author: PELL, Circuit Judge. SWYGERT, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert A. NOREIKIS et al., Defendants-Appellants.
    No. 72-1341.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 12, 1973.
    Decided June 14, 1973.
    Rehearing Denied July 13, 1973.
    Jerome Rotenberg, Chicago, 111., for defendants-appellants.
    James R. Thompson, U. S. Atty., William T. Huyek, Stephen J. Cloud, Asst. U. S. Attys., Chicago, 111., for plaintiffappellee.
    Before SWYGERT, Chief Judge, and PELL and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

Defendants Noreikis, Hibma, and Rothrock appeal from their convictions for attempting to manufacture a quantity of Dimethyltryptamine (DMT), a schedule I controlled substance, in violation of 21 U.S.C. § 846. Their principal contentions on this appeal relate to an alleged deficiency in the affidavit supporting the request for a search warrant and to alleged improprieties in the manner in which the search pursuant to the warrant was executed. The defendants also challenge the sufficiency of the evidence. The search and seizure issues were raised at a pretrial hearing and the appropriate motions were denied by the district court without any findings of fact. The bench trial of the case followed immediately thereafter and a judgment of guilty was entered by the court, once again without findings of fact.

Appellants first contend that the affidavit for search warrant executed by John T. Peoples, Special Agent, BNDD (Bureau of Narcotics and Dangerous Drugs), was insufficient to allow the magistrate to make an independent determination that probable cause existed to issue the warrant. The application itself consists of two affidavits. The first, part of which is a standard printed form, sets forth that 13 different chemicals (all in specified amounts) were to be found at 436 West 118th Street, Chicago, and that these chemicals “are precursors and reagents of a schedule 1(c) controlled drug and the possession of which is illegal pursuant to Title 21 U. S.C. 841(a)(1) & (2) when possessed with the intent to manufacture.” The second affidavit of Special Agent Peoples traces four of the chemicals — lithium aluminum hydride, methanol, acetone, and ethyl ether — into the house, detailing how the BNDD agents had knowledge that these chemicals were in fact in the house at 436 West 118th Street. The affidavit ends with the statement: “13. That the above described chemicals are known to your affiant as the essential precursors and reagents necessary to produce the Schedule I Controlled Substance Dimethyl - tryptamine.”

If the magistrate had relied only upon the second affidavit, the validity of the issuance of the warrant would have been questionable for three of the chemicals have substantial individual household uses — methanol, acetone, and ethyl ether —and the fourth, lithium aluminum hydride, although it might be a “red flag” which would merit suspicion, would not necessarily establish probable cause to believe illegal drugs were to be manufactured. United States v. Failla, 343 F.Supp. 831 (W.D.N.Y.1972). Although the agents were aware that the various chemicals were being purchased in a surreptitious manner, for some reason this fact was not adverted to in the affidavit. Cf. United States v. Moore, 452 F.2d 569 (6th Cir. 1971). However, the issue does not turn on the second affidavit alone for we have two affidavits which must be read in pari materia.

The purpose for requiring an affidavit for a warrant is to allow the magistrate to make an independent determination of whether there is probable cause to support the issuance of a warrant. The magistrate must be given the facts so that he can make an independent judgment and not rely on the mere conclusions of the officer. See Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). “[A] 11 data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath.” United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971). Cf. United States v. Harris, 403 U.S. 573, 580-581, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). We also must note, however, the admonition of the Supreme Court that “the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L. Ed.2d 684 (1965).

When we read thq two affidavits together in a commonsense way, we agree with the result reached by the district court that the magistrate had a sufficient basis to find probable cause to support a search warrant. We reach this conclusion in part by analogy to the cases considering the sufficiency of affidavits which rely on tips from informers. In Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 27 L.Ed.2d 637 (1969), the Court mandated a two-pronged test for such affidavits: the affidavit should set out, first, the underlying circumstances necessary to enable the magistrate independently to judge the validity of the informant’s conclusion that a crime was being committed, and, second, facts to support the above circumstances and show that they were credible and reliable. The first affidavit — in which the agent swore positively as to the presence of 13 chemicals on the premises of the house to be searched — satisfies the first prong of the test. A magistrate could conclude that one who had assembled or possessed those chemicals was in fact doing so with the intent to manufacture a controlled substance even though it did not include ' every essential chemical. The second, and more detailed, affidavit then serves to meet the second prong of the test. It reflects the basis for the government agent’s knowledge that some of the chemicals were on the premises, thus providing facts to support the credibility and reliability of the first affidavit. That the second affidavit traces into the house only four of the thirteen chemical agents named in the first affidavit does not make it insufficient. The government need not, in its affidavit, corroborate every detail, but there should be at least a representative number of the details in order to give suitable reliability for a warrant to issue. Here there was.

The agent was not relying on an informant’s tip but rather on the investigative work of the BNDD agents when he swore that certain chemicals were on the premises; the corroborative background as to how this knowledge was obtained is necessary in such measure as to give the magistrate confidence in the reliability of the first affidavit. The situation is comparable to the revelation of past instances of reliable tips by an informant to demonstrate that his present tip should be credited. While upholding the issuance of the warrant in this case, we must also observe that better practice would be to err on the side of as much specificity as possible to avoid the possibility of a successful subsequent suppression attempt.

Appellants raise a second, and equally serious, challenge to the admission of the evidence seized at Hibma’s house. Appellants contend that in executing the search warrant the agents violated 18 U.S.C. § 3109, in that they did not announce their purpose or authority nor did they wait until “refused admittance” before breaking open the doors to the house. The Supreme Court has held in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968), that failure to comply with 18 U.S.C. § 3109 compels suppression of any evidence seized during the search. In both Miller and Sabbath the Court emphasized that 18 U.S.C. § 3109 was merely the codification of the common law rule which required officers of the law to give notice of both their authority and their purpose before forcing entry to a man’s home. Procedures smacking of Gestapo tactics should have no place within the American system of law enforcement. There is no claim of “exigent circumstances” in the present case but the question is solely whether there was sufficient compliance with the statute to negate suppression.

The testimony on this issue at the pretrial hearing was somewhat contradictory. The appellants attempt to cast doubt upon the testimony of some of the agents as to what they did or did not do; however, we must look at the evidence in the light most favorable to the government, leaving the determination of credibility to the district court.

The Hibmas arrived home at approximately 11:30 p. m. At approximately the same time, if not somewhat before, Agent Peoples arrived with the search warrant. The house itself had been under surveillance since at least 6 p. m. that day. There were 14 persons in the raiding party, 3 of whom were government chemists who were to examine the evidence seized. After the Hibmas entered the house, the agents waited and, when the house was completely dark at about midnight, they split into groups and at a prearranged time began to knock at each of the house’s three doors. At trial both sides seem to have agreed that the front door was the first one broken open. As to that door, Agent Skaggs testified that he thought he heard movement inside before he knocked and that he definitely heard a dog running and barking inside after he knocked. He stated that he was unable to find the doorbell and so knocked loudly, at the same time announcing his authority and purpose. He then knocked again and repeated his announcement. After waiting about 30 seconds without hearing any response, he kicked the door in. During the time he was knocking, he was unable to hear any other agents knocking or announcing their authority and purpose.

The testimony of the other agents was similar to that of Agent Skaggs, except that it appears that Agent Thompson, who was assigned to the basement door, waited approximately a minute and a half to two minutes before he broke in the door.

Both Hillary and George Hibma testified that they did not hear any knocking or announcements. In fact, they were both in bed when they heard the dog bark. Appellant Hibma then went to look at the front door and when he saw the people congregated outside his front door he started to return to the bedroom to put on some clothes. At this point the door was kicked in.

We have no way of knowing whether the district court gave any credence to the testimony of Hibma and his wife; however, for the purpose of this appeal we must take it that the agents did announce their authority and purpose. Thus, United States v. Likas, 448 F.2d 607 (7th Cir. 1971), is clearly distinguishable. The real issue involved in this appeal is whether or not they had been legally “refused admittance” before they forced open the doors.

It is not necessary that the agents wait until the occupants of a house have affirmatively or articulately refused them entrance before they can break in. “Such refusal is present where it can reasonably be inferred from the actions or inaction of the occupants of the premises to be searched.” United States v. Augello, 368 F.2d 692, 694 (3d Cir. 1966), vacated on other grounds, 390 U.S. 200, 88 S.Ct. 900, 19 L.Ed.2d 1036 (1968). In Augello, the federal officer knocked on the front door and announced his purpose, at which point the defendant’s sister went running toward the rear of the house yelling the appellant's name, the very person for whose arrest the officers had a warrant. The court found these facts sufficient to justify an inference of refusal of admission.

