author: ELY, Circuit Judge: EUGENE A. WRIGHT, Circuit Judge

text:
    Wilbert LOFTON, Appellant, v. Raymond K. PROCUNIER, Director of California Department of Corrections, Appellee.
    No. 73-1082.
    United States Court of Appeals, Ninth Circuit.
    Sept. 17, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 26, 1973.

      Wilbert Lofton, in pro. per.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., Robert R. Granucci, William D. Stein, Deputy Attys. Gen., San Francisco, Cal., for appellee.
    Before ELY, WRIGHT and GOODWIN, Circuit Judges.
   OPINION

ELY, Circuit Judge:

Lofton appeals from the District Court’s denial of his attack, under 28 U.S.C. § 2254, upon his conviction and incarceration by California authorities. He alleged that his 1967 state conviction for burglary was constitutionally infirm because (1) he was denied the right to be represented by counsel of his choice, and (2) he was denied effective assistance of competent counsel. The District Court denied Lofton’s petition after having conducted a very limited evidentiary hearing thereon.

When Lofton was charged by the California authorities in 1967, he asserted indigency, and counsel was appointed. Following entry and withdrawal of both not guilty and guilty pleas, the appointed attorney finally requested that a not guilty plea be entered and that he be relieved from continuing as attorney of record. Each motion was granted and a public defender, William O’Malley, apparently took over the defense at that time.

Six days prior to the trial date, the defense sought a continuance so that Lofton could secure the assistance of a private attorney, one Perry. Although the judge granted this continuance, he retained the Public Defender as attorney of record and specified that four weeks later, on June 19, 1967, the trial would proceed with either private defense counsel or Public Defender.

On the day set for trial, Lofton informed the judge that Perry was engaged in trial elsewhere and, in consequence, sought a short continuance. The judge denied the motion and directed that an attorney named Holt, of the Public Defender’s office, immediately proceed for the defense. Apparently, Holt had not previously had any connection whatsoever with Lofton’s case.

In his petition below, Lofton alleged that prior to the morning of the trial, he had had no contact whatsoever with Holt and that Holt had absolutely no familiarity with the case. He also asserted that the private counsel, Perry, had possession of several documents whose presentation was essential to an adequate defense. These allegations were supported by Holt’s affidavit, declaring that the defense he conducted was not “competent”.

The first contention by Lofton, that he was deprived choice of counsel, is without merit. The right to choose one’s, attorney is not unlimited and, if in the sound discretion of the court, the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the judge may compel a defendant to proceed with designated counsel. See Nunn v. Wilson, 371 F.2d 113 (9th Cir. 1967); Arellanes v. United States, 353 F.2d 270 (9th Cir. 1965), cert, denied, 385 U.S. 870, 87 S.Ct. 139, 17 L.Ed.2d 97 (1966); Relerford v. United States, 309 F.2d 706 (9th Cir. 1962).

It is clear, however, that such representation cannot be coerced in circumstances in which the désignated defense counsel cannot serve competently. See Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962). If the requirement of adequate representation has any content whatsoever, it surely must encompass the attorney’s familiarity with all essential aspects of the case. Accepting Lofton’s allegations as true, as we must in the present posture of his case, the newly designated defense counsel consulted with Lofton for only ten minutes prior to trial; moreover, essential documents were not available.

The District Court’s examination of the state court record convinced it that the substituted defense attorney rendered competent and effective service. Normally, such an independent review of the transcript and record would provide sufficient basis for a federal court’s denial of habeas relief. Selz v. California, 423 F.2d 702 (9th Cir. 1970). The case at hand, however, significantly ■varies from the typical situation wherein, for example, the propriety of a state court's denial of a motion to suppress can be determined from the record. The required adequacy of counsel, in contrast, can often be determined only after conducting an evidentiary hearing directed to the specific issue.

Here, the record is barren of proof that counsel was in fact competent. The most that can be gleaned from the record is that attorney Holt possibly did as well as any attorney could have done when the grave responsibility was suddenly thrust upon him without adequate opportunity for preparation. We thus conclude an evidentiary hearing must be conducted to determine whether Lofton was effectively deprived of one of his sixth amendment rights. We reiterate that, to this time, there has been no hearing in any court in which the accuracy of the representations made by Lofton and his unprepared attorney can be tested.

Upon remand, the District Court will hold Lofton’s petition in abeyance for a reasonable period, not to exceed sixty days, in order to afford California the first opportunity to conduct the necessary hearing.

Reversed and remanded, with directions.

EUGENE A. WRIGHT, Circuit Judge

(dissenting):

With due respect, I must dissent and would affirm the district court’s denial of habeas corpus relief.

Lofton has challenged a 1967 state court burglary conviction on the grounds that he was denied competent counsel and the right to be represented by counsel of his choice. As I read this record, he is precluded from asserting either challenge because of his own dilatory tactics. The result reached by the majority opinion rewards him for his repeated efforts to prevent his case from ever coming to trial.

Petitioner was charged with burglary on January 19, 1967. When he was arraigned four days later and claimed in-digency, counsel (Mr. Wright) was appointed to represent him and Lofton pleaded not guilty. On March 13 he asked to change his plea to guilty and requested probation. His appointed counsel then joined him in a motion to withdraw the guilty plea, asked to be al lowed to withdraw as counsel, and was replaced by the public defender. When the information was amended on May 12 to charge a prior felony conviction, Lof-ton appeared with the public defender, denied the prior conviction and the case was set for trial on May 29.

Six days before trial, petitioner appeared with the public defender and asked a continuance in order to secure private counsel. The court granted a delay of four weeks on condition that no further continuance would be granted, that the trial would begin on June 19, and that Lofton would be represented by private counsel or the public defender. Private counsel (Mr. Perry) did not appear on the trial date, being engaged elsewhere, and Lofton asked for another continuance. The postponement was denied, the court designated new counsel from the public defender’s office and the case proceeded to trial over Lofton’s objection.

The right to be represented by counsel of one’s choice is not so unlimited that its exercise may be used to delay or subvert orderly criminal process. See, e. g., Nunn v. Wilson, 371 F.2d 113 (9th Cir. 1967). The majority recognizes this limitation on the right to counsel. The majority holds, however, that the only consequence of this limitation is that the trial judge may compel the defendant to proceed with designated counsel. The majority further holds that such representation can be coerced only in circumstances in which the designated counsel can serve competently. This is not an accurate characterization of the law in this circuit.

In Nunn v. Wilson, swpra, relied upon by the majority, the defendant was found to have been dilatory in the exercise of his right to counsel and was forced to proceed without counsel. As in the present case, Nunn involved a prosecution for burglary. This court affirmed a denial of habeas corpus, a holding which is inconsistent with that reached here. Since the trial judge could constitutionally have forced petitioner to proceed without counsel under the holding in Nunn, we are precluded from holding that he was constitutionally required to grant a continuance in order that the appointed counsel could prepare more adequately. The majority overrules, sub silentio, our holding in Nunn.

The majority relies on Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), in support of its holding that representation may not be coerced unless the designated counsel is able to serve competently. Brubaker, however, did not involve a defendant who had been dilatory in the selection of counsel and is, therefore, not controlling.

The district court reviewed the state court records, accepted affidavits from the parties, and held an evidentiary hearing at which petitioner and his private counsel testified. Based on this evidence, the district court found that petitioner had been afforded an adequate opportunity to defend with counsel of his choice. The record supports that finding. I would hold that petitioner is precluded from attacking the competency of appointed counsel when his attack is based solely on the lack of an opportunity for counsel to prepare.

Although I would affirm for the foregoing reasons, I must also point out that the district court specifically found that the representation afforded petitioner by the designated counsel was competent. That court received affidavits, took testimony on the issue of petitioner’s delinquency in obtaining counsel, and reviewed the trial record. The majority now remands in order that an evi-dentiary hearing may be held on the issue of competency. Since the designated counsel is now deceased, I see no useful purpose to be filled by such a hearing.

I would affirm.

      . As previously indicated, the District Court conducted a limited hearing. At that hearing, only the private attorney, Perry, and the petitioner testified. Since Perry was not present at the trial and had never apparently conferred with the newly appointed attorney, his testimony afforded no significant enlightenment in respect to the critical issue. Before appointing the new attorney, and ordering that the trial proceed immediately, the trial judge had already verified that Perry was engaged in trial in another court. There is no suggestion that Lofton was responsible for this conflicting engagement, and we cannot understand why the trial court did not grant Lofton’s request for a continuance until the private attorney’s attendance in the other court was no longer necessary.


source: Caselaw Access Project

author: WEBSTER, Circuit Judge.

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Interstate Glass Co., Respondents.
    No. 73-1029.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Oct. 26, 1973.
    Harlington Wood, Jr., Asst. Atty. Gen., and Walter H. Fleischer, and Jean A. Staudt, Attys., Dept. of Justice, Washington, D. C., for petitioner.
    William J. Koenigsdorf, Kansas City, Mo., for respondent, Interstate Glass Co.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In this petition the Secretary of Labor seeks judicial review of an order of the Occupational Safety and Health Review Commission in which the Commission, while upholding the Secretary’s citations for violations of the Act, nonetheless vacated the proposed penalties for such citations. We affirm the order of the Commission.

