author: BROWNING, Circuit Judge:

text:
    Lloyd Charles POWELL, Plaintiff-Appellant, v. W. T. STONE, Warden, Defendant-Appellee.
    No. 72-1543.
    United States Court of Appeals, Ninth Circuit.
    Dec. 4, 1974.

      Robert W. Peterson (argued), Santa Clara, Cal., for plaintiff-appellant.
    Thomas A. Brady, Deputy Atty. Gen. (argued), San Francisco, Cal., for defendant-appellee.
   OPINION

Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, District Judge.

BROWNING, Circuit Judge:

Late one night appellant and three companions became involved in an altercation in the Bonanza Liquor Store in San Bernardino, California. Mary Parsons, wife of the manager, Gerald Parsons, was shot and killed. Ten hours later, appellant was arrested in Henderson, Nevada, for violation of a local vagrancy ordinance. Testimony regarding this arrest and the discovery of the murder weapon in appellant’s jacket pocket in a search incident to the arrest, was introduced in appellant’s subsequent trial for murder in the Superior Court of San Bernardino County. The California trial court rejected appellant’s objection that the evidence should have been excluded because the Henderson vagrancy ordinance was unconstitutional and the arrest and search incident thereto were therefore illegal. Appellant was convicted of second-degree murder.

The conviction was affirmed by the California Court of Appeal. That court did not pass upon the constitutionality of the Henderson ordinance or the legality of the arrest and search; it affirmed on the ground that admission of the evidence, if error, was harmless under the test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Supreme Court of California denied appellant’s petition for habeas corpus.

Appellant then filed the present petition for habeas corpus in the federal district court. The district court denied the petition. The court did not reach the constitutionality of the Henderson vagrancy ordinance. It agreed with the California Court of Appeal that the admission of the evidence was harmless beyond a reasonable doubt. It also held that even if the Henderson ordinance were determined to be unconstitutional, the exclusionary rule should not be applied to bar admission of the fruits of the search incident to the otherwise valid arrest.

For reasons that will be set out later, we are unable to agree that admission of the evidence was harmless. We must therefore consider whether its admission was error. We conclude that it was.

I

We turn first to the constitutionality of the Henderson vagrancy ordinance. The ordinance reads:

Every person is a vagrant who:

Loiters or wanders upon the streets or from place to place without apparent reason or business and who refuses to identify himself and to account for his presence when asked by a police officer to do so if surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification.

This ordinance, like the vagrancy ordinance held unconstitutional in Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972), “is void for vagueness, both in the sense that it ‘fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute,’ United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 98 L.Ed. 989] and because it encourages arbitrary and erratic arrests and convictions. Thornhill v. Alabama, 310 U.S. 88 [60 S.Ct. 736, 84 L.Ed. 1093]; Herndon v. Lowry, 301 U.S. 242 [57 S.Ct. 732, 81 L.Ed. 1066].”

The offense under the Henderson ordinance has three elements: (1) “loitering] or wander[ing] upon the streets without apparent reason or business,” (2) “refusing] to identify himself and to account for his presence,” and (3) “surrounding circumstances . such as to indicate to a reasonable man that the public safety demands such identification.”

The language of the first element is the same in substance as the language of the Jacksonville ordinance held invalid in Papachristou: “[P]ersons wandering or strolling around from place to place without any lawful purpose or object shall be deemed vagrants.” 405 U.S. at 156-157 n. 1, 92 S.Ct. 839 at 840.

This language, the Supreme Court held, fails to give fair notice of the prohibited conduct to a possible offender, encompasses innocent activity that is part of the amenities of life in a free society, provides no guidelines by which enforcement authorities might distinguish between innocent and unlawful conduct, allows arrest and conviction on suspicion, places almost unfettered discretion in the hands of the police, and invites arbitrary and erratic application. If there is any material difference between the Jacksonville ordinance and the first elenient of the Henderson ordinance, the latter is more subj'ect to these criticisms than the former.

The remaining two elements of the Henderson ordinance do not add significant specificity.

Assuming the phrase “to identify himself” is clear enough, one who properly identifies himself when asked would still violate the ordinance if he refused upon request “to account for his presence” — a phrase that reflects all of the deficiencies and is subj'ect to all of the abuses that underlie the ruling in Papachristou. See Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097, 1104-1105 (1968); Baker v. Bindner, 274 F.Supp. 658, 664 (W.D.Ky.1967); United States v. Margeson, 259 F.Supp. 256, 268-269 (E.D.Pa.1966). The statutes involved in these three cases predicated criminality upon the offender’s failure to give a “good” or “satisfactory” account of his presence. This condition is not explicitly stated in the Henderson ordinance, but it is clearly implied. Appellant offered an explanation of his conduct; he was arrested because the officer did not believe it.

The third element of the offense under the Henderson ordinance — that “surrounding circumstances . . . indicate to a reasonable man that the public safety demands such identification”— cannot save the ordinance. Whether “public safety demands . . identification” is far too amorphous a standard to provide either reasonable notice to the possible offender (who, indeed, may not be aware of the circumstances that implicate the public safety), or a sufficiently specific standard to guide the police. A similar, but less vague, limitation (“circumstances which justify suspicion that [a person] may be engaged or about to engage in crime”) was found constitutionally inadequate in United States ex rel. Newsome v. Malcolm, 492 F.2d 1166, 1173 (2d Cir. 1974).

From this analysis, it is clear that the Henderson vagrancy ordinance is incompatible with Fifth Amendment due process notice requirements incorporated in the Fourteenth Amendment. It should be emphasized that the ordinance is also incompatible with incorporated Fourth Amendment principles. A vagrancy ordinance of this kind “conflict[s] with the deeply rooted Fourth Amendment requirement that arrests must be predicated on probable cause.” United States ex rel. Newsome v. Malcolm, supra, 492 F.2d at 1172. See also Papachristou, supra, 405 U.S. at 169-170, 92 S.Ct. 839; Hall v. United States, 148 U.S.App.D.C. 42, 459 F.2d 831 (1972) (an banc), noted in 47 N.Y.U.L.Rev. 595 (1972) and 18 Vill.L.Rev. 117 (1972).

As these authorities reflect, such a vagrancy ordinance subverts the “probable cause” requirement in two ways. It authorizes arrest and conviction for conduct that is no more than suspicious. A legislature could not reduce the standard for arrest from probable cause to suspicion; and it may not accomplish the same result indirectly by making suspicious conduct a substantive offense. Vagrancy statutes do just that, for they authorize arrest and conviction for the vagrancy offense if there are reasonable grounds to suspect that the accused may have committed, or if left at large will commit, a more serious offense. Police are duty-bound to investigate suspicious conduct, and founded suspicion will support an investigative stop and inquiry. Wade v. United States, 457 F.2d 335, 336 (9th Cir. 1972). But more is required to justify arrest. Henry v. United States, 361 U.S. 98, 101, 104, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).

The “probable cause” requirement is negated by such vagrancy ordinances in a second way. Their language is so general and vague, the elements of the offense so obscure, that they afford no reasonable criteria by which an officer may determine whether the ordinance has or has not been violated. Because a man of reasonable caution cannot form a reasonable belief as to whether such an ordinance has been violated, an officer cannot “gauge justification for [vagrancy] arrests consistly with Fourth Amendment principles.” Hall v. United States, supra, 459 F.2d at 837.

II

The question remains whether the evidence obtained in the search incident to appellant’s arrest under the unconstitutional Henderson ordinance should have been excluded at his murder trial.

Appellee argues that the purpose of the exclusionary rule is to discourage objectionable police conduct, and this purpose would not be advanced by excluding the fruits of a search that appeared to be lawful when made. The crux of the contention is that the public interest is not served by deterring officers from enforcing a statute that is apparently valid. Appellant relies upon the principle underlying the holding in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), that police officers cannot be held liable for damage for an arrest made in good faith and on probable cause under a statute they reasonably believe to be valid.

Extension of Pierson v. Ray to allow admission of evidence obtained in the search incident to appellant’s arrest for violation of an ordinance invalid under the Fourth Amendment would be inconsistent with a substantial line of Supreme Court authority. See, e. g., Al-meida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2533, 37 L.Ed.2d 596 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 449-453, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Sibron v. New York, 392 U.S. 40, 61-62, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967).

