author: TUTTLE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Olie Duane JONES, Sr., and Lemuel H. Stockmar, Defendants-Appellants.
    No. 72-2580.
    United States Court of Appeals, Fifth Circuit.
    July 11, 1973.

      James M. Russ, Orlando, Fla. (Court appointed), for Jones.
    Thomas W. Gibson, Orlando, Fla. (Court appointed), for Stockmar.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Alan C. Todd, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   TUTTLE, Circuit Judge:

Appellants Olie Duane Jones and Lemuel H. Stockmar were convicted in the District Court for the Middle District of Florida on three counts of an indictment charging numerous violations of the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. Finding that none of the several errors assigned on this appeal is meritorious, we affirm.

The original indictment against both these defendants was in seventeen counts, Stockmar being charged in thirteen and Jones in seven The only counts with which we are here concerned are those upon which Jones and Stock-mar were convicted, namely, Counts 11, 12, and 17. Count 11 charged that on or about June 30, 1971, in Seminole County, Florida, Stockmar and Jones, among others, unlawfully possessed with intent to distribute and dispense approximately 850 pounds of marijuana in violation of 21 U.S.C.A. § 841(a)(1), and 18 U.S.C. § 2. Count 12 charged that on the same date these defendants unlawfully imported into the United States from the Bahamas the alleged 850 pounds of marijuana, this in violation of 21 U.S.C.A. § 952(a) and § 960(a)(1) and 18 U.S.C.A. § 2. Count 17 was a conspiracy charge. It alleged that from about May 6, 1971, and continuously thereafter until July, 1971, several persons, appellants among them, conspired to import marijuana unlawfully into the United States from a foreign country, in violation of 21 U.S. C.A. § 952(a).

The government’s case rested largely on the testimony of certain eo-conspirators, particularly that of a Bobby C. Wells who was involved in the alleged smuggling operation from its inception until its termination. Taken in the light most favorable to the government the evidence introduced at trial established the following: On the evening of May 6, 1971, Ralph Thomas Malloch, Jr., James Durden, Jesse E. Farris, James Edwin Stephens, and Bobby C. Wells met in Atlanta, Georgia, to discuss the possibility of importing marijuana into the United States from the Caribbean area. The next day Malloch, Durden, Farris, and Wells, having borrowed Stockmar’s private airplane, flew to Miami, Florida, where they attempted to locate a boat suitable for marijuana smuggling or alternatively a Miami contact with ties to a commercial airline. These efforts proved unsuccessful and the four returned to Atlanta.

Thereafter, Malloch, Wells, and Stoekmar met at a truck stop near Douglas-ville, Georgia, where they discussed the possibilities of using a private airplane to smuggle marijuana into the country. The following day, Wednesday, May 12, 1971, Malloch, Durden, Stephens, Farris, Wells, and Stoekmar worked out the mechanics of their first actual smuggling venture. Without going into the details of this plan, subsequently altered slightly, and without describing the pre-arrangements undertaken, we think it sufficient to say that on May 19, 1971, Wells and Stoekmar, who were by then in Kingston, Jamaica, flew in Stock-mar’s airplane to an abandoned Jamaica airstrip where they purchased from a local contact named “Jack” approximately 212 pounds of marijuana. With the marijuana aboard Wells and Stoekmar then flew to an abandoned airstrip in the Bahamas where the cargo was dropped temporarily in order that the two might clear customs at a nearby commercial airport, Andros International. Having cleared Bahamian customs, Wells and Stoekmar returned to the abandoned airstrip, picked up the load of marijuana, and flew directly from the Bahamas to an abandoned airport in Volusia County, Florida. There they were met by Durden, Malloch, and Farris who unloaded the marijuana from Stockmar’s airplane and transferred it to a waiting automobile which was then driven to Atlanta by Farris and Durden. This marijuana was subsequently sold for a substantial price and the profits were distributed among the participants.

Shortly thereafter. Stoekmar, Wells, and Stephens decided to cut Malloch, Durden, and Farris out of the operation. At the same time another marijuana run was planned.

On about the 26th of May, 1971, Stephens, Wells, Mrs. Stockmar, and Stock-mar, by pre-arrangement, met appellant Jones at a local airport near Atlanta. Jones, who had previously discussed the matter with Stockmar, agreed to act as the “lookout man” at the abandoned airstrip in the Bahamas. Another individual, Victor Burns, was to meet the aircraft in Florida when it returned from the Bahamas with the next load of marijuana.

As to this particular trip (and subsequent ones) Stephens, rather than Wells, accompanied Stockmar to the Caribbean islands to procure marijuana from the local contact. Wells testified that on June 1, 1971, Stephens and Stockmar arrived at Immokalee Airport in Florida, this time in a rented aircraft, with a cargo of about 170 pounds of marijuana. Wells and Burns assisted Stephens in unloading the marijuana and transferring it to two rented automobiles which Wells and Burns then drove back to Atlanta. Like the first this load was subsequently sold for a substantial sum of money (about $12,500) and the profits were distributed among the participants.

A new venture was planned, this time to utilize two aircraft, one to be flown by Stockmar and Stephens to make the initial pickup, the other with Jones and Wells aboard to meet Stockmar’s airplane at the abandoned airstrip in the Bahamas where the load would be transferred and flown directly from the Bahamas to Florida by Jones and Wells. On June 14, 1971, pursuant to this plan, Wells and Jones flew to the abandoned airfield in the Bahamas where they met Stephens and Stockmar as scheduled. The four men transferred, according to Wells’ testimony, about 1,000 pounds of marijuana from the one plane to the other and Wells and Jones then flew to the Sebastian Airport in Florida where they were met by Burns. At the Sebastian Airport Wells and Burns unloaded the bundles of marijuana onto the ground and then Wells and Jones flew to Jacksonville, Florida, to clear customs.

That same afternoon law enforcement officers recovered at Sebastian Airport approximately 40 bundles of a substance weighing 900 pounds which later was tested by the U. S. Customs Laboratory at Savannah, Georgia, and found to be marijuana.

Having been advised by Burns that the load had been “busted” Stockmar, Jones, Stephens, and Wells returned to the Sebastian Airport in a rental car, but were unsuccessful in their efforts to find the marijuana left there earlier.

Shortly thereafter a fourth, and what proved to be the final, venture was planned. It was this venture, occurring on June 30, 1971, which .was the subject matter of Counts 11 and 12 of the indictment and for which both Jones and Stockmar were convicted by the jury. Without detailing the operation as testified to by Wells, we would point out that it involved basically the same type of modus operandi as the previous trip. The load of marijuana, weighing approximately 850 pounds, was brought by Jones and Wells by aircraft to an abandoned airfield (Osceola) in Florida where it was placed in a Chevrolet camper by Jones, Wells, and Stephens. Wells and Stephens then drove the camper to Atlanta where the marijuana was sold for about $100,000.

Jones and Stockmar urge vigorously that the foregoing facts demonstrate the existence, not a single conspiracy, as charged by the government in Count 17 of the indictment, but a multiplicity of conspiracies. They argue that since the several efforts at smuggling marijuana, alleged in the indictment as constituting an ongoing conspiracy, involved varying casts of characters and different modes of operation, each of these transactions should be treated as a single conspiracy in and of itself and not as part of a larger conspiracy. The variance in proof, under the rule announced in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), they say, warrants reversal of their convictions on the conspiracy count.

We are of the view, however, that the evidence is consistent with the jury’s finding of a single conspiracy. Without repeating all that was said in the lengthy recitation of facts, we would point out that at least Stephens and Wells were involved in the operation from its very inception, that is, prior to the abortive trip to Miami in search of a smuggling boat. Of course, this fact alone would doubtless not support a finding of a single, ongoing conspiracy. However, the evidence indicates that the original conspirators (Malloch, Durden, Farris, Wells, and Stephens), when the plan was first conceived, intended to set up a regular smuggling operation rather than to undertake a one-shot smuggling venture. Durden, who testified as a prosecution witness, stated that the original conspirators at their first meeting “were talking about the possible ways that we could bring in marijuana. We discussed using a boat to bring ‘it in and a possibility of bringing it in by one of the commercial airlines.” When both of these methods for smuggling proved unfeasible, the conspirators decided to undertake the operation by means of a private aircraft.

Thomas Malloch, Jr., later testified substantially to the same effect with regard to the intentions of the original conspirators. When asked by the prosecuting attorney about their discussion as to the purpose of the trip to Miami, Malloch replied, “This particular trip we were going down about trying to get a boat or about the best operation to get going.”

“Get going for what?” Answer: “For marijuana.”
Finally, as to this same discussion, Wells, on direct examination, testified as follows:
“Q: Did you talk with Durden and Mr. Farris and Mr. Stephens?
A: Yes, I did.
Q: What did you say that evening?
A: We were mainly concerned with the smuggling of marijuana — a plan to smuggle marijuana.
Q: From where, sir?
A: Jamaica.
Q: And do you recall any of the particular things that you said that night?
A: It was just general conversation about how to do it and what we should do . . . .”

