author: PER CURIAM.

text:
    Melvin WHITE EAGLE, Chairman, et al., Appellants, v. Philomene ONE FEATHER et al., Appellees.
    No. 72-1706.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 13, 1973.
    Decided May 10, 1973.
    Marvin J. Sonosky, Washington, D. C., for appellants.
    Before LAY and STEPHENSON, Circuit Judges, and TALBOT SMITH, District Judge.

       Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

The action before us was brought by enrolled members of the Standing Rock Sioux Indian tribes against the Tribal Council and its Chairman, Melvin White Eagle, seeking an order enjoining a general tribal election and requiring reapportionment of the elective districts of the Standing Rock Indian Reservation. It was alleged that substantial population variances existed between the districts, that such districts did not “fairly and accurately represent the population distribution of said reservation,” and that under the Indian Civil Rights Act particularly paragraph B thereof (“No Indian tribe . . . shall deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;”) the one-man one-vote principle of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) should be applied in the situation presented.

The defendants herein deny the applicability of the principle to tribal elections. This is the principal issue in the ease, not only on substantive but also on jurisdictional grounds.

The general election had been scheduled for Wednesday, September 27, 1972. On Monday, September 25, counsel for plaintiffs presented himself ex parte to the District Judge, and upon the representations made, and the pleadings presented, the court on the following morning issued a temporary restraining order enjoining the general election scheduled for the following day. It now appears that certain essential representations, as made to and relied upon by the court, were misleading and, in fact, erroneous. Were this temporary restraining order before us on some permissible theory we would not hesitate to set it aside because of its procedural infirmities.

But the order no longer affects the defendants. A full hearing on the issuance of a preliminary injunction has been had and, although the restraining order is now attacked collaterally, it is moot and we will not discuss it in further detail.

Nevertheless, by way of dictum, we point out that in the ease of Carroll v. President and Commissioners of Princess Anne, 393 U.S. 175, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968), the Court stated:

We need not decide the thorny problem of whether, on the facts of this case, an injunction against the announced rally could be justified. The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties . and to give them an opportunity to participate. 393 U.S., at 180, 89 S.Ct. at 351.

We turn, then, to a consideration of the equal protection clause of the “Constitutional Rights” section (§ 1302) of the Indian Civil Rights Act, codified at 25 U.S.C.A. §§ 1302,1303 (Supp,1969), enacted in 1968 as part of the Civil Rights Act. The question for our con-7 sideration is the scope and meaning of the Congressional use of well-known constitutional terms, such as, here “the equal protection of its laws,” within the setting of the culture and ethnical background of the Indian tribes.

The Indian Civil Rights Act was the result of several years of hearings respecting the Indian problem. It gave to the federal courts, for the first time, a broad power of intervention in the tribal government and tribal courts. Prior thereto “The civil liberties of the Indians in relation to their tribal governments” had been uncertain, in view of the fact that tribal governments possessed “a measure of quasi-sovereignty [and were] not directly subject to the Constitutional Bill of Rights.” The Act before us sought solution to this problem. Senator Ervin, sponsor of the Act, described the bill in part as follows :—

“It [the bill] gives the Senate an opportunity to show whether it believes in constitutional rights for the red man.
The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.”

We note that fears have been expressed that the Act may dispose the courts “to apply broadly such elusive and expanding concepts as due process, equal protection, or unreasonable search and seizure without a sensitive regard for their impact on tribal structures and values,” and the appellant before us reflect such concern. We are aware, however, from the legislative history of the Act that no arbitrary application of the language of the Act was intended. The point is made clear, moreover, in Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971) wherein it was held that

“Such report [of the Senate Subcommittee on the Judiciary] makes it clear that Congress intended that the provisions of the Fifteenth Amendment, certain procedural provisions of the Fifth, Sixth, and Seventh Amendments, and in some respects the equal protection requirement of the Fourteenth Amendment should not be embraced in the Indian Bill of Rights.” (Emphasis ours) 442 F.2d at 682.

The particular clause of the Act before us requiring interpretation, as we have noted, is the equal protection clause. Appellant is correct in arguing that it does not here embrace in entirety all of its content in our applicable constitutional law. Thus we note that the Congressional hearings elicited information concerning practices of tribal governments at variance with the Anglo-American tradition. “ . . . [M]ention was made [in the hearings] of the ethnic restrictions on tribal membership, and the committee was informed of other ethnic-distinction practices. A minimum percentage of Indian blood has been made a prerequisite for inheriting rights in tribally controlled property within the reservation and for voting in tribal elections.”

Appellant urges, as well, that the equal protection clause should “not apply to tribal elections because there was no intent to interfere with tribal elections or office holdings,” citing Groundhog v. Keeler, supra. But the principal issue in Groundhog involved the Presidential appointment of the Principal Chief of the Cherokee Tribe and the court was careful to point out that the allegations of the complaint stated no facts showing a violation of the equal protection clause.

We need not explore upon this record the degree to which federal courts may assert jurisdiction over tribal elections in all circumstances. Our problem has no such complexities as tribal 'membership or blood lines. The tribe itself, in the case before us, has established voting procedures precisely paralleling those commonly found in our culture, if not taken verbatim therefrom. The Constitution of the Standing Rock Sioux Tribe provides as follows:

“Article II — Tribal Elections
Section 1. Any enrolled member of the tribe at least eighteen (21) years of age and resident in the district in which he votes for at least thirty (30 days) immediately prior to the date of the election shall be qualified to vote.”

The Constitution then goes on (Section 2) to fix the date of tribal elections, to prescribe election by “secret ballot” of councilmen (Section 3), and to provide for the election by the voters of the Tribal Chairman (Section 4), as well as other relevant matters.

Here, then, we have no problem of forcing an alien culture, with strange procedures, on this tribe. What the plaintiffs seek is merely a fair compliance with the tribe’s own voting procedures in accordance with the principles of Baker v. Carr, supra, and subsequent cases. The language of the equal protection clause in the Act is clear, its meaning (in this context) is clear, its employment subsequent to the decision in Baker v. Carr, supra, has its own significance, and we can find nothing (and have been cited to nothing) in the legislative history of the Act, or, indeed, the tribal customs and culture manifesting the inapplicability of the principle. The plaintiffs are entitled to the relief they seek. The cases of Groundhog v. Keeler, supra, and Slattery v. Arapahoe Tribal Council, 453 F.2d 278 (10th Cir. 1971) contain nothing at variance with these views upon our construction of the equal protection clause.

The defendants’ arguments respecting jurisdiction and parties defendant do not warrant extensive discussion. So far as the naming, and joinder, of the Tribal Council and its Chairman are concerned, we agree with the District Court that in view of the provisions of the Constitution of the Standing Rock Sioux Tribe they are proper parties to the action. And once the applicability of Section 1302(8) is established as comprehending the one-man, one-vote principle of Baker v. Carr, supra, to the situation before us, the cause of action, appellants concede, is clearly within the jurisdiction of the District Court, Luxon v. Rosebud Sioux Tribe of South Dakota, 455 F.2d 698 (8th Cir. 1972), under 28 U.S.C. § 1343(4), here pleaded. We are not passing upon other bases of jurisdiction arguably applicable to this situation.

Finally, however, as the case comes to us, we are constrained to reverse, but on narrow grounds. Appellant stresses to us that “there is no evidence of population in the record.” In this respect, although the appellees urge that the voting plan for the Reservation established in 1959 and amended in 1963 “has not been substantially modified since then to reflect any population redistribution,” we are left uninformed as to what such population redistribution may have been, if any. Reliance was had at trial upon figures of votes cast in the September 1971 election for Chairman of the Standing Rock Sioux Tribal Council, submitted also in affidavit form to the District Court, but the report reflects votes cast, not population figures, and the correlation between the two was problematical at best. While we recognize the intimation in the record of difficulty in obtaining population figures for the tribe, nevertheless the controlling factor, the sine qua, non, in apportionment determinations must be that of population, Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), as nearly as such may be determined in the light of all available sources of information. It will, of course, not be assumed that the cases mandate mathematical exactness in apportionment and it may well be that in a situation such as presented in the areas occupied by this tribe, variations from a strict population standard may be justified by the “recognition of natural or historical boundary lines,” Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), or other “factors that are free from any taint of ai’bitrariness or discrimination,” Roman v. Sincock, 377 U.S. 695, 710, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964). See, also, Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

It is our holding that the preliminary injunction was improvidently granted upon this record and the matter will be remanded to the District Court for further consideration in the light hereof. It was stated to this court upon oral argument that defendants had a “new plan” for presentation to the Court for its consideration. Such will be received and considered by the Court, together with any other plan or plans the court may in its discretion receive, either from those parties now of record, or from such parties as may properly be added as parties hereto, or intervenors herein, in accordance with the applicable rules. The Court will thereupon fashion with due dispatch, such relief as is appropriate under the evidence presented, may order such election or elections as may be necessary pending the adoption of a- plan conforming to the requirements of the equal protection clause of 25 U.S.C. § 1302, and will retain jurisdiction of the case for the purpose of making any further order necessary or desirable for the effectuation of the clause (§ 1302) hereinabove under consideration.

