author: McCREE, Circuit Judge. WEICK, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harry CHRABASZEWSKI, Defendant-Appellant.
    Nos. 73-1648 and 73-1649.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 5, 1973.
    Decided July 16, 1974.

      George E. Woods, Detroit, Mich., on briefs, for Arthur Smith.
    Stephen M. Landau, Southfield, Mich. (Court-appointed), on briefs, for Harry Chrabaszewski.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., John J. Robinson, Lauren S. Kahn, Attys., David J. Cook, John L. Newcomer, Sp. Attys., Dept, of Justice, Detroit, Mich., on brief, for plaintiff-ap-pellee.
    Before WEICK, CELEBREZZE and McCREE, Circuit Judges.
   McCREE, Circuit Judge.

Appellants were convicted in a jury trial of operating an illegal gambling business and of conspiring to commit that offense. These direct appeals require us to decide whether the prosecutor’s statement in closing argument that the jury should “require” the defendants to present a “reasonable explanation” of the meaning of taped wiretap evidence, other than the criminal meaning he ascribed to the conversations, was improper, and, if so, whether the trial judge’s subsequent cautionary instruction to the jury rendered the error harmless. There is also the question whether the government violated the wiretap statute. Exercising our supervisory power over federal criminal procedures, we hold that the prosecutor’s comments were improper because • they had the effect of shifting the burden of proof from the government to the defendants and abrogating the presumption of innocence to which appellants were entitled. They also focused the jury’s attention on appellants’ failure to testify and penalized, by implication, appellants’ exercise of their constitutional privilege against self-incrimination. We do not view the error as harmless, and reverse the convictions and remand for a new trial.

At appellants’ trial, the government introduced as its principal proof of the indictment several taped intercepted telephone conversations of appellants, who chose not to take the witness stand in their own defense. In his closing argument, the prosecutor went beyond arguing that the jury should infer appellants’ guilt from the evidence presented, and asked the jury to require appellants to explain the meaning of the telephone calls. The prosecutor argued:

When you deliberate in the case, I would ask you to ask yourself and to ask your fellow jurors to answer the question of why were these defendants engaged in these conversations that you heard on the tapes and you have read in the verbatims. If they were not engaged in the relationships that I have described for you, if there is any other reasonable explanation of the meaning of these calls other than what I have suggested the meaning, because if there is, in each and every instance — certainly the ones I have referred to in the opening argument, I would ask that the defendants satisfy you that there is no other reasonable explanation.
If they have some reasonable alternatives to suggest as to what the calls mean, then I leave with you now, you then require them to show that to you.

Appellants did not interrupt the argument to object to these comments but upon its conclusion moved for a mistrial on the grounds that the remarks were improper and prejudicial. The court denied the motion, but gave the following cautionary instruction to the jury:

Ladies and gentlemen of the jury, during his closing argument, the Assistant United States Attorney here said that if there were other reasonable explanations of the meaning of these calls other than the explanation which he suggested, that he would ask the defendants to satisfy you that there is no other reasonable explanation and he also stated that if they, meaning the defendants’ counsel, have some reasonable alternative to suggest as to what the calls mean, that you require them to show that to you.
Now, those remarks by the Assistant United States Attorney were improper and they should be disregarded. May I remind you, ladies and gentlemen, of my earlier statement and I will instruct you on it further at the end of the case, that the defendants in this are required to show nothing in order to maintain their innocence.
The government has the burden to prove the defendants guilty beyond a reasonable doubt and neither the defendants nor their attorneys are required to explain to you why they believe they are innocent or give you any explanation of what the taped phone calls mean. The defendants have no duty to prove what the calls mean; they are,not required to show anything. The government has the burden of proof and this burden of proof never shifts to the defendants in a criminal case.

Appellants contend the prosecutor’s argument was reversible error and the resulting prejudice was not cured by the court’s subsequent cautionary instruction.

The challenged comments of the prosecutor were clearly improper argument. It is, of course, the duty of the prosecutor to advance the government’s cause with force and with persuasiveness. However, this duty includes concerns in addition to mere advocacy. To the prosecutor is also entrusted the responsibility of observing in practice the principles considered under our system to be essential to a fair and just criminal procedure. To be sure, this responsibility is shared with the judiciary, with the bar, and with others. But the duty not to derogate from a fair and impartial criminal procedure rests, in the first instance, upon the shoulders of the prosecutor, the representative of our government who presents its proofs in support of its indictments. As Mr. Justice Sutherland observed in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Here, the prosecutor’s argument to the jury violated the spirit, at least, of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). In that case the Supreme Court held that a prosecutor’s similar comment to a jury, with the acquiescence of the court, in a state criminal trial violated the defendant’s Fifth Amendment privilege against self-incrimination. Although the element of acquiescence by the court is missing here, nevertheless, we conclude that the prosecutor’s statement alone prejudiced appellants’ right to a fair trial. Because this case is before us on direct appeal, we base our decision on our supervisory powers over criminal trials within this circuit and therefore find it unnecessary to decide whether the improper comments also constituted a constitutional violation. Cf. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).

The question remains whether the error was rendered harmless by the court’s subsequent cautionary instruction to the jury.

We first consider appellants’ contention that the prejudice to appellants caused by the prosecutor’s improper argument could only have been overcome if the district court had “immediately interrupted” the government’s argument to give, sua sponte, a “strong cautionary instruction.” Appellants rely on United States v. Flannery, 451 F.2d 880 (1st Cir. 1971). There, the court held unconstitutional a prosecutor’s comment to the jury in summation that some of the government’s evidence was “uneontradict-ed”, where only the defendant could have been called to contradict the evidence, because the comment called attention to defendant’s failure to testify. Because of the court’s concern with “persistent” violations of the rule proscribing prosecutorial comment about a defendant’s election not to testify, Desmond v. United States, 345 F.2d 255 (1st Cir. 1965), the court in Flannery, supra, 451 F.2d at 882, announced a “prospective rule” designed to deter these violations:

Hereafter, as to cases tried after the date of this opinion, when it is apparent on the record that there was no one other than himself whom the defendant could have called to contradict the testimony, we shall not endeavor to weigh prejudice, but shall rule it prejudicial as matter of law, with a single exception. If the court interrupts the argument, instructs the jury fully on the defendant’s constitutional right not to testify and the jury’s obligation not to draw unfavorable inferences and, in addition, states to the jury that the U. S. Attorney was guilty of misconduct, we may find no prejudice; otherwise we will reverse.

We are convinced that the prosecutor’s argument here that the jury should require the defendants to present an alternative explanation of the telephone conversations, where defendants had, in the exercise of their privilege against self-incrimination, declined to testify, was at least as improper and prejudicial to defendants as the comments on “uncontradicted” evidence proscribed in Desmond and in Flannery. We decline, however, to adopt a rigid rule requiring the trial judge in all cases to interrupt the argument without objection or request from defendants. There may be cases where the prejudice from an improper argument by the prosecutor will be better neutralized by a cautionary instruction given at the close of the government’s argument instead of during an interruption that might more dramatically impress on the jury its prejudicial effect. Appellants’ counsel here assert that they did not object immediately for this very reason.

We adhere to the rule stated by Judge Simon for this circuit in Pierce v. United States, 86 F.2d 949 (6th Cir. 1936), for testing prejudice where a cautionary instruction has been given a jury because of a prosecutor’s improper argument :

The inquiry . . . must always be whether in the view of the whole record the impression conveyed to the minds of the jurors by irrelevant and prejudicial matter is such that the court may fairly say that it has not been successfully eradicated by the rulings of the trial judge, his admonition to counsel, and his instruction to the jurors to disregard it.

Pierce, supra at 952. See also Ippolito v. United States, 108 F.2d 668 (6th Cir. 1940).

The inquiry is necessarily a speculative one, but we are not without guidance. The Supreme Court, in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1945), has set forth the standard to apply in determining whether harmless error has resulted from improper evidence or from improper argument to the jury:

If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. Bruno v. United States, supra, 308 U.S. at page 294, 60 S.Ct. at page 200. But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos, supra 328 U.S. at 764-765, 66 S.Ct. at 1248. (Footnote omitted). Our decision here is based on our supervisory powers and not on the Constitution, and we therefore need not apply the more rigorous standard of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), requiring reversal for constitutional error unless it is determined to be “harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. 824. Nevertheless, because the prosecutor’s improper argument clearly touched upon rights protected by the Constitution, we must apply the principles stated by the Supreme Court in Kotteakos and by our circuit in Pierce to insure that appellants’ rights to a fair trial were not prejudiced.

We consider first the prejudicial nature of the prosecutor’s comments that we have here held to be improper. Although prejudice may be magnified by the cumulative effect of repeated improper conduct, e. g., Volkmor v. United States, 13 F.2d 594 (6th Cir. 1926), we have recognized that even a “single misstep on the part of the prosecutor may be so destructive of the right of the defendant to a fair trial that reversal must follow.” Pierce v. United States, supra 86 F.2d at 952. Pharr v. United States, 48 F.2d 767 (6th Cir. 1931). We consider the prosecutor’s improper argument here to have such a prejudicial effect. This is not a case involving merely the prejudice that might be expected to result from the improper admission of “cumulative” evidence of appellant’s guilt, e. g., United States v. Haskins, 345 F.2d 111, 116 (6th Cir. 1945), but instead involves evidence of “the type which infuriates or inflames a jury.” Haskins, supra at 116. Like a comment calling the jury’s attention to a defendant’s bad character, e. g., Ippolito v. United States, 108 F.2d 668 (6th Cir. 1940), Volkmor v. United States, 13 F.2d 594 (6th Cir. 1926), the prosecutor’s comments here tended to “overthrow the presumption of innocence.” Pierce v. United States, supra, 86 F.2d at 953.

