author: PER CURIAM. LAY, Circuit Judge

text:
    Alvin KIRBY, Appellant, v. Dr. P. J. CICCONE, Director, Appellee.
    No. 73-1817.
    United States Court of Appeals, Eighth Circuit.
    Jan. 21, 1974.

      Alvin Kirby, filed motion for appointment of counsel pro se.
    Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

This matter is before this Court on Alvin Kirby’s motion for appointment of counsel and for leave to proceed in for-ma pauperis. For the reasons hereinafter set forth those motions are denied.

Alvin Kirby is confined in the United States Medical Center for Federal Prisoners, Springfield, Missouri where he is serving a six-year sentence imposed pursuant to a plea of guilty for violation of 18 U.S.C. §§ 2 and 2113(a)(d). During the course of his confinement he filed a petition for writ of habeas corpus in the Western District of Missouri. That petition alleged: 1) that he was deprived of his first amendment freedom of religion by the denial of a pork free diet required by his Muslim beliefs; 2) that he was denied access to the courts in pursuit of post-conviction relief because of the limited scope of the Medical Center’s law library; and 3) that he was deprived of his first amendment freedom of speech when he was denied personal interviews with the news media. The petition was referred to a United States Magistrate for pretrial recommendations pursuant to local Rule 26 of the Western District of Missouri and was consolidated with another pending habeas petition challenging the adequacy of the medical treatment he had received at the Medical Center. A Federal Public Defender was appointed to represent him on the consolidated petitions. Kirby moved to dismiss that portion of his petition which pertained to violations of his freedom of religion upon satisfactory resolution of his complaint and the matter was set for an evidentiary hearing before the magistrate.

The evidence adduced at the evidentiary hearing relating to Kirby’s allegedly inadequate medical treatment disclosed that he had had numerous examinations and tests at the Medical Center for an alleged bladder infection. His principal complaint related to the denial of antibiotics for the alleged infection. However, it was revealed that he had never requested antibiotics from any physician at the Medical Center; Accordingly, the magistrate recommended that Kirby failed to show a denial of medical care or such negligent disregard of his condition as would, warrant a court to review his diagnosis and treatment.

With respect to his freedom of speech claim, Kirby indicated that he had never been denied the right to have a personal interview with the press, thus, he voluntarily elected to dismiss that count of his complaint.

Finally, Kirby submitted a list of the available books and documents in the Medical Center’s law library. However, the magistrate found that claim to be without merit by taking judicial notice of the Public Defender Program at the Medical Center and holding, effectively, that the latter program complies with any constitutional requisite for legal assistance to inmates confined therein.

As permitted by local Rule 26, Kirby filed an exception to the magistrate’s report and recommendation in the District Court for the Western District of Missouri contending that the magistrate made no finding of the adequacy of the library. Essentially, he argued that the magistrate did not find that the Federal Public Defender system provided all of the legal assistance to which an inmate might constitutionally be entitled. He also maintained that he was entitled to a library independent of the Federal Public Defender’s legal assistance on the basis that he had a constitutional right to represent himself pro se. Thereupon the district court ordered that the portion of the petition that dealt with the adequacy of the law library be remanded to the United States Magistrate to make findings of fact and conclusions of law in regard to the constitutional adequacy of the Medical Center law library. The other recommendations of the magistrate were adopted by the Court and an order was entered consistent with those recommendations.

On remand, a hearing was held on the adequacy of the library. At the hearing, an inventory of the available resources was conducted and the condition of the library was found to be in disarray and confusion. However, it was determined that the Medical Center library was in substantial compliance with a policy established by the Federal Bureau of Prisons setting forth guidelines for the adequacy of federal institutional law libraries. That policy was adopted subsequent to the decision in Gilmore v. Lynch, 319 F.Supp. 105 (N. D.Cal.1970) (three-judge court), aff’d sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971). The magistrate held that, if the Gilmore list is a constitutional requisite, the Medical Center could come into compliance with little effort. However, the magistrate did not find that the Gilmore list was a constitutional requisite; he did not recommend that the Medical Center meet those requirements; and he did not hold that the Medical Center library was adequate in its existing condition. Instead he reasoned that the Federal Public Defender system was an adequate alternative to the provision of an adequate law library, thus no federal rights were denied by not providing legal resources to Medical Center inmates. In drawing that conclusion, the magistrate took judicial notice of the staff and function of the Public Defender system at the Medical Center and he relied on former judicial findings of the Western District of Missouri of the adequacy of that program under the criteria announced in Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). Ayers v. Ciccone, 303 F.Supp. 637, 640 (W.D.Mo.1969), appeal dismissed, 431 F.2d 724 (8th Cir. 1970).

Kirby again took exception to the magistrate’s recommendations. However, the district court accepted the report and recommendation of the magistrate on the basis that the Federal Public Defender for the Western District of Missouri presents an acceptable alternative to an adequate law library. Thereupon, Kirby’s petition for a writ of habeas corpus was denied. This appeal followed.

Kirby’s petition for a writ of habeas corpus presents the identical claim that was recently before this Court in Noorlander v. Ciccone, 489 F.2d 642 (8th Cir., 1978). Noorlander sought access to the courts in his attempt to secure post-conviction relief. We there held that the institution need not provide every means of access to the courts under Johnson v. Avery, supra, but that it must provide some means of access to the courts. We noted that, consistent with previous holdings of this court, an alternative under Johnson v. Avery, supra, must be evaluated on its own, reasonably contemporaneous with the assertion of the claim, and upon facts present in the record. Since there was no basis in the record for holding the public defender system was presently adequate to meet the requirements of Johnson v. Avery, supra, and since there was no finding in the alternative that the Medical Center law library was adequate, we remanded Noorlander’s petition for an evidentiary hearing to establish the adequacy of one or the other of those alternatives under Johnson v. Avery, supra. The final disposition of Noorlander’s claim will similarly resolve the claims here presented by Kirby.

We are concerned that Judge Lay would translate our opinions in Noorlander v. Ciccone, supra, and Knecht v. Gillman, 73-1374, 488 F.2d 1136 (8th Cir., 1973), into something that they are not. We did not hold in either case that a District Judge can delegate authority to a magistrate to hold evidentiary hearings or trials in civil rights actions under 42 U.S.C. § 1983. To the contrary, we expressly refrained in Knecht from expressing an opinion on the validity of a court rule which would permit such delegation. We simply held that a District Court may, pursuant to a court rule, delegate to a magistrate the power to hold preliminary evidentiary hearings in federal and state habeas corpus matters. We expressly stated that the delegation must be by court rule.

Contrary to the suggestions of Judge Lay, some decisions of the magistrate, including those concerning discovery and production of witnesses, are subject to de novo review pursuant to the rule if such review is requested within ten days from the date the order is made.

Judge Lay argues that the procedures approved in Noorlander will not simplify or add economy or efficiency to the judicial process. The facts tend to disprove that assertion. Magistrates working under the rule have successfully resolved many factual disputes leaving the court with the sole task of deciding cases. Moreover, the large backlog which existed at the Springfield Medical Center has been substantially eliminated through the use of the magistrate and the public defender system.

Finally, we cannot agree that the rule, as approved by this Court, delegates essential decision-making power to the magistrate. The judge continues to be responsible for all decisions, and we would have it no other way.

For the reasons hereinbefore set forth, Kirby’s motion for appointment of counsel and leave to proceed in forma pauperis is denied.

Further proceedings in this appeal are stayed until such time as the issues presented in this case have been finally determined in the case of Noorlander v. Ciccone, supra. No briefs need be filed until further order of the Court. [Editor’s note: On February 7, 1974 the Court ordered reversal and remand for an evidentiary hearing as directed in Noorlander v. Ciccone, 489 F.2d 642.

LAY, Circuit Judge

(dissenting).

I respectfully dissent. There exists no statutory authority for a United States District Judge to delegate to a magistrate the power to conduct trials in civil rights cases or evidentiary hearings in post-conviction cases under 28 U.S.C. §§ 2254 and 2255. This court in Noorlander v. Ciccone, 489 F.2d 642 (8th Cir. 1973), and, tacitly, in Knecht v. Gillman, No. 73-1374, 488 F.2d 1136 (8th Cir. 1973), gives limited approval to the extension of such authority to a magistrate in prisoner civil rights and habeas corpus cases. The reasoning in Noorlander is that although Congress did not give express authorization for the use of magistrates to conduct evidentiary hearings, nevertheless it did not prohibit it and therefore by implication such authority is permissible. I cannot endorse this reasoning.

First and foremost, this analysis too conveniently ignores the congressional struggle with the precise question as to whether an Article III judge may delegate to a magistrate the power to conduct an evidentiary hearing. The statutory language actually adopted in 28 U. S.C. § 636(b) speaks only of “preliminary review of applications for posttrial relief.” As Noorlander recites, this language was a narrower version of the proposed concept which had been directed to “preliminary consideration.” This change was adopted only after much debate, urging and then specific rejection of the idea that magistrates should have the power to conduct evidentiary hearings. After the debate the Senate Report 371 on June 28, 1967, observed: “It seems unwise to your committee to require that the district courts give magistrates duties other than those traditionally performed by commissioners.” In Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), the Supreme Court explicitly held that United States Commissioners could not conduct habeas corpus hearings since Congress intended that the judge be the factfinder.

