author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Abraham Pina MORENO, Defendant-Appellant.
    No. 72-2484.
    United States Court of Appeals, Fifth Circuit.
    March 12, 1973.
    Rehearing Denied April 10, 1973.

      Stanley D. Rosenberg, San Antonio, Tex. (Court-Appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., Reese L. Harrison, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before GEWIN, BELL and GOD-BOLD, Circuit Judges.
   GEWIN, Circuit Judge:

In this appeal we are asked to decide the constitutional propriety of an airport search and seizure, the fruits of which resulted in Abraham Pina Moreno’s arrest and non-jury conviction under 21 U.S.C. § 841(a)(1) for the unlawful possession of 86.6 grams of heroin with an intent to distribute. Important questions of public policy are involved in this case. Resolution of the primary issue presented requires this court to perform the difficult and sensitive task of balancing the individual rights protected by the fourth amendment against the overwhelming public interest in effective protection from the threat posed by air piracy, a crime that has terrorized and threatened the lives of many people in recent years. The danger and the harm continue to be of national concern. For reasons which will be fully developed in subsequent discussion, we find that the search and seizure in this case did not offend the fourth amendment. Accordingly, we affirm the judgment of the district court.

I

On January 21, 1972 Moreno arrived in San Antonio International airport aboard a Braniff Airlines flight from which he was observed deplaning by Deputy U. S. Marshal Granados, a member of the airport’s Anti-Air Piracy detail, who had 20 years experience as a law enforcement officer. When Moreno came into the lounge area, Granados noticed that he appeared to be looking for someone and was unusually wary of the airport security guards. He was visibly nervous as he proceeded into the main terminal area and Granados saw that this condition became more pronounced when he realized that he was under surveillance. Shortly thereafter he entered a taxicab and left the airport.

About two hours later, Moreno returned and once again Granados began observing him. He went first to the Braniff ticket counter and got in line. Obviously very nervous, he switched from one line to another, several times before going to the Southwest Airlines counter where he finally bought a ticket. After purchasing the ticket he headed toward the gate of Southwest Airlines, looked straight at Officer Granados who was walking towards him, and he then went into a restroom located nearby. Granados noticed that he seemed to be protecting or covering something, and inside the restroom where he was able to get a closer look, he saw that there was a prominent bulge on the left side of Moreno’s coat. This aroused his suspicion that Moreno might be carrying some kind of weapon or explosive device that could be used in an air piracy attempt.

Thereupon Granados approached Moreno, identified himself and inquired whether anything was wrong. Moreno said he was a little nervous, adding that he had just arrived in San Antonio the day before and taken a taxicab to the Baptist Memorial Hospital downtown. He was unhappy with the taxicab fare that he was charged for the trip back to the airport. This account aroused Granados’ suspicion still further because he knew that Moreno had arrived in San Antonio only a few hours earlier and that he had gone to a bus station upon leaving the airport and not to the hospital as he claimed. After being asked twice to produce some identification, Moreno did so only after substantial hesitation. Finally, he removed a wallet from the inside left pocket of his coat and gave it to Granados who by then was concerned that he might attempt to escape. Officer Granados stated that after he received the identification papers, Moreno “started to turn” and that he thought Moreno was going to attempt to “run out of the restroom” because there were several doors “leading outside from that restroom.” At this point Grenados signaled another officer “to come give me a hand with him.” Officer Chapa then joined Granados and they escorted Moreno to the security office.

At that point, Moreno was informed that he could make any complaints that he might have at the airport security office. At the preliminary hearing in this case, the evidence showed that Granados ordered Moreno to go to the security office and would have used any force necessary to prevent him from running away. As soon as they reached the security office a pat down search was conducted after which Moreno was asked what he had in his inside coat pocket. He pulled out some papers which obviously were not the cause of the bulge. He was then ordered to take his coat off and the ensuing search yielded three cellophane wrapped packages which contained the heroin involved in this case.

Prior to trial, Moreno filed a motion to suppress as to the heroin seized in the airport search. He contended that even if there were sufficient circumstances to justify a stop and frisk, the detention and subsequent search went far beyond the constitutionally permissible intrusion contemplated by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In denying the motion, the district court recognized “the strong need for reasonable searches and seizures in furtherance of the public interest against air piracy.” Accordingly, it concluded that the arresting agents were reasonably justified in believing that Moreno might be armed and dangerous and in stopping and searching him pursuant to that belief.

II

After careful analysis, it is our considered judgment that the disposition of this case is controlled by the rationale and teachings of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 884 (1968) and subsequent decisions of circuit courts construing Terry in the context of an airport search. United States v. Slocum, 464 F.2d 1180 (3d Cir. 1972); United States v. Bell, 464 F.2d 667 (2d Cir. 1972); United States v. Epperson, 454 F.2d 769 (4th Cir. 1972); United States v. Lindsey, 451 F.2d 701 (3d Cir. 1971). While we are fully aware of the sheer urgency of the current air piracy problem, we do not believe that fact alone is sufficient justification for a warrantless airport search.

In our resolution of this issue it is important to review and analyze the considerations which lay at the heart of the Terry decision. In balancing the fourth amendment interests at stake against the practical requirements of effective law enforcement, the Supreme Court measured the constitutionality of the police officer’s conduct by the following standard: whether the facts available to the officer at the moment of the seizure or the search would justify a man of reasonable caution in the belief that the action taken was appropriate. 392 U.S. 1, at 22, 88 S.Ct. 1880, 20 L.Ed.2d 889, at 906. Even though a serious intrusion upon the sanctity of the person was involved, the Court gave its approval to a limited weapons search of a suspect who was under investigation for possible criminal activity. It did so despite the fact that at the time the police officer had no probable cause to make an arrest. In reaching this conclusion, the court emphasized that the intrusion entailed by this search had been strictly confined to what was minimally necessary not only to insure the personal safety of the investigating officer, but also the safety of others. Indeed the safety of others is repeatedly mentioned throughout the opinion. In short, the scope of the search was consistent with the valid purpose for whch it was initiated.

