author: OAKES, Circuit Judge:

text:
    UNITED STATES of America ex rel. Armstrong JOHN, Appellee, v. J. Leland CASSCLES, Superintendent, Great Meadow Correctional Facility, Appellant.
    No. 167, Docket 73-1892.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 17, 1973.
    Decided Dec. 5, 1973.

      Hillel Hoffman, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellant.
    Mark L. Levine, New York City (Robert Kasanof, The Legal Aid Society, Barry S. Greene, Schuyler K. Henderson, New York City, on the brief), for appellee.
    Before SMITH, MULLIGAN and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is by the State of New York from the granting of a writ of ha-beas corpus to appellee on the basis of erroneous admission at trial of identification evidence.

On May 10, 1967, Louis Connor was slain during the robbery of his cleaning store. In June, 1968, appellee was tried for this crime and convicted of manslaughter in the first degree by the Supreme Court of Kings County. His conviction was affirmed without opinion, 35 A.D.2d 1081, 318 N.Y.S.2d 266 (1970), and the New York Court of Appeals denied leave to appeal on February 4, 1971. Thereafter appellee moved for a new trial on the basis of newly discovered evidence; the motion was denied on April 13, 1972. He then filed a habeas corpus petition in federal court, but the petition was withdrawn so as to enable him to exhaust his state remedies. His motion in the Appellate Division for leave to appeal from the denial of a new trial was itself denied on February 14, 1973, thereby exhausting his state remedies. See New York C.P.L. § 450.90(1); People v. Fein, 18 N.Y.2d 162, 169, 272 N.Y.S.2d 753, 757, 219 N.E.2d 274 (1966), cert. denied, 385 U.S. 649, 87 S.Ct. 766, 17 L.Ed.2d 668 (1967). Appellee then renewed his habeas petition before the United States District Court for the Eastern District of New York. There, without holding an evidentiary hearing, Judge Zavatt granted the petition, 358 F.Supp. 517. The State has taken this appeal.

Although there was other evidence linking appellee to the crime, one of the most important parts of the State’s case was the testimony of Marvis Johnson. Mrs. Johnson testified that on the evening of the crime she had been walking home toward the cleaning store after visiting a bar. Standing in front of the cleaner’s was a young man. As she reached the store, she heard a noise like a firecracker and then another young man with a gun in one hand and money in the other ran out of the store, bumping into her. After glancing at his face, Mrs. Johnson started running, as did the two young men. In court over a year later, Mrs. Johnson testified that appel-lee was the young man who ran out of the store with the gun and the money.

Mrs. Johnson, however, had not told anyone about the encounter on May 10, 1967, after it occurred, and until almost the trial of appellee. Rather, she apparently did not want to become involved, especially because she was herself on probation. Apparently no one, certainly not the police, knew that she was a witness, except, possibly the perpetrators. On June 2, 1967, three weeks after the Connor robbery and slaying, Mrs. Johnson was herself shot by Gregory Brown. At the hospital she told the police that as Brown was shooting her, he told her that he was shooting her because she knew who had shot Connor — someone had told Brown that she had seen them —and that he was shooting her with the same gun that killed Connor. Sometime thereafter two detectives came to Mrs. Johnson’s apartment to question her concerning the Connor killing. Again attempting to keep from being involved, now with the added knowledge, if her story as to the Brown shooting is to be believed, that her ability to identify the murderers had almost resulted in her own death, Mrs. Johnson told the detectives that she was Marvis Johnson’s sister and did not know about the Connor killing and that Marvis Johnson had moved to Detroit.

On July 6, 1967, and this is the remarkable fact in this case, Mrs. Johnson was in court with reference to the case involving her own shooting by Gregory Brown. Apparently by pure coincidence appellee and his codefendant were also in court that day; their case was then adjourned. Mrs. Johnson subsequently testified that she then recognized them as the young man who had been standing in front of the store and the young man who had come running out. Still she told no one.

Nothing else happened until May 14, 1968, a year and four days after the original crime. An Assistant District Attorney and four detectives came to Mrs. Johnson’s apartment and showed her two “mug shots” — one of appellee and one of his eodefendant. She told them that she could not identify them, but she came down to the Assistant District Attorney’s office and signed a statement saying that she had seen the two perpetrators in court one day when she had been there in reference to her own case. Two days later, because, she says, her conscience bothered her, and perhaps because she feared that if she were caught in a lie she might get into further trouble, she called the Assistant District Attorney to tell him that she could identify the persons in the two pictures. She said that the two persons were the ones she had seen in court and also the ones she had seen at the scene of the killing.

At the suppression hearing prior to trial, the state court judge held that Mrs. Johnson’s identification of appellee was not tainted in any way by the showing of only the two photographs and that Marvis Johnson was an honest witness whose previous untrue statements were occasioned by her not wanting to get involved. Her testimony, therefore, was admitted.

The question before this court on appeal is whether the showing of only two photographs to Mrs. Johnson was so suggestive as fatally to taint her in-court identification, violating appellee’s fourteenth amendment rights. The State argues strongly that LaVallee v. Delle Rose, 410 U.S. 690, 93 S.Ct. 1203, 35 L.Ed. 637 (1973), calls for a reversal of the grant of habeas because it requires the district court to find by “convincing evidence” that the state court determination was erroneous, which the district court did not do here. Appellee argues equally strongly that Delle Rose is inapposite to this case, because the dispute here is over the historical facts, not over the law to be applied to them. Cf. United States ex rel. Williams v. LaVallee, 487 F.2d 1006 (2d Cir., 1973), slip op. 381, 390. It is clear to us that here there are mixed questions of law and fact, but because we feel that the district court incorrectly applied the law to the facts, we need not reach the question to what extent Delle Rose applies in this case.

The Supreme Court has held that due process is violated by an identification procedure only when it is “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The district court properly stated that the required inquiry is two-pronged: first, whether the identification procedure was impermissibly, suggestive; and, second, if so, whether under the totality of the circumstances it has such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identification would violate due process. United States ex rel. Bisordi v. LaVallee, 461 F.2d 1020, 1023 (2d Cir. 1972); United States ex rel. Phipps v. Follette, 428 F.2d 912, 914-915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970).

The showing of only two pictures, one of each suspect, to a possible witness and asking her if these are the two men she saw, or if she can identify these two men, is clearly impermissibly suggestive. See, e. g., United States ex rel. Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973). Nor were there any extenuating circumstances which might justify such prosecutorial conduct; here appellee and his codefendant had been incarcerated for approximately a year and had been indicted seven months earlier. Thus, the showing was not only suggestive, but was unnecessarily so. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The next question then is whether showing these two pictures to Mrs. Johnson was likely to have led to a misidentification of appellee in court, for it is the likelihood of misidentification which violates the defendant’s right to due process. Neil v. Biggers, 409 U.S. at 198, 93 S.Ct. 375. The court must seek to determine whether there was already such a definite image of the defendant in the witness’s mind — before the suggestion arising from the unlawful identification procedure could take effect — that the in-court identification is reliable in spite of the suggestiveness of the unlawful identification procedure. In short, what is needed is evidence that such a definite image existed. Normally the only evidence is circumstantial, and several cases give guidelines as to the factors which should be considered in weighing that circumstantial evidence. See, e. g., Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375. These factors, however, are hardly exclusive, for as has been said, one must look to the totality of circumstances, United States ex rel. Cannon v. Montayne, 486 F.2d 263 (2d Cir., 1973), and each case must be considered on its own facts. Simmons v. United States, 390 U.S. at 384, 88 S.Ct. 967.

In all the testimony concerning Mrs. Johnson’s identification of appellee, one fact stands out as clearly established —that on July 6, 1967, she saw appellee standing in court and that nearly a year later she remembered him well enough to identify a picture of him, albeit one suggestively proffered, as one of the men she saw in court. This must have surprised the prosecutors, because until she told them of her seeing appellee in court, they had not known that she had,' and not knowing that, they could not have suggested to her in any way that the pictures were of persons she had seen in court. Thus her identification of appellee as one of the two men she saw in court was not tainted by the use of only the two photos. Her ability to identify appellee’s picture as that of one of the men she saw in court almost a year before, and short of two months after the Connor shooting, establishes that she had a definite image of the petitioner in her mind.

This, however, does not end our inquiry, for all we have established is that Mrs. Johnson had a clear and definite image of the man she had seen in court on July 6, 1967. But she testified on direct not as to this event but as to the events on the night of the crime, and her identification of appellee was that of the man who had run out of the store. To the prosecutors and later to the state court at the suppression hearing Mrs. Johnson said that on July 6, 1967, while awaiting her case, she saw the young man who had run out of the store on the night of the crime. If this be true, her identification of appellee from the photo as the young man she saw in court is tantamount to an identification of him as the young man she saw run from the store. As to her recognition of appellee in court on July 6, 1967, however, we have no independent proof, because she told no one of it. We do, nevertheless, have the benefit of the trial judge’s findings at the conclusion of the suppression hearing, and in matters of this kind we are bound to give considerable weight to the determination of the judge who saw and heard the witness. United States ex rel. Phipps v. Follette, 428 F.2d at 915. At the conclusion of the hearing the judge found that Mrs. Johnson was an “honest girl” — she was in fact 33 years old, however — and that she had recognized appellee in court on July 6, 1967. This finding, which is supported by the evidence, has some appeal to common sense in that it would be unlikely for one to remember for nearly a year a person she saw in court one day, unless that person had caught her eye in some significant way (absent proof of hearing what his ease was all about and thereby connecting him to the crime she had witnessed). In light of these considerations then, we accept the state trial court’s finding as to Mrs. Johnson’s July 6, 1967, identification of appellee as the young man who ran from the store. This, together with her independently standing identification of appellee as the young man she recognized in court, is quite sufficient evidence that the unlawful identification procedure subsequently utilized by the prosecutors was not likely to result in a misidentification of appel-lee at trial.