In view of the foregoing we think it unnecessary to quote further from the extensive testimony in the trial transcript which likewise supports the government’s theory that the original plan was to set up a marijuana smuggling operation, not limited to a single trip, from the Caribbean to the United States. We note that Stockmar, the owner and operator of a private aircraft, was enlisted into the conspiracy when it became apparent to the original conspirators that smuggling by means of boat or commercial airline was unworkable. Jones was added to the roster when it was decided by the participants to enlarge the operation by converting to a two plane system. That neither was a participant at the time the original scheme was concocted does not vitiate their convictions on the conspiracy count. As this court said in Nelson v. United States, 415 F.2d 483, 486 (5th Cir. 1969):

“It is not necessary, however, that a defendant enter into the' unlawful agreement at its inception. [Citation omitted]. Likewise, if a person later joins an already formed conspiracy knowing of the unlawful purpose, he may be held responsible for the acts done in furtherance of the conspiracy, both prior and subsequent to his joinder.”

Appellants next contend that it was error for the trial court to admit into evidence, as bearing on the conspiracy count, the approximately 850 pounds of marijuana seized by law enforcement officers at Sebastian Airport in Florida on June 14, 1971. The basis for this contention is that the admissibility of this physical evidence was predicated on Wells’ ability to identify the Sebastian Airport as the airport at which the June 14th marijuana drop had been made. Initially Wells was unable positively to recall at which airport the marijuana had been dropped and the court, as a consequence, refused to admit the marijuana into evidence. In order to rectify the situation the government sought leave of court to take Wells to the airport area and allow him to view it for the purpose of refreshing his recollection. The court granted this request on the condition that the Assistant United States Attorney who was prosecuting the case alone would accompany Wells on the trip. However, the government attorney did not do so; rather, Wells was taken to the airport area by a customs agent, Robert Austin. Appellants urge that this constituted an intentional violation of the sequestration rule and that as a consequence the marijuana, which was the only marijuana actually introduced at trial, should have been suppressed.

We note, however, that following this incident the trial court conducted a voir dire hearing at which both Wells and Austin were thoroughly queried as to whether they had at any time during the trip discussed the pending case against Jones and Stockmar. Both denied that they had and the court concluded that none of the defendants would be prejudiced by the government’s failure to adhere to the court’s explicit instructions. Having carefully examined the transcript of the voir dire hearing, we are satisfied that the trial court did not abuse its discretion in allowing Wells thereafter to make a positive identification of the Sebastian Airport. See, e. g., Del Cristo v. United States, 327 F. 2d 208 (5th Cir. 1964).

On the basis of that identification the several hundred pounds of marijuana seized on June 14, 1971, at Sebastian Airport by law enforcement officers were admitted into evidence. As we have noted, this was the only marijuana actually introduced and admitted at trial and it was admitted solely as evidence bearing on the conspiracy charge. Inasmuch as the June 30th shipment of marijuana, which was the subject of the substantive charges contained in Counts 11 and 12 of the indictment, had allegedly been disposed of by the defendants, it was never introduced into evidence. Appellants contend that the government failed at trial to prove an essential element of the crimes charged in Counts 11 and 12, that is, that the substance involved was in fact marijuana.

Lacking the physical evidence the government undertook to prove this element of the crime by circumstantial evidence. Wells identified as marijuana the substance which was dropped at the Sebastian Airport and which was later seized by law enforcement officers. He then testified that this was the same substance as that which had been smuggled into the United States on June 30, 1971, and which formed the subject matter of Counts 11 and 12. Subsequent to his testimony the government introduced an expert witness, Sidney Waldhour, Jr., who testified that the Sebastian Airport substance was marijuana. Based on this evidence the trial court instructed the jury that it could consider Wells’ ability to identify the Sebastian Airport substance as evidence of his ability to identify marijuana with respect to the substantive counts. Appellants urge that such testimony was incompetent and therefore inadmissible. We disagree.

Wells was subjected to thorough cross-examination with respect to his ability to recognize marijuana and while he admitted that prior to the smuggling operation he had had little experience with the substance, he did state that thereafter he had smoked it on two or three occasions and that he had examined the contents of each smuggled shipment after it had been brought into the country. These facts, together with the fact that he was able to identify the Sebastian Airport substance as marijuana — an identification substantiated by an undeniably expert witness — we think amply supported the trial court’s acceptance of Wells’ qualifications to testify on the subject; we thus perceive no abuse of discretion in the court’s so doing and appellants’ objection therefore, must be deemed as going to the weight of the evidence and not its admissibility. United States v. Powell, 449 F.2d 335, 336 (9th Cir. 1971); cf. Ewing v. United States, 386 F.2d 10, 14 (9th Cir. 1967), cert. denied, 390 U.S. 991, 88 S.Ct. 1192, 19 L.Ed.2d 1299.

Stockmar next urges that he was improperly denied the opportunity to challenge administratively the classification of marijuana as a controlled substance prior to his trial. Section 811, 21 U.S.C. of the Drug Abuse Prevention and Control Act provides that the Attorney General may initiate, of his own motion or on the petition of any interested party, proceedings to determine whether a particular substance should be added to or removed from any Controlled Substance Schedule. However, even if Stockmar had successfully petitioned the Attorney General to remove marijuana from the schedules of controlled substances, the indictment against him would nonetheless have been pending prior to such time and its validity, we think, would be unaffected by any subsequent alteration in the classification of marijuana. See 1 U.S.C.A. § 109; Rehberg v. United States, 174 F.2d 121 (5th Cir. 1949).

Both appellants ’ urge that the specifications in the indictment and the statute (21 U.S.C. § 801 et seq.) upon which the indictment was based are unconstitutionally vague. It is argued chiefly that the statutory procedures for administrative reclassification of controlled substances are too indefinite and uncertain to be given constitutional' sanction. The short answer to this contention is that Congress itself put marijuana in its current classification and thus the substance has never been administratively reclassified. Of course, the statutes under which Stockmar and Jones were indicted are quite specific as to the type of activity proscribed.

Stockmar next contends that the district court abused its discretion in denying the bulk of his pre-trial motions for discovery, including a motion for a bill of particulars, a motion for a list of prospective government witnesses, and a broad discovery motion for the disclosure of all evidence favorable to Stoekmar (which was granted as of the close of the government’s evidence). Stoekmar, however, has not demonstrated any prejudice arising out of the denial of his motions for pre-trial discovery nor do we, having carefully searched the record, find any. Applications for relief under the rules of discovery is largely a matter committed to the sound discretion of the district court and in the absence of any showing that Stoekmar was prejudiced by the district court’s actions we decline to hold that there was an abuse of discretion here.

We have carefully considered the other errors assigned by appellants on this appeal and find them to be without merit. The judgments of conviction are therefore affirmed.

      . Jones and Stockmar were tried jointly with a third defendant, James Edwin Stephens, who has not appealed from his conviction.

      . The government’s case with respect to these later trips rested almost exclusively on Wells’ testimony, corroborated to an extent by hotel receipts and the like. Since Wells was not thereafter a party to the procurement stage of the smuggling operation, he was unable to testify of his own knowledge that Stephens and Stock-mar purchased these subsequent loads of marijuana from the same Jamaican contact as had been done on the first trip in mid-May.

      . Although Wells’ testimony formed the primary basis for the government’s case against the defendants with respect to Counts 11 and 12 of the indictment, his story was corroborated by certain eyewitnesses who testified that they had seen the defendants at various times during the operation as described by Wells.

      . We would note, moreover, that the government was able to produce at trial extrinsic, albeit circumstantial evidence, exclusive of Wells’ identification testimony, from which the jury might have inferred that the substance alluded to in Counts 11 and 12 of the indictment was in fact marijuana. See United States v. Agueci, 310 F.2d 817 (2nd Cir. 1962). For instance, the substance at issue, which was consistently referred to by the conspirators as marijuana or “grass,” was later sold in Atlanta, according to Wells’ testimony, for about $100,000. (Prior loads likewise had been sold for substantial sums in cash.) Additionally, we note that a customs agent testified at trial that he had seen Stockmar in the Bahamas on June 29 and that the aircraft which Stockmar was flying smelled of marijuana.

      . Following indictment, proceedings in Stoekmar’s case were handled initially by a visiting judge who granted Stockmar a continuance of bis case for the purpose of filing an administrative challenge to the classification of marijuana as a controlled substance. Later the case was reassigned to another judge who, upon further consideration, retracted the continuance and set Stockmar’s case for trial. Stockmar cites our recent case of Stevenson v. Four Winds Travel, Inc., 462 F.2d 899 (5th Cir. 1972), for the proposition that where one judge of a United States District Court, while a case is on his calendar, renders a decision and makes a judicial order in such case, and thereafter the case is transferred to the calendar of another judge, the latter should respect and not overrule the previous decision and order. We do not question the wisdom of this time-tested rule. However, for the reason stated below we do not see how Stockmar could have been prejudiced by the court’s action here. See Fed.R.Civ.P. 52(a).


source: Caselaw Access Project

author: COLEMAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ervin L. ABERCROMBIE, Defendant-Appellant.
    No. 73-1181.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1973.
    A. Pope Gordon, Montgomery, Ala., court-appointed, for defendant-appellant.
    Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   COLEMAN, Circuit Judge:

On April 21, 1972, three black men entered the Western Branch of the First National Bank of Montgomery, Alabama, and stood in front of the teller’s window which was occupied by Mrs. Nelma Ausley. The man first in line was Tommy Matthews, wearing a “French beret”. Next to and behind him was Ervin L. Abercrombie, wearing a distinctive white hat. The third man was Earnest Jones, Jr.