Reversed and remanded for further consideration not inconsistent with the opinion herein.

      . 25 U.S.C. § 1302.

      . of. 7 Moore’s Federal Practice, 2nd Ed., § 65.07, pp. 65-83.

      . Rule 65, Federal Rules of Civil Procedure.

      . The literature in this area, most of recent origin, is abundant and helpful. See, generally, Brophg and Aberle, The Indian : America’s Unfinished Business (1966) ; U. S. Solicitor for the Department of the Interior, Federal Indian Law (1968) ; Tlie Indian Bill of Bights and the Constitutional Status of Indian Governments, 82 Harv.L.Rev. 1343 (1969) ; Coulter Federal Law and Indian Tribal Law: The Right to Civil Counsel and the 1968 Indian Bill of Rights, 3 Colum. Human Rights Law Review 49 (1971) ; Reiblich: Indian Rights under the Civil Rights Act of 1968, 10 Arizona Law Review 617 (1968) ; Burnett, An Historical Analysis of the 1968 “Indian Civil Rights” Act, 9 Harvard Journal on Legislation 557 (1972) ; Indian Law Symposium, 4S N.D.L.Rev., summer 1972; A symposium, The Law and the American Indian, 33 Mont.L.Rev., summer 1972; Jury Composition — The Purposeful Inclusion of American Indians, 16 S.D.L.R. 214 (1971) ; Constitutional Implications of an Indian Defendant’s Right to a Lesser-Included Offense Instruction, 16 S.D.L.R. 468 (1971) ; Clayton: Indian Jurisdiction and Related Double Jeopardy Questions, 17 S.D.L.R. 341 (1972). References to other sources will be found in the above, particularly the Harvard Law Review Discussion.

      '. Coulter: — “Federal Law and Indian Tribal Law: The Right to Civil Counsel and the 1968 Indian Bill of Rights,” 3 Columbia Survey of Human Rights Law 49 (1970-71).

      . 114 Cong.Ree. 5836 (1968). See, also Senate Rep. No. 841, 90th Cong-., 1st Sess. at 6 (1967) : “The purpose of S. 1843, as amended, is to insure that the American Indian is afforded the broad Constitutional rights secured to other Arericans. The purpose of Title I is to protect individual Indians from arbitrary and unjust actions of tribal governments.”

      . Barnett: An Historical Analysis of the 1968 “Indian Civil Rights” Act, 9 Harvard Journal of Legislation 557 (1972).

      . 82 HarvX.Rev., supra,, 1358 (footnotes omittecl)

      . In tlie copy of the Constitution before us, the printed words “twenty-one” have been inked out and the word “eighteen” substituted therefor. No point has been made in argument or briefs of the vari-anee now obvious between the Arabic numerals anil the text anil we take it to he the result of oversight.

      . Article IV, Section 1, (e) anil (s) ; Article V, Section 2 re election procedures and districting.


source: Caselaw Access Project

author: OAKES, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Lawrence MILLER, Appellant.
    No. 744, Docket 72-2387.
    United States Court of Appeals, Second Circuit.
    Argued April 5, 1973.
    Decided May 22, 1973.

      Paul B. Bergman, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan and Howard J. Stechel, Asst. U. S. Attys., on the brief), for appellee. •
    Lawrence Stern, Mineóla, N. Y. (Joel A. Brenner and Richard I. Rosenkranz, Mineóla, N. Y., on the brief), for appellant.
    Before HAYS, ANDERSON and OAKES, Circuit Judges.
   OAKES, Circuit Judge.

Following a seven-day trial before Judge Bartels and a jury in the Eastern District of New York, appellant, Lawrence Miller, was convicted on the two substantive counts and one conspiracy count in an indictment arising from a September, 1970, Queens bank robbery. 18 U.S.C. §§ 371, 2113(a) & (b). The sentences, to run concurrently, were seven years on each of the substantive counts and five years on the conspiracy count. Appellant claims that (1) the evidence against him was insufficient; (2) various acts of prosecutorial misconduct tainted his trial; (3) the scope of cross-examination of a key Government witness was improperly restricted; (4) the trial court’s changes of mind in response to a jury request for further instructions were confusing and prejudicial; and (5) an “Allen”-type charge in the form in which it was delivered was unduly coercive. We find no error, however, and affirm.

Appellant’s contention as to insufficiency is frivolous. . Primarily from the testimony of two eoconspirators, the jury could have inferred that on the day before the robbery appellant drove the principal conspirator to a meeting where the robbery was planned, “cased” the bank, rehearsed the getaway route and helped procure the getaway car. On the day of the robbery, furthermore, appellant drove the principal conspirator to the robbery rendezvous, protected the bank’s entrance while the robbery was in progress, helped in the escape and stood guard while the booty, in which he shared, was divided. In short, appellant was neither a passive nor isolated observer of events but rather provided “an essential contribution to the commission of the crime.” United States v. Terrell, 474 F.2d 872, 876 (2d Cir. 1973), quoting Mack v. United States, 326 F.2d 481, 486 (8th Cir.), cert. denied, 377 U.S. 947, 84 S.Ct. 1355, 12 L.Ed.2d 309 (1964).

Appellant’s argument that prosecutorial misconduct deprived him of a fair trial is also without merit. He complains that the prosecutor appealed to the jury’s “law and order” prejudices in his opening statement by asking the jury to do him, the prosecutor, “a favor” by being “fair to the public interest in law enforcement; that is, be fair to yourselves.” This isolated appeal — while ill conceived — was primarily directed to the jurors’ role as representatives of the general public; it was not part of a broader scheme to inflame the jury against appellant. Cf. United States v. Pfingst, 477 F.2d 177 (2d Cir., 1973), at 188-189. Further, the trial court admonished the prosecutor on the only arguably objectionable part of this remark, the reference to doing the prosecutor a personal “favor,” by reminding the jury shortly after the statement was made that “No favors [are] granted here in this court. We try the case on the evidence, only upon the evidence.” Even if limited error did occur, this corrective action would have cured it. United States v. Pfingst, supra, at 188; United States v. Sawyer, 469 F.2d 450 (2d Cir. 1972).

Appellant next contends that the prosecutor attempted to promote “guilt by association” by trying to show on cross-examination of appellant that he knew other members of the robbery team. The prosecutor compounded this error, the argument runs, when on summation he claimed that because the testimony of the coconspirators had convicted other members of the robbery team, it should also be sufficient to convict appellant. But on direct examination appellant placed in issue the scope of his association with members of the robbery team and the questions on cross-examination went to discrediting appellant’s claims and showing that he was an active, nay a vigorous, member of that group. See United States v. Armone, 363 F.2d 385, 403-404 (2d Cir.), cert. denied, Viscardi v. United States, 385 U.S. 957, 87 S.Ct. 391, 17 L.Ed.2d 303 (1966). Cf. United States v. Ellis, 461 F.2d 962, 970 (2d Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 162, 34 L.Ed.2d 115 (1972). In context, the remarks in summation of which appellant complains were part of an attempt to answer arguments impugning the credibility of these key Government witnesses and, while close to the line, do not-warrant, much less require, reversal.

Appellant further claims that there was prejudicial error by virtue of several references during testimony and summation to his participation with the coconspirator witnesses in a prior uncharged bank robbery. The uncharged bank robbery, however, could have been proven on the Government’s direct case to show the organization and structure of a larger conspiracy. United States v. Stadter, 336 F.2d 326, 328-329 (2d Cir. 1964), cert. denied, 380 U.S. 945, 85 S.Ct. 1028, 13 L.Ed.2d 964 (1965); C.McCormick, Evidence § 190 at 448-49 (2d ed. 1972), and to show that appellant was not merely an innocent participant in the robbery for which he was tried. United States v. Freedman, 445 F.2d 1220, 1224 (2d Cir. 1971); C.McCormick, supra, § 190 at 451; 2 J.Wigmore, Evidence § 302 at 196-201, § 351 at 255-58 (3rd ed. 1940). While it would have been better had a limiting instruction on the use of the prior crime evidence been given, appellant does not suggest that he requested one nor did he object to the charge given on this ground.

Appellant’s final argument on prosecutorial misconduct is that the prosecutor through cross-examination and on summation improperly tried to shift to appellant -the burden of proving an alibi. The cross-examination complained of, however, was entirely proper, being directed at demonstrating that appellant made a false post-arrest exculpatory statement to the FBI. No objection was made at -the time to the remarks in summation now complained of and the court’s instructions made it entirely clear that appellant had no burden to prove anything.