Second, to construe § 636(b) as giving implied authority to the district judge to delegate the power to conduct evidentiary hearings does a disservice to the plain language of the statute. If this authority is implicit within the Act, Congress would not have needed to set forth a provision allowing the appointment of the magistrate to serve as master in “an appropriate civil action” pursuant to the Federal Rules of Civil Procedure. Further, the role of “preliminary review of application” hardly suggests the power to conduct evidentiary hearings. And finally, the suggestion that the evidentiary hearing may be held by the magistrate totally ignores the express authorized purpose of the “review” which is to make “a report and recommendations . . . as to whether there should be a hearing.” (emphasis added). This provision is rendered meaningless if Congress actually intended the magistrate in the first instance to have authority to conduct an evidentiary hearing.

I fully agree with the Noorlander opinion that. Local Rule 26, Section B.I.b(5) of the Western District of Missouri is invalid as promulgated. However, Noorlander did not go far enough. It approved a suggested revised procedure of “de novo review” by the district judge of a magistrate’s findings, where a party excepts to the findings. In every instance where a magistrate holds an evidentiary hearing, if a party excepts to the findings of the magistrate, Noorlander now requires the district judge to hold an evidentiary hearing. This procedure makes little sense. Rather than improving upon the efficiency of the judicial process, such a procedure further encumbers it.

It is implicit in the Noorlander ruling that there is no such thing as a de novo review by the district court of a magistrate’s ruling. I fully agree, since § 636(b) gives no adjudicatory power to a magistrate and, equally relevant, no appellate jurisdiction to a district judge. Although the Noorlander opinion refers to a de novo review, it really means that if a party excepts to the findings, then the district judge must hear the case anew. This is not a “review”; it simply means that the district court must start all over again and conduct a new hearing. In addition to the obvious unauthorized delegation under the statute, as a practical matter this is a foolish and inefficient procedure. It requires the production of witnesses, and the time of counsel and the prison authorities to be duplicated in two proceedings. In the vast majority of cases the losing party, be it the state, federal government, the warden or the prisoner, will seek a judicial re-determination of the disputed facts in the district court. Thus the “de novo review” procedure suggested in Noorlander fails to simplify, add economy or efficiency to the judicial process.

The only other possible justification for the procedure is that by holding an evidentiary hearing the magistrate is simply making a preliminary review to see whether there actually exists any material dispute of fact. This assumes that an evidentiary hearing is necessary at times to determine whether there exists a genuine dispute of fact. Surely this premise is false. I can only assume this means that in many cases a magistrate may be holding evidentiary hearings in cases where no evidentiary hearing should be held in the first place.

There exists a plethora of case law to aid the district court in deciding whether an evidentiary hearing is necessary. In my judgment the decision of Procunier v. Atchley, 400 U.S. 446, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), is sufficient guidance here. The Supreme Court specifically held that before a petitioner is entitled to an evidentiary hearing in a post-conviction case, he must plead facts, which if taken as true would entitle him to relief. Only then is a party entitled to an evidentiary hearing. There is nothing complicated in such a rule. District courts as well as this court have passed on many situations in which an evidentiary hearing is deemed unnecessary. For a magistrate to hold an abortive hearing in order to decide that no facts are in dispute makes little sense. I cannot visualize any situation where a common sense judicial appraisal of the pleadings would not accomplish the same thing.

The statute contemplates a magistrate’s review of “applications for postrial relief made by individuals convicted of criminal offenses.” The status of Noorlander, Kirby and Knecht fall without this description. These are not “post-trial” motions. A federal prisoner complaining of conditions of confinement should not be treated any differently than a state prisoner filing a complaint under § 1983 of the civil rights act. Cf. Wilwording v. Swenson, 404 U.S. 249, 251, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971). If this is the intended meaning of Congress under § 636(b), then the Act violates the equal protection clause of the Constitution. But clearly, this is not what Congress wrote into law. The plain and simple truth of the matter is that a magistrate has no power whatsoever to entertain, hear and adjudicate any action brought by federal or state prisoners or anyone else.

The writer is fully sympathetic with the vexatious problem facing the district courts respecting the inundation of “prisoner cases.” However, at the same time I sense that the earlier problem of state habeas filings is being solved. See Lay, Modern Administrative Proposals for Federal Habeas Corpus: The Rights of Prisoners Preserved, 21 De Paul L.Rev. 701 (1972). State courts are “toeing the constitutional mark” in criminal procedure in the original criminal trial; states now have effective procedures to entertain post-conviction cases. When these cases come to federal court, evidentiary hearings are rarely necessary, since the state record is now complete and the federal district judge may readily review that record. The same may be said about § 2255 proceedings, since I think it is universally recognized that the “criminal law revolution” is now over and the basic doctrines of fair procedure and process are reasonably settled. More and more law enforcement officials at least attempt to adhere to basic constitutional processes. This may not lessen the din or the number of petitions, but it greatly facilitates resolution of the complaints by all courts.

The great problem now faced by the federal courts is in the prisoner civil rights cases. There is no exhaustion requirement for state prisoners; thus there is no judicial “weeding out” of the state cases by state courts. Furthermore, the federal prisoners show no reluctance in filing complaints as to prison conditions. The easiest solution for many of these problems relating to conditions of confinement lies outside the hands of the judiciary. Many prison authorities are utilizing the omsbudsman concept in order to administratively “siphon off” judicial complaints. However, while Congress and state legislatures begin to recognize the dire need of changing prison conditions, making them minimally habitable for man, the courts must face the procedural question of how to physically cope with filings complaining of prison rules and conditions.

Local Rule 26 of the Western District of Missouri is, of course, an attempt to facilitate and expedite the handling of these complaints. To this extent, of course, the spirit of the rule is to be commended. Delay in processing these complaints is as intolerable as any other delay which occurs in the administration of justice. The difficulty is that the effort being made by the district court is not eongressionally authorized and, more significantly, detracts from the fundamental responsibility of Article III judges “to decide cases before them.” It has been recently reported by the Administrative Office of the United States Courts that magistrates handled over 250,000 “matters” in 1973. Based upon recent case law, a reasonable assumption may be made that many of these matters have been and are being delegated illegally. The conduct of actual jury trials, the adjudication of summary judgments, motions to dismiss, making requests for convening three-judge courts are all beyond the statutory power of a district judge to delegate to a magistrate. I do not intend to demean the valuable assistance of magistrates to the district court. As reflected in the Senate Report set forth in the Noorlander case, Congress felt the magistrate could assist the district judge in processing preliminary proceedings in both civil and criminal matters. This, however, is far short of conducting evidentiary hearings and making findings of fact. The idea that this is all preliminary and not binding since there is a “de novo review” cannot ratify the original illegal exercise of the magistrate’s power. Furthermore, the rule requires a party to petition the district court to review a void judgment, to “intrude upon the district court’s time” when in fact the party has a legal right to have the case heard by the district judge in the first place.

The fundamental question is whether the courts must sacrifice their judicial integrity in order to accomplish the task before them. Lawyers are resorting more and more to para-legal assistants to efficiently cope with their volume of work. Perhaps the theory now is that the judiciary must do the same to survive. However, I cannot join this school of thought. Despite protestations otherwise, my observation of over seven years on the appellate bench is that the judiciary as a whole has a long way to go in self-improvement before it may be said that we have reached our outer limits. Whether the answer lies in increasing the number of judges, revitalizing our rules and procedures, training judges to become more efficient and expeditious taskmasters or simply in working longer hours I cannot say. I suggest, however, that the solution should be sought within these alternatives before taking the easy way out of delegating “puisne judges” to make our decisions for us.

      . 28 U.S.C. § 636(b) provides:
      (b) Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
      (1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts [F.C.A. Rules, part 1] ;
      (2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions; and
      (3) preliminary review of applications for posttrial relief made by individuals convicted' of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.

      . I do not read Noorlander as authority for a magistrate to conduct evidentiary hearings under the guise of acting as a special master. The appointment of a master should rarely occur and then only under “unusual” circumstances. See La Buy v. Howes Leather Co., Inc., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957). Furthermore, Rule 53 of the Federal Rules of Civil Procedure contemplates that the district court will review the findings of fact of a master under the clearly erroneous standard. This is hot suggested in Noorlander as an approved means by which a district judge may review the magistrate’s findings in prisoner post-trial and civil rights actions.

      . A magistrate has no authorized power to deny the right of a petitioner to proceed in forma pauperis or to deny the appointment of counsel. Yet the rule allows the magistrates to assume these powers. Both of these acts are judicial in nature, significant to both petitioner and the court. The grant of a certificate of in forma pauperis is not intended to be a perfunctory act. Section 1915 of Title 28 requires the court to determine whether a party may proceed in forma pauperis. Even more important to the petitioner and to the overall administration of justice is the decision to approve or deny the appointment of counsel. This again is not a perfunctory administrative act. It requires judicial consideration. Members of this court spend many hours in reviewing and studying post-conviction files and often reviewing case law to determine whether a party and the cause of justice will be better served if counsel is appointed to brief and argue a case on appeal. This is our judicial function, as it is the district court’s when presented to it. The local rule likewise allowed a magistrate to enter an order authorizing the transfer of a petitioner from a district. This rule was properly struck down in Noorlander.

      . See cases cited in Noorlander, supra at 489 F.2d at 642.


source: Caselaw Access Project

author: ENRIGHT, District Judge: ELY, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Johnetta RANDALL, Appellant.
    No. 71-3079.
    United States Court of Appeals, Ninth Circuit.
    Jan. 28, 1974.
    Rehearing Denied March 18, 1974.

      Martha Goldin (argued) of Saltzman & Goldin, Hollywood, Cal., for appellant.
    Jonathan David Rapore, Asst. U. S. Atty., (argued) Los Angeles, Cal., for appellee.
    Before ELY and GOODWIN, Circuit Judges and ENRIGHT, District Judge.

       The Honorable William B. Enright, United States District Judge for the Southern District of California, sitting by designation.