Matthews asked the teller for some coin wrappers. Not having any at the moment the teller went to another cage for the quarter wrappers and to the store room for the dime wrappers. While in the supply room she noticed that the alarm system had been activated. Not knowing the cause of it, she called it to the attention of the Branch Manager and returned to her window, where she discovered that the three men were gone.

Since there was no robbery in progress a quick search was made to find out what had activated the alarm. The Branch Manager soon noticed that the drawer in Mrs. Ausley’s cage was about half open and $500 in “bait money” was missing. The removal of this money bundle activated the alarm, as well as the surveillance camera. The camera did not photograph the actual money snatching but it did take pictures of the men leaving the bank, including what appeared to be Matthews in the act of handing something to Abercrombie. The men were seen hurriedly leaving the parking lot by way of the automobile entrance rather than by the exit. Eight hundred and forty dollars had been taken from the teller’s drawer.

About two weeks later the F.B.I. arrested Matthews and Jones in Birmingham. On May 3 Abercrombie called in and announced that he would surrender the next day, which he did. Abercrombie thereafter signed a confession that he went into the bank with the other two men to change coins for bills, that he heard Matthews ask for the wrappers, saw the lady leave for them, and the next thing he knew was that Matthews turned away and started to walk out of the bank. A few minutes after leaving the bank in an automobile Matthews handed him a handful of twenty dollar bills and told him to divide it three ways. His share came to $280, one third of the missing $840.

This resulted in the following indictment :

“The Grand Jury charges:
COUNT 1
“On or about the 21st day of April, 1972, at Montgomery, Alabama, in the Middle District of Alabama, TOMMY MATTHEWS, ERVIN L. ABER-CROMBIE, and EARNEST JONES, JR., willfully and unlawfully did take and carry away with intent to steal and purloin from the Western Branch of the First National Bank of Montgomery, Alabama, the deposits of which were then insured by the Federal Deposit Insurance Corporation, certain money aggregating $840.00 belonging to the bank, in violation of Title 18, Section 2113(b), United States Code.
COUNT II
“On or about the 21st day of April, 1972, at Montgomery, Alabama, in the Middle District of Alabama, TOMMY MATTHEWS, ERVIN L. ABER-CROMBIE, and EARNEST JONES, JR., willfully and unlawfully did possess the sum of $280.00 which had been taken and carried away with intent to steal and purloin from the Western Branch of the First National Bank of Montgomery, Alabama, the deposits of which were insured by the Federal Deposit Insurance Corporation and TOMMY MATTHEWS, ERVIN L. ABERCROMBIE, and EARNEST JONES, JR., then knew said money to have been so taken, in violation of Title 18, Section 2113(c), United States Code.”

The day before the case was scheduled to go to trial, Matthews and Jones withdrew their pleas of not guilty and entered pleas of guilty, which resulted in a general sentence of five years each.

Represented by retained counsel, Abercrombie went to trial with no objections to the indictment. At the close of the trial, again without objection, the Court instructed the jury that it might convict or acquit on either or both counts of the indictment.

Court appointed appellate counsel challenges the conviction on three grounds.

First, it is said that the trial court erred in denying a continuance requested by the defendant pro se after his counsel had announced ready for trial. We find no abuse of discretion in this action.

Next, it is argued that Abercrombie’s Miranda warnings were inadequate. This contention is foreclosed by the decision of this Court in United States v. Lacy, 5 Cir., 1971, 446 F.2d 511.

Lastly, it is asserted, and we think correctly, that it was plain error to allow a conviction on two counts which embraced both the theft and the possession of the same money, §§ 2113(b) and 2113(c), 18 United States Code.

Section 2113 reads as follows:
§ 2113. Bank robbery and incidental crimes
(a) Whoever, by force and violence,, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, or any savings and loan association; or
Whoever enters or attempts to enter any bank, or any savings and loan association, or any building used in whole or in part as a bank, or as a savings and loan association, with intent to commit in such bank, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny—
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; or
Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.
(c) Whoever receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value knowing the same to have been taken from a bank, or a savings and loan association, in violation of subsection (b) of this section shall be subject to the punishment provided by said subsection (b) for the taker.
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.
(f) As used in this section the term “bank” means any member bank of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the Federal Deposit Insurance Corporation.
(g) As used in this section the term “savings and loan association” means any Federal savings and loan association and any “insured institution” as defined in section 401 of the National Housing Act, as amended, and any “Federal credit union” as defined in section 2 of the Federal Credit Union Act.

As to Abercrombie’s third contention the judicial highway is well marked and lighted. The Supreme Court pointed the way in Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407, a case which arose in this Circuit and in which the judgment of this Court [251 F.2d 69] was as to one defendant reversed. It was held that a defendant could not be lawfully convicted under the Bank Robbery Act [18 U.S.C. § 2113(c), d)] for feloniously receiving and for feloniously taking the same property.

With reference to another statute [18 U.S.C. § 641] the Supreme Court reiterated in Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2 773, that a thief cannot be convicted of receiving from himself; that the omission of a sentence on a receiving c/mnt did not cure any prejudice resulting from the failure of the Court to instruct the jury that it could convict of either stealing or receiving but not of both.

In Forrester v. United States, 5 Cir., 1972, 456 F.2d 905, we held that Section (c) stated a separate, distinct, and incompatible offense to those denounced in the other sections of the full Section 2113, that unlawfully taking money and receiving the same money contemplate separate individuals performing entirely different roles, quoting United States v. White, 5 Cir., 1971, 440 F.2d 978.

On appeal, the government concedes all this, as it must, but argues that the charge in Count II of the Abercrombie indictment was that Abercrombie did possess [not receive] the sum of $280 which had been “taken and carried away with intent to steal and purloin”. This, says the government, may be distinguished from “receiving” and that the defendant could be convicted of both taking and possessing. We are compelled to reject this argument. Count I charged that Abercrombie “did take and carry away with intent to steal and purloin” the same money of which the $280 was an integral part. As a matter of reason and everyday common knowledge before Abercrombie, or the person he was aiding and abetting, could take the money and carry it away he had to reduce that same money to possession; otherwise, he could not have left the bank with it. As a transitive verb, “receiving” means to take or get something, to acquire or accept, Webster’s New World Dictionary. If the alleged offenses are charged to the same person, possession cannot be separated from taking and neither can carrying away be separated from possession.

In the context of the cited cases, then, it was error under the facts of this case for the jury to have been instructed that it could convict Abercrombie of both taking and possessing the same money obtained in the same theft. Moreover, the prejudice was not cured by the imposition of a general sentence for a term within the limits applicable to only one of the counts, Milanovich, supra-, United States v. Suel, 5 Cir., 1970, 435 F.2d 1272.

An important appellate feature of the case, however, is that nowhere below did the defendant, represented by retained counsel, raise any objection. Not until other counsel took over the appeal was the contention presented. The conviction, therefore, is not due to be reversed unless necessitated by the doctrine of plain error. In weighing the application of that doctrine to this ease we must note that the only overt act from which the jury might infer the guilt of Abercrombie in the taking was that in the consummation of the theft the bank surveillance camera depicted Matthews, the principal thief, in the act of handing something to Abercrombie. Abercrombie, however, stated in his confession that the money was not given him until they were out on the highway, when Matthews handed him the money and told him to divide it, which was done. Moreover, the only proof of Abercrombie’s possession came from his confession, although the confession was in many other particulars corroborated by other proof. As we read it, the record is devoid of proof that Abercrombie knew before the trio entered the bank that Matthews was to snatch money from a cash drawer when the cashier went elsewhere for the coin wrappers. Indeed, the lady would ordinarily have had the wrappers at her station and would not have found it necessary to go elsewhere to get them, affording Matthews the chance to snatch the money.

In any event, Thomas v. United States, 5 Cir., 1969, 418 F.2d 567, we expressly held that it was plain error not to charge that the defendant could be convicted of robbery or receiving but not of both.

Reversed and remanded.


author: McALLISTER, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roland BOSTIC et al., Defendants-Appellants.
    Nos. 72-1238, 72-1239.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 6, 1972.
    Decided July 19, 1973.

      B. Bruce Guthrie, Chattanooga, Tenn., for Roland Bostic and Frank Meadows; Paul W. Sorrick, Jr., Chattanooga, Tenn., on brief.
    Lloyd F. Arrowood, Johnson City, Tenn. (Court-appointed), for Walter Dean Bartlett.
    W. Lloyd Stanley, Jr., Asst. U. S. Atty., Chattanooga, Tenn., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., E. D. Tenn., Chattanooga, Tenn., on brief.
    Before KENT, Circuit Judge, and O’SULLIVAN and McALLISTER, Senior Circuit Judges.

       Judge Kent participated in the argument of this case but died on May 28, 1973, before judgment was entered.

   McALLISTER, Senior Circuit Judge.

On March 31, 1971, a four-count indictment was filed in the District Court for the Eastern District of Tennessee, Southern Division, charging in Count One, that defendants Rollin August Varesi, Roland Bostic, Frank Meadows, Jack Bartlett and Walter Dean Bartlett conspired to violate certain laws of the United States relating to counterfeit currency, in violation of Title 18, United States Code, Section 371. Also named as co-conspirator, but not indicted, was Mrs. Gloria Patricia Varesi. The three remaining counts charged Meadows, Bostic, and Varesi with substantive offenses relating to counterfeit currency under Sections 472 and 473 of Title 18, United States Code.