The cases involving implied or inferred refusal based solely on failure of the occupants to respond to the announcement of authority and purpose provide less clear guidelines. The Second Circuit summarily approved breaking in after agents had waited a “minute or two, maybe more,” in United States v. Viale, 312 F.2d 595, 602 n.6 (2d Cir. 1963), cert. denied, 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199. Judge Stevens set forth some aspects of the issue in United States v. Pratter, 465 F.2d 227, 230-231 (7th Cir. 1972):

“The statute applies to a critical situation which is fraught with danger for the entering officers as well as the occupants of the dwelling. Prompt action and surprise may be necessary to forestall escape, the destruction of evidence, or even violence; yet prompt action and surprise may also precipitate such consequences. In short, the execution of a warrant is a job for a professional, trained both to perform his mission and to heed the statutory command to show a decent respect for the privacy of the citizen before bursting into his home.” (Footnote omitted.)

Applying the above principles to the facts before us, it appears that the agents did not violate § 3109 when they forced open the doors to the Hibma house. We particularly note that both Hibmas had time to move about the house after the happening of what could reasonably be assumed was the knocking and announcing. The fact that Hibma chose to return to the bedroom in order to get dressed does not rebut the inference that the agents had waited a sufficient amount of time to allow someone to answer the knock if the occupants intended to answer it at all. We also note that other courts have upheld searches after the officers waited approximately a minute before forcing the door, e. g., United States v. Woodring, 444 F.2d 749, 751 (9th Cir. 1971).

Appellants emphasized on this appeal that many of the chemicals found in the Hibma basement had recognized legal uses. We may safely assume that if time had permitted the destruction of key chemicals, and destruction had in fact followed, the above contention as to the remaining innocuous ones would have been asserted here even more vigorously. One of the basic purposes, of course, for the law permitting this type of invasion is to avoid the possibility of the destruction of evidence of criminal activity.

Finally, appellants contend that even if the evidence was properly seized, the government failed to present sufficient evidence to show that the appellants had actually attempted to make the illegal substance. Appellants point to the lack of a power supply to run the pump as well as the fact that all of the chemicals were in a sealed and unopened condition.

In essence, appellants contend that at most they were only preparing to manufacture and that this is insufficient under the law to constitute an attempt to manufacture, with which they were charged in the indictment. While it seems to be well settled that mere preparation is not sufficient to constitute an attempt to commit a crime, 22 C.J.S. Criminal Law § 75(2)b, at 230 et seq., it seems equally clear that the semantical distinction between preparation and attempt is one incapable of being formulated in a hard and fast rule. The procuring of the instrument of the crime might be preparation in one factual situation and not in another. The matter is sometimes equated with the commission of an overt act, the “doing something directly moving toward, and bringing him nearer, the crime he intends to commit,” 22 C.J.S., supra at 231. “To manufacture” could for our present purposes be reasonably defined as a process of combining ingredients to make a new product. The process could not occur unless the necessary ingredients were assembled. Arguably once the process of putting two ingredients together commenced there would be in existence a process of manufacturing even before the finished product emerged. In such event, it could be said that there was no longer an attempt to manufacture but an actual manufacturing. We do not need to decide, however, whether the finished product must have been realized for manufacturing as such to exist, for here, in our opinion, the steps went beyond mere preparation.

The testimony indicated that the chemicals in the basement were sufficient to synthesize DMT. As to the allegedly missing items of equipment, although a pump would have been useful for speeding the process and thereby obtaining a purer product, this was not deemed necessary. As to the lack of a source of heat, the appellants’ own expert witness testified that even a candle would be sufficient. Nor is the fact that no formula showing how to synthesize DMT was found on the premises sufficient to undercut the holding that an attempt to manufacture had legally materialized. This was not a situation of playing with a juvenile chemistry set. The preparations had progressed to the level of an attempt. See United States v. Coplon, 185 F.2d 629, 633 (2d Cir. 1950), cert. denied, 342 U.S. 920, 72 S. Ct. 362, 96 L.Ed. 688 (1952).

For the reasons hereinbefore set forth, the judgment of the district court is affirmed.

Affirmed.

SWYGERT, Chief Judge

(dissenting).

This case, we are told, may be decided “by analogy to the cases considering the sufficiency of affidavits which rely on tips from informers.” I fail to perceive a reason for this. No contention is made that an informant played a part in providing the information set forth in the warrant affidavit; indeed, mention is made of “reliability” and “credibility” only in connection with Government Agent Peoples, who, being the warrant affiant, was not an informer as I understand the term. To class the informer cases as inapposite, however, is not to say that no law bears on the topic. Quite to the contrary, numerous cases of the Supreme Court have dealt with precisely the issue before us. On their authority, I submit that the decision made today is plainly in error.

It is a proposition long settled that a warrant may not issue upon a sworn allegation that an officer “has cause to suspect and does believe” that illegal activity is taking place upon specified premises. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933). More must be alleged:

Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough. 290 U.S. at 47, 54 S.Ct. at 13.

This mandate exists to insure that the inference of probable cause from facts known to an officer be drawn by a neutral and detached magistrate rather than the officer himself, “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L. Ed. 436 (1948). Where an officer has personally uncovered the facts upon which he grounds his request for a warrant, the law requires an affirmative sworn allegation that he speaks with personal knowledge of the matters set forth in his affidavit. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). When others have provided him, wholly or in part, with information detailed as hearsay in his affidavit, additional data must be presented. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 27 L.Ed.2d 637 (1969). As was stated in a narcotics case:

Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was “credible” or his information “reliable.” Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The informant must have firsthand knowledge of the illegal transaction and the officer must vouch for his credibility. But the cases have never held that the officer must vouch for his own credibility or obtain an independent verification of his reliability.

Nevertheless,, the majority opinion is replete with references to a duty incumbent upon Agent Peoples “to support the credibility and reliability” of the conclusory statement of offense made by Peoples in what the majority terms the “first affidavit.” This is plainly a bootstrap technique. By grafting a credibility requirement onto the personal knowledge requirement of Giordenello, the majority impermissibly dilutes the factual showing long required of the Government when it seeks a search warrant. The Government, it is said, need allege only a few of the facts upon which it bases a claim of illegal activity; if these facts tend in some manner to support a conclusory and general allegation of crime made by the government agent in the same affidavit, credibility of the affiant has been shown and the conclusory allegation is to be taken at face value. This is a logical feat that will not bear muster. The credibility of a police officer is irrelevant in this context. History has taught that conclusory statements made by law enforcement agents are presumptively incredible; the agents must adduce facts and, while they may indicate their conclusions, must leave to a magistrate the final say on probable cause. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933).

The sole question we must decide is whether the papers placed before the magistrate set forth facts sufficient to support a finding of probable cause. The majority divides these papers into two groups: the first page comprises the “first affidavit,” the remainder makes up the “second affidavit.” By so doing, it may be inferred that the majority views each as containing factual matter relevant to the general allegation of wrongdoing made on the first page. I disagree. The “first” affidavit is the general allegation of wrongdoing and nothing more. This is plain on its face. After describing the suspect premises and listing the chemicals involved in the supposed attempt to manufacture DMT, the affidavit continues:

And [the affiant represents] that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

See Attached Affidavit

The “Attached Affidavit” is, of course, the “second” affidavit.

The conclusion is inescapable that the warrant stands or falls on the factual allegations of Agent Peoples set out in the “second” affidavit. Given this view, even the majority may agree that the warrant must fall. I would like, nonetheless, to develop this conclusion. Four chemicals are mentioned in the second affidavit. Three are innocuous solvents. The last, lithium aluminum hydride, is at worst a “red flag” meriting suspicion. United States v. Failla, 343 F.Supp. 831 (W.D.N.Y.1972). Expert witnesses for both the defendant and the Government agreed that DMT could not be manufactured from these four chemicals, in direct contradiction to the representation in the affidavit that the chemicals were “the essential precursors and reagents necessary to produce the Schedule I Controlled Substance Dimethyltryptamine.” No mention is made of any other chemicals, much less that other chemicals were observed to enter Hibma’s house. The affidavit, moreover, fails to reveal even slightly suspicious conduct on the part of any defendant. For all the magistrate knew, no fictitious names were employed, no activity was observed at unusual hours, and no other indica of guilt or clandestine activity were seen to occur. See United States v. Moore, 452 F.2d 569 (6th Cir. 1971). The case, I submit, is essentially on all fours with United States v. Failla, 343 F.Supp. 831 (W.D.N.Y.1972), insofar as that case dealt with the issue of probable cause.

I would therefore hold that the evidence obtained by the search warrant should have been suppressed and reverse the convictions.

APPENDIX TO OPINION OF SWYGERT, C. J., DISSENTING

UNITED STATES DISTRICT COURT for the Northern District of Illinois

Magistrate’s Docket No.......

