author: SETH, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Tommy L. BUTLER et al., Appellants.
    Nos. 73-1359, 73-1360, 73-1362 and 73-1363.
    United States Court of Appeals, Tenth Circuit.
    Submitted Jan. 7, 1974.
    Decided April 4, 1974.
    Rehearing Denied May 31, 1974.

      Arthur S. Bay, of Bay, Hamilton, Re-negar & Lees, Oklahoma City, Okl., for appellant, Tommy L. Butler.
    Gene Stipe, of Stipe, Gossett, Stipe & Harper, Oklahoma City, Okl., for appellant, Phillip Leonard Gregg.

      Paul A. Mancino, Jr., Cleveland, Ohio, for appellant, Wayne Herbert Reinke.
    Mac Oyler, Oklahoma City, Okl., for appellant, Ronald James Slomkowski.
    John E. Green and Susie Pritchett, Asst. U. S. Attys. (William R. Burkett, U. S. Atty., with them on the brief), for appellee.
    Before SETH and HOLLOWAY, Circuit Judges, and BRATTON, District Judge.
   SETH, Circuit Judge.

The indictment originally charged twenty-three defendants in one count of conspiracy to convert Government property in violation of 18 U.S.C. § 641 and to commit depredation against Government property in violation of 18 U.S.C. § 1361, and charged various combinations of these defendants in forty additional counts alleging substantive violations of these statutes. The individual motions to sever were denied, and the consolidated trial took slightly more than one week. We have before us the appeals of four defendants.

All twenty-three persons originally indicted were military and civilian employees of the United States Air Force working at Tinker Air Force Base, Oklahoma. The military defendants were members of either the 3d Mobile Communications Group or the 1984th Telecommunications Squadron, while the defendant Gregg, a civilian, was employed in the Redistribution and Marketing (R & M) facility at Tinker. R & M is basically a storage facility and clearinghouse for obsolete or unserviceable Air Force equipment. By following appropriate procedures Air Force personnel can withdraw items of equipment from R & M for use by their units. Such equipment is often “cannibalized” to provide needed repair parts or components which are not available through normal supply channels. Equipment which cannot be reintroduced to Government use is eventually sold for salvage value to private buyers. Although R & M houses various classes of equipment, this case primarily involves radio and electronic related items.

During the period between August 1971 and January 1972, the defendants allegedly conspired to and did obtain numerous items of equipment from R & M to be converted to their own use or destroyed. Sergeant Greene; who entered a guilty plea, and Sergeant Johnson appear to have been the key figures in the operation and the persons responsible for obtaining most of the equipment. The appellant Gregg, in his capacity as a clerk at R & M, allegedly assisted the two sergeants in procuring the equipment and concealing its disposition. The remaining appellants were recipients of equipment thus obtained. In addition, the appellant Slomkowski, in concert with certain other members of the 1984th Squadron allegedly conspired to and did destroy some component parts to a teletype test unit which had originally been obtained from R & M.

Although these appeals were consolidated for purposes of argument, the number and variety of issues asserted in each necessitates their separate, individual consideration.

No. 7S-1S59 — Tommy L. Butler:

Appellant Butler was convicted under the general conspiracy count and under count 22 for having received a stolen radio in violation of 18 U.S.C. § 641. The record discloses that he was assigned to the 3d Mobile, and was a member of the same section as Sergeant Greene during a portion of the period during which the alleged conspiracy existed. Some time 'during November 1971 Sergeant Greene acquired a number of Jeep radios from R & M. After deciding that he personally could not use them, he apparently brought a number of them to the shop where he and Airman Butler worked and left them there with the understanding that anyone who wanted one could have one. Butler was apparently fairly new in the unit. Sergeant Greene, according to the record, may have indicated at the time that they were salvage and not accountable to the Air Force. Airman Butler carried one of the radios to his quarters on base, where he uncrated it, examined it briefly, recrated it, and placed it in his locker. Shortly thereafter Airman Butler was reassigned to the Philippines. Upon his departure he left the radio behind in his military locker. His roommate testified that he left no instructions as to its disposition.

Only twenty-four of the more than 1,200 pages of testimony given at trial pertain directly to Airman Butler. His involvement in the events leading to this prosecution was apparently confined to the incident described above. Nowhere in the record can we find testimony implicating him in a conspiracy. This court has often noted that the essence of the crime of conspiracy is an agreement to violate the law. Carter v. United States, 333 F.2d 354 (10th Cir.). While the agreement need not take any particular form, there must at some point be a meeting of the minds in the common design, purpose, or objects of the conspiracy. One cannot become a conspirator until he has entered such an agreement, and, of course, such entry can be after the conspiracy is formed, but we find no evidence that Airman Butler ever became a conspirator. Appearing as a Government witness, Sergeant Greene testified that Airman Butler, as well as other members of their section, was aware of the arrangement between himself and Sergeant Johnson for procuring equipment from R & M. Assuming this conclusion to be correct, mere knowledge or approval of or acquiescence in the object and purpose of a conspiracy without an agreement to cooperate in achieving such object or purpose does not make one a party to a conspiracy. Jones v. United States, 365 F. 2d 87 (10th Cir.). There is no suggestion that Airman Butler was ever aware of any specific plan to obtain the radios from R & M, much less that he cooperated in such a plan. Rather, the clear inference is that Sergeant Greene appeared with the radios, and left them at the shop for whomever might want one as unaccountable salvage. It was not until that point that Airman Butler decided to take one to his quarters. Such an action alone simply cannot be interpreted as a decision to join a conspiracy. See United States v. Varelli, 407 F.2d 735 (7th Cir.).

We find the evidence equally insufficient to support conviction of the substantive offense of receiving stolen Government property in violation of 18 U.S.C. § 641. After taking the radio to his military quarters and examining it, Airman Butler placed it in his locker and apparently never again disturbed it. When he departed Tinker a few weeks later, it was left behind in the locker with no instructions as to its disposition. Nowhere does it appear that he attempted to remove it from the base or otherwise dispose of it to. his advantage. In the plain language of the statute, knowledge that the property is stolen and intent to convert it to one’s own use or gain are essential elements of the offense. Making the questionable assumption that Airman Butler knew that the radio had been stolen, his conduct, when viewed in the light of the other circumstances of this case, fails to carry sufficient suggestion of an intent to convert it to his own use or gain. It might even be argued, at least in a figurative sense, that the radio never left Government control.

We have evaluated the evidence, as we must, in the light most favorable to the Government and allowed it the benefit of every reasonable inference. Even so, we find the case against Airman Butler inadequate to support either conviction. We therefore reverse his conviction with instructions that the charges against him be dismissed.

No. 7S-1S60 — Phillip L. Gregg:

Although originally charged in sixteen counts of the indictment, appellant Gregg was acquitted of all but the conspiracy charge. Our review of the record fails to uncover adequate support for that conviction as well.

During the period of the alleged conspiracy, Mr. Gregg was employed as a civilian clerk at the R & M facility. He was assigned as a utilization specialist, responsible for a particular series of federal stock numbers consisting primarily of electronic communications equipment. His principal function was to process requests from various Government agencies for equipment within that series which might be in storage at R & M. While many of these requests were either by letter or the appropriate Department of Defense form, it was not unusual for Air Force personnel from the various units at Tinker to “shop” at R & M for items which their units might need or be able to use. When such an item was located Mr. Gregg, or other clerks holding similar positions, would assist the “customer” in completing the official requisition form, and then direct him to the appropriate agency to have the form approved. In most cases this would be the Depot Supply Officer, who would retain copies of the approved form for accounting purposes. The customer would then return to R & M with the approved requisition and would be issued the item. Mr. Gregg would also retain various copies of the approved requisition for R & M records and subsequent distribution. In some cases such distribution may have included the supply officer of the unit drawing the equipment. However, due to the volume of transactions at R & M, distribution of the retained copies did not always follow a consistent pattern, and reliance was placed on the Depot Supply Office to maintain accountability for the equipment after it left R & M. It appears there was also a requirement that “shoppers” from the units at Tinker have a letter of authorization from their unit on file at R & M. Again, because of the heavy volume of business, this requirement was not vigorously enforced with respect to uniformed personnel.

Although many of the transactions which Sergeants Greene and Johnson had with R & M involved Mr. Gregg, it is clear that he was not the only clerk who provided them assistance. Much of the Government’s case hinged on suggested irregularities in the handling of the documentation connected with the two sergeants’ transactions, particularly in Mr. Gregg’s failures on certain occasions to forward copies of the executed requisition forms to their unit supply officer. Mr. Gregg’s supervisor testified, however, that such failures were neither irregular nor inconsistent with R & M policy at that time. The same would have been true with respect to any failure to check Sergeant Greene’s authorization. Mr. Gregg was simply a clerk. His duties were to assist R & M customers in locating equipment which they might need and in completing the necessary paperwork. He had neither responsibility nor authority to approve requests, authorize withdrawals, or check the disposition of equipment once it left the R & M area.

The United States also stresses certain oral statements which Mr. Gregg made to the FBI agent investigating the case to the effect that Mr. Gregg suspected that some of the equipment withdrawn by the two sergeants could not be used by- their unit, and that he knew some of it was being traded to other units. Making the dubious assumption that such statements might infer knowledge of a conspiracy, they certainly fall short of demonstrating cooperation in its objectives. As previously noted, mere knowledge or approval of or acquiescence in the objects of a conspiracy are insufficient to make one a conspirator. Jones v. United States, supra. While it may have been advisable for Mr. Gregg to report his suspicions, there was no showing that he had an official responsibility to do so.