   ENRIGHT, District Judge:

Johnetta Randall was found guilty, following a jury trial, on one count of a two count indictment charging violations of Title 26, U.S.C. Section 4705(a), transferring cocaine without obtaining from the transferee an order form issued for that purpose by the Secretary of the Treasury.

The trial court imposed a two year sentence but suspended its execution and placed defendant on probation for a period of three years.

The jurisdiction of this court to review the conviction is vested by 28 U.S. C. Sections 1291 and 1294, and Rules 3 and 4(b) of the Federal Rules of Appellate Procedure.

On this appeal the appellant’s essential contention is that hearsay statements made by one Diana Edmond, a fugitive at the time of trial, were admitted against the defendant, and thereby deprived her of a fair trial.

On December 22, 1970, at approximately 7:00 p. m., an undercover agent accompanied by an informant proceeded to an apartment in Los Angeles to purchase cocaine. The only people at the apartment were Diana Edmond and Charles Randall, the defendant’s ex-spouse, also a fugitive at time of trial. Upon her arrival, the agent was informed that the cocaine had not yet arrived. The agent left to confer with other surveillance officers and returned in twenty minutes’ time. Upon her return, the agent observed Charles Randall next to the defendant with cocaine in his hand. The agent was introduced to the defendant and a short dialogue occurred between Charles Randall and the agent concerning the cocaine. Those two then went to the kitchen to complete the sale and to discuss future purchases. By the time they had returned to the dining room, the defendant had departed. The transfer of the 'cocaine then took place without the agent providing the required form. Testifying in her own behalf, the defendant stated that she had brought her daughter so that the youngster could see her father as well as to obtain some Christmas money. On the basis of this evidence, the jury acquitted Johnetta Randall of Count One.

On December 31, 1970, the agent again went to the same apartment to make another purchase of cocaine. The agent testified that Edmond announced that the transaction would be between the two of them. Edmond then made a telephone call, and shortly thereafter, a telephone call was received. Soon a car honk was heard; Edmond took the money given to her by the agent and went downstairs. The agent from the apartment window observed Edmond meet the defendant and converse; then the defendant handed Edmond a blue Christmas box. Randall drove off, and Edmond returned to the apartment. Edmond opened the box and gave the cocaine contained within it to the agent.

Eliminated from this court’s recitation of the facts are two hearsay statements made by Edmond incriminating the defendant. First, in response to a question by the agent, Edmond answered that Randall was coming over, thereby implying that she, Randall, was the courier of the narcotics. Second, after reception of the second telephone call, Edmond stated to the agent that Randall had instructed her to bring the money down when she (Randall) would arrive, and she would then give Edmond the cocaine.

When the prosecutor first asked the agent to recite what had occurred between Edmond and herself, defense counsel lodged a vigorous hearsay objection. A conference at the bench ensued. During the conference, government counsel was willing first to establish defendant’s participation in an effort to lay a foundation for the admission of the hearsay; however, for the convenience of the jury, he desired to introduce the events chronologically. The trial judge permitted him to proceed chronologically, cautioning him, though, that should the statements and foundation not be properly connected, he would entertain a motion for acquittal.

We are not unmindful of the difficult circumstances which place the defendant in a position where she finds herself defending against words she did not hear, at times unknown to her, spoken by a person unavailable for cross-examination whose relationship to her is at best maintained by legal fictions. On the instant facts, we must nevertheless conclude that there was sufficient evidence independent of the statements to permit the admissibility of the statements themselves.

In United States v. Griffin, 434 F.2d 978, 983-984 (9th Cir. 1970), cert. denied sub nom., Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), this circuit relied upon United States v. Ragland, 375 F.2d 471, 476 (2d Cir. 1967). In Ragland, Judge Waterman wrote:

[O]nce some conspiracy, agency, or concert of action is independently shown, hearsay statements made in furtherance of such relationship are admissible. However, the independent evidence need not, as appellant suggests, be so clear and convincing as to compel [emphasis original], absent contradiction, a finding of the fact sought to'be proved.
The threshold requirement for admissibility is satisfied by a showing of a likelihood [emphasis supplied] of an illicit association between the declarant and the defendant although it might later eventuate that the independent evidence so admitted proves to be insufficient to justify submitting to the jury the issue of defendant’s alleged guilty involvement with declarant. If the issue is submitted to the jury it then becomes the function of the jury, not the trial judge, to determine whether the evidence was credible and was convincing beyond a reasonable doubt. In determining preliminary questions of fact relating to admissibility of the hearsay the trial judge has wide discretion, and need only be satisfied, if he accepts the independent evidence as credible, that that evidence is sufficient to support a finding of a joint undertaking.
Moreover, the independent evidence of illicit association may be totally circumstantial . . . . Nor is it necessary in this circuit that such independent evidence be inconsistent with all reasonable hypotheses of innocence, as appellant suggests, either to legitimate its admissibility, or to support a conviction. It is true that an association with an alleged conspirator, without more, is insufficient to establish the necessary foundation for the admissibility of the incriminating statements. The accused must “in some sort associate himself with the venture, * * * participate in it as in something that he wishes to bring about * * * [or] seek by his action to succeed.” Such association may be shown [for example] by the defendant’s driving the car transporting the illicit subject matter under circumstances indicating a possession thereof. Mere presence at the scene of an offense when the accused is likely to be aware that an offense is to occur may be sufficient to base an inference of complicity when such presence either facilitates, or permits, the unlawful act. An otherwise innocent act of “relatively slight moment,” may, when viewed in the context of surrounding circumstances, justify an inference of complicity, and the fact that the defendant maintained a silence throughout, while often relevant to his awareness and role in the transaction, does not conclusively negate his participation in it.

375 F.2d at 476-478 [Citations omitted],

Here appellant asserts that the finding of not guilty rendered by the jury as to the first count must negate any reliance placed by the trial judge on that transaction in allowing into evidence the inculpatory hearsay relating to the second transaction. We disagree. Not only does this assertion not comport with the final portion of the above passage, but as a practical matter it would be extremely difficult, if not impossible, for trial courts effectively to instruct juries, by attempting to delineate the precise evidence that would be admissible as to specific counts, and not as to others, in a multi-count indictment as in the instant case. We too are aware of the different standards to be used by the jury and court in discharging their respective responsibilities. If the evidence as to the defendant’s participation in the first transaction had been clear and convincing, and yet short of proof beyond a reasonable doubt, then the duty of the jury would have been to acquit, while it would have been in the court’s discretion to consider those very same facts in weighing the admissibility of the hearsay related to the later occurrence.

When this previous activity, at the same apartment involving not only similar contraband but also an incriminating conversation in the defendant’s presence pertaining to the cocaine, is coupled with the later sequence of events, i. e. the placing of the original telephone call, the almost immediate reception of a second call, the arrival soon thereafter of the defendant, the meeting between the declarant and defendant, and finally, the delivery of the contraband by the declarant to the agent, a sufficient basis to admit the hearsay is established.

We find the appellant’s other contentions to be without merit.

The conviction is affirmed.

ELY, Circuit Judge

(Dissenting):

I respectfully dissent. The appellant, charged with two counts of knowing and unlawful transfer of cocaine, was acquitted on the first count and convicted on the second count. The only evidence sufficient to sustain her conviction on the second count consisted of hearsay statements made by her alleged accomplice,- Diana Jean Edmond, to a government agent. Those statements were offered at trial, not by Edmond, but by a government agent to whom the statements were made.

On appeal the appellant argues: (1) There was insufficient independent evidence of her participation as an agent or co-conspirator to justify admitting the statements as an exception to the hearsay rule; (2) the court gave no cautionary jury instruction regarding the testimony of an accomplice; and, (3) there was improper comment by the prosecutor which deprived the appellant of a fair trial.

The majority, in my view, has misapplied the law in deciding appellant’s first contention. The rule in our Circuit, as recently stated in United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972) requires that the independent evidence of conspiracy be sufficient to constitute a prima facie case. In other words, a case presenting sufficient uncontradicted evidence to support a judge’s finding that a conspiracy existed and that the defendant was a participant. Accord, Carbo v. United States, 314 F.2d 718 (9th Cir. 1963). The standard set forth in Spanos, supra, does not conflict with United States v. Ragland, 375 F.2d 471 (2d Cir. 1967) relied on by the majority. Ragland, which was cited in Spanos, supra, requires that there be independent evidence of conspiracy sufficient to support a finding of a joint undertaking. United States v. Ragland, supra, 375 F.2d at 476. The evidence must show that the accused has associated himself with the venture as a participant desirous of furthering its goals. United States v. Ragland, supra, citing United States v. Peoni, 100 F.2d 401, ,403 (2d Cir. 1938). Accord, United States v. Spanos, supra.

The independent evidence of conspiracy in the instant case consisted merely of the appellant’s presence at the scene of the first transaction, and her delivery of a Christmas present for her ex-husband to her alleged accomplice, Diana Jean Edmond, just prior to the second transaction. Before the appellant’s arrival with the Christmas package, Edmond made a telephone call to an unknown person, and a few minutes later received a telephone call from an unknown person. It was shortly thereafter that the appellant arrived outside the apartment building and delivered the Christmas package to Edmond. Edmond was out of the agent’s sight from the time she entered the building until she went into the apartment, opened a Christmas package, and delivered the cocaine inside to the agent. The independent evidence against the appellant, while it may give rise to a suspicion that she was involved, falls far short of establishing a prima facie ease that she was acting in concert with Edmond or that she was a participant in a conspiracy to violate the narcotics laws. A prima facie case requires that there be evidence tending to show the existence of all the elements involved—i. e., substantial evidence that the accused knowingly associated himself with others in the commission of a particular crime. Ong Way Jong v. United States, 245 F.2d 392, 394, 396 (9th Cir. 1957); United States v. Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972); Krulewitch v. United States, 336 U.S. 440, 453, 69 S.Ct. 716, 93 L.Ed. 790 (1948). See Mayola v. United States, 71 F.2d 65 (9th Cir. 1934); United States v. Peoni, 100 F.2d 401 (2d Cir. 1938). See also, Levie, Hearsay and Conspiracy, 52 Mich.L.Rev. 1159, 1168 (1954).