Although the personal safety of the police officer is a valid governmental interest at stake in deciding the proper scope of a warrantless airport security search, that is not the only governmental interest involved. Of equal importance to airport security searches is the central purpose of thwarting air piracy which often involves the safety of passengers and crew on tremendous aircraft after the plane is airborne with a heavy cargo. At this point in time the security officer is usually safe in the airport. However, the “others” involved, the passengers and the crew, are in the air.

III

Although the problem of aerial hijacking is well known to the public, we think it appropriate, nevertheless, to single out our reasons for treating airport security searches as an exceptional and exigent situation under the Fourth Amendment. At the core of this problem is the hijacker himself. In some cases he is a deeply disturbed and highly unpredictable individual — a paranoid, suicidal schizophrenic with extreme tendencies towards violence. Although the crime of air piracy exceeds all others in terms of the potential for great and immediate harm to others, its undesirable consequences are not limited to that fact. Among other things, it has been used as an avenue of escape for criminals, a means of extorting huge sums of money and as a device for carrying out numerous acts of political violence and terrorism. Perhaps most disturbing of all is the fact that aerial hijacking appears to be escalating in frequency. We do not think that it is unrealistic to say that the current situation has approached the crisis stage for law enforcement officials in this country.

Apart from the unusual dangers inherent in the crime itself, aerial hijacking has created equally unusual detection problems. Unlike most other crimes, hijacking is one in which secrecy is not a principal concern. Once the hijacker decides to act, he doesn’t care if there are numerous witnesses. Indeed, according to the pattern developed thus far, he prefers as many as possible because each one is a potential hostage to shield him from apprehension until he can be flown to a political sanctuary or place of concealment. Obviously, in order to jeopardize the lives and safety of the smallest number of people, the hijacker must be discovered when he is least dangerous to others and when he least expects confrontation with the police. In practical terms, this means while he is still on the ground and before he has taken any overt action.

Clearly, this would not be an easy objective to accomplish under the best of conditions. But amidst the rush and the congestion of many airports, this task is vastly complicated. Airport security officials have the awesome responsibility of ferreting out hijacking threats from among thousands of passengers while at the same time avoiding any undue disruption to this nation’s heavy flow of commercial air traffic. Inseparably related to this is the fact that the hijacker’s modus operandi is designed to take optimum advantage of these pressures. The hijacker prefers the anonymity of the crowd where he is but a part of the blend. The hiding place of his weapons is the commonplace accessory of air travelers everywhere— the overnight bag, the briefcase, the overcoat or other clothing. His arsenal is not confined to the cumbersome gun or knife; for modern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube. A detonator planted in a fountain pen is all that is required to set it off. Unfortunately, society’s law enforcement capabilities have not caught up with these problems. It is in this context that we must assess the constitutionality of the search of Moreno.

IV

Under the fourth amendment, whenever it is practicable an impartial magistrate should make the initial determination whether probable cause exists to justify an intrusion upon the sanctity of the person or the home. The Supreme Court, however, has long recognized that under certain circumstances adherence to the warrant requirement is not vital to the protection of the values implicit in the fourth amendment. See, e. g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (automobile search); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (hot pursuit); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to arrest). In cases such as this one, where a warrantless search is conducted, it is necessary to strike a cautious balance between the competing interests of law enforcement and the right of the individual to be left alone. In doing this, we must be mindful of the fact that the constitution does not forbid all searches and seizures, only unreasonable ones. Elkin v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669, 1680 (1960). Thus, reasonableness is the ultimate standard by which we must be guided in determining the constitutional propriety of the airport search which resulted in Moreno’s arrest and conviction for heroin possession. Camara v. Municipal Court, 387 U.S. 523, 539, 87 S.Ct. 1727, 1736, 18 L.Ed.2d 930, 941 (1966). See also United States v. Slocum, 464 F.2d 1180, 1182 (3d Cir. 1972).

In the case at hand, Officer Granados maintained constant surveillance on Moreno while he was in the airport area. One of the first things he observed was his unusual nervousness, a condition that seemed to intensify after Moreno realized that he was being watched. On the basis of information obtained from the taxicab dispatcher, Granados learned that when Moreno left the airport he had been taken to a downtown bus station in San Antonio. Upon his return about two hours later, Moreno seemed as anxious as before, changing waiting lines several times at one ticket counter before going to another airline to make his purchase. When Moreno walked into the restroom after starting toward the airline gate, Granados, a member of the airport’s anti-air piracy detail, observed a prominent bulge on the left side of his. coat about which he seemed unusually apprehensive. It was at this point that the decision was made to approach Moreno to investigate his behavior. With respect to the validity of the officer’s initial action in making the stop, we think that the principles reflected in the Supreme Court’s “stop and frisk” decisions are relevant. As was observed in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, 616, 617 (1972):

“ ‘[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for the purpose of investigating possible criminal behavior even though there is no probable cause to make an arrest.’ 392 U.S., at 22, 88 S.Ct. at 1880, 20 L.Ed.2d at 906. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary Terry recognizes that it may be the essence of good police work to adopt an intermediate response. See id., at 23, 88 S.Ct. at 1881, 20' L.Ed.2d at 907. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.”

Under the circumstances known to Granados, and particularly in light of his special responsibility for the prevention of air piracy, we think that he acted reasonably. Moreno’s nervousness, coupled with the bulge in his coat pocket and the fact that he had just purchased an airline ticket and headed in the direction of the airline gate are circumstances which supported""Granados’ belief that this man might pose an air piracy threat. His investigatory action was neither arbitrary nor impulsive. It came only after cautious surveillance which revealed devious and suspicious conduct. We think it was entirely consistent with the officer’s lawful duties. Tragic experience has taught us more than once that such deterrence must begin before the hijacker is about to step onto the plane.

Due to the gravity of the air piracy problem, we think that the airport, like the border crossing, is a critical zone in which special fourth amendment considerations apply. It is the one channel through which all hijackers must pass before being in a position to commit their crime. It is also the one point where airport security officials can marshal their resources to thwart such acts before the lives of an airplane’s passengers and crew are endangered. In applying Terry were we to hold that airport security officials must always confine themselves to a “pat down” search where there is a proper basis for an air piracy investigation, we think that such a per se restriction in the final analysis would be self-defeating. We have already pointed out that the hijacker can conceal explosives or weapons in places which might be overlooked in the course of a cursory pat down. It should be emphasized that such a search is not primarily for the investigating officer’s protection, but rather for the protection of a distinct and uniquely threatened class — this nation’s air carriers, their crews and passengers.