Two additional factors further disrupt this already inconclusive web of circumstantial evidence. Sergeant Greene, who was presumably the core figure in the conspiracy, testified as a prosecution witness. Yet nowhere in his more than 150 pages of testimony did he identify Mr. Gregg as a co-conspirator, or mention any manifestation of Mr. Gregg’s agreement to cooperate in an illegal enterprise. To the contrary, we find only evidence that Mr. Gregg provided ordinary service and assistance, nothing beyond that expected of him in his normal course of employment. Secondly, we find no evidence indicating motive for Mr. Gregg’s cooperation. Nowhere does it appear that he received any of the property withdrawn from R & M or any other form of compensation or benefit for his assistance. On the one occasion when Sergeant Greene asked whether he might be interested in a particular camera, Mr. Gregg rejected the offer. Were he in fact involved in any conspiracy, his services were evidently gratuitous.

As we observed with respect to Airman Butler, some manifestation of agreement to cooperate in the methods or ends of a conspiracy is essential for one to become a conspirator. Mere knowledge, even of the conspiracy itself, is insufficient. We find no evidence of Mr. Gregg’s agreement to cooperate or of his actual cooperation; insinuation is certainly not enough. Accordingly we reverse appellant Gregg’s conviction with instructions that the charge against him be dismissed.

No. 73-1363 — Ronald J. Slomkowski:

Appellant Slomkowski was originally named in the conspiracy count, in count 33 charging receipt of stolen Government property in violation of 18 U.S.C. § 641, and in count 41 charging depredation against Government property in violation of 18 U.S.C. § 1361. He was convicted of conspiracy and receipt of stolen Government property, but was acquitted of the depredation charge.

Sergeant Slomkowski is a career Air Force noncommissioned officer who had over eighteen years’ service at the time of trial. In early August 1971, he was transferred to Tinker Air Force Base and assigned as the noncommissioned officer in charge of the Teletype Maintenance Shop of the 1984th Communications Squadron. Shortly after assuming his duties Sergeant Slomkowski noted that the shop lacked certain essential equipment needed in the performance of its mission. His inquiries revealed that some of this equipment would not be available through normal supply channels for over one year. It was then that he learned of the practice of obtaining salvageable equipment and repair parts from R & M, and decided to investigate this as a possible method of meeting the needs of his shop. He obtained the names of several individuals reputedly familiar with the R & M operation, and he eventually met Sergeant Greene at R & M. At their first meeting Sergeant Greene directed Sergeant Slomkowski to certain areas of the R & M facility where he might find the type of equipment which he needed. At a later time Sergeant Greene visited the Teletype Maintenance Shop which had recently been relocated in a larger building. Sergeant Slomkowski explained his equipment needs in greater detail, and Sergeant Greene mentioned that he might have access to equipment of this type at R & M. In any event Sergeant Greene thereafter made several deliveries to the shop. The items which he brought included an industrial vacuum cleaner, an IBM typewriter, several Jeep radios, a wave form monitor, and an electronic test unit housed in a large metal cabinet.

In addition to attacking the sufficiency of the evidence, Sergeant Slomkowski alleges a number of procedural defects in the proceedings below. Should we be required to consider them, several of these procedural defects would themselves necessitate reversal. It is our conclusion, however, that there is indeed insufficient evidence to sustain either conviction, and it is on that basis that we decide this appeal.

The conspiracy count, which named all twenty-three defendants, alleged as dual purposes of the conspiracy the violations of both 18 U.S.C. §§ 641 and 1361. We of course have considered the evidence in the light most favorable to the United States. Even so we cannot find convincing evidence that Sergeant Slomkowski conspired toward either purpose. It is always difficult to evaluate evidence in a conspiracy case, and because of the secretive nature of the crime, the evidence is almost invariably circumstantial. As the Supreme Court has warned, however, caution must be taken that the conviction not be obtained “by piling inference upon inference.” Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674. That admonition, we think, has special relevance in cases such as this, where many defendants, some of whom were not even acquainted, are charged on the basis of varying degrees of participation at various times. Guilt must be determined individually and not merely by association. Our review of the evidence must therefore be especially meticulous. The evidence, when viewed in its entirety, must generate more than a mere suspicion of guilt, and where such evidence is equally consistent with both guilt and innocence the conviction cannot be sustained. Lewis v. United States, 420 F.2d 1089 (10th Cir.); Doty v. United States, 416 F.2d 887 (10th Cir.), vacated on other grounds as to defendant Epps sub nom. Epps v. United States, 401 U.S. 1006, 91 S.Ct. 1247, 28 L.Ed.2d 542; Brumbelow v. United States, 323 F.2d 703 (10th Cir.).

The United States sought to implicate Sergeant Slomkowski in the portion of the conspiracy directed toward converting Government property largely on the inferences to be drawn from two factors: (1) that several items which Sergeant Greene had obtained from R & M were delivered to the maintenance shop with Sergeant Slom-kowski’s knowledge and consent; and (2) that some of these items were later discovered in a search of Sergeant Slom-kowski’s quarters on the base. In addition there was also reference to a transaction involving some drafting chairs which had been obtained from R & M by one of the members of the 1984th. A number of these chairs were later found in the quarters of various individuals, including Sergeant Slomkowski, where they had evidently been repaired and restored for use as bar stools. Aside from the fact that the four stools found in Sergeant Slomkowski’s quarters had never been taken from the base or otherwise treated in a manner inconsistent with an intent eventually to return them, we find the evidence relating to the acquisition of the chairs, their condition, and their accountability to the Air Force so inconclusive as to render impossible any finding of an intended or actual conversion of Government property. Returning then to the two principal factors, we are unable to discern in the circumstances surrounding the deliveries of the equipment to Sergeant Slomkow-ski’s shop, any indication of the knowledge, intent, or agreement necessary to make him a coconspirator. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. Nowhere is there evidence of any discussion or understanding with Sergeant Greene or anyone else pertaining to illegal acquisition of property for personal use or gain. In his testimony Sergeant Greene did not identify Sergeant Slomkowski or any other member of the 1984th as having knowledge of his arrangement with Sergeant Johnson to obtain property for one another’s personal benefit. Nor did he testify to any knowledge on Sergeant Slomkowski’s part that the property was being illegally obtained or converted, nor any agreement with him to obtain or convert equipment illegally. In short, there is nothing inconsistent with Sergeant Slomkowski’s own testimony that he was merely pursuing an alternative method suggested by his superiors of acquiring property needed by his shop. We shall • discuss the circumstances surrounding the discovery of the typewriter, the wave form monitor, and four drafting chairs in Sergeant Slomkows-ki’s quarters in greater detail below. Suffice it to say at this point that those circumstances likewise fail to demonstrate cooperation in any conspiracy to convert Government property.

The second illegal objective of the alleged conspiracy was a depredation against Government property in violation of 18 U.S.C. § 1361. This portion of the charge pertains to the disposition made of certain component modules contained in an electronic test unit which Sergeant Greene delivered to the Teletype Maintenance Shop. There is considerable confusion in the record as to the actual condition of these modules when the test unit was obtained from R & M. A number of the prosecution’s witnesses testified to their apparent good condition. Such testimony, however, was based on casual, visual inspections by witnesses who were not particularly familar with the equipment. It is undisputed that the unit had been classified as electronic scrap by R & M. The requisition document described the unit simply as 200 pounds of class 5800 (scrap) having a unit value of $1.00 per pound. There was also testimony from both the commanding officer and the maintenance superintendent of the 1984th that it was the common and recognized practice with equipment thus classified, so-called “red tag” equipment, to remove any salvageable parts or components and dispose of the remnants without accountability to the Air Force. Such equipment was available for cannibalization or use in any manner which the unit saw fit. In any event there was testimony indicating that Sergeant Slomkowski had directed various individuals in his shop to remove several of the component modules from the test unit cabinet, destroy them, and place the pieces in plastic bags for distribution among various trash receptacles on base. Recognizing that such a manner of disposition appears somewhat suspicious, we nevertheless conclude, in view of the uncertainty as to the status, condition, and accountability of the unit itself, that there was not sufficient demonstration of illegal conduct. It is often observed that in order to be guilty of conspiracy, one must have at least the degree of criminal intent necessary for the commission of the substantive offense. Ingram v. United States, 360 U.S. 672, 79 S.Ct. 1314, 3 L.Ed.2d 1503. We cannot say under the circumstances of this case that the United States has by substantial evidence shown either that the test unit could have been the object of criminal depredation, or that Sergeant Slom-kowski had either the knowledge that destruction of the components might be a criminal act or the intent to commit such an act. We feel the need to note one further defect in the pleading and proof of this aspect of the case. Section 1361 specifies that the damage to the property measures the degree of the offense, not the value of the property as was alleged in the indictment. In order to constitute a felony the damage must exceed $100.00. The requisition document indicated that R & M had estimated the value of the unit as scrap at $1.00 per pound for a total value of about $200.00. We find no evidence that would allow the jury to infer what the amount of damage caused by the destruction of some of the components might have been, or that such damage would have exceeded $100.00.