Case No. 5310

United States of America vs. A single story' single family frame house covered in false yellow brick siding and having a concrete block foundation, known as 436 West 118th Street being the second house west of the intersection of 118th St. & Eggleston Ave located on the north side of 118th St.

Affidavit For Search Warrant

BEFORE

Name of Magistrate

219 South Dearborn Chicago, Illinois

The undersigned being duly sworn deposes and says:

That he (is positive) that (on the premises known as)
A single story single family frame house covered in false yellow brick siding and having a concrete block foundation, known as 436 West 118th Street being the second house west of the intersection of 118th Street and Eggleston Avenue located on the North side of 118th Street'.

the Northern District of Illinois there is now being concealed certain property, namely 1000 grams lithium aluminum hydride, 1000 grams methanoyl, 1 gallon acetone, 6 pounds of ethyl ether, 1 pint tetrahydrofuran, 1 ounce indole crystal, 25 grams oxayl chloride, 1 gallon renzine petrol, 1 quart petroleum ether, 5 pounds sodium sulfate, 1 quart chloroform spectro, 1 pound sodium-hydroxide, 1 pound aluminum mesh and all other fruits and instrumentalities of the crime of possession of a schedule one controlled substance, Title 21 U.S.C. § 841(a)(1), which are precursors and reagents of a schedule 1(c) controlled drug and the possession of which is illegal pursuant to Title 21 U.S.C. § 841(a)(1) & (2) when possessed with the intent to manufacture.

is evidence of the crime of possession of a Schedule one Controlled Substance, Title 21 U.S.C. § 841(a)(1).

And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows:

See Attached Affidavit.

Sworn to before me, and subscribed in my presence,

John T. Peoples,

Special Agent, BNDD

November 5, 1971

STATE OF ILLINOIS 1 COUNTY OF COOK J SS

AFFIDAVIT

JOHN T. PEOPLES, Special Agent, Bureau of Narcotics and Dangerous Drugs, being duly sworn on oath deposes and says as follows:

1. He is a Special Agent of the Bureau of Narcotics and Dangerous Drugs and that in the course of his duties he was assigned to conduct an investigation concerning the order of precursors and reagents of controlled drugs used for the production of a specific Schedule I Controlled Drug, Dimethyltryptamine.

2. That he has been informed by Darrell Skaggs, Special Agent, Bureau of Narcotics and Dangerous Drugs, that a person named Robert ROTHROCKS had ordered from a chemical company, VENTRON CORPORATION, Beverly, Massachusetts, 1000 grams of lithium aluminum hydride and that ROTH-ROCKS requested that it be sent to 10727 South Prairie and attached a telephone number which could be called in order to insure delivery of the chemical. This number was 841-1795.

3. A check of the telephone records of Illinois Bell Telephone revealed that the telephone subscriber was Harold ROTHROCKS, 14518 South Kenwood, Dolton, Illinois.

4. Affiant was further advised by Special Agent Darrell Skaggs that on November 4, 1971, Agent Skaggs attempted to deliver the above described chemical to 10727 Prairie with negative results. Special Agent Skaggs advised affiant that he was disguised as a United Parcel Service delivery man at the time of the attempted delivery.

5. That Special Agent Skaggs then called the above telephone number and advised the party answering the telephone, who identified himself as Robert ROTHROCKS, that an attempted delivery of the package had been made but that no one was present at 10727 Prairie by the name of Robert ROTHROCKS and that Special Agent Skaggs would not deliver the package to anyone but Robert ROTHROCKS.

6. Special Agent Skaggs further advised affiant that Robert ROTHROCKS then told him to leave the package with Robert A. NORIEKIS at the 10727 Prairie address on November 5, 1971 and indicated to Special Agent Skaggs, that he, Robert ROTHROCKS, would be present to claim the package.

7. On November 5, 1971, Special Agent Skaggs delivered the package of chemicals to 10727 Prairie to 2 individuals identifying themselves as Robert NORIEKIS and Robert ROTHROCKS at approximately 10:45 a. m.

8. Prior and subsequent to the delivery of the package surveillance was conducted on the 10727 Prairie address and the vehicle of Robert ROTHROCKS by your affiant, and other Special Agents of the Bureau of Narcotics and Dangerous Drugs, and during this surveillance the individual known as Robert ROTH-ROCKS came out of the dwelling located at 10727 Prairie carrying the package which had just been delivered and a large shopping bag.

9. Thereafter, this individual known as Robert ROTHROCKS entered a 4 door Plymouth automobile, bearing Illinois license plate number HE 7831 and drove said automobile to 436 West 118th Street, Chicago, Illinois, and after arriving, got out of the car and carrying the package and shopping bag, entered the bungalow house at this address.

10. A check of license plates of a motorcycle parked at the rear of 436 West 118th Street, bearing license number S7581, revealed that it was registered to a George C. HIBMAN, who lived at 436 West 118th Street, Chicago, Illinois.

11. A short while later Robert ROTHROCKS left the 436 West 118th Street address and drove to 1405 North LeMoyne, the location of FISHER SCIENTIFIC COMPANY, a chemical company, where he was observed to pick up 1 gallon of methanoyl, 1 gallon of acetone, 5 pounds of ethyl ether. These chemicals were delivered to him by Special Agent Thomas L. Thompson, Bureau of Narcotics and Dangerous Drugs, who was disguised as an employee of FISHER SCIENTIFIC COMPANY.

12. Thereafter Robert ROTHROCKS drove directly back to 436 West 118th Street where he left his automobile and entered, carrying the packages of chemicals.

13. That the above described chemicals are known to your affiant as the essential precursors and reagents necessary to produce the Schedule I Controlled Substance Dimethyltryptamine.

14. That based upon the foregoing information your affiant believes that probable cause exists for the issuance of a search warrant for the above described premises.

John T. Peoples

      . While special findings of fact are not required by Rule 23, Fed.R.Crim.P., in the absence of a request, their lack in the case of close or questionable determinations deprives an appellate court of knowledge of the basis on which the issue or issues were decided.

      . Appellants also contend that the search warrant itself was insufficient because it failed to allege possession of any illegal drug. The chemicals specified were precursors of DMT and the allegations are sufficient under Rule 41(b)(2), Fed. R.Crim.P.

      . 18 U.S.C. § 3109 provides :
      “The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.”

      . For example, there was only one ounce of indole in the basement. A defense expert testified that this was an essential ingredient of DMT.

      . Further, the evidentiary aspects of the lack of power for the pump is something less than clearly persuasive. This was developed on ci'oss-examination of a government forensic chemist who, when he was asked as to what type of power supply or source would be needed, replied, “I am not an expert, but it appears that it would need an electrical source of some sort because of the wires here.” He further said in response to a leading question that it would have to be some type of electrical source other than plugging it into a wall socket. We are left in the dark as to whether the pump required a heavier voltage than was available in the house or whether an item familiar to every householder, the heavy duty extension cord, could have been dropped down the basement stairway.

      . Judge Pell writes that the informer cases provide support “in part” for the conclusion that the warrant was properly issued. I am unable to discern any supportive rationale separate from the informant analysis.

      . Agent Skaggs, whom Peoples repeatedly mentions in his affidavit, could conceivably fit that category. What he reported to Peoples appears entirely as hearsay in the affidavit. But the affidavit does mention that Skaggs was an agent of the BNDD, an allegation which may act to establish Skaggs’ reliability and satisfy the requirement of the informer cases. United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; 8A J. Moore, Federal Practice ¶ 41.04 [3] (1972).

      . See Appendix to this dissent.

      . The first page does not reveal whether:
      [T]he affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant’s belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1957).

      . They state:
      If the magistrate had relied only upon the second affidavit, the validity of the issuance of the warrant would have been questionable.
      I am perplexed, however, by another statement:
      A magistrate could conclude that one who had assembled or possessed those [13] chemicals [needed to make DMT] was in fact doing so with the intent to manufacture a controlled substance even-though . . . [the first affidavit] did not include every essential chemical. (my emphasis).
      The sentence appears to contain its own contradiction. If it does not, and the thirteen chemicals listed on the first page do not comprise all of the materials essential for DMT manufacture, I read it to hold that the presence of all chemicals essential to such manufacture need not be alleged in even a conclusory fashion prior to obtaining a valid warrant. I can scarcely agree, particularly where the affidavit fails to set forth suspicious conduct on the part of defendants.


source: Caselaw Access Project

author: LUMBARD, Circuit Judge:

license: Public Domain

text:
    Frank HOWEY, Plaintiff-Appellee, v. UNITED STATES of America, Defendant and Third-Party Plaintiff-Appellant, v. RADIO CORPORATION OF AMERICA, Third-Party Defendant-Appellee, v. UNIVERSAL SERVICES, INC., Third-Party Defendant-Appellee.
    No. 71-2384.
    United States Court of Appeals, Ninth Circuit.
    July 3, 1973.
    As Modified July 30, 1973.