The first evidence offered against the appellant consisted of her presence at the apartment wherein the first transaction occurred. Ong Way Jong, supra, holds that mere presence or association with other guilty parties is not enough to show concert of action or conspiracy to commit criminal acts. Furthermore, the appellant was acquitted of complicity in the first transaction, which involved Charles Randall and Diana Edmond. There is nothing to show that the second transaction was in any way connected with the first, as part of a common plan or scheme, and only Edmond was involved in the second transaction. The conspiracy which must be shown by independent evidence before hearsay statements of co-conspirators can be admitted against others must be a conspiracy to accomplish a particular objective. Here, wherein the prosecution was attempting to show the appellant’s connection with the second transaction, her mere pressence at the scene of a prior transaction, not shown to be connected with a second transaction, was not even relevant to establish her involvement in the second transaction.

The other evidence offered by the prosecution concerned the appellant’s arrival outside the apartment building shortly after Edmond had placed a call to an unknown person and received a return call from another unknown person a few minutes later. There is no evidence that the telephone call was placed to and returned by defendant other than the hearsay statements themselves. Furthermore, there is no evidence that the box delivered by the appellant either contained narcotics at the time it was delivered to Edmond or that the box opened by Edmond in the apartment was the same box that the appellant had delivered. As previously emphasized, Edmond was out of sight of the agent from the time she entered the apartment building until she entered the apartment itself. Davis v. United States, 382 F.2d 221 (9th Cir. 1967); People v. Blackshear, 261 Cal.App.2d 65, 67 Cal.Rptr. 662 (1968); People v. Lawrence, 168 Cal.App.2d 510, 336 P.2d 189 (1959). The agent testified only to the description of the box which she saw the appellant hand to Edmond. There was no testimony describing the box which was opened in the apartment, nor was there testimony that the box in the apartment was similar to the one appellant gave Edmond. Disregarding hearsay statements by Edmond, the only evidence against the appellant was that she was in an apartment where narcotics were surreptitiously delivered to a government agent on one occasion, and that she delivered a Christmas present to Edmond shortly before Edmond delivered narcotics to a government agent on another, later occasion. This evidence does not make out a prima facie case of conspiracy or concerted action on the part of appellant to achieve a criminal objective, and the admission of the hearsay statements against her constituted prejudicial error of the most flagrant nature.

The appellant’s second argument is that she should have been given the benefit of a cautionary instruction to the jury concerning the reliability of statements by alleged accomplices. Such an instruction would, of course, have been unnecessary had the court correctly refused to admit the hearsay statements in the first place. But assuming that the hearsay statements were properly admitted, this is the kind of case demanding that the court should present a cautionary jury instruction on its own motion. When the conviction of the accused rests on incriminating statements made by alleged accomplices who are unavailable at trial, there is a crying need for such an instruction. The out-of-court declarant in this case was a fugitive from justice. The hearsay statements were related to a jury by a gov-eminent witness. The appellant was unable to confront and cross-examine her accuser, and without the hearsay testimony there would have been no evidence sufficient to convict. Such circumstances should require a court to give the cautionary instruction, regardless of whether or not it is requested by counsel. Our court has previously held that it is prejudicial error to fail to give such an instruction when requested, and we have often noted that the giving of such an instruction is by far the better practice even if not requested. In cases such as this, when the case against the accused rests primarily on the uncorroborated hearsay testimony of an unavailable witness, it is, I think, essential that the “better practice” should become the required practice.

I agree with my Brothers that the appellant’s third contention is without merit, but for the reasons I have set forth, I would reverse.

      . The co-conspirator’s hearsay admission rule is not to be confined to those who are co-defendants at the same trial. United States v. Williams, 435 F.2d 642, 645 (9th Cir. 1970). Neither must a conspiracy count be included within the indictment. Id. If this were not true, the logical tendency would be for the prosecution to be encouraged to seek conspiracy indictments in cases in which they have heretofore refrained or declined to do so.

      . United States v. Davis, 439 F.2d 1105 (9th Cir. 1971) ; Sabari v. United States, 333 F.2d 1019 (9th Cir. 1964) ; Toles v. United States, 308 F.2d 590, 592 (9th Cir. 1962) ; Crawford v. United States, 212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465 (1909).

      . Bible v. United States, 314 F.2d 106, 108 (9th Cir. 1963) ; United States v. Davis, 439 F.2d 1105, 1106 (9th Cir. 1971).


author: JONES, Circuit Judge.

text:
    Stan A. WALLIS, Petitioner-Appellant, v. Colonel Oliver E. O’KIER, Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas, Respondent-Appellee.
    No. 73-1414.
    United States Court of Appeals, Tenth Circuit.
    Feb. 19, 1974.
    Joel M. Gora, New York City (Melvin L. Wulf, Joel M. Gora, New York City, Nicholas Waranoff, Law Student, Palo Alto, Cal., American Civil Liberties Union Foundation, New York City, David Addlestone, Military Law Project ACLU, Washington, D. C., and Scott Jarvis, Topeka, Kan., on the brief), for petitioner-appellant.
    Franklin A. Luna, Washington, D. C. (Robert J. Roth, U. S. Atty., Bruce D. Miller, Asst. U. S. Atty., Franklin A. Luna, Major, USAF, Office of the Judge Advocate Gen., United States Air Force, on the brief), for respondent-appellee.
    Before LEWIS, Chief Judge, and JONES and McWILLIAMS, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   JONES, Circuit Judge.

The factual situation from which this appeal arises may be stated briefly. The appellant, Stan A. Wallis, was an Airman in the United States Air Force. He was stationed at Mountain Home Air Base, Idaho. Agents of the Office of Special Investigation at the Base had information that Wallis was trafficking in contraband drugs. The information was given orally to the Colonel in command of the Base. The Colonel issued a special warrant authorizing or purporting to authorize the search of the effects of Wallis in his barracks room and automobile. The search was made and prohibited drugs were found. Four charges, all involving possession and sale of illicit drugs, were made. Wallis was tried before an Air Force General Court-Martial and convicted on all of the charges. A single sentence of dishonorable discharge, four years imprisonment at hard labor, loss of grade and forfeiture of pay was imposed. His sentence was reviewed and affirmed by the Staff Judge Advocate of the General Court-Martial Convening Authority, by the General Court-Martial Convening Authority and by the United States Air Force Court of Military Review. The conviction and sentence was affirmed by all of these. The Court of Military Appeals denied a petition for review. The term of imprisonment was commuted from four to three years. He was confined in the United States Disciplinary Barracks at Fort Leavenworth, Kansas, and while so confined he petitioned the United States District Court for the District of Kansas for the issuance of a writ of habeas corpus. The district court entered an order denying the petition and from that order Wallis has appealed. After the judgment of the district court and prior to the filing of the notice of appeal, Wallis had completed serving his sentence and was released from custody.

The district court held that the contentions of Wallis had been given full and fair consideration by each military tribunal to which they were presented and accordingly, the court concluded it lacked jurisdiction to intervene or to review the merits of the case. After deciding that it was without jurisdiction, the court proceeded to determine that the procedures followed in the issuance and execution of the search warrant were valid and proper, and that Wallis was not denied any right accorded him by the Federal Constitution.

In that document it is provided that,

“The Congress shall have Power . To make Rules for the Government and Regulation of land and naval Forces.” U.S.Const., Art. I, § 8.

The Congress has provided that,

“The procedure, including modes of proof, in cases before courts-martial, courts of inquiry, military commissions, and other military tribunals may be prescribed by the President by regulations which shall, so far as he considers practicable, apply the principles of law and the rules of evidence generally recognized in the trial of criminal eases in the United States district courts, but which may not be contrary to or inconsistent with this chapter.” 10 U.S.C.A. § 836(a).

In the exercise of the granted powers, the President promulgated the Manual for Courts-Martial. In this extensive Manual it is set forth that a search may be made pursuant to a warrant issued by the commanding officer of a military installation upon probable cause. Manual for Courts-Martial, †[ 152. The manual does not provide for the probable cause to be supported by oath or* affirmation as does the Fourth Amendment to the Constitution. There seems to be no doubt but that an express provision of the military law that probable cause could be shown by oral statements would be valid. Any draftsman of a rule providing for probable cause as an incident to the issuance of a search warrant would be consciously aware of the Fourth Amendment provision. It is apparent that the omission of a reference to oath or affirmation was deliberate and intentional. There are reasons for such an inference. Although this was probably not such a case, many situations have existed and will exist in military commands where the formalizing of the probable cause by the affixing of a seal to a paper writing would be impracticable or impossible. Such a construction has been placed upon the provision by the military courts. The search made pursuant to a warrant issued, upon probable cause not supported by oath or affirmation, by the commanding officer of the military installation, where the search is to be made of property in the possession or under the control of a person in the command of the officer issuing the warrant, as in the case here present, is a valid search.