We consider nexU the curative effect of the cautionary instruction in the light of the pervasiveness of the prejudice. An error may be so prejudicial that no cautionary instruction can safely eradicate its effect. For example, in Pierce v. United States, supra at 952-953, Judge Simons stated for the court:

To those with any breadth of experience in the trial of criminal cases it must be clear that suggestions, especially when often repeated, that a defendant has earlier been in trouble with the law, that he has elsewhere or previously been indicted, that he has been frequently detained and investigated by law enforcement officers, and that he is a fugitive from justice, are so prejudicial that no admonition from the court that they be disregarded, however promptly and forcibly made, may be safely relied upon to free the minds of jurors from the impression that the defendant is of bad character and capable of committing the crime charged. They may completely overthrow the presumption of innocence. .

See also, United States v. Joseph Miller Calvert, 498 F.2d 409 (6th Cir. 1974), where this circuit recently held that the suggestion that defendant had a prior criminal record was prosecutorial overkill requiring reversal. Although improper argument here did not tarnish appellants’ characters, nevertheless, it invited the jury to apply the common expectation that an innocent person will speak out if he is falsely accused, and the court’s cautionary charge did not go as far as it might have in attempting to neutralize this prejudice. Although the district court clearly charged the jury that the burden of proof was on the government and that appellants were not required to explain anything, the cautionary charge failed expressly to instruct the jury that no adverse inference could be drawn from appellants’ silence concerning the meaning of the telephone calls. Such an instruction was necessary because the government’s argument had called attention to appellants’ failure to testify and to provide an innocent explanation of the telephone calls.

Accordingly, we conclude that the cautionary instruction did not eradicate from the jurors’ minds the prejudicial effect of the prosecutor’s improper argument. And, although the government in its brief did not argue that the error was harmless because it believed that any error was cured by the cautionary instruction, we conclude from the record as a whole that the error was not harmless. The intercepted telephone conversations transcribed in the record on appeal, constitute essentially all the proof offered in support of the indictments. They contain cryptic and esoteric references to wagering on horse racing, basketball, and other sports events in language suggesting the existence of a bookmaking operation, but the jury would have had to draw inferences to establish all the statutory elements of a violation of the federal gambling laws. Although the requisite inferences might not have been difficult to draw, the task was for the jury and the burden of proof rested on the government. The prosecutor’s improper argument to the jury was the attempt to abrogate the presumption of appellants’ innocence and the jury was invited to draw inferences supporting guilt unless the appellants offered proofs of innocence. We are left with “grave doubt” that the error did not have “substantial influence” upon the jury’s verdict, Kotteakos v. United States, supra 328 U.S. at 765, 66 S.Ct. 1239, and we therefore conclude that the prosecutor’s error was not harmless. Accordingly, the convictions are reversed and the cases remanded for a new trial.

Since we remand for a new trial, we will consider briefly appellant Chra-baszewski’s contention that there was such a fatal variance from the procedures established by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518, to require suppression of the evidence obtained from the intercepted telephone conversations. In light of the Supreme Court’s decision in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), even if the asserted variances occurred they would not require suppression.

Reversed and remanded for a new trial.

WEICK, Circuit Judge

(concurring in part and dissenting in part).

I concur in the ruling of the majority with respect to the intercepted telephone conversations and that suppression was not required.

I further agree that two paragraphs of the argument to the jury of the Assistant United States Attorney contained language which had better been left unsaid. However, no objection was made to the argument at the time by the defendants. The defendants waited until the Assistant United States Attorney had finished his argument, and then they moved for a mistrial.

When it was called to the attention of the Court, the District Court clearly and forcefully instructed the jury that the remarks were improper and should be disregarded; that the defendants are required to show nothing in order to maintain their innocence; that the burden of proof is upon the Government to prove the defendants guilty beyond a reasonable doubt; that neither the defendants nor their attorneys are required to explain to the jury why they believe the defendants are innocent, or to explain what the taped telephone calls were. The District Court denied the motion for a mistrial.

In my opinion this cautionary instruction completely cured the alleged error. I do not regard the remarks of the Assistant United States Attorney as inflammatory in any respect. This was not the type of misconduct involved in Pierce v. United States, 86 F.2d 949 (6th Cir. 1936), relied upon by the majority, which conduct in that case was so bad that no cautionary instruction could possibly cure it.

The District Court was familiar with all of the aspects of the trial and was in a good position to assess whatever effect the arguments of counsel might have on the jury. In my opinion the District Court did not abuse its discretion in denying the motion for a mistrial.

The defendants were entitled to a fair trial, but not a perfect one; in my judgment they had a fair trial.

I would affirm the judgment of conviction.

      . 18 U.S.C. § 1955.

      . 18 U.S.C. §§ 2, 371.

      . Compare the exception to the hearsay rule concerning admissions by silence :
      If a statement is made by another person in the presence of a party to the action, containing assertions of facts which, if untrue, the party would under all the circumstances naturally be expected to deny, liis failure to speak is circumstantial evidence that he believes the statements to be true and his conduct is thus receivable against him as an admission of such belief. McCormick on Evidence § 247, p. 528 (1954).


source: Caselaw Access Project

author: BARRETT, Circuit Judge.

license: Public Domain

text:
    Arthur Everett SMALL, Jr., Petitioner-Appellant, v. Samuel J. BRITTON, Warden U. S. Penitentiary, Leavenworth, Kansas, Respondent-Appellee.
    No. 73-1482.
    United States Court of Appeals, Tenth Circuit.
    July 30, 1974.
    Rehearing Denied Sept. 12, 1974.

      Thomas R. Moeller, Denver, Colo., for appellant.
    Monti Belot, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty. and Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan., on the brief), for appellee.
    Before BREITENSTEIN, MC-WILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

The appellant, under a federal sentence, appeals from an order of the United , States District Court for the District of Kansas, dismissing his application for writ of habeas corpus.

In 1967 appellant was sentenced to five years imprisonment by the United States District Court for the District of Colorado following his conviction for violation of 26 U.S.C. § 4742(a). In September of 1968 he was paroled to the custody of the State of Colorado on a de-tainer for service of a state sentence. Appellant was free on bond pending appeal of this state conviction until April of 1969. On April 8, 1969 Small was arrested on a new state criminal charge. The U. S. Parole Board thereupon promptly issued a federal warrant charging him with violation of his parole conditions. Following Small’s conviction and sentencing on the state charge in May of 1970 the U. S. Board of Parole, on October 14, 1970, lodged a revocation warrant as a detainer against him with the Colorado State Penitentiary authorities.

On January 23, 1973, Small was paroled by the Colorado authorities to the federal detainer. On March 19, 1973, a parole revocation hearing was conducted at the United States Penitentiary and on March 28, 1973, the Board of Parole revoked Small’s parole and continued the matter to expiration. The reason stated for the revocation was the intervening state conviction.

On this appeal, appellant’s sole contention is that the Board’s delay in affording him a revocation hearing until after completion of his service of an intervening state sentence constituted a violation of his right to due process under the Fifth Amendment requiring cancellation of the parole revocation warrant and thus entitling him to a complete discharge. We disagree.

Preliminarily, we note our rule that while a revocation warrant must be executed within a reasonable time, Simon v. Moseley, 452 F.2d 306 (10th Cir. 1971), incarceration in a state institution has been held to be a good reason for delay in execution of the warrant. See Simon v. Moseley, supra; Small v. United States Board of Parole, 421 F.2d 1388 (10th Cir. 1970), cert. denied 397 U.S. 1079, 90 S.Ct. 1532, 25 L.Ed.2d 815 (1970); Robinson v. Willingham, 369 F.2d 688 (10th Cir. 1966); Taylor v. United States Marshal for Eastern District of Oklahoma, 352 F.2d 232 (10th Cir. 1965). No challenge is made here relating to the validity of the issuance or execution of the parole revocation warrant.

The critical issue, then, is whether the mandates set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), required the Board of Parole to provide Small a “prompt” revocation hearing following his parole violation even though Small had already been afforded a full trial in state court determinative of his commission of the crime which formed the basis of the parole violation, and even though the revocation warrant had not been executed. To the same extent we must determine whether the delay in its execution was validly excused by reason of Small’s incarceration in the state penitentiary.

In Morrissey the Supreme Court held that due process requires a preliminary probable cause hearing and a comprehensive revocation hearing on the issue of whether there has been a parole violation. In addition, at this latter hearing the parolee may also present circumstances “in mitigation” which tend to show that the violation, even if proven, does not warrant revocation. Small does not contend that he was not given such a hearing nor that it was unfair. Rather, he contends it is fatally defective due to its delayed timing.

As to the timing of the preliminary hearing the Court in Morrissey stated:

due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

408 U.S. at 485, 92 S.Ct. at 2602.

The Court recognized, however, that there is typically a substantial time lag between the arrest and the eventual determination by the Parole Board as to whether parole should be revoked. As to this latter hearing the Court merely stated that it be afforded “within a reasonable time after the parolee is taken into custody.” (Emphasis added). Morrissey, supra, at 488, 92 S.Ct. at 2604.