In each of these cases except Sibron the exclusionary rule was applied to bar evidence obtained in good-faith reliance upon a statute later held to violate Fourth Amendment principles. In Al-meida-Sanehez, marijuana found in a search of defendant’s automobile without a warrant, probable cause, or consent was suppressed although a federal statute authorized government agents to conduct such searches for aliens within a reasonable distance of the border. In Coolidge, evidence obtained in an automobile search conducted by a police officer pursuant to a warrant issued by the Attorney General of the state was suppressed because the warrant was not issued by a “neutral and detached magistrate,” as required by the Fourth Amendment, even though a state statute authorized the issuance of the warrant. In Berger, evidence obtained by electronic eavesdropping authorized in accordance with the state statute was excluded because the statutory procedures did not satisfy Fourth Amendment requirements that a warrant be issued only on showing that a specific crime has been or is being committed, and “particularly describing the place to be searched, and the persons or things to be seized.” In Sibron, evidence obtained in a search as-sertedly conducted in accordance with a state “stop-and-frisk” statute was excluded on Fourth Amendment grounds with an express disclaimer by the Court of any need to inquire whether the state statute was valid or had been complied with.

The statutes involved in these cases dealt directly with the standards and procedures governing searches. But as noted earlier, though in form the Henderson ordinance purports to create a substantive offense, in effect it negates the requirement of probable cause, basic to the Fourth Amendment.

The exclusionary rule was applied to bar evidence obtained in searches incident to good-faith arrests under invalid vagrancy statutes in both United States ex rel. Newsome v. Malcom, supra, 492 F.2d at 1174, and Hall v. United States, supra, 459 F.2d at 841. The reason suggested in Newsome is that the search-incident-to-arrest exception is justified, only because probable cause is required for the arrest, and, since this essential Fourth Amendment safeguard is lacking in arrests under a vagrancy ordinance, ■searches incident to such arrests are also unsupported by probable cause and are therefore invalid. This explains the invalidity of the search, but it does not offer a rationale for the exclusion of the evidence. Neither does the opinion in Hall. Hall found it unnecessary to decide whether the exclusionary rule should apply to the fruits of all searches incident to arrests under unconstitutional statutes. The Court concluded that at least, for the reasons suggested in Sto-vall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the exclusionary rule should be applied where the defendant was the first to successfully challenge a search on the new constitutional ground, as was the case in Hall. In view of Papachristou, Newsome, and Hall, however, it is far from clear that appellant could qualify as a constitutional innovator.

Two considerations clearly support the application of the exclusionary rule to this case. It may not be appropriate to fault an officer for making an arrest on mere suspicion, contrary to well-established Fourth Amendment principles, when such an arrest is authorized by a statute (but see Note, supra, 18 Vill.L. Rev. at 121 n. 33), but the same cannot be said with respect to those who enact such a statute authorizing such unconstitutional searches. The public interest may dictate that the police not be deterred from enforcing statutory law even when it mandates unconstitutional conduct, but the public interest is served by deterring legislators from enacting such statutes. See Note, supra, 47 N.Y.U.L. Rev. at 602, 604. In the second place, application of the exclusionary rule “serves another vital function — ‘the imperative of judicial integrity.’ Elkins v. United States, 364 U.S. 206, 222 [80 S.Ct. 1437, 4 L.Ed.2d 1669] (1960). Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” Terry v. Ohio, supra, 392 U.S. at 12-13, 88 S.Ct. at 1875.

The holdings in United States v. Kil-gen, 445 F.2d 287, 289 (5th Cir. 1971), and United States v. Dameron, 460 F.2d 294 (5th Cir. 1972), are not to the contrary. Both involved consent searches rather than searches incident to arrest. They hold only that invalidation of the underlying substantive statute does not vitiate the consent to search.

Ill

Finally, we state the basis for our conclusion that admission of the evidence obtained in the unlawful search was not harmless beyond a reasonable doubt.

Shortly after appellant and his three companions entered the liquor store, Mr. and Mrs. Parsons saw appellant conceal a bottle of wine under his coat. They demanded payment. Appellant denied having the wine. Mrs. Parsons gave her husband a gun, which Mr. Parsons pointed at appellant. A struggle ensued involving appellant, Mr. Parsons and Mrs.' Parsons. Three shots were fired: the first, admittedly fired by Mr. Parsons, went into the ceiling; the second and third wounded Mr. and Mrs. Parsons, Mrs. Parsons fatally. Mr. Parsons testified that after the first shot was fired appellant obtained control of the gun and Mr. Parsons ran to get another, leaving appellant and one of his companions, Fred Buckley, with Mrs. Parsons. Mr. Buckley first testified that appellant and Mr. Parsons were “wrestling with the gun” and that he “can’t rightly say who had the gun” when the fatal shot was fired; he later testified that he “believed” appellant had the gun.

The defense submitted to the jury all of the theories suggested by the facts, including self-defense, justifiable homicide, accident, and that the fatal shot was not fired by appellant.

In rebuttal the prosecutor made effective use of the testimony regarding the Nevada arrest and search. He refuted the theory of accident by demonstrating to the jury the time and effort required to pull the trigger and discharge the murder weapon, and by inviting the jury to try it themselves, commenting, “It doesn’t fire accidentally and it doesn’t hit people accidentally either.” The prosecutor used appellant’s possession of the gun in responding to the defense argument that in order to find that appellant shot the victim the jury would have to rely entirely on the testimony of Mr. Buckley, an accomplice whose credibility had been severely attacked. The prosecutor noted Mr. Parsons’ testimony that when he returned to the room and found his wife shot, Mr. Buckley alone was present; and, as the prosecutor pointed out, Mr. Buckley did not have the gun. The murder weapon, the prosecutor emphasized, was found “in the possession of this defendant in Henderson, Nevada.” Thus, the fact that appellant had possession of the gun the next morning may have been crucial, for it virtually eliminated the possibility that Mr. Buckley or another of appellant’s companions could have picked up the gun during the scuffle and shot Mrs. Parsons. Appellant’s possession of the gun also supported the inference that he was not merely struggling with Mrs. Parsons for possession of the gun when she was shot but had the gun in his control. Finally, the prosecutor pointed out that when the gun was found on appellant’s person, all six shells had been expended, and since only three shots were fired from this gun in the store, the inevitable inference was that appellant had fired the three remaining shots after his flight from the liquor store and before his arrest. The effect of the testimony of appellant’s arrest for vagrancy in another state while in possession of the murder weapon with three bullets missing was to picture appellant as an evil and violent man.

Both the California Court of Appeal and the court below concluded that in light of other evidence in the record, the testimony regarding appellant’s possession of the murder weapon in Nevada “was not required to establish any element of the crime charged.” That is not the test. The question is whether it is “[ jpossible for us to say that the State has demonstrated, beyond a reasonable doubt, that the [admission of the unlawfully seized evidence] did not contribute to [appellant’s] conviction[ ].” Chapman v. California, supra, 386 U.S. at 26, 87 S.Ct. at 829. In good conscience, we are unable to do so.

The judgment is reversed and the cause remanded to the district court for further proceedings consistent with this opinion.

       Honorable Fred M. Taylor, United States District Judge, District of Idaho, sitting by designation.

      . A similarly phrased Arizona statute was held plainly unconstitutional in Anderson v. Nemetz, 474 F.2d 814, 817 (9th Cir. 1973).

      . The arresting officer saw appellant and a companion walking across a parking lot in a shopping center. It was 10 o’clock Sunday morning. The adjacent stores were open and there were cars on the lot. The arresting officer knew nothing of the shooting in California the night before. There is nothing to suggest that he connected appellant with any other specific crime. He testified that appellant and his companion “appeared” to look at the police car, then “quickly” turned and walked in the opposite direction. They walked “in a rather rapid manner,” occasionally looking back. When the police car turned and followed, the two men separated and walked in different directions. The officer followed appellant, and honked the patrol car horn. Appellant did not stop. The officer got out of his car and said, “Wait a minute.” Appellant stopped. The officer asked if appellant had any identification. Appellant said he did not, that it had recently been stolen. The officer asked his name; appellant gave it. The officer asked appellant where he was staying. Appellant responded that he was staying with friends in Las Vegas (approximately eight miles north of Hender- ' son), but he could not provide the name or address. The officer asked appellant where he was going. Appellant said he was en route to Michigan; the officer testified that Henderson is south of Las Vegas and not east on the most direct road to Michigan. He arrested appellant because appellant “had no real answer as far as where he had been staying nor the friends that he was with nor could [he] give me a reason for being in the Henderson area. . . .” After the arrest the officer conducted the search complained of.