It is said on behalf of Wallis that a search warrant should be issued by one who is independent and neutral and that the Commanding Officer is not within this category. In support of this doctrine, Wallis relies upon Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120, and Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783. These decisions hold that police officers and prosecutors do not have that independence and neutrality which are necessary in the exercise of the issuance of search warrants. It has not been shown, and the Court will not assume, that the Commanding Officer of a military installation is to be classified as a prosecutor or a policeman. We think he is neither. He is of the description given him by his title—the Commanding Officer of the personnel within his command and of the property committed to his control. To be sure, he is responsible for the maintenance of order and discipline within his command. This does not mean that he is partial, prejudiced and biased. There is no reason to suppose that he would be less willing than a magistrate that there be a fair and just administration of the law.

We are urged by the Government to hold that this is a case where military tribunals have given full and fair consideration to the issue presented and that, since this has been done, the district court and this Court are without jurisdiction to review the merits of the cause. This is an overstatement of principle. Wallis asserted in his habeas corpus petition that he was being deprived of his liberty in violation of a right guaranteed to him by the United States Constitution. Where such a constitutional right is asserted and where it is claimed that the petitioner for the Great Writ is in custody by reason of such deprivation, the constitutional courts of the United States have the power and are under the duty to make inquiry. Kennedy v. Commandant, U. S. Disciplinary Barracks, 10th Cir. 1967, 377 F.2d 339.

Deciding as we do that the search warrant was valid, the judgment of the district court will be and it is affirmed.


author: LUMBARD, Circuit Judge:

text:
    UNITED STATES ex rel. Robert RICE, Relator-Appellee, v. Leon J. VINCENT, Superintendent, Greenhaven Correctional Facility, Stormville, New York, Respondent-Appellant.
    Nos. 364, 365, Dockets 73-2195, 73-2196.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 19, 1973.
    Decided Feb. 7, 1974.
    Lewis M. Steel, New York City (William M. Kunstler, Conrad J. Lynn, and Chester Mirsky, New York City, on the brief), for appellee.
    Robert A. Goldschlag, Asst. Dist. Atty., for New York County (Frank S. Hogan, Dist. Atty., New York County; Michael R. Juviler and Lewis R. Friedman, Asst. Dist. Attys., on the brief), for appellant.
    Before MEDINA, LUMBARD and TIMBERS, Circuit Judges.
   LUMBARD, Circuit Judge:

Leon J. Vincent, the Superintendent of the Greenhaven Correctional Facility of Stormville, New York, appeals from an order entered on July 17, 1973, in the Southern District which granted the petition of Robert Rice, a prisoner in the facility, for a writ of habeas corpus unless the State of New York granted him a new trial within 60 days. Rice was convicted in the Supreme Court for New York County of the crimes of murder in the first degree, attempted murder in the first degree, and attempted robbery in the first degree after a trial before a jury lasting from March 11, 1970, to April 9, 1970. On September 22, 1970, Rice was sentenced to life imprisonment for murder; from 12y2 to 25 years for attempted murder; and from 7% to 15 years for attempted robbery, the sentences to be served concurrently.

After the trial it was learned that a prosecution witness, Robert Barnes, Jr., had recanted his testimony and that a fingerprint at the scene of the crime which a police expert testified was Rice’s had originally been given a “no value” designation by another police expert. Rice made an appropriate motion for a new trial on the grounds of newly discovered evidence, which Justice Fine of the New York Supreme Court denied. Leave to appeal this order was denied by Justice Steuer of the Appellate Division, which decision was not appealable. Having thus exhausted his state remedies, Rice filed a petition for a writ of habeas corpus in the Southern District. Judge Tyler agreed with Rice’s contention that, in light of the new evidence, due process required a new trial and, without holding a hearing, he ordered that the writ be granted unless Rice is retried within 60 days. 361 F.Supp. 843 (S.D.N.Y.1973). On August 3, 1973, Judge Tyler also granted Rice’s motioii for bail pending appeal of his order. On September 5, another panel of this court stayed the bail order pending disposition of this appeal, 486 F.2d 215 (2d Cir. 1973), and at argument we denied a motion to vacate this stay.

I.

On April 29, 1964, there was an attempted robbery of a small clothing store on West 125th Street in Manhattan owned by two Hungarian immigrants, Frank and Margit Sugar. During the course of the attempted robbery, Margit was killed and Frank was seriously wounded. Following an intensive police investigation, Wallace Baker, Ronald Felder, William Craig, Robert Rice, Daniel Hamm, and Walter Thomas (who came to be known as the “Harlem Six”) were indicted for murder, attempted murder, and attempted robbery. A trial was held in the spring of 1965 at which all six were convicted and sentenced to life imprisonment. At the trial the confessions of Hamm, Baker, and Rice were introduced. None of these defendants testified. The Appellate Division, First Department, 'affirmed the convictions, People v. Baker, 28 A.D.2d 24, 281 N.Y.S.2d 161 (1967); People v. Felder, 28 A.D.2d 823, 282 N.Y.S.2d 644 (1967) (no opinion); but the New York Court of Appeals reversed and ordered three new and separate trials, People v. Baker, 23 N.Y.2d 307, 296 N.Y.S.2d 745, 244 N.E.2d 232 (1968). The court held that Baker’s confession should have been excluded, but upheld the trial court’s finding that Hamm’s and Rice’s confessions were admissible. It also held that a sweater seized from Rice should have been excluded. Finally, the court ordered separate trials for Rice and Hamm on the grounds that use of their confessions, which implicated the other four, at the trial of the six had violated the mandate of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

As noted earlier, Rice was retried and convicted again in April 1970. The conviction was affirmed without opinion by the Appellate Division, People v. Rice, 39 A.D.2d 840, 332 N.Y.S.2d 1010 (1972). On June 30, 1972, the New York Court of Appeals granted leave to appeal, but we have been informed that the appeal will not be heard until the collateral attack before us is decided.

The other five were more fortunate. Hamm pleaded guilty in April 1971 to lesser included charges. The remaining four were tried in early 1971, but the trial ended with a hung jury. Another trial was held in January 1972 and ended in yet another hung jury. On April 4, 1973, the four pleaded guilty to manslaughter in the first degree. They were sentenced that day to the time that they had' already served and were thus set free.

II.

A. Rice’s confession.

The issue of whether due process requires a new trial necessitates a recital in some detail of the evidence adduced at Rice’s second trial in 1970. Probably the most important piece of evidence was Rice’s own confession. Prior to the first trial it was claimed that the introduction of the confession into evidence would be unconstitutional and a suppression hearing was held pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1965), and People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965). The trial judge ruled that Rice’s oral statements and a written statement would be admissible, but that a later stenographic record of a question-and-answer session would be suppressed, evidently because it occurred after Rice’s counsel had arrived at the station house but before he had been allowed to see Rice. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). The New York Court of Appeals affirmed this order, and the correctness of this decision is not before us. Admittedly, Rice was not told of his right to remain silent or to have counsel present since the interrogation took place before the decision of Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but it is clear that Miranda does not apply to confessions introduced at retrials if the first trial began before that decision was rendered, as is the case here. Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969).

Rice was picked up about 5:00 on the afternoon of April 30, 1964. At 7:30 Detective Halk and Sergeant Wilson began to question him. At first Rice denied all knowledge of the murder, and Wilson went into an adjoining room to speak to Hamm, who was then confessing. When Wilson returned, he told Rice that he knew about the plan to rob the store and the identity of the participants. Rice then confessed. While he recounted the details a second time, Halk prepared a written statement, which Rice signed at about 11:30 P.M.

In both the oral and written statements Rice admitted that he and the other five had met the day before on 129th Street to plan the crime. Hamm was to be the lookout. Rice, Thomas, and Baker first entered the store with shopping bags, and Thomas asked where the size forty suits were. The proprietor pointed to the suit rack. Felder and Craig came in a few minutes later and the proprietor began to panic. Felder then stabbed the owner with a knife. His wife tried to grab the phone and Rice knocked her down and Felder stabbed her. Confused and frightened, the group then fled from the store without taking any money or suits. The police testified that no officer beat or threatened Rice.

Testifying in his behalf, Rice said that he denied all knowledge about the crime and was then handcuffed to a chair and was savagely beaten. He still refused to confess but he did sign a statement that Halk had written even though he did not know what it said. When he saw his attorney that night, the first thing he said was “I did it.” His attorney, David Scheinfeld, said that Rice appeared to be in a state of shock but that he saw no bruises or other signs of beating. Rice explained his exclamation by saying that he feared Scheinfeld was another policeman and that he did not want another beating. This is despite his claim that he had withstood prior severe beatings and despite the fact that he had met with Scheinfeld about twenty times previously in an unrelated civil matter.

In rebuttal the prosecution introduced evidence showing that Rice had made no complaints about being beaten when he was arraigned the next day, May 1. The same day Rice was interviewed at the Manhattan House of Detention for Men and filled in a form saying his physical condition was “okay.” The interviewer testified that he would have recorded any observations of marks and bruises on Rice, which he did not. Finally, a physician who examined Rice at the Brooklyn House of Detention, to which Rice was then transferred, stated that he did not detect any bruises, discoloration, or swelling on Rice’s body.

B. Ollin Roe’s Testimony

Ollin Roe testified that he was working in the drugstore adjacent to the clothing store at the time of the crime. He heard a commotion next door and banging on the walls. The pharmacy owner, Julius Levitt, sent Roe next door to see what was happening. Roe looked through the front door of the store and saw a couple of fellows around Mrs. Sugar and heard Mr. Sugar screaming. Roe recognized Rice, Felder, Hamm, and Thomas. Roe ran back into the pharmacy and went into the basement. Levitt said that he looked “agitated.” Levitt called Roe from the basement and told him to go back to the Sugars’ store. Near the front door of the pharmacy, Roe saw five or six young men run by and turn up Fifth Avenue.