      Ronald R. Glaney (argued), Dept, of Justice, Civil Div., Washington, D.C., E. Grey Lewis, Acting Asst. Atty. Gen., G. Kent Edwards, U. S. Atty., Anchorage, Alaska, Morton Hollander, Kathryn J. Baldwin, Atty., Dept, of Justice, Civil Div., Washington, D.C. for appellant.
    Richard 0. Gantz (argued), of Hughes, Thorsness, Lowe, Gantz & Clark, Jesse C. Bell (argued), of Atkinson, Wade, Conway & Young, Anchorage, Alaska, for appellees.
    Before LUMBARD, BROWNING, and DUNIWAY, Circuit Judges.

       The Honorable J. Edward Lumbard, Senior Circuit Judge for the Second Circuit Court of Appeals, sitting by designation.

   LUMBARD, Circuit Judge:

Frank Howey sued the United States pursuant to the Federal Tort Claims Act in the United States District Court for Alaska. Judge James A. von der Heydt, sitting without a jury awarded him damages of $622,617.64. After the trial the government and Howey settled for $250,000. However, before the trial the government had filed third party complaints against Radio Corporation of America (RCA) and Universal Services, Inc. (Universal Services) for indemnification. On the second day of the trial, which commenced on November 2, 1971, and before any witnesses were called, the government moved for leave to amend its third party complaint against RCA. The motion was denied. After the trial the district court held that the government was not entitled to indemnification from Universal Services, or from RCA under the government’s original third party complaint. The government appeals only from the adverse rulings concerning the third party defendants.

The accident giving rise to Howey’s claim occurred on March 15, 1965 at a government owned communication facility in Aniak, Alaska. This site was part of the overall White Alice communications system operated throughout Alaska. There are about 40 sites similar to the one at Aniak. The facility had been constructed by a contractor pursuant to an Air Force contract, and accepted by the government in 1956. After accepting the site the government contracted with Federal Electric Corporation to operate the facility. Beginning in 1962 RCA began to operate White Alice sites pursuant to a contract with the government. At the time of the accident, RCA had between 400 and 500 employees operating the White Alice system. According to the contract between RCA and the government, RCA assumed the responsibility for the custody, operation, and maintenance of the communication sites. The government owned the sites, but the daily operational control of the premises was vested in RCA. RCA had entered into a subcontract with Universal Services, who agreed to supply personnel to RCA for the operation of the facility. Howey was one of those assigned by Universal Services to work for RCA.

Federal Aviation Administration regulations required the antenna towers at the Aniak facility to be illuminated by red lights. On March 14, 1965 the plaintiff was ordered by his supervisor, an RCA employee, to replace one of the antenna lights. The antenna tower was not properly constructed in that one climbing the tower to replace a light could not utilize adequate safety devices. A person ascending to the antenna lights was required to cross on a six inch angle iron beam without guide or guardrails. Because of this unsafe condition personnel in changing the lights used an alternative route by scaling the back of the antenna. On March 15, 1965, Howey after climbing the tower and attempting to change the light, slipped while descending and fell some ten feet, landing on a platform located below the antenna lights. The district judge found that Howey had suffered back injuries and contusions, and later developed a psychiatric reaction to the fall. He further concluded that this accident rendered him totally and permanently disabled from gainful employment.

Howey sued both the United States and RCA in separate actions. The plaintiff and RCA settled their dispute before the instant case against the government came to trial. In Howey’s action against the United States, the latter filed third party complaints against RCA and Universal Services. The pertinent part of the third party complaint against RCA, filed on November 10, 1966, stated:

Defendant, UNITED STATES OF AMERICA, is entitled to recover from RADIO CORPORATION OF AMERICA, all or part of what Plaintiff FRANK W. HOWEY may recover from the UNITED STATES OF AMERICA in that RADIO CORPORATION OF AMERICA agreed in a maintenance contract with the UNITED STATES OF AMERICA to maintain comprehensive general liability (bodily injury) insurance to cover such injuries as alleged by Plaintiff.

On the second day of trial the government moved for leave to amend this third party complaint against RCA to allege specifically a claim for contractual and common law indemnity and/or contribution. Leave to amend was denied, and the district court limited its consideration of the government’s rights against RCA to RCA’s compliance with its contractual obligation to procure and maintain comprehensive liability insurance. On this claim the trial court found in favor of RCA.

The government’s third party complaint against Universal Services was likewise dismissed. The government sought indemnity from Universal Services based on the following clause of the subcontract between RCA and Universal Services:

Subcontractor agrees to hold RCA and the Government safe and harmless from any and all claims of whatever nature which may arise as a result of Subcontractor performance hereunder, forever.

I

The first issue is whether the district court abused its discretion in refusing to permit the government to amend its third party complaint against RCA. In light of the strong policy to permit the amending of pleadings, we conclude that the district court did abuse its discretion.

The Supreme Court has instructed the lower federal courts to heed carefully the command of Rule 15(a), F.R. Civ.P., by freely granting leave to amend when justice so requires. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); United States v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L. Ed.2d 8 (1960). The purpose of pleadings is “to facilitate a proper decision on the merits,” Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), and not to erect formal and burdensome impediments in the litigation process. Unless undue prejudice to the opposing party will result, a trial judge should ordinarily permit a party to amend its complaint. See United States v. Hougham, supra; Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 F.2d 380 (2d Cir. 1968); Breier v. Northern California Bowling Proprietors’ Ass’n., 316 F.2d 787 (9th Cir. 1963); 3 Moore’s Federal Practice, § 15.08.

In sustaining RCA’s objection to an amendment of the complaint, the district judge did not speak in terms of undue prejudice to RCA. Rather he simply observed that the motion to amend, coming several years after the case had been set down for trial, was not a timely filing of an amendment to a third party complaint. After the trial the judge denied the government’s motion for a new trial and noted:

The Government was unable to establish any reason or excuse for its neglect in failing to bring a timely motion to amend its complaint. The amendment sought was one of considerable substance. The granting of defendant’s motion to amend after commencement of trial would have severely prejudiced defendant RCA. It appeared impossible for RCA to prepare a defense during the course of the trial to the government’s newly asserted claim. The only alternative available was to continue an overdue trial in progress, the witnesses and all parties in attendance.

Several factors are usually used as criteria to determine the propriety of a motion for leave to amend. These criteria include undue delay, bad faith, futility of amendment, and prejudice to the opposing party. While all these factors are relevant, the crucial factor is the resulting prejudice to the opposing party.

The government’s motion to amend should have been granted as there was no showing that RCA would have been prejudiced thereby. While it is true that the motion was made five years after the third party complaint had been filed, we know of no case where delay alone was deemed sufficient grounds to deny a Rule 15(a) motion to amend. Where there is a lack of prejudice to the opposing party and the amended complaint is obviously not frivolous, or made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny such a motion. The purpose of the litigation process is to vindicate meritorious claims. Refusing, solely because of delay, to permit an amendment to a pleading in order to state a potentially valid claim would hinder this purpose while not promoting any other sound judicial policy. Only where prejudice is shown or the movant acts in bad faith are courts protecting the judicial system or other litigants when they deny leave to amend a pleading.

Here the trial judge did not find, and there is no allegation that the government’s motion was made in bad faith even though the government gave no reason for its lengthy delay. We discern from the record that the district judge placed great weight on delay as a factor in his decision, and placed upon the government the burden of establishing a reason for the delay. We agree with the Second and Eighth Circuits that the mere fact that the government could have moved at an earlier time to amend does not by itself constitute an adequate basis for denying leave to amend. See Hanson v. Hunt Oil Co., 398 F.2d 578 (8th Cir. 1968); Middle Atlantic Utilities Co. v. S.C.W. Development Corp., 392 F.2d 380 (2nd Cir. 1968).

The record fails to show any basis for finding that the proferred amendment would have unduly prejudiced RCA. The finding of prejudice made after the trial, and not when the motion was originally denied, was phrased in conelusory language, except for the additional assertion that “(i)t appeared impossible for RCA to prepare a defense during the course of the trial to the government’s newly asserted claim.”

On the contrary, the history of the litigation shows that RCA was fully prepared to litigate the substantive issues raised by the amended third party complaint. RCA had participated in litigation arising from the accident from the outset. Howey had sued RCA for negligence. RCA’s preparation of a defense against plaintiff’s claims necessarily included a factual and legal investigation covering the same area which would be explored by RCA in defending against the amended third party complaint. Furthermore, RCA participated in discovery. The company submitted in 1967 a pretrial memorandum which included a list of prospective witnesses, a list of contested legal and factual issues, and a memorandum of law. The contested issues and the memorandum are similar, if not identical, to ones RCA would have submitted in the third party dispute pursuant to the proposed amended complaint. Thus, RCA was prepared to contest the indemnification issues raised in the United States’ proposed amended complaint. At a minimum the trial judge should have inquired as to whether further discovery was still needed. If extensive discovery was still needed, then the court’s denial of the government’s motion for leave to amend might have been correct.