Relating these principles to the case at hand, we find that the invasion of Moreno’s personal sanctity entailed by his detention and search did not offend the fourth amendment. Once confronted by the police, he appeared evasive and hesitant and lied about his destination when he was taken by taxi into downtown San Antonio. These responses reinforced Granados’ original belief that Moreno should be investigated. We are not alarmed by the fact that Moreno was taken from the restroom to the airport security office before being searched. The permissibility of that intrusion cannot be gauged strictly on a temporal and spatial basis. Such a mechanistic approach is not the essence of the reasonableness determination. In view of the midafternoon congestion of the airport, we think the procedure followed by Granados and his fellow officer fell within proper bounds. A brief isolation of Moreno for the purpose of the search served to neutralize any threat that he might pose to others if he, in fact, was armed and dangerous. It should not be dismissed lightly that most hijackers are seriously disturbed, desperate people to whom the possibility of death is not always a deterrent. Furthermore, we believe that in virtually all cases the individual searched would prefer the privacy of the security office to the public place even though it involves a temporary surrender of personal liberty. If anything, the minor, but constitutionally acceptable indignity incident to an airport search conducted in that manner is diminished rather than heightened by such a procedure.

Finally, the fact that Moreno was required to remove his coat to facilitate the search is of no consequence under the circumstances of this case. His devious conduct, hesitation, and suspicious actions constituted sufficient reasons to support the officer’s decision to determine exactly what was causing the bulge in his coat. Airport security officials had a legitimate interest in making a conclusive determination with respect to Moreno’s conduct and presence in the airport. The removal of Moreno’s coat was a necessary step in this determination, particularly in view of his refusal to remove the contents of his coat pocket after he was asked to do so.

V

Having concluded that the heroin admitted into evidence in this case was the product of a valid search, we hold that the trial court did not err in denying Moreno’s motion to suppress. We likewise find no error with respect to Moreno’s second contention that the evidence was insufficient to establish beyond a reasonable doubt an intent to distribute the heroin. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. McGlamory, 441 F.2d 130, 134-135 (5th Cir. 1971).

Judgment affirmed.

      . 21 U.S.C. § 841(a)(1) provides as follows :
      “(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally'—
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or . . . ”

      . The decision in Terry does not constitute an erosion or dilution of fourth amendment prohibitions against unreasonable searches and seizures. The opinion emphasizes the sacred right of fourth amendment principles which are designed to assure full expectations of privacy.
      Chief Justice Warren flatly rejected the suggestion that by the use of the terms “stop” and “frisk” the conduct of police in making a search and seizure is outside the fourth amendment because neither action rises to the level of a “search” or “seizure” within the meaning of the Constitution. We quote his emphatic language :
      “We emphatically reject this notion. It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and pros'ecution for crime —‘arrests’ in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. And it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search.’ Moreover, it is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”
      392 U.S. at 16-17, 8S S.Ct. at 1877, 20 L.Ed.2d 903.
      The decision gives full consideration to fourth amendment concepts in dealing with the problem presented. In resolving the issues, the Court gave careful consideration to the following factors :
      1. The governmental interest which allegedly justifies official intrusion upon the constitutionally protected rights of the private citizen. 392 U.S. 21, 22, 88 S.Ct. 1879, 1880, 20 L.Ed.2d 905, 906.
      2. The reasonableness of the police conduct involved after careful consideration of all the circumstances surrounding the particular governmental invasion of a citizen’s personal security. 392 U.S. 23, 88 S.Ct. 1881, 20 L.Ed.2d 907.
      3. Whether the facts available to the officer at the moment of the seizure or the search, “warrant a man of reasonable caution in the belief” that the action taken was appropriate. 392 U.S. 22, 88 S.Ct. 1880, 20 L.Ed.2d 906.
      4. A valid governmental interest is the effective detection and prevention of crime and pursuant to that purpose a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest. 392 U.S. 22, 88 S.Ct. 1880, 20 L.Ed.2d 906-907.
      5. An experienced police officer is charged with the duty to investigate suspicious behavior under certain conditions in order to prevent or detect criminal activity. 392 U.S. 23, 88 S.Ct. 1881, 20 L.Ed.2d 907.
      6. In situations in which an officer justifiably suspects criminal activity a search and seizure is authorized, in the absence of probable cause, in order to protect the officer and other prospective victims of violence. 392 U.S. 24, 88 S.Ct. 1881, 20 L.Ed.2d 907-908.
      7. If the facts justify an officer’s belief that he is dealing with an armed or dangerous individual he is authorized to conduct a limited search of that individual in the absence of probable cause even though he is not absolutely certain that the individual is armed; “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” 392 U.S. 27, 88 S.Ct. 1883, 20 L.Ed.2d 909.
      8. There is no hard and fast rule which will provide a ready solution of problems arising from search and seizure on every occasion, but each case must be decided on its own facts. 392 U.S. 30, 88 S.Ct. 1884, 20 L.Ed.2d 911.

      . For an exhaustive study of the psychological makeup of the air pirate see, D. Hubbard, The Skyjacker: His Flights of Fantasy (1971). Equally vivid in presenting the same picture is an article which appeared in The National Observer, Nov. 11, 1972, at 6. It tells the startling tale of a Washington bureaucrat, Charles Tuller, whose smouldering resentment and frustration led him to commit air piracy. In his wake, he left a Houston ticket agent dead. The frightening part of this account is that Charles Tuller was an unobtrusive, ordinary man — in appearance at least no different from any other air traveler of today.

      . There have been 387 air piracy attempts since the initial one in 1930; of those, about two dozen, all of them recent, have been for extortion purposes. Time, Nov. 27, 1972, at 22. According to one very recent article, $12.7 million in extortion demands have been made against U.S. airlines, only about half of which has been recovered. Aviation Week & Space Technology, Nov. 20, 1972, at 14.