The conviction of the substantive offense of receiving stolen Government property was based upon the discovery, during a search of Sergeant Slomkowski’s quarters on the base, of an IBM electric typewriter, a wave form monitor, and four drafting chairs, all of which had originally been obtained from R & M. As we mentioned previously, conviction for receiving stolen Government property in violation of 18 U.S.C. § 641 requires proof that the defendant had knowledge that the property was stolen and that he intended to convert it to his own use or gain. We cannot find substantial evidence of either of these elements with respect to Sergeant Slomkowski. If indeed the property was stolen, there is no indication that Sergeant Slomkowski knew it. The testimony is entirely consistent with his belief that the property had been legitimately obtained for use by his unit. The IBM typewriter, when delivered by Sergeant Greene, was equipped with capital letters only. In order to make it serviceable for use at the shop, Sergeant Slomkowski testified that he took the typewriter to his quarters to convert the typeface during his off-duty hours. The typewriter, when discovered, was partially dismantled on a work table. Alongside it was a tool kit containing some assorted typewriter parts. Such evidence, we believe, corroborates Sergeant Slomkowski’s testimony. It certainly fails to provide a clear suggestion of an intent to convert the typewriter to his own use or gain. Similarly Sergeant Slomkowski testified that he had borrowed the wave form monitor to align his son’s stereo. When discovered, the monitor was indeed connected to some stereo components. While perhaps a conversion in a literal sense, we do not believe such a temporary use in these circumstances manifests the underlying criminal intent necessary to commit an offense under section 641. See Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. There is no evidence tending to show that Sergeant Slomkowski had any other purpose in mind with respect to the monitor. Finally, we have already noted the uncertainty surrounding the drafting chairs. We find no evidence that Sergeant Slomkowski believed other than that the chairs were surplus unaccountable property, or that he took them other than as an alternative to their being discarded as refuse. To this we would also add that it was not uncommon for military personnel to borrow furnishings from the Air Force for use in their quarters, such furnishings to be returned upon their departure from the base.

We are unable to conclude that the mere location of these various items in Sergeant Siomkowski’s military quarters, when considered in light of Sergeant Slomkowski’s duty assignment and the circumstances under which they were discovered, can' support a conviction for receiving stolen Government property in violation of section 641.

We again emphasize that, while we must review the evidence in the light most favorable to the prosecution, when the evidence so viewed fails to generate more than mere suspicion or insinuation of guilt, the conviction cannot be sustained. The standard of proof required in criminal cases is a cornerstone of constitutional due process. In a case such as this one, involving numerous defendants, multiple transactions, and varying degrees of participation, the task of sifting the evidence relating to each defendant becomes particularly difficult, and a special danger exists that the degree of proof required for conviction might be relaxed. We shall be particularly vigilant in such cases to see that such a relaxation does not occur and that conviction is not predicated upon suspicion. See Doty v. United States, supra. Accordingly, convictions under both counts are reversed with instructions that all charges against Sergeant Slomkowski be dismissed.

No. 73-1362 — Wayne Reinke:

Appellant Reinke was named in the conspiracy count and in Count 31 charging receipt and conversion of stolen Government property in violation of 18 U.S.C. § 641. He was convicted of both charges. In his brief Mr. Reinke alleges twenty-five grounds for reversal. Among these is the assertion that there is insufficient evidence to support the convictions. Unlike the other three appeals, however, we are not prepared to find the evidence against Mr. Reinke is inadequate. Nevertheless, we reverse his convictions on the basis of a fundamental procedural error which has tainted the proceedings against him.

As we have noted, all twenty-three original defendants were named in count 1 of the indictment charging a conspiracy to commit offenses under 18 U.S.C. §§ 641 and 1361. It has been the United States’ position both at trial and on this appeal that the numerous transactions involved in this case can be incorporated into one conspiracy to which all twenty-three defendants were parties. The evidence does not support that position. If indeed the various transactions can be correlated at all, it is in no fewer than three distinct possible conspiracies.

By his own testimony Sergeant Greene indicated that he and Sergeant Johnson had an understanding between themselves relating to the acquisition of property from R & M for one another’s personal use. According to Sergeant Greene, most of the members of his section of the 3d Mobile were aware of this understanding. Whether they were parties to it is questionable. In any event Sergeants Greene and Johnson were responsible for obtaining the majority of the items from R & M which figure in this action. They evidently kept many of these items for themselves. Others, which they could not use, were taken either to the 3d Mobile or the Teletype Maintenance Shop of the 1984th, where some of them eventually came into the possession of various other defendants. Some of these defendants participated in only one such transaction. With the exception of Sergeants Greene and Johnson, none of the 3d Mobile defendants apparently had any significant contact with defendants from the 1984th. Nevertheless, in view of the understanding between Sergeants Greene and Johnson, we will consider the transactions in which they participated as arguably related in one possible conspiracy.

The second possible conspiracy focuses on the destruction of the component modules in the test unit which had been delivered to the 1984th. We have already commented on the considerable uncertainty as to the status, condition, and accountability of the unit. Those issues aside, however, were the unit a possible target of criminal depredation and had Sergeant Slomkowski and the other members of the 1984th conspired toward such an objective, we would still find it impossible to merge such a conspiracy with the supposed conspiracy involving Sergeants Greene and Johnson. The decision to dispose of the modules was evidently not made until after the unit had been in the 1984th shop for some time. It is unlikely that most of the 3d Mobile defendants knew of the existence of the unit. It is inconceivable that they planned or anticipated its destruction. The mere fact that Sergeant Greene had obtained the unit from R & M and delivered it to the 1984th is simply too tenuous a thread to link its eventual destruction with the other transactions under consideration.

Finally, there are the events pertaining to the drafting chairs. We have noted the uncertainty enshrouding this incident. At most, however, it appears that the chairs were obtained from R & M by Sergeant Lopez, a member of the 1984th, and distributed through him to various other members of that unit. Other than their common source no link was established between the acquisition of the chairs and the acquisition of the other items with which we are concerned. Indeed, it appears that not even Sergeant Greene knew of this transaction.

We are thus confronted with a situation in which one general conspiracy has been alleged, while the evidence can support the existence of no fewer than three. Although some of the parties may have been involved in more than one of these combinations, no one such combination embraced the objectives of the others. Such a variance between the indictment and the evidence poses problems on at least two levels. Initially, of course, it requires a determination whether more than harmless error has resulted. We must conclude that it has. The factors which necessitate this conclusion were exhaustively discussed by the Supreme Court in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557. We need not elaborate on them here. We add only that the rationale of that case is made more forceful here by the presence of distinctly different purposes in at least two of the possible conspiracies. In Kotteakos the various conspiracies, although involving different defendants, followed similar patterns and had as their objectives the violation of the same statute. Here, however, two of the supposed conspiracies were directed at obtaining and converting Government property, while the third was aimed at destroying Government property. Thus the burden on a defendant whose participation was limited to one of the conversion conspiracies, and yet who must defend himself against charges of conspiring also to commit depredation, becomes even more oppressive.

Having concluded that the variance is material, an appropriate remedy must now be considered. Two alternatives exist. The first would be the use of an instruction alerting the jurors to the possibility of multiple conspiracies and admonishing them to separate and distinguish such conspiracies and the defendants involved therein. Such an instruction was held appropriate by the Seventh Circuit in the case of United States v. Varelli, 407 F.2d 735 (7th Cir.), in a situation where joinder of defendants and offenses was otherwise proper. The second alternative is the severance of the various conspiracies and the defendants allegedly involved therein for separate trial. This was the procedure held necessary in the Kotteakos case. The point at which an instruction no longer provides adequate protection and a severance must be granted is incapable of precise location. It must be determined in light of the facts of the particular case and with reference to the established rules otherwise governing joinder and severance.

Rule 8(a) of the Federal Rules of Criminal Procedure provides that two or more offenses may be charged in the same indictment “if the offenses charged . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 14, on the other hand, provides generally that severance or other appropriate relief may be granted if it appears that a defendant or the Government is prejudiced by joinder of either defendants or offenses. Ordinarily, severance is a form of relief resting within the sound discretion of the trial court, and unless abused that discretion will not be questioned on appeal. See, for example, Baker v. United States, 329 F.2d 786 (10th Cir.), cert, denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56. However, when joinder of either defendants or offenses causes the actual or threatened deprivation of a fair trial, severance is no longer discretionary. As the Supreme Court observed in Kotteakos:

“ . . . Guilt with us remains individual and personal, even as respects conspiracies. It is not a matter of mass application. There are times when of necessity, because of the nature and scope of the particular federation, large numbers of persons taking part must be tried together or perhaps not at all, at any rate as respects some. When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass. Wholly different is it with those who join together with only a few, though many others may be doing the same and though some of them may line up with more than one group.
“Criminal they may be, but it is not the criminality of mass conspiracy. They do not invite mass trial by their conduct. Nor does our system tolerate it. That way lies the drift toward totalitarian institutions. True, this may be inconvenient for prosecution. But our Government is not one of mere convenience or efficiency. It too has a stake, with every citizen, in his being afforded our historic individual protections, including those surrounding criminal trials. About them we dare not become careless or complacent when that fashion has become rampant over the earth.”

We conclude, as did the Supreme Court, that here “toleration went too far.” The United States has attempted to merge what, if anything, should be at least three separate, distinct conspiracies into one. Twenty-three defendants were named in the indictment. Different combinations of these defendants were involved in nearly every transaction which figured in the trial. Many of the defendants did not know one another prior to trial. Some of the members of the 3d Mobile may have assisted Sergeant Greene in obtaining and converting Government property from R & M. It is impossible, however, upon the evidence presented at trial, to link any of them with the destruction of an electronic test unit by members of another organization located elsewhere on the base. Sergeant Greene, himself, testified that he had not known of the destruction of the unit. There is no evidence that appellant Reinke ever knew the unit existed. Yet because Mr. Reinke may have shared mutual acquaintances with those who collaborated in the destruction of the unit, he was forced to acquit himself of their actions. One can only guess whether he was also forced to share their guilt. We can envision circumstances where what has been alleged as one conspiracy is disclosed at trial to be several repetitive conspiracies in which there is substantial identity of parties and method. The possible conspiracy concentrating on Sergeants Greene and Johnson may prove to be an example. In such circumstances a curative instruction may well bridge the gap between pleading and proof. Such is not the case here. Mr. Reinke, whose participation was limited to his association with Sergeant Greene and the other members of the 3d Mobile, should have been tried only on the charges arising from that association. The possibility that the issue of his guilt was confused with the guilt of other defendants involved in unrelated transactions at different times and in different places is too great. His convictions must therefore be reversed, and the case is remanded for a new trial.