Moreover, the existence of the original third party complaint seeking to hold RCA liable to the government for all or part of what the plaintiff might recover from the United States at a minimum placed RCA on notice that the government was seeking a form of indemnification from RCA. By its proposed amended complaint, the government asked the court to consider its common law and other contractual rights to indamnification as an additional basis for its substantive claim to relief.

This decision, of course, does not intimate any opinion as to the disposition of the indemnification issue. We only believe that the United States, like any other party to a civil suit, is entitled to a hearing on a possibly meritorious claim. In the absence of any showing of improper prejudice to RCA, or bad faith by the government, it was an abuse of discretion to deny the motion for leave to amend.

II

The district court acted properly in its disposition of the government’s third party complaint against Universal Services. The contractual provision that the “subcontractor agrees to hold RCA and the government safe and harmless from any and all claims of whatever nature which may arise as a result of subcontractor performance thereunder” did not include and was not intended to include and “hold harmless” provisions for acts of negligence by the United States.

In a Federal Tort Claims Act suit, the Supreme Court recently articulated the following rule for construing alleged indemnification clauses:

a contractual provision should not be construed to permit an indemnitee to recover for his own negligence unless the court is firmly convinced that such an interpretation reflects the intention of the parties. United States v. Seckinger, 397 U.S. 203, 211, 90 S.Ct. 880, 885, 25 L.Ed.2d 224 (1970).

A court should not permit a non-negligent party to indemnify the negligent party unless the contract evinces in unequivocal terms the parties intention to reach such a result. See 41 Am.Jur.2d Indemnity, § 15 (1968). In fact, this court has intimated that in certain contexts an arrangement requiring indemnification for the negligent acts of another might be invalid and unenforceable as against public policy. Northwest Airlines, Inc. v. Alaska Airlines, Inc., 351 F.2d 253 (9th Cir. 1965), cert. denied, 383 U.S. 936, 86 S.Ct. 1068, 15 L. Ed.2d 853 (1966). We need not decide here whether the disputed clause violated public policy, since we reject the government’s preferred interpretation of that provision.

The contractual provision in dispute does not express a clear intent to require Universal Services to indemnify the government for the latter’s, or a third party’s, negligence. The word “indemnify” commonly used to express the legal relationship the government seeks to establish vis-a-vis Universal Services is lacking. The relevant language is contained in the contract under the heading “Insurance-Liability to Third Persons.” Universal Services procured the insurance required by the clause, and the coverage was approved as to type, form, and amount by the government. The placement of this controversial clause in the insurance section of the contract supports Universal Services’ assertion that the phrase “safe and harmless” applied only if the proper insurance was not procured.

The disputed clause could be given other interpretations. The parties may have intended it to mean that Universal Services would not seek indemnity from the government or RCA, or that if Universal’s own employees caused physical or property damage, Universal Services would be liable for the losses suffered. Furthermore, Universal Services contends that the clause should be read to hold it liable if a plaintiff’s injuries arise “as a result of subcontractor performance.” The injury here was caused by the performance of the government, RCA, or the original builder of the site. It did not arise from the subcontractor’s performance. We need not offer an authoritative interpretation of this contract clause. These alternative constructions support the view that, contrary to the government’s position, the clause in question can be given a realistic meaning without adopting the government’s broad interpretation.

Additionally, this is not a case where both the potential indemnitor and the indemnitee were negligent. See United States v. Seckinger, 397 U.S. 203, 90 S. Ct. 880, 25 L.Ed.2d 224 (1970); Unitec Corp. v. Beatty Safeway Scaffold Co., 358 F.2d 470 (9th Cir. 1965). The findings of fact and conclusions of law made below amply justify the conclusion that Universal Services was innocent of any negligence leading to the plaintiff’s accident. Universal Services had no actual or constructive knowledge of the dangerous condition at the site. The dangerous condition was in fact created before Universal Services entered into the contract with RCA.

We thus concur with the view adopted by the district court that the potential indemnitee has failed to prove that the clear intent of the parties was to hold an innocent subcontractor liable for the negligent acts of those who were in the best position to exercise the proper care needed to prevent this tragic accident.

Accordingly, we reverse the judgment dismissing the government’s third party complaint against RCA, and remand the case for a new trial on the government’s proposed amended complaint. We affirm the district court’s disposition of the government’s third party action against Universal Services.

Affirmed in part; reversed in part and remanded.

      . In addition to RCA’s alleged liability to the United States pursuant to the insurance provision of the contract, the amended third party complaint asserted that RCA was guilty of specific acts of negligence which proximately, immediately and directly caused plaintiff’s injuries. These alleged negligent acts or omissions included : RCA’s failure to take reasonable steps to assure the use by the plaintiff of safety belts, harnesses and lines; RCA failed to adopt policies and regulations or take steps needed to reasonably obtain compliance by its employees including the plaintiff in the performance of their duties under the contract; that on June 3, 1964, RCA was informed by one of its employees of the condition which caused the plaintiff’s injuries, and failed to take steps to correct the condition ; RCA knowing of the dangerous condition directed the plaintiff to expose himself to that condition and thereby causing his injuries; and that RCA failed to ascertain on March 15, 1965 whether additional conditions on the antenna in question existed due to inclement weather creating a further hazard to personnel engaged in climbing the antenna.

      . This circuit’s decision in Komie v. Buehler Corp., 449 F.2d 644 (9th Cir. 1971), upholding a lower court’s decision not to grant leave to amend indeed stressed the tardiness of the motion. However, prejudice to the opposing party was evident. There an employer moved to amend his answer to deny the existence of an agency relationship between the employer and a driver of the employer’s boat. In the employer's original answer he admitted that the boat was operated by his agent-Beelitel. This was done again in his “Uncontested Facts Deemed Material.” Clearly the party opposing the amendment would have been prejudiced by permitting the employer now to litigate an issue he had expressly conceded years ago. The situation in the instant case is not comparable.

      . “The mere fact that an amendment is offered late in the ease is, however, not enough to bar it; amendments may be offered at the trial, or even after reversal and remand.” 3 Moore’s Federal Practice, § 15.08, 0.835.

      . RCA admitted in its brief that it has participated in discovery and had prepared for trial. The record on appeal further indicates RCA’s participation in discovery. The record shows evidence of interrogatories, request for admissions, notice of depositions, and pretrial memoranda.

      . We do note, however, that Alaska law apparently bars contribution. See Alaska Code of Giv.Proc. § 09.10.010.

      . This disposition of the first issue raised by the government makes unnecessary any discussion of the government’s alternative assignment of error as to its claim against RCA. This argument contended that the district court erred in failing to consider the original third party complaint as a claim for indemnification against RCA, and for dismissing the third party complaint with prejudice.


author: PER CURIAM.

text:
    Harry William THERIAULT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Harry THERIAULT, Petitioner-Appellant, v. MOBILE CITY JAIL, Respondent-Appellee.
    Nos. 72-1712, 72-2897
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 27, 1973.
    Rehearing Denied Aug. 27, 1973.

      Vincent F. Kilborn, III, Mobile, Ala., Court-appointed for petitioner-appellant.
    C. S. White-Spunner, Jr., U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for the United States.
    Fred Collins, City Atty., Mobile, Ala., James H. Lackey, Deputy City Atty., William J. Baxley, Atty. Gen., Montgomery, Ala., for Mobile City Jail.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM.

Harry Theriault filed suit against the Mobile City Jail complaining of alleged inhumane conditions in the jail. After a non jury trial the district court concluded that Theriault’s claims were “without merit, frivolous and the evidence in support of them totally insufficient.” During the course of the hearing, Theriault was twice cited in contempt, once when he called a witness a “liar” and again when he told the district judge to “stick the whole G— d— hearing up your a — .” The district judge summarily sentenced him to thirty days’ imprisonment for the first contempt and to sixty days’ imprisonment for the second contempt. Theriault appeals from the denial of relief with respect to the jail conditions, and he appeals from the contempt citations. The two appeals were consolidated by this Court by order dated June 15, 1972. We affirm.

