text:
    UNITED STATES of America ex rel. Michael HILL, Petitioner-Appellant, v. Vito TERNULLO, Superintendent, Elmira Correctional Facility, Respondent-Appellee.
    No. 526, Docket 74-2351.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 9, 1975.
    Decided Feb. 10, 1975.
    William Epstein, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for petitioner-appellant.
    Margery Evans Reifler, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Barbara Ann Shore, Asst. Atty. Gen., of counsel), for respondent-appellee.

      Before SMITH, OAKES and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Michael Hill seeks release by way of a writ of habeas corpus from his current incarceration by the State of New York. Without conducting an evidentiary hearing, United States District Judge Harold P. Burke of the Western District of New York denied, on October 5, 1974, Hill’s petition for the writ. On appeal, the petitioner argues, as he did in the district court, that his confinement is unlawful because it is based upon a plea of guilty rendered without (1) knowledge of the constitutional rights necessarily waived by such a plea, (2) a factual basis on the record to support the plea, and (3) understanding of the sentencing possibilities. The district court erred in refusing the petitioner an evidentiary hearing on this last point, and we remand for its proper consideration. 28 U.S.C. § 2254; compare Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973) (per curiam). Since this disposition may well obviate the need for consideration of the petitioner’s two remaining claims, we refrain from passing on them at this time.

On June 20, 1970, the appellant, then 17 years of age, pleaded guilty in Monroe County Court (Rochester, N.Y.) to second degree robbery. The court, Judge George D. Ogden, accepted his plea in satisfaction of two indictments charging him with various counts of robbery, larceny and attempted murder. The court sentenced Hill to an indeterminate prison term of no less than five years and no more than 15. In his petition for a writ of habeas corpus to the district court for the Western District of New York, the appellant contended that this sentence violated his understanding of the possible consequences of his guilty plea:

Petitioner was told by lawyer (private) that the maximum amount of time he would receive was four years in the Elmira Reformatory. This was said in one of the total of two private meetings between counsel and client. . . . Petitioner hoping court would act with leneicy [sic] . . . pleaded guilty in hopes of getting probation instead of foru [sic] years. To the best of my recollection, at the time Michael Hill was sentenced, there was some confusion, on my part, concerning his sentence. It was my understanding that the sentence was from five to fifteen years. . This meant that with good behavior he would be out in two-thirds of the minimum time, or approximately two years. - As I recall, this is the way it was explained to Michael. Thereafter, as I recollect, there was a change in the law and he was required to serve the full minimum term.

Petition of October 27, 1972, for Writ of Habeas Corpus at 2. In a letter of July 12, 1973, to the appellant’s counsel in the district court, Gerald L. Dorsey, Hill’s attorney in the state court proceeding, made no mention of the erroneous advice which, according to Hill, he rendered; instead, he pointed to another possible source of misunderstanding:

Appendix of Appellant at C4. This advice regarding the defendant’s minimum tenure in prison was, if in fact given, clearly a misrepresentation of the then-existing New York law: Under statutes effective as of September, 1967 — almost three years prior to the entry of Hill’s plea — a defendant sentenced to an indeterminate term would not be eligible for parole until he had served the minimum period fixed by the court, which could be as much as one-third of the maximum period established. N.Y.Penal Law §§ 70.00, 70.40(1)(a) (McKinney’s Consol. Laws, c. 40, 1967). Since Hill was pleading guilty to a class C felony, which carries a statutory maximum of 15 years imprisonment, he stood to receive a minimum sentence of up to five years, and this upper level minimum without possibility of parole is what he in fact did receive. Id. § 160.10.

The court below rejected, without a hearing, the petitioner’s claim that his plea was tainted by a misunderstanding, fostered by counsel, of the sentence consequences of the plea. In so doing, Judge Burke did not attempt to resolve the apparent conflict between the appellant’s and Dorsey’s versions of the advice rendered. Rather, the court found, as a matter of law, that the claim lacked merit:

This is not a valid claim of infringement of the petitioner’s rights under the federal constitution. If the defendant’s retained attorney was mistaken, as to the sentence the petitioner might receive as a result of his guilty plea, and it is not clear from the letter from Dorsey to Barrett that he was misinformed, that does not amount to an infringement of the petitioner’s rights under the federal constitution.

Appendix of Appellant at C7.

This statement of the law misconstrues the thrust of recent decisions of the Supreme Court and of this court. Thus, while McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970), insulates judgments entered on a guilty plea from attack for mistaken “good-faith evaluations of a reasonably competent attorney,” it does require that counsel’s advice be “within the range of competence demanded of attorneys in criminal cases.” Id. at 771, 90 S.Ct. at 1449. In a similar vein, while this court has held on various occasions that an attorney’s mistaken estimate to his client of possible sentence does not deprive the defendant’s subsequent plea of the requisite intelligent and voluntary quality, United States ex rel. LaFay v. Fritz, 455 F.2d 297 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (1972); United States ex rel. Bullock v. Warden, Westfield State Farm for Women, 408 F.2d 1326 (2d Cir. 1969), cert. denied, 396 U.S. 1043, 90 S.Ct. 688, 24 L.Ed.2d 686 (1970), it has recognized that counsel’s failure to advise his client properly on the maximum term fixed by statute for an offense may vitiate the pleading, United States ex rel. Leeson v. Damon, 496 F.2d 718 (2d Cir.), cert. denied, 419 U.S. 954, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974).

In the case under review, there is evidence that the defendant’s plea, like Leeson’s, was made with reliance on erroneous legal advice about the ultimately knowable: the length of time which, under the applicable statutes, he might be kept in prison. If Hill was led to believe that he faced a maximum sentence of four years in a juvenile institution, his situation obviously parallels Leeson’s and he is entitled to similar relief. On the other hand, if Hill was confused about the minimum period of his incarceration, Leeson also controls: Misinformation about a statutory minimum is no less demonstrative of counsel’s incompetence, nor necessarily less significant to a defendant’s decision to plead guilty, than an error about a statutory maximum. In both instances, counsel is not being second-guessed about a prediction which has proven inaccurate but, rather for a misstatement of easily accessible fact.

On the record before us, however, we hesitate to rule on the merits- of the petition. Because of its erroneous view of the law, the district court did not attempt to resolve the petitioner’s understanding of the sentence consequences when he pleaded guilty. If it finds that the petitioner’s plea was made without understanding of the minimum or maximum sentence possibilities, the district court must issue the writ or grant other appropriate relief, see Leeson, supra, 496 F.2d 718 at 722. On the basis of the petitioner’s and Dorsey’s apparently conflicting versions of the facts, we cannot say with the requisite certainty whether one, both or neither alleged defect in understanding tainted the plea. An evidentiary hearing will enable the district court to make this determination with greater assurance. We therefore reverse and remand to the district court for proceedings consistent with this opinion.

Reversed and remanded.

      . Judicial restraint is also counseled by the novelty in this circuit of the constitutional issue presented by the appellant’s first point. In McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court, in explaining the requirements established by Fed.R.Crim.P. 11 for the acceptance of a guilty plea, emphasized that a valid plea includes an intelligent waiver of one’s Fifth Amendment privilege against self-incrimination and Sixth Amendment rights to jury trial and to confront one’s accusers. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), announced, as a matter of Fourteenth Amendment due process, that the guidelines elucidated in McCarthy applied in general to the states. As in McCarthy, the Court recited the three constitutional guarantees which must be knowingly waived. Id. at 243, 89 S.Ct. 1709. When Hill pleaded guilty, the court did not ask him whether he realized that he was relinquishing these rights. The circuits which have addressed the issue agree that, under Boykin, specific questions about the waiver of these rights are not required. See, Todd v. Lockhart, 490 F.2d 626, 628 n. 1 (8th Cir. 1974); Stinson v. Turner, 473 F.2d 913, 915-16 (10th Cir. 1973); Wade v. Coiner, 468 F.2d 1059, 1061 (4th Cir. 1972); United States v. Frontero, 452 F.2d 406, 415 (5th Cir. 1971). There is impressive authority to the contrary, however, In re Tahl, 1 Cal.3d 122, 132-33, 81 Cal.Rptr. 577, 460 P.2d 449 (1969), cert. denied, 398 U.S. 911, 90 S.Ct. 1708, 26 L.Ed.2d 72 (1970). We postpone for the present, therefore, a decision on this question.

      . In People v. Hill, 38 A.D.2d 689, 326 N.Y.S.2d 1012 (4th Dept. 1971), the Appellate Division rejected, without opinion, Hill’s challenge to his conviction on this ground (as well as 12 others). The New York Court of Appeals denied leave to appeal. In raising this claim in his habeas petition, the appellant has thus satisfied the exhaustion requirements of 28 U.S.C. § 2254.