      . A recent example was the successful takeover by Palestinean terrorists of a German airliner carrying 11 passengers. With the passengers as hostages, they forced German authorities to release three of their imprisoned comrades who were participants in the slaying of members of the Israeli Olympic team in Munich this past summer. Time, Nov. 13, 1972, at 29.

      . The airline industry’s response thus far has been to implement a number of sophisticated measures to enable airport security officials to cope with the air piracy threat. These measures include the use of hijacker behavioral profiles, a metal sensitive device known as a magnetometer and, on an experimental basis recently, portable x-ray machines. Law enforcement officers with experience over long years of service have proved to be highly valuable in this effort. In addition, the Federal Aviation Administration has recently required airlines to conduct systematic searches of all carry-on baggage for all flights. See Aviation Week & Space Technology, August 21, 1972 at 28; Id. Sept. 4, 1972 at 28. In spite of the deterrent potential in these measures, they are not used by all airlines in all airports domestic and international. Hence, a kind of security gap still plagues the many earnest, but uncoordinated, attempts to bring air piracy under control,

      . In Terry v. Ohio, 392 U.S. 1, 5, 88 S.Ct. 1871, 20 L.Ed.2d 889, 896 the circumstances observed by the officer were described as follows:
      “He explained that he had developed routine habits of observation over the years and that he would ‘stand and watch people or walk and watch people at many intervals of the day.’ He added: ‘Now, in this case when L looked over they didn’t look right to me at the time.’
      His interest aroused, Officer McFadden took up a post of observation in the entrance to a store 300 to 400 feet away from the two men. T get more purpose to watch them when I seen their movements,’ he testified.”

      . Customs officials conducting border searches have always been exempt from the usual fourth amendment requirement that searches be based on probable cause. Aside from the historical argument that this exception has always been recognized, it is also justified by the vital national interest in preventing illegal entry and smuggling, particularly of narcotics. Although under some circumstances searches can be conducted away from the border crossing area, all persons searched must be shown to have come through that critical zone to make this exception to the warrant requirement applicable. The mere suspicion of possible illegal activity is enough cause to justify a border search. See United States v. Warner, 441 F.2d 821, 832 (5th Cir. 1971); Validity of Border Searches and Seizures by Customs Officers, 6 A.L.R.Fed. 317 (1971). Our discussion of border searches is by way of analogy. We do not propose to substitute the “suspicion standard” applicable in border search cases for the Terry v. Ohio standard which is the basis for our decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael E. REMMERS, Appellant, v. Lou V. BREWER, Warden, et al., Appellees.
    No. 72-1490.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 13, 1973.
    Decided March 12, 1973.
    J. Jane Fox, Iowa City, Iowa, for appellant.

      Loma Lawhead Williams, Asst. Atty. Gen., Des Moines, Iowa, for appellees.
    Before GIBSON and ROSS, Circuit Judges, and BENSON, Chief District Judge.
   PER CURIAM.

Michael E. Remmers, a prisoner in the Iowa State Penitentiary, filed his pro se complaint in United States District Court, alleging a deprivation of his civil rights under 42 U.S.C. § 1983. The complaint included allegations, rather in-artfully drawn, that he had been denied due process of law and the right to counsel in a prison disciplinary hearing; that the solitary confinement he received after such hearing was cruel and unusual punishment; that he was denied freedom of speech and press because he was punished because of the content of & newspaper article about prison life which he authored; and that his letters to his church, his attorney, and a state senator were censored and interfered with by prison authorities. The trial court, upon its own motion, before any process was served and without any notice to Remmers, permitted the filing of the complaint in forma pauperis and dismissed the complaint for failure to state a claim upon which relief could be granted. Remmers subsequently filed an amended civil rights complaint which the trial court treated as a motion to reconsider and which it promptly denied without hearing or notice. The trial court granted leave to appeal in forma pauperis. We reverse and remand with directions to hold an evidentiary hearing.

We first note that the complaint was dismissed prior to service of process and without notice to Remmers.

The Ninth Circuit has held that the least that is required when a civil rights complaint is filed, is that process issue and be served as required by F.R.Civ.P. 4(a), and that notice be given to the plaintiff of the proposed dismissal permitting him to respond thereto in writing. See e.g., Sanders v. Veterans Administration, 450 F.2d 955, 956 (9th Cir. 1971); Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); Dodd v. Spokane County Washington, 393 F.2d 330, 334 (9th Cir. 1968); Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965); Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962). See also Cooper v. United States Penitentiary, 433 F.2d 596-597 (10th Cir. 1970); Wilson v. United States, 433 F.2d 597-598 (10th Cir. 1970). Cf. Brown v. Strickler, 422 F.2d 1000, 1002 (6th Cir. 1970). In Gutensohn v. Kansas City Southern Ry. Co., 140 F.2d 950, 953-954 (8th Cir. 1944), this Court indicated that notice and an opportunity to respond is a prerequisite to dismissal for failure to state a cause of action in a civil case. Cf. Lewis v. Chrysler Motors Corp., 456 F.2d 605 (8th Cir. 1972).

As the Court stated in Harmon v. Superior Court, supra, 307 F.2d at 798:

“The court cannot know, without hearing the parties, whether it may be possible for appellant to state a claim entitling him to relief, however strongly it may incline to the belief that he cannot. . . .
“The right to a hearing on the merits of a claim over which the court has jurisdiction is the essence of our judicial system, and the judge’s feeling that the case is probably frivolous does not justify by-passing that right. Appellant is entitled to have process issued and served, and to be heard.”