      . It is not contended that the search in this case could be justified as a protective search for weapons; prior to the search the arresting officer had no reason to believe appellant was “an armed and dangerous individual.” Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      . Appellee also contends that failure to apply the exclusionary rule should not afford a basis for collateral attack upon a state conviction in federal court. He submits the contention “for the record,” recognizing that it is contrary to recent precedent. E. g., Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968); Ramon v. Cupp, 423 F.2d 248 (9th Cir. 1970). The Supreme Court explicitly approved the doctrine in Kaufman v. United States, 394 U.S. 217, 225, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), citing it as one basis for holding that failure to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights is a ground for collateral attack upon a federal conviction.
      The issue was before the Court, but was not reached, in Schneckloth v. Bustamonte, 412 U.S. 218, 250, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring).

      . The fact that the officer acted in good faith does not validate the search or dictate admission of the evidence seized. Beck v. Ohio, 379 U.S. 89, 97, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). See also Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

      . The prosecutor also argued to the jury that appellant’s presence in Nevada soon after the offense was evidence of flight reflecting consciousness of guilt. But as the state court and the court below point out, the arresting officer’s knowledge of appellant’s presence in Nevada was not the product of either the arrest or the search.


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge.

license: Public Domain

text:
    JONES TRUCK LINES, INC., Plaintiff-Appellee, v. RYDER TRUCK LINES, INC., and American Casualty Company, Defendants-Appellants.
    No. 74-1443.
    United States Court of Appeals, Sixth Circuit.
    Dec. 13, 1974.
    Albert T. McRae, Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Memphis, Tenn., for defendants-appellants.
    Thomas R. Prewitt, Memphis, Tenn., for plaintiff-appellee.
    Before WEICK, CELEBREZZE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This appeal is from the judgment of the district court in a declaratory judgment action, declaring and adjudging an indemnification provision in a one-way motor carrier lease agreement void and unenforceable as against public policy and in violation of Interstate Commerce Commission Regulations.

The operative facts are substantially undisputed. Jones, a motor vehicle common carrier, accepted in Kansas City, Missouri, certain goods for transportation from that point to West Monroe, Louisiana. Jones had not been authorized by the I.C.C. to operate in the State of Louisiana and it was therefore necessary for it to make arrangements with some other carrier having a Louisiana authorization to complete the transportation of the goods from Memphis, Tennessee, to the destination point in Louisiana. The goods were transported by Jones in a truck which it had leased from the owner, one Orín Taylor, to Memphis, Tennessee. On this portion of the trip Taylor was also the driver of the vehicle. At Memphis, a proper inspection of the vehicle was made to comply with I.C.C. regulations. The shipment was then transferred under a lease agreement between Jones and Ryder for completion of the trip to Louisiana. This lease, dated February 20, 1973, provided for the leasing of the equipment from Jones Truck Lines, Inc., as lessor, to Ryder Truck Lines, Inc., as lessee. It further provided for the transportation of the goods by use of the leased equipment from Memphis to the destination point.

The lease was actually signed by Taylor, at Memphis on behalf of the lessor Jones, acting as its agent. Since the lease contemplated that Taylor was to continue to operate the vehicle, he became Ryder’s agent while driving it to complete the journey. He received the freight bills specifying the route he was to take to West Monroe and indicating that Ryder was the proper party to be contacted in case of an emergency. He actually took a route, however, contrary to that specified in the freight bill, a fact of no significance here. In the course of the trip, he was involved in an accident from which litigation ensued in the Louisiana state courts. After the accident, Ryder acknowledged its responsibility to third parties for the acts of Taylor as its agent, although it did not concede liability. Subsequently, Jones instituted the present action to have the indemnification provision of the one-way lease agreement declared void and unenforceable. The provisions of the Jones-Ryder lease pertinent in this case are as follows:

It is understood that the leased equipment under this agreement is in the exclusive possession, control, and use of the authorized carrier Lessee and that the Lessee assumes full responsibility in respect to the equipment it is operating to the public, the shippers, and the Interstate Commerce Commission. It is agreed that Lessor will carry acceptable Public Liability and Property Damage insurance. Lessor agrees to reimburse and otherwise indemnify Lessee for any and all losses sustained by Lessee resulting from the use of the aforesaid equipment.
Lessor indemnifies Lessee against any loss resulting from the injury or death of drivers.
- The Lessor shall save the Lessee harmless from any loss, damage or happening giving rise to claims on the part of the shippers

It is Jones’ contention that the indemnification provision in the lease is in conflict with Title 49, C.F.R. § 1057.4(a) which provides:

§ 1057.4 Augmenting equipment.
Other than equipment exchanged between motor common carriers in interchange service as defined in § 1057.5, authorized carriers may perform authorized transportation in or with equipment which they do not own only under the following conditions:
(a) Contract requirements. The contract, lease, or other arrangement for the use of such equipment:
(4) Exclusive possession and responsibilities. Shall provide for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the lessee for the duration of said contract, lease or other arrangement, except: [exceptions not relevant to this case].

The argument is that these regulations established a public policy obligating Ryder as the lessee of the equipment to assume “complete” responsibility for Taylor’s operation of the leased vehicle in Louisiana, whereas the indemnification provision of the lease would exempt Ryder from such responsibility and place the ultimate loss on Jones.

This argument, however, flies in the face of the express terms of the indemnification agreement which provides that the equipment under the lease “is in the exclusive possession, control, and use of the authorized carrier Lessee and that the Lessee assumes full responsibility in respect to the equipment it is operating to the public . . .This provision is in conformity with the requirement of the regulation that a lease of equipment “shall provide' for the exclusive possession, control, and use of the equipment, and for the complete assumption of responsibility in respect thereto, by the Lessee for the duration of said contract, lease, or other arrangement . .

The authorities are in accord that an indemnification agreement in a one-way lease providing for the complete assumption of responsibility for the operation of the equipment by the lessee for the duration of the term of the lease is not violative of Title 49, C.F.R. § 1057.4(a). Thus the Fifth Circuit in Allstate Insurance Co. v. Alterman Transport Lines, Inc., 465 F.2d 710 (5th Cir. 1972), held that the regulation was not violated by an indemnification clause requiring a lessor in a one-way lease agreement to reimburse the lessee for all losses arising out of the operation of the lease. In support of this view the court pointed out that such an indemnification provision under which the parties freely contract as to which of them would ultimately be responsible for any damages caused to a third party is not materially different from a contract of liability insurance covering a loss caused by the fault or negligence of the insured party. Similarly, the Fourth Circuit in Carolina Freight Carriers Corp. v. Pitt County Transportation Co., 492 F.2d 243 (4th Cir. 1974), petition for certiorari filed 43 U.S.L.W. 3067 (August 13, 1974) (No. 73-1750), in upholding an indemnification provision comparable to the one now under consideration, observed that there was nothing in the lease agreement purporting to relieve the lessee from its responsibility to third parties for damages arising from the operation of the leased equipment. On the contrary, as in the present case, the agreement expressly provided that the lessee accepted full responsibility. The Fourth Circuit in its opinion further observed that a voluntary distribution of the ultimate costs among various parties does not in any way circumvent or contravene the assumption by one of the parties of full responsibility to the public for any injury that might be inflicted.

The ruling of the Seventh Circuit in Alford v. Major, 470 F.2d 132 (7th Cir. 1972), that the indemnification agreement considered in that case contravened the I.C.C. regulation is not in conflict with the rulings of the Fourth and Fifth Circuits. This is true for the obvious reason that in Alford v. Major, supra, the indemnification agreement itself permitted the lessor to retain full control over the truck and driver during the full term of the lease in direct violation of the applicable I.C.C. regulation which specifically requires that the exclusive control of the equipment shall be vested in the lessee for the duration of the lease.