      . § 160.10 Robbery in the second degree
      A person is guilty of robbery in the second degree when he forcibly steals property and when he is aided by another person actually present.
      Robbery in the second degree is a class C felony.
      § 70.00 Indeterminate sentence of imprisonment for felony
      1. Indeterminate sentence. A sentence of imprisonment for a felony shall be an indeterminate sentence. When such a sentence is imposed, the court shall impose a maximum term in accordance with the provisions of subdivision two of this section and the minimum period of imprisonment shall be as provided in subdivision three of this section.
      2. Maximum term of sentence. The maximum term of an indeterminate sentence shall be at least three years and the term shall be fixed as follows:
      * * * * * *
      (c) For a class C felony, the term shall be fixed by the court, and shall not exceed fifteen years;
      * * * * * *
      3. Minimum period of imprisonment. The minimum period of imprisonment under an indeterminate sentence shall be at least one year and shall be fixed as follows:
      * * * * *
      (b) Where the sentence is for a class B, class C or class D felony and the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that the ends of justice and best interests of the public require that the court fix a minimum period of imprisonment, the court may fix the minimum period. In such event, the minimum period shall be specified in the sentence and shall not be more than one-third of the maximum term imposed.
      § 70.40 Release on parole; conditional release
      1. Indeterminate sentence.
      (a) A person who is serving one or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he is confined at any time after the expiration of the minimum period or periods of imprisonment that have been fixed. Release on parole shall be in the discretion of the state board of parole, and such person shall continue service of his sentence or sentences while on parole, in accordance with and subject to the provisions of the correction law.

      . On two occasions prior to the date of the plea, the state court explicitly denied, in the defendant’s presence, requests by Dorsey that Hill be considered for youthful offender status. People v. Hill, Monroe County Court, Minutes of April 30, 1970, at 6; Minutes of May 14, 1970, at 2. From these brief colloquies, however, we do not conclude, as the state would have us, Brief of Appellee at 11, that Dorsey could not have left Hill with the impression that he would receive youthful offender treatment and thus face a maximum sentence of four years. In rejecting this inference, we do not indulge the fiction that the defendant, in court at the time of the colloquies but his attention not directed to them, necessarily comprehended the import of the court’s rulings.

      . Vacating a plea on the basis of such incompetence, though, need not rest upon a finding that the defendant has been deprived of his Sixth and Fourteenth Amendment right to the effective assistance of counsel. The focus in this instance is not counsel’s effectiveness per se but, instead, his client’s understanding of the consequences of the plea — an understanding which counsel, along with the court, of course bears a heavy burden to ensure. To the extent that United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965), and other decisions of this court may indicate the contrary, we regard their authority as superseded by Boykin v. Alabama, supra. See Du Bois v. Mancusi, 325 F.Supp. 694, 698-99 (W.D.N.Y.1971). Cf. United States ex rel. Leeson v. Damon, supra.

      . We do not exclude the possibility that these versions may be harmonious and, indeed, we find substantial evidence in the record indicating that they are: In his petition for the writ, Hill indicates that he did not immediately protest the sentence, despite its deviation from his alleged expectations, “because codefendants [sic] lawyer stated we could be released in two to three years if we stayed out of trouble. . . . ” Petition, supra, at 2; Dorsey was not present at the time of the plea (another member of his firm was present in Hill’s behalf); and Dorsey’s letter does not specifically say that he advised that the minimum was effectively only about two years but rather that this was Dorsey’s impression at the time and that “this is the way it was explained to Michael [Hill].” Appendix of Appellant at C4 (emphasis added). Hill’s and Dorsey’s representations may thus be reconciled as follows: The defendant believed at the time of the plea that the maximum sentence was four years; although he was taken by surprise by the sentence given him, he did not protest at the time because his co-defendant’s counsel assured him that he could be released well before four years expired.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Adrian CUEVAS, Appellant.
    No. 577, Docket 74-2110.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 7, 1975.
    Decided Feb. 10, 1975.

      Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for appellant.
    Richard W. Brewster, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E.D.N.Y., Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.
   OAKES, Circuit Judge:

This appeal is from a judgment of the United States District Court for the Eastern District of New York, John R. Bartels, Judge, after a jury trial, convicting appellant on three counts of false declarations before a grand jury (18 U.S.C. § 1623). Appellant claims that excessive participation by the trial judge deprived him of a fair trial; that the prosecutor must advise a grand jury witness of his right to recant under 18 U.S.C. § 1623(d); and that the Government improperly brought the appellant before a grand jury in the Eastern District solely for the purpose of attempting to have him commit perjury. We affirm the judgment.

The gist of appellant’s complaint about the conduct of the trial judge was that by excessive participation in the conduct of the trial amounting to “wholesale involvement” in the Government’s case the trial judge communicated to the jury his belief in the appellant’s guilt. The principal examples of intervention referred to include the judge’s asking approximately 35 questions, while the Assistant United States Attorney asked only about 20 questions, on direct examination of the Government’s witness (Martinez) who participated in the sale of cocaine by appellant which led to the latter’s interrogation before the grand jury; the judge’s resolving two ambiguous answers in Cuevas’ grand jury testimony by interpreting them before the petit jury; and the judge’s rehabilitating the same Government witness in reference to his own grand jury testimony in which he had referred to the drugs as “Exhibit One” although there was no such exhibit before the grand jury. We have carefully examined the record and find the appellant’s complaints to be without merit.

It is true that the trial judge did participate in connection with a number of witnesses to a greater than usual extent. This occurred perhaps because there were two Assistant United States Attorneys trying this relatively simple case, from which we infer (and indeed were informed at argument) that one was inexperienced. To be sure, appellant correctly asserts that it is not the business of a trial judge who thinks the Assistant United States Attorney inadequate to step in to the point where the jury will regard him as associated with the prosecution. United States v. Fernandez, 480 F.2d 726, 737 (2d Cir. 1973). Nevertheless the federal district judge is more than a moderator or an umpire and has an active duty to see that any trial, including a criminal one, is fairly conducted, United States v. Curcio, 279 F.2d 681, 682 (2d Cir.), cert. denied, 364 U.S. 824, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960), and the issues clearly presented, United States v. Brandt, 196 F.2d 653, 655 (2d Cir. 1952). He must not, of course, interrogate defense witnesses in such a way as to reflect his disbelief, United States v. Fernandez, supra, or seek to underline inconsistencies in their positions or to elicit admissions bearing on their credibility, United States v. Brandt, supra, much less make it appear through the examination of witnesses and the harassment of defense counsel that the court believes the accused is guilty. United States v. Nazzaro, 472 F.2d 302 (2d Cir. 1973). Our examination of the record indicates that Judge Bartels did not cross these forbidden lines; rather, we view his interrogation as basically for purposes of clarification and assistance to the jury in understanding the evidence.

The two ambiguous questions from the grand jury testimony the answers to which the judge sought to clarify, note 2, supra, were not central to the charge in Count 3, the only count in which they appeared. See generally Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). Rather, they were the conclusion of extensive questioning in which appellant had specifically and repeatedly denied selling cocaine at his LaColina bar and restaurant or giving undercover narcotics officer Martinez a sample of cocaine (in a folded dollar bill) on a specific date. Appellant’s trial counsel’s prompt concurrence in Judge Bartels’ resolution of the ambiguous questions took them out of the case substantively. Nor do we think that this resolution is indicative of the judge’s belief in guilt; rather, in this instance, it evidenced the judge’s attention to a detail which might have posed a problem but for the unambiguous testimony preceding it and to which the questions referred. See United States v. Boatner, 478 F.2d 737, 740 (2d Cir.), cert. denied, 414 U.S. 848, 94 S.Ct. 136, 38 L.Ed.2d 96 (1973); United States v. Pellegrino, 470 F.2d 1205, 1207 (2d Cir.), cert. denied, 411 U.S. 918, 93 S.Ct. 1556, 36 L.Ed.2d 310 (1973).

