in her experience, only one string was normally attached to a tampon.

We hold that the above facts provide a clear indication of smuggling.

V. REQUIREMENT OF WARRANT

Mastberg has made a very lengthy and detailed argument contending that the Fourth Amendment’s mandate of reasonableness dictates that border searches of the person be performed only after a warrant has been obtained. We reject this contention. United States v. Mason, 480 F.2d 563 (9th Cir.), cert. denied, 414 U.S. 941, 94 S.Ct. 246, 38 L.Ed.2d 167 (1973). She also argues that the Supreme Court’s decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), requires us to reevaluate warrantless border searches and issue guidelines for and require a warrant for such border searches of the person. We fail to see how either the Fourth Amendment or Almeida-Sanchez requires the procedure for which Mastberg argues.

Affirmed.

      . tVe view the testimony about the milk cartons as an indication of the type of paraphernalia sometimes carried by addicts. On this point, we note similar testimony in Bum-merfield where inspectors found three cotton balls of the kind frequently employed by narcotics users. The inspectors testified that addicts frequently carry similar cotton balls. 421 F.2d at 685.

      . The single factor of the milk cartons is not a likely indication of smuggling. As Mast-berg points out, many travelers or vacationers in the countries surrounding our border are likely “to carry some form of consumable liquid, e. g., coffee, soda pop, or containers for such liquids” and “the presence of such articles cannot reasonably be regarded as suspicious.”

      . Mastberg argues that the balloons “are entirely innocent in themselves and are a great (leal more indicative of an innocent use than of smuggling. Certainly if appellant had had a child with her on crossing the border, the inspector would not have given these balloons or the milk cartons a second thought.” Children in the car might allay any suspicious character of the balloons. However, there were no children in the oar when Mastberg crossed the border.

      . In Holtz, we held :
      [F]acts derived from “the companions of the subject of the strip search can be considered in determining when such a search may be justified.” United States v. Gil de Avila, 468 F.2d 184, 186 (9th Cir. 1972). See United States v. Shields, 453 F.2d 1235, 1236 (9th Cir.), cert. denied, 406 U.S. 910, 92 S.Ct. 1615, 31 L.Ed.2d 821 (1972).
      479 F.2d at 91.

      . In the section in Wigmore’s treatise on evidence which discusses corporeal appearances of persons such as intoxication, it is asserted :
      The Opinion rule is often sought to be applied to forbid compendious descriptions of the appearances externally indicating internal states, — for example, whether a person “looked” sick or sad or angry. There is no more reason in this class of cases than in the preceding one for the Opinion rule to exclude tbe testimony. The exclusionary rulings here abound particularly in absurdities and quibbles, — highly fit for cynical amusement, were not the names of Justice and Truth involved in their consideration. One may wonder bow long these solemn farces will be perpetrated in our law.

       J. Wigmore, Evidence § 1974 (3d ed. 1940) (footnote omitted).


author: CRAVEN, Circuit Judge:

text:
    John PATLER, Appellant, v. A. E. SLAYTON, Jr., Superintendent of the Virginia State Penitentiary, Appellee.
    No. 73-1169.
    United States Court of Appeals, Fourth Circuit.
    Argued April 1, 1974.
    Decided Aug. 28, 1974.

      Elise B. Heinz, Arlington, Va., for appellant.
    Linwood T. Wells, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and WIDENER, Circuit Judges.
   CRAVEN, Circuit Judge:

John Patler was found guilty by a jury in the Circuit Court of Arlington County, Virginia, of the first degree murder of George Lincoln Rockwell, the head of the American Nazi Party. Pat-ler was apprehended about one-half hour after the homicide less than a mile from the scene of the crime. The complex, “largely circumstantial” web of evidence upon which the jury verdict rested is set out in the opinion of the Supreme Court of Appeals of Virginia, which held that the verdict was based on sufficient evidence. Patler v. Commonwealth, 211 Va. 448, 452-456, 177 S.E.2d 618, 621-624 (1970). The United States Supreme Court denied a petition for cer-tiorari on June 12, 1972.