Appellant’s next point is that the trial court erroneously limited the scope of cross-examination of one of the co-conspirator witnesses, who had already been convicted of another crime, by not allowing inquiry into an attempt by him to escape from custody. The claim is that cross-examination might have shown that this witness did not agree to testify against appellant until after Government promises of lenient treatment on the escape attempt. But prior to the escape attempt, the same witness had testified against appellant before the grand jury. Furthermore, the witness had already admitted that the Government did not prosecute him for three other robbery charges and any evidence of lenient treatment for the escape attempt would have been merely cumulative. It was thus well within the trial court’s discretion to disallow cross-examination on the point. United States v. Edelman, 414 F.2d 539, 540-541 (2d Cir. 1969), cert. denied, 396 U.S. 1053, 90 S.Ct. 705, 24 L.Ed.2d 698 (1970).

Appellant’s other contentions go to the court’s charge. In response to a jury note Judge Bartels first charged the jury one way on whether the relationship between conspiracy and the substantive offense was “automatic,” then reversed himself and then subsequently reversed himself again and reverted to his original answer. The request from the jury was: “. . . if a person is guilty of conspiracy to commit a crime and if the crime was committed, is the person guilty of committing the crime automatically?” The district court replied :

The answer to that is no. He’s only guilty of the crime of conspiracy.
Now, whether he committed the other two crimes named in the indictment is something for the jury to decide.
Now, you are asking me if a person is found guilty of the conspiracy to commit this robbery and if the robbery is actually committed, does he automatically become guilty of the robbery itself. I think that’s your question. The answer is no. You must also establish whether he participated in the robbery itself in one form or another.

The court also read and explained, at its request. Title 18 U.S.C. § 2. No objection was taken or could have been taken to the charge on conspiracy. About an hour later after a colloquy the reversal occurred:

The Court: The jury asked me if a person is guilty of conspiracy to commit a crime and if the crime was committed, is the person guilty of committing the crime automatically, and I answered “no.” I have to change that answer. The law is that if it is found that at the time the robberies were committed that the particular person was a party to an unlawful conspiracy and that these robberies or substantive offenses were in fact committed in furtherance of the conspiracy, then he can be found guilty of the substantive offenses without more. Do I make myself clear?
If he is a member of the conspiracy in advance at the time, at that particular time that the substantive offenses are committed and those offenses were committed in furtherance of the conspiracy, like conspiracy to commit robbery and you had robberies, then you may be found guilty of the substantive offenses.
The Foreman: He may be found, but automatically?
The Court: That’s it, the mere finding that he was a member of the conspiracy and that there were these substantive offenses committed after-wards, it’s automatic.

Then, two minutes after the jury’s departure following further colloquy, the jury was recalled and given the following instruction:

Again I didn’t give you the proper charge on the question of finding someone guilty of the substantive offenses. If those offenses were committed in furtherance of the conspiracy and if at the time they were committed he was a member of the conspiracy, I said it was automatic because I followed the phraselogy of the foreman of the jury. It’s not automatic. You may find him guilty of the substantive charge and you may not. It’s not automatic. I just wanted to make that clear.
Thank you very much.

While there was doubtless some temporary jury confusion, the end result was that the court’s answer to the question was correct, unobjectionable, and unob-jected to. Even if the jury weren’t confused, however, it could be argued that it may have thought that the law was unclear or sufficiently doubtful that the court was confused, and accordingly, the argument would run, it might have decided to convict on the substantive offenses on the basis of that doubt or of the court’s confusion. Perfection in the conduct of a trial, or in a charge, however, while a consummation devoutly to be wished, is beyond the reach of all of us, and one of the great flexibilities of the American jury system is that this, too, is taken into account by the jury, however much we judges would like to think otherwise.

The “Allen-charge” variation, that “if much the larger number of jurors would hold one way, a dissenting juror should consider whether his or her position was a reasonable one,” when read in context was not unduly coercive; other statements delivered at the same time reaffirmed the need for each juror to vote his conscience and in no way to violate “a conviction which he conscientiously holds predicated upon the weight and effect of the evidence.” See United States v. Jennings, 471 F.2d 1310 (2d Cir., 1973), at 1314.

Affirmed.

      . During summation, counsel for appellant had argued:
      . . and what you also have to consider is whether they are accomplices, whether they are persons who were slightly involved in the crime and they are testifying against the people more seriously involved in the crime or whether it’s exactly the opposite: Whether they are the persons most seriously involved who are looking to exculpate themselves and help themselves by bringing other people in.

        . Immediately after the jury went back to the jury room, the following occurred:
      Mr. Yam: For the record again, your Honor, I object and take exception to the last charge.
      The Court: It’s just a repeat.
      Mr. Yam: It’s really different. Now you say it was automatic.
      The Court: Well, it is.
      Mr. Yam : It’s not mandatory. May.
      Mr. Rosenkranz: I join in the objection.

        The Court: Well, X don’t know. Yes, bring them back. I think you have got a point.
      Mr. Yam : Don’t have to.
      The Court: I think you have a point.
      Mr. Yam: It’s not automatic.
      The Court: Nothing is automatic.
      Mr. Yam: That’s right.


author: PELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Norman Phillip CONNER and Samuel Nolan Mann, Defendants-Appellants.
    No. 72-1094.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 5, 1972.
    Decided May 23, 1973.

      Max Cohen, Gary, Ind., for defendants-appellants.
    William C. Lee, U. S. Atty., John R. Wilks, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.
    Before FAIRCHILD, PELL, and SPRECHER, Circuit Judges.
   PELL, Circuit Judge.

A two-count indictment charged Norman Conner and Samuel Mann with violation of 18 U.S.C. §§ 2312 and 2313. A jury found the defendants not guilty on the first count but guilty of the section 2313 charge, receiving and concealing a stolen Chevrolet automobile which was moving as interstate commerce knowing the car to have been stolen. Conner was sentenced to four years’ imprisonment, Mann to five.

The primary issue raised by the defendants on this appeal is whether the district court erred in denying their pre-trial motion to suppress and reject all evidence obtained by Hammond, Indiana, police officers as a result of an allegedly unconstitutional search and seizure.

In late January or early February 1971, an officer of the Hammond Police Department received a tip from an Illinois policeman that a certain garage in Hammond was being used by auto thieves as a “cut shop” (a place where stolen automobiles are taken apart). On February 5, 1971, the Hammond police began surveillance of the garage. It was a concrete block building fronting on a sidewalk and with a public alley running along and adjacent to one side. A sign on the front of the building said “D & L Auto Repair” along with some other wording about the business. On the front or streetside was an overhead door to allow the passage of vehicles; next to this door was a smaller door. Both these doors were locked whenever the policemen examined the premises. In the rear wall of the garage was another overhead door, 12 feet by 12 feet. An unfenced concrete apron provided access to the alley.

The policeman who watched the garage on February 5 looked through a window and saw two motor vehicles, one of which was a green Buick Riviera with a dark green vinyl top. When this car was again observed several days later, its description was given to the head of the stolen automobile detail, who determined that a ear matching that description had recently been reported stolen. The police then requested a resident of the neighborhood to call them if he saw anyone in the garage. On the afternoon of February 11, the neighbor informed the police that two men were in the garage.

When two officers approached the building, they heard pounding on metal, the sound of power tools, and other noises coming from inside the garage. After a third policeman joined the two already at the garage, the officers split up. One covered the front while the other men proceeded down the public alley to the rear of the building, where they found the overhead door open. From either the alley or the adjoining unfenced apron, they were able to observe the well-lighted interior of the garage. Inside were two cars, the green Buick Riviera and a Chevrolet. Defendant Conner was removing the trunk lid from the Chevrolet; the car’s hood, doors, and hub caps had been removed and were on the floor. Tools were strewn about. An open attaché case was on the hood of the Riviera. As the officers approached the door, they met defendant Mann coming out with a garbage can.

The two officers came part way into the garage and then summoned the policeman who had been watching the front. The officers then asked the defendants if they had a log book as required by Indiana law, Burns’ Ind.Ann. Stat. § 47-552, IC 1971, 9-9-5-6. When the defendants answered in the negative, they were arrested.

The policemen proceeded to search the garage. They examined the parts of the Chevrolet that had been removed and determined that, prior to disassembly, the car had sustained no damage that would have required repair work. The trunk lock of the Riviera had been punched. Two Illinois license plates, a lock puller, a key maker, a key code, and several other articles were lying in the open attaché case on the Riviera’s hood. Looking through the windshields of the automobiles, the officers read the vehicle identification numbers. A subsequent check revealed that both ears had been stolen.