Theriault was incarcerated in the federal unit of the Mobile City Jail while he was being tried for escape, in violation of 18 U.S.C. § 751. This particular escape occurred several days after Theriault had been convicted for another escape from federal custody. He was convicted for the second escape as well. During the trial for the second escape, he was cited for contempt on numerous occasions for vilifying the district judge. We have affirmed both convictions and the contempt citations. Theriault v. United States, 5 Cir. 1970, 434 F.2d 212 (affirmed the conviction for the first escape, but remanded for resentencing), cert. denied, 404 U.S. 869, 92 S.Ct. 124, 30 L.Ed.2d 113 (1971); United States v. Theriault, 5 Cir. 1972, 467 F.2d 486 (affirmed the new sentence); United States v. Theriault, 5 Cir. 1973, 474 F.2d 359 (affirmed the contempt citation and the conviction for the second escape) .

In the present case, Theriault sued pursuant to the “Civil Rights Act,” presumably 42 U.S.C. § 1983, to relieve allegedly inhumane conditions in the Mobile jail. The district judge held a full hearing allowing Theriault, who represented himself, to interview various officials in the prison. The cross-examination which led to the contempt is set out in the margin. To dramatize his complaints at the jail, Theriault threw his food tray out of the cell, scattering food over the hallway. Then he jumped up on his wash basin and broke it from the wall. When a guard asked what was wrong, he responded that he was too good to eat that type of “slop.”

The district judge personally inspected the jail and found the building to be in good repair and all facilities to be in working order and clean. There was an aperture in Theriault’s cell for air and a light. It was “pleasant temperature-wise.” Theriault’s cell was in considerable disarray, but the district judge attributed the disarray and uncleanliness to his personal living habits. The menu for the day included beef stew, mustard greens, rice, cornbread, and turnover pies, which the district judge found to be “reasonably appetizing and well prepared.” The servings were sufficient to sustain a normal male. Clean linen and coveralls were furnished for the prisoners.

These conditions satisfy the “Regulations Governing Custody and Treatment of Federal Prisoners in Non-federal Institutions,” issued by the United States Department of Justice, and do not violate the Eighth Amendment’s prohibition against cruel and unusual punishments. Accordingly, the district judge properly denied Theriault’s claim for relief. See generally Patterson v. Hopkins, 5 Cir. 1973, 481 F.2d 640.

The district judge was justified in citing Theriault with contempt for calling the witness a “liar.” By representing himself, Theriault was entitled to as much latitude as is enjoyed by counsel vigorously espousing a client’s cause. See In re Little, 404 U.S. 553, 92 S.C. 659, 30 L.Ed.2d 708 (1972). But Theriault was not properly espousing his cause when he called the witness a liar. As the district judge observed, his “conduct constituted the implementation of a pre-conceived plan to emulate other disruptive trials and was a provocative deliberate and willful attack upon the administration of justice.”

With respect to Theriault’s personal abuse of the district judge in open court and the second contempt citation, we emphasize again what we said in the last Theriault contempt case involving the same district judge:

[W]e repeat our comment in another case involving this same defendant that “the careful, restrained, moderate and responsible way the Judge— who was not then, nor had he been, engaged in an embroilment or running controversy with Appellant — handled this situation which was then interfering with the efficient operation of the court comported with Illinois v. Allen, 1970, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 and Mayberry v. Pennsylvania, 1971, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532.”

United States v. Theriault, 5 Cir. 1973, 474 F.2d 359, 361.

Affirmed.

      . The first contempt occurred during the cross-examination of Mrs, Louise Hickman, as follows:
      CROSS-EXAMINATION BY MR. THERIAULT:
      Q. What kind of vitamins were asked from you by me?
      A. You requested a vitamin.
      Q. Do you recall me requesting any iron pills?
      A. Not this visit, you haven’t. You requested vitamins.
      Q. You have — or have you had a little triangular black pill that is called an iron pill?
      A. I have not.
      Q. You never had one, a triangular black pill?
      A. No.
      Q. And I would say you are a liar. THE COURT:
      All right. I hold you in contempt of Court for that remark. You are not on the witness stand.
      MR. THERIAULT:
      She gave them to me.
      THE COURT:
      We have no evidence—
      MR. THERIAULT:
      I don’t care what you—
      THE COURT:
      I sentence you to thirty days in jail; sucli sentence to run consecutively— MR. THERIAULT:
      You have already sentenced me— THE COURT:
      This morning I overlooked things that you have said and done, but you have no right to address a witness and call that witness a liar.
      MR. THERIAULT:
      If they are lying, I do. If I don’t then the system is wrong. She is lying. I said, “liar” again. Sentence me for that.
      THE COURT:
      Thirty days is enough to cover both of them.
      MR. THERIAULT:
      You didn’t want to have this hearing to begin with. You just did it because of reasons you and I only know of.
      THE COURT:
      Go ahead.
      MR. THERIAULT:
      Well,—
      THE COURT:
      This thirty days is to run consecutive to any sentence that I have heretofore imposed, or imposed in other cases. MR. THERIAULT:
      You are changing the sentence now. That’s not the way you said it a minute ago.
      THE COURT:
      Go ahead.
      The second contempt occurred later in the cross-examination of Mrs. Hickman : MR. THERIAULT:
      Number ten on this list says, “beef stew.” Would you tell us your definition of beef stew?
      THE COURT:
      Beef stew is a common thing.
      MR. THERIAULT:
      You are talking about a kind of beef stew. I am talking about a hash.
      THE COURT:
      That was not the question you asked. MR. THERIAULT:
      I asked her what her definition was of beef stew. She said I had a well-rounded menu. I want to know her definition of beef stew.
      THE COURT:
      Go ahead with some other questions, Mr. Theriault.
      MR. THERIAULT:
      You can stick the whole G__ d___ hearing up your a . .
      THE COURT:
      I hold you in contempt of Court— MR. THERIAULT:
      E___you and your contempt—
      THE COURT:
      Sixty days, and it is to be served consecutive to any previously imposed by this or some other Court. All right. You may come down.
      MR. THERIAULT:
      A hearing? You call this a hearing? THE COURT:
      All right. Take him away.

      . In one communication to tlie court, Theriault threatened: “Is it going to take another Attica, another ‘escape’, bloodshed? Wliat is it going to take, Mr. Pittman? You better do something, before defendant does.”


author: O’SULLIVAN, Senior Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John J. MARRA, Appellant.
    No. 72-2154.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1973.
    Decided July 24, 1973.

      John J. Raymond, Detroit, Mich., for appellant; Carl H. Wienberg, Ramond, Fletcher & Dillon, Detroit, Mich., on brief.
    Robert H. McKnight, Jr., Tax Div., Dept, of Justice, Washington, D. C., for appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, Robert H. McKnight, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief; Ralph B. Guy, Jr., U. S. Atty., of counsel.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

John J. Marra, M.D., was charged in a two-count indictment with violation of Title 26 U.S.C. § 7206(1) — making false income tax returns. Count I had to do with his return for the year 1965; Count II related to his return for the year 1966. He was convicted on Count I, and upon a jury’s inability to agree a mistrial was ordered as to Count II. Dr. Marra does not challenge the sufficiency of the evidence upon which he was convicted. He asks reversal of his conviction upon his claim that Honorable Fred W. Kaess, Chief Judge of the United States District Court for the Eastern District of Michigan, erred in denying two pretrial motions — one to dismiss the indictment, and the other to suppress, on Fifth Amendment grounds, whatever evidence he had furnished to agents of the Internal Revenue Service. These motions were renewed at the close of proofs in support of appellant’s then motion for a directed acquittal. They were again denied and the case was submitted to the jury.

We affirm the denial of the pretrial motions.

I. Motion to Dismiss

Count I of the Indictment charged:

“That on or about April 15, 1966, in the Eastern District of Michigan, JOHN J. MARRA, a resident of Lake Orion, Michigan, wilfully and knowingly made and subscribed a 1965 Federal Income Tax Return (IRS Form 1040), which was verified by a written declaration that it was made under the penalties of perjury, and which was filed with the District Director of Internal Revenue at Detroit, Michigan, and which tax return he did not believe to be true and correct as to every material matter: in that he reported Schedule C gross receipts of $54,742.59, interest income of $2,536.45, and Schedule C other business expenses • of $16,773.07, whereas, as he then and there well knew and believed, the correct amounts he should have reported were $78,330.58, $3,168.79, and $15,955.07 respectively; in violation of Section 7206(1), Title 26, United States Code.” Count II charged:
“That on or about June 1, 1967, in the Eastern District of Michigan JOHN J. MARRA, a resident of Lake Orion, Michigan, wilfully and knowingly made and subscribed a 1966 Federal Income Tax Return (IRS Form 1040) which was verified by a written declaration that it was made under the penalties of perjury and which was filed with the District Director of Internal Revenue at Detroit, Michigan, and which tax return he did not believe to be true and correct as to every material matter: in that he reported a $12,000.00 charitable contribution based upon a real estate appraiser’s report secured by false information (furnished by the defendant) when in fact he well knew and believed that the correct amount of the charitable deduction was substantially less; and in that he reported interest income of $1,396.48, well knowing and believing the correct amount of interest income was $3,282.47; in violation of Section 7206(1), Title 26, United States Code.”