On October 9, 1972, Patler sought a writ of habeas corpus from the United States District Court for the Eastern District of Virginia under 28 U.S.C. § 2254. Three errors of constitutional magnitude were alleged: (1) that the identification testimony of two witnesses at petitioner’s state trial was tainted by their presence at illegal show-ups and should have been excluded under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); (2) that the seizure of certain inculpatory evidence from a farm owned by Patler’s father-in-law constituted an illegal seizure in violation of his [Patler’s] fourth amendment rights; and (3) that the state’s failure to release the results of tests on physical evidence introduced at trial until late in the proceedings, which evidence tended to exculpate the petitioner, was prejudicial to his defense and contrary to the due process requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The district court, without a hearing, granted respondent’s motion for summary judgment. Patler v. Slayton, 353 F.Supp. 376 (E.D.Va.1973). We affirm.

I.

At about noon on August • 25, 1967, Mrs. Alma Kilpatrick was backing her car from a parking space at a small shopping center in Arlington, Virginia, when she saw a man appear on the brick wall in front of her. He jumped down, ran behind her car, looked toward the area of the parking lot where Rockwell’s body was later found, turned and ran back over the wall. Upon being asked at trial if she could describe the person whom she saw, Mrs. Kilpatrick responded:

A. I believe that he was dark haired and he had either a brownish or a dark brown coat on, and he looked something like what Mr. Patler looks like.
Q. Where did you see Mr. Patler?
A. I saw Mr. ■ Patler again in the courtroom.

Transcript 523. Mrs. Kilpatrick talked with police on the day after the shooting. Shown two different photographic spreads containing Patler’s picture, she was unable to make a positive identification. It was then suggested that she attend Patler’s preliminary hearing to obtain a view of the suspect. Failing to gain an unobstructed view of Patler, Mrs. Kilpatrick came to a second hearing. She at first declined to make a positive identification after the hearing, then changed her mind and informed the police that she could identify Patler, and finally concluded that she could not. On voir dire examination she stated: “I have decided to say I can’t positively because I know that would be a crime, that would be terrible. I can’t do that.” Transcript 543.

On this same day and at about the same time, Mrs. Nancy Thoburn was returning from Bon Air Park (located about four blocks from the shopping center where the shooting occurred) with her three children. As she walked up Liberty Street in the direction of the shopping center she saw a man running down the opposite side of the street in the direction of the park. Noticing him “because of his hurry,” she testified that she described him to a detective who interviewed her that same day as having “dark hair,” “a dark complexion,” and “was of medium build ond height.” Transcript 628. She further described his clothing:

He was wearing a long coat of some type, although I can’t exactly identify it in every detail, but it appeared to be a neutral color. Also, his pants impressed me as being a dark gray, and he wore a hat; and I noticed one thing that stood out was that his pants’ legs were wet.

Transcript 628. Later that same day Mrs. Thoburn went to the police station. She was seated on a bench together with three other potential witnesses outside of the robm in which Patler was confined. Patler, handcuffed and escorted by se.veral policemen, was led by the bench as he was transferred from one room to another. The state trial judge, describing the show-up as “the worst possible kind,” refused to allow Mrs. Thoburn to testify as to “any identification subsequent to that made at the police station.” Transcript 622-23. But the following testimony by Mrs. Tho-burn was allowed:

Mr. Hassan: [ Commonwealth’s Attorney] Did there come a time when you made any statement to the police officers concerning what you have just described and its relationship to any picture or live viewing of Mr. Patter ?
Mr. Harrigan: [Patter’s Attorney] Objection, Your Honor.
The Court: The objection is overruled.
Mr. Harrigan: Exception.
The Witness: I had an opportunity to see Mr. Patter at the police station the same day, August 25th.
Mr. Harrigan: I object to that, Your Honor.
Mr. Hassan: What she told the police.
The Court: We just want to know what you told the police officer about your impressions of Mr. Patter.
The Witness: At that time I recall seeing — when I say seeing— when I was asked if I could make an identification, I said that there wasn’t any conflict in his appearance to the man I had seen, that there was nothing about him that conflicted my mental picture of what I had seen earlier that day.
Transcript 630-31.