That the lessor in the present case agreed to reimburse the lessee for any losses in no way impairs the public’s right of recourse against Ryder for damages caused by its operation of the truck in Louisiana. On the contrary, the indemnification agreement would appear to have the effect of strengthening the possibility of recovery by a third party in that it would provide another source or “pocket” from which a recovery could be obtained. The argument that the indemnification provision would have the effect of making Ryder less careful in its operation of the vehicle in that it would enable Ryder to transfer its losses to Jones is unconvincing. The uncertainties and inconveniences attendant upon enforcement of such an indemnification provision are alone sufficient to motivate the indemnitee to pursue a course of caution and prudence in its operations. Another factor which would normally cause a carrier to avoid accidents or injuries to third persons would be its desire to establish a name for conducting a safe operation to protect itself against a reputation for carelessness or indifference to the rights of others.

We are not persuaded by Jones’ alternative argument, not resolved by the district court, that the contract of indemnity before us cannot be construed to relieve Ryder from the consequences of its own acts of negligence. On this issue, it appears to be conceded that Tennessee law controls since the lease agreement was executed and the equipment was transferred to the lessee in that state. In its most recent pronouncement on the subject, the Supreme Court of Tennessee has stated that there is no rule of public policy prohibiting the indemnitee from contracting for indemnification on account of its own acts of negligence but that a contract will not be so construed unless it was clearly intended to have that effect. Kellogg v. Sanitors, Inc., 496 S.W.2d 472 (Sup.Ct. of Tenn.1973). The court quoted with approval the following statement of the rule from 41 Am.Jur.2d Indemnity, Sec. 13:

A contract of indemnity purporting or claimed to relieve one from the consequences of his failure to exercise ordinary care must be strictly construed. Accordingly, it is frequently stated as the general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it. Mere general, broad, and seemingly all inclusive language in the indemnifying agreement has been said not to be sufficient to impose liability for the in-demnitee’s own negligence, (emphasis supplied by Tennessee court) 496 S.W.2d at 474.

Applying this rule in the present case, we think it is clear from the indemnity contract that the parties intended that Ryder (indemnitee) should be reimbursed for all losses which it sustained resulting from its use of the equipment and while under its exclusive dominion and control. In unequivocal terms the contract provides that the equipment shall be in the “exclusive possession, control and use” of the lessee and that the lessee assumes full responsibility in respect to the equipment “to the public.” The lessor, on the other hand, agrees to carry acceptable Liability and Property Damage insurance and “to reimburse and otherwise indemnify Lessee for any and all losses sustained by Lessee resulting from the use of the aforesaid equipment.” Clearly this language is susceptible of no meaning other than that the lessor was to indemnify the lessee for all losses sustained by it and resulting from its operation and use of the equipment, whether caused by the lessee’s own acts of negligence or otherwise.

The judgment of the district court is therefore reversed and the action is remanded to that court for entry of a declaratory judgment consistent with this opinion.

      . We find Jones’ contention that I.C.C. Regulations were not complied with in the inspection of the equipment at Memphis to be without merit.

      . We treat the departure of the driver from the specified route as of no significance on the present appeal as it is neither argued before us by the parties nor discussed by the district court in its opinion.


author: PER CURIAM.

text:
    UNITED STATES of America ex rel. Gilbert WATERS and Henry Waters, Petitioners-Appellants, v. Peter BENSINGER, Director of Corrections, Respondent-Appellee.
    No. 72-1966.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 15, 1973.
    Decided Jan. 31, 1974.

      Julius Lucius Echeles, Chicago, Ill., for petitioners-appellants.
    William J. Scott, Atty. Gen., and Robert E. Davy, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.
    Before KILEY, Senior Circuit Judge, STEVENS, Circuit Judge, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr., of the District of Massachusetts, is sitting by designation.

   PER CURIAM.

Appellants seek reversal of the district court’s denial of their petition for a writ of habeas corpus. They unsuccessfully claimed in the district court that their rights under the due process clause of the Fourteenth Amendment were denied by the Illinois state trial court which had convicted them of armed robbery. Appellants’ principal ground for seeking reversal is that the state court refused their request to instruct the jury on their defense. Appellants’ subsidiary point is that in their case the state court changed the juducial rule with respect to alibis, and in their view this constituted a constitutionally impermissible retroactive law.

In the state criminal trial court, appellants offered without let or hindrance evidence respecting an alibi and also arguments to the jury in support of their defense of an alibi. But the trial judge, though asked to do so, did not instruct the jury on the defense of alibi. The Illinois appellate court, as a matter of state law, first reversed the convictions because of the trial judge’s failure to give an alibi instruction, but that court on rehearing withdrew its opinion and affirmed the convictions. People v. Waters, 2 Ill.App.3d 429, 275 N.E.2d 472 (2d Dist.App.1972).

The initial question is whether there is any merit to the suggestion that a state violates the due process clause of the federal constitution when it changes the rule of substantive law by a judicial opinion contrary to the state court’s earlier judicial views. Such a change is not a retroactive law of the type prohibited by the federal constitution, and the state is as free by judicial opinion to change its criminal as its civil law, irrespective of the effect of the change upon cases pending in a lower state court. Cf. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364-365, 53 S.Ct. 145, 77 L.Ed. 360 (1932).

The second and main question is whether as a matter of federal constitutional law the Illinois state convictions deny due process because the state judge failed to give an alibi instruction. No authority precisely in point has been drawn to our attention. But as a matter of principle, and as a matter of analogy, . we are clear that the failure of the state court’s trial judge to give the alibi instruction does not involve a point of such fundamental nature in the pursuit of justice as to merit protection by the Fourteenth Amendment. “Normally . instructions to the jury in state trials are matters of state law and procedure not involving federal constitutional issues.” Grundler v. State of North Carolina, 283 F.2d 798, 802 (4th Cir., 1960) See Kearney v. Peyton, 360 F.2d 589 (4th Cir., 1966); Greyson v. Com. of Kentucky, 333 F.2d 583 (6th Cir., 1964); McDonald v. Sheriff of Palm Beach County, 422 F.2d 839 (5th Cir., 1970) There is no reason in this case not to follow the cited analogies. Logically, an alibi is not an exculpatory defense; it is merely a method of disproving the prosecution’s case. Some have thought it difficult to frame instructions on the alibi defense without confusing the jury on the major principle that the government has the burden of proof of every essential element of the crime charged. Indeed the Illinois Judicial Conference [Illinois Pattern Jury Instructions, Criminal, 24.05 (Chicago, 1968) ] seems to have had this view. While we as federal judges may not be overwhelmingly impressed with this Illinois state view, it is not our direct concern to tell state judges how to instruct juries. Reasonable differences in state practice, whether founded on confidence or lack of confidence in the capacity of trial judges and juries, are permissible under the federal constitution. Except in extreme cases we federal judges are not the guardians of the guardians of state law.

Ex majore cautela we observe that, unlike Stump v. Bennett, 398 F.2d 111 (8th Cir., 1968). Johnson v. Bennett, 414 F.2d 50 (8th Cir., 1969), and Smith v. Smith, 454 F.2d 572 (5th Cir., 1972), this case does not present the question whether it is constitutionally permissible to instruct the jury that the defendant must bear the burden of proving an alibi — an instruction which has the effect of shifting from the prosecution to the defense the burden of proof.

Judgment affirmed.


author: PER CURIAM:

text:
    Eugene ANDERSON, Petitioner-Appellant, v. STATE OF TEXAS, Respondent-Appellee.
    No. 74-3789
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 22, 1975.

      Eugene Anderson, pro se.
    John L. Hill, Atty. Gen., Austin, Tex., W. Barton Boling, El Paso, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

The judgment denying habeas corpus relief must be vacated because the district court acted without reviewing petitioner’s state trial transcript and did not hold an evidentiary hearing.

In his pro se petition appellant has contended that he was denied a fair and impartial trial because the prosecutor allegedly read into evidence the contents of two letters from him to his co-defendant, written while both were incarcerated in jail pending their trial. Appellant asserts that the letters were wrongfully obtained and that their use was so prejudicial that the jury’s objectivity was tainted in a way that could not be undone even by a contemporaneous objection.

Without the benefit of a response or appellant’s state trial record, the district court summarily denied relief in an order which fails to define the court’s reasons for its action. We can only conclude that the denial of relief was based upon an adoption of the factual conclusions reached by the Texas Court of Criminal Appeals in its opinion affirming appellant’s conviction, Anderson v. State, Tex.Cr.App., 1973, 495 S.W.2d 896.