In so holding, we do not ignore the factors to be considered which Neil v. Biggers, supra, outlines but rather we do not find them so helpful as the above analysis in this fact pattern. We believe the district court erred in its application of several of the factors. First, while considerable effort was made to discredit Mrs. Johnson’s opportunities for observation, she testified and it was not disputed that there were street lights present which lighted the area sufficiently, that while her length of observation was short it was at very close range and she got a good look at the perpetrator’s face, and that while only a bystander and not a victim of the crime, her hearing a sound like a firecracker and her physical contact with the perpetrator alerted her and involved her directly in the flight from the crime. Since the witness gave no description of the perpetrator immediately after the crime, the accuracy of any such description, Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. 375, is not one of the factors to be considered here. The fact that she did not come forward, and indeed affirmatively avoided questioning, does not support a finding that she did not obtain a solid view of the perpetrator. Indeed, to the contrary, if she had not had a good look at the perpetrators and been able to identify them, she would have had no reason to fear. The district court interpreted Mrs. Johnson’s attempts to avoid questioning and her initial untrue statement as to her inability to recognize appellee as indicative of uncertainty in her identification. This interpretation, however, is erroneous, for she never showed uncertainty in her identification; she showed only reluctance to make it. In fact, when she finally did make her identification, her certainty as to seeing appellee in court a year before was corroborated by the court records. The district court also was mistaken in its computation of the time between the commission of the crime and the witness’s identification. As discussed above, she first recognized appellee when she saw him in court on July 6, less than two months after the crime, not the year considered by the district court. An important factor for consideration is the extent of cross-examination by defense counsel, so that all the facts concerning any possible misidentification are before the jury. United States ex rel. Rutherford v. Deegan, 406 F.2d 217 (2d Cir.), cert. denied, 395 U.S. 983, 89 S.Ct. 2145, 23 L.Ed.2d 771 (1969). The cross-examination of Mrs. Johnson was sufficiently extensive to cover more than 40 pages of transcript, and all the pertinent points were dealt with.

Our final consideration must be of the circumstances of Mrs. Johnson’s July 6 view of appellee. If that view were itself suggestive, then there would definitely be a substantial likelihood of misidentification. In determining this, we must rely on the state court’s suppression hearing testimony, which explored the area rather fully, and again we should give great weight to the court’s findings there because of its ability to see and hear the witness. At the suppression hearing it was established that appellee’s case was merely adjourned on the day Mrs. Johnson saw him in court. The judge concluded that there was no hearing held, and the defense attorney at the suppression hearing, who had been present in court also on July 6, did not object to that conclusion. Mrs. Johnson’s perceptions likewise indicate no hint of suggestiveness in the setting. There was nothing inherently suggestive about the situation of two men before a judge, cf. United States v. Callahan, 439 F.2d 852, 862-866 (2d Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 56, 30 L.Ed.2d 54 (1971), nor was there any reason for Mrs. Johnson to suspect that the two young men would be present in- court at all. She merely saw two young men standing before the judge and she recognized them as the two young men from the Connor killing. She says that she did not hear anything said that would have suggested that they were the perpetrators — she was not paying attention generally to what was happening in court. Nor did she hear anyone testify in court. Rather a detective took her outside for unrelated reasons. Upon this evidence, one purpose of which was to discover if this viewing were suggestive (Tr. 65), the judge found there was no taint. Such a finding is clearly supported by the evidence established, nor is there any evidence to the contrary.

In light of all of the above, the state court’s determination after full hearing that Mrs. Johnson’s identification testimony was not tainted by the impermissible suggestiveness of the photographic identification procedures employed we find to be supported in the record, and we, therefore, reverse the judgment of the district court.

Judgment reversed.

      . Brown denies this, in an affidavit four and a half years later, saying he shot her because she was a prostitute and drug dealer who while he was sleeping with her tried to steal his money, and that he did not know that it was the same gun that killed Connor.

      . Appellee’s eodefendant in this case, “PeeWee” Durham, pleaded guilty prior to trial and testified as a prosecution witness.

      . Before the district court appellee also claimed that the showing of photographs to Mrs. Johnson without appellee’s lawyer being present violated the sixth and fourteenth amendments. The district court, granting habeas on the basis of the photograph’s taint, did not reach this question. We note that this claim is foreclosed by the Supreme Court’s recent decision, United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (U.S. June 21, 1973).

      . We note that Mrs. Johnson has never been able to describe with any particularity the perpetrators or what they wore (other than that one wore a leather jacket), but it is not beyond our power of judicial notice to acknowledge that there is a “recognition” capability which may be different in degree and even separate in kind from the “recall” capability. This is somewhat analogous to the phenomenon that we all are aware of, that of not being able to recall a particular word to describe something, but of having no difficulty in recognizing and knowing the word upon seeing it. This is especially true where as here there is independent evidence of her ability to recognize appellee over the nearly one year between the fortuitous courtroom viewing and the photo viewing.

      . While, of course, the witness did indeed tell the prosecutors that appellee was the young man who ran from the store, because of the necessary suggestion in the showing of only two photos that these persons were the perpetrators, we must find a basis for identification of appellee at trial as the perpetrator independent of any suggestion to that effect in the photos. Cf. United States v. Culotta, 413 F.2d 1343, 1347 (2d Cir. 1969), cert. denied, 396 U.S. 1019, 90 S.Ct. 586, 24 L.Ed.2d 510 (1970).

      . Appellee claims that Mrs. Johnson had a longer period of time to see his codefendant, the young man who stood outside the store, and thus her identification of appellee was suggested by his standing in court on July 6, 1967, beside the young man she had seen longest. This, however, is speculation unsupported by anything in the record. Indeed, Mrs. Johnson may not have been paying much attention until she heard the shot and saw the other young man fleeing with a gun and money. Thus, her clear memory of appellee might have had just the opposite effect, suggesting to her that the man standing beside him, his codefendant, was the young man outside the store.


source: Caselaw Access Project

author: TALBOT SMITH, Senior District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard GRANT, Defendant-Appellant.
    No. 73-1168.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Dec. 7, 1973.

      Bruce G. Mason, Omaha, Neb., for defendant-appellant.
    Roderic Anderson, Asst. U. S. Atty., Omaha, Neb., for plaintiff-appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

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

   TALBOT SMITH, Senior District Judge.

The case before us presents as the principal issue the retroactivity of a new rule of criminal procedure relating to lesser-included offenses.

The background of facts is relatively simple. The defendant, an Indian, subsequent to a drinking fracas in which he allegedly stabbed several persons, was brought to trial under an indictment charging violation of 18 U.S.C. § 1153, specifically, that he did maliciously stab [or] cut named victims with intent to kill, wound, or maim.

At the conclusion of the trial defendant requested the following instruction, defendant’s No. 17:

If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of maliciously stabbing with intent to kill, wound or maim, and you shall not then consider the lesser included offenses hereafter set forth in this instruction. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one or more of the foregoing elements, it is your duty to find the defendant not guilty of the crime of maliciously stabbing with intent to kill, wound or maim. You shall then proceed to consider the lesser included offense of “assault with intent to inflict great bodily injury.”
If you find from the evidence beyond a reasonable doubt that each of the foregoing material elements is true, it is your duty to find the defendant guilty of the crime of “assault with intent to inflict great bodily injury,” and you shall not then consider the lesser indluced (sic) offense hereafter set forth in this instruction. On the other hand, if you find that the state has failed to prove beyond a reasonable doubt any one or more of the foregoing material elements, it is your duty to find the defendant not guilty of the crime of assault with intent to inflict great bodily injury. You shall then proceed to consider the lesser in-eluded offense of “unlawfully striking or wounding another.”

As to such instruction the following colloquy occurred:

[The Court] As to Defendant’s Requested Instruction 17, my understanding is that defense counsel indicates that he wants it not to be given.
Mr. Mason: That is correct, your Honor.
The Court: And that his motivation in presenting it was that if I had intended to give “a lesser included offense instruction" he would like it in this language. Am I speaking correctly ?
Mr. Mason: That is correct, your Honor.
The Court: Accordingly it will be marked refused.
Mr. Mason: The only objection I would enter to the instructions that have been refused would be Instruction No. 4.

The Court then read the instructions, excluding defendant’s above-quoted Requested Instruction No. 17. Following the instructions there were no further objections by counsel.

It was the jury’s verdict upon January 31, 1973, that appellant was guilty of the offense charged. Appellant’s motion for judgment of acquittal notwithstanding verdict, or in the alternative for a new trial, was denied and this appeal followed.

It is the assertion of appellant upon this appeal that the court erred in refusing the lesser-included offense instruction prayed. Subsequent to trial and pending appeal the Supreme Court held on May 29, 1973, in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) that an Indian is entitled to lesser-included offense instructions under proper circumstances, despite the fact that such lesser offense is not one of the crimes enumerated in the Indian Major Crimes Act, supra, and thus arguably remained under tribal jurisdiction.

The government, not disputing, of course, the general applicability of the Keeble ruling, argues, however, that “It did not say that a lesser included offense could not be waived by counsel” and that in the case before us such instruction was, as before quoted, expressly waived by counsel as part of his trial strategy. It urges, as well, the appellant’s noncompliance with Fed.R.Crim. P. 30.