The Commonwealth argues that because the testimony of Mrs. Kilpatrick and Mrs. Thoburn was inconclusive and did not rise to the level of positive identification and because counsel was at all times present at (although admittedly uninformed of) the challenged show-ups, the Wade-Gilbert exclusionary rule does not apply and the testimony must be tested only under the “totality of the circumstances” as prescribed in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and explained in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d401 (1972).

The contention that the presence of counsel at these show-ups is enough to satisfy Wade and Gilbert flies in the face of the sixth amendment right sought to be protected. Both Wade and Gilbert speak in terms of informed presence, 1. e., notice. 388 U.S. at 237, 269, 87 S.Ct. 1967. The fact that Patler’s counsel was present both in the hallway at the police station where Mrs. Thoburn and the other potential witnesses were seated and at the preliminary hearing which Mrs. Kilpatrick attended does not enable the Commonwealth to escape the strictures of the Supreme Court’s mandate.

The state argues further that since Patler had not been indicted and the Commonwealth had not “committed itself to prosecute” [Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972)] him, the Wade-Gilbert rule should not apply. The plurality opinion in Kirby does not set forth an “indictment” test but refers only to “the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U.S. at 689, 92 S.Ct. at 1882 (emphasis added). In a concurring opinion the Chief Justice added: “I agree that the right to counsel attaches as soon as criminal charges are formally made against an accused and he becomes the subject of a ‘criminal prosecution.’ ” 406 U.S. at 691, 92 S.Ct. at 1883. There is no question but that Patler had already been served with a warrant charging him with first-degree murder, that he had been confined several hours and that his attorney was present at the police station at the time the show-up viewed by Mrs. Thoburn occurred. Mrs. Kilpatrick’s viewing did not come until several weeks .later. As to the show-ups viewed by both witnesses we find that “adversary judicial criminal proceedings” had been initiated and that Patler was entitled to the informed presence of counsel under Wade and Gilbert, United States v. Roth, 430 F.2d 1137, 1140-1141 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 584, 27 L.Ed.2d 633 (1971). Cf. Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973).

Although the failure of a witness to make a positive, in-court identification cannot be used by the state to insulate its improper identification procedures from scrutiny, it is entirely possible, we think, for a skilled trial judge to separate the tainted matter from what the witness actually observed at the scene of the crime and thus avoid an unnecessarily blunt application of the exclusionary rule of Wade or Gilbert. That is what occurred here.

We need not decide whether the improper show-ups might have suggested or strengthened Mrs. Kilpatrick’s and Mrs. Thoburn’s testimony in court, even to the point of positive identification, because the capable trial judge, alert to the problem, made certain that the questioning was limited to eliciting only what they saw at the scene and an inconclusive comparison with Patler’s physical appearance. As to the latter he barely skirted constitutional error, for if there is a line between “resemblance” and “identification” testimony it is admittedly thin. But see United States v. Brooks, 146 U.S.App.D.C. 1, 449 F.2d 1077, 1083 (1971). Although thin, we think it a line worth drawing. Aside from police deterrence, the spirit of Wade and Gilbert is to prevent the conviction of those who may be innocent when a susceptible witness is unfairly allowed to conclude: “he is the guilty one.” It is far less dangerous to admit testimony, as was done here, that the malefactor was “dark haired” and “had a brown coat on” and “looked something like Mr. Patler,” which was the gist of Mrs. Kilpatrick’s testimony. We agree with the trial judge that:

At no point did she make a positive identification, but what identification she makes, dubious as it is, appears to me to be the direct product of what she saw while she was sitting in her car.

Transcript 559.