While Section 2254(d) of Title 28 provides that state court findings of fact shall be presumed correct by the federal habeas corpus court, subsection 8 requires that the record which formed the basis of the state court’s determination must be before the federal court to properly invoke the presumption.

We therefore vacate the district court’s judgment and remand the cause for the requisite independent inquiry into appellant’s claimed constitutional deprivation. Brown v. Jones, 5 Cir., 1974, 489 F.2d 1040; Lowe v. Alabama, 5 Cir., 1973, 487 F.2d 337. In his brief filed with this Court, appellant raises several additional habeas contentions. Since the newly presented issues were not part of the district court proceedings, they will not be considered on appeal. In view of this Court’s disposition of the appeal, appellant’s motion for appointment of counsel for appellate purposes is denied.

Vacated and remanded.

      . The Texas Court of Criminal Appeals described the letters as containing instructions concerning the co-defendants’ testimony to be given at petitioner’s trial. That court also determined that no objection was made at the time the letters were read.


author: SEITZ, Chief Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. David Ray DYCHES, III, Appellant.
    No. 74-1738.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 3, 1974.
    Decided Jan. 2, 1975.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1579.

      Gerald Dennenberg, St. Thomas, V. I., for appellant.
    Julio A. Brady, U. S. Atty., Ishmael A. Meyers, Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

The appellant in this case was the defendant (“defendant”) in a trial before the district court, sitting without a jury. He was convicted of murder in the first degree and assault in the first degree. Defendant’s only substantial claim on appeal is that the district court erred in admitting into evidence a hearsay statement attributed to one of the victims of the crimes. The victim had died prior to trial and the statement was introduced through testimony of a witness to whom the statement had been made.

The incident that gave rise to the criminal charges against defendant occurred around 1:30 a. m. on March 12, 1974, when a young woman, Terry Tink-ham, and her fiance, Frank Indelicate, were awakened from their sleep and brutally beaten by an assailant. As a result of the injuries received from this beating, Terry Tinkham died three days later having regained consciousness, allegedly, only once.

The statement, admission of which is attacked on this appeal, implicated defendant as the assailant. It was made by Ms. Tinkham to Mr. Indelicate at some point during the hour or so after the beating took place and before the two were discovered by persons who lived in the house where the victims were residing.

In holding Mr. Indelicato’s hearsay testimony concerning Ms. Tinkham’s statement admissible, the district court stated that it was of the opinion that the statement, when made by Ms. Tinkham, was “sufficiently contemporaneous” with the beating as to be admissible under 5 V.I.C. § 932 (1967). That section provides a statutory exception to the hearsay rule for statements made by de-clarants that are reasonably contemporaneous to the events to which the statements pertain.

On appeal defendant contends that Section 932 is inapplicable to Mr. Indelicato’s testimony since the district court never explicitly found that Terry Tinkham’s statement was made at a time when her recollection was clear, arguing that such a finding is a prerequisite to admissibility under Section 932. But whatever utility Section 932 may have as a reminder of the factors to be considered in rendering a determination on admissibility of hearsay evidence in criminal cases, the Section has no legal force in such cases. The Virgin Islands are made subject to the Federal Rules of Criminal Procedure by Rule 54 of the Rules. Rule 26 provides that the admissibility of evidence in criminal trials, except when an Act of Congress or the Rules themselves provide, will be governed by common law principles.

An exception to the hearsay rule for spontaneous exclamations has long been recognized at common law. See Wig-more on Evidence § 1750 (3d ed. 1940). Professor Wigmore has indicated that there are three essential requirements of the exception: (1) that there must be “some occurrence, startling enough to produce . . . nervous excitement and render the utterance spontaneous and unreflecting,” id. at 142; (2) that “[t]he utterance must have been before there has been time to contrive and misrepresent, i. e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance,” id., and (3) that “[t]he utterance must relate to the circumstances of the occurrence preceding it.” Id. See also, United States v. Poitra, 486 F.2d 46 (8th Cir. 1973); United States v. Glenn, 154 U.S.App.D.C. 61, 473 F.2d 191 (1972); United States v. Kearney, 136 U.S.App. D.C. 328, 420 F.2d 170 (1969); Beausoleil v. United States, 71 App.D.C. 111, 107 F.2d 292 (1939).

The general objective of the judicially created doctrine known as the hearsay rule is the exclusion of out-of-court statements made by persons who are not present at trial since, under such circumstances, the credibility of the statements cannot be tested on cross examination.

The narrow exception created for spontaneous declarations was developed to prevent the exclusion of such out-of-court statements where the external circumstances under which the statements were made provide a strong probability that the declarant was speaking both truthfully and accurately. The primary concern in cases dealing with spontaneous declarations is whether there is any likelihood that the declarant has fabricated his statement or that the declarant’s recollection has become clouded pri- or to the time the statement was made.

The central consideration in determining these various likelihoods, is the amount of time that has elapsed between the occurrence of the event to which the statement pertains and the making of the statement, since the passage of time allows both contrivance and forgetfulness. The court infers from this external circumstance, and others cited by Professor Wigmore, that the statement is, in a strictly legal sense,' reliable enough to warrant its admission.

In this case, Frank Indelicato’s testimony clearly satisfied the requirements of the common law exception to the hearsay rule for spontaneous declarations. The crucial factors are: (1) the unavailability of Ms. Tinkham; (2) the relative proximity of the time the statement was made by Ms. Tinkham and the time the beating took place; (3) the startling and unexpected nature of the beating, and the fact that Ms. Tinkham’s statement pertained to the beating. Any evidence which tended to prove that given the nature and extent of Ms. Tinkham’s injuries she was likely to have been delirious or her recollection was not likely to have been clear, would go only to the credibility of the hearsay testimony.

The district court has substantial discretion in determining what constitutes a spontaneous declaration. As was stated in Beausoleil, supra:

What constitutes a spontaneous utterance such as will bring it within this exception to the hearsay rule must depend, necessarily, upon the facts peculiar to each case, and be determined by the exercise of sound judicial dis-. cretion, which should not be disturbed on appeal unless clearly erroneous. Id. at 294-295.

The district court’s admission of Mr. In-delicato’s testimony was certainly within the district court’s discretionary power.

The judgment of the district court will be affirmed.

      . Section 932 provides in pertinent part:
      Evidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated is hearsay evidence and inadmissible except:
      * * * * * *
      (4) Contemporaneous statements and statements admissible on ground of necessity generally. A statement (a) which the judge finds was made while the declarant was perceiving the event or condition which the statement narrates, describes or explains, or (b) which the judge finds was made while the declarant was under the stress of a nervous excitement caused by such perception, or (c) if the de-clarant is unavailable as a witness, a statement narrating, describing or explaining an event or condition which the judge finds was made by the declarant at a time when the matter had been recently perceived by him and while his recollection was clear, and was made in good faith prior to the commencement of the action; 5 V.I.C. § 932 (1967).

      . A comment in the Virgin Islands Code at the beginning of the Chapter in which Section 932 is found acknowledges the inapplicability of the Code’s rules of evidence to criminal actions. See 5 V.I.C. Prec. § 771, at 181 (1967). See also Government of Virgin Islands v. Pondt, 456 F.2d 679 (3d Cir. 1972).

      . It is clear from the record that the statement was made sometime within a period of approximately one hour after the crime. See United States v. Kearney, supra, where hearsay testimony was held admissible although the statement attested to, made by the victim of a shooting, occurred approximately twelve hours after the crime.

      . We note that even if it could be said that an issue concerning the credibility of Ms. Tink-ham’s statement remained, that issue would be moot now because, apart from Mr. Indeli-cato’s testimony, there was unquestionably enough evidence against defendant to sustain his conviction. The most incriminating of this evidence was the testimony of two acquaintances of defendant to whom defendant had confessed his crime and described its commission with a particularity of detail that indicates that the confessions were authentic. We are of the opinion that it was this evidence, overwhelmingly adverse to defendant, upon which the district court based its judgment. Our conclusion is based upon careful review of the trial transcripts where we found that the district court, in articulating its findings in support of its judgment at the close of the trial, did not mention Mr. Indelicato’s hearsay testimony.


author: BIGGS, Circuit Judge.

text:
    UNITED STATES of America v. Stanley RADOWITZ, Appellant.
    No. 74-1235.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 7, 1974.
    Decided Dec. 18, 1974.