By way of impeachment, it was shown that Roe said on the night of the crime that he had not recognized any of the perpetrators of the crime. It was not until early 1965 during his second visit to the district attorney’s office that Roe said he could recognize some of the persons involved. Roe explained this delay by saying that he and his family had been threatened, but they had not been threatened before he was questioned on the night of the crime. Moreover, his testimony at the first trial was that he had seen the group running by but that he had not seen them in the store.

Roe was arrested on April 28, 1965, on a grand larceny charge. Roe claimed that this arrest occurred after his visit to the district attorney’s office. He subsequently pleaded guilty to a petit larceny charge and was put on probation. Roe also admitted that he had started using narcotics after the murder and that he had been detoxified three times.

C. Barbara Wright’s and Constance Wright’s Testimony

Barbara Wright, then 13, and Constance Wright, then 8, were sent to Levitt’s store by their aunt on April 29, 1964, to buy a jar of Noxema. When they were coming out of the store, they saw a group of boys running by. Barbara recognized Thomas, Hamm, and Felder as boys she knew from the neighborhood. Constance, who was too young to testify at the first trial, identified in court photographs of Thomas, whom she knew, Hamm, Baker, and Felder. Each girl’s testimony conflicted in minor ways with Roe's. Constance did not see Roe run out of the drugstore, although she admitted that she was not paying attention to the boy who worked in the store. Barbara’s testimony indicated that Mr. Sugar staggered into the drugstore at an earlier moment than Roe said he did.

D. Robert Barnes, Jr.’s Testimony

Robert Barnes, Jr., testified that Thomas, Craig, Baker, Hamm, Rice, and he were talking on a stoop at 134 West 129th Street and that Baker said that he could probably get them some suits. The five proceeded to another building where in the hallway Baker announced a plan to rob a store on 125th Street. Tentative plans were made. Baker said that he and Rice, the two with knives, would kill the proprietors. The group moved on to Thomas’ apartment and were joined by Felder. There it was agreed that Hamm would be the lookout. Barnes, Craig, and Thomas were to enter the store with shopping bags and Thomas was to ask for the size 40 suits. Together with Felder, they were to fill the bags with suits after Baker and Rice came in and killed the owners. The seven left for the store, but when they passed Barnes’ home at about 5:00 P.M., his father called him in and told him to apologize to the landlady for an incident that occurred the previous day.

Barnes did not leave his home until 5:45, when his father left for work. Passing the store, Barnes saw police inside and pools of blood on the floor. He went to Rice’s grandmother’s apartment. In the living room were Rice, Baker, Craig, and Thomas. Barnes asked where the suits were and Rice answered that there were none because Felder had panicked. Rice, giving a demonstration of technique, said that he had stabbed the woman. Since it was “hot in the streets,” it was agreed that the group would leave in pairs. Barnes was picked up that night and under questioning confessed his part in the planning of the crime.

Prior to the murder Barnes had been convicted of petit larceny and loitering. Since Barnes spent 15 months in custody as a material witness, the sentences on both convictions were suspended. In March 1966 (after the first trial) Barnes pleaded guilty to third degree robbery and was sentenced up to 5 years. He was paroled after 2.1/2 years. In June 1969 he pleaded guilty to second degree robbery and was sentenced up to 8 years. In 1970 this was reduced to up to 6 years. In October 1969 Barnes was sentenced to up to 4 years for parole violations, to be served concurrently with the terms for robbery. Prior to the sentencing for the robbery convictions the sentencing courts were informed of Barnes’ cooperation in the Sugar case and prior to his testimony at the second trial the assistant district attorney promised to send the parole board an account of his cooperation.

While he was in prison, Barnes wrote letters to Thomas’ mother saying he would not testify against the six at a new trial. On March 15, 1970 ¿¿(about two weeks before he testified at the second trial), he wrote an “affidavit” saying that his statements against the six had been coerced by the police, who had coached him in what to say. Barnes later repudiated this recantation and reiterated the testimony he had given at the first trial. He claimed that the letters were sent in response to threats his fiancee had received and that the “affidavit” was written after Rice, who was in the same cell block at the Manhattan House of Detention for Men, had threatened him.

E. Fingerprint Evidence

The store was processed for latent fingerprints on the morning of April 30, 1964. One print was found on the glass door. Sergeant Ferrara testified that the print was Craig’s. Another print was removed from the metal door frame. Ferrara said that the print was Rice’s. Rice claimed that he and Craig had been to the store in early April, about three weeks before the crime, but that he, Rice, had stopped at the door and not gone inside. Joseph Katz, a window washer, testified that he had washed the glass door on Monday morning before the murder, which occurred on Wednesday afternoon. A police expert said that the prints in question were probably not more than five days old on April 30.

III.

At the second retrial of the four, Assistant District Attorney Lehner on Direct examination of Ferrara elicited testimony that the fingerprint said to be Rice’s had originally been given a “no value” designation in a preliminary examination by a Detective- Goldstein. This meant that in Goldstein’s opinion the print was useless for purposes of identification even when matched against only a few known prints. It was only shortly before the first trial in 1965, when Assistant District Attorney Loguen, the prosecutor in the first trial, asked Ferrara to recheck the prints, that the print on the doorframe was matched with a finger of Rice. Apparently Lehner, who prosecuted Rice’s second trial, did not know of the no value designation until shortly before the last trial of the four in January 1972.

Ferrara testified that he had discussed the print with Goldstein who agreed with him that the print was valuable and he would so testify if called. The defense did not try to exploit Gold-stein’s designation, except to refer to it during summation. Neither Goldstein nor an independent fingerprint expert was called.

On June 30, 1972, Barnes, who was then in the Clinton Correctional Facility at Dannemora, New York, wrote a letter to William Kunstler, , an attorney who had represented the four, which in essence stated that the Harlem Six were innocent. Kunstler proceeded to visit him and assist him in preparing two affidavits on July 3 and July 5. The first affidavit describes in some detail how the police coerced him into testifying. The second describes how they taught him what to say. After these affidavits were published, Rice’s attorneys claimed that Barnes was taken from Clinton and only police or prosecutors were allowed to see him. Whatever the truth of these allegations, Lehner filed an affidavit stating that Barnes had repudiated his new recantation and had said that it was the result of inmate pressure.

IV.

As noted above, we are hearing this collateral attack on the conviction before the New York Court of Appeals has heard the direct appeal. The issue before us, therefore, is a narrow one: Does due process require that New York give Rice a new trial because of Barnes’ recantation and Goldstein’s original designation of the fingerprint as being of no value? We hold that due process does not necessitate a new trial in these circumstances.

The standard adopted by the federal courts in determining whether a witness’ recantation necessitates a new trial, at least where allegations of police or prosecutorial misconduct are made, is that stated in Larrison v. United States, 24 F.2d 82, 87-88 (7th Cir. 1928) (emphasis original):

[A] new trial should be granted when,

(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
(b) That without it the jury might have reached a different conclusion.
(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.

Assuming arguendo that the Larrison standard applies to this case, the State of New York is not required to grant Rice a new trial under that standard. As we said in United States v. Troche, 213 F.2d 401 (2d Cir. 1954), recantations of testimony given at trial are “ ‘looked upon with the utmost suspicion.’ ” Id. at 403, quoting Harrison v. United States, 7 F.2d 259, 262 (2d Cir. 1925). We are not reasonably well satisfied that Barnes’ testimony at trial was false. Barnes gave essentially the same testimony at four trials before pet-it juries. Three of these trials occurred after an earlier recantation. We also doubt that the verdict might have been different. Besides Barnes’ testimony the jury had before it Rice’s confession, Roe’s identification of Rice, the fingerprint evidence, and the corroborating identifications by the Wright sisters. Rice’s efforts to discredit his confession, to say the least, must have strained the jury’s credulity.

Finally, it is clear that Rice was not taken by surprise by the second Barnes’ recantation. This second recantation is in essence similar, if more detailed, than the one introduced to impeach Barnes at the retrial. Under the third prong of the Larrison test, Rice clearly knew of the possible falsity of Barnes’ testimony and was able to attempt to meet it.

The requirements of due process in this situation are certainly not more rigorous than the Larrison test that the federal courts have adopted and followed in the exercise of their supervisory powers. The State here had a valid interest in protecting the finality and integrity of its judgments. While the charges of police misconduct are serious, Rice had an opportunity to present these charges in a full and fair hearing before a jury prior to his convictions at his retrial. Consequently, the recantation alone is not sufficient to require a new trial. See Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

V.

The district court felt that it did not have to decide whether the recantation alone mandated a new trial since it felt that the no value designation of the fingerprint together with the recantation were sufficient to require a new trial. 361 F.Supp. at 851. We disagree.

Since at least Assistant District Attorney Loguen knew of Goldstein’s designation of the print, the cases governing prosecutorial suppression of matters favorable to the defense are relevant. The fact that the assistant district attorney who actually tried the Rice case did not know of the designation is irrelevant. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The Supreme Court has held that due process requires reversals of convictions when the prosecution, after a request by the defense, fails to disclose material evidence, favorable to the defense, regardless of whether the failure is in good faith. Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In cases where no request was made but where hindsight discloses that the evidence might have been put to “not insignificant use,” we have said that the standard of materiality must be “considerably higher.” United States v. Keogh, 391 F.2d 138, 147-148 (2d Cir. 1968).

The State claims that Rice made no request that would require it to furnish the results of Goldstein’s preliminary investigation. Rice claims that a request was made for prior statements of witnesses pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961). Appellant denies that any such request was made at any of Rice’s trials during the fingerprint testimony. No such request appears on the record before us. Even if there was such a request, it is difficult to see how it would perform the “valuable office of flagging the importance” to the defense of Goldstein’s preliminary work since Goldstein did not testify. Keogh, supra, 391 F.2d at 147.