The Occupational Safety and Health Act of 1970, now popularly known as “OSHA”, is of recent origin and will have substantial impact upon American Industry. The Secretary of Labor is charged with its enforcement, and in this action he seeks to limit the power of the Commission to modify penalties proposed by him which are within lawful limits. Because this appears to be a case of first impression, and one which tests in part the respective roles of the Secretary and the Commission, some initial explication of OSHA is appropriate.

“OSHA”

The Act was adopted in 1970 and became effective on April 28, 1971. The bill as passed is a compromise between two competing bills that were submitted both to the House and to the Senate. One bill was administration-backed and the other was strongly supported by organized labor. Although the difference in the two bills primarily involved whether both rule-making and enforcement powers should be located in the same agency, it is clear that both sides favored a bill which would establish a comprehensive program that would substantially reduce the large number of job-related deaths, injuries and health hazards which have existed. It is estimated that 4.1 million businesses and 57 million employees are affected.

The Act provides for the development of a “laundry-list” of violations. Companies are subject to periodic compliance inspections which are carried out at random either upon complaint or upon the inspector’s own initiative. Advance notice of an inspection is prohibited, and violators of this provision are subject to criminal sanctions. Violations may be either of standards promulgated by the Secretary or of the “general duty” provision, a catch-all provision intended to supplement the standards formulated by the Secretary.

A violation is “serious” if there is a possibility of an accident and a substantial probability that death or serious physical injury would result. Under the Act, a penalty may be imposed of up to $1,000 for a non-serious violation. Upon receiving notice from the Secretary of the citations and proposed penalties, the employer has 15 days to contest either the citation or the proposed penalty or both by notifying the Secretary who transmits the information to the Commission. The Commission is an independent adjudicatory agency established under the Act, 29 U.S.C. § 661. The Commission is authorized to conduct hearings under § 659(c), which hearings are conducted under § 5 of the Administrative Procedure Act, 5. U.S.C. § 554.

The Commission’s hearing is presided over by a single Commission Judge who writes an opinion which is then subject to review by the entire three-man Commission at its discretion. After 30 days, if no other member requests a review, his order becomes final and the order of the Commission:

FACTS

On March 28, 1972, a compliance officer of the United States Department of Labor conducted a compliance investigation of respondent Interstate Glass Company, Lincoln, Nebraska. As a result of conditions uncovered during this investigation, Interstate was cited by the Secretary of Labor on March 29, 1972, for seven “non-serious” violations. The fines totalled $375.00. The Company was ordered to abáte item #3 immediately and was given until April 7, 1972, to abate the remaining six. Thereafter, the Secretary withdrew items 6 and 7 and the penalty was reduced to $225.

On April 13, 1972, respondent advised the Secretary that all five remaining violations were abated and that it wished to contest the citations and proposed penalties. This notice of contest was properly transmitted to the Secretary, who thereupon transmitted it to the Commission. The Secretary then submitted to the Commission a complaint under 29 CFR § 2200.7(d) setting forth the substance and penalties of the five violations. The respondent company answered, admitting a violation as to items 3 and 4 but denying the remaining allegations (items 1, 2, 5).

The Commission Judge, after hearing, determined that all five proposed violations did exist as set forth in the citation and were supported by the evidence. However, he vacated all five proposed penalties on the grounds that employees had never, complained of the conditions, the employer was either unaware that the conditions were violations or had no knowledge of them, and the employer exercised diligence and good faith in abating the hazards immediately after the citation. Consequently, he concluded, “it will serve no useful purpose of the Act to levy these small fines under the total circumstances involved in this case.” It is the vacation of the proposed penalties from which the Secretary appeals.

I

SCOPE OF ADMINISTRATIVE REVIEW

The Commission is granted the power to review either the citation or the proposed penalty or both under 29 U.S.C. § 659(a) and (c). The scope of such .review is set forth in § 659(c):

“The Commission shall thereafter [after hearing] issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s citation or proposed penalty or directing other appropriate relief, and such order shall become final thirty days after its issuance.” (emphasis added)

Some writers have interpreted this section of the Act as granting the Commission final authority to affirm, modify, or vacate penalties. The Commission has acted upon a similar view of its power. “As of May 16, 1972, penalties proposed by the Department of Labor had been modified in 58 percent of the cases appealed to the Review Commission. In 43 percent of the cases, the penalty was reduced; in 15 percent, it was increased,” In other instances the Commission has vacated the penalties but not the violations.

It is the position of the Secretary-Petitioner that by vacating all five proposed penalties, the Commission abused its discretion and frustrated the purposes of the Act. This assertion is based on a well-reasoned argument that such action frustrates the purpose of OSHA, which relies primarily on voluntary compliance, by nullifying the employer’s incentive in self-policing and self-enforcement. Notwithstanding the validity of this argument, the threshold question is whether the review by the Commission is de novo.

Prior to the Commission’s review, the Secretary had already taken the “circumstances” into consideration in setting the proposed penalties. As each violation was categorized as “non-serious”, a fine not exceeding $1,000.00 was authorized, although not required, for each violation. 29 U.S.C. § 666(c). After placing each violation in á particular category depending upon its gravity, the Secretary reduced the five unadjusted penalties (1) 20% for the good faith of employer, (2) 10% for having less than 20 employees and (3) 20% for having no history of past violations. The adjusted penalties were further reduced 50% because all violations were abated within the period specified. This method of calculating proposed penalties is the standard procedure prescribed by the Secretary’s published Compliance Operations Manual. It must be assumed that the Secretary’s complaint is the Commission’s failure to uphold his procedures for imposing penalties when the Commission affirms the Secretary’s findings of violations. Obviously, the Secretary does not want his imposed penalties continually contested with the hope or expectation of the employer that the Commission will reduce or vacate them.

. The Secretary’s argument, however, ignores the clear statutory language. His imposition of penalty is denominated a “proposed penalty”. 29 U. S.C. § 659(a). This proposed penalty becomes final only if the employer accepts it or does not “contest” it, in which case it becomes a final order not subject to review by any court or agency. 29 U.S.C. § 659(a). If, on the other hand, the employer contests the order and proposed penalty, the Commission acts de novo. Moreover, 29 U.S.C. § 666(i) provides as follows:

“The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the *good faith of the employer, and the history of previous violations.”

The Congressional intent is thus plainly manifested that the Commission shall be the final arbiter of penalties if the Secretary’s proposals are contested and that, in such a case, the Secretary’s proposals merely become advisory. We find no authority to the contrary. In one recent Fifth Circuit opinion, the court vacated an order of the Commission setting aside proposed penalties and reinstated the Secretary’s proposed penalties. Brennan v. Occupational Safety and Health Review Commission and Brent Towing Co., Inc., 481 F.2d 619 (5th Cir. 1973). The question presented there was whether a particular letter constituted a “notice of contest”. The Commission determined that it did and vacated the proposed penalties because the Secretary had not forwarded the letter within the required time period. The respondent-employer conceded its liability and indicated a desire not to proceed further. The court refused to decide the issue presented by the Secretary and the Commission because the “chief party in interest has long since declined to remain the focal center for an administrative whirlwind of such minor proportions.”

SCOPE OF JUDICIAL REVIEW

29 U.S.C. § 660(a) authorizes review in the Court of Appeals for “any person adversely affected or aggrieved” and § 660(b) authorizes review for the Secretary. Section 660(a) provides in pertinent part:

“Upon such filing, the court shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter upon the pleadings, testimony, and proceedings set forth in such record a decree affirming, modifying, or setting aside in whole or in part, the order of the Commission and enforcing the same to the extent that such order is affirmed or modified. * * * The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”

The reviewing court is thus bound to apply the substantial evidence test to the Commission’s findings of fact. The assessment of penalties is not a finding but the exercise of a discretionary grant of power. And while the court has jurisdiction to review and power to modify, the test of a penalty within the statutory range must be whether the Commission abused its discretion.

In this case, the Commission had discretion to impose a fine of up to $1,000 for each non-serious violation. Its order reflected its consideration of the statutory criteria for the appropriateness of penalties. We are unable to say from the record before us that the Commission abused its discretion in vacating the proposed penalties. In so doing, we do not adopt the position of the Commission that “Relatively minor monetary penalties do little” to “obtain compliance with [the Act’s] requirements in order to insure a safe and healthful work place.” 1 O.S.H.R. 1198 (May 18, 1972). Nor do we think that the self-compliance aspects of the Act can only be enforced by mandatory penalties, as implied by the Secretary. The Act calls for the exercise of discretion, and our review is not to be directed to what policy best furthers the objectives of the Act, but rather to whether the statutory discretion has in fact been exercised and has not been abused.

Affirmed.

      . See Moran, A Critique of the Occupational Safety and Health Act of 1970, 67 Nw.U.L.Rev. 200, 200-05 (1972).
      The annual figures reflect that there are over 14,000 deaths and two million injuries caused by industrial accidents. The legislative history of OSHA may be found at 1970 U.S.Code Cong. & Admin.News, 91st Cong., 2d Sess., at 1852.