A federal parolee is not taken into custody until after the parole revocation warrant has been executed. Accord, Cook v. United States Attorney General, 488 F.2d 667 (5th Cir. 1974). 18 U.S.C.A. § 4207 provides that a parolee is entitled to a hearing only after he is “retaken upon a warrant.” (Emphasis added). If the wording of a provision of a statute is plain, clear and unambiguous, its evident meaning must be accepted. 2A Sutherland, Statutory Construction § 45.02 (4th ed. 1973).

We recognize that there are decisions from other federal courts which support Small’s contention that a parolee is entitled to a revocation hearing (and the attendant opportunity to present “mitigating” circumstances), within a reasonable time after an alleged parole violation even where the parole revocation warrant is based upon the commission of a crime for which the parolee has been convicted. Fitzgerald v. Sigler, 372 F.Supp. 889 (D.D.C.1974); Jones v. Johnston, 368 F.Supp. 571 (D.D.C.1974); Sutherland v. District of Columbia Board of Parole, 366 F.Supp. 270 (D.D.C.1973); Cf., Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973). Contrary to our interpretation and holding, these decisions stand for the proposition that it is the “issuance” rather than the “execution” of the revocation warrant which triggers the due process time limits for the revocation hearing set forth in Morrissey. We disagree. We find no such mandate in the Supreme Court’s decision.

In summary, we conclude; (1) the Morrissey decision requires that a revocation hearing be held within a reasonable time after the parolee is taken into custody; (2) a parolee is not “taken into custody” until the revocation warrant has been executed; (3) Morrissey does not require that a revocation warrant be executed immediately after it has been issued; and (4) incarceration in a state institution is a good reason for delay in the execution of a warrant. These principles are in accord with those set forth in our unpublished opinion in Thomas v. United States Board of Parole, No. 73-1434 (10th Cir. June 13, 1974), authored by Judge Doyle.

We consider it quite material to note that Small has not alleged that the period between the time he was taken into custody following execution of the parole revocation warrant and the time of the revocation hearing (a period of less than two months) constituted an unreasonable delay. The Court, in Morrissey, clearly indicated that such a délay is not unreasonable.

Finally, Small has offered nothing which would aid us in determining that an earlier execution of the warrant and an earlier revocation hearing would have been advantageous to him. While Small argues that he was not given a timely opportunity to present “mitigating” circumstances, he has failed both in his brief and during direct inquiry at oral argument to enlighten the Court as to what facts and/or circumstances he would have presented in “mitigation” had he been given the earlier opportunity to do so. Further, he has failed to display how the challenged delay prejudiced his ability to present the unexplained “mitigating” evidence or denied him due process.

We affirm.

      . The parole revocation hearing must be held before a neutral party (such as the Parole Board) and must allow the parolee to testify, to present witnesses and documentary evidence, and to confront and cross-examine adverse witnesses. The Parole Board must make a written statement detailing evidence to support its determination and explaining the reasons for its decision.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Samuel E. HALEY, Jr., Appellant.
    No. 73-1870.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided July 19, 1974.

      J. Arnot Hill, Kansas City, Mo., for appellant.
    Pat Eldridge, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

Appellant, Samuel E. Haley, challenges the sufficiency of the evidence sustaining his jury conviction for violation of 18 U.S.C. App. § 1202(a)(1), the receiving of a firearm by a convicted felon. We affirm.

Haley was specifically charged in a one-count indictment with the receiving of a firearm by a convicted felon. Upon conviction he was sentenced to two years’ imprisonment. There is no dispute that Haley had a prior felony conviction in Missouri, and that the firearm found in his possession had traveled at one time in interstate commerce. Haley contends that the evidence, while it establishes that he was in possession of the firearm, does not establish that he received the firearm. Haley further argues that there is no evidence concerning where or when he received the firearm, hence, the venue of the crime has not been established.

The evidence produced at trial by the government showed that the firearm in question, which was shipped from Belgium to New York and then to Missouri, was purchased in Kansas City, Missouri, from the C & R Specialty Company on August 6, 1969, and that the gun was stolen from the home of the purchaser, Andrew Webb, in Sedalia, Missouri, during the last week of May 1972. Appellant Haley was arrested in Marshall, Missouri, on October 22, 1972, with the firearm in his possession. The charge of receiving was then lodged against Haley.

It is now clear that the requisite nexus with interstate commerce for 18 U.S.C. App. § 1202(a) purposes is met if the firearm is shown to have moved in interstate commerce at sometime prior to the charge of receipt. In United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971), Mr. Justice Marshall wrote for the majority:

The Government can obviously meet its burden in a variety of ways. * * * Significantly broader in reach, however, is the offense of “receive ing] * * * in commerce or affecting commerce,” for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. 404 U.S. at 350, 92 S.Ct. at 524.

Accord United States v. Carwell, 491 F.2d 1334, 1336 (CA8 1974). The interstate commerce connection is clearly made out in this case.

The parties to this lawsuit agree that the defendant’s possession of the firearm is some evidence that he received the firearm. As the Sixth Circuit Court of Appeals has recognized, it is impossible to possess a firearm without having received it (unless the receiver manufactures it himself). United States v. Craven, 478 F.2d 1329, 1337 (CA6 1973); United States v. Brown, 472 F.2d 1181, 1182 (CA6 1973). We think that the government’s evidence in this case, which established possession of the firearm, was circumstantial evidence which would allow the jury to reasonably infer receipt. Craven, supra.

Even so, appellant strongly urges that the evidence was insufficient to prove receipt of the firearm within the Western District of Missouri. He relies heavily upon an unreported opinion concerning a similar charge against the same defendant. The court there granted Haley’s motion for a judgment of acquittal after verdict. In that opinion, which was decided after the conviction in this case and which is a part of the designated record on this appeal, Judge Collinson stated:

The government apparently seeks to avoid [the heavier burden of proving the nexus with interstate commerce in a possession case] by charging an obvious possession case* as a receiving case and urging, in effect, that since everyone who possesses a gun must have received it at sometime in the past, he is obviously guilty of receiving a gun, as well as possessing it, and can be convicted under the very broad language quoted above from Bass. This argument completely ignores the fundamental rule that “Venue is a fact which must be proved at the trial.” * * * But, in this case, in which the government’s evidence traces the gun to Kansas City in May, 1972 and next shows it in defendant’s possession in Missouri, in February of 1973, a finding that the defendant received it in Missouri must necessarily be based on complete speculation and conjecture.

The government has the burden of proving that the criminal activity took place in the district where the prosecution is undertaken. Wright, Federal Practice and Procedure, § 307 at 601; Rule 18, Fed.R.Crim.P.; United States v. Luton, 486 F.2d 1021, 1022 (CA5 1973). Nevertheless, proof of venue need not be established beyond a reasonable doubt and in any event such proof may be circumstantial. Dean v. United States, 246 F.2d 335, 338 (CA8 1957); Holdridge v. United States, 282 F.2d 302, 305 (CA8 1960); Wright, supra; see also 18 U.S.C. § 3237(a).

In United States v. Overshon, 494 F.2d 894, 899 (CA8 1974), this court reversed a receiving conviction under 18 U.S.C. App. § 1202(a)(1) for failure to establish venue. We said:

Because of the lack of any evidence as to venue and considering that the place where the substantive offense occurred was near the borderline between the Eastern and Western Districts of Missouri, we have no alternative but to reverse the conviction * * * 494 F.2d at 899.

The sort of problem that was apparent in Overshon and in the unreported decision relied upon by appellant is not before us here. The evidence here established that the firearm was shipped to, stolen from, and found in the possession of appellant, all in the Western District of Missouri. It can, therefore, be reasonably inferred that the site of the receipt was the Western District of Missouri.

We note additionally that Haley and his attorney signed a stipulation as part of an Omnibus Hearing Report in conjunction with this case which stated in part, “It is stipulated between the parties: 12(a) That the venue of this case is properly laid in the Western District of Missouri.” Indeed, venue was not challenged until after the verdict, in the motion for new trial.

Improper venue can be waived. Hayes v. United States, 296 F.2d 657 (CA8), cert. denied, 369 U.S. 867, 82 S.Ct. 1033, 8 L.Ed.2d 85 (1961); Holdridge, supra, 282 F.2d at 305. There is a vast amount of circuit court authority supporting our view that appellant’s attack upon venue comes too late. E. g., United States v. Bohle, 445 F.2d 54 (CA7 1971); United States v. Dryden, 423 F.2d 1175 (CA5), cert. denied, 398 U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970); Harper v. United States, 383 F.2d 795 (CA5 1967) (venue waived if not challenged prior to trial). United States v. Rivera, 388 F.2d 545 (CA2 1968); Gilbert v. United States, 359 F.2d 285 (CA9), cert. denied 385 U.S. 882, 87 S.Ct. 169, 17 L.Ed.2d 109 (1966) (venue waived where defendant makes specific motion to acquit at close of government’s case without challenging venue). United States v. Polin, 323 F.2d 549 (CA3 1963) (venue waived if not challenged at close of government’s case). United States v. McMaster, 343 F.2d 176 (CA6), cert. denied, 382 U.S. 818, 86 S.Ct. 42, 15 L.Ed.2d 65 (1965) (venue waived if not challenged prior to verdict).

Even were we to agree that venue was improper in this ease, we would affirm on the basis of waiver.

Affirmed.

      . The statute provides :
      (a) 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 # * * * *
      and who receives, possesses, or transports in commerce or affecting commerce, after tlie date of enactment of this Act [June 19, 1968], any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.
      :¡t & fj: sit #

      . The defense offered no evidence.