So, too, officer Martinez’ testimony about “Exhibit One” tended to be confusing. We think the judge was justified, in the quest of truth through clarity, to inquire whether Martinez’ reference before the grand jury to “this Exhibit One which is a folded United States dollar bill with some white powder in it” was to a designation in the police case file rather than to a grand jury exhibit. The whole matter became doubly confused when it subsequently appeared on the cross-examination of another Government witness, detective Vallely, that he had referred to an attempt to purchase “Exhibit One” on February 24 when the testimony established that there was no “Exhibit One” until March 22. The judge stepped in, properly we think, to clarify that this officer, a narcotics detective, spoke of “Exhibit One” as being a quantity of narcotics, i. e., that it is essential to make a purchase to establish a case. In the light of the cross-examination of Martinez about “Exhibit One,” the testimony of Vallely would have been confusing without the explanation elicited from the latter by Judge Bartels. That explanation seems to us not only plausible, but the only one which makes sense. These are only examples of intervention, but they are appellant’s strongest and, as we have said, we believe them insufficient to warrant reversal.

Appellant’s second point is that the Government did not advise him during his grand jury appearance that he could avoid a perjury indictment by recanting. The argument is based upon a statement in one case, United States v. Lardieri, 497 F.2d 317, 321 (3d Cir. 1974), that “in some circumstances” a prosecutor may be required to advise a grand jury witness of the recantation clause in 18 U.S.C. § 1623(d). That decision, however, was vacated in an opinion of the Third Circuit filed December 18, 1974, on reargument (D.C.Crim. No. 72 — 192), 506 F.2d 319 where the court specifically held at p. 323, that “dismissing perjury indictments where the prosecutor has not given such notice would create a new impediment to successful perjury prosecutions,” and that neither the requirements of due process nor the proper exercise of supervisory powers by the court compel the prosecutor to inform the witness of the right to recant under 18 U.S.C. § 1623. We agree with the reasoning of Lardieri II, at least in situations, as both in Lardieri and here, where witnesses have been cautioned relative to perjury. To hold otherwise and impose a duty on the prosecutor to give a recantation warning in effect shields the witness from a perjury prosecution until, if ever, such a warning is given. At that point the witness has notice that perjury is suspected and can choose to recant. In addition, 18 U.S.C. § 1623(d) applies to trials as well as grand jury proceedings, and a recantation warning requirement could operate quite prejudicially in a trial setting.

Finally, appellant argues that he was brought before the grand jury in the Eastern District when in fact the alleged sale took place in the Southern District. He suggests that the venue of the grand jury proceeding reflects improper motivation by the Government. Indeed, relying on Brown v. United States, 245 F.2d 549 (8th Cir. 1957), defense trial counsel moved for a judgment of acquittal. Appellant points out that the crime involved the transfer of 4/100 of a gram of cocaine, but this was only a sample, the Government undercover agent testified, which was to lead toward a sale of a Vs kilo of “flaked” cocaine for $1,800 and a Vs kilo of “rock” cocaine for $2,000. Appellant also points out and the Government does not dispute, however, that the file of the case had apparently been closed seven months prior to the grand jury appearance and the drugs destroyed.

But the fact is that the Eastern District of New York may well be the biggest single port of entry by air or sea of heroin and cocaine in the United States. We can almost take judicial notice of this from the vast quantity of appeals we have had in this circuit arising from Eastern District importation. By calling appellant before the grand jury, had he revealed the source of his supply, much valuable information might have been obtained. Masinia v. United States, 296 F.2d 871, 876-877 (8th Cir. 1961). This is not a case like Brown v. United States, supra, since here information could lead to prosecution of offenses in the Eastern District. In Brown information elicited referred only to offenses in Missouri, not Nebraska, the site of the grand jury. Nor is it like United States v. Icardi, 140 F.Supp. 383 (D.D.C.1956), where the testimony was immaterial to the inquiry. United States v. Mandujano, 496 F.2d 1050 (5th Cir. 1974), also relied on by appellant, is also inapposite. Mandujano, which involved lack of Miranda warnings to a putative defendant before a grand jury, held that since the defendant did not have immunity, without explanation of the right to keep silent, he would either tell the truth and implicate himself or lie and open himself to a perjury indictment, thereby violating fundamental fairness. 496 F.2d at 1056 — 58. The proper investigation of narcotics trafficking requires that, absent a greater showing of bad faith than indicated here, a prosecutor in the Eastern District be free to interrogate even small-time dealers in the Southern District, at least with a grant of immunity.

Judgment affirmed.

      . Sentence on each count was a term of three years, with two years and six months suspended, all to run concurrently.

      . Q. Is it your testimony that you have never given anybody even a small amount of cocaine? A. No.
      Q. Is it your testimony that you never gave anybody on the evening of March 22, 1972, a small amount of cocaine wrapped in a dollar bill? A. No.
      Judge Bartels brought out that what appellant was saying was “that he never gave anybody a small amount of cocaine.” When the judge asked counsel for appellant whether he agreed with this interpretation, counsel concurred.

      . While Judge Bartels’ questions did not imply a belief in guilt and elicited for the most part minor background information (such as whether a time reference to “10:35” was a.m. or p.m. or how many ounces are in an eighth of cocaine), we recognize that a judge’s intervention in a trial, even to elucidate events, should be the exception, not the rule. United States v. D’Anna, 450 F.2d 1201, 1206 (2d Cir. 1971). In this regard the judge went, in the words of “Oklahoma!” just about as far as he could go. E. g., when defense counsel objected to Martinez’ qualifications to explain what was meant by “cutting” cocaine the judge himself laid the foundation as follows:
      Defense Counsel: Objection. Is Officer Martinez an expert on drugs?
      The Court: I suppose he has had some experience. I will find out. Mr. Martinez, this was August, 1972?
      The Witness: February.
      The Court: You were then assigned to the Drug Task Force in August?
      The Witness: Correct.
      The Court: Had you had any experience in dealing with sellers of drugs from August till February?
      The Witness: Yes I did.
      The Court: Before that did you have any experience?
      The Witness: No, I did not.
      The Court: What did that experience consist of — buying drugs on behalf of the city as an undercover agent? Not selling, just buying?
      The Witness: Correct.
      The Court: Approximately how many transactions did you engage in between August, 1971, to February, 1972, if you can estimate?
      The Witness: I would say approximately just an estimate, about ten.
      The Court: About ten and in the course of that were you able to tell just to what extent cocaine could be cut?
      The Witness: Well, yes.
      The Court: Do you understand the language as used by the sellers of cocaine when they say “to be cut one eighth or one half” or that sort of thing?
      The Witness: Yes.
      The Court: How did you learn what it meant?
      The Witness: From the other officers in the office when you first start. We had discussions with the lab. They come down and give us courses on it.
      The Court: What was the question?

      . As we read the record, the judge was himself confused initially by Vallely’s reference to “Exhibit One,” still thinking that “Exhibit One” was the dollar bill referred to by Martinez. Vallely finally explained clearly that it was the white powder in the dollar bill, i. e., the cocaine to which both were referring, in narcotics detection jargon, as “Exhibit One.”

      . 18 U.S.C. § 1623(d) provides that:
      Where, in the same continuous court or grand jury proceeding in which a declaration is made, the person making the declaration admits such declaration to be false, such admission shall bar prosecution under this section if, at the time the admission is made, the declaration has not substantially affected the proceeding, or it has not become manifest that such falsity has been or will be exposed.

      . This is not to be confused with the process of “flaking” which, United States v. Papadakis, 510 F.2d 287 (2d Cir. 1975), tells us, is one in which a narcotics officer or detective plants drugs on a suspect for purposes of obtaining his arrest.

      . In addition, the Drug Abuse Prevention and Control Act, 21 U.S.C. § 801, contains as a finding the multijurisdictional aspect of drug trade. Section 801(3)(B) provides:
      The Congress makes the following findings and declarations:
      (3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because—
      (B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution
      Thus, narrow venue restrictions on grand juries investigating drug offenses would run counter to the purpose of the Act.


author: HEANEY, Circuit Judge.

text:
    Merrild AUGSPURGER et al., Appellants, v. BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Appellee.
    No. 74-1363.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1974.
    Decided Feb. 4, 1975.

      James T. Hansing, Thiel, Sorenson & Hansing, Minneapolis, Minn., for appellant.
    Harold A. Ross, Ross & Kraushaar, Cleveland, Ohio, for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, Chief District Judge.

       The Honorable James H. Meredith, Chief Judge, Eastern District of Missouri, sitting by designation.

   HEANEY, Circuit Judge.

The plaintiffs, Division 746 of the Brotherhood of Locomotive Engineers [Union] and seventeen members of that division, brought this action in federal District Court, alleging that the Union had breached its duty of fair representation under the Railway Labor Act, 45 U.S.C. § 151 et seq., in the process of compiling a consolidated seniority roster following the merger of several railway carriers. The District Court dismissed the complaint on jurisdictional grounds, deferring to the primary jurisdiction of the Interstate Commerce Commission [ICC], which had supervised and approved the merger. The court held' that the conduct complained of had “its roots in the merger,” and that the fair representation doctrine does not apply to disputes arising out of mergers. We hold that the complaint does not state a claim of unfair representation, and that the dismissal was, therefore, proper under the primary jurisdiction doctrine.