This Court has not heretofore specifically adopted the rule promulgated by the Ninth Circuit, and in this case we prefer to rely on substantive rather than procedural reasons for reversal. First, plaintiff alleged that he had been denied due process of law in his prison disciplinary hearing. As we said recently in Dodson v. Haugh, 473 F.2d 689 (8th Cir. 1973):

“The degree of due process which a state must afford the inmates within its prisons before punishing them or depriving them of privileges is in a state of flux. See, e.g., Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972); Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971); Clutchette v. Procunier, 328 F.Supp. 767 (N.D.Cal.1971); Carothers v. Follette, 314 F.Supp. 1014 (S.D.N.Y.1970), and compare, Burns v. Swenson, 430 F.2d 771 (8th Cir. 1970), cert. denied, 404 U.S. 1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972); Lathrop v. Brewer, 340 F.Supp. 873 (S.D.Ia.1972); Beishir v. Swenson, 331 F.Supp. 1227 (W.D.Mo.1971).
“We are not prepared, in the absence of a record and in view of the uncertain state of the law, to approve or disapprove of Iowa’s procedures governing prison discipline. Accordingly, we vacate the order of dismissal and remand this case for further proceedings. The plaintiff should have the opportunity to present his case either by testimony, or, if the facts are not disputed, through affidavits or other proof which might support a summary judgment.”

That case differed from this case in that process was served and the motion to dismiss was filed by the defendant. A hearing must be held to determine what procedures were followed in the hearing given to Remmers and whether those procedures comport with the procedural due process requirements of the fourteenth amendment.

Remmers also claimed a violation of his first amendment rights by not being allowed to have an article published without fear of physical retaliatory actions by prison authorities. The trial court’s order bases its dismissal to some extent on the fact that “plaintiff does not deny that the article was smuggled illegally out of the institution. . . . ” However, the trial court does not disclose the evidentiary basis for its implied finding that the punishment meted out was for smuggling the article out of prison rather than for the content of the article itself as alleged by Remmers. Prisoners do not lose all of their first amendment rights upon entry into prison, although the rights are subject to reasonable regulations. See e.g., Gray v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972); Nolan v. Fitzpatrick, 451 F.2d 545 (1st Cir. 1971); Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). An evidentiary hearing should be held in this case to determine (1) what the prison rules and practice are in regard to expression and publication of prisoner’s view points; (2) whether those rules and practice are in derogation of the first amendment rights of the prisoners; and (3) if the rules and practice are constitutionally permissible, whether they were correctly applied to Remmers in this case.

A hearing is also required to determine the truth or falsity of Remmer’s allegations relating to censorship of and interference with his letters to his attorney, to his church, and to his state senator, and to determine the reasonableness of state prison regulations relating thereto. In Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972), this Court reversed and remanded for an evidentiary hearing a case wherein an inmate of the Federal Medical Center, in a self-styled habeas corpus petition, alleged that his right to access to the courts, right to effective assistance of counsel, and right to free exercise of religion, were denied when officials read and inspected incoming mail from attorneys and from petitioner’s Orthodox Moslem advisers.

For the reasons hereinbefore expressed, the judgment of dismissal is reversed with directions to permit the issuance of process and the filing of responsive pleadings after which an evidentiary hearing shall be held on the allegations made in Remmer’s amended complaint.

      . The trial court did not invoke the provisions of 28 U.S.C. § 1915(d) by finding that the action was frivolous or malicious. Such a finding permits a trial court to dismiss the action, despite the initial permission to proceed in forma pauperis.

      . Implicit in the following discussion is the principle that F.R.Civ.P. 12(b) (6) motions are viewed in the light most favorable to the plaintiff, with every valid doubt resolved in his behalf, as to whether the complaint states any valid claim upon which relief can be granted. See e. g., 5 C.Wright and A.Miller, Federal Practice and Procedure, § 1357 at 601 (1969). This principle is applicable to prisoner civil rights cases. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).


author: ALDRICH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. DEUTSCH and Alan Brooks, Defendants-Appellants.
    No. 72-1779.
    United States Court of Appeals, Fifth Circuit.
    Argued Feb. 5, 1973.
    Decided March 9, 1973.

      Charles E. Wood, J. C. Rary, Atlanta, Ga., Court-appointed, C. Ronald Ellington, Court-appointed, and Roger Groot, Professors of Law, University of Georgia, Wayne McCormack, Athens, Ga., for defendants-appellants.
    John W. Stokes, Jr., U. S. Atty., George H. Connell, Jr., Gale McKenzie, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   ALDRICH, Circuit Judge:

Defendants Brooks and Deutseh were jointly indicted in two counts for violation of 18 U.S.C. § 201(b) (3): count one for, during the period between November 16 and December 8, 1970, offering to pay a postal employee the sum of $50. for each credit card he should abstract from the mail and deliver, and count two, for giving a postal employee $50. “with intent to induce [him] to do an act in violation of his lawful duty.” Defendants were found guilty by a jury on both counts and given concurrent sentences. They appeal.

To some extent the evidence was in sharp dispute. The postal employee, one Morrison, testified that on November 16, 1970 Brooks, in the company of Deutseh, went up to him while his delivery truck was parked on a country road having his “break” and offered to buy all the credit cards he could get for $50. apiece. Brooks testified he approached Morrison because he was smoking, and had long hair, and he thought he might sell him some marihuana. Subsequent encounters occurred, with no transactions taking place, and ultimately, on December 7, Brooks (who was always accompanied by Deutseh) gave Morrison $50. Morrison testified it was paid with the statement that it was “to prove we mean business.” Brooks, on the other hand, testified it was merely a loan out of kindness because Morrison was having trouble paying doctors’ bills. The next day, pursuant, according to Morrison, to prearrangement, the parties met again, Morrison with two credit cards in his pocket, obtained from his superiors. The government agents, who Morrison’s superiors had arranged for, jumped the gun and arrested Brooks and Deutseh before any transaction had taken place. Brooks was found to have exactly $100. on his person.

Defendants’ first complaint is that the indictments are duplicitous. We do not agree. This is not a case where the two offenses merged, as in Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (unlawful entry into bank, and robbery of bank); Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (stealing and receiving the same property). If defendants had purchased cards on two separate days, there would have been separate offenses. Here defendants performed different acts, on different days, each a separate offense. The offer on November 16 was a completed offense. United States v. Jacobs, 2 Cir., 1970, 431 F.2d 754. Three weeks later, when nothing had materialized, defendants made a payment as earnest money. This was a new matter. Cf. United States v. Barnes, 9 Cir., 1970, 431 F.2d 878.