      Dennis J. Conklin, Law Student, William J. Bender, Newark, N. J., for appellant.
    Jonathan L. Goldstein, U. S. Atty., William T. Pizzi, Asst. U. S. Atty., Newark, N. J., for appellee.
    Before BIGGS, ADAMS and GARTH, Circuit Judges.
   OPINION OF THE COURT

BIGGS, Circuit Judge.

Stanley Radowitz appeals the dismissal of his petition for resentencing pursuant to 28 U.S.C. § 2255. The challenged sentence stems from appellant’s plea of guilty to the charge of robbery of the First Savings and Loan Association of Perth Amboy, Woodbridge, New Jersey, in violation of 18 U.S.C. § 2113(a). Upon accepting this plea on February 16, 1970, Judge Lawrence A. Whipple, sentenced appellant to fourteen years imprisonment but vested immediate parole eligibility with the Board of Parole under 18 U.S.C. § 4208(a)(2).

The appellant now asserts that, in formulating this sentence, Judge Whipple relied upon several prior state convictions which appellant contends were vio-lative of his Sixth Amendment right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Compare Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Radowitz contends that the district court must first determine whether convictions allegedly invalid in the light of Gideon, supra, were in fact invalid before it considers the propriety of the sentence. That contention was negated by Judge Whipple in the present pending § 2255 proceeding. The instant appeal followed. For the reasons stated hereinafter, it is unnecessary to take additional evidence to demonstrate that Radowitz was without counsel in at least a half dozen of his state court convictions.

This case poses two issues for our consideration. The first, which we raise sua sponte and believe merits more than passing attention, involves the admittedly defective indictment to which appellant pleaded guilty. The second requires a brief analysis of the district court’s evaluation in the instant case of a sentence reconsideration petition based upon the contention that the sentencing court relied upon one or more allegedly invalid prior convictions in determining Radow-itz’s sentence,

I. THE DEFECTIVE INDICTMENT

Appellant’s indictment, No. 414-68, filed November 6, 1968, on the bank robbery charge consisted of three separate counts under 18 U.S.C. § 2113(a), (b) and (d), respectively. After he pleaded guilty to Court I, the latter two counts were dismissed. Count I, however, erroneously stated that the bank was insured by the Federal Deposit Insurance Corporation. In fact, the First Savings and Loan Association of Perth Amboy, Woodbridge, New Jersey is insured by the Federal Savings & Loan Association. To further confuse matters, Count I correctly referred to 18 U.S.C. § 2113(g) which encompasses savings and loan associations and makes robbery of them a federal offense under 18 U.S.C. § 2113(a).

The appellant applied for dismissal of the indictment because of this defect. A hearing was held on that application on May 19, 1969, and it was dismissed. Subsequently, Radowitz pleaded guilty to an information based upon Count I, but that plea was withdrawn. His final guilty plea of February 16, 1970 was then premised upon Count I of the original indictment containing the defect and orally amended by agreement of counsel with the approval of the court.

We are constrained to consider this defect in relation to both the purposes of an indictment and the rights which an indictment is designed to protect. United States v. Goldstein, 502 F.2d 526, 528-530 (3d Cir. 1974) (en banc); United States v. DeCavalcante, 440 F.2d 1264, 1269-1272 (3d Cir. 1971). Briefly summarized, an indictment: (1) fulfills the Sixth Amendment “apprisal” requirement by providing a defendant with notice of the charges against him in order that he may prepare a defense; (2) effectuates the Fifth Amendment’s “double jeopardy” provision by insulating a defendant from reprosecution for the same offense; and (3) shields an accused from unwarranted and unfounded charges of involvement in serious crimes by interposing the independent judgment of the grand jury in accordance with the Fifth Amendment’s guarantee that prosecutions for “infamous” crimes may only be commenced by grand jury indictments. Viewed in this light, we discern no prejudice to appellant from this defective indictment. It specifically informed Radowitz of the nature of the alleged offense and the statutory violations involved. Its erroneous reference to the Federal Deposit Insurance Corporation in no way subjected him to the possibility of double jeopardy. Finally, the grand jury’s action in citing 18 U.S.C. § 2113(g) indisputably precludes the possibility that its judgment would have been altered had its attention been drawn to the mistaken citation to the Federal Deposit Insurance Corporation. While we cannot condone the loose proceedings which lead to such errors, our task is confined to an examination of their prejudicial effect. In this case, we are compelled to conclude that the defect was harmless and resulted in a non-fatal variance. The recasting of an indictment by agreement of counsel, even though approved by the court, is not a practice which we sanction with gladness. Revisions of an indictment should be made by a grand jury. A cursory examination by the United States Attorney’s Office would have obviated the error in the indictment. The amendment to the indictment was made orally without written motion by counsel or written order by the court. See and compare Rule 47, Fed.R.Crim.P., 18 U.S.C. Under some circumstances, a plea of double jeopardy might be difficult to assert or maintain where there is no written motion or confirming order amending an indictment.

II. THE PROCEDURAL ISSUE PRESENTED BY THE TUCKER DECISION

Traditionally, the federal judicial system has permitted the trial court to exercise wide and generally unreviewable discretion in imposing sentence. This doctrine has been tempered, however, by rulings that prior invalid convictions may not be used to “support guilt or enhance punishment for another offense.” Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 262, 19 L.Ed.2d 319 (1967); United States v. Tucker, supra. In Tucker, the sentencing judge, in imposing the maximum possible sentence, had given explicit consideration to respondent’s prior record. Later, two of those earlier convictions were conclusively invalidated pursuant to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Supreme Court concluded that remand for resentencing in the “dramatically different light” of the altered record was imperative. Tucker, supra, 404 U.S. at 448, 92 S.Ct. 589.

Inevitable questions have arisen since the Tucker ruling regarding proper procedures for consideration of resentence petitions based on assertions that the sentencing judge relied upon invalid prior convictions in calculating a sentence. In the instant case, however, it is not necessary to deal with these various approaches. The record contains an affidavit of Marie Lukacsko, senior clerk typist in the Passaic County Clerk’s office, stating that their records do not

indicate that appellant was represented by counsel on six charges of larceny and receiving in 1938, three charges of larceny and receiving in 1939, and five charges of breaking, entering, larceny and receiving, breaking and entering with intent to steal, and possession of burglar’s tools in 1948. We deem this to be sufficient to support a finding which in substance was made by the learned district judge that Radowitz was not represented by counsel at his trials on the charges referred to. The Government has the burden under such circumstances to prove affirmatively the defendant’s representation by counsel in prior criminal proceedings. In the present pending § 2255 case, Judge Whipple followed the procedures set out in Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972). In the instant case we approve this procedure, it being unnecessary to consider other approaches in view of the operative fact not contested by the United States that Radowitz did not have counsel in New Jersey on some felony charges, statements of which were before Judge Whipple. See United States v. Lufman, 457 F.2d 165, 167 (7th Cir. 1972). Radowitz argues that several prior New Jersey state court convictions violated the Gideon rule, and that the distinguished district judge considered these prior convictions in sentencing Ra-dowitz originally to fourteen years imprisonment. Judge Whipple on reconsideration in the light of United States v. Tucker, supra, again gave appellant a sentence of fourteen years imprisonment. The United States does not contend that the ■ prior judgments of conviction, entered without Radowitz’s representation by counsel, did not violate the Gideon rule or that the district judge did not consider these prior convictions m imposing his original sentence of fourteen years imprisonment upon Radowitz in violation of Burgett v. Texas, supra. The United States does contend, however, that Judge Whipple in imposing a similar sentence of fourteen years imprisonment upon Radowitz took the rule of United States v. Tucker, supra, sufficiently into account and that the sentence should stand on the present § 2255 proceeding. The fact that Judge Whipple arrived at a similar sentence does not require us to reverse his judgment. It is true that he stated his prior sentence was “lenient”, but we believe the conclusion of the trial court is not erroneous.

The judgment will be affirmed.

      . The maximum sentence under 18 U.S.C. § 2113(a) is a $5,000 fine and twenty years imprisonment.