As for Mrs. Thoburn’s testimony, the trial judge was even more cautious, recognizing .that the state had arranged views of “the worst possible kind.” He therefore limited her testimony to what she told the officers at the police station —-something short of even “resemblance” testimony. Under the announced limitation Mrs. Thoburn described the clothing of the person seen near the place of the crime; and, in response to whether she could make an identification, failed to do so, saying only that the appearance of Patler was not “in conflict” with the person she had seen.

In declining to order a new trial despite flagrant police violations of show-up standards, we think we do no injury to the therapy of the exclusionary rule of Gilbert. For the lesson got to the trial judge and through him to the prosecutor and the police, and it is this: unfairly obtained identification testimony will not be freely received, and if allowed at all, it will be under such severe limitations that the prosecutor will be deprived of most of its potential for persuasiveness. Thus the purpose of the exclusionary rule, to deter the violation of the constitutional rights of those accused of crime, is served.

II.

Spent bullets and shell casings matching the murder weapon were seized from the pasture of a farm owned by Patler’s father-in-law, Sam Ervin. Testimony at trial tended to show that the area from which the inculpatory evidence was recovered was occasionally used by the two families as a picnic area and as a play area for their children and had within a month prior to the shooting been used by Patler for target shooting. It was located 250 feet from the dwelling house and about 200 feet outside a fence which enclosed the house and outbuildings. Although the trial court found invalid on its face a search warrant obtained by officers prior to the search, the evidence was not suppressed on the theory that the area searched was outside the curtilage. The Supreme Court of Appeals affirmed, specifically relying on the “open fields” doctrine of Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898 (1924). Patler v. Commonwealth, 211 Ya. 448, 449-451, 177 S.E.2d 618, 620-621 (1970). The district court agreed that the evidence should not have been suppressed, although it found Hester to be inapplicable in light of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Instead the district court concluded that the use to which the area had been put was not such that Patler could “reasonably have expected privacy at the scene of the target shooting.” Patler v. Slayton, 353 F.Supp. 376, 387 (E.D.Va.1973). Furthermore, the court held, he lacked standing to raise his fourth amendment contention, citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); and United States v. Cobb, 432 F.2d 716 (4th Cir. 1970). With the argument that Patler lacks standing we cannot agree. In Cobb, supra, 432 F.2d at 719, we said:

In Jones v. United States the Court, in construing Rule 41(e) which gives to any “person aggrieved by an unlawful search and seizure” the right to move to suppress evidence thereby secured, held that, “In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only-through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” (Italics added) 362 U.S. at p. 261, 80 S.Ct. at p. 731.....

While possession of the evidence seized here was not an element of the offense charged, Patter demonstrated both that he had a possessory interest in the property searched, Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), and that the search was specifically directed against him. Having standing to raise the propriety of the search, Patter has, however, failed to demonstrate a reasonable expectation of privacy in the property actually searched. The maxim of Katz that the fourth amendment protects “people not places” is of only limited usefulness, for in considering what people can reasonably expect to maintain as private we must inevitably speak in terms of places. Speaking in such terms, we said under similar circumstances in United States v. Brown, 487 F.2d 208, 210 (4th Cir. 1973), cert. denied, 416 U.S. 909, 94 S.Ct. 1617, 40 L.Ed.2d 114 (1974) :

Appellants’ reasonable expectations of privacy — while extending to their dwellings and the immediate area around them and even to the area occupied by outbuildings such as the barns in question . . . — cannot, in light of Hester, be said to include the “open fields” around the barn.

See also United States v. Minton, 488 F.2d 37, 38 (4th Cir. 1973). Even if Patter could be said to have exhibited an actual expectation of privacy in the area searched, we cannot say that such an expectation is “one that society is prepared to recognize as ‘reasonable.’ ” Katz, supra, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

III.