Because of the possibility that appellant Reinke will again be tried on some of these charges, we shall also comment on some matters pertaining to the use as evidence of certain statements which he made to Government investigators and certain items which were discovered in his home during the investigation. The Government contends that the statements and the items were obtained with Mr. Reinke’s voluntary consent after having been advised of his rights. The Government agent involved testified during the trial that such was the case. If accepted, that testimony would appear to furnish a satisfactory basis for findings of voluntariness and knowing waiver. We defer ruling on the matter, however, and leave resolution of these factual issues to any future proceedings. In addition, it appears that the advice of rights form which Mr. Reinke signed on March 30, 1971, may be defective under the decision in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir.), although we have some question whether Mr. Reinke was in custody at that time. See also our decision in Sul-lins v. United States, 389 F.2d 985 (10th Cir.). The United States, however, has apparently decided against the use as evidence of the statement made by Mr. Reinke on that occasion. As Mr. Reinke’s other statements were made following appropriate Miranda warnings, the defective warning would not appear to present a problem.

We have studied the other issues raised by Mr. Reinke, but conclude that we need not comment on them in view of bur disposition of the case.

The judgment as to Mr. Reinke is reversed and remanded for further proceedings consistent herewith.


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ellsworth E. LONABAUGH, III, Defendant-Appellant.
    No. 73-2241.
    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.

      James S. Hale, Harlingen, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before TUTTLE, DYER and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellant Lonabaugh was convicted in an non-jury trial in the District Court for the Southern District of Texas, Brownsville Division, of conspiracy to possess marihuana with intent to distribute and possession of marihuana with intent to distribute. The only question presented for review is whether the district court erred in overruling Lonabaugh’s motion to suppress 35 pounds of marihuana seized by Customs agents at the time of his arrest, and marihuana sweepings subsequently taken from his automobile. We agree with appellant that the district court erred in overruling his motion.

On December 7, 1972, U. S. Customs agents received a tip from a reliable informant that Lonabaugh would later that day drive a red and black Ford bearing Texas license plates number RFV-121 to the Brownsville, Texas, airport, and would send a female accomplice to Houston on an airplane with two blue suitcases containing marihuana. The agents rushed out to the airport, and saw Lonabaugh and a female companion drive up in the car described by the informant. The agents watched them get out of the car and carry two blue suitcases into the airport. Inside the airport, Lonabaugh purchased one ticket for Houston, checked the two suitcases with the airline, placed the claim checks with the ticket and handed the ticket to his companion. The pair then stopped in the airport coffee shop for something to drink. While they were in the coffee shop, the agents went back to the baggage area and separated the two suitcases from the rest of the baggage being loaded on the flight to Houston. After leaving the coffee shop, Lona-baugh and the girl went to the departure gate, where she boarded the plane for Houston. As he was returning to the lobby, Lonabaugh was stopped by the Customs agents and taken to the baggage area. He identified the suitcases as his, but said he did not have the keys. The agents then broke into one of the suitcases and discovered some marihuana. Lonabaugh was then arrested, as was his accomplice, who was taken from the plane. The agents obtained keys to the suitcases from the accomplice, and they discovered more marihuana in the other suitcase.

Lonabaugh moved to suppress the marihuana as evidence on the grounds that it was obtained in a warrantless search, and no exception to the warrant requirement applied. The district court denied defendant’s motion on the grounds that the officers had probable cause to conduct the warrantless search, exigent circumstances excused the failure to obtain a warrant, the search was a border search, and defendant had no standing to protest the search of the suitcases.

I.

Our task in this case is made easier by the fact that another panel of this court has recently decided a virtually identical case. United States v. Garay, (5 Cir. 1973) 477 F.2d 1306. The court in Garay, after setting out facts almost identical to those described above, concluded that the search in that case was constitutionally invalid. We agree with the Garay court’s application of the law in that case, and finding this case to be virtually identical, reach the same result.

There is no need for us to decide whether the officers had probable cause to search the suitcases, since the government has not fulfilled its burden under Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) of demonstrating the applicability of an exception to the warrant requirement. As the court in Garay stated.

While the exigencies of the situation may well have justified the war-rantless detention of appellants, they cannot validate the search of the suitcases made at a time when appellants were under restraint, if not under formal arrest. At that point, appellants were incapable of concealing or destroying the suitcases or their contents. Nor was there any significant probability that the suitcases would escape search by being moved to Chicago or Detroit aboard the airplane, for the officers, through their possession of the baggage checks identifying the suitcases, had effective control over their movement. Even if the officers had been unable to retrieve the bags before the plane departed El Paso, they could have arranged with agents in Chicago or Detroit to intercept the bags there. Thus, the mobility of the bags at the time of the seizure does not bring the instant case within the doctrine of [Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)], because their mobility was at all times subject to the control of the arresting officers. In short, the officers could and should have held the bags until they obtained a warrant authorizing an examination of their contents.

In the case at bar, the officers’ control over the suitcases is even clearer than it was in Garay; the suitcases had already been removed from the baggage cart. The officers stated that they had good relations with the airline personnel and were well known to them. The officers’ own testimony indicates that nothing would have prevented them from detaining the suitcases while a warrant was obtained. There were no exigent circumstances present in this case which excused the failure to obtain a warrant.

II.

In its brief on appeal, the government argued only two points: that Lonabaugh had abandoned the suitcases, and therefore had no standing to object to the search and that the search was justified as a “border search.” At oral argument, however, counsel for the government conceded that this search was not a “border search.” We think he was correct in doing so.

The governing standard for determining whether a search falls into the border search category is Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Almeida-Sanchez was stopped by a roving border patrol while driving on State Highway 78 in California about 25 miles from the Mexican border. Highway 78 never crosses the border and at all points lies north of Interstate 80, a major east-west highway. The government justified the search of Almeida-Sanchez’ car by citing § 287(a) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a), which allows warrantless searches of automobiles “within a reasonable distance from any external boundary of the United States.” A “reasonable distance” is defined by 8 C.F.R. § 287.1 as “within 100 air miles from any external boundary of the United States.”

The Court held that a search is not exempted from the warrant and probable cause requirements of the Fourth Amendment simply because it occurs within 100 miles, or any other specific distance, of the border. To qualify as a border search, a search must occur at the border or at the functional equiv alent of the border. 413 U.S. at 272, 93 S.Ct. at 2539, 37 L.Ed.2d at 602.

The meaning of the phrase “at the border” seems clear enough. It obviously refers to searches of persons or property as they are in the act of crossing the border. But the question of what is the functional equivalent of a border is more complex, and will have to be developed on a case-by-case basis. The example given by the Court in Almeida-Sanchez was the search of passengers disembarking from an airplane arriving in St. Louis non-stop from Mexico City. 273 U.S. at 413, 93 S.Ct. at 2539, 37 L.Ed.2d at 602. We will not attempt to catalogue all the situations which may be classified as functional equivalents to searches at the border, but it is appro-riate for us to state why we are convinced that this case does not involve such a search.

The district court took judicial notice of the fact that the Brownsville airport is only two miles from the Mexican border and that significant amounts of controlled substances are illegally imported into this country from Mexico. This is not good enough. Proximity to the border is not the only standard for determining whether a search is the functional equivalent of a search at the border. There must be some substantial connection with an actual or suspected border crossing by the person or thing to be searched. In other words, the searching officers must know or have a reasonable suspicion that the very individual or thing to be searched has itself just crossed the border. Judicial notice or even proof of many illegal acts in the area in which the search takes place is not enough.

It is not difficult to see the reasons for these restrictions. The justification for the border search exception to the warrant and probable cause requirements of the Fourth Amendment is not merely that searches near the border are very effective in discovering contraband and criminal activity. Such a justification would totally emasculate the Fourth Amendment, since we seem to be reaching a point in history m which the justification could apply to nearly every facet of our lives. The justification is that a nation has an overriding interest in protecting itself by excluding persons and objects at the border which it deems undesirable. Carroll v. United States, supra, 267 U.S., at 154, 45 S.Ct. 280. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). The nation’s interest in protecting itself from imported material traveling around within the country has never been, nor could it be, held to,override the guarantee of freedom from governmental intrusion embodied in the Fourth Amendment. In the case at bar there is no indication that Lonabaugh or his companion had at any time been in Mexico, much less in the recent past. Neither is there any allegation that the Customs officers had any information as to the origin of or itinerary of the marihuana they suspected was inside the suitcases. Therefore the justification of the search as a border search must fail.

In a case factually similar to Almeida-Sanchez, this court in United States v. Byrd, 483 F.2d 1196 (1973), emphasized the distinction between a search at the border or its functional equivalent, on the one hand, and a search which occurs near a border, on the other. We held that a search by a roving border patrol on a road 45 miles from the Mexican border was unconstitutional. There, as here, the officers had no indication, other than their general knowledge about the area of the country, that the objects of their search had recently been' in another country. Because any known or suspected connection with a recent border crossing was totally lacking, the search could not be permitted. See, also, United States v. McKim, 487 F.2d 305 (1973).

In United States v. Steinkoenig, 487 F.2d 225 (1973), this court upheld the search of a truck which had not crossed the border, but which had been parked near the Rio Grande River from 11:00 p. m. one night until 3:00 a. m. the next morning. In that case, the Customs agents had strong reason to believe that the truck had been loaded with material which had crossed the border during that period, and searched it 15 minutes after it left the border area. As was held there, the strong nexus with the border distinguished that case from Almeida-Sanchez. The agents had good reason to believe the contents of the truck, though not the truck itself, had just crossed the border.