      . Spann, The New Occupational Safety and Health Act, 58 A.B.A.J. 255 (March 1972).

      . 29 U.S.C. § 657.

      . See 29 U.S.C. § 666(f).

      . 29 U.S.C. § 655.

      . 29 U.S.C. § 654.

      . See 29 U.S.C. § 666(j). For a discussion of serious vs. non-serious violations, see Standard Glass and Supply Co., CCH, Employment & Safety & Health Guide, Vol. 2 If 15,689 at 20,984 (April 27, 1973).

      . 29 U.S.C. § 666(c).

      . 29 U.S.C. § 659(a) and (c).

      . The Rules of Procedure before the Commission are set out in 29 CFR Part 2200 (1972).

      . The seven non-serious violations cited, authority for such citations and the fines proposed by the Secretary were as follows:

        Violation CFR Section Amount of Fine

      (1) Excessive play in forklift [1910.178 (p)(l)] $25
      (2) Inaccessible electrical panel controlling plant’s heat and power tools [1910.310 (i)] 25
      (3) Flammable liquid stored in open containers [1910.106(e) (2) (ii)] 125
      (4) Power saw with missing ground prong [1910.314(d) (4) (iii) (e) 3 25
      (5) Defective ladder [1910.29 (d)(1) (x)] 25
      (6) Loading area not protected with required guardrails [1910.23(c)(1)] 75
      (7) Insufficient fire extinguishers [1910.157(c) (l)(iv)] 75

      . Jurisdiction for an appeal to the United States Court of Appeals by the Secretary is granted in 29 U.S.C. § 630(b).

      . E. g., Note, The Occupational Safety and Health Act of 1970: Some Unresolved Issues and Potential Problems, 41 Geo.Wash. L.Rev. 304, 321 n. 108 (1972).

      . 1 O.S.H.R. 1197 (May 18, 1972) cited in 41 Geo.Wash.L.Rev. at 321 n. 108, supra note 13. For an example of a reduced penalty, see Apex Paper Co., CCH, Employment & Safety & Health Guide, Yol. 2 If 61,249 at 21,210 (June 29, 1973) (reduced because of low gravity and first offense). For an example of an increased penalty, see Pollard, Inc., Corp., CCH, Employment & Safety & Health Guide, Vol. 2 If 16,260 at 21,217 (July 5,1973) (Secretary’s finding of good faith was unwarranted) .

      . E. g., Enterprise Manufacturing & Supply Co., CCH Employment & Safety & Health Guide, Vol. 2 ¶ 16,247 at 21,210 (June 29, 1973) (penalties would not further the aims of the Act).

      . 29 U.S.C. § 659(c). Note the limitations on judicial review at § 660, discussed, infra.

      . See 5 U.S.C. § 706(2) (A). In Butz v. Grover Livestock Commission, Inc., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973), a a Judicial Officer reduced a penalty assessed by the Secretary of Labor under the Packers and Stockyards Act, 7 U.S.C. § 181 et seq. Upon review, a panel of this circuit vacated a suspension penalty which it found to be “unwarranted and without justification in fact.” 454 E.2d 109, 115 (8th Cir. 1972). The Supreme Court reversed, holding the record substantiated the findings of the Judicial Officer, and that the court’s consideration of such factors as “damaging publicity” exceeded its function of judicial review. It observed that the standard of review should conform to the “fundamental principle . . . that where Congress has entrusted an administrative agency with the responsibility of selecting the means of achieving the statutory policy ‘the relation of remedy to policy is peculiarly a matter for administrative competence.’ American Power Co. v. S.E.C., 329 U.S. 90, 112, 67 S.Ct. 133, 91 L.Ed. 103 (1946).” 411 U.S. at 185, 93 S.Ct. at 1458.

      . 29 U.S.C. § 659(c), § 666(i). Note that imposition of penalties for serious violations is mandatory. 29 U.S.C. § 666(b).

      . “Good faith”, one of the criteria, can be a broad tent. Respondent Interstate Glass Co. had urged before the Commission that certain defects in its equipment had not been reported to the company by employees using the equipment. A “willful” violation exposes an employer to higher penalties. 29 U.S.C. § 666 (a). Non-serious violations need not be supported by evidence of knowledge. “Good faith” therefore contemplates the post-inspection performance of the employer in acting to correct the defect. It does not appear from its order that the Commission adopted or applied the erroneous standard urged by the employer.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. James BIVONA, Defendant-Appellant.
    No. 304, Docket 73-1200.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 18,1973.
    Decided Nov. 1, 1973.

      Phylis Skloot Bamberger, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for defendant-appellant.
    John D. Gordan III, Asst. U. S. Atty., for the S. D. New York (Paul J. Curran, U. S. Atty., for the S. D. New York, Ira Lee Sorkin, Asst. U. S. Atty. for the S. D. New York, on the brief), for appellee.
    Before KAUFMAN, Chief Judge, and LUMBARD and TIMBERS, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

Once again, we are called upon to consider a criminal appeal in which the sole issue is whether the prosecutor’s courtroom, conduct was so inflammatory that it deprived the defendant of a fair trial. See United States v. White, 486 F.2d 204 (2d Cir. 1973). James Bivona’s trial before Judge Motley and a jury consumed only three days and resulted in his conviction for sale of cocaine and for conspiracy. 26 U.S.C. §§ 4705(a), 7237(b). He was sentenced to five years imprisonment on each of two counts, to run concurrently. Although we are compelled anew to reprimand a prosecutor for his remarks, we follow the principle that the bounds of permissible advocacy are to be “drawn within the concrete terrain of specific eases.” United States v. White, supra, at 207. Accordingly, we have come to the conclusion that in the context of this trial the comments did not substantially prejudice the appellant.

I.

The factual setting of the case will provide a useful background for examining the prosecutor’s comments. Government witnesses established that in early January 1971, George Lawson, an undercover officer with the New York State Joint Task Force, was introduced by an unnamed informant to Jerry Johnson and Judy Niemeyer. Johnson and Nie-meyer were named in the indictment along with Bivona, but their trials were severed when they agreed to testify for the government. During Lawson’s frequent visits to the couple’s apartment at 126 East 4th Street in New York City, he often directed the conversation to the use of narcotics. On January 12, 1971, Lawson moved beyond mere discussion by asking Johnson and Niemeyer if they could supply some cocaine. They agreed to arrange a sale of one ounce for $1,100. That evening, Johnson visited Bivona’s photography studio at 99 East 4th Street and asked him to supply the cocaine. Bivona was too tired to discuss the sale that night, but when Johnson returned to the studio the following day Bivona agreed to furnish the drugs. At approximately noon on January 14, Johnson contacted Bivona to confirm the sale and to tell him the purchaser would arrive at Niemeyer’s apartment between 5 and 6 p.m. Johnson explained that he would be working at the time of the sale and suggested that Bivona and Niemeyer handle the transaction without him.

At 4:15 p.m. Lawson went to Niemeyer’s apartment where she introduced Bivona as her supplier. At Bivona’s request, Lawson brandished a roll of bills, whereupon Bivona left the apartment and returned five minutes later with a package containing cocaine. Lawson departed when the sale was complete, but he continued to discuss drug sales with the couple until February 8, when he arrested Niemeyer, Johnson, and Bivona.

II.

We have noted earlier that Bivona’s only claim on appeal is that the prosecutor’s conduct deprived him of a fair trial. In support of this contention, Bivona attacks several portions of the prosecutor’s summation as highly prejudicial. Our careful reading of the record discloses, however, that only two portions of the summation raise substantial questions.

Bivona claims that the Assistant United States Attorney gave unsworn testimony to fill gaps in the government’s case. In an effort to explain why Bivona had not been arrested immediately after the sale — a question raised by the defense at trial — the prosecutor made the following remarks, the greater portion of which was without support in the record:

The $1,100 was in their hands; the narcotics had been transferred; serialized dollar bills; they got the case; why not arrest him? For this reason. Narcotics peddlers don’t advertise their business; they don’t advertise their wares. It is the job of these narcotics agents to find the source of the source of the source. They have got Niemeyer, they move one step up the ladder, they got Jimmy Bivona. They want to find out
Jimmy Bivona’s source. And that is why Agent Lawson in the apartment said, “How about an eighth of cocaine?” They want more. They are out to negotiate for more. They want to find out Bivona’s source, where he gets his drugs and where his source gets the drugs. You don’t stop at one level of the ladder when you are dealing in the narcotics traffic. It is that simple. The fact that they didn’t arrest him on the scene is just a smokescreen; it is just placing suspicion in your minds and doubt in your minds where it shouldn’t be, because common sense tells us that the Government is not going to settle for one ounce if there are more narcotic transactions to be had on the street.

We agree that these comments were ill-advised, but the resulting prejudice was minimal. Moreover, Judge Motley firmly cautioned the jurors, as she did several times throughout the trial, that they were to be guided only by their own recollections of the testimony.