Following a hearing on the defendants’ motion to suppress, the district court held that the police officers’ observation of the interior of the garage from outside prior to entry did not constitute a “search” within the meaning of the Fourth Amendment. It also found that the officers’ subsequent warrantless search of the interior was based on probable cause and was justified by “exigent circumstances.”

On this appeal, we are required to accept the district court’s findings unless they are clearly erroneous. United States v. Ganter, 436 F.2d 364, 368 (7th Cir. 1970). We also note that “ [credibility of witnesses on a motion to exclude or suppress evidence is for the district judge to determine.” United States v. Hilbrich, 341 F.2d 555, 559 (7th Cir. 1965), cert. denied, 381 U.S. 941, 85 S.Ct. 1775, 14 L.Ed.2d 704.

We agree with the district court that, until the officers saw the automobile being disassembled, it was reasonable for them to conclude that they lacked sufficient grounds for the issuance of a search warrant. Nor can we fault the police for having continued their surveillance. We also agree that their viewing from outside the activities inside the building was not a “search” within the meaning of the Fourth Amendment. The officers were at the garage for the valid purpose of verifying a tip about illegal activities and they reached the rear of the building via a public way. Although, as the findings of fact state, “[i]t was uncertain from the evidence whether the police officers were in the alley or on the adjoining apron outside the rear door of the garage when they first saw the activities being conducted inside, . . . the interior of the garage was clearly visible through the open overhead door from outside the building.” Under these circumstances, the defendants had no reasonable expectation of privacy. Even if the officers were on the apron, which was not fenced off from the alley, we think that a mere “technical trespass” did not transform an otherwise reasonable investigation into an unreasonable search. See United States v. Hanahan, 442 F.2d 649, 653-654 (7th Cir. 1971).

Once the officers observed the suspicious activity in the garage and the dismantled condition of the Chevrolet, they had probable cause to believe that they were witnessing criminal acts. Further, the police were then justified in making a warrantless entry into the garage to arrest Conner and Mann. As the district court stated, “it would have been wholly unreasonable to stand idle, watching further damage being done to cars which were almost certainly stolen, while a warrant was obtained. As police officers, they had a duty to preserve and protect the property of the owners, and . . . exigent circumstances justified their entry into the garage.”

Also, the officers were entitled to “seize” the Chevrolet, the existence of which they had been ignorant until they saw it in “plain view” through the open garage door. The automobile’s identification number was readily observable through the windshield. Finally, the open attaché case with the Illinois license plates and the key and lock equipment was in plain view of the police when they were arresting the defendants and seizing the Chevrolet. Contrast Coolidge v. New Hampshire, 403 U.S. 443, 460, 471, 472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

Defendants argue, however, that their arrest eliminated the danger that the items could have been destroyed or removed and that, therefore, no exigent circumstances existed justifying the officers’ failure to obtain a search warrant. They rely in part on United States v. Sokolow, 450 F.2d 324 (5th Cir. 1971).

The factual situation and circumstances of the present case, however, are quite different from those involved in Sokolow. There, the arresting officer fortuitously had come to the defendant’s garage while following a suspect in connection with the theft of cigarettes, property totally unrelated to the air conditioners which the officer observed stacked in the garage and the seizure pertaining to which the Fifth Circuit held should have been suppressed. There was no probable cause nor were there exigent circumstances. Likewise, the plain view doctrine was inapplicable in Sokolow. Although the arrest in the present ease was technically made on the basis of the Indiana log book statute, acts associated with the disposition of stolen property, with all the “tools of the trade” nearby, were being committed in the plain view of the officers. The arrest of the defendants did stop their destructive activity, but the officers had no way of knowing that others might not have been involved who could have completed the process before a warrant could be secured. The officers promptly and properly put an immediate stop to the process being committed in their presence. It is no answer to say that an officer could have been left at the premises while a warrant was being secured as this would merely have meant that each subsequently appearing confederate would have had to be arrested while the warrant was being waited for, a delay that the exigencies of the circumstances did not require.

The circumstances here are also entirely different from the coercive situation found in United States v. Gardner, 467 F.2d 205 (7th Cir. 1972).

II

The defendants also contend that the trial court erred in denying their motion for judgment of acquittal as to Count II. The defendants had maintained that at the time they were in possession of the Chevrolet it was not in interstate commerce. On appeal, they further argue that the jury’s finding of not guilty on Count I, which charged them with transporting a stolen motor vehicle, was inconsistent with its verdict on Count II.

The evidence at trial established that one James Taporski had parked his Chevrolet on a Chicago street on the morning of February 11, 1971. The windows were closed and the doors locked. Shortly after 1 p. m. the same day, the defendants were discovered, as we recounted above, in a garage in Hammond, Indiana, with this same automobile, which had been partially dismantled. An open attaehé case in the garage contained Taporski’s Illinois license plates as well as some key and lock equipment.

The garage was owned by Jerry Keil-man who rented it by telephone to a man representing himself to be Richard Wilson. Keilman received the rent by mail. An investigation revealed that no Richard Wilson lived at the return address given on the rent envelopes.

In defense, Mann testified that at 10 a. m. on February 11th a man whom he knew as Bill Stone called him and inquired whether he wanted to make some money; Stone needed “body men.” Mann then told Conner of the offer. Stone allegedly gave Mann the key to “his” garage and paid the defendants thirty dollars apiece to clean the garage and disassemble a car. Mann claimed that Stone had explained he wanted the car — the Chevrolet referred to in the indictment — disassembled because the person from whom he had bought it had failed to give him the title for it and had skipped town.

Bill Stone did not testify. Mann stated that he had been unable to locate Stone. Keilman testified that he had never rented his garage to a Bill Stone.

Mann’s own testimony as to when he and Conner began to work in the garage supports the conclusion that the Chevrolet had been stolen only five or six hours before the defendants were discovered. The garage was a well-equipped cut-shop and had been rented under a fictitious name — suspicious circumstances suggesting that the use of the building was an integral part of a car-theft scheme. Further, it was within the jury’s province to disbelieve defendant Mann’s testimony about “Bill Stone.” And, even if the jury chose to believe that the defendants had been hired by Stone, the jury could validly have found that the defendants’ work on the stolen Chevrolet was so intimately bound up with its theft and transportation that the car could be deemed not to have left interstate commerce. As the Sixth Circuit stated in Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956):

“It is recognized that the interstate movement of a car does not necessarily cease when the car stops and transportation of it into the other state ends. The sale thereafter may be an incident to the theft and transportation and so tied up with it as to constitute the final step of a continuous unlawful scheme. . . . It is a question of fact under the surrounding circumstances in each particular case. Being a question of fact it is for the jury to determine.”

The defendants rely on Davidson v. United States, 61 F.2d 250 (8th Cir. 1932), where the Eighth Circuit held, inter alia, that the indictment was defective because it failed to allege that the stolen automobile was part of interstate commerce when received by the appellants.

Here there is no question but that the indictment is sufficient. Also, the evidence in Davidson suggested that the destination of the stolen car had been Kansas City, a destination reached several days before the automobile came into the appellants’ possession. This, plus the lack of evidence that the transporters of the stolen vehicle had intended to deliver it to these defendants, persuaded the court that the automobile had lost the character of interstate commerce. Here, in contrast, the Chevrolet could be said to be truly “hot” as its engine had scarcely been allowed a cooling-off period following its migration from Chicago. See United States v. Briddle, 430 F.2d 1335 (8th Cir. 1970). The indicia of its origin and true ownership had not even been completely destroyed.

Thus, we hold that the evidence, viewed in the light most favorable to the Government, was sufficient to support the jury’s verdict. That verdict was not inconsistent with the finding of not guilty on Count I. It is not illogical to doubt that someone caused a stolen motor vehicle to be transported in interstate commerce and yet to be convinced that that same person received and concealed the motor vehicle while it was still in interstate commerce. See United States v. Sutt, 415 F.2d 1305 (7th Cir. 1969).

We therefore affirm the convictions of defendants Mann and Conner.

Affirmed.

      . In a prior memorandum denying the defendants’ motion to suppress, the trial judge had based his decision on the ground that the defendants had failed to establish standing to maintain the motion. The parties had stipulated to the existence of standing and thus had limited the evidence presented on the issue. When the defendants subsequently offered affidavits to establish their, standing, the additional materials apparently stilled the doubts the court had had initially. Cf. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973) ; United States v. Mahanna, 461 F.2d 1110, 1117 (8th Cir. 1972).