Under these standards the search of Lonabaugh’s suitcases does not pass constitutional muster. As the courts in Byrd and Almeida-Sanchez have recognized, to call a search a border search simply because it occurred near the border would effectively wall off an entire section of the country from the warrant and probable cause requirements of the Fourth Amendment. This we cannot allow.

III.

The final issue with which we must deal is standing. The government argues that Lonabaugh abandoned the suitcases when he checked them with the airline and handed the baggage checks to his companion. But this is entirely inconsistent with the government’s entire theory of this case. The complaint indicates that Lonabaugh and his companion were engaged in a conspiracy to possess the marihuana with the intent to distribute it. This case is like one in which a person gives something to a messenger to transport for him. There is no intent to sever all connection with the object being transported. The messenger is merely the agent of the sender assigned to transport the object to another person. Here, the object in question never traveled any further toward its destination in Houston (or possibly even further away than that) than the baggage room a few yards from where Lonabaugh was arrested. It was not abandoned.

The cases cited by the government on the standing issue are inapposite. United States v. Abel, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), involved a man who had deposited certain material in a wastebasket in his hotel room, and had checked out of the hotel. Thus, he had abandoned the material in a dual sense. United States v. Colbert, 474 F.2d 174 (5 Cir. 1973) is also unconvincing as precedent for this case. In Colbert the defendants had placed a brief case on the sidewalk and walked away from it. When asked about the brief case, they denied any connection with it. In this case, Lonabaugh had purchased the tickets on which the suitcases were checked, and the evidence indicated the suitcases belonged to him. In addition, Lonabaugh told the officers that he had checked the baggage with the airline. In no sense can he be said to have abandoned the suitcases.

We hold that the search that produced the 35 pounds of marihuana introduced at Lonabaugh’s trial was unlawful. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

      . 21 U.S.C. § 841(a) provides:
      (a) Except as authorized by this subchap-ter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
      (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
      21 U.S.C. § 846 provides:
      Any person who attempts or conspires to commit any offense defined in this subehap-ter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

      . The search of the automobile was a direct result of the search in the airport. If the latter is forbidden, the fruits of the former must also be excluded. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), Silverthorne Lumber Co. v. U.S., 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).


author: PECK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Glenn BAKER, Defendant-Appellant.
    No. 73-2030.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 4, 1974.
    Decided April 11, 1974.

      Bert T. Combs, Louisville, Ky., for defendant-appellant; Samuel G. Bridge, Jr., Charles R. Simons, Louisville, Ky., Dan Jack Combs, Pikeville, Ky., on brief.
    John M. Compton, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, U. S. Atty., Lexington, Ky., on brief.
    Before WEICK, EDWARDS and PECK, Circuit Judges.
   PECK, Circuit Judge.

This is a direct appeal from a jury conviction in June of 1973 on a two-count indictment of threatening a federal witness in violation of 18 U.S.C. § 1503 (1968). The District Court imposed a maximum sentence by fining the defendant-appellant Baker the sum of $5,000 on each count and imposing a 5-year imprisonment term on each count. The prison term on the second count was suspended and Baker was ordered to be placed on probation for a period of five years following the expiration of the sentence on the first count.

In October of 1971 one Tommy Kil-burn was arrested by three Hazard, Kentucky, police officers for driving while intoxicated. A contemporaneous search of Kilburn’s auto disclosed a .44 caliber revolver under the passenger’s seat. At Kilburn’s preliminary hearing, Baker testified that the gun was his and that he had mistakenly left it in Kil-burn’s auto earlier on the day that Kil-burn was arrested. The matter was then turned over to federal agents for possible federal prosecution concerning the firearm. In November of 1971, a federal grand jury indicted Kilburn, a convicted felon, for possessing the .44 revolver. At that time there appears to have been several charges, not all of which were federal, pending against Kil-burn, including more than one firearm possession charge. Although the trial was originally set for December 8, 1971, it did not reach trial until June of 1973. In December of 1972, Baker executed as a surety an appearance bond for Kilburn in the federal prosecution for possession of the .44 revolver. Baker claims that it was at this time that he first learned of any federal investigation relating to the firearm.

COUNT I

Count I regards an alleged threat to one of the police officers who arrested Kilburn. Sometime in December of 1971, Baker visited his friend Ed Johnson, the father of Officer George Johnson, and proposed that Ed ask George to join them. George arrived and the subsequent conversation between Baker and George, overheard by Ed, formed the basis for Count I. Ed testified that before his son arrived Baker complained about the arrest of “Tommy Kilburn and some of his boys.” According to Ed Johnson, Baker then advised his son that “the boys were awful mad at him” and thought the police “needed a little charge.” George testified .that Baker said that in view of their friendship, he would see that George wasn’t harmed “too much.” Ed’s testimony generally substantiated this alleged threat. George Johnson testified that he contacted federal agents following the alleged threat and that his house was placed under surveillance during the month of December 1971.

At the trial and over the objection of Baker’s counsel, testimony was permitted that the property where George lived was damaged by an explosion in early May of 1972, five months after the alleged threat but prior to trial. Referring to Baker, Ed Johnson testified that the explosion took place “approximately where he said it would.”

At the time of the December 1971 conversation, Ed Johnson knew his son was to be a witness in a case against Tommy Kilburn but did not know whether he had already done so. On direct examination, George Johnson testified that the conversation occurred prior to the scheduled date of the Kilburn trial but on cross-examination he was unable to place the conversation before or after the trial date. Also on cross-examination, George Johnson stated that the threat was made for picking on Kil-burn and “the Glomar boys” and that was the only reason for the threat. In December of 1971 Johnson was under instruction to keep several persons from the town of Glomar Hollow under surveillance.

Two items of claimed error concern us. First, there is a substantial question in our view as to whether the Government produced sufficient evidence to indicate that Baker knew or was aware of the existence of a pending federal proceeding and that George Johnson was a witness therein. However, we find it unnecessary for us to resolve the point because the record reveals that there is insufficient evidence to establish beyond a reasonable doubt that the alleged threat specifically related to George Johnson’s testimony in Kilburn’s pending federal proceeding.

Particularly in view of the fact that 18 U.S.C. § 1503 is a criminal statute which must be strictly construed, United States v. Essex, 407 F.2d 214 (6th Cir. 1969), a threat in violation of the statute must relate to the possible testimony of the witness in a pending federal proceeding. In testifying as to the nature of the alleged threat, Ed Johnson stated that he and Baker had several times previously discussed getting George to “turn his head” rather than arrest “Tommy Kilburn and some of his boys.” The fact that George Johnson had arrested Kilburn, a resident of the area, several times in the past strongly indicates that the federal case in question was not the only conduct of George Johnson relating to Kilburn to which the alleged threat could have applied. The mere existence of that federal proceeding is not sufficient to establish or support any inference that the federal proceeding was the focus of the alleged threat.

The Government cites Broadbent v. United States, 149 F.2d 580 (10th Cir. 1945), and Odom v. United States, 116 F.2d 996 (5th Cir.), rev’d, per curiam, 313 U.S. 544, 61 S.Ct. 957, 85 L.Ed. 1511 (1941), for the proposition that a reasonably founded belief by the accused that the person he attempts to influence is a witness in a pending federal proceeding furnishes the requisite scienter for a violation of 18 U.S.C. § 1503. Upon scrutiny, however, we find that those eases do not support the proposition so urged. In Broadbent the accused admitted on cross-examination that she attempted to influence the witness after she knew of the federal proceeding. And in Odom, the court specifically pointed out, “The accused here knew there was a proceeding in federal court, and that there was to be a hearing Saturday night . . . .” 116 F.2d at 999.

The second alleged error concerns the admission of testimony regarding the dynamite explosion. Concededly, the testimony regarding the explosion related to a matter which was not relevant to proving the. crime charged. However, the Government argues that the testimony was used to corroborate the testimony of George and Ed Johnson “. . . in regard to where the defendant said (at the time of the threat) the explosion would take place.” Baker claims that such corroboration was unnecessary in view of the fact that these two prosecution witnesses testified that the threat was made and that he admitted the occurrence of the conversation in which the alleged threat took place. Baker’s position is that his remarks were a warning of information he overheard and were not threatening.

There can be little question but that in the absence of an appropriate instruction considerable danger existed that the jury might make improper use of this evidence. Accordingly, we conclude that the District Court should have at least provided a careful _ cautionary charge limiting the uses the jury could make of the testimony. See, United States v. Gebhart, 441 F.2d 1261 (6th Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 97, 30 L.Ed.2d 96 (1971).

COUNT II

The charge under this count concerns an alleged telephone conversation between one Raleigh Riddle and defendant-appellant Baker in December of 1972. Riddle, the manager of a bar which his wife owned in Hazard, Kentucky, had been subpoenaed to appear at Kilburn’s federal trial on the possession of the .44 revolver. At the trial in the case now before us, Riddle testified as the sole prosecution witness regarding Count II and stated that a person who identified himself on the telephone as “Your old buddy, Glenn” threatened to shoot him in the back of the head and blow up his bar or have it done. Riddle indicated that he recognized the voice as Baker’s and further testified that Baker called approximately an hour later saying that, “Oh, I was just acting a fool, I was just kidding.” Riddle claimed he replied, “This is no kidding matter. There’s been enough bad shooting over there and blowing ups.”