This rule has been upheld by us on numerous occasions, and we do not depart therefrom. Moreover, strategic choices as to the conduct of a trial, deliberately made and employed by counsel, cannot, if they go awry, serve as the basis for a later appeal. However, in the case before us, there was recent and unequivocal authority in this circuit denying precisely the instruction sought. United States v. Keeble, 459 F.2d 757 (8th Cir. 1972); Kills Crow v. United States, 451 F.2d 323 (8th Cir. 1971). In this situation the holding in United States v. Scott, 425 F.2d 55 (9th Cir. 1970) is peculiarly appropriate:

At the time of Scott’s trial, there was a solid wall of circuit court authority, including our own, sustaining the presumption against constitutional attack, [citing cases]
An exception would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy-result would be that we would encourage defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency. We conclude 'that Scott’s failure to except did not waive the point on appeal.- [footnote omitted] [425 F.2d at 57-58.]

Nor is the doctrine of waiver more helpful to the government. It is clear that the appellant did not intentionally and knowingly relinquish any then-existing right he had to the instruction here involved. See United States v. Liguori, 430 F.2d 842 (2nd Cir. 1970). Under these circumstances the failure of appellant to request the instruction or to object to its refusal does not foreclose his raising the issue on this appeal or justify our rejection of his arguments on such grounds.

It remains to examine the applicability of a lesser-included offense instruction as to the facts in the record before us. The jury problem the courts seek to ease through the employment of the lesser-included offense device is well expressed by the jury that allegedly .sought to return the verdict, “We find the defendant almost guilty.”

In this situation, under settled law, embodying constitutional requirements, and in accordance with our repeated instructions, a jury not wholly convinced beyond a reasonable doubt of the defendant’s guilt is under a duty to acquit. As the court in Keeble, supra, expressed it:

True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal.

However, as the court then pointed out:

But a defendant is entitled to a lesser offense instruction — in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. (Emphasis in original)

Thus, without the lesser-included offense charge, the jury has been “presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, [the offense charged] or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault — could not have resulted in a different verdict.” The lesser-included offense doctrine, then, originally conceived and employed as a device to aid the prosecution (a fail-back position, so to speak, in event the proofs failed to live up to expectations) has become, through the years, a useful tool of the defense, employed as a hoped-for mitigation of punishment for the greater offense, and has with this case acquired possible constitutional dimensions.

The requirements for the proper employment of the instruction are summarized in United States v. Whitaker, 144 U.S.App.D.C. 344, 447 F.2d 314 (1971):

[F]or the defense (or prosecution) to be entitled to a lesser included offense charge five conditions must be met. First, as with most other charges, a proper request must be made. Second, the elements of the lesser offense must be identical to part of the elements of the greater offense * * * Third, there must be some evidence which would justify conviction of the lesser offense. Fourth, the proof on the element or elements differentiating the two crimes must be sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense. Fifth, “[i]n general the chargeability of lesser included offenses rests on a principle of mutuality, that if proper, a charge may be demanded by either the prosecution or defense.” (Footnotes omitted, save for No.8 infra.) 447 F.2d at 317.

Upon the facts before us all of the above enumerated conditions are met. We have therefore ruled on the element of proper request for such instruction. The lesser crime of assault is part of the elements of the larger crime charged and the record is clear with respect thereto. The element or elements differentiating the two crimes, malice and specific intent, are, due to the drinking involved, sufficiently in dispute so that the jury might consistently find the defendant innocent of the greater crime and guilty of the lesser-included. It is thus our conclusion that a lesser-ineluded offense instruction is warranted upon the evidence presented

Appellant urges to us that the “new” criminal procedure enunciated in Keeble be applied with full retrospective effect. We need not, in the resolution of this issue, re-examine the considerations leading to the Supreme Court’s decision in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) that the traditional concept of retroactivity might, in appropriate cases and in the interests of justice, give way to a concept of prospective limitation, in whole or in part. Our problem is the application of the doctrine to the facts here presented.

The contours of our inquiry, the test we apply to ascertain whether “new” constitutional protections in the area of criminal procedure are to be applied retroactively, is enunciated in Michigan v. Payne, and calls for the application of a three-pronged test:

“(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive.application of the new standards.” Stovall v. Denno, 388 U.S. 293, 297 [87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199] (1967). See also Linkletter v. Walker, 381 U.S. 618, 629, 636 [85 S.Ct. 1731, 1737, 1741, 14 L.Ed.2d 601] (1965); Tehan v. Shott, 382 U.S. 406, 410-418 [86 S.Ct. 459, 461-466, 15 L.Ed.2d 453] (1966); Johnson v. New Jersey, 384 U.S. 719, 726-727 [86 S.Ct. 1772, 1777-1778, 16 L.Ed.2d 882] (1966). 412 U.S. at 51. 93 S.Ct. at 1969.

“Foremost among these factors,” it was held in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), “is the purpose to be served by .the new constitutional rule.”

The purpose here to be served, that of offering to the jury the option to convict, should the' facts warrant, of a less serious offense, obviously does not bear upon the integrity and fairness of the jury’s fact-finding function, a factor heavily weighted by the courts in deciding for or against retroactivity. Here the determination of whatever of the facts that may remain in doubt, as hypothesized in the Keeble rationale, will neither be aided nor hampered by the instruction under consideration. Such determination will, however, affect the verdict and to this extent may fairly be construed as going to the “fairness of the trial” in its broadest sense, or, alternatively, as “touching on the ‘integrity’ of one aspect of the judicial process.’ Here, in attempting to assess the jury’s possible exercise of its “ ‘mercy-dispensing power’ ” with respect to a lesser-included offense, we are in the realm of the sheerest speculation. The best we can do is to weigh probabilities, for, as was made clear in Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree.” 384 U.S. at 728-729, 86 S.Ct. at 1778.

In this situation, on balance, we consider the factors of, primarily, a procedural change that has no bearing on the fact-finding process, one that is based upon the premise that the “defendant is plainly guilty of some offense” (Keeble, supra), and one effecting an unheralded change in procedures relied upon by law enforcement officials for many years. It is our judgment upon these and other factors we have examined that full retroactive application would have a deleterious effect upon the administration of justice, and that, by no standards heretofore enunciated, can we give the new procedure full retroactive application.

To the above, however, there is a caveat, namely, that in a situation where a defendant’s case has not reached final judgment at the time of the rendition of the new rule, the plainest considerations of justice and equity require that the rule apply to such pending case. Linkletter v. Walker, supra. See, also, Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Pendergrast v. United States, 135 U.S.App.D.C. 20, 416 F.2d 776 (1969), cert. denied 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969). Such, as will be sien from the dates heretofore listed, is the situation here. Accordingly, the case is

Reversed and remanded for new trial.

      . 18 U.S.C. § 1153. “Offenses committed within Indian country”
      Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, rape, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to kill, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and larceny within the Indian country, shall be subject to the same laws and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.
      * :¡s * # *
      As used in this section, the offenses of burglary, assault with a dangerous weapon, assault resulting in serious bodily injury, and incest shall be defined and punished in accordance with the laws 'of the State in which such offense was committed. (Emphasis added)
      Section 28-410 of the Revised Statutes of Nebraska provides in part: “Whoever shall maliciously * * * stab [or] cut * * * any other person with intent to kill, wound or maim such person,” shall be punished.

      . This instruction, as to which no issue is presented on appeal, related to objections and rulings thereon.

      . “No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to' consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury.”

      . Friedman v. United States, 381 F.2d 155 (8th Cir. 1967); Harding v. United States, 337 F.2d 254 (8th Cir. 1964); Johnson v. United States, 291 F.2d 150 (8th Cir. 1961).

      . Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Robinson v. United States, 448 F.2d 1255 (8th Cir. 1971); Cohen v. United States, 297 F.2d 760 (9th Cir. 1962).

      . Osborn, The Mind of the Juror (1937), p. 30. See, also, Compromise Verdicts in Criminal Cases, 37 Neb.L.Rev. 802 (1958).

      . 412 U.S. at 212, 93 S.Ct. at 1997.

      . Id. at 212-213, 93 S.Ct. at 1998. Without the assumption, we note, of defendant’s guilt of “some offense,” tbe use of a “lesser-in-eluded” instruction suggests a result of great dubiety. See People v. Seller, 246 N.Y. 262, 158 N.E. 615 (1927).

      . Id. at 213 of 412 U.S., at 1998 of 93 S.Ct.

      . United States v. Markis, 352 F.2d 860 (2nd Cir. 1965), vacated on other grounds 387 U.S. 425, 87 S.Ct. 1709, 18 L.Ed.2d 864 (1967). The early cases may be found in 10 Halsbury’s Laws of England, § 791 (Third, Simond’s Edition, 1955).

      . 8 Moore’s Federal Practice, ¶ 31.03[1].

      . “We cannot say that the availability of a third option — convicting the defendant of simple assault — could not have resulted in a different verdict. Indeed, while we have never explicitly held that the Due Process Clause of the Fifth Amendment guarantees the right of a defendant to have the jury "instructed on a lesser included offense, it is nevertheless dear that a construction of the Major Crimes Act to preclude such an instruction would raise difficult constitutional questions. In view of our interpretation of the Act, those are questions that we need not face.” (footnote omitted) 412 U.S. at 213, 93 S.Ct. at 1998.

      . Sansome v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1964). Of course if there is no dispute about the additional fact or facts which, coupled with the lesser included offense, do constitute a greater offense charged originally in the indictment, then the defendant has no right to a lesser included offense charge to the jury. For the trial court to give such a charge would simply be to invite the jury to exercise a degree of mercy by finding him guilty of a lighter offense, when the proof truly justified conviction as charged.

      . Sec. 28--410 Neb.Rev.Stat. The trial1 court’s similar eondusion, upon analysis of the relevant Nebraska statutes, is found in the court’s Memorandum and Order of January 2, 1973.