Appellant’s motion to dismiss contained these averments:

“1. The indictment fails to state the particular act or acts charged with reasonable definiteness so as to enable the defendant to prepare his defense, and that it is so vague, indefinite and uncertain that it does not inform the defendant of the nature or cause of the accusation made against him, and in the foregoing respects does not comply with the Fifth and Sixth Amendments to the Constitution of the United States.
“2. The indictment does not contain a plain, concise and definite written statement of the essential facts constituting the offense charged, and, therefore, does not comply with Rule 7(c) of the Federal Rules of Criminal Procedure.”
“3. In Count One, the Indictment purports to allege that defendant willfully and knowingly made and subscribed a 1965 Federal income tax return which he did not believe to be true and correct as to every material matter. This merely states a conclusion rather than the essential allegations of fact which constitute the alleged offense, in that:
,a. No facts are stated which allege that defendant signed a completed tax return (when in fact the Agents knew or should have known the defendant signed a blank tax return).
b. The defendant has, by affidavit attached, set forth the facts proving the signing of two blank tax return forms, an extra copy of which was part of the files shown to the Agents by the defendant’s accountant, Angus Campbell (copy of said blank return attached).
“4. In Count Two, the Indictment alleges in vague and uncertain terms that the defendant furnished false information to an appraiser. This is a mere conclusion. No facts are alleged which would constitute the elements of an alleged offense or apprise the defendant sufficiently to enable him to prepare a defense.
“Likewise in Count Two the indictment alleges that the defendant did not report all of this interest-income. “In his attached affidavit, the defendant denies that he gave any such alleged false information to the appraisers and in substantiation thereof attaches a copy of said appraisal which states as follows:
a. That the appraisers made a careful inspection of the subject property, noted and analyzed all of the determining factors, both favorable and unfavorable, that indicate value, and then arrived at the opinion that the fair market value of the property as of January 6,1966 was $12,000.00.
b. That the appraisers were furnished a survey of the property and the dimensions and legal description used in the appraisal were taken off this survey made on October 25, 1965 by Kieft Engineering of Clarkston, Michigan.”

The factual material of Dr. Marra’s affidavit supporting the motion said:

“In April 1966, while discussing my income tax matters with my accountant, Angus Campbell, he requested that I sign two blank forms 1040, Federal income tax forms, since there was not sufficient time for him to finish the return and send it to me for signature. Mrs. Marra and I signed two such blank forms and returned them to Mr. Campbell.
“After delivering the signed blank income tax forms to Mr. Campbell, I did not meet, or discuss the contents of my 1965 Federal income tax return, with Angus Campbell.
“To the best of my knowledge and belief the finished product, that is the completed 1965 Federal income tax return was mailed from the office of Mr. Campbell.”

The District Judge held that the indictment was legally sufficient. His order recites:

An indictment does not have to be put in the most definite and certain terms possible. An indictment is sufficient if it (1) alleges all of the elements of the offense; (2) fairly informs the defendant of what he must be prepared to meet; (3) protects him against double jeopardy; and (4) enables the Court to determine whether the facts alleged are sufficient in law to withstand a motion to dismiss or to support a conviction. Hagner v. U. S., 285 U.S. 427 [, 52 S.Ct. 417, 76 L.Ed. 861] (1932); U. S. v. Levinson, 405 F.2d 971 (6th Cir. 1968).”
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“Thus, the Court finds that the indictment is neither vague nor indefinite. An offense is charged, and defendant is well aware of the nature of the offense and the underlying transactions which form the basis for the charge. Therefore, the indictment fully complies with all of the requirements of the Fifth and Sixth Amendments to the Constitution of the United States and Rule 7(c) of the Federal Rules of Criminal Procedure.”

A reading of the indictment makes clear the correctness of the foregoing.

In dealing with the factual and defensive allegations of appellant’s affidavit supporting his motion, the District Judge said:

“Paragraphs 3a., 3b., 4a., and 4b. of defendant’s motion raise factual issues. A trial is the appropriate place to resolve these issues. A motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence. The sole function of this type of motion is to test the sufficiency of the indictment to charge an offense. U. S. v. Sampson, 371 U.S. 75 [, 83 S.Ct. 173, 9 L.Ed.2d 136] (1962) ; U. S. v. Luros, 243 F.Supp. 160 (N.D.Iowa, W.D.1965); U. S. v. Winer, 323 F.Supp. 604 (E.D.Pa. 1971). The Court should not consider evidence not appearing on the face of the indictment. Winer, supra.

The District Judge’s recited reasons for his ruling are so clearly correct that we need not support them with our own dissertation.

At trial, Dr. Marra’s accountant testified that on the evening of April 14th he had already prepared a pencil draft of the proposed return and went over it with Dr. Marra who either approved it or did not question its accuracy. The accountant or his secretary typed in all of the material from the pencil draft onto the 1040 return already signed by the doctor and his wife. This was sent in to the Internal Revenue Department as appellant’s tax return for 1965.

Appellant does not question the sufficiency of this evidence to warrant his conviction under Count I, and we mention it only as supporting the propriety of the District Judge’s refusal to consider Dr. Marra's ex parte affidavit in denying the motion to dismiss.

II. Motion to suppress.

Appellant’s brief to us, as a statement of issue presented, says:

“1. Whether the lower court erred in denying the Defendant’s motion to suppress evidence when the facts upon which the decision was based clearly established that the Defendant had been misled by the Revenue Agent into believing that a civil audit only was being conducted.”

The basic charges of his Motion to Suppress were:

“1. During the period from on or about February 19, 1968 through April, 1969, statements and admissions were extracted from defendant and certain books, records and papers, of which he is the owner and are more specifically hereinafter set forth, were unlawfully obtained from him by Agents of the Internal Revenue Service.
“2. The statements obtained concerned matters relating to defendant’s sources of income and deductions during the indictment period and the books, records and papers obtained from him or his accountants consisted of:
a. bank and brokerage records, copies of canceled checks, paid invoices or receipts, and the like relating to the periods of 1965 and 1966.
b. other miscellaneous records, which records were the personal records of the defendant.
“3. The foregoing statements and property were obtained without a search warrant, and in derogation of defendant’s rights under the Fourth and Fifth Amendments of the United States Constitution, in that, such statements and property were obtained by deceit and misrepresentation, both active and passive, to the effect that the nature of the investigation was that of a routine civil audit. (Emphasis supplied.)
“4. Defendant proffers himself for the taking of testimony in support of this motion, and solely for that purpose, such testimony not to be a waiver of his right not to incriminate himself or of any other right or privilege.”

An affidavit by Dr. Marra, supporting his Motion to Suppress, recited:

“2. In the latter part of 1967 and the first two months of 1968, Revenue Agent Bruce Norvell was conducting an audit of my 1965 and 1966 tax returns and, for the most part, obtained relevant information from my accountant, Edward Derbabian, C.P.A.
“3. I was informed by my accountant at several points in time during this period that the Agent was requesting certain information, and I supplied whatever I had available to my accountant which I believed he would submit to the Revenue Agent.
“4. In the latter part of February, 1968, I was made aware through my accountant that the Revenue Agent had submitted a list of proposed adjustments, these being items which I understood he was disagreeing with and planning to change.
“5. As a result of this turn of events, I believed that the Agent was in the process of closing the case and that there was no cause for concern that a criminal investigation was taking place or would take place.
“6. When I received the two letters from the Internal Revenue Agent in July of 1968, I was completely convinced that no criminal investigation would ensue, because the wording in these letters gave me the impression that the Agent was finally closing the case.
“7. As a result of the foregoing, I was wrongfully deceived, falsely misled by misrepresentation, both active and passive, and surreptitiously induced to give statements and provide documents and records in contravention of my rights under the Fourth, Fifth and Sixth Amendments of the Constitution.” (Emphasis supplied.)

In addition to the Motion to Suppress and Dr. Marra’s supporting affidavit, his counsel filed a pleading denominated Memorandum in Support of Motion to Suppress and Return Seized Property. With this, he filed various exhibits, A to H. Except for two letters, discussed below, these exhibits contained the revenue agent’s requests for information needed for the audit then being conducted; also some memoranda made by appellant’s accountant. When advised that an audit was being made of his 1965 and 1966 tax returns, Dr. Marra referred the agent to his accountant. These inquiries carried titles such as “Items Requested Re Audit of Federal Income Tax Returns of John J. and Dorothy M. Marra,” “Dr. Marra Pending,” “Proposed Changes,” and “Items Requested re Audit of Federal Income Tax Returns of Clinical Laboratories, Incorporated.” Dr. Marra was the sole shareholder of the mentioned corporation. As did the District Judge, we find nothing in these exhibits that would excite a belief upon the part of Dr. Marra or his accountant that criminal prosecution might not ultimately be the product of the civil division’s audit; neither do we find any indicia of fraud and deceit. Exhibits G and H were letters to Marra dated respectively July 10 and July 18, 1968, from Norvell, the Internal Revenue Agent conducting the audit. The letter of July 10 asked for certain information, and concluded:

“I am meeting with Mr. Derbabian [Marra’s accountant] July 17, 1968. Completion of the audit will be expedited if you could provide him with the above information by that date.”