We need not decide that issue since the value of Goldstein’s designation is immaterial under the standard appropriate even if a request had been made. Cf. Moore v. Illinois, supra. In so holding, we take into account Barnes’ second recantation, as did the district court. Barnes’ testimony was corroborated by Rice’s own confession which paralleled Barnes’ testimony, except that the confession said that Felder actually stabbed Mrs. Sugar, while Barnes testified that Rice had said that he had. This discrepancy hardly damaged the prosecution’s case. As noted above, Rice’s attacks on his confession were unsuccessful. In addition, there was Roe’s identification of Rice at the scene, of the crime and the Wright sisters’ testimony which identified other participants and thus helped to verify the confession and Barnes’ story. Although many of the witnesses were subject to serious attacks on their credibility, the cumulative effect of their testimony and Rice’s confession more than adequately support the jury’s conclusion without the fingerprint evidence.

Moreover, it is difficult to see how the original designation of no value was material in contradicting Ferrara’s identification of the print on the doorframe as being Rice’s. Goldstein’s designation took place during a preliminary investigation, and Ferrara testified that Gold-stein now agreed with Ferrara that he had been mistaken. “We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.” Moore v. Illinois, supra, 408 U.S. at 795, 92 S.Ct. at 2568. It is not even claimed that the print was not Rice’s. No effort was made at the second trial of the four alone to call either Goldstein or an independent expert to testify. No claim that an outside expert had concluded that the print could not be identified as Rice’s was made in the affidavits submitted to the district court. We, therefore, conclude that introduction of the Goldstein designation would have had no weight in aiding the jury’s determination of Rice’s guilt or innocence. Cf. United States v. Tomaiolo, 378 F.2d 26 (2d Cir.), cert. denied, 389 U.S. 886, 88 S.Ct. 159, 19 L.Ed.2d 184 (1967).

Accordingly, the order must be reversed and the case remanded with directions to dismiss the petition.

Reversed.

      . The district court in its recitation of facts used testimony introduced to impeach witnesses at later trials of the four, but not in Rice’s own trial. We believe that this use of impeaching evidence was improper. Since newly discovered evidence that merely impeaches a witness (absent suppression by the prosecution) is not grounds for granting a new trial, United States ex rel. Fein v.Deegan, 410 F.2d 13, 20 (2d Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969) ; United States v. Aguillar, 387 F.2d 625 (2d Cir. 1967), it should not be used for the purpose of determining whether newly discovered substantive evidence is material. The materiality of such evidence should be determined by reference to the record in the case at issue, not by reference to the trials of other defendants.

      . There were, of course, other prosecution witnesses, but they could not identify any of the participants. Besides introducing the theory of a police plot that used coerced testimony, the defense had Rice’s grandmother testify that Rice was with her alone before and at the time of the crime, but in an earlier question-and-answer session recorded in the district attorney’s office she said that she saw Rice with five boys in the hallway between 4:30 and 5 :00.

      . We agree with the district court that no hearing was required since no fact necessary for a determination of this case is in dispute.

      . See United States v. DeSapio, 435 F.2d 272, 286 n. 14 (2d Cir. 1970), cert. denied, 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971).

      . In Keogh, we said that no request was necessary if the prosecutor suppressed evidence for the purpose of obstructing justice or failed to disclose evidence whose high value to the defense could not have escaped his attention. 391 F.2d at 146-147. There is no allegation of deliberate suppression and the Goldstein designation is not of such high value that it could not be overlooked. Indeed, it appears that the prosecution believed that the designation was favorable to it since the designation showed that the initial police investigation was impartial and not an attempt to frame Rice.

      . However, we doubt if it was proper for the district court to use the second recantation at all. As stated above, the issue of whether Barnes’ testimony was procured by police coercion was heard at the retrial. The State has a valid interest in not retrying this issue. It seems proper to determine the materiality of the no value designation solely on the record of the first trial and not consider its materiality in light of the second recantation.

      . Imbler v. Craven, 298 F.Supp. 795, 809-811 (C.D.Cal.1969), aff’d, 424 F.2d 631 (9th Cir.), cert. denied, 400 U.S. 865, 91 S.Ct. 100, 27 L.Ed.2d 104 (1970), which Rice cites, is not relevant here. There the police testified that there were no identifiable prints on a case left by the murderer when in fact there was a print left which was not Imbler’s. Here there is no alleged suppression of evidence showing that the print was someone else’s. Bather, we have only the fact that an initial disagreement between police experts on whether the print was identifiable was not revealed.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Robert Lee CARWELL, Appellant.
    No. 73-1733.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided Feb. 25, 1974.
    Larry B. Leventhal, Minneapolis, Minn., for appellant.
    Robert G. Renner, U. S. Atty., Minneapolis, Minn., for appellee.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

Defendant was convicted of violating 18 U.S.C. App. § 1202(a)(1). Defendant urges reversal on two issues: (a) the revolver admitted into evidence should have been suppressed, and (b) the Government did not sufficiently prove that the receipt of the revolver was “in commerce or affecting commerce.” We reject these arguments and affirm the judgment of conviction.

On September 29, 1972, Officer Ronald Johnson, a narcotics officer with the Minneapolis Police Department, obtained a search warrant from a state court for 619 Bast 32nd Street, Apartment 3, Minneapolis, Minnesota, and for the person of Robert Lee Carwell. The search warrant was for the following specifically described property:

Narcotic drugs and controlled substances possessed without authority of law including but not limited to heroin, cocaine, hypodermic needles and syringes and monies to show sales of above contraband and items of identification to show constructive possession of above contraband such as rent receipts, utility bills and other forms of personal identification.

Officer Johnson had also learned that a revolver might be in the possession of defendant at the same address. Officer Johnson did not attempt to apply for a search warrant to seize the handgun, since he was only concerned with a probable narcotics violation. Officer Johnson testified at the suppression hearing that he did not apply for a search warrant for the revolver because he could not specifically describe it. He did, however, contact a special agent with the Bureau of Alcohol, Tobacco and Firearms and asked him if he would like to accompany him during the search of defendant’s apartment. Occupied with other matters, the special agent did not accompany Officer Johnson.

Officer Johnson and Lieutenant Bendt went to defendant’s premises on September 29th to execute the search warrant. In the bedroom, Officer Johnson found two envelopes in a jacket pocket. One envelope contained several small aluminum foil packets of a powdery, brown substance. Lieutenant Bendt found the revolver, a .38 caliber Colt, in a dresser drawer of the same bedroom, while defendant, who was not resisting, was with Officer Johnson in the living room. Defendant told the officers that the powdery substance was part of a “bunco game,” in which defendant “browned” a sleeping agent to make it appear like heroin. Officer Johnson, who knew prior to the search that defendant had been convicted of a felony, asked defendant where he had received the weapon. Defendant said that he had taken it on “pawn” the previous day for five dollars from a blond-haired boy named Johnny. Defendant was arrested for a narcotics violation. A subsequent chemical analysis of the seized brown, powdery substance proved it to be a non-controlled substance. Officer Johnson also released the revolver to the Bureau of Alcohol, Tobacco and Firearms, and defendant was charged with the violation of 18 U.S.C. App. § 1202(a)(1) of this case.

Defendant’s timely motion to suppress the revolver was heard and denied on January 18, 1973. Defendant moved for reconsideration, and on May 10, 1973, the Honorable Miles W. Lord held an evidentiary hearing, and on May 15, 1973, denied defendant’s motion to suppress the revolver. Defendant pled guilty on May 31, 1973, subsequently withdrew his guilty plea, and was found guilty by a jury on August 21, 1973. The Honorable Gerald W. Heaney, United States Circuit Judge, Eighth Circuit, sitting by designation, who presided at the trial, sentenced defendant to two years imprisonment. Defendant timely appealed.

Defendant argues that the revolver should have been suppressed because it was not uncovered “inadvertently”, as purportedly required in this situation by the plurality in Coolidge v. New Hampshire, 403 U.S. 443, 467-473, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Defendant contends that “it can indeed be surmised that the police intended to look for and, if found, seize the revolver within the general guise of a search warrant specifying narcotics.” Defendant argues that Coolidge requires the suppression of the revolver in this case, since the discovery of the revolver was not “inadvertent” according to Coolidge’ s rationale.

The Government, however, opposes the application of Coolidge and instead cites Seymour v. United States, 369 F.2d 825, 827 (10th Cir. 1966), cert. denied, 386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239 (1967), for the principle that an officer may, in the execution of a valid search warrant, seize evidence of another crime.

We agree with the District Court that Coolidge v. New Hampshire is not applicable to the facts of this case. In Coolidge, Mr. Justice Stewart for the plurality said that Coolidge was “not a case involving contraband or stolen goods or objects dangerous in themselves.” Coolidge v. New Hampshire, 403 U.S. at 472, 91 S.Ct. at 2041 (footnote omitted). Mr. Justice White, concurring and dissenting, also said:

It is careful to note that Coolidge’s car is not contraband, stolen, or in itself dangerous. Apparently, contraband, stolen, or dangerous materials may be seized when discovered in the course of an otherwise authorized search even if the discovery is fully anticipated and a warrant could have been obtained.

Coolidge v. New Hampshire, supra at 519, 91 S.Ct. at 2064.

The search of defendant’s apartment for narcotics was properly authorized. Further, there is no indication that the search warrant for narcotics was in bad faith or a ruse to obtain entry in order to seize the revolver. The District Court specifically found that “the search was strictly for drugs and the Officers had no specific intent to search for and seize a weapon.”