      . With respect to Whitaker’s fifth requirement, mutuality, reservations with respect thereto were expressed in Keeble, supra at 214 fn. 14 of 412 U.S., 93 S.Ct. 1993, 1998, but ruling thereon was held to be “a question that we need not now decide.” A like observation applies, on the record before us, to the case at bar.

      . E. g., Norton v. Shelbey County, 118 U.S. 425, 6 S.Ct. 1121, 30 L.Ed. 178 (1886).

      . There has been much writing in this area, both pre- and post-LmfcZeifer. Perceptive analyses, with supporting authority, will be found in 71 Yale 907 (1962) Prospective Overruling and Retroactive Application in Federal Courts; Justice Schaeffer’s The Control of “Sunbursts”: Techniques of Prospective Overruling, 42 NYU L.Rev. 631 (1967) ; Judge Fairchild’s Limitation of New Judge-Made Law to Prospective Effect Only; Prospective Overruling or Sunbursting, 51 Marq.L.Rev. 254 (1967) ; Hasler, Retroactivity Rethought; The Hidden Costs, 24 Maine L.Rev. 1 (1972) ; Haddad, Retroactivity Should Be Rethought; A Call for the End of the Linkletter Doctrine, 60 J.Crim.L. 417 (1969) ; Mallamud, Prospective Limitation and The Rights of the Accused, 56 Ia.L.Rev. 321 (1970) ; Retroactivity of Criminal Procedure Decisions, 55 Ia.L.Rev. 1309 (1970).

      . “Thus, the courts have four alternatives in any specific case for deciding the question of retroactive application. The first alternative is full retroactivity, the new rule applying to all past, present, and future cases. The second alternative is limited retro-activity, which would apply the new rule to parties at bar and cases not final at the time of decision. The third alternative is limited prospectivity, which would apply the new rule to the parties at bar and to cases commenced after the time of decision. The fourth alternative is pure prospectivity, the new rule applying only to future cases, and not even to the litigants before the court.” (footnote omitted) 55 Ia.L.Rev. at 1316 (1970) . See, also, Harlan, X, dissenting in Desist v. United States, 394 U.S. at 257, 89 S.Ct. 1030 (1969).

      . 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973).

      . Linkletter v. Walker, supra, at 629 of 381 U.S., 85 S.Ct. 1731.

      . “Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.
      “It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials.” Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1970), plurality opinion. See also Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 1922, 20 L.Ed.2d 1100 (1968) : “ We have * * * retroactively applied rules of criminal procedure fashioned to correct serious flaws in the fact-finding process at trial.’ Stovall v. Denno, 388 U.S. 293, 298 [87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199]. See Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908]; Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799]; Reck v. Pate, 367 U.S. 433 [81 S.Ct. 1541, 6 L.Ed.2d 948]; Linkletter v. Walker, 381 U.S. 618, 639 [85 S.Ct. 1731, 1743, 14 L.Ed.2d 601] n. 20; Johnson v. New Jersey, 384 U.S. 719, 727-728 [86 S.Ct. 1772, 1777-1778, 16 L.Ed.2d 882]; cf. Brookhart v. Janis, 384 U.S. 1 [86 S.Ct. 1245, 16 L.Ed.2d 314].”

      . Linkletter, supra, at 639, 85 S.Ct. 1731.

      . Michigan v. Payne, supra, at 52 of 412 U.S., at 1969 of 93 S.Ct.

      . United States v. Whitaker, supra, at 319 of 447 F.2d.

      . Desist v. United States, supra.

      . Cf. Linkletter, supra, at 636 of 381 U.S., 85 S.Ct. 1731.

      . “[I]n this ease, we are concerned only with whether the exclusionary principle enunciated in Mapp applied to state court convictions which had become • final5 before
      “5. By final we mean when the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio [367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081].” 381 U.S. at 622, 85 S.Ct. at 1734.
      rendition of our opinion.
      * * s}: }}« #


author: MOORE, Circuit Judge: OAKES, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Michael and Janet FALLEY, Appellants.
    No. 220, Docket 73-1660.
    United. States Court of Appeals, Second Circuit.
    Argued Sept. 28, 1973.
    Decided Nov. 28, 1973.

      Oakes, Circuit Judge, concurred in part and dissented in part, with opinion.

      Robert Polstein, New York City (Or-ans, Elsen & Polstein, and Anthony J. Ferrara, Jr., New York City, of counsel), for appellants.
    Robert L. Clarey, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., for the Eastern District of New York, Brooklyn, N. Y., and L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.
    Before MOORE, MULLIGAN and OAKES, Circuit Judges.
   MOORE, Circuit Judge:

Appellants Michael and Janet Falley, together with David Stolzenberg, Marcia Stolzenberg and Nicholas Christon, were charged in eight substantive counts with violations of Section 2(h) of the Narcotic Drugs Import and Export Act, 21 U. S.C. § 176a and the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 et seq. and in a ninth count with conspiracy to violate said laws. At the close of the government’s case, the trial court dismissed the indictment as to Marcia Stolzenberg, dismissed counts 2 and 6 as to her husband David Stolzenberg, and counts 7 and 8 as to all defendants. The jury returned a verdict of guilty as to the Fal-leys and David Stolzenberg on the conspiracy count but was unable to agree on the remaining substantive counts.

The indictment alleged that the named defendants and others had been importing hashish into the United States from June of 1970 through April of 1972. The government based its case mainly on the testimony of two informers — David Gibbons and Nicholas Christon. Christen testified to six substantive counts alleging that the conspirators had smuggled hashish into the United States from India in table tops and brass nameplates. No table tops, brass nameplates or hashish involved in any of those charges were ever produced by the government. Gibbons testified that on two occasions, in October and December, 1970, he smuggled hashish into the United States from Morocco. None of that hashish was ever produced by the government. David Stolzenberg and the Falleys were each sentenced to a $15,000 fine and three years imprisonment on a conspiracy count. In addition Michael Falley was adjudged guilty of two separate contempts of court for refusing to produce his and his wife’s passports. He was sentenced to fifteen days imprisonment upon each contempt.

The indictment alleged that during a two year period, beginning approximately April, 1970 and ending in approximately April, 1972, appellants, together with their co-defendant David Stolzen-berg, engaged in smuggling some two thousand pounds of hashish from locations in Spain, Morocco and India into the United States for resale to distributors of hashish in the New York area. The government claimed that defendants accomplished this primarily by arranging for the concealment of quantities of hashish inside table tops and brass nameplates which were then shipped from Morocco, Spain or India to dummy companies set up for this purpose by appellants and Stolzenberg in New York. The individual shipments ranged in weight from fifty to one hundred pounds and occurred on a more or less monthly basis during this two year period. In addition, there was also testimony that on occasion the conspirators had received smaller quantities of hashish from abroad through a courier, David Gibbons.

In order to prove this smuggling scheme, the government relied on the testimony of two accomplice witnesses, Gibbons, the courier, and Christon, whose function in the conspiracy was to act as a salesman to middle level distributors. Christon testified concerning the partnership arrangement between himself, appellants and David Stolzenberg and as to the arrangements whereby hashish, concealed in furniture and artifacts, would be shipped to the dummy companies. Christon further testified concerning nine separate hashish importations in which he had participated with appellants and Stolzenberg. The second accomplice witness, Gibbons, testified that on two separate occasions he had smuggled hashish into New York which he delivered to appellants and David Stolzenberg.

In order to corroborate Christon’s testimony, the government called two airport customs brokers, Thomas Coscetta and Vito Pepitone. Through customs broker Coscetta, the government showed six separate shipments of brass nameplates from New Delhi, India, to Leo Importing Company, Inc., a corporation operated by the Falleys.

In order to bolster and corroborate Gibbons’ testimony the government introduced into evidence a suitcase containing five kilograms of hashish together with small quantities of heroin and pharmaceutical paraphernalia. This suitcase, which belonged to Gibbons, had been seized on December 26, 1971, following a routine customs inspection of Gibbons’ baggage at Kennedy Airport, during which the hashish was discovered. Gibbons, who had been arrested following this discovery, testified that this shipment of hashish was to be delivered to David Stalzenberg only, and had nothing to do with the Falleys. This attempted importation by Gibbons was wholly unrelated to the incidents which were the subject matter of the indictment.

To further corroborate the accomplice witnesses’ testimony, the government put into evidence travel agency records and testimony by a travel agent showing that during the period charged in the conspiracy appellants and Stolzenberg had spent in excess of $20,000 for air fare alone and had traveled to Spain, Morocco and India. In addition, Judge Weinstein permitted the government to put into evidence the Falleys’ 1970 and 1971 federal income tax returns.

During the course of trial Judge Weinstein ordered the Falleys to produce their passports pursuant to a government subpoena. Michael Falley, who had custody of both his wife’s passport and his own, refused to comply with this order. For these refusals Judge Wein-stein sentenced Michael Falley to consecutive sentences of 15 days in prison, to be served in addition to the sentence imposed upon him by the conspiracy count on which he was convicted.

I.

The first error stressed by appellants was the introduction of the suitcase and the circumstances under which it was introduced. During the course of Gibbons’ direct examination, the prosecuting attorney asked that a suitcase be accepted into evidence. A uniformed customs inspector brought the suitcase to the counsel table. The suitcase was admitted into evidence over the strenuous objection of defense counsel. The customs inspector in front of the jury then proceeded to remove some bags from the suitcase and to display them on the prosecution counsel’s table. After he had removed several bags, the court ordered him to stop. At this point the prosecutor remarked: “Okay, I’ll leave it in. If there are going to be that many, I’ll leave it in.” Appellant’s Appendix at 100. Gibbons identified the suitcase as one which he had tried to bring into the United States on December 26, 1971. He then came down from the stand and identified the contents of the bags as hashish. A quantity of heroin and some hypodermic syringes were also found in the suitcase. After the identification Judge Weinstein ordered that the suitcase and its contents be removed from the courtroom because the odor emanating from it was marked and offensive.