The letter of July 18 told Marra that the agent and Derbabian had scheduled an appointment for July 24 to discuss the returns of Clinical Laboratories, Inc. It advised that Marra’s accountant had compiled a list of items necessary to evaluation of tax liabilities reflected on the 1965, 1966 returns of the mentioned corporation. The letter concluded:

“If you can assist Mr. Derbabian [Marra’s accountant] in obtaining for our appointment July 24, 1968, the items he has listed then the audit may be completed in the very near future.”

We again emphasize that there is nothing to indicate, nor was there any evidence introduced at trial that the then examining agent was entertaining a plan to refer the matter to the Intelligence Division to consider possible criminal conduct by Dr. Marra. The letter was not calculated to justify a belief that such investigation might not be later initiated; neither is there reason for a belief that the agent’s expressed hope that the furnishing of the requested items might lead to completion of the audit “in the near future” was not entertained in good faith. We find nothing in the foregoing to sustain appellant’s claim that thereby Dr. Marra,

“ * * * was wrongfully deceived, falsely misled by misrepresentation, both active and passive, and surreptitiously induced to give statements and provide documents and records in contravention of [Marra’s] rights under the Fourth, Fifth and Sixth Amendments of the Constitution.”

Another document filed in support of the motion to suppress was an affidavit of an attorney, Charles A. Dean, who identified himself as having been counsel for Dr. Marra during part of the investigation of the questioned tax returns. This affidavit recited:

“3. That on or about March 31, 1969, I wrote to Special Agent Lance Conrad, enclosing a copy of a Power of Attorney, and inquired as to the status of the subject matter.
“4. That on or about April 1, 1969, Special Agent Conrad called me and, in response to my inquiry, stated that the entire matter did not appear serious and that he was merely attempting to resolve a few items still being questioned on the defendant’s 1965 and 1966 tax returns.
“5. That on or about April 3, 1969, Special Agent Conrad called me. He stated that he would like to talk to the defendant. I again asked him what the purpose was, and whether there was any reason for me to be present. .Mr. Conrad replied in words to the effect that he wanted to ask the defendant a few routine questions so that he could finally conclude the matter. At no time did Special Agent Conrad indicate, by word or otherwise, that the defendant was under investigation for criminal fraud. That, in reliance upon his clear intimation that no criminal action was contemplated,! consented to his interviewing the defendant out of my presence.”

The dates set out were after this matter had been referred to the Intelligence Division of the Revenue Department. The attorney knew this and was aware that inquiries by a Special Agent of the Intelligence Division had to do with an investigation for possible criminal conduct by his client. Neither in the Motion to Suppress nor in attorney Dean’s affidavit was there a showing that the conference between Dr. Marra and Special Agent Conrad did in fact take place. There was nothing to show that, if it did, the government obtained any information used to support the charges made against Dr. Marra. Of controlling importance is the clear concession by Dr. Marra’s counsel, made at the hearing on the Motion to Suppress, that upon the Special Agent’s initial interview with him, Dr. Marra was given all of the so-called Miranda warnings. There was no showing to negative that these warnings were not repeated at each interview thereafter.

We are not persuaded that the affidavit of attorney Dean, the affidavit of Dr. Marra, and the Exhibits attached to the motion to suppress required the District Judge to hold a pretrial evidentiary hearing before ruling on the motion. In denying the motion, the District Judge said:

“Therefore, in view of all these considerations, the Court finds there were no acts of fraud or deception of affirmative matters practiced by either of the agents on the defendant and that the incriminatory evidence was divulged [by] the defendant voluntarily, well knowing all the consequences of his acts, therefore, the motion to suppress is denied.”

While appellant’s claim of error here deals only with the denial of his pretrial motion, such motion was renewed and denied at the close of proofs. At trial, Agent Conrad, referred to in the affidavit of attorney Dean, testified that upon his first meeting with Marra, he gave him the full Miranda warnings and repeated them at any subsequent meeting. Dr. Marra’s affidavit supporting his pretrial motion did not negate such fact; neither did he testify at his trial. Testimony at trial or the lack of it cannot be controlling of the issue before us; we mention it only to emphasize the shortcomings of the pretrial motion.

We are satisfied, as was the District Judge, that the agent Norvell’s requests for information from Marra’s accountant and his expressed hope that the audit might be expeditiously concluded, cannot be read as masking a vicious plan to invade Dr. Marra’s constitutional rights. The fraud, deceit and trickery charged reside only in the conclusional assertions of Dr. Marra and his attorney. It should be mentioned that Norvell, who was conducting the audit for the civil division, had no direct conversations with Dr. Marra. As requested by Dr. Marra, Norvell’s dealings were with the doctor’s accountant and the charged fraud and deceit had to come, if at all, second hand from the accountant’s reports of his dealing with Norvell.

Without extended discussion, we set out the controlling law as to what must be shown to warrant a finding that a taxpayer has been tricked or deceived by government agents into providing in- ■ criminating evidence to such agents. In United States v. Prudden, 424 F.2d 1021 (5th Cir. 1970), the rule is given:

“[T]he mere failure of a revenue agent (be he regular or special) to warn the taxpayer that the investigation may result in criminal charges, absent any acts by the agent which materially misrepresent the nature of the inquiry, do not constitute fraud, deceit and trickery. Therefore, the record here must disclose some affirmative misrepresentation to establish the existence of fraud, and this showing must he clear and convincing." 424 F.2d at 1033. (Emphasis supplied.)

Such rule was stated again in United States v. Tonahill, 430 F.2d 1042, 1044 (5th Cir. 1970). In our decision in United States v. Stribling, 437 F.2d 765, 772 (6th Cir. 1971), we expressed our agreement with the above quoted rule in Prudden, supra, and quoted with approval the following from United States v. Squeri, 398 F.2d 785, 788 (2d Cir. 1968):

“ * * * [T]he information that a taxpayer’s returns are under audit gives sufficient notice of the possibility of criminal prosecution regardless of whether the agents contemplate civil or criminal action when they speak to him.”

The language of Judge Lumbard, speaking for the Second Circuit in United States v. Sclafani, 265 F.2d 408 (2d Cir. 1959), fits nicely the situation here.

“A ‘routine’ tax investigation openly commenced as such is devoid of stealth or deceit because the ordinary taxpayer surely knows that there is inherent in it a warning that the government’s agents will pursue evidence of misreporting without regard to the shadowy line between avoidance and evasion, mistake and willful omission. ******
“Moreover, it is unrealistic to suggest that the government could or should keep a taxpayer advised as to the direction in v/hich its necessarily fluctuating investigations lead. The burden on the government would be impossible to discharge in fact, and would serve no useful purpose.” 265 F.2d at 414, 415.

We are satisfied that the presentations by affidavit and exhibits to support the pretrial motion to suppress lacked the necessary “solidity” to require a District Judge to conduct an evidentiary hearing. See United States v. Giglio, 16 F.R.D. 268, 270 (S.D.N.Y. 1954), affirmed, United States v. Giglio, 232 F.2d 589 (2d Cir. 1956), affirmed, sub nom, Lawn v. United States, 355 U. S. 339, 347, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Neither did the subjective conclusions of Dr. Marra add up to the “clear and convincing showing” required by Prudden, supra.

Although not suggested at the hearing on the Motion to Suppress, appellant urges upon us that the manner in which agent Norvell conducted the audit violated a provision of the Audit Technique Handbook for Internal Revenue Agents, which, in part, advises that such agents:

“[Sjhould not say anything that could be construed as an offer of immunity or as a step toward a settlement of the case upon a civil basis.”

Aside from our doubt that such advice to revenue agents constitutes a definition of the rights of a taxpayer-— see United States v. Lockyer, 448 F.2d 417, 421 (10th Cir. 1971) — we do not consider that it overrules the law requiring a “solid” and “clear and convincing” showing that the taxpayer was the victim of fraud and deceit employed by involved government agents.

Judgment affirmed.

      . At the time of sentencing on Count I, the government attorney said, “The Government will dismiss your Count II if the conviction on Count I does stand up.” Defense counsel said, “That is acceptable to us.”