Defendant Deutsch asserts that he committed no offense. The mere fact that he was present on every occasion, and standing sufficiently close to hear all the conversations, would not have been enough. However, his providing the transportation facilitated the events. Furthermore, Morrison was not shaken with respect to his testimony that Brooks said the payment was to show that “we” mean business. Under all the circumstances, although the question may be close we believe the jury could conclude that the plural was accurate, and that Deutsch attended for a purpose. See, in general, United States v. Garguilo, 2 Cir., 1962, 310 F.2d 249; United States v. Bickford, 1 Cir., 1971, 445 F.2d 829, cert. denied 404 U.S. 946, 92 S.Ct. 302, 30 L.Ed.2d 262. Nor, while we are on the subject of Deutsch, do we see any prejudicial error in the charge.

Brooks presents an esoteric argument on entrapment which we cannot agree with. It hinges around the claim that Morrison, by asserting that he had a sick wife, induced Brooks to transfer the money. The difficulty with this argument is that, unlike the drug cases that defendant cites, the transfer of funds was not unlawful in itself. If it was a simple loan, as Brooks contends, there was no offense, entrapped or otherwise. If it was a payment in connection with the purchase of cards, there was no entrapment. Brooks does not claim that he was induced to purchase cards in order to help Morrison meet his bills, or to make a loan with the objective. Whatever question such a set of facts would have presented is not before us.

We are, however, troubled by one matter. Before trial defendants moved for the production of Morrison’s personnel file, for “insight into the character of said prospective witness,” citing Brady v. Maryland, 1963, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The U. S. Attorney responded, “This office does not have the personnel file of D. F. Morrison.” The court ruled, “[T]he prosecution cannot be compelled to disclose something which it does not have. Furthermore, the Post Office Department does not appear to be an arm of the prosecution as contemplated by Brady.”

We find no reference in Brady to an arm of the prosecution. It was a Post Office employee who had been sought to be bribed. The government cannot compartmentalize the Department of Justice and permit it to bring a charge affecting a government employee in the Post Office and use him as its principal witness, but deny having access to the Post Office files. In fact it did not even deny access, but only present possession without even an attempt to remedy the deficiency. Cf. Barber v. Page, 1968, 390 U.S. 719, 723-724, 88 S.Ct. 1318, 20 L.Ed.2d 255. We do not suggest by citing Barber that the government was obliged to obtain evidence from third parties, but there is no suggestion in Brady that different “arms” of the government, particularly when so closely connected as this one for the purpose of the case, are severable entities. And, of course, the Brady rule requires the government to supply evidence useful to the defendant simply for impeachment purposes. Giglio v. United States, 1972, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104.

The government argues that defendant has “failed to show that the records which he sought to inspect contained anything favorable to him.” This is true, but it is not the answer to Brady. The burden is on the government to produce, not on the defendant. The statement is doubly ingenuous as, again, the government stops here — it does not assert the lack of favorable evidence in the record. But if there is any burden on the defendants of suggesting a possibility of favorable evidence we note the evasive testimony of Morrison at the trial.

Q. Have you ever had any problems with the Supervisor?
A. No, sir.
Q. About your appearance, or anything?
A. Personal appearance where they thought my hair may be too long. It was unjustified.
Q. Justified?
A. Unjustified. I had been down to see Mr. Camp. He said there was nothing wrong with it.

We could not say there were in fact “problems” on this somewhat self-contradictory testimony, particularly problems of a serious nature, but they were certainly not negatived. Morrison was the government’s whole case. While we do not think Brooks’ testimony very credible, the defendants were entitled to try.

The question comes, what next? Defendants are not entitled to a new trial unless they were in fact deprived of something of value. We remand the case to the district court for examination of the personnel file to determine if it would have afforded useful cross-examination. If not, the judgments stand; otherwise the convictions are to be vacated and a new trial ordered. Cf. Campbell v. United States, 1961, 365 U.S. 85, 98-99, 81 S.Ct. 421, 5 L.Ed.2d 428; United States v. Hand, 5 Cir., 1973, 472 F.2d 162. If the district court finds against the defendants, but there is a desire on their part to appeal, the court should vacate the judgment of conviction and re-enter it. Campbell, ante; Kolod v. United States, 1968, 390 U.S. 136, 138, 88 S.Ct. 752, 19 L.Ed.2d 962.

      . We are, of course, not concerned with loans made to an official who had governmental duties towards the lender.

      . Nor are we impressed by the government’s argument that having been denied Rule 16 production, defendant was at fault for not seeking a subpoena duces tecum — for which it relies on a case which did not even consider the question because the record showed that the defendant in fact had the information. (United States v. Smith, 6 Cir. 1968, 399 F.2d 896). One, improperly court-rejected, demand is enough.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. HIJOS DE RICARDO VELA, INC., and Vela Distributing Corp., Respondents.
    No. 72-1084.
    United States Court of Appeals, First Circuit.
    Heard Feb. 8, 1973.
    Decided March 5, 1973.

      John D. Burgoyne, Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Judith Wilkenfeld, Washington, D. C., were on brief, for petitioner.
    Pedro E. Purcell Ruiz, Santurce, P. R., with whom George L. Weasler, Santurce, P. R., was on brief, for respondents.
    Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

The National Labor Relations Board (the “Board”) has made application under Section 10(e) of the National Labor Relations Act (the “Act”) for enforcement of its order dated November 30, 1971, requiring the respondent companies affirmatively to remedy unfair labor practices which a Board Trial Examiner found them to have committed.

The respondents now concede that they are a single integrated employer, as the Examiner found. They also concede that the evidence presented to the Examiner “clearly establishes” that Joseph A. Crespo — an employee of the respondents whom they discharged because of his union membership and activities— was not a “supervisor” as defined in Section 2(11) of the Act.

Only one issue remains of the three originally raised in the respondents’ exceptions to the Trial Examiner’s Proposed Report and Recommended Order. That is whether the Trial Examiner’s refusal to postpone the hearing was an abuse of discretion. If a continuance had been granted, respondents now assert that they were “ready, willing and able” to present evidence that Crespo was a supervisor, notwithstanding his contrary testimony and that of fellow-employees. As it was, the hearing took place in the absence of the respondents’ officers and counsel.