We think that the seizure of the revolver and its admission was proper under the rationale of Aron v. United States, 382 F.2d 965, 973-974 (8th Cir. 1967), which held:

[T]hat where an officer is proceeding lawfully and making a valid search under a properly issued search warrant and comes upon evidence of another crime being committed in his presence, he is entitled to seize the fruits thereof and testify to the violation he saw committed in his presence.

In this case, Officer Johnson knew that defendant was a convicted felon and defendant admitted that he had purchased the revolver as a “pawn” on the previous day. Officer Johnson was entitled to seize the gun, since it was evidence of another crime (possession of a firearm by a convicted felon). Further, the rule announced in Aron has not been altered by Coolidge, which recognizes that the facts in Coolidge did not involve contraband. Coolidge v. New Hampshire, supra 403 U.S. at 472, 519, 91 S.Ct. 2022.

Second, defendant argues that the Government did not sufficiently prove that the revolver that he received was “in commerce or affecting commerce.” 18 U.S.C. App. § 1202(a)(1). Defendant urges that the facts in this case are not sufficient to establish a nexus between defendant’s receipt of the revolver with interstate commerce as required by United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

Defendant stipulated at trial that a sporting goods store in St. Louis Park, Minnesota, received the revolver in a shipment from Colt Industries, Inc., of Hartford, Connecticut, on January 9, 1967. That stipulation, in addition to defendant’s admission that he purchased the revolver, satisfied the Government’s burden of showing that defendant had received a firearm that was “in commerce or affecting commerce.” We have previously ruled on this precise issue in United States v. Mancino, 474 F.2d 1240 (8th Cir. 1973). In Mancino, we interpreted Part III of the opinion in Bass to hold that “in commerce or affecting commerce” is satisfied if the received firearm has previously traveled in interstate commerce. United States v. Mancino, supra at 1242. Defendant stipulated that the revolver had been transported from Connecticut to Minnesota, which, in addition to defendant’s admission that he purchased the revolver, discharged the Government’s burden of proof on this issue.

Judgment of conviction affirmed.

      . That section reads in part:
      Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony * * * * * * * * and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

      . Part III of United States v. Bass was endorsed by Mr. Justices Marshall (who authored the opinion), Douglas, Stewart, and White. Mr. Justice Brennan did not join in Part III, thinking that the issue of the quantum of evidence was not before the Court in Bass. Mr. Justice Blackmun, joined by Mr. Chief Justice Burger, dissented, wanting to interpret the statute as reaching possession and receipt of firearms by convicted felons that have not been in or affected commerce and to reach the constitutionality of that interpretation.


author: PUR CURIAM.

text:
    SOUTHWESTERN ILLINOIS COAL CORPORATION, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    Nos. 73-1257, 73-1548, 73-1549.
    United States Court of Appeals, Seventh Circuit.
    Heard Jan. 14, 1974.
    Decided Feb. 8, 1974.

      Scott P. Crampton, Asst. Atty. Gen., Donald H. Olson, Atty., Tax Div., Dept. of Justice, Washington, D. C., Stanley B. Miller, U. S. Atty., Richard Darst, Asst. U. S. Atty., Indianapolis, Ind., for defendant-appellant.
    Charles F. Cremer, Jr., William M. Evans, Indianapolis, Ind., for plaintiffappellee.
    Before KILEY, Senior Circuit Judge, and CUMMINGS and SPRECHER, Circuit Judges.
   PUR CURIAM.

The question presented by this appeal is whether the electrical expense deductions taken by taxpayer in 1965, 1966 and 1967 for subsequently determined excessive billings were proper. If they were, under the tax benefit rule, the subsequent refund thereof in 1967 produced taxable income in that year.

During the relevant period, taxpayer was engaged in the business of strip-mining coal in southwestern Illinois. In late 1964, it put into service a large, specially built, electrically powered shovel. The Illinois Power Company installed special power lines and a metering device to provide readings of the electrical power supplied to the shovel. The power company used those readings to prepare the electric bills it submitted to taxpayer.

Since the monthly electric bills received by taxpayer for the power consumed by the new shovel were double the expected amount, taxpayer questioned the bills but paid them on the understanding that it would receive an adjustment if an error were discovered. In July 1966, new metering devices were installed which showed that the taxpayer had been previously billed for twice the electrical power that it used. Consequently, in taxpayer’s fiscal year 1967, the power company refunded $498,328.-66, plus interest, to taxpayer for the excessive billings collected in taxpayer’s fiscal years 1965, 1966 and 1967.

Taxpayer, which was on an accrual basis, reported the full amounts paid by it for electrical power as a deductible expense in its fiscal years 1965-1967. In the last of those fiscal years, it reported the refund as taxable income. After its claim for refund was denied, taxpayer filed this suit contending that the 1967 refund of the over-billings was not taxable income, so that it was entitled to a tax refund of $134,822.89 for that year. The theory of its suit was that because the excessive electrical expense deductions taken by it were erroneous, the tax benefit rule (see infra) did not apply and the refund of the excess payments therefore did not constitute taxable income.

The Government denied that taxpayer’s deductions for the over-billings were improper and accordingly contended that the refund from the power company was taxable income in fiscal 1967. The district court held that the deductions for the utility charges were improperly taken by taxpayer “as all events had not occurred in the years of the deductions that fixed the amount and the fact of plaintiff’s liability for - the utility charges.” The court also held that Section 461(f) of the Internal Revenue Code of 1954 was not applicable because the over-billings were improperly deducted by taxpayer. After allowing the set-off claimed by the Government, judgment was entered for taxpayer in the amount of $43,995 with interest. We reverse.

The resolution of this case depends on the applicability of the “tax benefit rule.” Under that rule, the recovery of property which was once the subject of a proper income tax deduction must be treated as income in the year of its recovery. Since we conclude that taxpayer’s over-billings were properly deducted, the tax benefit rule required it to include as income the amount which the power company refunded in 1967.

Section 461(a) of the Internal Revenue Code states that a taxpayer should deduct items in the “proper taxable year under the method of accounting used in computing taxable income.” Section 1. 461-l(a)(2) of the Regulations controls the timing of deductions of those employing the accrual method such as used by taxpayer. Under that regulation an expense is deductible for “the taxable year in which all the events have occurred which determine the fact of the liability and the amount thereof can be determined with reasonable accuracy” (26 C.F.R. § 1.461-1 (a) (2)). According to the example given in the same regulation, a contested liability is not a proper deduction under Section 461(a). This is consistent with the Supreme Court’s 1961 holding that an accrual basis taxpayer could not deduct the payment of contested real estate taxes in the year paid. United States v. Consolidated Edison Company, 366 U.S. 380, 81 S.Ct. 1326, 6 L.Ed.2d 356.

Three years later, because of Congressional dissatisfaction with the rule of the Consolidated Edison case, Congress enacted Section 461(f) of the Code. See note 1, supra. Under that Section, a contested liability is currently deductible if the contest persists after payment by the taxpayer and if the liability would otherwise be allowed. As the Senate Report accompanying Section 461(f) shows, where deductions have been overstated and, as here, the liability is refunded after contest, the overstatements are to be included in income in the year of refund. The pertinent regulation is to the same effect.

This taxpayer paid the overstated electrical bills as they were received. From the start, it questioned the accuracy of the billings, and, prior to the enactment of Section 461(f), the deductions of the contested amounts would have been improperly taken. Taxpayer asserts that there was no contest because the power company agreed to investigate the possibility that the meter was inaccurate and to refund any overcharge which had occurred. It is not required that both sides behave unreasonably to create a contest. It is sufficient that, as here, the taxpayer paid the bills as presented while simultaneously contending that they were excessive and that further investigation was necessary to determine the correct amounts. This comports with the legislative history. See note 3, supra.

It is clear that but for the contest, (§ 461(f)(4)), these electrical bills would have been deductible, for in that event the case would have involved undisputed bills for power supplied before the billings and paid in full. Since the enactment of Section 461(f), the contest over the billings is no longer a barrier to deductibility of these payments. Therefore, under the tax benefit rule, the 1967 refund of the erroneous billings was taxable income in that fiscal year.

Judgment reversed.

      . Section 461(f) provides in pertinent part:

        “Contested Liabilities.—-If—.
      (1) the taxpayer contests an asserted liability,
      (2) the taxpayer transfers money or other property to provide for the satisfaction of the asserted liability,
      (3) the contest with respect to the asserted liability exists after the time of the transfer, and,
      (4) but for the fact that the asserted liability is contested, a deduction would be allowed for the taxable year of the transfer (or for an earlier taxable year), then the deduction shall be allowed for the taxable year of the transfer. * *

      . See 1 Mertens, Law of Federal Income Taxation (Zimet Rev.) § 7.34; Plumb, The Tax Benefit Rule Today, 57 Harv.L.Rev. 120 (1943). We applied this rule in Bear Manufacturing Company v. United States, 430 F.2d 152 (7th Cir. 1970).

      . S.Rep.No.830, 88th Cong., 2d Sess., p. 100 (1964 U.S.Code Cong. & Admin.News, pp. 1773-1774).

      . Section 1.461-2 (a) (3) provides :

        “Refunds ineludible in gross income. If any portion of the contested amount which is deducted under subparagraph (1) of this paragraph for the taxable year of transfer is refunded when the contest is settled, such portion is includible in gross income except as provided in § 1.111-1, relating to recovery of certain items previously deducted or credited. Such refunded amount is includible in gross income for the taxable year of receipt, or for an earlier taxable year if properly aecruable for such earlier year.” (26 C.F.R. § 1.461-2 (a) (3)) § 1.111-1 states the tax benefit rule.