Varesi entered a plea of guilty to Counts One and Three (the only counts wherein he was named) and he subsequently testified for the Government as an accomplice. After the trial he was released. Mrs. Varesi was not arrested, but was taken to the police station and questioned, after which she was released.

The trial was held on September 13, 14 and 15, 1971, before a jury in the District Court. Defendant Walter Dean Bartlett was found guilty of the conspiracy count alone. Defendant Meadows was convicted on the conspiracy count, and also of possessing counterfeit money under Count Two. Defendant Bostic was convicted of conspiracy and also of possessing and selling counterfeit money under Counts Two and Four. Defendant Varesi pleaded guilty to the counts against him and, with his wife, subsequently assisted the Secret Service agents and the Government in the case against the others.

We are of the opinion that there was not sufficient evidence to convict Walter Dean Bartlett of conspiracy; that his conviction must be reversed, and that he should be discharged.

We are also of the opinion that the evidence was insufficient to convict defendant Frank Meadows of conspiracy and of possession of counterfeit money; that his conviction must be reversed and that he, too, must be discharged.

With regard to defendant Bostic, we are of the view that there was sufficient evidence to sustain his conviction and the judgment rendered thereon should be affirmed.

The parties will, hereafter, be referred to, as on trial, as defendants and plaintiff.

The background of this case is as follows: On December 13, 1970, the defendants Bostic and Meadows were driving to Chattanooga along Highway 58 to get some tile for one of the taverns Bostic operated. About noon, on the outskirts of Chattanooga, they saw defendant Roland and Varesi and his wife walking along the highway, and they stopped and offered them a ride. The Varesis were friends of Bostic and had known him for about twenty years. When they stopped the car, they learned that the Varesis were on their way to purchase a money order to send to their children. After they continued their drive to Chattanooga, Bostic, Meadows and Roland Varesi stopped at a little place and had a couple of beers, while Bostic loaned the car to Mrs. Varesi to drive to a drugstore to get the money order. When she returned with the car, Varesi bought a 6-pack of beer, and they all went back to Varesis’ house. Mrs. Varesi again borrowed the car to go for some articles of food. While the four of them were together, according to the testimony of Varesi, he testified that he had some conversation with Bostic and Meadows about counterfeit money. Varesi said he could not remember how the subject came up — “they asked me if I wanted some, something to that effect; I said I did, and I bought a hundred dollars’ worth of it. * * * I got them from Roland (Bostic); he was the one handed them to me; I don’t know whether they belonged to him or belonged to Frank (Meadows).”

Mrs. Varesi said “[I] don’t quite remember who said anything about its being counterfeit.”

“Q. Did your husband say anything about that?
A. Yes, he did, he said he wanted to buy some of the counterfeit money. * * * My husband and Roland Bostic and Frank Meadows they were discussing counterfeit money. * * * Roland and Frank told my husband they had passed a lot of that money.”

When Varesi was again asked from which man he bought the counterfeit money, he testified :

“Well, I got them from Roland (Bostic) ; he was the one handed them to me; I don’t know whether they belonged to him or belonged to Frank (Meadows).”

This is no evidence that Meadows sold any counterfeit to Varesi. The only other testimony from the Varesis or any others, that Frank Meadows had any “notes,” was that of Varesi that:

“I seen some Frank had at his house, he didn’t have but two or three at his house.”

No one asked to buy any such notes from Meadows; and it was not even claimed that these two or three notes in Meadows’ possession were counterfeit.

As will be recounted hereafter, when Frank Meadows was arrested by a Secret Service agent in his bed in the morning while suffering from an admittedly painful back ailment, the agent searched him, and afterward searched his entire premises without a search warrant, and found nothing but legal currency notes. Except for some vaporing remarks of Meadows that he had sold counterfeit money to others — not naming them or even giving any approximate dates of any actual sales, there was no evidence to prove a conspiracy on the part of Frank Meadows with the five others to commit a counterfeiting offense against the United States, or to prove a substantive crime of selling, possessing or uttering counterfeit money. The evidence to convict Meadows was insufficient; and the judgment against him should be reversed, and he should be discharged.

The evidence against Bostic was the testimony of Varesi that Bostic had sold counterfeit money to him, and the evidence of Secret Service Agent Davis that Bostic had also sold counterfeit money to him. This was evidence sufficient to sustain the conviction of Bostic.

It is with the third defendant in this case, Walter Dean Bartlett, that the Court is next concerned.

Walter Dean Bartlett was found guilty of a single conspiracy charged against him in that he, with Rollin Varesi, Roland Bostic, Frank Meadows and Jack Bartlett, did conspire, combine, confederate and agree among themselves to commit an offense against the United States of America — that is, to keep in their possession, and to utter, publish, sell, pass, and attempt to utter, publish, sell and pass with intent to defraud, certain counterfeit obligations of the United States, in violation of Title 18 U.S.C., Sections 472 and 473.

It has been said that there is probably no crime an exact definition of which it is more difficult to give than the offense of conspiracy. Pinkerton v. United States, 145 F.2d 252, 254 (C.A.5).

A general outline of the elements of a criminal conspiracy has been well stated in 15A, C.J.S. Conspiracy § 1 et seq. to be: (1) An object to be accomplished. (2) A plan or scheme embodying means to accomplish that object. (3) An agreement or understanding between two or more of the defendants whereby they become definitely committed to cooperate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means.

A conspiracy has been characterized, rather than defined, as a partnership in criminal purposes, as a partnership in crime, and as a criminal partnership.

The unlawful combination being the gist of the conspiracy, it follows that there must be an agreement of some kind willingly entered into by the parties to it. There must be unity of design or purpose, a concert of will and endeavor, comprising what has been agreed to.

Mere knowledge or approval, without participation, does not make one a party to a conspiracy. Mere association does not establish a conspiracy, but there must be intentional participation in the transaction with a view to the furtherance of the common design and purpose. If, in Judge Learned Hand’s well-known phrase, a man is to be held for joining others in a conspiracy, “he must in some sense promote their venture himself, make it his own, have a stake in its outcome. The distinction is especially important today when so many prosecutors seek to sweep within the drag-net of conspiracy all those who have been associated in any degree whatever with the main offenders. That there are opportunities of great oppression in such a doctrine is very plain, and it is only by circumscribing the scope of such all comprehensive indictments that they can be avoided.” United States v. Falcone, 109 F.2d 579, 581.

A connection must be based on proof of the conspiracy alleged. Where one conspiracy is specifically charged, proof of different and disconnected ones will not sustain a conviction. To allege against a number of persons generally that they have conspired to cheat and defraud does not enable the prosecution to prove several conspiracies each affecting different contracts and different persons or groups of persons interested in the contracts, unless all the contracts and the wrong purposes in respect of them form parts of the same combination.

There must be at least two participants in a conspiracy. One man cannot conspire with himself.

The one-count conspiracy alleged against Walter Dean Bartlett was a single conspiracy. In this count, he was charged with conspiring with Rollin Varesi, Frank Meadows, Roland Bostic, and Jack Bartlett to keep in their possession and sell, and utter counterfeit money with intent to defraud the United States. Walter Dean Bartlett had never seen Varesi' or Meadows. The evidence, or claim of evidence, of the Government against Walter Dean Bartlett was that Bostic had stated he had purchased counterfeit money from Walter sometime in December 1970; that afterward two Secret Service agents went to see Bartlett at his house in Birmingham, pretending they wanted to purchase counterfeit money; that after a long day’s work Walter met the agents on his front porch. Walter told the two agents that he didn’t fool with counterfeit, but that “everybody in Birmingham knew it was floating all over town.” When he was asked why he did not inform the authorities that two men were trying to buy counterfeit, Walter’s response was: “I didn’t think there was much to it, just thought a couple of goofballs came by there to see if I knew anything about it.” The agents kept after him, by telephone calls — -and after ignoring them for a considerable while, he called them back and told them he had not seen Mac around any of the bars. Subsequently, Walter was arrested and charged in the one-count indictment for conspiracy. Superannuated cases relating to the late unlamented Volstead Act, are inapplicable.

There is no evidence that Walter Dean Bartlett ever entered a single counterfeiting conspiracy with Eollin Varesi, Frank Meadows, Eoland Bostic, and Jack Bartlett to keep in their possession and sell and utter counterfeit money with intent to defraud the United States. The utmost that could be claimed for the Government with regard to Walter Dean Bartlett is that, by hearsay evidence, Walter sold counterfeit bills to Bostic. If it be assumed that he did sell such counterfeit bills to Bostic, the law is plain that he was not guilty of the conspiracy claimed.

The leading ease on the subject is United States v. Peoni, 100 F.2d 401, 403 (C.A.2), in which Judge Learned Hand, speaking for the Court, held that a defendant who sold counterfeit bills to a second party, who sold the same bills to a third person, who was arrested while trying to pass them, all three parties having knowledge that bills were counterfeit, was not a party to a conspiracy by which third persons should possess the bills, where defendant had no concern with bills after second party paid for .them.