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Supreme Court announced the following constitutional principle:

We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

Petitioner alleges that his Brady rights were violated by the prosecution’s failure to release the results of scientific tests made by the FBI on certain physical evidence until that evidence was introduced late in his trial. The district court correctly characterized the test results as “neutral” rather than “exculpatory.” 353 F.Supp. at 388. But such a characterization often has little meaning; evidence such as this may, because of its neutrality, tend to be favorable to the accused. While it does not by any means establish his absence from the scene of the crime, it does demonstrate that a number of factors which could link the defendant to the crime do not. There was good- reason for the state to introduce Patler’s clothing and shoes and the murder weapon. Several witnesses had seen a man running from the scene of the crime dressed in similar clothing, and one witness testified that the coat found along the escape route belonged to Patler. The murder weapon, so the jury could have found, had been loaned to Patler several years earlier and shell casings and fragments fired from it were found on his father-in-law’s farm. He had been seen target shooting there a month before the shooting. Clearly the evidence was relevant. But, to paraphrase what we said in Barbee v. Warden, 331 F.2d 842, 845 (4th Cir. 1964), “[o]nee produced, it became not only appropriate but imperative that any additional evidence concerning [these items] be made available either to substantiate or to refute the suggested inference [s].” Admittedly, the ballistics tests under consideration in Bar-bee were of much greater benefit to the defense than the scientific tests in this case. But whether the tests here are “favorable” within the meaning of Brady we need not decide. Assuming that an affirmative duty existed which required disclosure by the prosecution, such a duty was here satisfied.

Petitioner’s argument rests, finally, on the assertion that disclosure was not timely. While there may be instances where disclosure comes too late to benefit the defendant, see, e. g., Clay v. Black, 479 F.2d 319 (6th Cir. 1973); United States v. Gleason, 265 F.Supp. 880 (S.D.N.Y.1967), this is not such a case. Once the physical evidence was introduced by the prosecution, disclosure of the test results was made immediately. There followed a very thorough and searching cross-examination by petitioner’s counsel. In light of the fact that Brady does not require pretrial discovery, United States v. Harris, 409 F.2d 77, 80-81 (4th Cir. 1969), cert. denied sub nom., Brown v. United States, 396 U.S. 965, 90 S.Ct. 443, 24 L.Ed.2d 430 (1969), and in the absence of any demonstration of prejudice to his defense from the failure of the prosecution to make the disclosure at an earlier point in the trial, petitioner’s assertion of untimely disclosure must fail. Where, as here, the disclosure is timely, i. e., occurring at or before the introduction by the prosecution of evidence to which the disclosed material logically relates and at a time when it can be meaningfully evaluated and utilized by the defense, there is no violation of due process.

The judgment of the district court is affirmed.

Affirmed.

      . Mrs. Thoburn described the scene on voir dire examination:
      Q. Did you go down to the police station on the 25 th?
      A. Yes.
      Q. How many other peoide were down there ?
      A. There were three other witnesses there.
      Q. Did you know what you were going down there for?
      A. To give a description. I thought I was going down there to see if I could identify the man that I saw running.
      Q. Where did you go in the police station?
      A. To the detective’s office.
      Q. That is the third floor?
      A. I guess it is; I couldn’t say right now.
      Q. Were you in the hall there?
      A. We were in the office, and Mr. Patler’s lawyer would not let us look at him.
      Q. Who was that lawyer?
      A. Mrs. Lane, I guess.
      Q. She would not let you look at him?
      A. That was the reason we were given for sitting so long in the office.

        Q. Who gave you that reason?

        A. The detectives. I don’t know; that was what I heard. I did not see Mrs. Lane that day, period. This is the reason that I was given why we were kept waiting because his lawyer, whoever it was, would not let us see him.
      Q. All right. Did they come out and finally tell you okay?
      A. No, they did not.
      Q. What happened?
      A. They put a bench for us beside the elevator so that when he was changed from one room to anotiier and brought down the hall that we would catch a glimpse of him then.
      Q. Was he brought down the hall?
      A. Yes.
      Q. How many detectives were holding onto him?
      A. I know there were at least two escorts.
      Q. Was he handcuffed?
      A. Yes.
      Q. Was it pretty obvious who the defendant was and who the detectives were ?
      A. Yes, indeed.
      Transcript 604-05.