In 1967, the ICC approved the merger of the Great Northern Railway, the Northern Pacific Railway, and three of their subsidiaries. Great Northern & Burlington Lines, Inc., Merger, 331 I.C.C. 228 (1967). As a condition of approving any merger, the ICC must “require a fair and equitable arrangement to protect the interests of the railroad employees affected.” 49 U.S.C. § 5(2)(f). Accordingly, the ICC ordered that an “employee protective agreement,” previously entered into between the railroads and the Union, should be followed. That agreement provided for the consolidation of seniority rosters on an “equitable basis.” The power to compile the consolidated roster was given to the Union, subject to acceptance by the new railroad. Existing seniority districts on the various railroads were to be combined into five new seniority districts. The new seniority district involved in this litigation is the Montana-Dakota District, embracing three former districts: the Northern Pacific Fargo West and Yellowstone Districts, and the Great Northern Minot Sixth District.

By late 1967, the Union had prepared four proposals whereby the seniority rosters could be consolidated, and those proposals were offered to the local chairmen for their consideration. In an effort to minimize employee dissatisfaction with the method ultimately selected, the local chairmen circulated the four proposals to the members, asking each member to express his preference. The members were advised that the ballot did not constitute a referendum, but was for the purpose of permitting their local chairmen to have the benefit of their thinking when advising and consulting with the general chairman.

Proposals Nos. 1 and 2 provided for consolidation of the rosters on a date-of-hire basis; those employees with the greatest longevity would have the highest seniority in the new company. Proposals Nos. 3 and 4 were variations of a more complicated system of “percentage block” or “work equity” allocation. For our purposes, it is enough to understand that, under these proposals, a consolidated roster would be constructed using percentage blocks based on the work brought into the consolidated district by each former district. To Proposal No. 3 was attached a “prior right hold-down” restriction, under which an employee could not exercise seniority outside of his former district until he could no longer hold any position therein. On the other hand, Proposal No. 4 embodied an unrestricted application of the percentage blocking allocation method.

The members of the districts which were to become the new Montana-Dakota District expressed a preference for Proposal No. 4, and that method of consolidation was adopted by the Union, agreed to by the Burlington-Northern, and given effect in 1970.

The individual plaintiffs are engineers who were previously in the Northern Pacific Fargo West seniority district. They, too, voted for Proposal No. 4. However, that method turned out to be an unwise choice from their perspective, since the Yellowstone and Minot Sixth Districts had been far more heavily traveled than their own district. As a result, the plaintiffs were given a lower ranking on the consolidated seniority roster than they might have had on a strict date-of-hire basis.

In their complaint against the Union, filed four years after the roster consolidation, the plaintiffs alleged:

* * * [W]hen the * * * plaintiffs * * * voted upon and accepted proposal No. 4, defendant B.L.E. failed and neglected to properly advise the plaintiffs of the meaning and effect of said proposal, and further misrepresented and deceived plaintiffs as to the meaning, effect and application of proposal No. 4, and defendant B.L.E. therefore, has acted in an unfair, invidious, unequal and arbitrary manner toward the individual plaintiffs herein, and has therefore breached its duty of fair representation in the negotiation, administration and enforcement of the collective bargaining contract * * *.

They further alleged that the Union had misrepresented the meaning and effect of the proposal, because an explanation of the proposal circulated to the members contained the following sentence:

* * * This method measures the worth of individual seniority as opposed to other methods recognizing only the equity of the seniority district.

The plaintiffs sought damages in the amount of $500,000 and a declaratory judgment to the effect that the consolidated seniority roster was null and void.

The Union denied that there was anything misleading about the ballot information, insisted that the vote was not a binding one in any event, contended that it had not breached its duty of fair representation, and urged that the complaint failed to state a claim for which relief may be granted. Furthermore, it argued that, even if it had breached its duty of fair representation, such conduct would constitute a violation of the ICC’s order and, consequently, the plaintiffs’ remedy must lie, if at all, before the ICC. In support of its primary jurisdiction argument, the Union cited 49 U.S.C. § 5(11), which provides that “the authority conferred [upon the ICC] by this section shall be exclusive and plenary.” The District Court accepted this latter argument, and held that — even if the plaintiffs stated a claim under the fair representation doctrine — it lacked jurisdiction over the dispute.

The arguments in favor of invoking the doctrine of primary jurisdiction, thereby requiring the plaintiffs to submit their contentions first to the agency, are strong ones. They have been set out in closely analogous cases involving mergers supervised by the Civil Aeronautics Board. See, e. g., Carey v. O’Donnell, 506 F.2d 97 (D.C. Cir. 1974), cert. denied, 419 U.S. 1110, 95 S.Ct. 783, 42 L.Ed.2d 806 (1975); Kesinger v. Universal Airlines, Inc., 474 F.2d 1127 (6th Cir. 1973); Oling v. Airline Pilots Association, 346 F.2d 270 (7th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965); Hyland v. United Air Lines, Inc., 254 F.Supp. 367 (N.D.Ill.1966). The process whereby the CAB and the ICC supervise the merger of carriers is a difficult and lengthy one which would be greatly impeded were disgruntled employees, consumers, and other affected parties permitted to bring lawsuits in other forums. Cf. Brotherhood of Locomotive Engineers v. Chicago & North Western Ry. Co., 314 F.2d 424, 431-432 (8th Cir. 1963).

The problem of seniority consolidation is always an obstacle to merger, and the agency must be given a free hand in performing its duty to include labor protective conditions in its merger order:

Control over seniority list integration is basic to the regulatory scheme administered by the CAB * * *; the success of the merger may be at stake. Uncoordinated, unsupervised attempts to resolve this particularly troublesome problem may result not only in industrial strife, but also in an inefficient or uneconomic operation; the merger, its purposes, and the pub-

lie interest against which it is tested may be threatened. * * *

This important area of the total complex of merger considerations cannot be subject to independent scrutiny and interference by the courts pursuant to a separate statutory scheme. The parties affected by the CAB merger order cannot be required to answer in different forums at different times on different charges for actions taken under the CAB merger umbrella. * * *

Hyland v. United Air Lines, Inc., supra, 254 F.Supp. at 372.

For these reasons, absent a showing of unfair representation, we agree with the Sixth, Seventh, and District of Columbia Circuits, that the courts should defer to the primary jurisdiction of the agency when employees only object to the manner in which seniority rosters are consolidated pursuant to a protective condition in a merger approval order. See Carey v. O’Donnell, supra-, Kesinger v. Universal Airlines, Inc., supra, 474 F.2d at 1131; Oling v. Airline Pilots Association, supra, 346 F.2d at 278.

However, we cannot agree with the District Court that the fair representation doctrine never applies to disputes arising out of mergers, for where that doctrine is properly invoked by a plaintiff, important competing policy considerations come into play. The right to fair representation by the bargaining agent is a right which the judiciary has created by implication from federal statutes. Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). It is a right primarily and jealously guarded by the judiciary. The Supreme Court was recently faced with the analogous issue of whether judicial control over fair representation cases should give way to the preemption doctrine of San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959), in eases involving conduct which arguably constitutes an unfair labor practice. Despite the strong policies underlying the preemption doctrine, the Court held that the courts should retain jurisdiction in such cases. Motor Coach Employees v. Lockridge, 403 U.S. 274, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971); Vaca v. Sipes, 386 U.S. 171, 180-188, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). It stressed the judicial origins of the fair representation doctrine, the fact that conduct proscribed under the doctrine cannot be adequately regulated by other substantive federal law, the fact that fair representation actions are usually not disruptive of the work which the agency is attempting to perform, and the fact that judicial review of the conduct is ordinarily precluded in those instances in which the General Counsel of the NLRB refuses to issue a complaint. See Motor Coach Employees v. Lockridge, supra, 403 U.S. at 301, 91 S.Ct. 1909; Vaca v. Sipes, supra, 386 U.S. at 182, 87 S.Ct. 903. All of these reasons except for the last one are applicable here.

We are aware that two other Circuits have indicated in dicta an unwillingness to recognize a fair representation exception to the primary jurisdiction doctrine in merger cases. See Kesinger v. Universal Airlines, Inc., supra, 474

F.2d at 1131-1132; Cling v. Airline Pilots Association, supra, 346 F.2d at 278. We acknowledge that the question is a close one. We conclude, however, that it is not proper to invoke the doctrine of primary jurisdiction in a genuine fair representation action, even though the disputed conduct arose out of an agency approved merger.