The Government failed to establish that Walter Dean Bartlett was a conspirator. This was the only count on which he was charged in the indictment. His conviction is reversed, and he is ordered discharged.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. WYANDOTTE COUNTY, KANSAS et al., Defendants-Appellees.
    No. 72-1633.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 30,1973.
    Decided June 21, 1973.
    James P. Turner, Washington, D. C., for plaintiff-appellant.
    Nick A. Tomasic, Kansas City, Kan., for defendant-appellee Atty. Gen. for the 29th Judicial District of Kansas.
    Eobert J. Foster, Kansas City, Kan., for defendant-appellee Board of Commissioners of Wyandotte County.

      Before LEWIS, Chief Judge, BARRETT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       Eastern District of Michigan, sitting by designation.

      . App. 29.

   PER CURIAM.

This case concerns the assignment of prisoners on a racial basis to areas of incarceration in the Wyandotte County Jail, Kansas City, Kansas. The action (seeking injunctive relief) was filed by the Attorney General of the United States pursuant to Section 301(a) and (b) of Title III of the Civil Rights Act of 1964 (42 U.S.C. § 2000b(a) and (b)). It was the charge of the complaint that the Wyandotte County Jail is a “public facility” within the meaning of the Act and that the defendants maintained racially segregated jail facilities in violation of Title III, the Equal Protection Clause of the Fourteenth Amendment and a written contract containing a no-diserimination clause between the Director of the Federal Bureau of Prisons and Wyandotte County, Kansas.

There is no dispute concerning the essential facts. As the district court found “Assignment to one of the two tanks [an East tank and a West tank] is made upon a racial basis, with Negroes generally being assigned to the East tank, and white prisoners being assigned to the West tank.” Nevertheless the district court entered its memorandum opinion and order, 343 F.Supp. 1189, dismissing the complaint and denying all relief requested by the United States.

We need not labor the point that a State may not constitutionally require segregation of public facilities, Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963), and the principle is as applicable to jails as to other public facilities, Lee v. Washington, 390 U. S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

The defense to the charges made was that the segregation employed was “not intentional or systematic segregation but was a result of and justified by a desire to protect individuals against personal abuses and violence,” reliance being placed upon the statement in the concurring opinion in Lee v. Washington, supra, to the effect that “prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails.”

We cannot construe this caveat as authorizing the consistent and settled practice of “Negroes to the East tank, whites West tank,” we have before us. The use of the words “particularized circumstances” is significant, the quoted clause doing no more than recognizing the commonly accepted principle that in the administration of prison affairs there may arise unusual situations in which security and discipline demand segregation for limited periods.

The record before us, moreover, does not warrant even the limited and isolated segregation recognized as permissible in penal situations of unusual stress. The practice of segregation had had its origins in this jail “a few years back.” The present Sheriff and the Undersheriff both had been told that when the races had been placed together at that time, violence had resulted because, it was said, of racial tensions. Consequently, as the Sheriff testified, “It was already segregated when I got there and I just continued to practice on the advice of some of my predecessors and the personnel that worked there.” However, the Sheriff personally knew of no specific examples of interracial violence during his tenure, and although racial fights had occurred “once in a while,” they occurred no more frequently than for other reasons. A former jailer, Mr. Govers, testified in fact that he knew of no fights engendered by racial animus. Warden Pacheco was of the opinion that they occurred “once in a while.” “More frequently,” he was asked, “than fights for other reasons?” “No,” he replied, “I don’t think so.” Fighting actually seems to have occurred less frequently among inmates in the integrated areas (here the violent and problem cases) than in the segregated tanks.

There was some attempt at the trial to justify the segregation here imposed on the ground that the inmates of these two tanks were “hardened” criminals with such propensities to violence that segregation was necessary for the “safety of everybody concerned.” The actual administration of the institution does not support the claim. The real problem makers are sent to the non-segregated northwest and northeast tanks. The balance, except for such special cases as drunks, juveniles and women, are sent to the segregated tanks, the populations of which range in years from 16, 17 and 18 through the 40’s and 50’s and in offense from misdemeanor, “joy rider,” traffic violator, burglar, armed robber and narcotic offender to convicted murderer. The appellation of “hardened criminal” to such a routine mix would, without more, seem maniiestly inappropriate.

What all of the above finally boils down to is a vague fear on the part of the authorities that desegregation may result in violence. This is not enough. The words of the Supreme Court in Watson v. Memphis, 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963), are peculiarly appropriate to the record before us: “[N]either the asserted fears of violence and tumult nor the asserted inability to preserve the peace was demonstrated at trial to be anything more than personal speculations or vague disquietudes of city officials.” 373 U.S. at 536, 83 S.Ct. at 1320.

But beyond this, the argument that desegregation of public facilities might provoke violence has never been accepted to justify unconstitutional segregation. Over fifty years ago it was held that,

“It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution.” Buchanan v. Warley, 245 U.S. 60 at 81, 38 S.Ct. 16 at 20, 62 L.Ed. 149.

The years following have seen no dilution of the principle here expressed. See, e. g., Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958) (desegregation of schools); Watson v. Memphis, supra (desegregation of public parks).

Nor has the application of the principle been excluded from the administration of correctional institutions. See, e. g., McClelland v. Sigler, supra; Holt v. Sarver, 309 F.Supp. 362"(E.D.Ark.l970), aff’d, 442 F.2d 304 (8th Cir. 1971); Wilson v. Kelley, 294 F.Supp. 1005 (N. D.Ga.1968), aff’d, 393 U.S. 266, 89 S.Ct. 477, 21 L.Ed.2d 425 (1968); Rentfrow v. Carter, 296 F.Supp. 301 (N.D.Ga.1968); Washington v. Lee, supra. Peculiarly appropriate at this point are the words of the district court in McClelland v. Sigler, supra, with respect to a similar problem.

“Threats of recalcitrant prisoners whose racial prejudices are erected to defy the constitutional rights of black prisoners need to be quashed. The prisoners who threaten violence, rather than those who seek their right to nondiscriminatory treatment, should be the ones to feel the weight of the consequences of their overt bigotry.” 327 F.Supp. at 834.

The decision below is reversed and the cause remanded for further proceedings not inconsistent herewith.

      . 42 U.S.C. § 2000b(a) provides in part that:
      “Whenever the Attorney General receives a complaint in writing signed by an individual to the effect that he is being deprived of or threatened with the loss of his right to the equal protection of the laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility which is owned, operated, or managed by or on behalf of any State or subdivision thereof . . . and the Attorney General believes the complaint is meritorious and certifies that the signer or signers of such complaint are unable, in his judgment, to initiate and maintain appropriate legal proceedings for relief and that the institution of an action will materially further the orderly progress of desegregation in public facilities, the Attorney General is authorized to institute for or in the name of the United States a civil action in any appropriate district court . . . against such parties and for such relief as may be appropriate, and such court shall have and shall exercise jurisdiction of proceedings instituted pursuant to this section . . . .”

      . See 18 U.S.O. § 4002.

      . The general plan of “tank” assignments in the jail is based upon a number of criteria. The worst security risks, those persons believed to be prone to excessive violence, or to escape attempts, are confined in what is known as the “northwest tank” having locked cells with no “tank area.” Those with somewhat lesser problems, having, for example, been guilty of misbehavior while in the general prison population, those requiring protection from others, and, generally, the “problem prisoners” are assigned to cells in the northeast tank. Minor and young offenders are assigned cells in the “boys’ tank,” those with illnesses in the “drunk” and “sick” tanks, and women to the “women’s tank.”
      All of the above assignments are made without regard to race.
      The balance of the routine prisoners are confined in the East and West tanks on the basis of race, whites in the West tank, Negroes in the East tank.

      . E. g., McClelland v. Sigler, 327 F.Supp. 829 (D.Neb.1971), aff’d 456 F.2d 1266 (8th Cir. 1972); Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966), aff’d 390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 1212 (1968).

      . Jail census prepared by the Warden for the Federal Bureau of Investigation, Jan. 28, 1970.


author: VAN DUSEN, Circuit Judge.

text:
    DELAWARE CITIZENS FOR CLEAN AIR, INC., a Delaware corporation, Petitioner, v. ADMINISTRATOR U. S. ENVIRONMENTAL PROTECTION AGENCY and William D. Ruckelshaus.
    No. 72-1548.
    United States Court of Appeals, Third Circuit.
    Argued March 8, 1973.
    Decided June 21, 1973.

      Jacob Kreshtool, Bader, Dorsey & Kreshtool, Wilmington, Del., for petitioner.
    Kent Frizzell, Asst. Atty. Gen., and Edmund B. Clark, Martin Green and James R. Walpole, Dept, of Justice, Land and Natural Resources Division, Washington, D. C., for respondents.
    Before FORMAN, VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Pursuant to § 307(b)(1) of the Clean Air Act, 42 U.S.C. § 1857h-5(b) (1) (1970), Delaware Citizens for Clean Air, Inc. (DCCA) here challenges the Environmental Protection Agency’s (EPA) approval of portions of Delaware’s implementation plan. The challenge is on the merits. We stress this point because all the decided cases we have been able to locate either deal with strictly procedural attacks or dispose of substantive attacks on procedural grounds. See Duquesne Light Co. v. EPA, 481 F.2d 1, Nos. 72-1542 and 72-1543 (3d Cir., 1973); Utah International, Inc. v. EPA, 478 F.2d 126 (10th Cir., 1973); Appalachian Power Co. v. EPA, 477 F.2d 495 Nos. 72-1733, 72-1734, 72-1776 (4th Cir., 1973); Getty Oil Co. v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972). Because of the unfamiliar and complex technical issues involved, we have approached this case with great “diffidence” and judicial restraint, see International Harvester Co. v. Ruckelshaus, (D.C.Cir., 1973).