Bivona makes another attack on the prosecutor’s summation which is more serious. The contention here is that the Assistant United States Attorney improperly asserted his personal belief in the defendant’s guilt by derogating Bivona’s testimony while placing the imprimatur of the government on prosecution witnesses:

The Government submits to you, ladies and gentlemen, that for you to accept Bivona’s story — and, mind you, mind you, the defense rests entirely on Bivona’s story here — the Government submits that for you to accept Bivona’s story, even for him to ask you to accept it is an insult to your intelligence and to your common sense, to believe his version of what happened.
[I]t was easy for him to get up on the stand on direct examination and tell his version, his distorted version of the facts. They were more than distorted. They were falsehoods; they were lies; he didn’t tell the truth.
. The Government does not ask you to like Niemeyer and the Government does not ask you to like Johnson. The Government does not ask you to like Lawson or Elliott. They are doing their job. But the Government has had to call them because they are the only people who knew about this case, and they testified truthfully. They testified so truthfully that even Johnson admitted that he had taken cocaine at some time.

Within recent weeks we criticized a prosecutor for comments of this character. See United States v. White, supra. Although these remarks were as unwise here as they were in White, we must weigh their impact in the context in which they were uttered. The government urges us, therefore, to examine the defense tactics which it argues prompted the prosecutor’s untoward statements. See United States v. Santana, 485 F.2d 365 at 370 (2d Cir. 1973).

Bivona contended at trial that he was unaware that narcotics were being sold at the January 14 meeting and that Nie-meyer and Johnson, suspecting Lawson’s identity, had manipulated the transaction to make Lawson believe Bivona supplied the drugs. To buttress this claim, the defense launched a frontal attack on the credibility of the accomplice witnesses. On cross-examination, counsel sought to demonstrate Niemeyer’s and Johnson’s intimate involvement in the drug traffic. For example, the following interchange occurred during Johnson’s cross-examination:

Q. How often did he come over to your house?
A. George Lawson ?
Q. Yes.
A. He came over quite innumerable times.
Q. And that would always be engaging you in conversation about the purchase of drugs?
A. Yes.
Q. And you had a willing ear for that?
Mr. Sorkin: Objection.
The Court: What is the objection?
Mr. Sorkin: The relevancy of all of this.
The Court: What is the relevance, Mr. Segal, as to whether he had a willing ear?
Mr. Segal: Only that he was a purveyor of drugs, your Honor and, therefore, Lawson found him a fit subject.

Defense counsel insinuated also that Niemeyer and Johnson expected to be rewarded for their testimony. In counsel’s words, they wanted to “open up the doors of jail for themselves and push the defendant in.” Both witnesses, however, testified they had been promised only that the government would call their cooperation to the judge’s attention at the time of sentencing.

In his summation, Bivona’s counsel continued his assault on the credibility of Niemeyer and Johnson, labelling them “two Judases,” who used Bivona as a “stooge.” In addition, he characterized Judy Niemeyer as “amoral” and “a woman who has a child of 11 months, living with this man, as she does, Jerry Johnson.” Johnson was described as

a man who got a general discharge — I don’t know whether any of you are familiar with general discharges, and I can’t go into it — but those of you know from your experience in life what a general discharge is. Use your own judgment. And so what is he doing? He is a man who is a drifter. He is what you call a bundle stiff, a man who drifts from one thing to another. He is a carpenter. Somebody else said he was a cook. He had a different kind of engagement here; he is living with this woman by whom he had this child.

In another instance, counsel departed entirely from the record to comment on the shop in which Niemeyer and Johnson worked at the time of trial:

They call it a pet food shop, and I call it something else, and I don’t have to tell you what I call it. It is a nursery, perhaps, for the distribution of hashish, marijuana, and every other drug, LSD, that is bandied about and talked about, and that is the reason you have Lawson there.

In view of this defense barrage, we must accord the prosecutor some range to respond. See United States v. Ben-ter, 457 F.2d 1174, 1177 (2d Cir.), cert, denied, 409 U.S. 842, 93 S.Ct. 41, 34 L. Ed.2d 82 (1972). Although. latitude cannot be equated with license, we must not be “overly nice ... in scrutinizing the give-and-take of summation.” United States v. Santana, supra, 485 F. 2d at 371. Accordingly, when we examine the prosecutor’s conduct, as we must, in the context of all that occurred at the trial, we find that reversal is not warranted. United States v. Socony-Vacu-um Oil Co., 310 U.S. 150, 239, 242, 60 S. Ct. 811, 84 L.Ed. 1129 (1940); United States v. White, supra, 486 F.2d at 207. Proof of guilt was overwhelming and Judge Motley’s careful instructions to the jury on credibility, interest, and accomplice testimony protected the defendant from substantial prejudice. We believe whatever harm occurred was minimal.

Although we conclude that reversal is not required here, we cannot ignore the numerous departures from approved prosecutorial advocacy which have been called to our attention within the last six months. Thus, we have considered whether the dramatic step of upsetting a conviction is the only feasible way to deter future prosecutorial misconduct. We are not unmindful of Judge Frank’s admonition :

“The deprecatory words we use in our opinions . . . are purely ceremonial.” Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court —recalling the bitter tear shed by the Walrus as he ate the oysters — breeds a deplorably cynical attitude towards the judiciary.

United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.) (Frank, J., dissenting), cert, denied 329 U.S. 742, 67 S.Ct. 49, 91 L.Ed. 640 (1946).

We recognize the profundity of these words and, unless the prosecutor heeds our recent warnings, we may be left with no alternative but to reverse convictions where the argument of the prosecution goes beyond what is permissible and fair. But, we fully expect that our criticism here and in White will not fall on deaf ears. Indeed, at oral argument, •we were advised by the Chief Appellate Attorney in the United States Attorney’s office for the Southern District of New York that he was holding a meeting that very day to discuss our White opinion with his staff and to caution against repetition of the statements criticized there. He assured us that judicial admonition, even in the absence of reversal, would discourage and curtail the conduct we censured.

Although it is urged that reversal may have a more powerful impact on the prosecutor than mere reprimand, in a case such as this, where the prejudice to the defendant was negligible and guilt so clear, reversal is simply too drastic a measure. Of course, where a defendant’s constitutional rights have been violated by the police or the prosecutor, this sanction must be applied. But, to adopt this approach in response to comments evoked by the dynamics of a trial, which in the context of the whole proceeding fall far short of constitutional infringement, would be sacrificing too much.

We have not hesitated in the past to reverse in the appropriate case. See United States v. Drummond, 481 F.2d 62 (2d Cir. 1973). This is simply not that case. Accordingly, we affirm.

      . The indictment charged a second substantive count for an alleged sale of cocaine on February 2, 1971. This count was dismissed on the government’s motion during the trial. We note that the statutory provisions charged in the indictment were repealed by § 1101(b) (3) (A) and (b) (4) (A) of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1292. The effective date of the 1970 Act was May 1, 1971. Since the events alleged here occurred in January 1971, the old statute governs prosecution and sentencing. Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L. Ed .2d 528 (1973).

      . On January 29, 1973, the original indictment was superseded by an information charging Niemeyer and Johnson with one count each of selling cocaine not in the original stamped package. 26 U.S.O. §§ 4701, 4703, 4704(a), 4771(a), 4237(a). Niemeyer entered a plea of guilty and was sentenced as a Young Adult Offender and placed on probation for two years. Johnson failed to appear in court and is still a fugitive.

      . When Bivona left the building he was under surveillance by Michael A. Elliott, a member of the New York State Joint Task Force. Elliott saw Bivona cross the street, but lost sight of him until he returned in a few minutes to 126 East 4th Street.

      . Niemeyer admitted on cross-examination that she had sold marijuana and LSD on prior occasions. Johnson stated that he had used cocaine at times.

      . See United States v. White, supra, 486 F.2d at 206 n. 4.


author: OAKES, Circuit Judge: MOORE, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Ronald DeBERRY and Julius Edwards, Appellants.
    Nos. 1031, 1058, Dockets 73-1283, 73-1353.
    United States Court of Appeals, Second Circuit.
    Argued July 18, 1973.
    Decided Nov. 7, 1973.
    Moore, Circuit Judge, dissented and filed opinion.

      Helena P. Solleder, New York City, for appellant DeBerry.
    Gilbert Epstein, New York City, for appellant Edwards.
    Kenneth Kaplan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty. for the E. D. New York, Raymond J. Dearie, Asst. U. S. Atty., on the brief), for ap-pellee.
    Before MOORE and OAKES, Circuit Judges and GURFEIN, District Judge.

       Of the Southern District of New York, sitting by designation.

   OAKES, Circuit Judge:

The principal question raised on this appeal from judgments in the United States District Court for the Eastern District of New York relates to the claim of deprivation of the sixth amendment right to effective counsel by virtue of the fact that the same attorney represented both appellants below. Subsidiary questions include whether the war-rantless search of a suitcase containing 25 pounds of marijuana violated the fourth amendment and whether, in the case of appellant DeBerry, the evidence established his possession of the marijuana with the intent to distribute it and whether a statement attributable to his codefendant, Edwards, was improperly admitted into evidence. The judgments convicted appellants, after a jury trial, of possessing with intent to distribute 25 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Appellant Edwards was sentenced to a term of imprisonment of three years and a four-year special parole term; appellant DeBerry was sentenced to a term of imprisonment of two years and a three-year special parole term. A third defendant named in the one-count indictment, one Padilla, was acquitted by the jury.