This conclusion does not end the matter, however, for in order to bring himself within the exception to the primary jurisdiction doctrine, the plaintiff must state a claim sufficient to invoke the fair representation doctrine. Precisely because it is an exception to a rule with strong interests of its own, the fair representation doctrine must be defined with sufficient narrowness so that the exception does not emasculate the rule. The Supreme Court stressed this in Motor Coach Employees v. Lock-ridge, supra at 301, 91 S.Ct. at 1925:

* * * If, however, the congression-

al policies.Garmon seeks to promote are not to be swallowed up, the * * *

distinction * * * between honest,

mistaken conduct, on the one hand, and deliberate and severely hostile and irrational treatment, on the other, needs strictly to be maintained.

Long before Lockridge, it was recognized that the fair representation doctrine set forth in Steele and in Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), is a limited one. While the Court in those cases was concerned that minorities be protected from hostile discrimination, it recognized that “the complete satisfaction of all who are represented is hardly to be expected,” id. at 338, 73 S.Ct. at 686, and declared that the doctrine is not triggered simply because a contract “may have unfavorable effects on some of the members of the craft represented.” Steele v. Louisville & Nashville R.R. Co., supra, 323 U.S. at 203, 65 S.Ct. at 232.

In order to state a claim of unfair representation, the plaintiff

* * * must have more than conclusory statements alleging discrimination. In particular plaintiffs must make a showing that the action or inaction * * * complained of was motivated by bad faith, for the gravaman of the rule is “hostile discrimination.” An allegation that certain conduct of the [Union] * * * is “invidious” and “discriminatory”, without a concomitant identification of lack of good faith, will not set forth a claim sufficient to call for the use of the Steele doctrine. * * *

Gainey v. Brotherhood of Railway & Steamship Clerks, 313 F.2d 318, 323 (3rd Cir. 1963) (emphasis supplied).

See, also, Kesinger v. Universal Airlines, Inc., supra, 474 F.2d at 1131-1132; Lusk v. Eastern Products Corp., 427 F.2d 705, 708 (4th Cir. 1970); Slagley v. Illinois Central Railroad Co., 397 F.2d 546, 552 (7th Cir. 1968); Balowski v. International Union, United Automobile, Aerospace & Agricultural Implement Workers, 372 F.2d 829, 835 (6th Cir. 1967); Hardcastle v. Western Greyhound Lines, 303 F.2d 182, 185 (9th Cir.), cert. denied, 371 U.S. 920, 83 S.Ct. 288, 9 L.Ed.2d 229 (1962); Cunningham v. Erie Railroad Co., 266 F.2d 411, 417 (2nd Cir. 1959). Specifically, it has been held that, to challenge seniority rearrangements under the doctrine, an essential element is “a bad faith motive, an intent to hostilely discriminate against a portion of the union’s membership.” Hardcastle v. Western Greyhound Lines, supra, 303 F.2d at 185 (emphasis supplied).

We have examined the complaint carefully, and conclude that the plaintiffs have failed to state a claim sufficiently within the fair representation doctrine to invoke the exception to the primary jurisdiction doctrine. The complaint does not allege that the Union’s actions were intentional, were hostile to any class of persons, or were undertaken with the deliberate purpose of benefiting other employees in the district. Rather, the complaint speaks of neglect, or carelessness, in the wording accompanying Proposal No. 4. The Ninth Circuit has held that negligent conduct on the part of the Union is not enough to invoke the fair representation doctrine. Dente v. International Organization of Masters, Mates & Pilots, Local 90, 492 F.2d 10, 12 & n.3 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). But see id. at 12-13 (Browning, J., concurring). Moreover, the vote here was simply an advisory one, and the plaintiffs do not contend that a referendum was required by law. Nor were adequate facts alleged to support an inference of bad faith or discriminatory intent. The alleged misrepresentation occasioned by one sentence in Proposal No. 4 is doubtful, and is certainly not of a magnitude to indicate bad faith. As we read it, the meaning of the disputed sentence is that, under Proposal No. 4, unlike No. 3, a person is not locked into his own prior district’s jobs before he can go elsewhere. This is an accurate statement. Moreover, Proposal No. 4 refers the reader to Proposal No. 3, and the example in Proposal No. 3 clearly shows that a person with an earlier date of hire might be adversely affected if his prior district had been a less active one. The further allegations that the Union acted “in an unfair, invidious, unequal and arbitrary manner” toward the plaintiffs are mere conclusions of law, plainly insufficient under Federal Rule of Civil Procedure 8(a). See Slagley v. Illinois Central Railroad Co., supra, 397 F.2d at 552.

The thrust of the plaintiffs’ case is that the order of the ICC approving the merger has not been complied with. Cf. Oling v. Airline Pilots Association, supra, 346 F.2d at 278. It is for the ICC to determine in the first instance whether its own order has been carried out. Therefore, we affirm the District Court’s decision to decline jurisdiction and dismiss the complaint. Once the ICC has passed on the plaintiffs’ claim, they will have ample opportunity to seek review in the judicial branch.

Affirmed.

      . That merger became effective pursuant to a Supreme Court decree in 1970, and resulted in the Burlington-Northern Railway. United States v. Interstate Commerce Commission [Northern Lines Merger Cases], 396 U.S. 491, 90 S.Ct. 708, 24 L.Ed.2d 700 (1970).

      . See Price v. Seaboard Coast Line Railroad Co., 332 F.Supp. 1093 (N.D.Ala.1970), aff’d per curiam, 449 F.2d 1371 (5th Cir. 1971), where a similar system was explained and upheld as a fair and reasonable one.

      . The Northern Pacific Fargo West seniority district brought in 13.43% of the work to the consolidated district, whereas the Great Northern Minot Sixth District had 42.03% of the total and the Northern Pacific Yellowstone District had 44.54%.

      . The supervision of employee consolidation agreements is mandated by a subpart of the same section [§ 5(2)(f)] and hence, is within the scope of § 5(11).

      . The primary jurisdiction doctrine does not foreclose the door to judicial scrutiny, but determines only which tribunal shall act initially. 3 K. Davis, Administrative Law Treatise § 19.09 at 53 (1958). “Court jurisdiction is not thereby ousted, but only postponed.” United States v. Philadelphia National Bank, 374 U.S. 321, 353, 83 S.Ct. 1715, 1736, 10 L.Ed.2d 915 (1963).

      . We are not aware of any circuits which have held to the contrary. In O’Mara v. Erie Lackawanna Railroad Co., 407 F.2d 674 (2nd Cir. 1969), aff’d sub nom., Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), the Second Circuit and the Supreme Court held that a complaint was sufficient to state a cause of action under the fair representation doctrine. Even though the union’s alleged discriminatory conduct was undertaken during the course of a merger, no claim of primary jurisdiction was mentioned.

      . Garmon held that unfair labor practice actions must be commenced in the NLRB. The doctrine is properly classified as one of preemption, rather than primary jurisdiction, because the General Counsel of the NLRB has discretion to refuse to institute an unfair labor practice complaint — a discretion which is ordinarily unreviewable. See Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). But see note 8, infra. In those cases in which he exercises that discretion, the jurisdiction of the judiciary is not simply postponed, but is ousted. Compare note 5, supra.

      . The discretion of the General Counsel in this respect is broad, but not necessarily absolute. See N.L.R.B. v. International Brotherhood of Electrical Workers, Local 357, 445 F.2d 1015, 1016 n.2 (9th Cir. 1971), which indicated the possibility of judicial review if the General Counsel’s action is “wholly without basis in law.” See also Braden v. Herman, 468 F.2d 592, 593 (8th Cir. 1972), cert. denied, 411 U.S. 916, 93 S.Ct. 1546, 36 L.Ed.2d 308 (1973).

      . This conclusion is consistent with what actually took place in Czosek v. O’Mara, 397 U.S. 25, 90 S.Ct. 770, 25 L.Ed.2d 21 (1970), where the primary jurisdiction issue was ignored. See note 6, supra.

      . The Supreme Court has held that seniority rosters need not be limited to strict date-of-hire methods. Ford Motor Co. v. Huffman, 345 U.S. 330, 342, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). Therefore, the mere fact that another method was chosen and that plaintiffs may have been hurt by that choice is not sufficient to invoke the Steele doctrine.