The legislative plan of the Clean Air Act was extensively set out by Judge Adams in Duquesne Light Co. v. EPA, supra, at 2-4 of 481 F.2d, and so it is unnecessary to discuss it in detail here. Delaware, like all states, was required to submit to the EPA an implementation plan which would meet a variety of federal standards regarding the regulation of air pollution. Delaware held a federally mandated public hearing on November 29, 1971, and submitted its plan on January 28, 1972. On May 31, 1972, the EPA approved some parts of the plan and disapproved others. 37 Fed.Reg. 10842, 10856-57 (1972). DCCA filed its petition for review in June 1972. DCCA challenges EPA’s approval of those sections of the Delaware plan dealing with the control of sulfur dioxide and nitrogen dioxide.

The EPA’s authority to prescribe regulations for sulfur dioxide and nitrogen dioxide is based on Clean Air Act § 109, 42 U.S.C. § 1857c-4 (1970). The statute orders the EPA to promulgate what it calls national primary and secondary ambient air quality standards for substances which have been determined to be air pollutants. Primary standards are based on the protection of the public health; the secondary standards are based on the protection of the public welfare, which includes factors beyond merely the physical health of the populace. The primary and secondary standards promulgated by the EPA for sulfur dioxide appear, respectively, in 40 C.F.R. § 50.4 and § 50.5 (1972). The standard for nitrogen dioxide, which is both primary and secondary, is in 40 C.F.R. § 50.11 (1972). The EPA has also promulgated guidelines for the control strategies that should appear in state implementation plans where the ambient levels of a pollutant exceed the applicable standard. See 40 C.F.R. § 51.13 (1972) (sulfur dioxide) and § 51.14 (1972) (nitrogen dioxide).

The thrust of DCCA’s petition is that the Delaware plan does not (1) meet the statutory deadline for attaining the nitrogen dioxide standard and (2) contain various measures, asserted to be made compulsory by the statute, for attaining the nitrogen dioxide standard and for maintaining it and the primary and secondary sulfur dioxide standards. Before dealing with DCCA’s arguments more specifically, however, we will describe certain developments that make much of this case moot.

Delaware’s plan itself seems to indicate that it is inadequate to attain the nitrogen dioxide standard. Nevertheless, when EPA on May 31, 1972, approved the nitrogen dioxide control strategy it proposed an attainment date of May 31, 1975, for the Metropolitan Philadelphia Interstate Air Quality Control Region. The EPA also proposed the same date for the attainment of the primary and secondary sulfur dioxide standards.

Whatever the dates were as of May 31, 1972, they were changed after the filing of the petition in this matter by the publication on July 27, 1972, of new attainment dates. This new schedule, whose “dates reflect the information presented in the Delaware Plan,” gives January 1972 for the primary sulfur dioxide standard; January 1973 for the secondary sulfur dioxide standard; and January 1974 for the nitrogen dioxide standard. Quite recently, on May 23, 1973, the EPA published approval of a revision to the plan, changing the attainment date for the secondary sulfur dioxide standard from January 1973 to January 1974. This revision was based on information submitted by Delaware following notice and a public hearing.

Meanwhile, because of litigation not directly related to the present case, the EPA has withdrawn approval from the maintenance provisions of all state implementation plans. Also, it has proposed a substantial relaxation of the secondary sulfur dioxide standard.

The net effect of these developments appears to make moot a number of issues in this case. The challenge to the approval of Delaware’s control strategy for attaining the primary sulfur dioxide standard is moot because Delaware has evidently already (January 1972) attained this standard. It is not possible to evaluate the correctness of the strategy for attaining the secondary sulfur dioxide standard, for the information upon the basis of which the attainment date was changed to January 1974 is not now before the court. The maintenance provisions for both the primary and secondary sulfur dioxide standards and the single nitrogen dioxide standard are no longer approved (see note 12 above). The only remaining question raised by the petition is whether the approval of Delaware’s strategy for attaining the nitrogen dioxide standard was proper.

Clean Air Act § 307(b)(1), 42 U.S.C. § 1857h-5(b(l) (1970), is silent on the scope or standard of our review of the EPA’s action. The Administrative Procedure Act, 5 U.S.C. § 701(a) (1970), dictates that the scope of review set out in 5 U.S.C. § 706 (1970) is applicable. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). Yet the impact of § 706 is not entirely clear.

Section 706(2) (E) mandates that a reviewing court hold unlawful agency action “unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute. . . .” This is not a ease subject to sections 556 and 557, see Duquesne Light Co. v. EPA, Nos. 72-1542 & 72-1543, 481 F.2d 1 (3d Cir., 1973); Appalachian Power Co. v. EPA, Nos. 72-1733, 72-1734 & 72-1776, 477 F.2d 495 (4th Cir., 1973). Nor does the Clean Air Act, as construed in Duquesne Light Co. and Appalachian Power Co., provide for a hearing by the EPA. Rather, the statute affords interested parties a hearing at the state level before the state adopts an implementation plan. Clean Air Act § 110(a)(1), 42 U.S.C. § 1857c-5(a)(l) (1970). While the EPA has a duty to consider the record developed at the state hearing, see Appalachian Power Co. v. EPA, supra, it is by no means clear what else the EPA can also consider in evaluating a plan. Given the time lag between the state hearing and the EPA decision, ,the fast rate of change in the state of the art of pollution measurement and control, and the determination of the EPA to keep current, it appears inevitable that the EPA will go beyond the record of the state hearing. Furthermore, all the items from which the EPA has accumulated experience and expertise are not explicitly reproduced in the papers presented to this court. Consequently, the application of a “substantial evidence” test is quite difficult. Cf. Citizens To Preserve Overton Park, Inc. v. Volpe, supra, at 414-415, 91 S.Ct. 814.

Perhaps for this reason the court in Appalachian Power Co., supra, suggested that the proper scope of review is that outlined by the Supreme Court in Citizens To Preserve Overton Park, Inc. v. Volpe, supra at 415-416, 91 S.Ct. 814. In Overton Park the Supreme Court addressed itself to 5 U.S.C. § 706(2) (A) (1970), which requires reversal of an agency decision found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Court said,

“To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. [Citing authorities.] Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” 401 U. S. at 416, 91 S.Ct. at 823.

After reviewing the record certified to us by the EPA, which included the record of the state hearing in November 1971, we have concluded that as to all of the above aspects of review, the DCCA has not overcome, insofar as the strategy for attaining the nitrogen dioxide standard is concerned, the “presumption of regularity” to which an agency decision is entitled, see 401 U.S. at 415, 91 S.Ct. 814.

The statute relevant here is Clean Air Act § 110(a)(2)(A), (B), 42 U.S.C. § 1857c-5(a) (2) (A), (B) (1970). The EPA should approve a plan after determining, in part, if “in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but . . . in no case later than three years from the date of approval of such plan” and if “it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary . . . standard, including, but not limited to, land-use and transportation controls.” In the context of the post-May 31, 1972, events, DCCA’s^petition may be read as arguing that meeting the nitrogen dioxide standard by January 1974 is not as expeditious as practicable and that the Delaware plan should include land-use and transportation controls.

The record of the November 1971 Delaware hearing contains scant reference to the control of nitrogen dioxide. Of the three representatives of DCCA to speak at the hearing, see R. 1388-94, 1466-68, 1468-78, only one discussed the Delaware regulation dealing with nitrogen dioxide at all, and then did not question the stringency of the regulation. R. 1477. The DCCA submission, Exhibit # 11, treated the matter similarly. R. 1550, 1556. The only other mention of the regulation was made by a representative of Getty Oil, who questioned whether control of stationary sources was needed, given the expectation that automobile emissions would be sharply reduced. R. 1458-59.

The EPA’s explanation of its approval of this portion of the Delaware plan is set forth in the Implementation Plan Evaluation Report for the State of Delaware, R. 935, 941-42:

“The nitrogen dioxide control strategy in the plan was based on 1970 air quality data. The emission inventory data are representative of the year 1969, and hence either 1969 air quality data should be used in the rollback calculations or 1970 emission inventory data should be used. The State has adopted stationary source emission limitations that reflect reasonably available control technology. This along with the credit taken for the effects of the Federal Motor Vehicle Control Program meets the requirements of 40 CFR 51.14(c) and therefore the nitrogen dioxide control strategy is recommended for approval.”

Also relevant is the letter of June 2, 1972, in which Delaware informed the EPA of the attainment dates eventually published on July 7, 1972. In this letter it was stated, “With respect to nitrogen dioxide, Delaware expects to attain the national (primary-secondary) standard by January 1, 1974, with the help of expected motor vehicle emission controls and New Jersey N02 regulations equivalent in emission stringency to Delaware’s.” R. 728. We consider this letter to be part of the Delaware plan approved by the EPA.