      . In Sokolow, tlie arrest at the garage was of the stolen cigarettes suspect, not of Sokolow. Here, the defendants were arrested.


author: PER CURIAM:

text:
    Nancy A. MAXWELL, Individually and d/b/a Maxwell Nursing Home on her own behalf and on behalf of all other similarly situated proprietors of other proprietary nursing homes in New York State, v. George K. WYMAN, as Commissioner of the New York State Department of Social Services, et al.
    Docket 71-2202.
    United States Court of Appeals, Second Circuit.
    Argued March 16, 1973.
    Decided May 17, 1973.
    Joseph T. Hopkins and James H. Sweeney, Asst. Attys. Gen. (Louis J. Lefkowitz, Atty. Gen., of N. Y., of counsel), for Wyman and Ingraham.
    James S. Cullum, Asst. U. S. Atty. (James M. Sullivan, Jr., U. S. Atty., N.D. N.Y., of counsel), for Richardson.
    Before MURRAH, KAUFMAN and OAKES, Circuit Judges.

       Of the Tenth Circuit Court of Appeals, sitting by designation.

   PER CURIAM:

The State of New York applied to the district court, in connection with this court’s opinion rendered in Maxwell v. Wyman, 458 F.2d 1146 (2d Cir. 1972), to grant injunctive relief against the federal defendant, the Department of Health, Education and Welfare. The district court denied the relief requested and gave the State time within which to apply directly to us for modification of our opinion. In that opinion we held that the State Department of Social Services and Health could not terminate participation in the New York Medicaid program by the proprietors of “skilled nursing homes” without a hearing. We declined, however, to enjoin HEW from denying reimbursement to the State in connection with those homes on the basis that application therefor was premature and on the assumption that “the HEW procedures will have sufficient flexibility to allow the State to afford [the nursing homes] hearings if it does so on an accelerated basis.” 458 F.2d at 1152.

It is necessary to point out that following our decision in Maxwell v. Wyman, supra, the State and HEW entered into a stipulation that “federal financial participation for any nursing home affected by said court order will be continued until a decision on the hearing therein is rendered.” Stipulation ¶ 4, Maxwell v. Wyman, 71-CV-471 (N.D.N.Y., Dec. 8, 1972).

We were correct in our assumption that HEW procedures were sufficiently flexible to permit the State to afford administrative hearings, and it has been doing so on an accelerated basis and receiving federal reimbursement funds accordingly. HEW, however, has stated its intention to terminate those funds before the administrative determinations have become final, that is, despite the fact that judicial review is being sought by certain nursing homes which lost at the administrative level on the issue of their eligibility. The state courts have, over the State’s objection, granted stays of the enforcement of adverse hearing determinations pending judicial review. These stays prohibit decertification of the nursing homes and require continued payments by the State of New York for care rendered to Medicaid patients in the homes. HEW’s refusal to reimburse the State for payments made by the State pursuant to court orders pending review even denies reimbursement for the period required to remove the patients from the homes which were decer-tified following hearings.

The position of HEW is that the reference in the December 8, 1972, stipulation for federal financial participation (FFP) to be continued until a decision on the hearing therein is rendered was simply to an administrative decision. The position of the State is that the intended reference was to a final decision. HEW refers to its own Program Regulation Guide No. 11 to the effect that a facility does not meet the definition of a skilled nursing home for the purpose of federal financial reimbursement if a provider agreement has been terminated. HEW argues that such termination has occurred here.

But termination has not occurred, for pursuant to § 7805 of N.Y.C.P.L.R. (McKinney, 1963), the state courts have ordered stays in “the enforcement of any determination under review . ” and under the express language of HEW’s own Program Regulation Guide No. 11 on which it relies,

If State law provides for continued validity of the provider agreement pending appeal, or if the facility is upheld on appeal and State law provides for retroactive reinstatement of the agreement, the agreement would not be considered terminated during the appeal period for purposes of Federal financial participation for payments to the facility.

Now, however, HEW relies upon a self-serving memorandum dated September 20, 1972, from the Commissioner of Medical Services Administration to S.R. S. Regional Commissioner, Region 5, purporting to say that Program Regulation Guide No. 11 did not mean what it says on its face. This intra-agency memorandum, which HEW interprets to mean that HEW payments to the State will be made only until hearings have been conducted — not pending appeals from hearing decisions — says,

The fact that a Court orders the State to continue payments to a nursing home does not change these rules. However, if the Court order provides for continuation of payments to a facility until the State can schedule an administrative hearing, and the result is the continuation of the provider agreement during this period, then FFP may be claimed by the State for payments made to the facility.

We see no justification for HEW’s attempt thus to negate its own Program Regulation Guide. It is perfectly obvious that where any enforcement of any state administrative order has been stayed pending judicial review, the provider agreement has not been terminated, decertification has not occurred, and the agency decision has not been finally made.

We think the State has demonstrated good faith compliance with the order of this court in Maxwell v. Wyman, supra, and has attempted with due despatch to afford the administrative hearings made requisite thereby. We have every faith that the New York courts will act promptly in determining the appeals now pending so as not unduly to burden the federal and state agencies with the needless payment of funds. See, e. g., Bacon v. Lavine, App.Div., 340 N.Y.S.2d 68 (3rd Dep’t. 1973).

HEW concedes in its moving papers that as provided in Program Regulation Guide No. 11 if a nursing home facility is upheld on appeal and found to be qualified to participate in Medicaid, it will then retroactively provide reimbursement. This being true, we can see no reason why HEW should not be required to continue reimbursement to facilities pending appeal at least where the state courts have stayed enforcement of the administrative decertification order. To hold otherwise would cause irreparable harm to the State, since there is no action by which it might seek reimbursement from the federal government for the FFP that would not be forthcoming as a result. To hold as we do is to say no more than that HEW must give the same treatment pending judicial review of an administrative proceeding as it does pending the proceeding itself or as it concedes that it would if a nursing home operator was able to have the administrative determination reversed on appeal.

We recognize that HEW is attempting a vigorous campaign to upgrade the level of nursing home care throughout the country by means of strict enforcement of Title 42 standards. Indeed, we are informed that on November 29, 1971, 38 states had been informed by HEW of “substantial deficiencies” in their skilled nursing home certification procedures, but this does not mean that federal and state procedures can be arbitrary and, indeed, our previous decision in Maxwell v. Wyman held that the New York procedures are not arbitrary. Evidence of the fairness of those procedures lies in the fact that 22 of the original appellants in that case have been granted waivers on the administrative level. We hold that HEW must give recognition to the process of judicial review also and that within the meaning of its own stipulation of December 8 there has been no administrative “decision” that is final and binding until such time as that review has taken place. Accordingly, we do not modify our opinion in Maxwell v. Wyman, but we supplement it hereby, and remand to the district court to grant the injunctive relief requested by the State. We treat the application to us as an appeal from the denial of the relief requested in the district court.

We thus order that the Secretary of Health, Education and Welfare be enjoined from terminating reimbursement to the State of New York for any skilled nursing home in the state of New York for which the State is required by court order to continue reimbursement pending review by the New York state courts of an administrative decision adverse to the nursing home facility.

Cause remanded.

      . The hearings were to relate to the question whether under applicable federal regulations waiver of compliance with the provisions of the Life Safety Code of the National Fire Protection Association may be permitted.

      . One hundred forty-eight homes were involved in the case before us. 458 F.2d at 1148. We are advised that all of these were offered the opportunity for a hearing, 110 hearings were held and waivers granted for 22 homes, and that approximately 40 homes have appealed in the state courts pursuant to N.Y.C.P.L.K. Art. 78 (McKinney 1963).

      . HEW was advised by the Division of Medical Assistance of the New York State Department of Social Services through its deputy commissioner that a 30-day period within which to remove the patients after expiration of the provided agreement was “essential to insure that during the removal of the patients at the home, their health and safety is not jeopardized.”


author: WILLIAM E. MILLER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James P. CRAVEN, DefendantAppellant.
    No. 72-1738.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 13, 1973.
    Decided May 8, 1973.

      Peter Beasley, Covington, Ky., and Raphael P. Koenig, New York City, for defendant-appellant; Peter Beasley, and James L. Cobb, Jr., Covington, Ky., and Ronald B. Finn, Cincinnati, Ohio, on brief; Murray E. Gottesman, New York City, of counsel.
    Anthony W. Nyktas, and Grayce Ruehlman, Cincinnati, Ohio, for plaintiff-appellee; William W. Milligan, U. S. Atty., Norbert A. Nadel, First Asst. U. S. Atty., Ralph Winkler, Anthony W. Nyktas, Asst. U.'S. Attys., Cincinnati, Ohio, on brief.
    Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

The defendant, James P. Craven, appeals his convictions under a six count indictment charging him with violations of the Federal firearms and narcotics laws. The first three counts of the indictment charged, respectively, the possession of an automatic Underwood Carbine, an automatic Beretta pistol and a Maxim Silencer, in violation of 26 U.S.C. §§ 5861(d) and 5871.' Count IV of the indictment charged Craven with receiving a Smith & Wesson revolver, transported in interstate commerce, while under indictment for a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(h)(1) and 924(a). Counts V and VI charged the defendant with possession of heroin in violation of 26 U.S.C. § 4704(a) and 21 U.S.C. §§ 173 and 174, respectively. After a jury trial, the defendant was found guilty on all counts and sentenced to a total of 40 years imprisonment and fined $30,000.