      . The Supreme Court has held that, when the ICC adopts or approves a pre-merger employee protective agreement, as it did here, compliance with that agreement becomes a condition of the ICC’s approval of the merger. Norfolk & Western R. Co. v. Nemitz, 404 U.S. 37, 43, 92 S.Ct. 185, 30 L.Ed.2d 198 (1971). To the extent that the plaintiffs complain of the result of the seniority roster consolidation, therefore, they are claiming that the order of the ICC has not been complied with.
      Plaintiffs’ counsel urged at oral argument that the Court should not “consign these members’ rights to a slag heap” in the ICC. Although we are not at all satisfied with the pace at which the ICC moves, we do not agree that such would be the result of the District Court’s ruling. The ICC apparently took seriously its duty to protect employees here, for it rejected the first merger application, giving as one of its main reasons the fact that the merger would result in a net loss of about 5,200 jobs. One of the reasons cited for changing its earlier position was the fact that the pre-merger agreement incorporated into the 1967 approval order provided “attrition type” protection for all employees, so that the employees “would receive guarantees and job assurances for the rest of their working lives.” Great Northern & Burlington Lines, Inc., Merger, 331 I.C.C. 228, 276-278 (1967).

      . If the employees are denied relief by the ICC, they may obtain judicial review by a three-judge court under 28 U.S.C. §§ 2321-2325, with direct appeal to the Supreme Court under 28 U.S.C. § 1253.


author: PER CURIAM.

text:
    Luther Albert JAMES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-1867.
    United States Court of Appeals, Sixth Circuit.
    Feb. 12, 1975.

      Charles C. McConnell, McConnell & Hough, Robert A. Kohn, Taustine, Post, Berman, Fineman & Kohn, Louisville, Ky., for plaintiff-appellant.
    George J. Long, U. S. Atty., Louisville, Ky., Scott P. Crampton, Gary R. Allen, Asst. Attys. Gen., Meyer Rothwacks, Ernest J. Brown, Jeffery Blum, Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.
   PER CURIAM.

This is an appeal from summary judgment in favor of the Government in an action to enjoin the assessment or collection of wagering taxes that the Government claims appellant owes. A jeopardy tax assessment was made, and the complaint sought an injunction to restrain the collection of the tax. District Judge Charles M. Allen entered summary judgment denying the application for injunctive relief.

The complaint alleged that the assessment was made without any basis whatsoever and that the justification asserted by the Government for the assessment was based upon information illegally obtained through the unlawful disclosure of the contents of a wiretap. The Government relies upon 26 U.S.C. § 7421(a), which provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person

In Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Supreme Court held that an attempted tax collection can be enjoined only when it is clear that under no circumstances could the Government ultimately prevail and when equity jurisdiction otherwise requires injunctive relief.

The District Court followed the decisions of this court in Trent v. United States, 442 F.2d 405 (6 Cir. 1971), and in Cole v. Cardoza, 441 F.2d 1337 (6 Cir. 1971). It declined to follow a Fifth Circuit case, Lucia v. United States, 474 F.2d 565 (1973), and a Second Circuit case, Pizzarello v. United States, 408 F.2d 579, cert. denied, 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450 (1969), that carved out further exceptions to the statute.

Although appellant makes a strong argument questioning the projections as unrealistic, and branding the assessments as an exaction in the guise of a tax, we conclude here, as we held in the two precedents cited above, that the statute means what it says and that appellant has not succeeded in bringing his case within the exception enunciated by the Supreme Court in Enochs, supra.

Affirmed.


author: BARNES, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Mitchell M. CALHOUN, Defendant-Appellant.
    No. 74-1259.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 13, 1974.
    Decided Jan. 24, 1975.
    Certiorari Denied April 28, 1975.
    See 95 S.Ct. 1683.

      Donald S. Eisenberg, Madison, Wis., for defendant-appellant.
    Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., John R. Wilks, U. S. Atty., Fort Wayne, Ind., for plaintiffappellee.
    Before PELL, SPRECHER and BARNES, Circuit Judges.

      Senior Circuit Judge Stanley N. Barnes of the Ninth Circuit, sitting by designation.

   BARNES, Senior Circuit Judge.

This is an appeal from four judgments arising from four convictions by a jury on a six-count indictment. Counts I and II charged possession, with intent to distribute, of two different amounts of heroin, at two places at two times of day on January 18, 1973; Count III charged possession on the same date of marijuana with intent to distribute the same; Count IV charged defendant (a convicted felon) with giving a false statement on December 24, 1972 with respect to his previous conviction of a felony, in connection with the acquisition by him of two guns from Jack’s Gun Shop, at Chesterton, Indiana; Count V charging the possession on January 18, 1973 by him as a previously convicted felon in Gary, Indiana, of a 30 caliber M-l Carbine; and Count VI, charging tlie similar possession by defendant on January 18, 1973 of a Colt .223 caliber revolver. The two guns possessed with respect to Counts V and VI were acquired, as described in Count IV.

Appellant was found guilty on Counts I, IV, V and VI. The trial judge dismissed Count II at the end of the government’s case, and the jury found defendant not guilty on Count III.

Appellant was sentenced to eight years on Count I, followed by special parole for 3 years; to 1 year on Counts V and VI, to be served consecutively to each other and to Count I. On Count IV, sentence was suspended and appellant placed on probation for five years, following the three sentences first mentioned.

Appellant urges reversal based on eight alleged errors. We will consider them in turn, defining the issues a little differently than either appellant or appellee.

I. Was defendant denied a speedy trial or “fundamental fairness” by the government?

II. Should defendant’s motion to suppress evidence have been granted?

III. Was the court in error in its voir dire examination of the jury?

IV. Did the court abuse its discretion in refusing to permit two witnesses offered by defendant to testify; after the witnesses had violated the court’s order excluding witnesses during the trial?

V. Should Counts V and VI of the indictment have been consolidated into one charge?

VI. Should Counts IV, V and VI have been dismissed for lack of a nexus with interstate commerce?

VII. Did the government deny proper discovery to defendant?

VIII. Did the trial court err when the bailiff, at the request of the judge, told the jury to continue their deliberations?

I. Right to a Speedy Trial.

Alleged errors I and II, supra, were raised in the court below by appellant’s two motions to dismiss, one filed December 10, 1973, and the second filed January 15, 1974.

The first or “unfairness” charge against the government was the claim that defendant had been granted immunity from prosecution in return for his cooperation with the government. The court had an extensive evidentiary hearing on this claim, and concluded that the evidence produced by plaintiff “is insufficient to mandate the dismissal of the indictment” (C.T. — Order of January 25, 1974). It was characterized as “not the formal immunity that may be granted to a person in order to induce them to testify,” but an alleged “informal immunity . of a post-arrest promise not to prosecute the person arrested for the offense for which he was arrested.”

Defendant had been arrested in 1972, and after that arrest, but prior to his 1973 arrest, he had traveled to Chicago with two government agents, and made some small identification of buildings that were somehow involved with the narcotic traffic.

Defendant stated he had been promised after the 1973 arrest by Agent Thompson of the Drugs Abuse Law Enforcement Agency [herein DALE] and Special United States Attorney Marinaccio, that he would not “get a case,” apparently meaning that no case would be filed against him. Each of said persons flatly denied any such agreement.

Under oath, before the Grand Jury, appellant twice denied Marinaccio had made him any promises. This testimony was quoted in the order of the trial judge. It occurred after the alleged promises had allegedly been made. The trial judge held these statements “strongly support the government’s contention that there were no promises not to prosecute.” We agree.

The second motion to dismiss was based upon an alleged denial of a speedy trial, due to pre-indictment delay of some nine months (from January 18, 1973 to October 12, 1973). The court tested the delay under the “balancing test” set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) and this Circuit’s opinion in United States v. Macino, 486 F.2d 750 (7th Cir. 1973) with their four factors: length of delay, reason for delay, the defendant’s assertion of his right to a speedy trial, and prejudice to defendant, if any, due to delay. There was here no prejudicial pre-trial incarceration, defendant being out on bond most of the time before indictment, and up to trial. No prejudice to defendant was claimed or proved.

We agree that the trial court’s action holding nine months delay was neither unreasonable, nor the denial of a speedy trial, in view of: the failure of appellant to assert his right during that time; the lack of proof of any prejudice; the lack of any “oppressive pre-trial incarceration”; and because the defendant’s “anxiety and concern”, if any, was insufficient to cause him to complain. Further, there was no proof any witness was lost to defendant, or that any witness sought might testify favorably to him.

The Federal Rules of Criminal Procedure (48(b)) provide the trial judge “may” dismiss for unnecessary delay. Clearly, this remains a matter of discretion with him. No abuse of that discretion appears in this case, as demonstrated by the evidence above stated.