      . The following colloquy between the trial judge and the Commonwealth’s attorney would tend to establish that there was no notice 1o Patler’s attorney of the identification procedures:
      The Court: Does the Commonwealth deny that his counsel was advised that he was to be shown to eye witnesses at that time?
      Mr. I-Iassan: I don’t think counsel was advised at any time. I don’t think there is any requirement to advise counsel.
      Transcript 621.

      . Wade and Gilbert are effective prospectively from June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The identification procedures here challenged took place on or after August 25, 1967.

      . The record owner of the property, Sam Ervin, was Patler’s father-in-law. The Pat-ler and Ervin families resided in the same dwelling in Arlington, and both families used the Highland County farm frequently.

      . In his petition for certiorari to the United States Supreme Court petitioner itemized the various pieces of evidence, their relationship to the case against him and the results of scientific tests performed on them as follows :
      During the afternoon of the day of the crime, a cap and a reversible coat, brown on one side and black on the other with a mutilated woman’s pantyhose stuffed in one pocket, were found under a tree a few blocks from the scene of the crime. (Tr. 777, 794-95). On the afternoon of the next day, a 7.63 mm. Mauser pistol was found in a park several blocks away, lying between two rooks in a creek in about six inches of water. (Tr. 1434-35) This proved to be the murder weapon. (Tr. 1707-8) It was identified as the property of Robert A. Lloyd, III, an active member of the Nazi Party, who testified that he had loaned it to petitioner in 1964. (Tr. 1806, 1812-13) Lloyd also testified that when he requested the return of the gun in 1965 petitioner told him it had been stolen or mislaid, and that the coat found under the tree “looked exactly like” one petitioner had worn. (Tr. 1813-14, 1824-25) Another Party member testified that the coat “is” petitioner’s. (Tr. 1856) Petitioner denied that Lloyd had ever loaned him the gun and presented several witnesses who said they had seen it in Lloyd’s possession after 1964. (Tr. 2469-70, 2178, 2276-76) The defense in-troduoed a different black raincoat, found in petitioner's home the day after the crime, which he identified as his own. (Tr. 2562, 2464) The police delivered their items of physical evidence to the FBI, where they were subjected to all the usual scientific tests, as was the clothing worn by petitioner at the time of his arrest and the towel he. was carrying. Before the trial petitioner’s attorneys asked the trial court to order the reports of these tests and any exculpatory evidence possessed by the prosecution to be shown to defense counsel. This motion was denied. Late in the prosecution’s case, the Commonwealth presented this evidence. Tests to establish whether the articles found under the tree or the towell had been associated with a firearm were negative. (Tr. 1709-11) So were tests attempting to associate any of these items with paint, samples taken from the shopping center. (Tr. 1741-43) Petitioner’s shoes could not have made the footprints found on the roof. (Tr. 1731-33) Soil found on petitioner’s shoes did not match any of the 17 soil samples taken along the escape route. (Tr. 1738-39) There were no hairs or anything else on the cap or the coat that could connect them to petitioner. (Tr. 1764) Neither the tar found on petitioner’s shoes nor the tar taken from the roof contained identifying impurities ; the expert witness declined to say they were identical, though he said they were similar: “Tar is tar.” (Tr. 1745-46) There were no fingerprints on the murder weapon. (Tr. 1727-28)

      . Cf. Fed.R.Crim.P. 16(a)(1)(D), as amended (effective July 1, 1974) :

        Reports of examinations and tests. — Upon request of a defendant the government shall permit the defendant to inspect and copy or photograph any results or reports ... of scientific tests or ex-I)eriments, made in connection with the particular case, or copies thereof, within the possession, custody or control of the government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government.
      42 U.S.L.W. 4555 (April 23, 1974).