An alert supervisor of Emery Air Freight Service in Los Angeles noticed that the very same .individual who had shipped a suitcase to San Antonio, Texas, on May 10, 1972, proceeded to ship another suitcase to New York on May 11, 1972, The nervous behavior of the shipper had caused the supervisor to open the first bag, which he did under the official air freight rules, Tariff No. IB, whereupon he found dirty linens. On opening the second suitcase, however, he found 15 bricks of marijuana and thereupon called the Los Angeles Police Department. After inspecting the bag, the Los Angeles police notified Agent Raybourn at the New York office of the Bureau of Narcotics and Dangerous Drugs (BNDD) and provided him with the following' information: (1) a description of the shipper; (2) the mea-, surements and color — plaid—of the suit-ease; (3) the bill of lading number of the shipment; and (4) the airline (TWA) on which the bag was to be shipped and the flight number of the flight upon which the bag was to depart Los Angeles. A BNDD agent placed the bag under surveillance upon its arrival in New York late in the afternoon of May 12. When the bag was not claimed, it was placed in a locked cage at TWA.

At 2:00 a. m. on the following day, May 13, some 24 hours after the New York BNDD had been told of the shipment and some nine hours after it had actually arrived at JFK, appellant De-Berry presented the shipper’s certificate or copy of the bill of lading for the suitcase to the JFK Emery supervisor, who in turn advised the Port Authority police and New York City detectives. While the Emery supervisor went to make a copy of the receipt, DeBerry took the suitcase and left the terminal, proceeding to an automobile parked near the terminal. Upon arriving at the automobile, DeBerry was met by one of the occupants, later identified as appellant Edwards, the trunk was opened and then closed, and DeBerry and Edwards entered the automobile. At this point, the automobile was approached by Detective McKenna of the Port Authority police, who had observed DeBerry pick up the bag and had kept DeBerry under observation in the ensuing moments. A search of the vehicle was conducted and the bag was seized. A suppression hearing resulted in the admission of the bag and its contents at the trial.

An air freight service such as Emery has, in accordance with Item 24 of the Official Air Freight Rules, Tariff No. IB, the right to inspect all shipments. In addition, Tariff No. 2 of the rules and regulations of the Emery Air Freight Corporation provides that “[a] 11 shipments are subject to inspection by the Forwarder.” The suspicious behavior of the shipper on the preceding night when he shipped a suitcase containing dirty towels to San Antonio, Texas, was enough to give Emery Air Freight good reason to be suspicious of the shipper’s action the following day in sending a suitcase to New York.

We have previously held that an inspection by a carrier is not a governmental search. United States v. Cangiano, 464 F.2d 320 (2d Cir. 1972). Here, making the case even stronger than Cangiano, Emery Air Freight conducted the search independently of any information or request received from government officials. We therefore accept the Government’s proposition that the search conducted in Los Angeles did not infringe upon appellants’ fourth amendment rights. Acceptance of this proposition does not, however, necessarily compel the acceptance of the validity of the seizure that occurred in New York.

It may be argued that the New York seizure was separate and distinct from the California search, and because there was ample opportunity for the New York officers to obtain a warrant for the suitcase’s seizure, its warrantless seizure violated the fourth amendment. See Coolidge v. New Hampshire, 403 U. S. 443, 470-471, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971). This, however, would ignore the facts and realities of the situation. The suitcase was seized initially in California by Sergeant Figelsky of the Los Angeles Police Department. That seizure although done without warrant was- legal, because Emery’s legal inspection in effect put the marijuana in Figelsky’s plain view; he, therefore, could seize the contraband upon sight. Cf. United States v. Riggs, 474 F.2d 699 (2d Cir. 1973), cert, denied, 414 U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973). Figelsky made the seizure by removing one of the bricks of marijuana, marking all the rest of the bricks with his initials, and finally marking the suitcase itself with his initials. He then authorized the suitcase to be shipped on. Even though the suitcase was then in transit, later in the luggage bin, and later still in the freight room, it remained legally “seized” just as much as if it were under the actual physical control of the police. In fact, except for the time that it was actually in the airplane’s belly, it was under the close surveillance of the police. Thus, when the agents and police in New York removed the bag from the back seat of the car appellants were in, they were not making an initial seizure, but rather were merely reasserting control of the suitcase which had already been seized for legal purposes and which was merely being used as bait. Accordingly, no warrant was required.

Appellant DeBerry also argues that there was insufficient proof that he possessed the 25 pounds of marijuana with the intent to distribute it. By his own admission, however, he and Edwards had traveled to California with the intention of purchasing the marijuana. The suitcase was shipped from California with both appellants knowing that it contained marijuana. They came to the airport to pick it up. DeBerry argues, however, that there was insufficient proof before the jury concerning his intent to distribute, as opposed to his possession for personal use. There was testimony, however, that the quantity of marijuana had a “street value” of about $8,000 and when the Government was going to call a witness to testify that 25 pounds of marijuana would not be kept for “personal use” (so as to require the charge of a lesser included offense under 21 U.S.C. § 844), defense counsel stipulated — in the jury’s absence, to be sure — “that this is a large quantity of marijuana” and that it would “be assumed that this kind of quantity won’t be of personal use . The average person doesn’t have bricks of marijuana for his own use.” The judge left it to the jury, in connection with his charge on intent to give away, sell or otherwise distribute the marijuana, to make the determination whether, in the light of the quanti-

ty involved and the value of the marijuana, the appellant had such intent. That evidence together with the evidence that Edwards and DeBerry went on a three-day trip to California costing several hundred dollars in plane fare for no apparent purpose other than the purchase of marijuana is sufficient to have permitted this issue to go to the jury. Additionally the stipulation of counsel is such as to render academic the request to charge the lesser included offense, the offense of simple possession or possession for personal use under 21 U.S.C. § 844.

Appellant DeBerry also argues that a statement given by Edwards before the magistrate should not have been admitted in evidence against him under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Edwards, in a colloquy before the magistrate with an Assistant United States Attorney and a BÑDD agent present, stated after hearing the agent’s statement of the value of the marijuana that this value ($250 per brick) was “not what they paid for the material while they were there.” The admission was voluntarily made in the presence of counsel and indeed the attorney told Edwards to be quiet as the statement ended. This admission is not like that in Bruton because DeBerry’s own admissions indicated that he had gone to California with Edwards to purchase marijuana and that they did indeed make such a purchase and ship the contents in the plaid suitcase from which the bricks of marijuana were recovered. While in United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973), we have recently questioned the rule that permits “interlocking confessions” of codefendants to be admitted in evidence, it is nevertheless the law of this circuit.. See United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert, denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). There was, moreover, considerable independent evidence connecting DeBerry to the crime, including their conceded trip to California and the circumstances relative to the receipt of the suitcase from Emery as to which DeBerry signed a false name.

The ■ point that is the most troublesome in this appeal is the fact that both Edwards and DeBerry employed the same attorney at trial; they each now argue that this violated their sixth amendment right to effective assistance of counsel. While it may be true that each of them had similar interests and were joined together as coparticipants in the crime, it also is quite obvious, as we indicated in United States v. Alberti, 470 F.2d 878, 881-882 (2d Cir. 1972), cert, denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973), that when the court becomes aware of a potential conflict of interest, the court

should conduct a hearing to determine whether there exists a conflict of interest . . . such that the defendant will be prevented from receiving advice and assistance sufficient to afford him the quality of representation guaranteed by the sixth amendment. [And the court should] see that the defendant is fully advised of the facts underlying the potential conflict and is given an opportunity to express his or her views.

It is obvious that a situation involving potential conflict arises frequently where the same attorney is representing two defendants. Thus it is a rule of practice in at least one circuit, and we understand in a number of district courts, always to have separate counsel for each defendant. Ford v. United States, 126 U.S.App.D.C. 346, 379 F.2d 123 (1967). At the same time, this court has held that “[t]he rule in this circuit is that some specific instance of prejudice, some real conflict of interest, resulting from a joint representation must be shown to exist before it can be said that an appellant has been denied the effective assistance of counsel.” United States v. Lovano, 420 F.2d 769, 773 (2d Cir. 1970). See also Morgan v. United States, 396 F.2d 110, 114 (2d Cir. 1968). Where no prejudice is shown the joint representation is not impermissible. United States v. Alberti, 470 F.2d at 881.