Defense counsel protested vehemently throughout this presentation. Again and again he argued that the suitcase had no bearing on the case being presented against his clients. The prosecution responded that the relevance of the evidence would be established. Unfortunately, the prosecution’s prediction never came true. In admitting the suitcase, the trial court decided that it was brought into court for one reason only —to buttress the credibility of accomplice Gibbons. According to the trial court, the prosecution wanted to show that Gibbons’ testimony was not entirely a figment of his imagination; it wanted to prove, in the most concrete way possible, that Gibbons was indeed a smuggler of hashish.

It must be remembered that no hashish connected with the conspiracy as to which the Falleys were convicted was ever produced. Although the suitcase and its contents, admittedly brought into this country by Gibbons, were relevant to brand him as a smuggler and supported the court’s credibility theory to this extent, this relevance was outweighed by the prejudice which might have been engendered in the minds of the jury, which might easily have related the hashish to the Falleys. Had the narcotics, including the suitcase and the paraphernalia displayed here, been the subject of the indictment, their presence and introduction into evidence would have been proper — but they were not.

The thesis that the relevance of the exhibit was outweighed by its prejudicial impact upon the jury is strengthened by an alternative reading of the record.

The government was certain that there was a smuggling conspiracy but it apparently felt that it had to show some hashish to the jury in order to make the conspiracy more believable and concrete. It had not been able to produce any hashish actually imported by the Falleys so, in effect, it went out and borrowed some for the simple purpose of exhibition. The fact that the drugs produced at the trial could be peripherally related to the proceedings is more of an ex post facto rationalization of the prosecution’s behavior than an accurate description of its motivation.

The government argues that the possibilities for confusion were neutralized by the instructions given by the court. It is true that when the suitcase was first introduced, the trial court admonished the jury that “ . . . the defendants are not being accused of having anything to do with this shipment. We are not trying that case at all.” Appellants’ Appendix at 100. Likewise, a short time later, when one of the defense attorneys asked for a limiting instruction for defendant Marcia Stolzen-berg to the effect that neither the suitcase nor any of the testimony concerning the December, 1971 smuggling attempt had any' substantive relation to any crime for which she was being tried, the instruction was granted and the court instructed the jury in the following words: “Yes, none of this has any bearing on the case of Marcia Stol-zenberg.” Appellants’ Appendix at 103. However, when asked to give the same limiting instruction by counsel for the Falleys (something that it had already done in a general way), the court refused. Whatever prejudice and confusion was engendered by the presentation of the suitcase may well have been exacerbated by the unexplained fluctuation of the trial court’s attitude.

Even if the trial court had given the requested limiting instruction, however, it is highly questionable whether the admission of the suitcase would then have been proper. Under the circumstances the court could not, with a mere verbal instruction, undo the sensation created by the introduction of this large quantity of illegal drugs into the courtroom. The prejudice, unfairly enlisted, would have undoubtedly continued to color the proceedings to defendants’ prejudice.

H.

At the outset of the trial, the government made it clear that it intended to produce evidence that appellants, together with their co-defendant, David Stolzenberg, had spent vast sums of money during the pendency of the conspiracy for which they stand convicted. Speeifically, the prosecution introduced documents and testimony from a travel agent to the effect that appellants had spent $20,000 on air travel in two years. In addition to establishing the inference that such large sums of money were obtained illegally, the documentation of appellants’ travel expenses supported the prosecution’s claim that appellants had arranged drug transactions in numerous ports of call. For the most part, however, as the prosecution’s summation indicates, the government was interested in establishing the hypothesis that these substantial expenditures were made pos-v sible by ill-gotten gains.

The only foundation laid by the prosecution for the introduction of these expenditures consisted of a presentation of appellants’ 1970 and 1971 income tax returns. These tax returns were offered early in the trial to negate the existence of any legitimate source of income or wealth to justify these expenditures. Basically, appellants argue that the income tax returns constituted an insufficient foundation for the introduction of the travel expenditures. They claim that the admission of the returns should have in turn been preceded by the laying of another, two-fold foundation. First, they argue that the government had the duty to prove that the appellants did not obtain the funds used for travel in a legal, though non-taxable manner (e. g., by bank loan). Second, they claim that the government was also under an obligation to establish defendants’ pre-conspiracy net worth.

Appellants’ first argument can be easily disposed of. The Supreme Court has held that in most cases “ . . . the Government is not required to negate every possible source of non-taxable income, a matter peculiarly within the knowledge of the defendant.” Holland v. United States, 348 U.S. 121, 138, 75 S.Ct. 127, 137, 99 L.Ed. 150 (1954). The only limitation on the operation of this principle is that the government may not “disregard explanations of the defendant reasonably susceptible of being checked.” Id. There is no evidence in the record to indicate that appellants had offered such explanations to the government.

Appellants’ second claim is that the law requires the prosecution, before it may attempt to imply an illegal source of income by producing proof of expenditures that are inconsistent with the sources of revenue reported on a defendant’s income tax return, to establish the defendant’s pre-conspiracy “net worth.” Appellants come to this conclusion by drawing an analogy between the case at bar and a group of cases known as the “net worth tax fraud” cases.

Since the “prohibition” era a “net worth theory” has been employed by the Treasury Department to convict persons of tax fraud. See Capone v. United States, 51 F.2d 609 (7th Cir. 1931); Guzik v. United States, 54 F.2d 618 (7th Cir. 1931). Under this theory the government would show that a defendant’s reported sources of income could not possibly support his standard of living. The jury was then free to draw the inference that such defendant had earned more than he had reported on his income tax forms and was therefore guilty of tax fraud. This theory was a potent weapon in establishing taxable income from undisclosed sources when all other efforts failed. In fact this theory enjoyed such great success that the United States Supeme Court was led to remark that: “The net worth method . has evolved from the final volley to the first shot in the Government’s battle for revenue, and its use in the ordinary income-bracket cases greatly increases the chances for error.” Holland v. United States, 348 U.S. 121, 126-27, 75 S.Ct. 127, 131, 99 L.Ed. 150 (1954). In Holland the Supreme Court held, inter alia, that before the government could present to the jury a comparison of the defendant’s reported income and his non-deductible expenditures, it must lay a foundation by establishing his opening net worth, i. e., the total net value of the taxpayer’s assets at the beginning of the period in question. When properly laid, this foundation reduces the number of possible legitimate hypotheses that can be adduced to explain the disparity between the defendant’s income and his expenditure. Since the defendant could no longer argue that he maintained his lifestyle out of his general wealth, the possibility that the expenditures were made with unreported funds is thus made more prominent.

There is an obvious analogy between these tax fraud eases and the case before us where the government has attempted to introduce evidence of high living from which the inference may be drawn that criminally obtained funds were being used by the defendants. Appellants claim that the same restrictions ought to apply to this type of case as apply to the net worth cases; that the government must supply a foundation for the introduction of the travel expenditures by showing that appellants could not have financed their travels from their general wealth.

There is some authority which supports appellants’ position. See Haas v. United States, 344 F.2d 56, 63-64 (8th Cir. 1965). However, the more widely accepted view seems to be that proof that a defendant is living far above the means provided by his disclosed income is of great probative value in a case involving a crime where the motive is financial gain. Furthermore, the establishment of a defendant’s opening net worth is not necessary to permit admission of such evidence. Lack of proof of prior impecunity is a matter of weight and not a matter of admissibility. United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972); United States v. Mirenda, 443 F.2d 1351 (9th Cir.), cert. denied, Verdugo-Medina v. United States, 404 U.S. 966, 92 S.Ct. 343, 30 L.Ed.2d 286 (1971); United States v. Crisp, 435 F.2d 354 (7th Cir. 1970, cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971); United States v. Brewer, 427 F.2d 409 (10th Cir. 1970).

This distinction between the treatment of the general net worth tax fraud cases and those cases, like the one at bar, where only a crime of financial gain is involved, results from the fact that in the former, the government generally relies for its conviction exclusively on the inference to be drawn from the financial evidence. Indeed, the entire theory was originally developed as a last resort, where no other evidence was admissible. In the typical case where a crime of financial gain is involved, however, the evidence presented by the prosecution will not be limited to a demonstration of financial discrepancy. Under ordinary circumstances, such a showing, standing alone, does not even make out a prima facie ease. Therefore, although the same difficulty of refutation is inherent in both types of cases there is no danger in this case that a failure in refutation would be completely conclusive on the merits. There is, then, no need to surround the introduction of this financial evidence with the exceptional safeguards found in the net worth tax fraud cases. The admission of this proof was proper.

III.

In addition to the suitcase, the income tax returns and the travel documents already discussed, the government relied upon the testimony of, and the various importation documents obtained from, Thomas Coscetta, the Falleys’ customs broker. Those exhibits established that the Falleys had imported brass nameplates from India during the course of the alleged conspiracy. Although those shipments had been examined by, and passed through customs inspectors without incident, appellants argue that these exhibits provided “powerful corroboration” of the accomplice testimony adduced by the government. Furthermore, appellants assert that the importation documents could only have been discovered as a result of a tainted lead obtained by an illegal search of the Fal-leys’ home. Since appellants consider the Coscetta testimony and documents “fruit of the poisonous tree” they urge that those documents should have been excluded at trial. We disagree.

There is evidence to support the opinion of the trial judge that the investigation of the customs brokers was caused by information legally obtained. In fact, the evidence suggests that the investigation began before the illegal seizures at the Falley home. In addition, Agent Connolly was asked whether the broker search had been aided by the seizure of the Falleys’ address book, and he responded that it had not.