II. Motion to Suppress Evidence.

The evidence sought to be suppressed was the narcotics, together with the pink gelatin capsules holding the narcotics and the Dormin dilutant, found in the disabled blue garbage truck, which appellant visited some six to ten times on the 18th of January, 1973.

Appellant asserts that the search was made without warrant, not incident to a lawful arrest, and unreasonable.

The government’s position is that there was probable cause to arrest appellant, and to search the truck. We quote in the margin from its Brief the evidence which the government had at the time of appellant’s arrest.

Here, then, the agent had the tip of a reliable informer that appellant was dealing in narcotics out of the blue truck. Defendant was associating with known addicts. His visits to the truck were observed, and the holding of Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) comes into play. The arrival of Whittier, the heavy narcotics user, and his actions there, in conjunction with appellant’s actions, corroborated all that had been seen. Probable cause was present. The court below concluded “that the exigent circumstances which have been outlined were of such a nature as to allow a warrantless search of the van . ” (TTR. at 2). We agree. Among the circumstances present was the likelihood that defendant’s “customers” or friends might remove the incriminating evidence. There was ample evidence from which the trial judge could conclude that there was a real danger that this might happen considering that the truck was unlocked, accessible to any passer-by, parked outside his father’s store, and in that having sold narcotics out of it for some time his “customers” knew of its locality and the probability that narcotics were hidden there. See United States v. Conner, 478 F.2d 1320 (7th Cir. 1973).

We also note that it may be that the district court’s holding could also be upheld on the basis the truck was “abandoned.”

The truck was later towed away as an abandoned truck. It had one, not two license plates on it, and that license plate which it had was for a previous year. It was full of garbage. It had a flat tire. Its doors were open and unlocked. It had not been moved for some time, as snow was shoveled up around it. Defendant never claimed any interest in the truck. An offer of proof was made by counsel for defendant “that the truck was an abandoned truck and had been in the area for a long time prior to [defendant’s] arrest, and had been put there by persons other than the defendant.” (TTR. 376). Defendant never alleged a possessory interest in the truck or in the contents of the truck. He therefore may lack standing to object to the search of the truck. Cf. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973).

The motion to suppress was properly denied.

III. Voir Dire of Jury.

The trial judge asked the jury on voir dire, in effect — would you be apprehensive for your own safety in the event the evidence caused you to conclude beyond a reasonable doubt that the defendant was guilty?

Counsel for the defendant, outside the presence of the jury, promptly moved for a mistrial, on the ground that the question inferred that the defendant was that type of an individual who might cause some harm to the jurors (TR. p. 25, line 21). Immediately thereafter (TR. p. 26, line 5), counsel for defendant asked, in the alternative, that the court instruct the jury that “this is a standard question, and not directed at this particular defendant.” The trial judge stated to counsel it was a “standard question.” The court then advised the jury the question he had asked was a routine question — one asked in all criminal trials in this court, and that it was not to be construed by the jury as indicating any suggestion on his part with regard as to their safety, nor that it had any particular applicability to this case, or with regard to this particular defendant. (TR. p. 27).

While this correction of the original instruction asked did not follow precisely the alternative suggestion made by defendant’s counsel, it did so in substance. It apparently satisfied counsel for defendant, for no objection was made to the corrective instruction given.

We cannot agree with counsel for appellant that the foregoing “poisoned the minds of the jury against the defendant” (O.Br. p. 32).

While we think the question might better have been left unasked, in the form that was used, we conclude there was no prejudicial error, under all the circumstances of the case. We conclude this (a) because of the care and patience exercised by the trial judge throughout the trial to remain impartial and scrupulously avoided any indication of partiality; (b) the jury was instructed any inferred reference to the defendant was not intended by the court; (c) insofar as the record discloses, this type of question was a standard instruction in the district court of the Northern District of Indiana in all cases of this type; (d) the court emphasized that the question was not asked to indicate in any way what the court thought about the matter.

IV. The exclusion of the testimony of two defense witnesses.

On the day the trial of this case started (January 19, 1974), counsel'for appellant moved for the separation of witnesses for the trial. This was granted, and the. court emphasized the fact that “that applies to the defense witnesses as well as the government’s witnesses.” To this, counsel for appellant answered, “Certainly.” (HTR. 440).

The government’s case was tried on the afternoon of February 19, and the morning of February 20, 1974. At the afternoon session, counsel for the government requested permission outside the hearing of the jury, to reopen his case. Counsel for defendant objected. The court sustained the objection, but warned Mr. Chudom (counsel for defendant), that he was raising technical questions.

Immediately thereafter, the jury was brought in, and defense counsel started his defense by calling as a witness the defendant’s father, Charles Calhoun. Government counsel immediately raised the question of the proposed witness’ admitted presence in the court room during both days of the trial, listening to the testimony. The court indicated he would sustain the government’s objection. Counsel for defendant then made an offer of proof, first, as to the father’s observations on the day of defendant’s arrest while defendant was under surveillance; and second, as to certain physical measurements the father had made at the scene of the surveillance after the first trial day. The court then did sustain the government’s objection.

Counsel for defendant then called one Theresa Moore to the stand, and the government objected that she too had been in court both that day and the day before, listening to the prosecution testimony. This fact was not disputed. The court sustained the government’s objections and then instructed the jury what he had done, and why (TTR. p. 382).

Appellant’s counsel’s only excuse for his failure to follow the court’s order that he had requested is that a defense lawyer has great pressure on him when trying a criminal case. He asks of this court the rhetorical question, “How can a lawyer, successfully doing his job, be expected to police a courtroom for witnesses that may from time to time ‘pop in’?”

The best answer might be that the lawyer was not “successfully doing his job” when he asked for the separation of witnesses ruling, and then failed in any way to police the courtroom. The defendant’s father could hardly go unnoticed in the courtroom. The father was there throughout the government’s case, and didn’t “pop in” and out. Never once in the record did counsel state he had no knowledge Mr. Calhoun, the father, was present. Certainly his client knew the two witnesses were present, as the court stated: “I observed the defendant nodding and in some form communicating with them [these two people] during the trial.” (TTR. 304). See United States, v. Schaefer, 299 F.2d 625, 635 (7th Cir. 1962) (Hastings, C. J., dissenting).

“You are to draw no inference one way or the other as to their testimony. And you are not permitted to speculate in any way. You are to draw no inference against the defendant because of this ruling of the Court.”

We agree with appellee that the sole question is whether the trial court abused its discretion in so ruling. We are satisfied it did not. We come to that conclusion because we are convinced there is a preponderance of the evidence that (a) trial counsel knew of the witnesses’ presence in the courtroom during each of the two days; (b) that defense counsel was at fault in not respecting the ruling he had asked the court to make; (c) that there was no way for government’s counsel to know whom defendant might call as witnesses; (d) that there could be no prejudice as to the rejection of Charles Calhoun’s testimony as to street intersection measurements obtained during the trial, to which any witness could have testified; (e) that a witness (Bernadine Moore) testified as to defendant’s actions on the morning of his arrest January 18, 1973, that she was in the liquor store “all day” (or from 12:00 noon on) but only saw the defendant come in once, about 2:00 p. m., and leave in three minutes (or 15 or 20 minutes). Apparently the testimony of both the rejected witnesses would have been cumulative to Miss Moore’s testimony.

We are satisfied no abuse of the court’s discretion occurred.

V. Consolidation of Counts V and VI.

We are satisfied the law in this circuit, and the prevailing law of a majority of the circuits is, as expressed in this circuit’s case of McFarland v. Pickett, 469 F.2d 1277 (7th Cir. 1972), that absent a showing that two firearms were stored or acquired at different times or places, there is only one offense, not two:

“In this case there is no evidence to show whether the two firearms were stored at the same or different locations or whether they were acquired at the same or different times.” (Id. at 1279).

Here, there is evidence the' two guns were obtained at the same time.

This case therefore must be and is remanded to the district court with directions to dismiss either Count V or VI, and to resentence the defendant on the remaining count.

VI. The sufficiency of the nexus with interstate commerce.

Count IV charges a violation of 18 U.S.C. § 922(a)(6). As to this section, it seems clear Congress intended to exercise all its power in connection with sales of firearms to ex-felons.

In United States v. Nelson, 458 F.2d 556 (5th Cir. 1972), the court said:

“It seems clear from the language of 922(a)(6), from its legislative history, and from the declaration of Congressional purpose that Congress meant to regulate all sales of the types of firearms covered by the Omnibus Crime Act, not just those sales in which the Government can prove some specific connection with interstate commerce. The only question remaining is whether Congress had the power to act as it did.”