On April 30, 1971, law enforcement officers searched a residence at 10180 Rustic Lane in Woodlawn, Ohio, pursuant to a federal search warrant directing the seizure of illegal firearms. The search uncovered an automatic Underwood Carbine (Count I), a Smith & Wesson revolver (Count IV), a strong box containing $13,000 in cash and monogrammed men’s shirts bearing the initials JPC, in the master bedroom of the house. In a secret compartment located in the vertical riser of the basement stairs, the officers found a Beretta automatic pistol (Count II), a P-38 pistol and a Maxim Silencer designed for use with the P-38 (Count III). Also found in this compartment was a brown paper sack containing 1852 glassine bags of heroin, 2000 empty glassine bags, a clear plastic bag containing heroin and a quantity of narcotic dilutants (Counts V and VI). At the time of the police raid the defendant was not present at this residence but his wife, Mrs. Jackie Craven, and two other adults and three children were present.

The residence from which the illicit weapons and narcotics were recovered had been owned by a Mr. and Mrs. Christian until November 1970, when it was sold and title placed in the name of the Commons Corporation. Prior to this sale the defendant and his wife viewed the house with a third party who participated in negotiating the sale to the Commons Corporation. Subsequently, in December 1970, the property was transferred from the corporate entity to James P. Craven and Jackie Craven who moved into the house immediately after the Christians vacated it. Christian designed and built the Rustic Lane house in 1951 and lived in it with his family continuously until they moved in late December 1970. At the time the Christians vacated the house there was no secret compartment in the basement stairs.

On December 23,1970, water service to the property was placed in the defendant’s name and on December 28, 1970, Craven purchased a lawn tractor from a dealer in the area. This equipment was later delivered to 10180 Rustic Lane. On three occasions — December 1970, January and February 1971 — a locksmith installed locks and rekeyed locks in the house and on each visit he dealt with Mrs. Craven. However, on February 17, 1971, the locksmith returned to the house and the defendant requested the locksmith to open the bedroom door because he was locked out. The locksmith opened the door, changed the lock tumblers and made two new keys.

In March 1971, one Alice Freeman went to the Rustic Lane house where Jackie Craven and the housekeeper were present. The defendant arrived later and sold Alice Freeman a white powder in a plastic bag in the basement of the house. On April 22, 1971, one Joel Cornelius went to the residence to collect his bill for putting a new- roof on the house which he had installed at Mrs. Craven’s request. He was met by Mrs. Craven and shown to the master bedroom where the defendant was sitting up in bed in his underwear. Craven then gave a key to Jackie Craven who went to a strong box in the closet, removed a paper bag and handed the bag to the defendant. The sack contained small bills and Craven counted out $3,100 and paid Mr. Cornelius. While the roofer was in the house he saw a revolver which looked like the weapon forming the basis of Count IY of the indictment lying near the defendant on the bed. He also observed several rifles lying about.

When the defendant surrendered to the authorities on May 4, 1971, he was accompanied by his attorney. Agent Gi-netz of the Bureau of Narcotics and Dangerous Drugs read Craven the Miranda warnings and the defendant was processed through the customary booking procedures. While these administrative steps were being taken, Agent Gi-netz and the defendant engaged in a conversation away from Craven’s attorney. In response to the agent’s inquiry about the guns the defendant stated that he was a gun collector. When asked about the machine guns the defendant said that he had had the machine guns for some time. While the defendant was being fingerprinted another agent inquired about the firearms and Craven told him that he had been collecting guns and had moved them to the Rustic Lane house from another location.

After the raid, Craven again met Alice Freeman and told her that the government did not have a case against him. He also stated to her that he was not present at the time of the raid and that he should have moved the “stash” earlier.

The defense presented evidence that Craven’s fingerprints were not on the bag in which the heroin was discovered and that two other individuals besides Jackie Craven resided in the house. Further defense evidence showed that the defendant did not live at the Rustic Lane address but that he lived with another woman at a separate address. Also evidence was presented that on the night before the raid the other individuals in the house gave a party and a guest left the revolver named in Count IV of the indictment at the house.

I

The defendant contends that the district court erred in denying his motion for a judgment of acquittal as to all six counts of the indictment made at the conclusion of both the government’s case and again when the defense rested. In reviewing a motion for a judgment of acquittal the evidence and all reasonable inferences from the evidence must be viewed in the light most favorable to the government. If in that light, the evidence is such that a reasonable mind might fairly find guilt beyond a reasonable doubt, the issue is for the jury and the refusal to grant a judgment of acquittal must be sustained. United States v. Collon, 426 F.2d 939 (6th Cir. 1970); United States v. Smith, 399 F.2d 896 (6th Cir. 1968); United States v. Carabbia, 381 F.2d 133 (6th Cir. 1967); United States v. Smith, 343 F.2d 847 (6th Cir. 1965); United States v. Grimes, 332 F.2d 1014 .(6th Cir. 1964). This principle, of course, applies to each element of the alleged offense.

Counts I, II and III

Under Counts I, II and III of the indictment the defendant is charged with violating 26 U.S.C. § 5861(d) which states:

It shall be unlawful for any person—
(d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

The defendant contends that the government’s evidence is insufficient to establish possession of the named firearms.

Possession may be either actual or constructive and it need not be exclusive but may be joint. United States v. Black, 472 F.2d 130 (6th Cir. 1972); United States v. Holt, 427 F.2d 1114 (8th Cir. 1970). Actual possession exists when a tangible object is in the immediate possession or control of the party. Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others. United States v. Viraglia, 441 F.2d 1295 (5th Cir. 1971); United States v. Burch, 313 F.2d 628 (6th Cir. 1963). Both actual possession and constructive possession may be proved by direct or circumstantial evidence. It is not necessary that such evidence remove every reasonable hypothesis except that of guilt. United States v. Morgan, 469 F.2d 83 (6th Cir. 1972); United States v. Bishop, 437 F.2d 97 (6th Cir. 1971); United States v. Prieur, 429 F.2d 1237 (6th Cir. 1970); United States v. Bradley, 421 F.2d 924 (6th Cir. 1970); United States v. Burkeen, 350 F.2d 261 (6th Cir. 1965); United States v. Grimes, 332 F.2d 1014 (6th Cir. 1964).

In this case the evidence, when viewed most favorably for the government, amply establishes that Craven had constructive possession of the firearms named in the first three counts of the indictment. He clearly exercised constructive possession of the house and indeed the defendant concedes this point. Although possession of the residence is insufficient to establish possession of all the contents of the house, the government’s evidence went much further. The Underwood Carbine (Count I) was found in the master bedroom of the residence, a room in which moriogrammed men’s shirts bearing the defendant’s initials were found. The defendant was also placed in this room by the roofer’s testimony which reasonably indicated that Craven slept in the room and therefore had constructive joint possession of it. Added to these facts were two statements made by Craven in response to inquiries about the guns seized in the raid that he collected guns which allowed the jury reasonably to infer that these weapons belonged to him. Therefore this evidence was sufficient to establish constructive possession of the firearm named in Count I of the indictment. The evidence of the defendant’s constructive possession of the house combined with his admissions concerning the guns were sufficient to establish constructive possession of the firearm and silencer found in the secret compartment in the basement stairs (Count II and III). The lower court did not err in refusing to grant a judgment of acquittal and it necessarily follows that the evidence is sufficient to support the jury verdict on these three counts.

Count IV

The defendant challenges the district court’s refusal to grant a judgment of acquittal on Count IV of the indictment which charges Craven with violating 18 U.S.C. § 922(h)(1). The applicable part of this statute reads:

It shall be unlawful for any person— (1) who is under indictment for [a crime punishable] by imprisonment for a term exceeding one year to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The only element of this offense which the defendant contends was not established by the prosecution was that of receipt of the firearm.

The government’s evidence showed that a police officer of the City of Lexington, Kentucky, owned a Smith & Wesson, Model 10, .38 caliber revolver, Serial Number D186581 and that this officer lost the weapon while on duty on April 12, 1971, in the City of Lexington. The evidence also disclosed that Joel Cornelius, the roofer who put a new roof on the Rustic Lane house, saw a revolver that looked like the revolver named in Count IV lying on the bed in which the defendant was sitting on April 22, 1971. A Smith & Wesson, Model 10, .38 caliber revolver, Serial Number D186581 was found in the master bedroom of the Rustic Lane house by federal officers executing the search warrant. The prosecution also established that Craven was under an Ohio indictment for carrying a concealed weapon from March 26, 1971, through the time of the raid on April 30, 1971. This offense is punishable by imprisonment for a term exceeding one year in Ohio.