The investigating agents suspected that the narcotics were being imported from India. Such importations would logically be handled by customs brokers at the port of entry. It would have been only a question of time before the government by a so-called saturation investigation, or otherwise, would have discovered the broker and the importation documents. Even if the address book had shortened or facilitated the investigation, it did not supply fruit sufficiently poisonous to be fatal.

In Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963), the Supreme Court stated that:

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959).

In United States v. Cole, 463 F.2d 163 (2d Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972), the defendant suggested that the government’s eavesdropping had been illegal and that it triggered the saturation investigation which uncovered the tax fraud scheme because it was the source from which the government first learned of that scheme. The trial court refused to suppress the findings of the investigation. The Court of Appeals, Friendly, /., affirmed, holding that the interviews provided a separate and independent ground for the investigation and that these interviews were, all things considered, the efficient cause of the investigation, stating at 173:

While Farber candidly admitted that the personal expense deductions [the illegally obtained information] “must have played some part” in his decision, it is clear both that he would never have sought — or obtained — a saturation investigation on that ground alone and that he would have sought it — and in fact obtained it — on Benton’s information alone [the legally obtained information]. Conduct is not a legal cause of an event if the event would have occurred withóut it. Prosser, Torts § 41 at 239 (1971 ed.).

Although the government has the burden of proving by a preponderance of the evidence, United States v. Schipani, 414 F.2d 1262 (2d Cir. 1969), that the evidence has not been tainted either indirectly or directly, an inquiry must first be made as to the cause of the investigation. If the investigation was in fact instigated by information that was discovered independently of the illegal intrusion and if the illegally obtained information would not have been, in and of itself, sufficient in the normal case to trigger this type of investigation, then the investigation has not been tainted and no indirect, derivative taint attaches to any of the evidence produced by the investigation. Second, the law focuses attention on the investigative findings themselves. If the evidence produced by the investigation was simply the normal output of that investigation, then the investigative findings have not been tainted directly.

IV.

Finally, appellant Michael Falley claims that his contempt conviction should be vacated because he rightfully asserted his Fifth Amendment privilege against self-incrimination by refusing to turn over his own passport and that of his wife for use as evidence against him. We are not persuaded by his argument and we therefore affirm the contempt conviction.

The Fifth Amendment can only be invoked to protect books or documents under certain circumstances. Simply stated, the privilege can be invoked to protect one’s own books which are in one’s own possession and which are self-incriminatory. The guaranty does not apply without this tripartite unity of ownership, possession and self-incrimination.

Appellant’s claim fails because the element of ownership is not present. Under the applicable federal regulations passports are declared to be the-property of the government. Just as in Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946), where the Supreme Court held that no Fifth Amendment guarantees interfered with the government’s seizure of gasoline ration tickets because as a matter of statutory declaration they were publicly owned, Fifth Amendment guarantees are not relevant to this ease.

Because we believe that the exhibition of the suitcase and its contents before the jury and their introduction into evidence must have had a highly prejudicial effect upon the jury despite the trial court’s cautionary statements and charge, we reverse and remand for a new trial as to the Falleys.

OAKES, Circuit Judge

(concurring in part, dissenting in part):

I agree with Parts I, II and IV of the majority opinion, but not, however, with Part III. The two address books of appellants that were illegally seized were lost by the Government on the eve of trial. We must, therefore, “strictly scrutinize” the Government’s claim — on which it has the burden of proof, United States v. Schipani, 414 F.2d 1262 (2d Cir. 1969), cert. denied, 397 U.S. 922, 90 S.Ct. 902, 25 L.Ed.2d 102 (1970) — that there was an independent source for the discovery of appellants’ customs broker. See United States v. Huss, 482 F.2d 38, 52 (2d Cir. 1973) (destruction of tapes from illegal wiretaps foreclosed appellant from pursuing issue of taint). The Government and the majority opinion rely on Customs Agent Connolly’s testimony that he only “cursorily” examined the illegally seized address books, and that he would have eventually obtained the name of the Falleys’ customs broker anyway by some sort of “saturation” investigation. This he explained as his contacting by telephone individual customs brokers to determine whether they had documents relating to a Michael or a Janet Falley, a David or Marcia Stolzenberg or a company named “Barter, Unlimited.” But in fact, Connolly had contacted by telephone what he said were “less than ten” of the brokers, of whom there were indeed 98, when his investigation was, as the Government brief rather cryptically concedes, “short circuited.” Brief at 16. According to the testimony of Coscetta, the Falleys’ customs broker, it would be “virtually impossible” to locate specific documents as a result of a telephone call. Moreover, he said that customs brokers’ files are by number of document, not by name of the consignee, so that to find the documents he actually did produce for the Government after a specific request, handling as he did about 1,000 transactions per month, he had to search some 24,000 separate items individually. At the very least what I think we should be talking about is whether there was a reasonable probability that the Government would have uncovered the Falleys’ shipments through its customs house telephone calls, not just a remote or perhaps hypothetical possibility that this would occur. See United States v. Paroutian, 299 F.2d 486, 489 (2d Cir. 1962). United States v. Cole, 463 F.2d 163 (2d Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 238, 34 L.Ed.2d 193 (1972), is not to the contrary; indeed there the court specifically said that it was not undermining the Paroutiun rule, which it stated was

not whether the government would have, in the normal course of events, discovered the evidence by independent legal sources, but whether in fact they did actually make the discovery from independent legal sources.

463 F.2d at 174. Here under Paroutian and Cole standards, my view is that there was taint.

The acceptance by the majority of the thin thread of evidence presented by the Government to show an “independent basis” for the discovery of appellants’ customs broker verges on adoption of a rule that would permit the Government to prevail in a “taint” hearing on the mere showing of a hypothetical independent source for the information obtained as the fruits of an illegal search or seizure. Only the other day, Mr. Justice White stated that “it is a significant constitutional question whether the ‘independent source’ exception to inadmissibility of fruits, Wong Sun [v. United States] . . . 371 U.S., at 487-488 [83 S.Ct. 407], encompasses a hypothetical as well as an, actual independent source.” Fitzpatrick v. New York, 414 U.S. 1050, 94 S.Ct. 554, 38 L.Ed.2d 338 (1973) (White, J., dissenting from denial of cert., joined by Douglas, J.). In doing so he also pointed out that the Second Circuit in Paroutian, supra, had rejected the “inevitable discovery” rule — to the effect that proper police investigation would in any event have resulted in the obtaining of the information. It seems to me that the panel majority here is in effect overruling Paroutian sub silentio.

Accordingly, I respectfully dissent, and would reverse and remand on this ground also.

      . In liis summary the prosecutor made the following argument:
      It all begins to mesh together. A man who in the space of less than two years has spent approximately $20,000 on airfare alone . . . . On a $7,000 salary in 1970 and a $3,000 salary in 1971
      Appellants’ Brief at 26.

      . Appellants claim that the documents were obtained from Mr. Coscetta and that his name was obtained by the government from an address book which the government concedes was seized illegally from the Falley home.

      . Q. Did you obtain the name Trans-Air Freight from any piece of paper taken from the Falleys’ home the day of the arrest?
      A. No, I did not.
      Appellants’ Appendix at 71.

      . 22 C.F.R. § 51.9 reads as follows:
      A passport shall at all times remain the property of the United States and shall be returned to the Government upon demand.

      . It might be pointed out parenthetically that even if appellant could successfully maintain the position that passports are private documents, he would still have to face the fact that he does not “own” his wife’s passport and therefore is in no position to withhold it from the court.

        See Fuller v. United States, 31 F.2d 747 (2d Cir.), cert. denied, 280 U.S. 556, 50 S.Ct. 17, 74 L.Ed. 612 (1929).

      . It is difficult to tell just what the Government means by this term. There appears to be only one meaning, viz., that by obtaining some other information the “saturation” investigation was no longer necessary. That information could come from only one of two sources, however, the now lost address books or as the result of a slip of paper on which was written an airway bill number and which was also illegally seized and indeed suppressed by the trial court.


author: McENTEE, Circuit Judge.

text:
    In the Matter of DCA DEVELOPMENT CORPORATION et al., Debtors. Petition of FRANCHI CONSTRUCTION CO., INC., Petitioner, Appellant.
    No. 73-1262.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1973.
    Decided Dec. 27, 1973.

      Robert Robinson, Boston, Mass., with whom Widett & Widett, Boston, Mass., was on brief, for appellant.
    Donald Forte, Jr., Boston, Mass., with whom Joseph W. Bartlett, and Ely, Bartlett, Brown & Proctor, Boston, Mass., were on brief, for Boston Financial Technology Group, Inc., appellee.
    Hertz N. Henkoff, Boston, Mass., with whom Barron & Stadfeld, Boston, Mass., was on brief, for James N. Langan, etc., appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   McENTEE, Circuit Judge.

This appeal arises out of proceedings for an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701 et seq. (1970). Appellant, an unsecured creditor of debtor DCA Development Corporation (DCA), challenges a transfer of DCA assets that was approved by both the referee and district court. Appellant contends (1) that it was denied its right as a creditor to a fair hearing because of insufficient notice; (2) that the transfer, as approved, provided inadequate consideration to DCA and was not in the best interests of creditors; and (3) that the findings of fact in the referee’s order were statutorily insufficient. We reject these contentions and affirm the validity of the transfer.