The court went on:

“We entertain no doubt that it [Congress] has the power to regulate their acquisition without requiring proof of a nexus with interstate commerce in each individual case.” (Id. at 559). Counts V and VI each charge a violation of 18 U.S.C. Appendix § 1202(a)(1).

As to this section, this circuit follows the majority rule that the required nexus with interstate commerce is satisfied by proof the received firearm was previously transported in interstate commerce. That proof exists here. United States v. Walker, 489 F.2d 1353 (7th Cir. 1973), cert. denied 415 U.S. 982, 94 S.Ct. 1574, 39 L.Ed.2d 879 (1974); United States v. Brown, 472 F.2d 1181 (6th Cir. 1973); United States v. Giannoni, 472 F.2d 136 (9th Cir.), cert. denied 411 U.S. 935, 93 S.Ct. 1911, 36 L.Ed.2d 396 (1973); United States v. Mancino, 474 F.2d 1240 (8th Cir.), cert. denied 412 U.S. 953, 93 S.Ct. 3020, 37 L.Ed.2d 1007 (1973); United States v. Mullins, 476 F.2d 664 (4th Cir.), cert. denied 414 U.S. 839, 94 S.Ct. 91, 38 L.Ed.2d 75 (1973).

VII. Discovery.

We find no error on the record before us. The government furnished copies of what documents it had (Ex. 8). They had no copies of Exs. 10 and 12 until produced by a witness at the trial.

Such a matter of trial procedure as this is peculiarly appropriate to be left to the judgment of the trial judge, to be interfered with by the appellate courts only when an abuse of discretion clearly appears. We find no such abuse. Appellee’s assertions that there was no prejudice to appellant strengthens our position that no abuse of the trial court’s discretion appears in the record. Further, appellant urges that if he had had such exhibits as 10 and 12 prior to trial, “he might well have succeeded” in a pretrial motion to consolidate Counts V and VI.

He has succeeded in that endeavor, by reason of our ruling on point V, supra.

VIII. The Court’s instructions to the jury, through the United States Marshal, to continue their deliberations.

This complained of error has no substance. A careful reading of the transcript of evidence (TTR. 489 — 494) reveals that neither side suggested or asked for the procedures now asserted by appellant’s counsel to have been required. The issue was not raised below, and has been waived.

We affirm the convictions on Counts I and IV, and either the conviction on Count V or on VI. We remand for the trial court to combine Counts V and VI into one Count, with resentencing on the combined Count, or to dismiss one, and resentence on the other.

      . “We emphasize that failure to assert the right will make it difficult for defendant to prove that he was denied a speedy trial.” Barker v. Wingo, 407 U.S. at 532, 92 S.Ct. at 2193 (1972).

      . The Government Brief assures us that “appellant admitted on the stand that no witnesses or evidence was lost to him by virtue of the delay between arrest and indictment.” (Gov. Brief, p. 16). A transcript reference in the Government Brief at that point would have been appropriate and appreciated.
      Counsel for defendant did admit he made no objection to the delay between indictment and trial. (Rep.Tr. p. 347).

      . “On January 16, 1973, one Tarbert, a heroin addict previously arrested by Agents of the Drug Enforcement Administration, told Special Agent Kenneth Labik of the Drug Enforcement Administration that the Defendant-Appellant had picked Tarbert up at the Magistrate’s office early in the week and had taken him to Defendant-Appellant’s house where he received heroin from him. (HTR. 396-397) Tarbert further advised Agent Labik that the Defendant-Appellant was dealing heroin out of a blue truck parked alongside his father’s liquor store at 16th and Broadway. (HTR. 396) The link between Tarbert and the Defendant-Appellant had already been indicated to the Agents by the fact that the Defendant-Appellant was on the scene at the time of Tarbert’s arrest on January 12, 1973 and fled the scene at high speed. (HTR. 396-399) Two days after the conversation with Tarbert [1-18-73], the Agents put the liquor store at 16th and Broadway under surveillance. (HTR. 399-100) On ten occasions within the space of three and one half hours, the Agents observed the Defendant-Appellant Mitchell Calhoun leave the liquor store, walk over to and enter the blue truck parked alongside the liquor store and in a few moments return to the liquor

        store. (HTR. 400-405). On one occasion, the Agents followed Calhoun from the liquor store in an automobile to 604 Carolina Street where he entered the house and returned to the car. Defendant-Appellant was then followed back to the intersection of 16th and Broadway where before entering the liquor store, he returned to the blue truck. (HTR. 404).
      Finally Sylvester Whittier, a person known to Agent Labik to be a heavy narcotics user, entered the liquor store. (HTR. 406-407). The Defendant-Appellant Mitchell Calhoun exited the liquor store with Sylvester Whittier trailing behind. Defendant-Appellant entered the blue truck and was arrested as he returned toward Sylvester Whittier. (HTR. 407-408)” (Appellee’s Brief at 17-18).

      . The Supreme Court in Brown, supra, at 229, 93 S.Ct. at 1569, states that “there is no standing to contest a search and seizure where . . . defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that in-eludes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure.” In the instant case, defendant failed to make an allegation in accordance with (b), and does not fall under (a) since defendant was not in the truck at the time of the arrest or search.
      The Fourth Amendment protects the security of one’s person and effects, but unless one claims an interest in the property searched or seized, his standing to object is limited to those searches and seizures which infringe upon his person. While the Fourth Amendment’s protection of personal security extends to a certain area around a person, this area moves with the person and changes with the environment in which a person finds himself. Thus if X’s friend’s home is searched while X is a guest therein, X too may have standing to object to the search. However, once X quits the premises the security of X’s person is not offended by a search of his friend’s home made in X’s absence. Returning to the instant case, defendant has produced evidence to the effect that the vehicle was abandoned. We conclude defendant is no more granted standing under (a) or (b) of Brown than would a person who objected to the search of a train after he had disembarked.
      Defendant’s right to exert standing under (c) of Brown is uncertain. In Brown, supra at 228, 93 S.Ct. at 1569, the Court said:
      “But it is not necessary for us now to determine whether our decision in Simmons [Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247], supra, makes Jones [Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697], ‘automatic’ standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is ‘an essential element of the offense . . . charged.’ Simmons, 390 U.S., at 390, 88 S.Ct., at 974. Here, unlike Jones, the Government’s case against petitioners does not depend on petitioners’ possession of the seized evidence at the time of the contested search and seizures.”
      In the instant case we face the question identified, and avoided, in Brown. Defendant here was charged with the possession of narcotics found in the truck, and possession was the essential element, because the only offense charged. Due to the fact that we have held that even if standing is present, the search was still justified by exigent circumstances we will not attempt to anticipate how the Supreme Court will resolve this issue avoided in Brown. But Cf. United States v. Boston, 510 F.2d 35 (9th Cir. 1974).

      . “THE COURT: A11 right. I’m not going to let you do it. But you know what may be coming. If I’m going to lay the line on the Government strictly, Mr. Chudom, on witnesses and on the rules as far as witnesses are concerned, you may expect the same thing. Now, if you want to be hard and strict and technical with the Government, I know what may come up here, and they may have some objections. And I’ll apply the same standard to you that I applied to them.
      “MR. CHUDOM: Well, your Honor, may I state for the record that I would object to the Court indicating to Counsel that my failure to go along with the request to reopen may affect the Court’s judgment in regard to other things that may come forth from that witness stand or attempt to be done in defense of the defendant. The interest of the defendant is primarily at stake here, and not whether or not Counsel has been lenient or unlenient or strict or not strict.
      “I have been lenient on a lot of things. And I think the Court should have some concern with the fact that they’ve had testimony from this stand and that Agent Blackman has been there on numerous occasions, in that store; and all of a sudden, things are popping up after her testimony. Now, I just — I have to object to the indication of the Court that the rulings would be adverse to me in regard to some things we mention if I take the position now that I can’t let him re-open. I have to defend my client’s rights.
      “If the Court wishes to subsequently look askance as to my prerogatives and the rights of my client and the right to protect this defendant, I guess I’ll have to restrict that.
      “THE COURT: My only statement was the Court is going to give an even application of the rules. And if I deny the Government — exercise my discretion to deny the Government the right to open their case, then I may exercise my discretion in a similar fashion in other instances.
      “MR. CHUDOM: If you do in regard to re-opening cases, I would assume that might be binding to me.” R.T. 367-68.

      . The court added a cautionary note:

      . Defense counsel’s principal legal argument at trial was that only he had asked for sequestration of witnesses, and the government had not made any motion; and for his witnesses to be bound, the government must make the same motion he did. No cases were cited supporting this unique proposition.