The defendant’s argument on this point is twofold: first, that the government failed to show that Craven possessed the revolver, and second, that merely showing possession is insuffi-el nt to prove receipt under 18 U.S.C. § 922(h)(1). Both branches of the defendant’s argument are untenable.

The prosecution produced evidence sufficient to warrant a jury in finding that Craven had constructive possession of the revolver. The government’s proof indicated that the defendant had, at a minimum, joint constructive possession of the house and that only eight days prior to the date the defendant was charged with possessing the weapon, he was seen in the master bedroom of the residence sitting in bed with a revolver which looked like the firearm named in Count IV lying on the bed. Further, the defendant’s own admissions concerning the weapons found during the raid were sufficiently broad to permit the jury reasonably to conclude that this revolver was encompassed by the statements.

The second portion of the defendant’s argument presents a question of first impression since no reported decision to date has dealt with 18 U.S.C. § 922(h)(1). This section is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L.No. 90-351, § 901, 82 Stat. 225, and varies little from previous statutes. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971), the Supreme Court dealt with a part of Title VII of the same Act, 18 U.S.C. App. § 1202(a), and in construing that section spoke of 18 U.S.C. § 922(g) and (h) in determining the proper construction of § 1202(a). Although the Court’s remarks concerning § 922(h) are clearly dicta and the question of the reach of this section was specifically left open, the Court’s statements are informative because they comport with the accepted interpretation of the predecessor statutes of § 922(h). In Bass the Court commented that:

Title IV [18 U.S.C. §§ 922(g) and (h)] apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation. 404 U.S. at 342-343, 92 S.Ct. at 520 (footnote omitted).

This interpretation is compatible with what the Court noted in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), when speaking of 15 U.S,C. § 902(f), the predecessor of 18 U.S.C. § 922(h).

Both courts below held that the offense created by the Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate. The Government agrees that this construction is correct. 319 U.S. at 466, 63 S.Ct. at 1244.

Therefore, we conclude that 18 U.S.C. § 922(h) speaks only of receipt of firearms or ammunition in interstate trans-portations and does not concern possessions at all. But the construction we place on this statute, which recognizes a distinction between the receipt offenses under 18 U.S.C. § 922(h) and the receipt offenses under 18 U.S.C. App. § 1202(a), and also necessarily differentiates between receipt offenses and possession offenses, does not save the defendant’s position. The government’s evidence, which established Craven’s constructive possession of the revolver, was circumstantial evidence which allowed the jury reasonably to infer that Craven received the firearm. The interstate transportation element of § 922(h) was met by the prosecution’s evidence of the very recent Lexington, Kentucky, to Woodlawn, Ohio, transportation of the weapon. Since one cannot possess something, either actually or constructively, without receiving it, either actually or constructively (except when the possessor manufactures it himself), receipt under 18 U.S.C. § 922(h)'(l) may be shown circumstantially by proving possession, at least where no significant passage of - time has elapsed between the interstate transportation and proof of possession, and no intervening intrastate transactions have occurred. Therefore, we find that the district court’s refusal to grant a judgment of acquittal on Count IV was correct and that the evidence is sufficient to uphold the verdict on this count.

Counts V and VI

Count V of the indictment charged Craven with violating 26 U.S.C. § 4704(a) and Count VI alleged violations of 21 U.S.C. §§ 173 and 174. These statutes contain rebuttable presumptions that proof of possession of narcotics is sufficient to sustain a conviction and it is the prosecution’s evidence of possession which the defendant claims is insufficient to have allowed these counts to go to the jury.

The government’s proof disclosed, and the defendant concedes, that Craven had constructive possession of the Rustic Lane house where the narcotics were found in a secret compartment in the basement stairs. The testimony of Alice Freeman concerning her purchase from the defendant of a white powder in the basement of the house the month before the raid inferentially demonstrated that Craven had access to the basement area where the secret compartment was located. Her testimony also described a conversation she had with Craven after the police raid on the house in which the defendant told her the government did not have a case against him and that he should have moved the “stash” earlier. Although the defendant’s use of the word “stash” could refer to the illegal weapons, the narcotics or both, the statement could reasonably be construed to mean the narcotics, especially since the defendant had previously sold this witness a white powder in the basement of the house and had not dealt in firearms with her. Added to these facts, the illegal weapons named in Counts II and III of the indictment were found in the secret compartment with the heroin. We have already determined that the evidence was sufficient to uphold a finding of constructive possession of these firearms. Therefore, we hold that the evidence is sufficient to support the conclusion that Craven had access to and dominion and control over the secret compartment and its contents. The motion for a judgment of acquittal was properly denied on these counts.

II

The defendant attacks the constitutionality of 18 U.S.C. § 922(h)(1) on several grounds. First, it is said that the classification contained in the statute prohibiting a person under indictment from receiving a firearm shipped in interstate commerce is irrational and unjustified and deprives defendant of due process of law under the Fifth Amendment. Second, it is argued that the statute violates the Fifth Amendment’s due process clause because the introduction of an indictment for an offense other than the crime of which the defendant is accused is prejudicial and denies defendant a fair trial.

The defendant’s first argument is essentially that § 922(h)<l) segregates those persons who may receive firearms in interstate commerce from those individuals who may not. By including in the second category persons who are merely “under indictment for . a crime punishable by imprisonment for a term exceeding one year” Congress has unjustifiably discriminated against indicted persons, who have the same status in the eyes of the law because of the presumption of innocence as persons not involved in the criminal process. Therefore, since both innocent persons and indicted persons have the same legal status no basis exists for the statute’s discrimination.

The Fifth Amendment does not contain an explicit equal protection clause as does the Fourteenth Amendment applicable on its face only to the states, but statutory classifications may be so unjustified as to be violative of the due process clause of the Fifth Amendment. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Schneider v. Rusk, 377 U.S. 163, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). Consequently, the due process clause of the Fifth Amendment provides the same basic safeguards as the equal protection clause and the general principles of the latter apply to the former.

It is now well settled that when legislative classifications affect fundamental rights a closer scrutiny of them is required and an overriding or compelling interest must appear to support the legislative classifications. See e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968) ; Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). However, in dealing with social or economic legislation or areas where fundamental rights are not involved a greater latitude is afforded legislative classifications and a statutory classification will not be set aside if a rational basis exists to sustain it. See, e. g., Hurtado v. United States, 410 U.S. 578, 93 S.Ct. 1157, 35 L.Ed.2d 508 (1973); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972); Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 493 (1961).

In United States v. Thoresen, 428 F.2d 654 (9th Cir. 1970), an opinion with which we fully agree, the Ninth Circuit determined that shipping or transporting firearms in interstate or foreign commerce under the now repealed 15 U.S.C. § 902(e) was not a basic or fundamental right. Although 18 U.S.C. § 922(h)(1) does not proscribe shipping or transporting firearms (see 18 U.S.C. § 922(g)) but instead prohibits receiving firearms in interstate commerce, it follows, a fortiori, from the Thoresen holding that receiving firearms shipped in interstate commerce is not a basic constitutional right. Therefore, 18 U.S.C. § 922(h)(1) must be upheld if the classification scheme has any rational basis to support it.

The Congressional findings and declaration of purpose of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 and the legislative history of this title amply demonstrate the nexus between violent criminal activity and the use of firearms. It was eminently reasonable for Congress to conclude that the indictment of an individual for a crime punishable by imprisonment for a term exceeding one year is so often indicative of a propensity for violence that the indictment classification of 18 U.S.C. § 922(h) (1) was justified in the public interest. Since Title IV of the Act is a modified and more comprehensive version of the Federal Firearms Act of 1938 and its subsequent amendments, what the Ninth Circuit stated in Thoresen concerning this statutory scheme is equally applicable to § 922(h)(1).

Having in mind the objectives of Congress in enacting this legislation, as discussed above, we find no warrant for a judicial determination that the indictment classification effectuated by section 2(e) is so lacking in rationality that it offends due process.
. . . [W]e think it not unreasonable for Congress to conclude that there is considerable likelihood that one indicted for such an offense has a propensity to misuse firearms. In so deciding we note that this conclusion by Congress, as crystallized in section 2(e), is not forever conclusive upon a person so indicted. The prohibitory effect of the classification disappears as soon as the indicted person obtains dismissal of the indictment or acquittal on the charge.
While the provision in question does forbid indicted persons from transporting [receiving] firearms in interstate commerce while the indictment is outstanding, the indictment serves only as a temporary block pending disposition of the criminal proceedings in which the indictment was filed. Bearing in mind that we are not dealing with statutory restrictions upon such constitutionality sensitive activities as free speech or the right to vote, we think Congress may, in pursuit of the sound objectives of the legislation, require indicted persons to tolerate this temporary limitation upon their right to transport weapons in interstate commerce. 428 F.2d at 662.