'The factual background is as follows. DCA filed a Chapter XI petition on February 5, 1973. At that time it had four categories of assets: (1) two tile manufacturing plants, inoperative since November 1972; (2) two wholly-owned subsidiaries, Development Corporation of America (Development) and DCA Builders, Inc. (Builders), both of which also petitioned for Chapter XI arrangements; (3) general partner interests in five limited partnerships engaged in housing projects; and (4) miscellaneous holdings of tile inventory, real estate and accounts receivables, much of which were depleted in value or subject to extensive liens and pledges.

This appeal concerns the general partner interests. With respect to each interest, DCA had executed development arrangements with the limited partnerships and then assigned the receivables (i. e., the limited partners’ contributions) due under the agreements to its subsidiary, Development. The subsidiary in turn granted Newton-Waltham Bank & Trust Company (the Bank) a security interest in the receivables to the extent of $1,447,000 owed by DCA to the Bank.

On April 12, 1973, DCA sought authority to engage in the following transaction : transfer four of its general partner interests, plus an option in the fifth, to Boston Financial Technology Group, Inc. (Boston Financial). According to DCA figures submitted to the referee, the four interests at that time were burdened by $1,330,200 in liabilities, of which $694,200 was owed to Boston Financial. The deal also called for Development to tranfer to Boston Financial the related receivables, valued at $2,393,200 but subject to the Bank’s $1,447,000 security interest. In addition, the Bank would release DCA from all claims and Boston Financial would pay Development $100,000, spread over six months. At DCA’s request the referee agreed to hold a hearing the next morning on the proposed transfer. Appellant and other creditors received notice at about 3 p. m. on April 12 of the hearing to be held at 11 a. m. April 13.

The witnesses at the April 13 hearing represented DCA, Boston Financial and the limited partners. All of them testified in favor of the transfer. The witnesses stated that DCA’s cash reserves were so depleted that it could no longer take the steps necessary for government certification of the housing projects, all of which had been halted close to completion. Without certification the limited partners would not be obligated to pay their contributions, which were the only meaningful assets left to DCA and its subsidiaries. Therefore, speedy transfer of the general partner interests to a more stable entity was deemed essential if the projects were to be completed and any value was to be left with DCA for the benefit of its creditors. This testimony was subject to vigorous cross-examination by counsel for the creditors.

Appellant’s counsel attended the hearing and participated in the cross-examination. He also filed an answer (1) stating that appellant had insufficient time to prepare an adequate response or defense, (2) denying generally the allegations in the petition to transfer, (3) asserting inadequacy of consideration for the assets, and (4) alleging that Boston Financial and the Bank would receive preferential treatment and that the transfer was not in the best interests of the creditors. The referee adjourned the April 13 hearing without taking any action or setting a date for another hearing.

At 11 a. m. April 20, appellant was formally notified of a second hearing, this one to be held at 4 p. m. on the same day. In the intervening week, following meetings between the creditors’ committee and Boston Financial, the transfer proposal was altered to increase the cash consideration to Development to $285,000.® At this hearing Boston Financial representatives stated that unless the referee approved the transfer that day, they would have to withdraw the offer. Appellant’s counsel continued to object to the transfer and again claimed insufficient notice to prepare an adequate response. This time the referee approved the transfer, as amended, and the district court denied appellant’s petition for review. On June 27, 1973, DC A was adjudicated bankrupt after failing to effect a plan of arrangement under Chapter XI.

In seeking to unwind the transfer, appellant’s principal contention is that it was denied a fair hearing below because of insufficient notice. The Bankruptcy Act generally grants the referee and district court considerable discretion on this matter. Bankruptcy Act § 313(2), 11 U.S.C. § 713(2) (1970), permits the sale of “any property” of a Chapter XI debtor “upon such notice as the court may prescribe.” Similarly, Bankruptcy Act § 315, 11 U. S.C. § 715 (1970), provides that when not otherwise specified the court shall designate “the time within which notice shall be given.” In short, these provisions merely require such notice and opportunity for a hearing as is reasonable and appropriate in each particular case. See In re Plaza Towers, Inc., 294 F.Supp. 714, 718 (E.D.La.1967) (Chapter X proceeding); cf. In re Wood & Henderson, 210 U.S. 246, 253, 28 S.Ct. 621, 52 L.Ed. 1046 (1908). This is nothing more than traditional Due Process Clause analysis. Gleeson v. Carr, 219 F.2d 64, 67 (9th Cir.), cert. denied, 350 U.S. 827, 76 S.Ct. 56, 100 L.Ed. 738, rehearing denied, 350 U.S. 897, 76 S.Ct. 149, 100 L.Ed. 789 (1955) (Chapter X proceeding). The court in each case must balance the individual’s interest in adequate procedure against the overall interest of efficient, final resolution of claims. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The latter interest is particularly important in proceedings under the Bankruptcy Act, where delay can often result in diminution of corporate assets with no corresponding benefit to creditors. See In re Inter-City Trust, 295 F. 495, 497 (1st Cir.), cert. denied, 265 U.S. 589, 44 S.Ct. 635, 68 L.Ed. 1194 (1924).

Moreover, even where formal notice to affected parties is omitted or is insufficient, informal or constructive-notice which provides them with the same opportunity for a fair hearing can satisfy the procedural requirements of the Bankruptcy Act. See, e. g., Ferguson v. Bucks County Farms, Inc., 280 F.2d 739, 743 (3d Cir. 1960); Harris v. Capehart-Farnsworth Corp., 207 F.2d 512, 517 (8th Cir. 1953); Kattelman v. Madden, 88 F.2d 858, 863 (8th Cir. 1937); In re Eatsum Prods. Corp., 286 F. 447, 448-449 (S.D.Fla.1923).

In the instant case, it is clear that appellant received brief formal notice of both the April 13 and April 20 hearings: twenty hours for the first and five hours for the second. But it is also clear that appellant had one full week between the two hearings in which it could have prepared a defense or response to the transfer proposal. See Ferguson v. Bucks County Farms, Inc., supra,. Appellant concedes that it did nothing during that week, even though it was fully apprised at the April 13 hearing of the details of the proposal and the arguments being made in support of it. Appellant seeks to justify its inaction by claiming that the referee’s failure at the first hearing to fix a date for the second one implied that no further hearings would be held. We do not think this was a reasonable inference. But even if appellant did not expect the referee to call another hearing, it should have begun immediately to seek new evidence against the proposal or a better offer elsewhere so that it could petition the referee on its own motion for another hearing. Instead, it remained idle, and now seeks the opportunity to do for the first time what it should have been doing earlier. In contrast to appellant’s inaction, the creditors’ committee took the opportunity during the week between hearings to meet with Boston Financial concerning the transfer proposal. These meetings apparently resulted in the increase in consideration from $100,000 to $285,000, after which the committee voiced its approval of the transfer to the referee. Counsel for appellant conceded at oral argument that he was. aware of the creditors’ committee meetings during the week between hearings but deliberately refrained from participating in them on orders from his client. Thus, appellant’s inaction was not solely due to ignorance but involved a good measure of willfulness. On this set of facts, we hold that the notice accorded the appellant with respect to the transfer of assets was sufficient to satisfy the procedural requirements of the Bankruptcy Act. .

Having found that appellant’s procedural rights were satisfied, it follows that we must affirm the referee’s factual findings on the merits of the transfer unless they were clearly erroneous. The referee found that DCA was subject to extensive liabilities and unable to fulfill its responsibilities with respect to the general partner interests. He further found that the transfer of the interests to Boston Financial would relieve DCA of the connected liabilities and that the consideration to be paid Development for the receivables was “more than adequate.” He therefore concluded that the transfer was in the best interests of the creditors. On the record before us, these findings are not clearly erroneous. Appellant does not really argue otherwise. Instead, it contends that if given the opportunity, it might have been able to add new evidence to the record that would indicate inadequacy of consideration. But appellant had that opportunity and simply failed to utilize it. Cf. Arkwright Mut. Ins. Co. v. Bargain City, U.S.A., Inc., 373 F.2d 701, 706 (3d Cir.), cert. denied, 389 U.S. 825, 88 S.Ct. 63, 19 L.Ed.2d 79 (1967).

Finally, appellant challenges the transfer on the ground that the referee violated Fed.R.Civ.P. 52(a) by failing to include sufficiently detailed findings of fact in his April 20 order of approval. It acknowledges, however, that the referee included a sufficiently detailed set of findings in his certificate to the district court, thus insuring that the court had a complete understanding of the reasons behind the order. Appellant contends that a failure to set forth adequate findings in the order itself cannot be cured in a later certificate, but instead requires remand of the case to the referee. This per se approach has been adopted by one court. In re Woody, 248 F.Supp. 855, 866 (W.D.Mo.1966), modified in part on other grounds sub nom. Farmers Bank v. Julian, 383 F.2d 314 (8th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 593, 19 L.Ed.2d 662 (1967), reversed in part on other grounds sub nom. First Nat’l Bank v. Julian, 383 F.2d 329 (8th Cir. 1967). However, we cannot reconcile such a rigid rule with the purposes of the Bankruptcy Act, which require flexibility and efficiency. For example, in the instant case, if the referee had been compelled to draft an order containing detailed findings of fact, he might not have been able to issue the order on the 20th despite his finding that the offer by Boston Financial would be withdrawn after that date. Moreover, if we did remand, the referee presumably would only restate the findings now included in the certificate, so that nothing of substance would have been gained. It is, of course, of the utmost importance that the referee support his orders with adequately-stated findings of fact so that the courts can review them. Ordinarily such findings should accompany the orders. However, we agree with the Sixth Circuit that where, as here, findings of fact in the referee’s certificate supplement those in his initial order so as to provide the district court with a complete understanding of his reasons, the requirements of Fed.R.Civ.P. 52(a) have been satisfied. See In re D.I.A. Sales Corp., 339 F.2d 175 (6th Cir. 1964); cf. In re Berman & Co., 343 F.2d 125 (6th Cir. 1965).