Against these items must be weighed the indication in the Delaware plan itself, R. 433-39, that the control strategy for nitrogen dioxide might not be adequate to attain the standard at all. This indication must, however, be regarded as modified by the June 2, 1972, letter, which was based, at least in part, on additional information — the New Jersey implementation plan. The technical nature of the above-mentioned documents increases the difficulty of evaluating them. However, it is clear from them that the EPA has considered the following factors: the technology now available to deal with emissions from stationary sources; the levels of emissions from automobiles to be expected in the future; the current level of pollution of Delaware air; and the impact of the implementation plan of New Jersey. Plaintiffs have not pointed out, and we do not perceive, any other relevant factors which the EPA has ignored. Furthermore, it does not appear that, in deciding between the costs of and the need for installing pollution control equipment, the EPA has made a clear error of judgment. Consequently, under the scope of review discussed above, this court must hold that the EPA action was proper.

Similarly, we are unable to hold that the Delaware plan failed to carry out the statutory mandate regarding land-use and transportation controls. The statute requires the use of such “measures as may be necessary to insure attainment” of the nitrogen dioxide standard, and in Delaware the standard is apparently going to be attained without them.

For the foregoing reasons, the Petition for Review will be denied (1), on the merits, insofar as it challenges the decision of the EPA to approve the Delaware control strategy for the attainment of the nitrogen dioxide ambient air quality standard, and (2), as moot, in all other respects. Each party will bear its own costs.

      . § 1857h-5(b)(1) provides:
      “ . . .A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval. ...”
      This statute does not set down any standard for review of the EPA’s action.

      . Unfortunately, the court’s deliberations were not greatly aided by the sparse briefs submitted by both DCCA and the EPA. Discussion of the scope of judicial review was most abbreviated, references to the long and technical record were rare, and no mention was made of the various significant changes made in the Delaware plan subsequent to May 31, 1972.

      . For additional description, see Appalachian Power Co. v. EPA, supra-, Note, Clean Air Act Amendments of 1970; A Congressional Cosmetic, 61 Geo.L.J. 153 (1972).

      . “The 14 percent reduction achieved does not provide the 17 percent reduction needed.” R. 437. It is noted in the plan that both the need for, or the potential success of, the Delaware control strategy are very hard to estimate because the strategy is based on very limited data. R. 438-39.

      . See 37 Fed.Reg. 10857 (1972). In the release accompanying the approval, the EPA stated that, if necessary, it would promulgate attainment dates meeting the requirements of the Clean Air Act, see 37 Fed.Reg. 10843 (1972), and this is apparently what it did here. The factual basis for this proposed date is not at all clear, but, given the subsequent developments noted in the text, it is necessary for this court to consider the propriety of the proposed date.

      . The portion of this region in Delaware consists of New Castle County. The rest of Delaware is included in the Southern Delaware Intrastate Air Quality Control Region, whose air is apparently much cleaner and which is consequently not directly involved in the current litigation.

      . 37 Fed.Reg. 10857 (1972).

      . 37 Fed.Reg. 15082 (1972).

      . Id, which includes, inter alia, this language :
      “§ 52.420 Identification of plan.
      * * * *
      “(c) Supplemental information was submitted on February 11, March 10, May 5, June 2, and June 5, 1972, by the State of Delaware, Department of Natural Resources and Environmental Control.
      “§ 52.428 Attainment dates for national standards.
      “The following table presents the latest dates by which the national standards are to be attained. These dates reflect the information presented in the Delaware plan. . . . ”

      . 38 Fed.Reg. 13561-62 (1973).

      . Natural Resources Defense Council, Inc. v. EPA, 475 F.2d 968 (D.C.Cir. 1973).

      . 38 Fed.Reg. 12920 (1973).

      . 38 Fed.Reg. 11355 (1973).

      . As mentioned above, supra note 2, the parties have not commented upon any of the revisions of the attainment dates of the Delaware plan. Fortunately, these revisions seem to speak for themselves.

      . Presumably DCCA can appeal the EPA approval of this revision.

      . To the best of our knowledge, all information relating to the January 1974 attainment date for the nitrogen dioxide standard is in the record before us.
      Since the Delaware plan as it now stands will attain the nitrogen dioxide standard, it is unnecessary for this court to consider any possible significance in the difference between 40 C.F.R. § 50.11 (1972), which sets the standard at “100 micrograms per cubic meter (0.05 ppm) — ■ annual arithmetic mean,” and 40 C.F.R. § 51.14(c) (3) (1972), which requires of implementation plans only that they “shall provide for the degree of nitrogen oxides emission reduction attainable through the application of reasonably available control technology.”

      . We note that in the case before us the parties do not raise any due process questions, at least not any such questions which arose out of the EPA’s approval of the nitrogen dioxide control strategy.

      . This regulation was at the time numbered XXII. See R. 1458. It was renumbered and appears in the present Delaware plan as XII. See R. 551.

      . See note 4, supra.

      . Also, as noted above at 976, the EPA , action is entitled to “a presumption of regularity,” 401 U.S. at 415, 91 S.Ct. 814.

      . AVe noto that the statute would require land-use and transportation controls if they were necessary to insure maintenance of the standard. We, of course, pass no judgment upon whether such controls are required in the Delaware plan. It is arguable that land-use and transportation controls are mandated by the statute both for attainment and for maintenance. The agency charged with administration of tlie statute, however, apparently construes it as not mandating land-use and transportation controls for attainment if other measures will suffice. In this instance we defer to the expertise of the agency.


text:
    Reverend Leon HOWARD et al., Plaintiffs-Appellants-Cross-Appellees, v. ADAMS COUNTY BOARD OF SUPERVISORS et al., Defendants-AppelleesCross-Appellants.
    No. 72-2596.
    United States Court of Appeals, Fifth Circuit.
    July 2, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 15, 1973.
    Frank R. Parker, George P. Taylor, Jackson, Miss., for plaintiffs-appellants.
    Lucien C. Gwin, Jr., Lucien C. Gwin, Natchez, Miss., for defendants-appellees.
    Before WISDOM, GEWIN and COLEMAN, Circuit Judges.
   COLEMAN, Circuit Judge:

One wing of this appeal is an attempted re-run of the decision of this Court in Howard v. Adams County Board of Supervisors, 5 Cir., 1972, 453 F.2d 455, cert. denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812. That case dealt in depth with the contention there raised, and now sought to be raised anew, that the districts for the election of county supervisors in Adams County, Mississippi had been racially gerrymanded and had resulted in an impermissible dilution of the black vote for the election of supervisors in that County.

The present controversy centers upon a court ordered and court approved redistricting of Adams County dated November 26, 1971. Appellants contend that the November 26, 1971 plan (1) resulted in malapportionment of the districts and (2) dilutes the black vote for the election of supervisors. We find no merit in the first contention and the second was settled by our prior decision, Howard v. Adams County Board'of Supervisors, supra. Accordingly, the judgment of the District Court is affirmed. Defendants-appellees have cross-appealed the order for new elections in the reconstituted districts. We also affirm the judgment in this respect.

The division of Adams County into five districts of substantially equal population for the election of county supervisors is beset by special obstacles. On its western side, the County borders the Mississippi river. Half the population of the County lives in the City of Natchez. An extensive swamp in the southwestern section of the County, a National Forest in the eastern section, and other large uninhabited areas in the County, raise additional difficulties.

Divided absolutely equally the population of each district would be 7458. It is immediately apparent, therefore, that while county supervisors have no jurisdiction over the construction and maintenance of city streets and do have exclusive jurisdiction of such activities in regard to county roads, a five way split in county population dictated that in some manner most, if not all, districts would have to encompass some territory within the City. In the plan approved by the District Court and presently under review, the districts were drawn to fan in, out and from the City, like the spokes of a wheel. Some part of the City is included in each of the five supervisor’s districts. While this approach, from the standpoint of geographical area and roads is a long way from ideal, it did divide the population as follows:

District Total Variance Percentage of Variance
1 7331 -127 -1.70%
2 7545 + 87 +1.17%
3 7506 + 48 + 0.64%
4 7465 + 7 0.09%
5 7446 -12 - 0.16%

This means, of course, that the average deviation among the districts is less than 1% of the norm, the greatest overage being 1.17% in District 2 and the max-mum deficiency being 1.70% in District 1. Out of a total population of 37,290 people, the greatest deviation (between Districts 1 and 2) was 214.

On Friday before the case was scheduled to go to trial on the following Monday, the plaintiffs filed their proposed plan of county-district reapportionment. This plan would have divided the population of the five districts as follows:

District Population Variance from, Norm
1 7415 - 0.58%
2 7399 -0.80%
3 7440 - 0.25%
4 7506 + 0.63%
5 7533 + 0.99%

The variations in two of the districts were greater than those appearing in the Board plan, but less by an average of 0.60% than that proposed for the other three districts.

The plaintiffs’ plan produced an overall population spread between the most populated and the least populated districts of 134 persons. This compared to a maximum spread of 214, or a difference of 0.20%, in the Board plan.

It is now argued that the trial court should have accepted this plan rather than the one submitted by the Board. It is said that this plan was made strictly from official Census units, but the population accuracy of the Board plan had also been verified by the Census Bureau.