We think there was prejudice shown here as to each of the defendants. It is true that Edwards and DeBerry knew each other for several years, and that in some ways Edwards was like an “uncle” to the younger man. At the trial — after DeBerry denied at the suppression hearing that he knew the name of the man who had given him $50 to collect the suitcase — DeBerry proceeded to testify on cross-examination that it was Edwards who had promised him that money. From this the Government argues that it was a “calculated strategy of both defendants” for DeBerry to shift the blame to Edwards in the hope that DeBerry would be acquitted. This strategy, if such it were, obviously might have worked to the prejudice of Edwards. Indeed there was a colloquy at the beginning of the second day of the trial in which the Assistant United States Attorney said that it had come to his attention that there was a possibility that Edwards would take the stand, incriminate himself and exonerate the co-defendant, which would present a “severe problem” with the same attorney representing both defendants. The attorney for the defendants said, however, that she would only put DeBerry on the stand, and the court then inquired as to whether DeBerry would testify “in any way incriminating Mr. Edwards . ?” The reply of counsel was, “Not as .far as I know, Judge. No, sir.” Of course, DeBerry did testify and incriminate Edwards, which may have been fine for DeBerry, but we fail to see how Edwards could properly have been advised to permit this to occur or to agree to it as a matter of “defense strategy” at least after DeBerry in the suppression hearing had said that he did not know who promised to give him the money to collect the suitcase. The situation cuts the other way also. Had Edwards taken the stand, which independent counsel might have advised him to do, DeBerry would have been able to cross-examine him as to the statement made before the magistrate concerning the value of the marijuana which incriminated DeBerry. We say it incriminated DeBerry because, while admittedly De-Berry went to California to buy “grass,” he spent his time there swimming and dancing while Edwards went out alone, and DeBerry testified that he did not buy the marijuana and that he did not know the marijuana was in the valise. As we said in Morgan v. United States, 396 F.2d at 114, the possibility of a conflict of interest is present

especially where there is a question as to whether either or both of the defendants should take the stand. The attorney’s freedom to cross-examine one defendant on behalf of another will be restricted where the attorney represents both defendants. And if, where two defendants are represented by the same attorney, one defendant elects to take the stand and the other chooses not to, the possible prejudice in the eyes of the jury to the defendant who does not take the stand is almost inescapable.

Thus it seems to us that this is precisely the situation in which, as stated in Morgan, the trial court should have conducted the most careful inquiry to satisfy itself that no conflict of interest would be likely to result and that the parties involved had no valid objection.

It is true that here, on the second day of .trial, at the time of the colloquy previously referred to, counsel for both defendants did assure the court that “I have explained and gone over all of the facts with both of these defendants in my office numerous times. [W]e have discussed it very carefully and I have been very careful about this.” Transcript at 179. This is quite another thing, however, from the court’s interrogating the individual defendants, themselves. It is also true that, at the time of sentencing, the court did conduct just such an inquiry, but by that time the damage — so to speak — had been done. Moreover, it may be assumed that neither party would have wanted to annoy the court at that stage of the proceedings.

Further indication of prejudicial conflict of interest in this case relates to the testimony of Police Sergeant Figel-sky, the first witness for the Government. Counsel for defendants DeBerry and Edwards recalled Figelsky to the stand and, after stating that she wanted “the record clear that I am questioning Mr. Figelsky only as to Mr. DeBerry,” and after the court stated that it felt no limitation by reason of that statement, counsel asked Figelsky how tall Mr. DeBerry was, what he weighed and how old he was, and whether the description of the man who checked the bag in Los Angeles fitted that description. She received a “no” answer. Counsel for code-fendant Padilla followed the same line as to his defendant, with the same result. No one cross-examined Figelsky with respect to Edwards, and the obvious implication — from Edwards’ point of view- — was that he was probably the person who checked the bag. But it was his counsel who had planted this inference.

The Government argues, as we have said, that it was decided by the defendants that Edwards would serve as the “fall guy” and it was hoped that De-Berry would be acquitted. We do not know this, but even if we did, there would be all the more a conflict of interest. No one should be represented by an attorney who is making him the “fall guy” by design. To hold otherwise would open the door to many abuses going to the essentials of a fair trial. While there is perhaps less reason for saying that DeBerry was prejudiced by the joint representation, it is in the best interests of justice, we think, to reverse and remand for a new trial as to both parties after the court has ascertained that each either has separate counsel or that, from the beginning, each understands clearly the possibilities of a conflict of interest and waives any rights in connection with it. We are aware from the colloquy that took place at sentencing that apparently Edwards was paying the bills for both and that accordingly defendant DeBerry may have gone along with the joint representation. However, if he is indigent, counsel can be assigned to him under the U.S.C.J.A., 18 U.S.C. § 3006A, and it is our view that only by this remand can each appellant be assured fully of the fair trial with effective assistance of counsel that the sixth amendment requires.

Judgment reversed and remanded.

MOORE, Circuit Judge

(dissenting):

I dissent.

To me the majority opinion provides another example of an appellate court, in effect, substituting itself as trial counsel for the defense after having become imbued with the wisdom of hindsight.

In my opinion the majority deals correctly with most of appellants’ allegations of trial error. With respect to the claim that the absence of a search warrant was critical, the majority quite properly hold that “no warrant was required.” Similarly, concerning the sufficiency of the evidence adduced to prove that appellant DeBerry possessed twenty-five pounds of marijuana with intent to distribute, the majority finds that the evidence was “sufficient to have permitted this, issue to go to the jury.” Finally, it disposes of appellant De-Berry’s Bruton claim, concluding that there was “considerable independent evidence connecting DeBerry to the crime.” Up to this point the majority and I travel on parallel paths, both leading to af-firmance. Suddenly, however, the majority veers sharply from their path. It believes that “a potential conflict of interest existed” because “both Edwards and DeBerry employed the same attorney at trial.” According to the majority, this potential for conflict violated defendants’ Sixth Amendment rights and necessitates a remand.

The majority would, in effect, create a rule of law that in every criminal case in which two or more defendants are represented by the same counsel, there must be a preliminary examination by the trial court of counsel and their clients as to the possibility of conflict which would, in turn, to be effective, necessitate a full disclosure by defense counsel of counsel’s defense plans and strategy. This the trial judge did not do; but quaere, had he done so, might not a double jeopardy situation have been created or a possible interference with defendants’ Sixth Amendment rights ?

In this case each defendant consciously and voluntarily chose Ms. Gerling to represent him at trial. The potential for conflict here was first noticed by the trial judge when he was apprised of the fact that in the exercise of her discretion Ms. Gerling had decided to place only DeBerry not Edwards on the stand. He questioned Ms. Gerling about the conflict problem. She replied:

“I have explained and gone over all the facts with both of these defendants in my office numerous times. Any conflicts, and we have discussed it very carefully, and I have been very careful about this.”

Such a decision would not have been unusual. One defendant might have had a long criminal record — a deterrent to putting him on the stand. The other defendant with an unblemished record might have taken the stand without this fear.

Again at the time of sentencing, the subject of conflict was reviewed and counsel said:

“May I say this, sir, it was a problem to me also and that is why I very carefully explained to both clients, as I said sir, both together and separately.
* * ■ -* * * *
“May I say this, Judge: I have handled Mr. DeBerry’s family, different members of his family, for different cases and I also know Mr. Edwards through himself and I was very, very careful but it was not to my advantage, and I say this and I think your Honor understands what I mean, it was not to my advantage to handle both of them. It meant the same to me whether I handled one of them or both of them, sir.”

Not satisfied with counsel’s statements, the trial judge inquired of the defendants themselves as to their awareness of a possible conflict situation. The following colloquy took place:

“The Court: Can you tell me, did you discuss that very possibility ?
Ms. Gerling: I discussed that very possibility with both Mr. DeBerry, both together and separately, sir.
The Court: Is that true Mr. Edwards ?
Defendant Edwards: Yes.
The Court-: Mr. DeBerry, is that true?
Defendant DeBerry: That is true sir.”

What more could a careful trial judge have done? He does not have the right (nor should he) to tell the defendant that he did not approve of Ms. Gerling’s trial judgment and was therefore going to appoint counsel whose ideas were more in accord with his own notions of strategy. This court has held that: (United States v. Sheiner, 410 F.2d 337, 342 (1967)):

“. . . defendants who retain counsel also have a right of constitutional dimensions to representation by counsel of their own choice . ; that choice should not unnecessarily be obstructed by the court.”

To disapprove of the trial court’s handling of this case is to call this principle into question. As previously stated, the only course of action open to the trial judge under those circumstances would be to make inquiry as to possible conflict from both defendants’ counsel and defendants themselves before the trial commences. But any such procedure would in most cases call for a complete preliminary trial because frequently the potential for conflict might not appear (even as here) until the trial was well underway. Furthermore, defense strategy might be impaired if there were such an enforced disclosure. In my opinion there can be no question of the propriety and adequacy of the trial judge’s conduct in this case. Although he conducted no preliminary trial, he pursued the interests of the defendants to the. limit permitted by the law as soon as he became aware of a possible conflict.

There scarcely has been, is, or will be a trial in which unsuccessful counsel will not be able to think of some tactic that in retrospect he wishes he had or had not followed. The trial and appellate courts, once they have satisfied themselves that a certain trial strategy was voluntarily chosen by defense counsel, and voluntarily approved by the defendant, must leave the steering of the trial in the hands of counsel. To apply the hindsight sagacity expounded by the majority opinion is to undermine the whole structure of our adversary system of justice. Such a holding would give all defendants, where two or more are represented by common counsel, the opportunity to claim some conflict which could easily arise or could possibly be conjured up on appeal, reducing the first trial to nothing more than a trial run.