      . Title IV of the Act, 18 U.S.C. § 922, presents the government with a more difficult burden. Huddleston v. United States, 415 U.S. 814, 833, 94 S.Ct. 1262, 1273, 39 L.Ed.2d 782 (1974); United States v. Ruffin, 490 F.2d 557, 560 (CA8 1974).

      . Craven dealt with 18 U.S.C. § 922.

      . Conviction on a conspiracy count was upheld.


author: PICKETT, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Jimmy Joy NEAL and C. W. Scott, Appellees.
    No. 73-1711.
    United States Court of Appeals, Tenth Circuit.
    July 22, 1974.

      Robert D. McDonald, Asst. U. S. Atty., for the E. D. Okl. (Richard A. Pyle, U. S. Atty., with him on the brief), for appellant.
    Albert R. Matthews of Bonds, Matthews, Bonds & Cartwright, Muskogee, Okl. (Faye Bancroft, Muskogee, Okl., with him on the brief), for appellee Neal.
    K. D. Bailey of Bailey, Ash & Romine, Okmulgee, Okl., for appellee Scott.

      Before PICKETT, HILL and BARRETT, Circuit Judges.
   PICKETT, Circuit Judge.

On March 28, 1973, an indictment was returned in the United States District Court for the Eastern District of Oklahoma charging Neal and Scott in various counts with interstate transportation of motor vehicles knowing them to have been stolen. The indictment included a conspiracy count relating to their activities involving the trafficking in stolen automobiles. Prior to the indictment, warrants had been issued by a United States magistrate directing the search of the residences of Neal and Scott, and also a garage building operated by Neal. Relying primarily on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the trial court in sustaining pretrial motions to suppress, held that the information in affidavits filed by F.B.I. agents was insufficient to establish probable cause for the issuance of the warrants. The United States has appealed.

The question of sufficiency of the showing of probable cause necessary to support a valid search warrant as restricted by the Fourth Amendment is constantly reoeeurring. This is particularly true in cases where the factual basis of the supporting affidavits is based on a hearsay report of an informer.

It is generally recognized that probable cause is one of probabilities and a valid warrant may issue when the circumstances before a proper officer are such that a person of reasonable prudence would believe that a crime was being committed on the premises to be searched or evidence of a crime was being concealed there. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Garhart v. United States, 157 F.2d 777 (10th Cir. 1946). In United States v. Harris, 403 U.S. 573, 582, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971), quoting from Brine-gar, the Court said:

. Trials are necessarily surrounded with evidentiary rules “developed to safeguard men from dubious and unjust convictions.” Id., at 174 [of 338 U.S., 69 S.Ct. 1302, at 1310]. But before the trial we deal only with probabilities that “are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

See also Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966). The Harris case reviewed the decisions on the subject and reiterated the approach to be utilized in evaluating the evidence produced to show the existence of probable cause by quoting from United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), as follows:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In United States v. Holliday, 474 F.2d 320, 321 (10th Cir. 1973), we said:

. [I]t is apparent that affidavits for search warrants must be tested in a common sense and realistic manner, and warrants issued thereon should not be interpreted hypertechni-cally. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), United States v. Berry, 423 F.2d 142 (10th Cir.). Nevertheless, the Fourth Amendment requires that the facts as set forth in the underlying affidavit be sufficient to allow a neutral magistrate to reasonably conclude that probable cause for the search exists.

It is now well settled that the facts and circumstances upon which a magistrate may find probable cause for the issuance of a search warrant may be based on reliable hearsay information of criminal activity furnished by an unidentified informer. United States v. Harris, supra; Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Holliday, supra. It has also been held that a reviewing court should give substantial consideration to the determination of probable cause by a “neutral and detached” magistrate. Aguilar v. Texas, supra; Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); United States v. Ramirez, 279 F.2d 712 (2d Cir.), cert. denied, 364 U.S. 850, 81 S.Ct. 95, 5 L.Ed.2d 74 (1960).

The three search warrants challenged in this case were supported by separate affidavits of F.B.I. agents. For the search of Neal’s home the affidavit stated that concealed there were numerous articles from stolen automobiles or to be used and placed on stolen or altered automobiles and in obtaining titles to the same, “which are fruits, instrumen-talities and evidence of the theft, alteration, sale and interstate transportation of stolen automobiles.” Attached to the affidavit is a signed supporting statement of another F.B.I. agent which reads:

That Lindsay Darrell Green advised Special Agent Norman C. Hope of the Federal Bureau of Investigation that since about November, 1970, to August, 1971, he had participated in the theft of approximately 50 automobiles and an undetermined number of these automobiles had been taken by him to a garage located near McAlester, Oklahoma, and operated by Joy Jimmy Neal where the serial numbers, VIN number plates and other identifying numbers were altered and changed. He stated that Neal obtained the VIN plates placed on the stolen automobiles together with titles corresponding to these VINs from the above-described apartment. As a result of the information furnished by Green three automobiles which had been stolen as stated by Green have been recovered based upon information furnished by Green to Special Agent Norman C. Hope, Federal Bureau of Investigation.

The affidavit for the search of Neal’s garage is substantially the same as the one filed for the search of his home, with the added statement that Green had informed the agent that he transported a stolen truck from the State of Arkansas and delivered it to Neal’s garage, where he and Neal altered the identifying plates on the truck. The affidavit for the search of the Scott premises contained information similar to that in the one filed for the search of the Neal garage.

It should be noted that the essential information relied on by the agents in making their affidavits did not come from a tip or from an unidentified informer, but from a participant in the alleged criminal activities, and was buttressed by statements that as a result of this information three stolen automobiles had been recovered. “Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility — sufficient at least to support a finding of probable cause to search.” United States v. Harris, supra, 403 U.S. at 583, 91 S.Ct. at 2082. We are satisfied that the facts stated in the affidavits, if they were not too remote, were adequate to support a finding of probable cause for the issuance of the warrants. See United States v. Holliday, supra; United States v. Koonce, 485 F.2d 374 (8th Cir. 1973); United States v. Guinn, 454 F.2d 29 (5th Cir.), cert. denied, 407 U.S. 911, 92 S.Ct. 2437, 32 L.Ed.2d 685 (1972).

Objection is made to the sufficiency of the returns made by the agents after the execution of the warrants. If there were any inadequacies, they were ministerial with no showing of prejudice. United States v. Kennedy, 457 F.2d 63 (10th Cir.), cert. denied, 409 U.S. 864, 93 S.Ct. 157, 34 L.Ed.2d 112 (1972).

A more difficult question arises as to the sufficiency of the showing to the magistrate to support a finding that there was probable cause to believe that a crime was being committed on the premises to be searched at the time of the filing of the affidavits. We are convinced that the remoteness of the information relied upon is such that it will not support the issuance of a valid warrant. The Fourth Amendment contemplates that probable cause for the issuance of a search warrant must exist at the time the search is sought to be made. Probable cause existing at some time in the past will not suffice unless circumstances exist from which it may be inferred that the grounds continued to the time the affidavit was filed. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932); Durham v. United States, 403 F.2d 190 (9th Cir. 1968); Rosencranz v. United States, supra; People v. Siemieniec, 368 Mich. 405, 118 N.W.2d 430 (1962), 100 A.L.R.2d 522, Anno. 525; 3 Wright, Federal Practice and Procedure jf 662 at 23, If 670 at 91 (1969). Each of the affidavits here was dated October 27, 1971. The property alleged to have been concealed on the described premises was automobile identification plates, titles, parts of stolen automobiles, stolen credit cards and other stolen articles, all of which were removable. There is no statement in the affidavits that the affiants had any information as to the existence of the personal property sought to be recovered except that furnished by •a participant in the handling of stolen automobiles. This participation existed from “about November, 1970, to August, 1971.” There is no reference in the affidavits as to what occurred during the three months after the discontinuance of Green’s participation and there is no information from which it could be inferred that the operation continued or that the material sought to be recovered remained on the described premises. We find no case which has held that a valid search warrant could issue under these circumstances.

Affirmed.

      . In the Sgro case, supra, at 210 of 287 U.S., at 140 of 53 S.Ct., it is said: “[I]t is manifest that the proof must be of facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time.”


author: NEALON, District Judge.

text:
    Jose E. BAERGA, Appellant, v. Elliot RICHARDSON, Individually and as Secretary of Health, Education and Welfare, Appellee.
    No. 73-1681.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 14, 1974.
    Decided June 19, 1974.

      Theodore Clattenburg, Jr., Bruce E. Endy, Jonathan M. Stein, Joseph R. Wenk, Community Legal Services, Inc., Philadelphia, Pa., for appellant.
    Robert E. J. Curran, U. S. A tty., Gary Tilles, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before VAN DUSEN and ADAMS, Circuit Judges, and NEALON, District Judge.
   OPINION OF THE COURT

NEALON, District Judge.

This action was brought in the dis-tx’iet court under 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g) to review a decision of the Secretary of Health, Education and Welfare denying plaintiff-appellant’s application for the establishment of a period of disability and disability insurance benefits pursuant to Sections 216(i) and 223(a) of the Act, 42 U.S.C.A. §§ 416(i) and 423(a). The district court concluded, “(a)fter a thorough and independent review of the entire 369-page record of .this case”, that the decision of the Secretary was supported by substantial evidence. We affirm the summary judgment entered for defendant with some observations as will be expressed hereinafter.