      . Although these earlier convictions antedated Gideon, supra, that decision is fully retroactive. Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963).

      . Count I charged: “That on or about the 5th day of September 1968, in the District of New Jersey, STANLEY RADOWITZ did wilfully and unlawfully take, through the use of intimidation in the presence of BERNICE ERDELY, CATHERINE LEBEDA and ROBERT O’KEEFE employees of the First Savings and Loan Association of Perth Amboy, Wood-bridge, New Jersey, the sum of $5,554.00, which money was then and there in the care, custody, control, management and possession of the First Savings and Loan Association of Perth Amboy, Woodbridge, New Jersey, which bank’s funds were then insured by the Federal Deposit Insurance Corporation, within the meaning of Title 18, United States Code, Section 2113(g).
      In violation of Title 18, United States Code, Section 2113(a).

      . We emphasize that this error does not present a jurisdictional problem since robbery of banks insured under either the Federal Deposit Insurance Corporation Act (12 U.S.C. §§ 1811-1832) or the Federal Savings & Loan Association Act (12 U.S.C. §§ 1724-1730) constitutes a federal offense. See 18 U.S.C. § 2113(a), (f), and (g). See also Rule 12(b)(2), Fed.R.Crim.P.

      . See Stirone v. United States, 361 U.S. 212, 217, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Goldstein, supra; United States v. DeCavalcante, supra, 440 F.2d at 1272; Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061, 1075 (1969). See generally 8 Moore, Federal Practice — Taylor, Criminal Rules U 7.05 [1],

      . See, e. g., North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). See also United States v. Tucker, 404 U.S. 443, 446-447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

      . Judge Whipple stated: “Let the record note that this Court has carefully reviewed the presentence report furnished to it by the Probation Department. That report contains an excerpt from the New Jersey Diagnostic Center at Menlo Park dated April 14, 1969.
      “I have also reviewed very carefully the report of Dr. Vracle, Director of the Diagnostic Center, Department of Institutions and Agencies, Menlo Park, dated January 6, 1970.”
      The documents referred to demonstrate Ra-dowitz’s former convictions.
      See p. 16 of the transcript of Radowit’s sentencing on February 16, 1970.

      . A like case was before a prior panel of this court which made an order in respect thereto similar in tenor to our present disposition. See Murray v. United States, 3 Cir. 1974, 500 F.2d 1400.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joseph KRAUSE, Defendant-Appellant.
    No. 74-1402.
    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.
    Rehearing Denied March 4, 1975.

      Neal R. Sonnett, David A. Russell, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Miami, Fla., Mervyn Hamburg, Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

After a trial to a jury, appellant was convicted of making a false statement in violation of 18 U.S.C. § 1001 (1966) and was sentenced to imprisonment for three months, followed by two years probation. Krause, the defendant below, appeals, alleging that his unsworn responses to questions propounded by a National Labor Relations Board Hearing Officer at a formal hearing did not constitute a “statement” within the meaning of 18 U.S.C. § 1001. He also claims that the trial court incorrectly refused to allow a former hearing officer to testify to the weight generally given by regional directors to unsworn statements contained in a transcript of an NLRB hearing. For the reasons enunciated below we affirm the appellant’s conviction.

I.

During February and March, 1972, representatives of the International Association of Machinists and Aero Space Workers (hereinafter referred to as “IAM”) made an unsuccessful attempt to organize the employees of Air LaCarte Florida, Inc., a Miami, Florida airline food catering company. When IAM’s efforts continued, Air LaCarte’s president, Victor Damiano, considered, as an alternative to total opposition to unionization, the possibility of agreeing to his employees being organized by a union friendlier to him than IAM.

Thereafter officials of the United Textile Workers of America (hereinafter referred to as “UTW”), headquartered in New Jersey, were sent to Air LaCarte to attempt to obtain signatures of employees on cards evidencing a desire to hold an election on the question of representation by UTW. Many Air LaCarte employees signed cards on behalf of both unions.

On June 28, 1972, IAM filed with the regional office of NLRB a “petition for election,” which, if approved, would have permitted employees of Air LaCarte to vote by secret ballot under NLRB supervision on the question of unionization under IAM. On July 25, a fact-finding hearing was conducted by the NLRB. Appellant, an international vice-president of UTW, and his attorney represented UTW as an intervenor. During the course of the hearing, the hearing officer attempted to ascertain the exact point in time a contract between UTW and the company was signed. The following exchange between the hearing officer and the appellant then occurred:

Hearing Officer: [T]he agreement referred to in this hearing was executed on behalf of the Union by Joseph Krause. Is that you, Mr. Krause?
Mr. Krause: Yes, sir.
Hearing Officer: What time of day was this drafted, do you know, sir?
Mr. Krause: Well, it was during the course of the day. We met in the afternoon and it was done around— I can’t remember exactly. There was quite a bit of negotiating. Sometime around, say — we were there ’til around four or five o’clock, eight o’clock.
Hearing Officer: It was signed in the afternoon?
Mr. Krause: It was up in the evening. Yeah.
Hearing Officer: In the early evening?
Mr. Krause: Yes.
Hearing Officer: Between four or five o’clock to eight o’clock?
Mr. Krause: It was actually signed about eight o’clock.
Hearing Officer: On the day of June 28th?
Mr. Krause: Yes, sir.

Krause’s remarks, although not under oath, were clearly made “on the record” and were included in the transcript of the hearing.

After examining the record, including the transcript, the NLRB Regional Director dismissed IAM’s petition under the “contract in bar” rule which provides that a collective bargaining contract executed with one union on the same day that a petition for election is filed bars further processing of the petition, if the contract was to take effect immediately and the employer was unaware of the filing of the petition when the contract was signed.

It later appeared that UTW’s contract with Air LaCarte was executed not on June 28, but on June 29, and had been back-dated. Records of the union and those of an airline, as well as appellant’s own grand jury testimony, reflected that he had been in upstate New York on June 28 and had not flown to Miami, where the contract was negotiated and signed, until June 29.

On July 24, 1973, a federal grand jury returned a six-count indictment against’ Krause . and six other individuals for crimes alleged to have been committed in the course of the union’s organization of the Florida corporation. All of the defendants except Krause were ultimately acquitted of the charges against them, either by the court or the jury.

During the course of the trial, Krause’s attorney attempted to introduce into evidence the testimony of Donald R. Holley, a former hearing officer of the NLRB. Krause’s attorney attempted to show that unsworn testimony is not considered in the decision-making process and therefore is immaterial. Hence, Krause’s answer would not have been capable of influencing the board’s decision.

The court did not allow a complete examination of Holley on this point and prohibited Krause’s attorney in his summation from making reference to the testimony of Holley on the subject of materiality. After due deliberation, the jury found Krause guilty of violating 18 U.S.C. § 1001, and he was sentenced on December 27, 1973.

II.

Appellant first contends that the false statement charged to Krause is found only in the last response of his colloquy with the hearing officer:

Hearing Officer: On the day of June 28th?
Mr. Krause: Yes, sir.

Appellant then asserts that this reponse was not within the class of false statements that § 1001 was designed to proscribe.

The present 18 U.S.C. § 1001 has its origin in a statute passed almost one hundred years ago in the wake of a spate of frauds on the government. United States v. Bramblett, 348 U.S. 503, 504, 75 S.Ct. 504, 99 L.Ed. 594 (1955). The original provision clearly covered the presentation of false claims against any instrumentality of government to any officer of the government. Id. at 505. False statements made for the purpose of obtaining the approval of payment of any kind were also proscribed. Id. In 1934 the false statement section was amended so as to delete all words as to purpose and to insert “in any matter within the jurisdiction of any department or agency of the United States .” The statute was presumably revised so as to reach not only false statements in connection with claims against the government but also in connection with non-monetary frauds. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941).

The amendment to the statute occurred during the New Deal period when government agencies began entering the field of economic regulation. Friedman v. United States, 374 F.2d 363, 366 (8th Cir. 1967). “For a proper functioning of their regulative and reform power these agencies depended upon information supplied by individuals and corporations with which they were dealing. The giving of false information to these agencies would, of course, seriously pervert their functions, making effective regulation impossible. . . . Obviously, the immediate and primary purpose in amending the old ‘fraudulent claims’ statute was to curtail the flow of false information to these newly created regulative agencies.” Id.