Baker denied that he had telephoned or threatened Riddle. However, Baker testified that Riddle approached him after his indictment and arrest on the charges considered herein and suggested that they might make a deal. According to Baker, Riddle stated he would swear a lie against anyone who was a friend of Kilburn but that he would swear not to lie against Baker if Baker would persuade Kilburn not to show up in an Owsley County, Kentucky, action against Riddle on a charge of shooting and wounding with intent to kill. Baker’s counsel attempted to inquire into the nature of the Owsley County proceeding but the Government’s objection was sustained.

In addition, Riddle admitted to the court that he was a convicted felon. However, when Baker’s counsel attempted to explore the number and nature of the convictions, the District Court sustained the Government’s objections thereto.

This Court has held that the limitations of cross-examinations must be examined within the circumstances of each case and the trial court’s determinations in this regard should not be disturbed except where an abuse of discretion is shown. United States v. Marchesani, 457 F.2d 1291, 1297 (6th Cir. 1972); Lohman v. United States, 266 F.2d 3, 4 (6th Cir.), cert, denied, 361 U. S. 923, 80 S.Ct. 290, 4 L.Ed.2d 239 (1959). The Government argues that a trial judge has a wide discretion to limit an inquiry into a witness’s bias and motive to falsify, particularly where that evidence is collateral. However, we cannot view as collateral the defendant’s attempt to discredit the inculpatory testimony of a sole accusing witness by proof of bias or motive to falsify. United States v. Blackwood, 456 F.2d 526 (2d Cir.), cert, denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972); see also, Beaudine v. United States, 368 F.2d 417 (5th Cir. 1966).

It is well-settled that inquiry is not limited to the mere fact of a prior “felony” conviction. See, McCormick on Evidence, § 43 (2d ed. 1972). And, although a witness’s credibility generally cannot be impeached by showing arrest, indictments or other acts of misconduct not resulting in a conviction, acts demonstrating a basis .for bias and prejudice may be explored to a reasonable degree. See, United States v. Williams, 446 F.2d 1115 (5th Cir. 1971); United States v. Bonanno, 430 F.2d 1060 (2d Cir.), cert, denied, 400 U.S. 964, 91 S.Ct. 366, 27 L.Ed.2d 384 (1970); Hughes v. United States, 427 F.2d 66 (9th Cir. 1970); Tinker v. United States, 135 U.S.App.D.C. 125, 417 F.2d 542, cert, denied, 396 U.S. 864, 90 S.Ct. 141, 24 L.Ed.2d 118 (1969).

Whether the District Court abused its discretion in applying or misapplying these principles is a question which is reducible to another question, “What is the test?” We agree with the Second Circuit that the test is whether the jury has sufficient other information upon which it may make a discriminating appraisal of the witness’s motives and bias. United States v. Blackwood, supra, 456 F.2d at 530. Clearly there was no such other information available to the jury here.

The judgment of the District Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

      . George Johnson, one of the arresting officers, admittedly knew at the time of the arrest and seizure of the pistol that it was Baker’s pistol. Johnson had previously borrowed the pistol from Baker to use in the course of his police duties.

      . Ed Johnson continued to maintain a friendly relationship with Baker and shared Christmas dinner at Baker’s house in 1971 after the alleged threat was made.

      . The statute provides in part:
      “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States . . . . ” 18 U.
      S.O. § 1503 (1968).

      . Our review of the record reveals that only Ed Johnson testified that Baker had specified a place where the explosion would occur.

      . The Government has cited United States v. Hoffa, 349 F.2d 20 (6th Cir. 1965), aff’d, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), for the proposition that the trial court has discretion to limit inquiry into collateral matters. However, this Court, after upholding a limitation of any inquiry into a collateral matter during the cross-examination of the prosecution witness Partin, was careful to point out that:
      “The Court did permit cross-examination of Partin with respect to any promises or threats which would influence his testimony, and allowed a wide latitude with respect to many other matters.” 349 F.2d at 46.


author: PER CURIAM.

text:
    Charles A. SHADID, Plaintiff-Appellant, v. The OKLAHOMA CITY, a municipal corporation, Defendant-Appellee, B. D. Eddie, Intervenor Defendant-Appellee.
    No. 73-1721.
    United States Court of Appeals, Tenth Circuit.
    April 15, 1974.
    Barry Albert, Shadid, Black & Albert, Oklahoma City, Okl., for appellant.
    Tom B. McGee, Asst. Municipal Counselor; Walter M. Powell, Municipal Counselor, Oklahoma City, Okl., for City of Oklahoma City, Oklahoma.

      Edward H. Moler, Barefoot, Moler & Claro, Oklahoma City, Okl., for B. D. Eddie, intervenor defendant-appellee.
    Before HILL and DOYLE, Circuit Judges, and DURFEE, Senior Judge, United States Court of Claims, sitting by designation.
   PER CURIAM.

This matter comes on for consideration of the captioned cause which, on March 21, 1974, was considered on the briefs.

Appellant contends that the District Court erred in sustaining defendant City of Oklahoma City’s motion for summary judgment and in ordering his cause dismissed with prejudice without an evidentiary hearing. We have examined the opinion of the Supreme Court of the State of Oklahoma in Glasgow v. Beaty, 476 P.2d 75 (1970), and the opinion of the Oklahoma Court of Appeals, Division 2, in Shadid v. City of Oklahoma City and B. D. Eddie, No. 44873 (filed Jan. 16, 1973), and it is our conclusion that this cause has been thoroughly litigated in the State Courts on the same facts and by the same parties (or their privies), and that appellant is barred by the doctrine of res judicata from re-litigating these same factual and legal issues. The mere assertion of a new theory based upon the Federal Constitution or statute is insufficient to entitle appellant to reconsideration in a Federal court of allegations of the same wrong, based upon the same facts, and seeking the same relief. Grubb v. Public Utilities Commission of Ohio et al., 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1930); Tomiyasu v. Golden, 358 F.2d 651 (9th Cir. 1966). Furthermore, as to appellant’s claim under 42 U.S.C. §§ 1983 and 1985, a municipal corporation is not a “person” within the contemplation of those sections. See e. g., Bush v. Robinson, 442 F.2d 393 (3rd Cir. 1971); Spampinato v. City of New York, 311 F.2d 439 (2d Cir. 1962), cert, denied, 372 U.S. 980, 83 S.Ct. 1115, 10 L.Ed.2d 144 (1963), rehearing denied, 374 U.S. 818, 83 S.Ct. 1699, 10 L.Ed.2d 1042 (1963).

Under the facts and circumstances of this case, the District Court properly exercised its discretion pursuant to Rule 24 of the Federal Rules of Civil Procedure in permitting the intervention of B. D. Eddie as a party defendant in the cause.

We find no error in Judge Bohanon’s refusal to disqualify upon appellant’s motion pursuant to 28 U.S.C. § 455. Whether a judge is so connected with the litigation as to make it improper for him to sit is a matter confined to the consideration and discretion of the judge himself. Weiss v. Hunna, 312 F.2d 711 (2d Cir. 1963), cert, denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963). There are no facts indicated in the record which would have compelled the trial judge to recuse himself pursuant to 28 U.S.C. § 455 in the absence of a judgment on his part that it would have been improper for him to sit on the case.

Finally, appellant’s motion for continuance, filed for the reason that Intervenor had not yet answered interrogatories propounded to him and for the further reason that the trial judge had not yet ruled on appellant’s motion for the assigned judge to disqualify, was properly denied.

Accordingly, it is the ORDER of the Court, per curiam, that the Judgment of the United States District Court for the Western District of Oklahoma is affirmed.


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles D. STAPLETON, Defendant-Appellant.
    No. 73-2304.
    United States Court of Appeals, Ninth Circuit.
    April 11, 1974.
    Rehearing Denied July 11, 1974.
    Ralph C. Larsen, Gardena, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., Eric A. Nobles, Jerry L. Newton, Asst. U. S. Attys., for plaintiff-appellee.
    Before DUNIWAY, CARTER and WRIGHT, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

This case presents an unusual question under the double jeopardy clause of the Fifth Amendment. In 1969, Staple-ton was convicted under six counts of an indictment charging violations of 18 U. S.C. §§ 371, 472 and 473. He appealed, and we remanded the case. Our order read as follows:

The government concedes because of government error that the defendant is entitled to a new trial.
The cause is remanded to the district court with authority to entertain a motion from defendant for a new trial, which, in the circumstances here, should be granted.

When he appeared before the district court, however, Stapleton did not move for a new trial. The following colloquy occurred:

“THE COURT: It is a rather strange order from the Ninth Circuit. In the light of this order it seems to say that the defendant is entitled to a new trial and the Court will order a new trial and I will set it down for trial setting.
MR. LEE [attorney for Stapleton]: Your Honor, if I may just for clarification, let the record show that this is on the Court’s own motion and over the objection of the defendant.
THE COURT: Yes.”

This appeal is from a conviction at the new trial that had thus been ordered by the trial judge.

We are forced to agree that our order is “rather strange.” It does not reverse or vacate the judgment. It might be construed to mean that the district court need not have granted a new trial if the defendant did not move for a new trial. In that case, Stapleton would have still stood convicted under the first judgment. That, however, is not the result that he was after when he appealed. We are confident that, when he refused to move for a new trial, he was not seeking to preserve the original judgment. He was simply making a record to preserve a double jeopardy claim when the court granted the new trial. We think that the proper construction of our order is that we wanted a new trial granted, and, instead of ordering one ourselves, instructed the trial court to do so.