Plaintiff was born December 30, 1916, in Puerto Rico and came to this country in 1955. While in Puerto Rico, he worked in a cigar factory, where he made cigars by hand, and also in a sugar refinery “conditioning” sugar cane. Upon arriving in the United States, he was employed briefly in the agricultural field and then worked for about eight years, until 1964, as a busboy in a Philadelphia hotel. The record discloses that, at the age of seven, plaintiff sustained a fracture of the right leg and dislocation of his right hip, resulting in a shortening of his leg. In February, 1964, plaintiff underwent a segmental sigmoid resection for diverticuloma of the sigmoid and has not worked since. Subsequently, after frequent hospital treatments for back and leg complaints, he was confined to Hahnemann Hospital from April 18, 1966, to July 29, 1966, and on May 9, 1966, underwent surgery described as a right hip fusion. He presently walks with a limp and wears a four-inch lift in his right shoe. Degenerative changes of the lumbar spine and pelvis are established in the record without contradiction. The plaintiff last met the earnings requirement of the Act on March 31, 1969, and, therefore, the hearing examiner viewed his alleged “back, leg and stomach” impairments in light of their severity as of that date.

In denying plaintiff’s application, the examiner made the following “evaluation” of the evidence:

“The Hearing Examiner is of the opinion that the medical evidence fails to disclose any impairment, of the claimant’s back or stomach, as alleged on his application, of a level of severity which would have prevented him from engaging in any substantial gainful activity on or before March 31, 1969, when he was last insured for Disability Insurance Benefits.
“It may be observed in passing that there is no medical evidence at all which shows a significant impairment of the claimant’s stomach, of any long duration, so there is no evidentiary basis whatever to show the claimant to have been disabled on that account, on or before March 31, 1969.
“With respect to the claimant’s alleged back impairment, it appears that the chief problem in this regard was secondary to the injury to the applicant’s right hip, which occurred in early childhood and this was an impairment which did not prevent him from engaging in any substantial gainful activity at any time, prior to 1964. Thereafter, the applicant underwent surgery, which from all accounts was rather beneficial. The clinical records of most recent date in this respect, namely those referring to treatments received in April 1968 and December 1969, show the claimant to have been ‘in good orthopedic condition, presently’ and ‘doing nicely’ (Exhibit 26). In light of the foregoing medical findings at the clinic where the claimant was treated the Hearing Examiner can perceive no adequate basis in the evidence for regarding the claimant to have been disabled because of a back impairment, or any other physical impairment of an orthopedic nature, on or before March 31, 1969.”
* * * *■ -x- *
“The Hearing Examiner finds nothing in this aspect [educational, vocational and non medical evidence] of the evidence which would, in any appreciable measure, compensate for the deficiencies in the medical evidence discussed hereinabove. There is, for example, no basis in either aspect of the evidence which would warrant a conclusion that the claimant was not physically able to perform some appropriate form of work which would have been performed while in a seated position such as employment in the cigar making industry, a type of employment in which he had actual experience prior to the surgery on his right hip, with its reported beneficial effect, on or before March 31, 1969 when he was last insured for disability insurance benefits.”

The examiner then proceeds to make but three “specific findings” as follows :

“FACT
“1. The claimant in this case filed an application for disability insurance benefits on February 11, 1970.
“2. The claimant last met the earnings requirement for disability insurance benefit purposes on March 31, 1969.
“3. The medical evidence fails to show that the claimant was unable to engage in any substantial gainful activity by reason of a back or stomach impairment, as alleged on his application, or any other type of impairment, on or before March 31,1969.”

While affirming the district court, we express concern over the brief treatment given by the examiner in evaluating the evidence. In his decision, the examiner submitted a four-page summary of the evidence preceding the “evaluation” hereinabove set forth but did not express any judgment as to what portions of the evidence he accepted or rejected. Furthermore, he did not address himself to the testimony of plaintiff and his wife concerning plaintiff’s pain, his alleged inability to dress himself or bathe, his limitations on sitting, standing, and walking, as well as other restrictions caused by his extensive hip and leg deformities. As fact finder he has the right to reject their testimony entirely, but failure to indicate rejection could lead to a conclusion that he neglected to consider it at all. “In addition to objective medical facts and expert medical opinions, the Hearing Examiner must consider the claimant’s subjective evidence of pain and disability, as corroborated by family and neighbors; and all of these factors must be viewed against the applicant’s age, educational background and work experience.” Mode v. Celebrezze, 359 F.2d 135, 136 (4th Cir. 1966). Pain, in itself, may be a disabling condition, Ma-runich v. Richardson, 335 F.Supp. 870 (W.D.Pa.1971), and the present record includes medical data which would not contradict, indeed, would support plaintiff’s complaints of pain.

Furthermore, in his “evaluation”, the examiner gives no clue as to why he chose to accept certain medical evidence and reject contradictory evidence. See Kennedy v. Richardson, 454 F.2d 376 (3rd Cir. 1972). In our view an examiner’s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the Secretary’s decision is supported by substantial evidence. It is incumbent upon the examiner to make specific findings — the court may not speculate as to his findings. Williams v. Celebrezze, 359 F.2d 950 (4th Cir. 1966). “We think it is not too much to require that an administrative decision that a claimant is not eligible ... be supported by explicit findings of all facts that are essential to the conclusion of ineligibility.” Choratch v. Finch, 438 F.2d 342, 343 (3d Cir. 1971). Recognizing the heavy work burden on hearing examiners acting under the Social Security Act, we emphasize that the above comments are designed to be helpful in the joint work of the administrative agency and the courts in this field.

While the findings in this case could be improved upon, nevertheless, after careful consideration of the record and relating it to the examiner’s findings, we conclude that such findings are sufficient to satisfy the substantial evidence test. See United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 437, 89 L.Ed. 650 (1944).

The judgment of the district court will be affirmed.

      . However, any inference to be drawn from a clinical notation that plaintiff is “in good orthopedic condition”, should be made in the light of what the record shows to be extensive injury to, and functional limitations on, his musculoskeletal system. The term “doing nicely” is a relative térm that may indicate merely that plaintiff’s condition was as good as could be expected under the circumstances. But, in any event, the extraction of these few conclusory comments without further elaboration is of questionable significance.

      . The Social Security Regulations provide that the Hearing Examiner’s decision shall he in writing “and contain findings of fact and a statement of reasons”. 20 C.F.R. § 404.939. A directive to make findings of fact normally means clear and explicit findings of all facts necessary to support the conclusions reached. Dowdy v. Procter & Gamble Mfg., 267 F.2d 827, 828 (5th Cir. 1959). There is no reason why this customary and accepted procedure should not be followed in Social Security cases. Indeed, the judiciary must hold administrative officers to high standards in the discharge of the fact-finding functions. United States v. Forness, 125 F.2d 928, 942 (2nd Cir. 1942). See also, 20 C.F.R. §§ 404.926 and 404.927.

      . The examiner merely extracted portions of the medical reports which he stated “ . . . are of interest”. Consequently, the summary serves no purpose except for identifying portions of the evidence; there is absolutely no attempt to analyze or evaluate those items referred to in the summary.

      . For example, there is no reference in the “evaluation” to
      (a) X-ray studies in February, 1963, and August, 1964, indicating a “loss of the normal lordotic curve in the lumbar area” and a “loss of the right acetabulum and displacement of the right femoral head upward”. In addition, there was considerable angulation at an old fracture site of the proximal right femoral shaft, osseous loose body in the hip joint and degenerative joint disease most marked in the distal thoracic spine;
      (b) Report of Dr. Elliott Goodman dated December 4, 1965, reciting plaintiff’s orthopedic problems and noting an inability to bend the right knee as well as marked atrophy of the right thigh;
      (e) Report of confinement in Hahnemann Hospital, Philadelphia, from April 18, 1966, to July 29, 1966, during which confinement a hip fusion was effected which involved the taking of a three by one and one-half inch bone graft from the anterior and superior il-iac spine and a subtrochanteric osteotomy. The wound became infected and plaintiff testified that only a thin skin cover grew over the wound site which causes a burning sensation when he walks;
      (d) X-ray studies on April 14, 1969, revealing progressive degenerative changes in the lumbar spine in comparison with a previous study;
      (e) Report of Dr. Stephan Ohristides dated April 30, 1970, indicating a functional loss of 50% in the thoracolumbar spine, a 100% functional loss of the right hip, a decrease in plaintiff’s ability to stoop, bend and lift, although ambulation was considered fairly good by using the four-inch lift on the right shoe, and degenerative changes of the lumbar spine and pelvis.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Laura Elena ESQUER-RIVERA, Appellant. UNITED STATES of America, Appellee, v. Anacleto NAVA-BIBAYOFF, Appellant.
    Nos. 74-1099, 74-1110.
    United States Court of Appeals, Ninth Circuit.
    July 1, 1974.
    Michael J. McCabe, (argued) of Federal Defenders, San Diego, Cal., for appellants.
    James W. Meyers (argued), Asst. U. S. Atty., San Diego, Cal., for appellee.
    ' Before ELY and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, Senior United gon. States District Judge for the District of Ore-

   OPINION

PER CURIAM:

Laura Elena Esquer-Rivera and Añá-dete Nava-Bibayoff appeal their convictions for conspiring to possess and possessing with intent to distribute 101 pounds of marijuana. The evidence of these violations was discovered during a search of their vehicle at a temporary immigration checkpoint. The appellants contend that this search violated the Fourth Amendment and that the evidence should have been suppressed. We agree, and reverse their convictions.