We hold that the Trial Examiner acted fairly and within her authority in denying a continuance.

On April 28, 1971, the Board’s Regional Director issued a complaint against the respondents, giving written notice that a hearing would be held in Hato Rey on Wednesday, May 26, 1971, (the hearing site was a very short distance from the office of respondents’ counsel in Santurce). On May 1, 1971, the respondents filed an answer. On Friday, May 21, 1971, shortly before 5 p. m., respondents’ counsel telephoned the Board’s regional office and unsuccessfully sought a postponement of one week or more, asserting that he had conflicting engagements during the forthcoming week. He next telephoned the Trial Examining Division in Washington with the same request, but was told that since a trial examiner had been assigned, the matter was out of its hands. The attorney then conveyed the request for postponement in a letter addressed to the regional director. The letter was received on Monday, May 24. A reply telegram was sent that day denying the postponement “without prejudice to being renewed before the Trial Examiner at the opening of hearing.”

On Tuesday, May 25, respondents’ counsel went to the offices of the Board and introduced himself to the Trial Examiner. He made no mention to her of any request for a postponement.

On Wednesday, May 26, the hearing opened at the appointed time and place. Everyone was present except the respondents’ counsel and their presidents, both of whom had been subpoenaed to attend. The Examiner delayed the hearing to afford respondents’ attorney further opportunity to appear or explain his failure to do so. About an hour later, a telegram was received from counsel stating that he could not attend for reasons previously advanced to the regional office counsel, and requesting a postponement until any day after June 5 except June 9. The Examiner asked government counsel to state the “reasons previously advanced” by the respondents. Counsel reported as follows: respondents’ counsel had made a collective bargaining commitment; he first had said he would be able to resolve the conflict or at least have his associate present at the hearing; on Friday he had advised the regional office he would not be able to resolve the conflict and had sought a postponement; the regional office had said it would agree to a one-day postponement, but respondents’ counsel had declined to accept that. Government counsel reported having phoned the office of respondents’ counsel that morning and having been told the latter was unavailable and could not be reached.

The examiner then denied the postponement, so notifying respondents’ counsel by telegram and telephone. She proceeded with the hearing.

Late the next day, the hearing still continuing, government counsel telephoned the office of respondents’ counsel. He was out. A message was left that the hearing had been adjourned until 11 a. m. on Friday, and to put in a defense if he desired. No further word was received.

On Friday, government counsel advised the Examiner that the regional office had just been told by respondents’ counsel that the latter had sent a telegram requesting that, at the close of General Counsel’s case, he be given an indefinite postponement. The regional attorney had suggested that respondents’ counsel appear personally and give his grounds for the request. To this suggestion, respondents’ counsel was reported to have replied that he did not have the time to come over, he had more important matters to attend to, and did not want to be bothered in coming.

Thereafter the Examiner, at 12:20, recessed until 4 p. m., stating that if the request for postponement had by then been received, she would rule on it, depending upon its nature and the reasons advanced for postponement. Respondents’ attorney was so advised by telephone; and at 1:49 p. m. a telegram was received from him moving that the hearing be postponed for “a reasonable time so counsel can order transcript and otherwise present defenses.” Government counsel, at 4 p. m., also reported receiving a phone call from respondents’ counsel that he would not be coming in at 4 p. m.

The Examiner then ruled to deny any postponement, “as no adequate reason has been presented for his failure to appear at any time during the hearing in person and to advance reasons to warrant granting a postponement.”

Some two months later, respondents’ counsel filed with the Trial Examiner a motion to reopen the record. The motion was denied as was a later request to the Board to remand to the Examiner.

The Examiner neither abused her discretion nor denied due process to the respondents in refusing to postpone the proceedings. Given the lateness of the initial request, it was appropriate for Board officials to refer it and counsel to the designated Trial Examiner for a ruling. Nothing thereafter justified counsel’s studied refusal personally to present, on the record and in the presence of the other interested parties, his reasons for a continuance. Nothing suggests that the Examiner was unprepared to give fair consideration to whatever facts might have been presented favoring postponement. The General Counsel would apparently have acquiesced in at least a one-day postponement. The Examiner’s responsibility was to weigh the inconvenience and possible unfairness to others of a postponement against the particulars of counsel’s asserted hardship. She had every right, under the circumstances, not to credit counsel’s telegraphic fait accompli. Barring illness or other like emergency not present here, those responsible for hearings and trials may insist upon the personal appearance of counsel seeking a continuance. Counsel had an associate, and could have engaged other co-counsel in the unlikely event that his calendar was so crowded as to preclude his appearing even for the limited purpose of requesting a continuance. Had he so appeared, we do not intimate that the Examiner would have been bound to grant the request; that was a matter within her sound discretion. But his absence entitled her to assume the worst about his motives. We do not see, in fairness to the government and the charging party, how the Examiner could have acted differently. See N. L. R. B. v. Taxicab Drivers Union, Local 777, 340 F.2d 905, 908-909 (7th Cir. 1964). N. L. R. B. v. Somerville Buick, Inc., 194 F.2d 56, 59 (1st Cir. 1952). N. L. R. B. v. Somerville Cream Co., 199 F.2d 257, 258 (1st Cir. 1952). Lloyd A. Fry Roofing Co. v. N. L. R. B., 222 F.2d 988, 940 (1st Cir. 1955). As counsel and the respondents had ample notice and were afforded opportunity to be heard, they were not denied due process simply because they chose not to attend. See N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 25, 47, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Nor were the Examiner and Board under any obligation to permit respondents to cure their default in a reopened proceeding.

Some penalty should attach to taking up our time with such a meritless contention. N. L. R. B. v. Smith & Wesson, 424 F.2d 1072, 1073 (1st Cir. 1970). The order will be enforced and the Board will be awarded double costs.

      . 29 U.S.C. § 160(e).

      . 29 U.S.C. § 152(11). Apart from the concession, our review of the transcript satisfies us that substantial evidence supports the finding that Crespo was not a supervisor. The Board’s order requires his reinstatement.