It is said that the proposed plan more nearly conformed to pre-reapportionment district lines. It must be remembered, however, that prior to reapportionment, according to the 1970 Census, District 1 had 13,590 people, District 4 had 15,074, District 5 had 6,064, District 3 had 1,492, and District 2 had 1,073. Districts 1 and 4 had to be reduced by about 50% while Districts 2, 3, and 5 required a radical increase, almost 700% in District 2 and nearly 600% in District 3. Therefore, any idea of substantially conforming to former district lines would border on the hopeless.

Under the plan proposed by the plaintiffs, the black population in District 3 would have been 77.07% of the district while the black population of District 4 would have been 70.44% of the district. This would have been accomplished by the division of old (pre-1970) District 4 into two predominantly black districts, the goal contended for and rejected in Howard v. Adams County Board of Supervisors, swpra.

Moreover, District 3 would have been entirely contained within the corporate limits of the City of Natchez and would have destroyed the spokelike configuration of each of the districts, which combined rural with urban population. Under the plaintiffs’ plan, the supervisor for District 3 would have had no county roads to supervise or maintain, one of the more important functions imposed by law upon members of the Boards of Supervisors.

We cannot hold that the District Court, sitting as a chancellor, abused its discretion in exercising a choice between two alternatives so clearly matched as were the plans here in issue. A net difference of 2/10 of 1% in the population ratios of the two plans is simply not enough for us to substitute our opinion for that of the trial judge. Moreover, there were important considerations here such as existed in Abate v. Mundt, 1971, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399. Additionally, we are of the opinion that the Court approved plan adheres to the principles enunciated in Reynolds v. Sims, 1964, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506.

Further pursuing the subject of dilution of the racial voting power, neither the plaintiffs nor the defendants have provided us with data as to voting strength in the various proposed districts now under review. They do give the population figures:

District Blade White
1 45.6% 54.4%
2 40.7% 59.3%
3 42.3% 57.7%
4 77.6% 22.4%
5 34.1% 65.9%

It is to be noted that in District 4 blacks number 77.6% of the population; under the plan considered as to racial dilution in Howard v. Adams County Board of Supervisors, supra, blacks amounted to 67%. This was the only district in Howard which had a majority of blacks and thus able to elect a supervisor if voters voted solely upon racial considerations. It still has that majority, increased by 10% as reflected by the 1970 Census, rather than 1960. As did the Howard panel [Judges Gewin, Goldberg and Dyer] we hold that the trial court was under no duty wholly from municipal territory to erect an additional “black district”, in which the supervisor would be shorn of some of his primary official functions and to that extent would be reduced to a mere figurehead. There is nothing new in the racial dilution arguments contained in this appeal. We are consequently bound by and adhere to the prior panel decision on that subject.

The defendants-appellants have cross appealed from the order requiring that an election be held to choose supervisors from the newly constituted districts. Such an election has already been ordered by a prior panel of this Court. The present panel is no more at liberty to set aside that order than to reverse the decision of the prior panel on the racial dilution issue, nothing new nor material being raised.

Affirmed on direct and cross appeals and remanded for further proceedings consistently herewith.


author: WILLIAM M. BYRNE, Sr., District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Peggy Ann CARTER, Defendant-Appellant.
    No. 73-1224.
    United States Court of Appeals, Ninth Circuit.
    July 2, 1973.
    'Roger S. Ruffin' (argued), Ruffin & Whalen, La Jolla, Cal., for defendant-appellant.
    Jim Meyers, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Shelby R. Gott, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before BARNES and WALLACE, Circuit Judges, and WILLIAM M. BYRNE, Sr., District Judge.

       Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation.

   WILLIAM M. BYRNE, Sr., District Judge:

Peggy Carter appeals from her conviction for importing both heroin and cocaine [violations of 21 U.S.C. §§ 952, 960, and 963] and possessing such contraband with intent to distribute it [violations of 21 U.S.C. § 841(a)(1)]. Her non-jury trial was conducted on the facts adduced at her unsuccessful pretrial motion to suppress which, by stipulation, were incorporated by reference into the government’s case-in-chief.

On December 2, 1971, at approximately 8:15 P.M., an automobile occupied by Carter, another woman named Howard, and two men named Kinsey and Evans entered the United States at San Ysidro, California, port of entry. The male passengers occupied the front seat while the female passengers occupied the back seat. At the primary inspection station, Customs Inspector Campbell requested the driver, Kinsey, to open the rear trunk. While doing so, Kinsey informed him that Evans was the owner of the automobile. Campbell then proceeded to Evans’ side of the automobile, questioned him briefly, and noticed “tracks” on his arm. He also noticed that the female passengers appeared nervous. Consequently, he decided to investigate further, got into the back seat of the automobile, and directed them to the secondary inspection point. While en route to that location, he noticed that Carter “just couldn’t sit still.”

At the secondary inspection point, all four of the occupants were instructed to exit the automobile and enter the customs office. Once inside, Campbell conducted a pat-down weapons search of the two men with negative results. However, he did notice that Evans’ heart “was thumping away like mad.” Then, Campbell checked the arms of all four of the suspects and determined that Kinsey, the driver, was the only one without visible needlemarks on his arms. In addition, Campbell suspected that the two women were “under the influence” because of their eyes and demeanor. As for their eyes, the pupils were pinpointed. As for their demeanor, although they initially seemed loud and boisterous, as time went on, they became very lackadaisical and seemed “like they didn’t care what was happening.” In addition, within five munutes of the time that the four were brought inside the customs office, a routine record check was run on them via teletype. As a result thereof, the customs inspectors obtained a computer printout which indicated that, on June 28, 1970, Carter had been arrested at the border for possessing eight ounces of heroin.

Consequently, Campbell and a Mr. Lasher, the supervisor of customs inspection, instructed a Mrs. Lohman, a customs inspectress, to conduct a strip search of the two women. At Campbell’s suggestion, Carter was inspected first. Mrs. Lohman, took her into the search room and told her to remove her clothing. Carter first took off her blouse and then her boots. When she had her capris down to her knees, however, Mrs. Lohman noticed an object which looked like a piece of brown paper bag which was tucked away between Carter’s legs and under her pantyhose. When Lohman asked her to remove it, Carter merely pushed it to the rear where Lohman couldn’t see it. Lohman then took ahold of Carter’s arm and again told her to remove the object. Instead, Carter merely pushed it further to the rear. When an argument occurred between the inspectress and her suspect, Lasher entered the room and Campbell stood in the doorway. Lohman described the preceding events to Lasher who then attempted to persuade Carter to cooperate. Suddenly, Lohman pulled down on Carter’s pantyhose and the object, which subsequently was found to contain heroin and cocaine, fell on the floor near Campbell who retrieved it. Then, the two men left the room.

Mrs. Lohman requested that Carter continue to disrobe. However, when Carter took her capris off, she bundled them up and struck Lohman over the head with them. After a slight scuffle, Lasher re-entered the room and stayed there facing the wall until the strip search was finished so that no further disturbance would occur.

Although both Carter and the government agree as to the law of this Circuit which governs the validity of the strip search of her body, they disagree as to whether or not the government met its burden of showing that the search met the requirements of the Fourth Amendment.

In Henderson v. United States, 390 F.2d 805, 808 (C.A.9, 1967), this court stated that, in a border search situation, the customs officials must have a “real suspicion” directed specifically at the person whom they desire to strip search before such a search can be lawful under the Fourth Amendment.

Some two years later, in United States v. Guadalupe-Garza, 421 F.2d 876, 879 (C.A.9, 1970), the court defined “the real suspicion test” as being

“. . . subjective suspicion supported by objective, articulable facts that would reasonably lead an experienced, prudent customs official to suspect that a particular person seeking to cross [the United States] border is concealing something on his body for the purpose of transporting it into the United States contrary to law.
“The objective, articulable facts must bear some reasonable relationship to suspicion that something is concealed on the body of the person to be searched; . . . ”

The record contains an overabundance of objective, articulable facts on which the customs officials based their decision to strip search Carter. Such facts include the “tracks” on both of her arms, her nervousness and demeanor, her pinpointed eyes, the computer printout, and the nervousness, demeanor and tracks on the arms of her companions. United States v. Holtz, 479 F.2d 89 (C. A.9, 1973); United States v. Velasquez, 469 F.2d 264 (C.A.9, 1972); United States v. Gil deAvila, 468 F.2d 184 (C. A.9, 1972); United States v. Shields, 453 F.2d 1235 (C.A.9, 1972).

Carter contends that, since Lash-er and Campbell were present during a portion of the strip search, the contraband taken from her person should have been suppressed because her Fifth Amendment right to due process of law and her alleged right of privacy were violated. She alleges that

“. . .no circumstances and no compelling state interest can be found here which would warrant the search of [her] nude body by male agents of the government.”

Her contention is frivolous and based on a distortion of the facts. The district court addressed itself to Carter’s contention at the hearing on her motion to suppress. It stated:

“I cannot say, however, that [Carter] did not in substantial portion bring on her own invasion of privacy, for its seems to the Court as far as I’m concerned that there was sufficient evidence that her acts and her actions alone were what caused the officers to enter the room.”

We agree with the district court’s assessment of the facts.

Affirmed.