Thus, included within the purview of the statute were statements which involved no pecuniary loss to the government but which by their falseness perverted the function of some government agency. United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941). In 1948, the statute was put into its present form, the false statement provision becoming 18 U.S.C. § 1001. United States v. Bramblett, 348 U.S. 503, 508, 75 S.Ct. 504, 99 L.Ed. 594 (1955).

Courts have applied this statute to oral as well as written statements and unsworn as well as sworn statements. United States v. Beacon Brass Company, Inc., 344 U.S. 43, 46, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Ratner, 464 F.2d 101 (9th Cir. 1972); United States v. Adler, 380 F.2d 917 (2nd Cir. 1967), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967). Moreover, for purposes of the statute, a false statement has been deemed to have been made in a manner within the jurisdiction of the federal agency even if it was not made to the agency itself, if inevitably the agency had been deceived. United States v. Candella, 487 F.2d 1223 (2nd Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1563, 39 L.Ed.2d 872 (1974).

Appellant correctly notes that certain • statements while materially false, have been held to fall beyond the parameters of 18 U.S.C. § 1001. Several courts have held § 1001 inapplicable to statements made to government agents acting in a purely investigative capacity. See Pa-ternostro v. United States, 311 F.2d 298, 302-303 (5th Cir. 1962). Although the line between “administration” and “investigation” cannot be sharply drawn, the argument has been made that this statute was intended to apply only to federal government “administration” and not intended to compel citizens to answer truthfully every question put to them in the course of a federal police or federal criminal investigation. United States v. Levin, 133 F.Supp. 88 (D.Colo. 1953).

However, appellant incorrectly relies upon United States v. Stark, 131 F.Supp. 190 (D.Md.1955) and Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962). In Stark, the court held that negative answers given under oath to FBI agents who were investigating reports of an alleged bribery attempt were not “statements” within the statute. In Paternos-tro this court adopted the “exculpatory no” exception, holding that an essentially “no” response to Internal Revenue Service questions, during a conference which was not initiated by the defendant, did not relate to a claim by the defendant against the United States and was not a “statement” within the meaning of the statute.

We reaffirm our adherence to the Paternostro principle that a generally negative and exculpatory reponse made by a subject of a criminal investigation in reply to questions directed to him by investigating 'officers is not a crime under § 1001. However, that principle is simply not applicable to the factual situation before us. Indeed, even those courts which have most carefully restricted the scope of § 1001 in the context of government investigation have indicated that the statute does apply to positive statements which substantially impair the basic functions entrusted by law to a government agency. As we indicated in United States v. Bush, 503 F.2d 813 (5th Cir. 1974): “[T]here is a valid distinction between negative exculpatory denial of the suspected misdeed and an affirmative representation of facts peculiarly within the knowledge of the suspect not otherwise obtainable by the investigator.”

Although appellant’s false statement came in response to questioning, the entire context of his colloquy with the NLRB hearing officer indicates aggressive action on Krause’s part to substantially impair the basic functions entrusted by .law to the NLRB and, therefore, his conduct was of the very type § 1001 was meant to proscribe. Appellant was one of two officials representing his union at the NLRB hearing, at which he appeared as an intervenor attempting to affect the course of government action. He was the only one present who had personal knowledge of the negotiations which led to the signing of the collective bargaining contract between UTW and Air LaCarte. It was in his union’s interest to convince the hearing officer that the effective date of the UTW contract was not after the date of the filing of IAM’s petition. We therefore hold that Krause’s statement to that effect, made on the record during the course of an administrative hearing, was within the class of statements § 1001 was meant to proscribe.

III.

Appellant next requests a remand of the case so that Krause may present evidence and argue to the jury on the question of materiality.

An essential element of the offense of making a false, fictitious, or fraudulent statement proscribed by 18 U.S.C. § 1001 is that such a statement relate to a material fact. United States v. Jones, 464 F.2d 1118, 1121 (8th Cir. 1972); Brethauer v. United States, 333 F.2d 302 (8th Cir. 1964). In determining whether a false statement is material, the test is whether it has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be made. Blake v. United States, 323 F.2d 245, 246 (8th Cir. 1963); Gonzales v. United States, 286 F.2d 118, 122 (10th Cir. 1960).

Virtually without exception, materiality has been held to be a matter of law. See, e. g., United States v. Ivey, 322 F.2d 523 (4th Cir. 1963), cert. denied, 375 U.S. 953, 84 S.Ct. 444, 11 L.Ed.2d 313 (1963); Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699 (D.C.Cir. 1956). Nevertheless, in the case before us, the judge charged the jury as to the standard for materiality and repeatedly referred to materiality as a jury question. But the judge excluded examination of Donald R. Holley on the question of whether a regional director can consider unsworn testimony in making his decision. The judge also indicated his intention to charge the jury that statements made by a person who appears before a hearing officer of the NLRB need not be sworn in order to be considered by the regional director. Since Krause’s statement cannot be material unless it was — or could have been — considered, the judge effectively decided the question of materiality as a matter of law. Appellant now asks us to remand this case in order to enable him to argue to the jury that Krause’s statement was not and could not have been considered by the regional director and therefore was not material. We decline to do so.

Since materiality on this record was a matter of law, the district judge acted properly in excluding testimony and argument to the jury as to whether Krause’s statement was considered. Moreover, we do not believe his conclusion that the statement need not. be sworn to be considered — and therefore that Krause’s statement was material as a matter of law — is erroneous.

Appellant correctly points out that § 102.66(a) of the Rules and Regulations of the NLRB (29 CFR 102.66(a)(1974)) specifies that “[witnesses shall be examined orally under oath.” However, when Krause’s colloquy with the hearing officer was read into the record at trial, all parties conceded — at appellant’s insistence — that Krause was not a witness at the hearing. Hence, since Krause was not a witness, the requirements for witnesses’ testimony would appear to be irrelevant to the disposition of this case.

Moreover, 29 CFR § 102.68 states that the “record in the proceedings shall consist of . the stenographic report of the hearing and of any oral argument before the regional director . . The regional director issues a decision only “[ajfter a review of the entire case.” 29 CFR 101.21(b); see also 29 CFR 102.67(b). The Rules and Regulations of the NLRB do not specify that the regional director must consider only sworn testimony in making his decision. In fact, he may rule on objections to elections entirely upon administrative investigation, and there need be no formal hearing at all. See 29 CFR § 101.21(a). Krause’s statement, while not sworn, was clearly part of the “record,” since the hearing officer, prior to his colloquy with Krause, advised all present that he was going “back on the record.” Since Krause’s statement was part of the record, it could be considered by the regional director and it was therefore “capable of influencing” the director’s decision. As such, it was material.

For the reasons set forth above, the judgment of the district court is

Affirmed.

      . Title 18 U.S.C. § 1001 (1966) provides: “Whoever, in any matter within the jurisdiction of any department or agency of the United States, knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.”

      . In Paternostro v. United States, 311 F.2d 298, 305 (5th Cir. 1962), the court noted that the appellant made no statement relating to any claim on his behalf against any agency of the United States, nor did he “aggressively and deliberately initiate any positive or affirmative statement calculated to pervert the legitimate functions of Government.” The court in United States v. Stark, 131 F.Supp. 190, 205 (D.Md.1955), indicated that the purpose of § 1001 is “to protect the government from the affirmative or aggressive and voluntary actions of persons who take the initiative, or, in other words, to protect the government from being the victim of some positive statement . . which has the tendency and effect of perverting its normal proper activities." Finally, the court in the United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972) held that § 1001 “was not intended to embrace oral, unsworn statements, unrelated to any claim of the declarant as to a privilege from the United States or to a claim against the United States, given in response to inquiries initiated by a federal agency or department, except, perhaps where such a statement [would] substantially impair the basic functions entrusted by law to that agency.”
      We similarly distinguish United States v. Bush, 503 F.2d 813 (1974, 5th Cir.), where § 1001 was held inapplicable to defendant’s statement to Internal Revenue Agents. There the statement was essentially an “exculpatory no” as to possible criminal activity, the agents aggressively sought the statement, and there was a high likelihood that the appellant was under suspicion at the time the statement was taken and yet was not warned of this possibility.