      . Counsel states in an affidavit that after introducing himself he went to look for opposing counsel so as to bring him back before the Examiner for discussion of a postponement. Being unable to locate opposing counsel, he left. Counsel attributes his reticence to ethical qualms about ex parte discussions. We can perceive nothing that would have prevented his telling the Examiner that he would like to see her about a postponement, with other counsel, at her and their earliest convenience; nor can we see why he failed to file a written motion placing the postponement request formally before her.

      . We are unmoved by the suggestion that the Examiner had a duty sua sponte to check the Board’s files to see if other matters were demanding of counsel’s time. It was counsel’s responsibility to call such matters to the Examiner’s attention. Nor, after absenting himself, can counsel now complain of alleged self-serving statements made out of his presence to the Examiner by government counsel.


author: REAL, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roberto SANCHEZ-RODRIGUEZ, Defendant-Appellant.
    No. 72-2900.
    United States Court of Appeals, Ninth Circuit.
    March 7, 1973.

      Mobley M. Milam, San Diego, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., Michael E. Quinton and Stephen G. Nelson, Asst. U. S. Attys., San Diego, Cal., for plaintiff-appellee.
    Before HAMLEY and WALLACE, Circuit Judges, and REAL, District Judge.

       Honorable Manuel L. Real, United States District Judge, Central District of California, sitting by designation.

   REAL, District Judge:

Appellant was charged in a twelve-count indictment with one count of conspiracy (18 U.S.C. § 371) and eleven counts of transporting aliens (8 U.S.C. § 1324(a)(2)). He was convicted by a jury and now claims on appeal several errors which invalidate the conviction. We affirm.

On June 5, 1972 at approximately 2:30 A.M. Border Patrol Agents while sign-cutting five or six miles north of the United States-Mexico border near Campo were led to Highway 80 where they saw a pickup truck stop and leave. Shortly, a Pontiac went by. Near the Boulder Oaks campground Border Patrol Agents stopped the pickup truck and discovered illegal aliens. A co-defendant, Jose Garcia-Suazo, was driving the truck.

Appellant's car was stopped and searched. In the search there was discovered a suitcase belonging to co-defendant Garcia. Upon a motion to suppress, the trial judge suppressed the admission of the suitcase.

During the trial co-defendant Garcia testified on behalf of the government and totally implicated the appellant in the arrangements and pickup of the illegal aliens.

Appellant testified at his trial denying any knowledge of the conspiracy and transportation of the illegal aliens. He offered the explanation of his presence upon Highway 80 as attempting to deliver a suitcase given to him by one Blanca in Tijuana.

During pretrial proceedings, appellant requested and was denied permission to go to Mexico to attempt to find Blanca to corroborate his story. An investigator employed by appellant testified that he had found Blanca in Mexico but that she refused to come to the United States to testify.

Appellant’s assignments of error claim, (1) he was deprived of due process — his conviction resulting from an illegal arrest and use of evidence derived therefrom, (2) the court’s denial of the motion to allow him to go to Mexico deprived him of his Sixth Amendment right to obtain witnesses on his behalf, (3) the prosecutor’s argument deprived him of his Sixth Amendment right of confrontation, and (4) the court’s refusal to give a mere presence instruction and modification of the accomplice instruction was error. We consider them seriatim:

1. Illegal arrest.

An illegal arrest does not a fortiori preclude prosecution and conviction. Green v. United States, 460 F.2d 317 (5th Cir. 1972). Here the court suppressed the evidence obtained as the result of the arrest (legal or illegal) of appellant.

Appellant further complains that the questions of the prosecutor put to co-defendant Garcia while he was on the stand about the location of his suitcase was error. Appellant complains for the first time on appeal of the impropriety of these questions and cannot now be heard to complain, United States v. Machado, 457 F.2d 1372 (9th Cir. 1972); United States v. Jeffery, 473 F.2d 268 (9th Cir. 1973).

More to the point counsel for appellant cross-examined codefendant on this testimony. Appellant himself testified concerning the suitcase in the explanation of his presence on Highway 80 at the time of his arrest. Appellant cannot now be heard to complain of the failure of his own trial strategy.

2. Denial of Motion to go to Mexico.

Appellant’s witness was located and refused to come to the United States because “She was afraid that her husband would beat her up”. The trial court acted properly in refusing to allow a Mexican National to leave the jurisdiction of the United States with unresolved charges against him. An investigator employed for the purpose of finding Blanca afforded appellant all his Sixth Amendment rights. A continuance of the trial date was given permitting the investigator time to accomplish the proposed investigation.

The record is totally devoid of appellant’s attempt to use the procedures made available to him by Rule 15 of the Federal Rules of Criminal Procedure. That procedure would have assured him of the testimony he claimed was so vital to his defense. There was no constitutional infirmity in the court’s refusal to permit appellant to personally go to Mexico.

3. Prosecutor’s argument.

During pretrial proceedings appellant and the government entered into a stipulation concerning the testimony of the alien witnesses so they could be returned immediately to Mexico. This stipulation provided that none of the aliens could testify they knew appellant.

In apparent contravention of the stipulation, the prosecutor argued that not knowing the appellant did not in fact mean they could not identify him. Objection was made by appellant’s counsel and the court immediately instructed the jury and restated the stipulation and the nature of stipulated evidence as testimony. The error, if any, was neither significant nor prejudicial particularly since identification of the appellant was not necessary in any way to sustain the conviction on count one (conspiracy). Co-defendant Garcia’s testimony in itself was sufficient to convict. If the argument by the prosecutor was not totally dissipated by the corrective action of the court, it was so insignificant that counsel for appellant did not consider it of sufficient gravity to move for a mistrial. Appellant’s counsel appears to have been satisfied at the trial. We agree.

4. Court’s instructions.

The court’s addition that “It is for you, the jurors, to determine whether or not the testimony of an accomplice is supported by other evidence in the case” clearly imports the jury’s function as finders of the facts. The instruction is proper.

The failure to give a “mere presence” instruction is not error in light of the evidence and the consideration of the charge of the court to the jury in its entirety.

The record does not disclose the objection of appellant’s counsel to the proposed addition to the “accomplice” instruction or the omission of the “mere presence” instruction. It is not plain error.

The judgment is affirmed.