Affirmed.

      . Appellant’s claims against DCA exceed $1,000,000.

      . Additional background information can be found in In re DCA Dev. Corp., 360 F.Supp. 162 (D.Mass.1973), a separate decision by the district court arising from the same Chapter XI proceedings.

      . The DCA figures also listed $292,500 in liabilities attributable to the fifth general partner interest, on which Boston Financial would acquire an option.

      . These debts to Boston Financial were listed as “Commissions Due,” arising from Boston Financial’s work as syndicator of the four limited partnerships in which it would now acquire general partner interests. Boston Financial was not the syndicator of the fifth limited partnership. Counting other debts, DCA owed Boston Financial a total of $857,000 at the time of this proposal.

      . There was also $600,000 in receivables due in connection with the fifth limited partnership.

      . If Boston Financial chose to acquire the fifth general partnership interest as well, the proposal would have increased the total consideration to $118,500.

      . Certification of the housing projects by the Department of Housing and Urban Development required their completion and the rental of 95% of their capacity. According to testimony by Samuel Perkins, DCA’s president, construction had been halted short of completion on all projects for the three months preceding the hearing because DCA was unable to continue paying the contractors. Perkins said that DCA also lacked the funds to retain a real estate firm to carry out the leasing of the units upon completion. He estimated that an additional expenditure of $500,000 to $750,000 would be needed to complete the units and rent them so as to obtain the certification.

      . The revised proposal called for an additional $65,000 to Development if the fifth general partner interest were also transferred.

      . Boston Financial explained that it had acquired consents from the limited partners for its substitution in place of DOA as a general partner, but that such consents expired on May 1, 1973. It said that it was unwilling to assume the general partner interests, with their attendant liabilities, prior to May 1 unless the referee approved and the ten day period in which to petition the district court for review of his order had expired. See Bankruptcy Act §§ 39(c), 302, 11 U.S.C. §§ 67(c), 702 (1970).

      . We reject a contention made by the trustee in bankruptcy that, absent his consent, appellant lacks standing to appeal the referee’s order. In Chapter XI proceedings, as in others governed by the Bankruptcy Act, any “aggrieved” party may appeal an order to this court. See Bankruptcy Act §§ 25(a), 302, 11 U.S.C. §§ 48(a), 702 (1970). An aggrieved party is one whose “property may be diminished, . . . burden increased, or ... rights detrimentally affected by the order sought to be reviewed.” Klein v. Rancho Mont. De Oro, Inc., 263 F.2d 764, 771 (9th Cir. 1959). In the instant case, appellant claims to be aggrieved in two respects. First, it challenges the substantive merits of the transfer. Second, it protests an alleged deprivation of its procedural rights as a creditor in the hearings below. The second claim is most important with respect to the standing issue. It would be inequitable to cut off a creditor’s claim to procedural due process simply because the trustee is satisfied with the substantive outcome of a Chapter XI transfer of assets. Assuming arguendo that the creditor was denied a meaningful opportunity to participate in the hearings, this denial could mean that the creditor had lost an opportunity to develop new evidence or to locate a better offer for the assets which in turn might have affected the trustee’s satisfaction with the substantive merits of the approved transfer.

      . Under these flexible procedural standards, an “emergency” might justify no prior notice at all to creditors with respect to a Chapter XI transfer of assets. See In re Whitman Center, Inc., 285 F.Supp. 199, 207 (C.D.Cal.1968). On the other hand, where time is not critical, notice of two days to creditors might be insufficient. See In re Penn Cent. Transp. Co., 453 F.2d 875, 876 (3d Cir. 1971) (per curiam) (railroad reorganization proceeding).

      . In its brief, appellant states that seven, five, or even three days’ notice would have been reasonable.

      . A second reason for requiring findings of fact is to enable parties that are unhappy with a result to know whether they have a basis for appeal. Here, however, appellant was not deterred from appealing the referee’s order by the limited findings contained in the order. Therefore, there is no reason to reverse on that ground.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. William HESTER, Appellant.
    No. 73-1528.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dea 14, 1973.
    Decided Dec. 17, 1973.

      See aso, 8 Cir., 465 F.2d 1125.
    William Hester, filed brief pro se. Donald J. Stohr, U. S. Atty., and Richard E. Coughlin, Asst. U. S. Atty., St. Louis, Mo., filed printed brief for appel-lee.
    Before GIBSON and ROSS, Circuit Judges, and SMITH, Senior District Judge

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

   PER CURIAM.

William Hester appeals from the dismissal of his 28 U.S.C. § 2255 motion. We affirm.

This motion arises out of the trial and conviction of Hester for violating the provisions of 21 U.S.C. § 846 and 21 U. S.C. § 841(a)(1). See United States v. Hester, 465 F.2d 1125 (8th Cir. 1972) Essentially Hester asserts that his conviction should be vacated because: 1) he was unlawfully arrested; 2) he was denied effective assistance of counsel; 3) he was denied a fair trial; 4) government agents perjured themselves during trial. Specifically Hester claims that he is entitled to an evidentiary hearing to establish these claims, as the district court denied his motion without a hearing. We disagree.

Generally speaking, no hearing need be held on a § 2255 motion where the files and records of the case demonstrate that the petitioner is not entitled to relief, or, where the motion raises only a question of law. See 28 U.S.C. § 2255; Mixen v. United States, 469 F.2d 203, 205 (8th Cir. 1972, cert. denied, 412 U.S. 906, 93 S.Ct. 2297, 36 L.Ed.2d 971 (1973); C. Wright, Federal Practice and Procedure § 599 at 626 (1969). In addition, a hearing is not required where the motion is stated in vague and conelusory terms. See United States v. Journey, 474 F.2d 1003 (8th Cir. 1973). With these considerations in mind, Hester’s claims will be considered briefly.

1. Unlawful Arrest.

Although Hester claims that he was never “officially arrested,” it appears that what Hester actually claims is that the prosecution used, during trial, a statement obtained from him in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The problem with this argument is that the transcript of trial clearly indicates that defense counsel, who was retained, not the prosecution, used Hester’s statements to impeach the credibility of certain government agents. See Tr. 106-111, 361. Therefore, Hester’s assertion is simply not supported by the record.

2. Ineffective Assistance of Counsel.

Hester claims his retained counsel was ineffective. However, Hester is not entitled to relief or a hearing where the allegation raises simply a matter of trial tactics. See, e. g., Hanger v. United States, 428 F.2d 746, 747-749 (8th Cir. 1970), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 634 (1971). Specifically Hester claims that counsel should have called as witnesses certain unnamed persons, and further that counsel should not have suggested that Hester testify in his own behalf. These allegations are nothing more than quarrels with the tactics counsel used to defend Hester. See, e. g., Churder v. United States, 294 F.Supp. 207, 212-214 (E.D.Mo.1968), aff’d per curiam, Churder v. United States, 417 F.2d 633 (8th Cir. 1969); Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, 792, 794, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).

3. Fair Trial.

Hester claims he was not afforded a fair trial since a juror allegedly slept through portions of the trial. Hester has never raised this allegation before. Other courts which have considered the “sleeping juror” problem have suggested that the trial court should be apprised, at once, of the misconduct. See United States v. Curry, 471 F.2d 419, 421-422 (5th Cir. 1973); United States v. Carter, 433 F.2d 874, 876 (10th Cir. 1970). Hester, failing to apprise the trial court of this alleged misconduct, should not be allowed to inject “a defect into the trial, and later claim its benefit.” United States v. Curry, supra, 471 F.2d at 422.

4. Perjury.

Hester claims that certain government agents perjured themselves. He clearly relies on the files and records, specifically the transcript of trial and an exhibit he attached to his motion, in order to prove his allegation of perjury. As the district court indicated, while there may have been inconsistencies in the statements of some of the agents, such inconsistencies do not rise to the level of perjury. In this situation no hearing was required. See Rodriguez v. United States, 473 F.2d 1042, 1043 (5th Cir. 1973). More fundamentally, Hester did not allege that the statements were used by the prosecution with knowledge of the falsity. This failure is fatal to Hester’s claim. Derringer v. United States, 441 F.2d 1140, 1142 (8th Cir. 1971); Holt v. United States, 303 F.2d 791, 794 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963); C. Wright, Federal Practice and Procedure, supra, § 595 at 615.

The denial of the motion is affirmed.

      . Hester brought a habeas corpus action, a coram nobis action and a § 2255 action. The district court considered the allegations raised in the habeas action, and the coram nobis action in terms of a § 2255 motion. These three filings were considered together by the court in United States v. Hester, 361 F.Supp. 1404 (E.D.Mo.1973).

      . Hester has prosecuted another § 2255 motion on grounds other than those asserted here. For this Court’s decision affirming the denial of the motion, see United States v. Hester, 72-1748 (8th Cir., March 22, 1973).

      . Normally, irregularities associated with arrest are not cognizable in a § 2255 motion. See, e. g., Williams v. United States, 344 F.2d 264, 265 (8th Cir.), cert. denied, 382 U.S. 857, 86 S.Ct. 112, 15 L.Ed.2d 95 (1965); C. Wright, Federal Practice and Procedure, supra, § 595 at 607.

      . We note that the transcript, including the poll of the jury, shows no misconduct on the . part of the jurors. Furthermore, the judge who presided over the § 2255 motion was also the judge who presided over Hester’s criminal trial, and he has not indicated any memory of juror misconduct. Cf. United States v. Curry, supra, 471 F.2d at 422; United States v. Carter, supra, 433 F.2d at 876: “The conduct of the juror in open court was a matter of which the trial court had judicial knowledge and could take judicial notice.”