Experienced trial counsel will probably not disagree too much with the frequently heard expression that a courtroom trial is a game — possibly so, but the game should not be akin to duplicate bridge.

I can find no error in the trial judge’s conduct under the circumstances here presented and, hence, would affirm.

      . The right of air freight shippers to inspect all packages shipped by them is established in tariffs filed by the respective carriers or the freight-forwarding agents with the Civil Aeronautics Board (Board) pursuant to 49 U.S.C. § 1373(a). These tariffs, if valid, “are conclusive and exclusive, and the rights and liabilities between airlines and their passengers are governed thereby.” Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403 (2d Cir. 1969). The practical effect of this arrangement is that the person shipping goods consents to the inspection of his goods by entering into the contract of shipment. The Board’s involvement in these inspections ■ — and therefore the Government’s — is limited to accepting the tariffs as filed and providing a forum for challenges to the tariffs by either the Board or interested parties.

      . See note 1 supra.

      . We explicitly reject the Government’s contention that to require' the agents in New York to obtain a search warrant would be unduly burdensome and would therefore be controlled by this circuit’s decision in United States v. Carneglia, 468 F.2d 1084 (1972). The Government’s argument proceeds from the premise that “no flight number or arrival time was communicated to Agent Ray-bourn” during the conversation with the Los Angeles police on May 11. Brief for Appel-lee at 7. The appellee’s own brief, at 3, and the transcript of the trial, at 11, contradict this premise. Raybourn was told the flight number at about 2 :00 a. m. New York time, and the bag did not arrive until 5 :10 p. m. of that day — 15 hours later. The time at which Agent Noone received notice of the arrival of the TWA flight — one hour before its arrival — -is irrelevant to our consideration of whether Agent Raybourn or other officials privy to the 15-hour pre-arrival notice given by the Los Angeles police could have, with no inconvenience, obtained a warrant for the seizure of the bag in New York.

      . It is not significant that it was a sergeant from the Los Angeles Police Department who initially seized the suitcase, but the federal government which utilized it for ■ evidence. From beginning to end the operation was joint between Figelsky in California, agents of the BNDD in New York, and detectives of the New York Port Authority. Such cooperation and teamwork are a laudable and necessary adjunct to the nationwide attack against drugs, and it does not serve the purpose of the fourth amendment in any way to create unnecessary stumbling blocks to such cooperation. Thus this situation is clearly distinguishable from United States v. Birrell, 470 F.2d 113 (2d Cir. 1972), where documents seized legally for one purpose by the New York City Police were not returned to the owner, despite his demand, when the police had no further right to them, but rather were given to a federal prosecutor who used them to develop evidence in a wholly unrelated case.

      . See United States v. Doe, 472 F.2d 982 (2d Cir.), cert, denied, 411 U.S. 969, 93 S.Ct. 2160, 36 L.Ed.2d 691 (1973).

      . This inquiry by the district judge, however well-intentioned, is not sufficient to establish the absence of prejudice to either of the defendants. We agree with the approach of the First Circuit that the lack of a satisfactory inquiry shifts the burden of proof on the question of prejudice to the Government. United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972).


author: BRYAN, Senior Circuit Judge:

text:
    Emanuel H. ARD, as Administrator of the Estate of Elizabeth R. Ard, Deceased, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee. James H. MOORE, Jr., as Administrator of the Estate of Loretta B. Moore, Deceased, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.
    Nos. 72-2346, 72-2347.
    United States Court of Appeals, Fourth Circuit.
    Argued June 5, 1973.
    Decided Oct. 15, 1973.
    Rehearing Denied Dec. 7, 1973.

      John A. Martin, Winnsboro, S. C. (Ted H. Bradberry, Winnsboro, S. C., on brief), for appellants.
    H. Simmons Tate, Jr., Columbia, S. C. (John H. Lumpkin, Jr., Boyd, Knowlton, Tate & Finlay, Columbia, S. C., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   BRYAN, Senior Circuit Judge:

A train of the Seaboard Coast Line Railroad struck, in the early afternoon of March 25, 1971 near Columbia, South Carolina, a station wagon as it was crossing the track at Brickyard Road, killing the four occupants. Two of these were 11-year old Elizabeth R. Ard and Loretta B. Moore, daughter and sister, respectively, of the driver. Their personal representatives sued in these two actions to recover damages, actual and punitive, for their deaths, laying the blame on the negligence of the Railroad. A verdict was directed for the defendant. The judgment thereon, upon the plaintiff’s 'appeal, will be reversed and a new trial directed.

The trial judge, at the conclusion of all the evidence, appraised the proof as insufficient to allow the jury to find the Railroad negligent. However, when the testimony is viewed in the light most favorable to the plaintiff, as is required on the motion for direction of a verdict, Webb v. Robinson, 241 F.2d 99, 101 (4 Cir. 1957), we think a jury could have found for the plaintiff. As District Judge Chapman pithily phrased it, “[T]he only thing [the plaintiff] has to prove is one act of negligence that operated as a proximate cause, not the proximate cause, a concurring cause”. (Accent in original). Conversely, the inquiry is whether the automobile driver’s negligence, if any, was the sole proximate cause of the accident.

The plaintiff chiefly ascribes negligence to the defendant’s failure to maintain a flagman, flashing lights or other warning precautions at the crossing, and to the operation of trains at a dangerous speed, knowing the crossing was hazardous and heavily travelled.

Plaintiff’s proof permitted the jury to deduce these facts. The railroad line, a single track, runs north and south; the train was proceeding northward; and Brickyard Road crosses east and west at

pendence upon the crossing statute, Code of Laws of South Carolina, 1962, § 58-1004. grade. The station wagon was proceeding west to east, having just picked up the decedent child at a school on the west side of the track about a city block away. Both snow and sleet had been falling in the morning causing ice to form on Brickyard Road, but only the snow continued through the day. Because of the weather the school had closed early. The station wagon was headed for U. S. highway # 1, paralleling the track on the east side thereof.

The distance from the west or nearest edge of highway #1 to the easternmost rail was less than the length of a bus, so that a bus stopping to enter the highway could not completely clear the track. Apparently, just before the catastrophe, the station wagon was standing behind an automobile which was awaiting an opportunity to turn onto highway #1. At that moment the rear of the station wagon was hit by the train.

Approaching the track from the west on Brickyard Road, the station wagon passed a State railroad warning sign about 450 feet away from the crossing. Next, approximately 335 feet from the crossing, there was a Highway Department “Stop Ahead” sign. Then, written on the surface of the road 138 feet from the track, was a railroad sign “RXR”. Further on is a railroad crossing sign and a red “stop” sign, both about 15 feet from the track. Also, there were crossbuck stop signs at the track, indicating the crossing.

To the right of the driver there were four 50-foot boxcars standing on a siding just west of the main track and 325 feet from the crossing. Additionally, to the south of Brickyard Road, some 125 feet from the center of the main track on the west side, was an industrial building. The employees of the industry parked automobiles to the east of this building at right angles to the west side of the track. From the red “stop” sign, visibility was unobstructed for a distance of 2000 to 2500 feet in the direction from which the train was coming.

Closely following the station wagon was an automobile driven by a father with his two children whom he had also just taken from the school. He testified that the station wagon stopped about three feet in front of him before reaching the track. No train, he says, was then in sight. In the next split second he heard a locomotive whistle. By that time the rear end of the station wagon had already progressed onto the track; in front of the station wagon were one or more cars waiting to turn onto highway #1. The train’s speed was 60-65 mph. A passenger in a car driving southward on highway #1 near the crossing testified that a building as close as 200 feet was not visible. She said, “[I]t was snowing the hardest I have ever seen”.

Statistics showed that 7200 children were bussed over this crossing each school day. Almost three years before the accident, a representative of the school board had written the railroad asking that flashing signal lights be put at this crossing. In reply he was told that the matter would be given careful consideration and Management’s decision would be communicated as quickly as possible. No flashing lights were in place on the day of the accident.

Of course, this recitation of “facts” disregards the defendant’s contradictions of them in the evidence. Our recount is not intended as a final resolution in plaintiff’s favor of all fact clashes, of impeachments of testimony or of differences in weight of probative evidence. It is simply a narrative of the facts as they were postulated by the defendant’s motion for a directed verdict. Thus submitted they framed the following issues which, we think, should have been sent to the jury:

1. Whether the railroad was neglectful in not having a flagman, or other means, to regulate the respective movement of trains and vehicles at the crossing, because of the unusual circumstance obtaining there, that is, the inability on occasion of a vehicle, without fault of its driver, to clear the tracks fully. This is due to the nearness of highway #1 traffic to the tracks, a distance, to repeat, of less than a bus length. Although reasonably careful, a driver might still readily miscalculate the opportunity for completing a transit of the crossing by misjudging the extent of the back-up of the preceding vehicles and the occupiable space remaining.