On the evening of August 26, 1973, a car containing Esquer-Rivera and Nava-Bibayoff was stopped at the Border Patrol’s temporary immigration checkpoint on Interstate 8, west of Oco-tillo, California. After detecting the odor of marijuana emanating from the vehicle, a border-patrol agent searched the car and found marijuana concealed under clothing on the rear floorboard, A later search revealed more marijuana hidden in a specially built compartment under the back seat and over the rear axle of the vehicle.

In United States v. Bowen, 500 F.2d 960 (9th Cir., 1974) (en banc), this court held that under the rule announced by the Supreme Court in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), searches by border-patrol agents at fixed checkpoints which were not the functional equivalents of border searches violated the Fourth Amendment. Subsequently, in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir., 1974) (en banc), we held that Almeida-Sanchez also applied to immigration stops for the purpose of interrogating persons about their citizenship. Such stops cannot be made without at the very least a reasonable belief, founded upon “articulable” facts, that one or more of the people to be interrogated are aliens illegally in the country.

Here, the government concedes that the agents lacked such a belief. Hence, the initial stop does not meet Fourth Amendment standards unless the Ocotillo checkpoint is a functional equivalent of the border. The government argues that we should remand the case for a post-Bowen determination of functional equivalency. Although in some cases such a remand would be proper, here the record plainly reveals that the Ocotillo checkpoint is approximately six miles north of the Mexican border on Interstate 8, a major east-west freeway entirely within the United States that connects the Southwest with the West Coast. As we said in Bowen, “border-patrol agents had no reason to believe that virtually all or even most of the cars passing through their checkpoint had recently, or ever, crossed the border.” 500 F.2d at 966. We hold then that the Ocotillo checkpoint was not shown to be located at a functional equivalent of the border, as that phrase was used in Almeida-Sanchez and Bowen. See also United States v. Morgan, 501 F.2d 1351 (9th Cir., 1974) (en banc).

Reversed and remanded.

      . Since the stop and search in this case took place after June 21, 1973, the date on which the Supreme Court decided Almeida-Sanchez, we need not concern ourselves with that part of the Bowen opinion which held that Almeida-Sanchez was not retroactive to fixed checkpoint searches conducted prior to June 21.

      . On November 19, 1973, this case was consolidated with other similar cases for hearings on the impact of Almeida-Sanchez. On December 5, 1973, in United States v. Baca, 368 F.Supp. 398 (S.D.Cal.1973), the District Court for the Southern District of California held that the Ocotillo checkpoint, as well as all other immigration checkpoints operated within the Southern District, were at functional equivalents of the border. The Baca opinion, however, was written without the benefit of our later decision in Bowen.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence HILL, Defendant-Appellant.
    No. 73-1098.
    United States Court of Appeals, Fifth Circuit.
    Aug. 30, 1974.

      James O. Manning, Metairie, La. (Court-appointed), Clarence Hill, Atlanta, Ga., for defendant-appellant.
    Gerald J. Gallinghouse, Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

The validity of Clarence Hill’s conviction for possession with intent to distribute heroin turns upon the constitutional correctness of searches of his residence and automobile. Our appellate task is to determine whether oral testimony before the issuing magistrate was properly employed to bolster an otherwise deficient affidavit for a search warrant, whether a warrantless search of Hill’s automobile was Fourth Amendment-reasonable, and whether his sentence violated the equal protection clause. Under the unique facts of this ease, we find the searches viable and affirm Hill’s conviction and sentence.

I.

The Residential Search

On July 1, 1972, John Henry Phillips, Jr., an agent of the Bureau of Narcotics and Dangerous Drugs (BNDD), appeared before United States Magistrate Morey L. Sear to request a search warrant for the premises at 2363 N. Robertson Street, the New Orleans home of defendant Clarence Hill. Phillips’ affidavit related his belief that Hill was concealing heroin there in violation of 21 U.S.C. § 841(a)(1). To demonstrate probable cause a lengthy memorandum was attached to his affidavit. The attachment set out tips obtained from four confidential informants and from an anonymous phone caller together with related intelligence gathered by law enforcement officials.

Confidential source one had stated that during the month of June Hill had consigned three bundles of heroin to him for sale by revealing where the contraband was hidden, and that Hill, who was also known as “Hip Cat,” was the brother-in-law of a convicted trafficker in heroin. Source two had observed Julius Wilkerson, also known as “Moon,” and another man (not Hill) in Hill’s 1971 white Buick handling six bundles of heroin as he spoke to them about a purchase of the illicit white powder. Source three had reported that Wilkerson was a “big time heroin pusher” with whom he had discussed the purchase of heroin on several occasions. Source four had told a fellow agent that during the previous month he had obtained heroin from a black male at Hill’s address and had taken other persons there to purchase heroin. The continuing BNDD investigation of Hill had also uncovered the fact that another known heroin trafficker, Floyd Dupart, had been seen driving Hill’s 1972 Plymouth and that in October of 1971 Wilkerson had sent Hill 1,350 dollars in New York City, which the agents surmised was to finance the purchase of heroin. Furthermore, Agent Phillips had been warned on June 30 by an anonymous female phone caller to “look out for Julius Wilkerson and Clarence Hill because they are selling dope,” which she stated was heroin hidden in Hill’s residence.

Before he issued the warrant, Magistrate Sear interrogated Phillips under oath as to the basis upon which he had gauged the reliability of each confidential source. Convinced that probable cause existed, the magistrate noted on the affidavit that he had asked the agent further questions and obtained additional information about the informers. As supplemented, he concluded that the affidavit authorized the issuance of a search warrant. Phillips, accompanied by other federal agents and New Orleans police detectives, executed the warrant by searching Hill’s residence that afternoon and seized two bundles of heroin and other narcotics paraphernalia.

At the outset, Hill urges error in the district court’s failure to suppress the seized evidence at a pretrial hearing, contending that Phillips’ affidavit was a deficient predicate for the magistrate’s adjudication of probable cause to search because (1) it did not disclose sufficient underlying circumstances to support the conclusion that Hill was a trafficker and possessor of heroin, and (2) it did not contain sufficient information from which the magistrate could determine that the confidential informants were reliable.

The fourth of our Bill of Rights secures people, houses, persons and effects from unreasonable governmental intrusion in terms which are eloquent in their simplicity.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, (emphasis added).

A judicial officer “may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation.” Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 13, 78 L.Ed. 159 (1933). “Probable cause is deemed to exist ‘where the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been or is being committed.” United States v. Melancon, 462 F.2d 82, 89 (5th Cir. 1972), cert. denied, 409 U.S. 1038, 93 S.Ct. 516, 34 L.Ed.2d 487 (1973), quoting United States v. Rich, 407 F.2d 934, 936 (5th Cir.), cert. denied, 395 U.S. 922, 89 S.Ct. 1775, 23 L.Ed.2d 239 (1969); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Whether a fact and circumstance matrix validly demonstrates probable cause is a determination committed to a neutral and detached magistrate. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). It is fundamental that judicial review of his determination must be strictly confined to the information which was brought to his attention. Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958).

In his consideration of an affidavit, the issuing magistrate may rely on information to establish probable cause which does not reflect the personal knowledge of the affiant if “a substantial basis for crediting the hearsay is presented.” Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 735, 4 L.Ed.2d 697 (1960). In Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964), the Supreme Court propounded a two-pronged standard by which to judge whether an affidavit reciting the tip of an unnamed informer permits the magistrate, rather than the tipster or the investigating police officer, to draw the crucial inferences necessary to establish probable cause from the hearsay facts. He must be informed of the underlying facts and circumstances (1) from which the informant has concluded that the person to be searched is engaged in criminal activities, and (2) from which the affiant has concluded that the informant is credible or his information reliable. United States v. Chavez, 482 F.2d 1268 (5th Cir. 1973).

In the event the hearsay fails to pass muster under Aguilar, it may yet be introduced into the probable cause calculus if the magistrate can fairly state that “the tip, . . . when certain parts have been corroborated by independent sources, is as trustworthy as a tip which would pass Aguilar’s test without independent corroboration.” Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969); see, e. g., United States v. Lopez-Ortiz, 492 F.2d 109 (5th Cir. 1974); United States v. Summerville, 477 F.2d 393 (5th Cir. 1973); United States v. Black, 476 F.2d 267 (5th Cir. 1973); United States v. McNally, 473 F.2d 934 (3rd Cir. 1973); United States v. Marihart, 472 F.2d 809 (8th Cir. 1972) en banc), petition for cert. filed, 42 U.S.L.W. 3611 (U.S. Apr. 8, 1974) (No. 73-1561); United States v. Star, 470 F.2d 1214 (9th Cir. 1972); United States v. Sultan, 463 F.2d 1066 (2d Cir. 1972); United States v. Fuller, 441 F.2d 755 (4th Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 74, 30 L.Ed.2d 59 (1971). Most recently, in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Court held that a cumulation of circumstances recited in an affidavit may be sufficient to support the conclusion that the confidential informant was credible so as to meet the second prong of Aguilar.

These [circumstances] were: (1) the allegation of the affiant that he regarded the informant as “prudent”; (2) the detail provided in the tip; (3) the fact that the affidavit also alleged that the accused had a reputation for being a trafficker in nontaxpaid liquor ; and (4) the fact that the information given, with the allegations of the informant’s purchases, was a declaration against the informant’s penal interest.

United States v. Chavez, supra, 482 F.2d at 1271.

Applying the Courts’ tests to the ease before us, the threshold question is did Phillips make sufficient information of a reliable nature known to Magistrate Sear to warrant a prudent man in believing that the defendant had committed an offense ? The personal knowledge of source one connected Hill directly with the sale of heroin and revealed a modus operandi. Source four, with specificity, personally established Hill’s residence as the scene of numerous transactions in heroin. The information provided by the other confidential sources principally described Hill’s associates as dope pushers but this, as well as the warning provided by the anonymous phone caller, provided some corroborative support for the information supplied by sources one and four.

Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause, Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 228, 13 L.Ed.2d 142 (1964); affidavits of probable cause are tested by much less rigorous standards than those governing the admissibility of evidence at trial, McCray v. Illinois, 386 U.S. 300, 311, 87 S.Ct. 1056, 1062, 18 L.Ed.2d 62 (1967); in judging probable cause, issuing magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense, United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); and their determination of probable cause should be paid great deference by reviewing courts, Jones v. United States, [supra], 362 U.S. at 270-271, 80 S.Ct. at 734-736; Spinelli v. United States, [supra], 393 U.S. at 419, 89 S.Ct. at 590-591.

United States v. Melancon, supra, 462 F.2d at 89-90.

Unquestionably, the information collected from the tipsters by Agent Phillips, if true, would persuade a man of reasonable caution that Hill, in all probability, was selling heroin and concealing his supplies at his home. Since the affidavit reveals sufficient facts and circumstances, albeit hearsay, founded in personal observation and participation, to permit Magistrate Sear to determine whether sources one through four were justified in concluding that Hill was engaged in the sale and distribution of heroin and that the criminal activity was transpiring at his residence, it meets the first prong of the Aguilar standard. See United States v. Banks, 465 F.2d 1235 (5th Cir. 1972).

Agent Phillips was less rigorous in his written presentation of the facts and circumstances upon which he based his belief that his informants were supplying truthful information. Although the informer need not be identified, Gonzales v. Beto, 425 F.2d 963 (5th Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970), only Phillips’ identification of source three, whom he asserted in the affidavit to have been responsible for the convictions of numerous narcotics offenders, met the second prong of Aguilar. United States v. Mendoza, 433 F.2d 891 (5th Cir. 1970). We need not reach the questions of whether the hearsay intelligence of each informer was adequately corroborated under Spinelli standards by the other independent hearsay information or the BNDD agents’ independent observations, or whether the affidavit, considered in its totality, produced a constitutionally sufficient result in conformity with the cumulative Harris equation, for we hold that the reliability and credibility of each informant was established to the satisfaction of Aguilar by Phillips’ extrinsic testimony to the magistrate.

At the pre-trial suppression hearing, Agent Phillips testified as to the additional information he orally supplied Magistrate Sear when the latter questioned Phillips about the reliability of his informants at the time Phillips applied for the search warrant. Although sources one and two had not made any cases for the BNDD, the agent replied that both had furnished information about the New Orleans heroin traffic which had proven to be true and correct. Moreover, Freddie Williams was known to the BNDD as “one of the largest heroin traffickers who has ever resided in New Orleans.” Phillips described source two as a reliable, cooperating individual. The sufficiency of this representation is bolstered by the specificity of the information source two provided. The reported heroin negotiations were traced in detail by disclosure of dates, times, names of individuals, pinpoint location of a street corner agreement, Hill’s auto license number, and the address of the ultimate supplies. The affidavit itself revealed that source three, who had furnished Phillips information since 1963, had been responsible for the arrest and conviction of numerous narcotics offenders. Although he was personally acquainted with the first three confidential informants, Phillips had learned of source four and his information just two days earlier from another BNDD officer, who had stated that source four was a good informer, having supplied true and correct information without, at that time, having made any cases. With this additional background Magistrate Sear initialed the following handwritten notation on the affidavit: “Further interrogation of Agent Phillips including information with regard to his informers supports issuance of this warrant.”

Phillips’ extra-affidavit statements were more than enough to supply the deficits from Aguilar’s second requirement. According to Phillips, each informant had, at the least, supplied BNDD agents in the past with information which had proven to be true and correct. “[S]uch a factual statement of past reliability provides sufficient basis for the magistrate to gauge independently the reliability of the informer.” United States v. Mendoza, supra, 433 F.2d at 894. Each informant furnished information that was based on personal observation and substantiated by instances of past reliability. Moreover, Phillips spoke from personal knowledge as to the credibility of and the information provided by sources one through three. That the tip and reliability of source four were communicated to the affiant by another officer is of no decisional moment. United States v. Simpson, 484 F.2d 467 (5th Cir. 1973); United States v. Impson, 482 F.2d 197 (5th Cir. 1973), cert. denied, 414 U.S. 1009, 94 S.Ct. 371, 38 L.Ed. 246 (1974); United States v. Trabucco, 424 F.2d 1311 (5th Cir.), petition for cert. dismissed, 399 U.S. 918, 90 S.Ct. 2224, 26 L.Ed.2d 785 (1970). Such personal observations of a fellow officer pursuing the same investigation can be presumed reliable. United States v. Hayles, 471 F.2d 788 (5th Cir.), cert. denied, 411 U.S. 969, 93 S.Ct. 2159, 36 L.Ed.2d 690 (1973). The fact that Phillips rather than his fellow officer imparted this particular information to the magistrate in no way attenuates its accuracy or the credibility of the informant.

Hill contends, however, that Fed.R.Crim.P. 41(c) does not permit a federal magistrate to rehabilitate a deficient affidavit with oral testimony. It has been an accepted principle in this and other circuits that a federal court, reviewing a State conviction, may consider an affiant’s oral testimony, extrinsic to the written affidavit, which is sworn before the issuing magistrate, in determining whether the warrant was founded on probable cause. See, e. g., Campbell v. Minnesota, 487 F.2d 1 (8th Cir. 1973); United States ex rel. Gaugler v. Brierley, 477 F.2d 516 (3d Cir. 1973); Boyer v. Arizona, 455 F.2d 804 (9th Cir. 1972); Radcliff v. Cardwell, 446 F.2d 1141 (6th Cir. 1971); Frazier v. Roberts, 441 F.2d 1224 (8th Cir. 1971); United States ex rel. Pugach v. Mancusi, 411 F.2d 177 (2d Cir.), cert. denied, 396 U.S. 889, 90 S.Ct. 172, 24 L.Ed.2d 163 (1969); Sherrick v. Eyman, 389 F.2d 648 (9th Cir.), cert. denied, 393 U.S. 874, 89 S.Ct. 167, 21 L.Ed.2d 144 (1968); See also Lopez v. United States, 370 F.2d 8 (5th Cir. 1966). The constitution does not mandate that a sworn statement in support of an application for a search warrant be reduced to writing. “The Fourth Amendment requires only that the judicial officer issuing a search warrant be supplied sufficient information, under oath or affirmation, which would support an independent judgment that probable cause exists for the warrant’s issuance.” United States ex rel. Gaugler v. Brierley, supra, 477 F.2d at 522 (footnote omitted); see Boyer v. Arizona, supra; Sherrick v. Eyman, supra. In federal criminal proceedings the issuance of search warrants is subject.to the added governance of Fed.R.Crim.P. 41(c), which, as of the date the warrant sub judice was issued, provided:

(c) Issuance and Contents. A warrant shall issue only on affidavit sworn to before the judge or commissioner and establishing the grounds for issuing the warrant. If the judge or commissioner is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched.

The notes of the advisory committee state that the rule was intended to codify and restate existing law and practice as of the date it became effective on October 20, 1949.

The sworn additional information provided by Agent Phillips adequately apprised Magistrate Sear of circumstances indicating the past and present reliability of the four informers. In view of the fact that the magistrate’s own conscientious attention to his duty enabled him to satisfy himself of the persuasiveness of the facts purporting to show probable cause and that this court can readily determine that the warrant and concomitant search comport with constitutional requirements, we join the Eighth and Tenth Circuits in holding this supplementation was permissible under Rule 41(c) as it was written at the time Hill’s search warrant issued. See United States v. Beasley, 485 F.2d 60 (10th Cir. 1973); United States v. Marihart, supra; Leeper v. United States, 446 F.2d 281 (10th Cir.), cert. denied, 404 U.S. 1021, 92 S.Ct. 695, 30 L.Ed.2d 671 (1971); United States v. Berkus, 428 F.2d 1148 (8th Cir. 1970); Lopez v. United States, supra; Billespie v. United States, 368 F.2d 1 (8th Cir. 1966).

Under different facts, the Ninth Circuit decided that physical incorporation of all information into the affidavit was required. “[Ujnder Rule 41(c) the written affidavit presented to the federal issuing officer and to the reviewing court must alone establish that probable cause exists.” United States v. Anderson, 453 F.2d 174, 177 (9th Cir. 1971); accord United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973) (dictum); United States v. Hatcher, 473 F.2d 321 (6th Cir. 1973) (dictum); United States v. Bailey, 458 F.2d 408 (9th Cir. 1972) (dictum); United States v. Sterling, 369 F.2d 799, 802 n. 2 (3rd Cir. 1966) (dictum); see United States v. Pinkerman, 374 F.2d 988 (4th Cir. 1967) (dictum); Rosencranz v. United States, 356 F.2d 310 (1st Cir. 1966) (dictum); see also United States v. Freeman, 358 F.2d 459 (2nd Cir.) (dictum), cert. denied, 385 U.S. 882, 87 S.Ct. 168, 17 L.Ed.2d 109 (1966).

The Anderson Court reasoned that the “four corners” of the affidavit had to constitute the alpha and omega for judging probable cause in order to insure that “the reviewing court may determine whether the constitutional requirements have been met without reliance upon faded and often confused memories.” United States v. Anderson, supra, 453 F.2d at 177.