There is no doubt that jeopardy attached when Stapleton was first tried. However, a defendant who appeals and is found entitled to a new trial has waived his right to claim double jeopardy at the second trial. See, e. g., United States v. Ball, 1896, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300; United States v. Jorn, 1971, 400 U.S. 470, 484, 91 S.Ct. 547, 27 L.Ed.2d 543. It does not matter that the decision is based on the government’s confession of error, rather than on independent finding of error by the appellate court. Stroud v. United States, 1919, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103. There, a conviction was reversed on appeal, on the basis of a confession of error. The Court said:

[T]he conviction and sentence upon the former trials were reversed upon writs of error sued out by the plaintiff in error. The only thing the appellate court could do was to award a new trial on finding error in the proceeding, thus the plaintiff in error himself invoked the action of the court which resulted in a further trial. In such cases he is not placed in second jeopardy within the meaning of the Constitution. Id. at 18, 40 S.Ct. at 51.

Our order was made in response to Stapleton’s appeal from his first conviction. In spite of the form of our order, the only way to eliminate the error confessed by the government was to grant a new trial. That is the gist of what we said, although we did not order a new trial. The principle of Stroud is equally applicable here. There was no double jeopardy at the second trial.

Stapleton’s second claim of error is without merit. The trial was by the court. Seven exhibits had been produced by the government and marked for identification. There was extensive testimony about each of them, but they were not formally offered or received in evidence. Nonetheless, both parties, and the judge, acted as if they were in evidence, and the judge relied upon them in finding Stapleton guilty. When the parties rested, defense counsel raised no question about the exhibits not being in evidence. Thus the exhibits had in fact been admitted. After the judge made his decision, and at the time when Stapleton appeared for sentencing, the government asked the judge to reopen the case to permit the government to move that the exhibits be admitted. The court granted the motion and formally admitted the exhibits. This was, in substance, a mere correction of the record to show what actually happened. Sta-pleton was not prejudiced.

Affirmed.

      . A different problem would be presented if Stapleton had not appealed and the trial judge had ordered a new trial on his own motion, over Stapleton’s objection. See cases cited in 8A J. Moore, Federal Practice H 33.02 [1] at 33-4-33-5 (1973) and 2 C. Wright, Federal Practice and Procedure § 551 at 483 (1969). The Supreme Court has not ruled on this question. See United States v. Smith (1947) 331 U.S. 469, 474-475, 67 S.Ct. 1330, 91 L.Ed. 1610. We express no opinion on it.


text:
    Mrs. Madge BROOKS, Plaintiff-Appellant and Cross-Appellee, v. SOUTHWESTERN TRANSPORTATION COMPANY and St. Louis Southwestern Railway Company, Defendants-Appel-lees and Cross-Appellants.
    Nos. 73-1771 and 73-1772.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 12, 1974.
    Decided April 9, 1974.
    W. J. Michael Cody, Memphis, Tenn., for plaintiff-appellant; John S. Porter, Burch, Porter & Johnson, Memphis, Tenn., on brief.
    Robert M. Johnson, Memphis, Tenn., for defendants-appellees; Canada, Russell & Turner, Memphis, Tenn., on brief.
    Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges.
   PER CURIAM.

In the District Court plaintiff, Mrs. Madge Brooks, individually and as Administrator of the estate of her deceased husband, James H. Brooks, sued St. Louis Southwestern Railway Company (Railroad) and its wholly-owned subsidiary, Southwestern Transportation Company (Trucking Company), asserting a claim for damages under the Federal Employer’s Liability Act (45 U.S.C. § 51) for personal injuries to and the death of her husband, occasioned when a tractor trailer owned by Trucking Company, rolled over him during the course of his duties as one of its employees. In the alternative she sued Trucking Company for benefits under the Tennessee Workmen’s Compensation Act (T.C. A. 50-901 et seq.).

The District Court granted motions for summary judgment filed by both defendants, holding that as a matter of law the Federal Employer’s Liability Act was applicable only to railroad employees, and dismissed the complaint under the Act, but rendered judgment against Trucking Company for the alternative claim for Workmen’s Compensation benefits. Plaintiff appealed. We affirm.

The decedent had been employed as a hostler by Trucking Company at its Memphis truck terminal, for more than twenty-six years. On the day of the accident he was inspecting the tires on a tractor-trailer unit when a fellow employee of Trucking Company started the unit and the trailer ran over him.

The trailer, which contained clothing shipped from Sulphur Springs, Texas, on Trucking Company’s waybill, was bound for Nashville, Tennessee. The decedent was inspecting the tires on the trailer before turning over the trailer to another trucking company, Midwest Transports, for travel to Nashville, inasmuch as Trucking Company’s authority did not extend beyond Memphis.

It was the theory of the plaintiff that because Railroad owned all of the stock of Trucking Company, had some common officers, made advancements to it, held funds for it, guaranteed indemnity bonds required by the Interstate Commerce Commission, received dividends from Trucking Company in yearly amounts totaling $100,000 to $2,000,000, and because Trucking Company performed certain services for Railroad under contract for which Trucking Company received compensation, it (Trucking Company) was the alter ego of Railroad, and that the Court should pierce the corporate shield and hold that Brooks was really an employee of Railroad.

At the time of the accident the decedent was performing duties solely for Trucking Company. He never performed any service for Railroad.

The Act provides in pertinent part: Every common carrier by railroad . shall be liable in damages to any person suffering injury while he is employed by such carrier ....

The Trucking Company is not a Railroad.

Decedent not only was not employed by Railroad, but never did any work for it.

The Supreme Court has held that the Act covers only railroad employees and not other employees, although they were engaged in interstate transportation, working for other masters. Robinson v. Baltimore & Ohio R. R., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849 (1915).

The Court has even held that employees of wholly-owned subsidiaries of a railroad are not covered by the Act. Edwards v. Pacific Fruit Express Co., 390 U.S. 538, 88 S.Ct. 1239, 20 L.Ed.2d 112 (1968); Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed 1086 (1917). In Southern Pacific the Court considered the legislative history of the Act which then had been in effect for more than sixty years and the Congressional rejection of attempts to broaden its coverage to include employees of other masters.

Recently the Ninth Circuit, in Kelley v. Southern Pac. Co., 486 F.2d 1084 (9th Cir. 1973), considered a relationship between a railroad and its wholly-owned subsidiary trucking company which was very similar to that in the present case. The Court, in an opinion written for the Court by Circuit Judge Hastie, sitting by designation, held that the railroad was not liable for personal injuries sustained by a trucking company’s employee while unloading automobiles from the railroad’s tri-level flat car.

We can find no basis for piercing the corporate shield. Trucking Company had substantial assets. It was engaged in a lawful business regulated by the Interstate Commerce Commission. There was no fraud, deceit or misrepresentation present.

The protective appeal filed by Railroad in case No. 73-1772 is hereby dismissed.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. William Wesley HARRIS and Robert Lee Willis, Appellants.
    Nos. 73-1432, 73-1433.
    United States Court of Appeals, Tenth Circuit.
    April 19, 1974.
    Rehearing Denied May 22, 1974.
    Edward F. Bachofer, Merriam, Kan., for appellant Harris.
    Thomas E. Joyce, Kansas City, Kan., for appellant Willis.
    Stephen K. Lester, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Glen S. Kelly and E. Edward Johnson, Asst. U.
    S. Attys., on the brief), for appellee.
    Before BREITENSTEIN, SETH and DOYLE, Circuit Judges.
   PER CURIAM.

William Wesley Harris and Robert Lee Willis, in two appeals consolidated in this court, appeal from judgments of conviction, after a jury trial, of having violated 18 U.S.C; §§ 2, 2113(a), and (d). Initially, seven codefendants were charged in the indictment for the bank robbery.

The trial below was the appellants’ second, following reversal and remand by this court of the first. United States v. Harris, 462 F.2d 1033 (10th Cir.). Appellants, along with defendants Monroe and Odom, who are not before the court in this appeal, were convicted primarily out of the mouths of Colvin and Lewis, the active participants in the bank robbery. Much of the appellants’ briefs are concerned with the propriety of this “accomplice” or “informant” testimony.

Briefly stated, in the light most favorable to the Government, the record discloses the following events: On November 9, 1970, the Tower State Bank of Kansas City, Kansas, was robbed by Col-vin and Lewis, who pleaded guilty before trial and testified against the other defendants. They testified that Harris and Willis arranged the overall plan of the robbery, including the theft of the, “getaway” car by Fagan and another man, and “cased the heist” beforehand with them. Harris and Willis also arranged with Misses Odom and Monroe for a rendezvous where Colvin and Lewis would jump into the trunk of the women’s rented car and be driven to a place where they could divide up the proceeds of this endeavor. All went according to plan, except that after the robbery the participants were not able to meet at Lewis’ house because there were other people there; they met instead at the house of one Gordon. Harris and Willis helped in counting out the money which was divided among the various persons involved.

The record plainly shows that the witness Colvin had expectations of leniency in sentencing, and of non-prosecution for other offenses, both state and federal, in return for his appearance as a witness. Likewise, the witness Fagan had some hope that the fact that he would testify on behalf of the Government would be relayed to his Parole Board, as he was incarcerated at the time. These facts were thoroughly explored by defense counsel during the course of the trial, as were the rather extensive criminal records of these witnesses. Their credibility thus became a matter for the jury to resolve.

The defendants urge that instructions referred to in On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270, and in Todd v. United States, 345 F.2d 299 (10th Cir.), should have been given in this case. We find no facts in the record showing that any witness was an informer giving testimony in the circumstances referred to in the cited opinions. The testimony was given as accomplices, and adequate instructions were given on this point. The instructions, taken as a whole, United States v. Smaldone, 485 F.2d 1333 (10th Cir.); United States v. Beitscher, 467 F.2d 269 (10th Cir.), were adequate. See United States v. Owens, 460 F.2d 268 (10th Cir.); Butler v. United States, 408 F.2d 1103 (10th Cir.), and cases cited therein; cf. McGee v. United States, 402 F.2d 434 (10th Cir.). Specific instructions on identification could have been given, see Macklin v. United States, 133 U.S.App.D.C. 139, 409 F.2d 174, but the facts of this case fall within our decision in McGee and the District of Columbia Circuit’s holding in Mack-lin.