See Williams v. United States, 426 F.2d 253 (9th Cir. 1970); United States v. DePugh, 266 F.Supp. 453 (W.D.Mo. 1967) , aff’d, 393 F.2d 367 (8th Cir. 1968) .

The defendant’s second argument, that this statute violates the due process clause of the Fifth Amendment because the introduction of an indictment of an unproven offense, other than the charge for which the defendant is on trial, is prejudicial and detracts from the presumption of innocence, is also untenable. This same contention was decided adversely to the defendant in United States v. Thoresen, supra, where the Ninth Circuit stated:

[The defendant] came to this criminal trial with a constitutionally-protected presumption of innocence. See Deutch v. United States, 367 U.S. 456, 471, 81 S.Ct. 1587, 6 L.Ed.2d 963 (1961). But section 2(e) [§ 922(h)(1)] does not purport to effect the presumption of innocence which cloaks all defendants in federal criminal proceedings. It does not authorize the fact finder at the criminal trial to infer guilt under the Federal Firearms Act [§ 922(h)(1)] from the existence of a prior indictment or even to discount the credibility of a witness because of such an indictment. Instead, as applied to [the defendant] it represents nothing more than a Congressional determination that one who is under indictment for crimes . ought not to transport [receive] firearms in interstate commerce unléss and until the indictment is dismissed or an acquittal is obtained.
There inheres in this determination a Congressional finding that persons under indictment for such offenses may have a propensity for misusing firearms. But it is a legislative finding operative only in formulating a statutory scheme for controlling misuse of firearms. ... In our opinion, this provision of the statute does not adversely affect the presumption of innocence which prevails at federal criminal trials and which is guaranteed by the due process clause of the Fifth Amendment. 428 F.2d at 661.

We have carefully considered the other contentions raised by the defendant and find them without merit.

Affirmed.

      . The Underwood Cai'bine, Beretta pistol _ and the Maxim Silencer are all firearms as defined in 26 U.S.C. § 5845 and were not registered to the defendant or anyone else as required by 26 U.S.C. § 5861(d).

      . There were no transfer tax stamps on or near the heroin as required by 26 U.S.O. § 4704(a).

      . 18 U.S.C. § 922(h) is a modified and recodified version of 15 U.S.C. § 902(f) (1964), Act of Oct. 3, 1961, Pub.L. No. 87-342, § 2, 75 Stat. 757. Also of interest is 18 U.S.C. § 922(g) which succeeds 15 U.S.C. § 902(e) (1964), Act of Oct. 3, 1961, Pub.L. No. 87-342, § 2, 75 Stat. 757. Both of the earlier sections amended the original statute, Act of June 30, 1938, ch. 850, § 2, 52 Stat. 1250.
      Former 15 U.S.C. § 902(e) and (f) state:
      (e) It shall be unlawful for any person who is under indictment or who has been convicted of a crime punishable by imprisonment for a term exceeding one year or who is a fugutive [sic] from justice to ship, transport, or cause to be shipped or transported in interstate or foreign commerce any firearm or ammunition.
      (f) It shall be unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year or is a fugutive [sic] from justice to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce, and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this chapter.
      The new statutes, 18 U.S.C. § 922(g) and (h) state:
      (g) It shall be unlawful for any person—
      (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      (2) who is a fugitive from justice;
      (3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 210 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954) ; or
      (4) who has been adjudicated as a mental defective or who has been committed to a mental institution; to ship or transport any firearm or ammunition in interstate or foreign commerce.
      (h) It shall be unlawful for any person—
      (1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      (2) who is a fugitive from justice;
      (3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug (as defined in section 201 (v) of the Federal Food, Drug, and Cosmetic Act) or narcotic drug (as defined in section 4731(a) of the Internal Revenue Code of 1954) ; or
      (4) who has been adjudicated as a mental defective or who has been committed to any mental institution; to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
      A comparison of the new and old statutes reveals that 15 U.S.C. § 902(e) is identical to the new 18 U.S.C. § 922(g) except that two classifications have been added under the new legislation. 18 U.S.C. § 922(h) carries over both the old classifications of 15 U.S.C. § 902(f) and adds three new ones. For our purposes the new statute adds the classification of persons indicted for a crime punishable by imprisonment for a term exceeding one year which was not in 15 U.S.C. § 902 (f). Also the statutory presumption declared unconstitutional in Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) is deleted from the new statute. See S.Rep. No. 1097, 90th Cong., 2d Sess., 2 U.S.Code, Cong. & Admin. News, p. 2205 (1968).

      . 18 U.S.C.App. § 1202(a) states:
      Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      (2) has been discharged from the Armed Forces under dishonorable conditions, or
      (3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      (4) having been a citizen of the United States has renounced his citizenship, or
      (5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.

      . In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971) the Court held that the phrase “in commerce or affecting commerce” in 18 U.S.C.App. § 1202(a), supra, Note J¡-, modifies the offenses of “receiving” and “possessing” as well as that of “transporting” a firearm and therefore that the government must prove as an element of the offense the interstate commerce nexus in all instances.
      The Court noted in Bass that, according to the legislative history of the Omnibus Crime Control and Safe Streets Act of 1968, Title VII was intended to complement Title IV but whatever reading of 18 U.S.C.App. § 1202(a) was adopted it would be, in part, redundant with 18 U.S.C. § 922(g) and (h). Therefore the Court chose to construe § 1202(a) narrowly.

      . United States v. Bass, 404 U.S. 336, 343 n. 10, 92 S.Ct. 515, 30 L.Ed.2d 448 (1971).

      . Supra, note 6 at 343-344 and 350 n. 18, 92 S.Ct. 515. )

      . The defendant’s reliance on Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) is misplaced. Tot dealt with the statutory presumption (see supra, note 3) of the now repealed 15 U.S.C. § 902(f). In the Court’s words Tot concerned:
      the question of the power of Congress to create the presumption which § 2 (f) declares, namely, that, from the prisoner’s prior conviction of a crime of violence and his present possession of a firearm or ammunition, it shall be presumed (1) that the article was received by him in interstate or foreign commerce, and (2) that such receipt occurred subsequent to July 30, 1938, the effective date of the statute. 319 U.S. at 466, 63 S.Ct. at 1244.
      The Court determined that the statutory presumption was unconstitutional and in part held that “there seems no reasonable ground for a presumption that its [the firearms] purchase or procurement was interstate rather than in intrastate commerce.” 319 U.S. at 468, 63 S.Ct. at 1245.
      In the instant case no judicial presumption is created as to the interstate transportation but this element was specifically established by the government’s evidence.

      . See United States v. Brown, 472 F.2d 1181 (6th Cir. 1973) ; United States v. McCreary, 455 F.2d 647 (6th Cir. 1972).

      . 26 U.S.C. § 4704(a) states:
      It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.
      This statute was repealed by Act of Oct. 27, 1970, Pub.L.No.91-513, § 1101(b) (3) (A), 84 Stat. 1292 which became effective the day after the date of the charged offense. However, the savings clause of Pub.L.No.91-513 states:
      Prosecutions for any violations of law occurring prior to the effective date of section 1101 [the first day of the seventh calendar month that begins after Oct. 26, 1970] shall not be affected by repeals or amendments made by such section or section 1102 or abated by reason thereof.

      . 21 U.S.C. § 173 prohibited the importation of narcotic drugs, made certain exceptions for crude opium and coca leaves, prohibited importation of crude opium for the manufacture of heroin and provided for forfeitures.
      21 U.S.C. § 174 sets penalties for bringing narcotic drugs into the United States contrary to law, for conspiring to commit unlawful acts concerning such narcotics and made unexplained possession of narcotics sufficient evidence for conviction.
      These two statutes were repealed by Act of Oct. 27, 1970, Pub.L.No.91-513, § 1101(a) (2) (4), 84 Stat. 1291 which became effective the day after the date of the charged offenses. The savings clause of Pub.L.No.91-513 also applies to these two statutes, supra, note 10.

      . The statutory presumption contained in 26 U.S.C. § 4704(a) is set forth in note 10, supra. The statutory presumptions of 21 U.S.C. § 174, which apply to § 173 as well, state:
      Whenever on trial for a violation of this subdivision the defendant is shown to have Or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.
      Whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.

      . Supra, note 3.

      . 18 U.S.C. Sec. 922(h)(1).

      . Omnibus Crime Control and Safe Streets Act of 1968, Pub.L.No.90-351, § 901, 82 Stat. 225.

      . S.Rep.No.1097, 90th Cong., 2d Sess., 2 U.S.Code, Cong. & Admin.News pp. 2112, 2133-2114, 2163-2109, 2197-2200, 2205 (1968).

      . Supra, note 3.