The reasoning supporting the Ninth Circuit’s rule is not apropos here. Phillips did not attempt to supply Magistrate Sear with remote or minute details of Hill’s conduct based upon his ability to recall bits and pieces of past conversations. His supplementation only furnished facts known to him and his fellow-officer that indicated the informers’ information should be credited. Phillips’ recall of this disclosure shows that his memory of these matters was neither clouded nor befuddled. We can conclude without difficulty that the warrant was duly authorized. Furthermore, this situation furnishes no occasion to apply the exclusionary rule to bar the evidence of Hill’s criminality that was obtained in executing the warrant. Phillips acted properly in going to the magistrate and seeking a warrant. Magistrate Sear acted properly in calling for additional information to demonstrate credibility. Thus, the only error attributable to the procedure they followed is a technical one that would in no way serve the deterrent purposes of the rule.

The rule is calculated to prevent, not to repair. Its purpose is to deter —to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.

Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960), quoted in United States v. Calan-dra, 414 U.S. 338, 94 S.Ct. 613, 618, 38 L.Ed.2d 561 (1974). This is especially so since Rule 41(c) has now been amended to expressly permit oral interrogation by the magistrate.

By these express new provisions, the Rule has clarified police and magisterial conduct for the future in a more effective manner than the exclusionary rule ever could. Magistrate Sears’ handwritten notation on the face of the affidavit signaled his reliance on the additional information he obtained from Agent Phillips. That he was not omniscient enough to also transcribe and incorporate the agent’s testimony is not fatal since the facts obtained were within the agent’s direct knowledge and sufficiently uncomplicated to enable the court to obtain a reliable reproduction.

Although we do not overlook the fact that a different result would obtain if the affidavit had been procured after October 1, 1972, it would be illogical and unjust to overturn this conviction on the basis of a technical default that in nowise mitigated the reliability of the information in the affidavit or its procedural compliance with the Fourth Amendment. See United States v. Mendoza, 491 F.2d 534 (5th Cir. 1974); United States v. Soriano, 482 F.2d 469 (5th Cir. 1973); modified on other grounds, 497 F.2d 147 (5th Cir. 1974) (en banc); United States v. Nolan, 413 F.2d 850 (6th Cir. 1969).

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s eases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlaw-yers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 746. The district court’s denial of defendant’s motion to suppress the physical evidence seized during the search of Hill’s residence must be affirmed.

II.

The Automobile Search

The BNDD agents and police officers executed the search warrant at Hill’s residence on the afternoon of July 1, 1972. After the agents had entered and secured the house, Agent Phillips gave Hill a copy of the warrant and advjsed him of his constitutional rights. Hill denied there was heroin on the premises, but did relinquish a gun and 17,991 dollars in cash. The agents began searching and soon discovered a box of glas-sine envelopes of the kind commonly used to package heroin.

When the officers began to “get hot,” Hill asked whether he would be the only one taken to jail if he surrendered the heroin. At Hill’s request Phillips signed his name to an agreement written on the back of the search warrant in which the agent promised that if Hill surrendered all the heroin in his possession and if he were the sole person responsible for it, his wife and child, who were also present, would not be arrested. At this juncture Hill pointed to a lamp fixture next to him from which the agents retrieved two bundles of heroin wrapped in a brown packet.

While the agents continued to search, detectives of the New Orleans Police Department spoke with Hill’s 7-year old son in the rear of the house away from his parents. The officers showed him a bundle of the seized heroin and asked if he had ever seen his father handling this sort of white powder. The child replied that he had seen his father carry a bag containing bundles of the white powder out to his car, which was parked around the corner. Goading him on, the officers told him he did not know what he was talking about and promised him $3.75 if he would show them where the car was located. The child then repeated to Phillips his story that if the white powder was not in the kitchen closet with the money, it would be in the car. Agent Phillips picked up a set of car keys laying on a table and the child led the officers half a block to Hill’s Buick, which was searched and found to contain 40 bundles of heroin and other narcotics paraphernalia.

Hill contends that the warrant-less search of his automobile was conducted in the absence of exigent circumstances and, therefore, was unconstitutional under the rationale of Coolidge v. New Hampshire, supra. That the agents had probable cause to seize the vehicle is undisputed. The intelligence gathered by Phillips and recited in the affidavit implicating the Buick in unlawful heroin transactions was- reinforced by fresh information provided by Hill’s son that if Hill’s cache was not in the house it would be found in the car. Moreover, the known accessibility of the automobile to Hill’s confederates supplied exigent circumstances for a seizure despite the fact that the BNDD agents had immobilized Hill, his wife and his car keys.

In United States v. Soriano, 497 F.2d 147, 149 (5th Cir. 1974) (en banc), this court, relying on Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), reasoned “that where automobiles and their contents are concerned, circumstances which justify an immediate seizure as reasonable justify an immediate search as well.”

That Hill’s reliance upon Coolidge v. New Hampshire, supra, is unfounded is made clear by the following language from Cardwell v. Lewis, 417 U.S. 583, 593, 94 S.Ct. 2464, 2471, 41 L.Ed.2d 325 (1974):

Since the Coolidge car was parked on the defendant’s driveway, the seizure of that automobile required an entry upon private property. Here, as in Chambers v. Maroney, 399 U.S. 42, [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970), the automobile was seized from a public place where access was not meaningfully restricted. This is, in fact, the ground upon which the Coolidge plurality opinion distinguished Chambers, 403 U.S., at 463 n. 20, 91 S.Ct. at 2036. See also Cady v. Dombrowski, 413 U.S. 266 at 446-447, [93 S.Ct. 2535, at 2530-2531, 37 L.Ed.2d 596].

The intervention of an impartial magistrate between the uncontrolled discretion of police officers and the citizens they are sworn to serve is always to be preferred. Solid judicial precedent has, however, mitigated the inflexible warrant requirement as to automobile searches. In the circumstances of the case before us today we hold that the warrantless search of Hill’s automobile comported with the Fourth Amendment. See United States v. Maspero, 496 F.2d 1354 (5th Cir. 1974); United States v. Davis, 496 F.2d 1026 (5th Cir. 1974); United States v. Frick, 490 F.2d 666 (5th Cir. 1973).

III.

The Sentence

After he found Hill guilty as charged in the indictment, the district judge sentenced the defendant to a term of 8 years in the federal penitentiary to be followed by a special 3-year term of parole. In addition, he ordered the defendant to pay a fine of 15,000 dollars or stand committed. Hill contends that because he is indigent, the fine denies him equal protection of the law. This sentence lay well within the maximum prescribed by 21 U.S.C. § 841(b)(1)(A), which authorized imprisonment for up to 15 years and a fine of not more than 25,000 dollars. In Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970), the Supreme Court held “that a state may not constitutionally imprison beyond the maximum duration fixed by statute a defendant who is financially unable to pay a fine. A statute permitting a sentence of both imprisonment and fine cannot be parlayed into a longer term of imprisonment than is fixed by the statute . . . . ” In Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 671, 28 L.Ed.2d 130 (1971), the Court adopted the view, previously expressed by four of its members in Morris v. Schoonfield, 399 U.S. 508, 509, 90 S.Ct. 2232, 2233, 26 L.Ed.2d 773 (1970), that “the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.” It also emphasized, however, that there is no constitutional infirmity in imprisoning “a defendant with the means to pay a fine who refuses or neglects to do so.” 401 U.S. at 400, 91 S.Ct. at 672.

Neither Hill nor his counsel entered any objection when the district court imposed sentence. The present record is devoid of any evidence of Hill’s indigen-cy; indeed indigency is contraindicated by the fact that almost 18,000 dollars in cash was recovered at his residence. Nothing establishes that the sentence and fine imposed now offend the Equal Protection Clause. The defendant may petition the district court under Fed.R. Crim.P. 35 for correction or reduction of sentence at such time as he can demonstrate that his fiscal inability to pay the fine assessed is causing him to suffer a deprivation of liberty. Should the government resort to alternatives other than incarceration to enforce its interest in the payment of fines, Hill may raise his equal protection rights there also. See Tate v. Short, supra, 401 U.S. at 399, 91 S.Ct. at 671.

The decision of the district court is

Affirmed.

      . See United States v. Stratton, 453 F.2d 36 (8th Cir.), cert. denied, 405 U.S. 1069, 92 S.Ct. 1515, 31 L.Ed.2d 800 (1972); see also Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

      . In two cases arising from state criminal convictions the Supreme Court intimated that sworn oral testimony before a state magistrate in an application for a search or arrest warrant may constitutionally supplement an affidavit which, on its face, fails to establish probable cause for its issuance. See Whiteley v. Warden, Wyoming State Penitentiary, supra, 401 U.S. at 565 n. 8, 91 S.Ct. at 1035; Aguilar v. Texas, supra, 378 U.S. at 109 n. 1, 84 S.Ct. at 1511; United States ex rel. Gaugler v. Brierley, supra, 477 F.2d at 520-522.

      . In pertinent part the amended rule provides :
      (c) Issuance mul contents. A warrant shall issue only on an affidavit or affidavits sworn to before the federal magistrate or state judge and establishing the grounds for issuing the warrant. If the federal magistrate or state judge is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The finding of probable cause may be based upon hearsay evidence in whole or in part. Before ruling on a request for a warrant the federal magistrate or state judge may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such proceeding shall he taken down hy a court reporter or recording equipment and made pant of the affidavit. (Italicized language added by Amendment).
      We of course note that under the amended rule such interrogation and the affiant’s responses must be recorded and made a part of the affidavit.