The appellants also complain that statements made by the prosecution during closing argument were improper and prejudicial as an expression of belief in both the guilt of the defendants and the credible veracity of the prosecution’s witnesses. We cannot agree. As the prosecuting attorney stated, in closing: “We have captured the two bank robbers that went in; we asked them what happened; they told us what happened ; they told you what happened and defense counsel says they are lying. That is as simple as the whole case is.” Defense counsel, in closing, stated that Colvin and Fagan were “plain unadulterated fabricators of lies,” “people who fabricate things,” “unworthy of belief,” and “congenital liars.” Any remarks that the prosecution may have made were not prejudicial, see United States v. Coppola, 479 F.2d 1153 (10th Cir.) ; Bailey v. United States, 410 F.2d 1209 (10th Cir.); Devine v. United States, 403 F.2d 93 (10th Cir.), and were in a fair response to the basic issue, raised by the defense, of the accomplices’ testimony. Cf. United States v. Sawyer, 485 F.2d 195 (10th Cir.). The trial court made it clear during the course of closing argument that all of the arguments of counsel, both for the defense as well as prosecution, were not evidence but simply arguments. Included in the court’s charge to the jury was the further admonition that “statements and arguments of counsel are not evidence in the case. . . . ”

Viewed in the light most favorable to the Government, the evidence supports the jury’s finding of guilt. Thus the trial court properly denied the motion for acquittal and the motion for new trial. See, e. g., United States v. Acree, 466 F.2d 1114 (10th Cir.), and cases cited therein.

Other claims made by the appellants have been considered and determined to lack merit.

The judgment of the district court in each case is affirmed.


author: VOGEL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Cleophas BYRD, Jr., Appellant.
    No. 73-1460.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13, 1974.
    Decided April 16, 1974.
    James A. Bell, St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., and William C. Martin, St. Louis, Mo., for appellee.
    Before VOGEL, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VOGEL, Circuit Judge.

Cleophas Byrd, Jr., appeals his conviction on two counts of bank robbery in violation of 18 U.S.C. § 2113(a). The indictment charged Byrd with the robbery of the Northwestern Bank and Trust Company of St. Louis, Missouri, on November 8, 1972, and again on November 21, 1972. Counsel at trial stipulated that the institution in question was insured by the Federal Deposit Insurance Corporation. The appellant was convicted by a jury on both counts and was given concurrent 15-year sentences on each count.

Appellant first contends that the trial court erred in allowing the testimony of witnesses who identified him in open court. He contends that a pre-trial lineup was conducted in violation of his Sixth Amendment right to counsel and his Fifth Amendment right to due process of law. The lineup in question was held on April 16, 1973, prior to the indictment of the appellant. Counsel for appellant made no objection to the testimony of the identifying witnesses who attended the lineup, nor was there any request to strike the testimony during the trial.

We are guided in our review of these contentions by Rule 52(b) of the Federal Rules of Criminal Procedure which permits this court to notice plain errors or defects affecting substantial rights, although they were not brought to the attention of the trial court. We here follow the principle as laid down in Gendi*on v. United States, 295 F.2d 897, 902 (8th Cir. 1961), in which this court stated:

The plain error rule should be applied with caution and should be invoked only to avoid a clear miscarriage of justice. To exercise the right freely would undermine and impair the administration of justice and detract from the advantages derived from orderly rules of procedure.

Accord, United States v. Wenner, 417 F.2d 979 (8th Cir. 1969), cert, denied, 396 U.S. 1047, 90 S.Ct. 700, 24 L.Ed.2d 692 (1970).

From the record before us, we find nothing to indicate that the lineup was impermissibly suggestive. There is also no showing in the record that the in-court identification was tainted by the previous lineup attended by the identifying witnesses. Since the record furnishes no support for the appellant’s contentions, we conclude that he has failed to demonstrate the propriety of applying the plain error rule. No objection to the testimony of the identifying witnesses was made, and we are unable to say that on this record there was plain error in not excluding this evidence sua sponte. See, United States v. Wenner, supra.

The appellant next contends that the trial court erred in defining “reasonable doubt” in terms of “substantial doubt.” In relevant part, the instructions to the jury stated:

Putting it another way, a reasonable doubt means a substantial doubt and not the mere possibility of innocence. After concluding the instructions to the jury, the following colloquy took place:

The Court: Gentlemen, are there any exceptions or objections to the charge as given ?
Mr. Martin: The Government has none, Your Honor.
Mr. Bell: [Defense Counsel] No, Your Honor.
As demonstrated by the above dialogue, no objection was made to the trial court’s instructions by appellant’s counsel. This contention is controlled by our opinion in United States v. Atkins, 487 F.2d 257, 260 (8th Cir. 1973), where we stated:
The objection made on this appeal is that “substantial” doubt is not the equivalent of “reasonable” doubt. We agree. Proof of guilt beyond a reasonable doubt would seem to require a greater evidentiary showing by the Government than proof of guilt beyond a substantial doubt. For this reason, we do not approve of the alternative statement that reasonable doubt means a substantial doubt. But here no objection was taken to the instruction as is required by F.R.Crim. P. 30, and we cannot say that the giving of this instruction in the context of this case constituted plain error under F.R.Crim.P. 52(b). (Citations omitted.)

Accord, United States v. Cole, 453 F.2d 902 (8th Cir.), cert, denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972); United States v. Dunmore, 446 F.2d 1214 (8th Cir. 1971), cert, denied, 404 U.S. 1041, 92 S.Ct. 726, 30 L.Ed.2d 734 (1972). The situation in' the present case is analogous to that in Atkins.

Affirmed.


text:
    Michael D. REMMERS, Ordained Revelation Minister in the Church of the New Song add Coadjutor of Local Purlieu T.R.U.T.H., and Robert Loney, Ordained Revelation Minister in the Church of the New Song and Special Envoy to the Bishop of Tellus, Appellees, v. Lou V. BREWER, Warden at Iowa State Penitentiary, et al., Appellants.
    Nos. 73-1518, 73-1599.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 14, 1974.
    Decided April 16, 1974.
    Robert N. Clinton, University of Iowa, Iowa City, Iowa, for appellees.
    Thomas R. Hronek, Asst. Atty. Gen., Des Moines, Iowa, for appellants.
    Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
   PER CURIAM.

Brewer, Warden at the Iowa State Penitentiary, et al., appeal from a decision and order of the district court holding that the Church of the New Song is a religion within the ambit of the First Amendment and ordering that officials of the penitentiary shall grant to the members thereof the right to exercise their religion equally with other religions. Michael D. Remmers, et al., cross appeal from that portion of the district court’s decision refusing to restrict the activities of the chaplains in the parole process. The decision and order of the district court is reported at 361 F.Supp. 537 (S.D.Iowa 1973). We affirm.

Appeal

Appellants in substance contend (1) The Church of the New Song is not a religion; (2) appellees’ religious beliefs are not sincerely held; (3) even if the court should find that the Church of the New Song is a religion subject to the guarantee of the Free Exercise Clause, the court should further find that opportunity for Free Exercise exists at the Iowa State Penitentiary.

After careful consideration of the entire record we are satisfied that the district court’s judgment that The Church of the New Song is a religion within the ambit of the First Amendment is based on findings that are not clearly erroneous and that no error of law appears. Further there is insufficient evidence in this record to establish appellants’ contention that appellees’ beliefs are not sincere and genuinely felt. It also appears that appellees have not been allowed a fair and meaningful opportunity to freely exercise their religion in the same degree as other inmates, Protestant and Catholic. The district court’s order requiring that this situation be corrected is affirmed.

Cross Appeal

Remmers, et ah, contend that the prison chaplains’ involvement in the parole decision making process implicitly encourages inmates to participate in religious activities and thereby has the primary effect of aiding religion. It is urged that the present system has the effect of advancing the Christian religion and inhibiting non-christian religions and thereby violates the Establishment Clause.

The district court found that “The involvement of the chaplains in the parole process at Fort Madison is neither direct nor substantial”; the mere fact that chaplains are allowed to submit oral or written reports or letters to the Diagnostic Committee or serve thereon was insufficient in itself to establish a violation of the First Amendment.

The record discloses that the seven-member Review Committee meets in groups of three when interviewing prospective parolees. The reports prepared by the chaplains to the committee were not shown to have dealt solely or primarily with religious activities or the lack thereof. There was no showing that religion was being favored in the parole process.

We recognize that this is a sensitive area. Great care must be exercised to avoid even the appearance of reliance on “religious reports” as determinative of one’s status for parole eligibility. The trial court probed this area very carefully, supplementing counsel’s questioning of witnesses.

After reviewing this record we conclude the trial court did not err in determining that the involvement of the chaplains in the parole process at the penitentiary had not been shown to be improper or a violation of the Establishment Clause.

Affirmed.

      . As the trial court noted, should it subsequently appear that the Church of the New Song is a hoax and front, as claimed by the state, that eventually can be dealt with by both the prison administration and the court.

      . Prison officials testified that the committee is more properly termed the Classification and Review Committee. It has numerous duties which include evaluating the information compiled by a counselor upon the reception of an inmate; determining proper goals and setting security classification and limitations for the inmates after the counselor has made a recommendation on treatment needs; transfer recommendations; reclassifications and recommendation for work release or parole consideration. In general the inmates’ counselor (not a chaplain) compiles the information which is presented to the committee. Chaplains’ reports are a part of the material submitted to the committee.