“It is the duty of a railroad . . . to give such signals at a public crossing as may be reasonably sufficient, in view of the peculiar situation and surroundings at the time, and as will give the public and individuals warning of the approach and guard them against danger.” (Accent added.) Miller v. Atlantic Coast Line R. Co., 140 S.C. 123, 138 S.E. 675, 687 (1927), cert, denied, 275 U.S. 556, 48 S.Ct. 117, 72 L.Ed. 424 (1927). Of course, there is a reciprocal duty of the traveller to “use his senses of sight and hearing to the best of his ability” to avoid a collision; and his failure to do so may defeat his suit according to the “attendant circumstances”. Taylor v. Powell, 195 S.C. 486, 12 S.E.2d 27, 28 (1940).

2. Similarly, a controversy developed in respect to the signals given by the locomotive. Required crossing signals are explicitly laid out by the Code of Laws of South Carolina, 1962, § 58-743. Although defendant’s case includes a proof of obedience to these exactions, plaintiff adduces evidence from which, if believed, a jury might find that the whistle blasts, if sounded, were not seasonably given.

Understandably, the Railroad observes that the automobile windows of those witnesses who testified to a delinquency in the giving of the engine’s warning signals were closed. Seemingly, it was a circumstance to be anticipated by the defendant in the winter time, especially in a snow storm, but this was a factor for consideration by the jury.

Issues of fact and law are thus posed, and their determination was for the jury on appropriate instructions. In noting these triable issues we do not mean to say they are the only ones, on a new trial, which should be put before the jury. The District Judge may find other fact differences calling for jury resolution.

Because of the existing, but unsub-mitted, issues just recited, the District Court’s dismissal of the .action must be vacated and a new trial granted.

Vacated and remanded for a new trial.

      . Each of the cases was brought on a wrongful death statute of the Code of Laws of South Carolina, 1962, § 10-1951, and jurisdiction rested on diversity of citizenship. Since the two embrace identical allegations of negligence, they will be considered together as one suit.

      . The actions were premised on common law negligence alone, with disavowal of any de-

      . The parties agree that any contributory negligence on the part of the vehicle’s driver was not imputable to the other occupants. See Padgett v. Southern Ry. Co., 216 S.C. 487, 58 S.E.2d 895, 898 (1950).


author: PER CURIAM:

text:
    The DUPLAN CORPORATION et al., Appellees, v. DEERING MILLIKEN RESEARCH CORPORATION, Appellant.
    No. 73-1357.
    United States Cburt of Appeals, Fourth Circuit.
    Argued June 5, 1973.
    Decided Sept. 27, 1973.

      Certiorari Denied March 18, 1974.
    See 94 S.Ct. 1565.

      See also, D.C., 370 F.Supp. 769.
    Simon H. Rifkind, New York City (Butler, Means, Evins & Browne, Spar-tanburg, S. C., Paul, Weiss, Rifkind, Wharton & Garrison, Morgan, Finnegan, Durham & Pine, New York City, Thomas A. Evins, Spartanburg, S. C., and Robert S. Smith, New York City, on brief), for appellant.
    Paul B. Bell, Charlotte, N. C., and William K. West, Jr., Washington, D. C., (Parrott, Bell, Seltzer, Park & Gibson, Charlotte, N. C., Willkie, Farr & Gallagher, New York City, Laatherwood, Walker, Todd & Mann, Greenville, S. C., Cushman, Darby & Cushman, Washington, D. C., Haynsworth, Perry, Bryant, Marion & Johnstone, Greenville, S. C., Smith, Moore, Smith, Schell & Hunter, David Rabin, Greensboro, N. C., Perrin, Perrin & Mann, Spartanburg, S. C., John W. Malley, W. Warren Taltavull, Washington, D. C., and Michael R. Abel, Greensboro, N. C., on brief), for appellees.
    Before BRYAN, Senior Circuit Judge, and FIELD and WIDENER, Circuit Judges.
   PER CURIAM:

Deering Milliken Research Corporation appeals from an order of the district court granting summary judgment holding two United States patents invalid under 35 U.S.C. § 102(d) on the ground that the claimed inventions had been patented in France prior to the applications for the United States patents on applications which had been filed in France more than twelve months prior to the United States applications. Involved are United States Patents No. 3,137,119 and No. 3,382,656 and their French counterparts Nos. 1,267,239 and 1,427,001, respectively.

The primary issue upon this appeal is whether an invention is “patented” in France within the meaning of 35 U.S.C. § 102(d) when a decree of issuance is signed by the French Patent Office (the délivré date) or the date that its contents are made available to the public by publication in the Bulletin Offieiel de la Propriete Industrielle (BOPI). Additionally, the appellant contends that the invention described and claimed in French Patent No. 1,427,001 is not identical, as a matter of law, to the invention described and claimed in United States Patent No. 3,382,656.

It is conceded that in each instance the application in the United States was filed after the delivery date (délivré) of the French patent, but before it was published in the BOPI. In his original and supplemental opinion and order the district judge carefully analyzed the French patent procedure and concluded that the exclusive rights which the nature of a patent includes and envisions accrue to the inventor in France on the date of delivery rather than on the date of publication. Upon "óur review of the record and the briefs we agree with the district court that in the context of Section 102(d) under the French procedure délivré is the operative patent date. See Ritter v. Rohm & Haas Company, 271 F.Supp. 313 (S.D. N.Y.1967); Ex parte Gruschwitz, 138 U.S.P.Q. 505 (Pat.Off.Bd.App.1961).

We also agree with the conclusion of the district court that French Patent No. 1,427,001 and its United States counterpart No. 3,382,656 are for all intents and purposes identical. The district judge had before him the French patent together with an English translation, and while he noted that the American patent contained more detailed specifications and claims than the French version he found that this was attributable to the procedural requirements of the United States Patent Office and did not change the basic nature of the invention. The contention of the appellant that the American patent contains significant and distinguishing improvements is readily answered by the observation of the Court in Siemens v. Sellers, 123 U.S. 276, 283, 8 S.Ct. 117, 119, 31 L.Ed. 153 (1887):

“It is contended by thé counsel of the complainants that the American patent contains improvements which are not exhibited in the English patent. But if this were so, it would not help the complainants. The principal invention is in both, and if the American patent contains additional improvements, this fact cannot save the patent from the operation of the law which jis invoked, if it is subject to that law at all. A patent cannot be exempted from the operation of the law by adding some new improvements to the invention; * *

Summary disposition by the district court was appropriate and the judgment below is affirmed.

Affirmed.

      . 35 U.S.C. § 102(d) reads as follows:
      “A person shall be entitled to a patent unless—
      (d) the invention was first patented or caused to he patented by the applicant or his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an application filed more than twelve months before the filing of the application in the United States, * * * ”

      . In his opinion which is reported at 353 F. Supp. 826, the district judge summarized the French patent procedure as follows:
      “In France, the patent office is concerned primarily with (1) novelty and (2) industrial impact. Once a given application has satisfied the filing requirements and been processed, it is ready for delivery (délivré), and some four weeks after delivery it is published in the BOPI. * * * The deliverance date is the date of the signing or facsimile of signing by the patent ministry, or minister, and upon that date, and thereafter, the inventor who receives the patent, at his discretion, may disclose the contents of his application to third parties, for selling or other considerations. The applicant has the right to request a postponement for one year in ‘deliverance.’ The publication, and making available to the public, is the publication of the ‘ABKEGE descriptive’ (summary specification in the official gazette). The moment of publication is considered to be the point of time when the official gazette (BOPI) is brought from the French National Printing Office and physically enters the reading room on the ground floor of the INPI [Institute Na-tionale de la Propriete Industrielle (French Patent Office)].”


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Salvadore J. NUCCIO, Defendant-Appellant.
    No. 73-2416
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    Nov. 16, 1973.
    Rehearing and Rehearing En Banc Denied Jan. 16, 1974.
    Michael F. Barry, New Orleans, La., for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Stephen A. Mayo, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Nuccio was convicted by a jury in the Eastern District of Louisiana of having violated 18 U.S.C. § 1202 (a)(1). We affirm.

Appellant’s only substantial claim on appeal is that 18 U.S.C. § 1202(a)(1) was not proven by the government to be applicable in his case. That statute says, in part: “Any person who has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony and who receives, possesses, or transports in commerce or affecting commerce, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” Appellant argues that the government failed to show any nexus between appellant’s receipt and possession of the pistol and interstate commerce. The test as to what must be shown by the government has been clearly delineated by the Supreme Court in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The Court said, “ . . .we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce.” 404 U.S. at 351, 92 S.Ct. at 524. This circuit recently reiterated that position in United States v. Thomas, 5 Cir. 1973, 485 F.2d 557.

Testimony at trial demonstrated that the weapon found on Nuccio was shipped from New York City to Dallas, Texas, and then to Golden Meadow, Louisiana. This court has carefully examined the record below and find the government met the requirements of Bass and Thomas, supra.

Appellant’s other contentions concern double jeopardy, search and seizure, self-incrimination and jury composition. We have considered all of these contentions and have found them to be without merit.

Affirmed.